Top court upholds constitutionality of new record-screening regime for sexual assault prosecutions

By Cristin Schmitz

Law360 Canada (June 30, 2022, 5:40 PM EDT) -- In a decision predicted to trigger a flood of pretrial litigation, the Supreme Court of Canada has ruled 6-3 that the Criminal Code’s new regime for determining the admissibility of complainants’ private records in sexual assault trials does not violate an accused’s fair trial or other constitutionally protected rights.

On June 30, the top court handed down a 263-page, four-opinion indexed judgment, after nearly nine months under reserve, that marks the Supreme Court’s first interpretation of recent Criminal Code amendments (ss. 278.92 to 278.94) related to sexual history records and private records in the hands of the accused — changes Parliament intended to remove barriers to the reporting of sex crimes: R. v. J.J., 2022 SCC 28. 

The 2018 legislative changes — attacked before the Supreme Court as an unjustified breach of accused’s ss. 7, 11(c) and 11 (d) Charter rights to a fair trial, to make full answer and defence, to remain silent and not to self-incriminate, and to be presumed innocent — created a new procedure for screening complainants’ private records in the hands of the defence (anything from medical or psychiatric records to e-mail and text exchanges with the accused) to determine whether they are admissible as evidence at trial, and created participatory rights for the complainant in the process whereby her sexual or private records are sought to be adduced.

Justice Michael Moldaver

Justice Michael Moldaver

For the six-judge majority, Chief Justice Richard Wagner and Justice Michael Moldaver held that Bill C-51’s changes to the records screening regime in sexual assault prosecutions are, in their entirety, a constitutionally valid balance of the rights and interests of accused, complainants and the public, as they apply to both Criminal Code s. 276 sexual activity evidence applications and private record applications.

The majority went on to quash interlocutory declarations of constitutional invalidity by applications judges below in Ontario and B.C. that had respectively struck down and read down the amendments.

The majority’s judgment provides guidance on how courts and the bar are to interpret and apply the records screening regime, as well as settling the constitutionality question which had divided courts across the country, with some courts, in Ontario and Nova Scotia for example, finding the scheme governing the admissibility and use of the records in the hands of the accused constitutional, while courts in B.C., Alberta, Saskatchewan and Yukon found Charter violations.

On the regime’s constitutionality, Justices Moldaver and the chief justice wrote that “the right to a fair trial does not guarantee the most advantageous trial possible, and requires consideration of the privacy interests of others involved in the justice system.”

Justice Russell Brown

Justice Russell Brown

They held “the impugned provisions strike a balance that protects fundamental justice for accused persons and complainants.”

By contrast, Justice Russell Brown, one of three judges who wrote separately in partial dissent, would have struck down the record screening regime as overbroad and for unjustifiably and disproportionately violating an accused’s Charter ss. 11(c), 11(d) and 7 rights. (He left the provisions intact, however, insofar as they apply to the s. 276 regime restricting admissibility of “other sexual activity” evidence, and the definition of “record” in the ss. 278.1 to 278.91 regime for production of third‑party records.).

“The record screening regime ought to be returned to Parliament to be narrowed,” Justice Brown contended. “Parliament has legislated a formula for wrongful convictions. Indeed, it has all but guaranteed them,” he predicted.

Justice Brown reasoned that “in pursuing a legitimate purpose, Parliament has proceeded in a ham‑fisted manner, without regard for fundamental rights of accused persons. The regime is not merely disadvantageous to the defence; it interferes significantly with the accused’s ability to avoid self‑incrimination, effectively cross‑examine prosecution witnesses, and adduce relevant and probative evidence during a proceeding that will decide their liberty. While the regime may advance Parliament’s objective of protecting complainants’ privacy, dignity, and equality, it does so only marginally, and at the expense of core fair trial rights.”

In a separate partial dissent, Justice Malcolm Rowe agreed with Justice Brown that the records screening provisions should be struck down (except insofar as they apply to the s. 276 regime) for unjustifiably restricting the fair trial rights of accused by limiting how they can conduct the cross‑examination of Crown witnesses and what evidence they can introduce in support of their own defence, even if that evidence is highly probative and not prejudicial to the complainants, as well as by requiring the accused to disclose all records relevant to their defence before the Crown has established the case to meet. Justice Rowe also departed from the methodological approach used by the majority which he said inverted the proper role of s. 7 of the Charter by using the more general section to introduce internal limits into s. 11. “Section 7 is a broad, rights‑conferring provision,” he pointed out. “To construe it as a limit on other Charter rights is wrong in principle and, in the instant case, undermines the longstanding, fundamental right to a fair trial.”

In her own partial dissent, Justice Suzanne Côté echoed Justice Brown that the impugned record screening regime “does not come close to passing constitutional muster.” She also agreed with Justice Rowe’s analytical approach to s. 7 of the Charter, but disagreed with the analyses and conclusions of both the majority and Justice Brown on the interpretation of the key legislative terms “record” and “adduce”. “A narrow interpretation should be preferred,” she urged.

The challenged provisions affect the defence’s ability to introduce evidence in the accused’s possession of private communications with the complainant, and require an accused who wishes to introduce such material at trial to usually give seven days’ notice. Condemned as “reverse disclosure” by the defence bar, the amendments provide that in order to rely on such material as texts, e-mails, photos or other private records of the complainant in the accused’s hands, the defence must disclose to the Crown and complainant detailed particulars, and also go through an admissibility hearing at which the complainant has standing to make submissions with support of counsel.

Reaction to the Supreme Court’s judgment split along the same lines as the opposing arguments put forward by the parties, interveners, including attorneys general, defence bar associations, women’s groups and rape crisis centres.

On behalf of the successful appellant B.C. Crown in the case of J.J., a man accused and acquitted of sexual assault, Dan McLaughlin, communications counsel with the BC Prosecution Service, said the decision recognizes the important role the private record screening regime “plays in filling a legislative gap to ensure statutory protection of complainants’ privacy and dignity, where the accused is in possession or control of records that contain information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being. The court concluded that the regime provided a constitutionally sound process for determining the admissibility of these records in a manner that was consistent both with the fair trial rights of the accused and the legitimate privacy interests of complainants.”

David Butt, who with Dawne Way and David Reeve represented the successful appellant complainant A.S. in the companion appeal of A.S. v. The Queen et al., hailed the majority judgment.

“Today our Supreme Court has affirmed that unlike the [U.S. Supreme] court to the south, it is committed to defining the rights in our Charter with an unwavering, realistic grasp of the current realities faced by women seeking access to justice,” Butt said. “We are privileged to be living in a country where Charter rights are capable of receiving such an informed, responsive, and contemporary interpretation. This decision is everything our client, a sexual assault survivor, could reasonably hope for. She has shown tremendous courage and resilience in fighting this case all the way to the Supreme Court. We cannot say enough about her bravery, which has resulted in improvements in access to justice for countless thousands of sexual assault survivors across the country.”

Butt said that the ruling “reaffirms that sexual assault survivors have Charter rights to privacy, equality and security of the person that are equal in importance to the Charter rights of accused persons, and the Supreme Court has affirmed that for these rights to mean anything, they must be accompanied by meaningful representation and participation in the criminal process.”

Megan Savard, Savard & Foy Criminal Defence

Megan Savard, Savard & Foy Criminal Defence

Megan Savard of Toronto’s Savard & Foy Criminal Defence, who with Vancouver’s Rebecca McConchie represented the respondent J.J., told The Lawyer’s Daily “we are disappointed that a majority of the Supreme Court refused the parties’ collective request to clarify the law of sexual assault. Crown and defence counsel alike asked the Supreme Court to tell us how private record applications should work. Instead, the Supreme Court delegated this decision to trial judges on a case-by-case basis. Its decision has entrenched, rather than cleared up, the confusion plaguing sexual offence prosecutions.”

Savard said that the ruling “adds complexity to an already-complicated regime.” It will lead to long, complicated trials, more mistrials, more successful appeals, and more delays reaching a verdict, she predicted. “This outcome is in no one’s best interest.”

The majority’s legal ruling will also have far-reaching consequences, she predicted. “This is the latest in a series of cases in which the Supreme Court has watered down the fundamental rights of those whose liberty is at stake,” she remarked. “It marks a stark departure, even a reversal, of accepted criminal law principles. It now appears to be settled law in Canada that witnesses are more accurate and truthful when given a chance to prepare answers in advance. If that’s the case, I look forward to legislative and judicial reforms that grant our arrested clients a right to disclosure before police interrogation.”

Savard also predicted that the legislative regime upheld will lead to more wrongful convictions, without improving the experience of complainants in the criminal justice system.

Joanna Birenbaum, Birenbaum Law

Joanna Birenbaum, Birenbaum Law

Joanna Birenbaum of Toronto’s Birenbaum Law, counsel for the intervener Barbra Schlifer Commemorative Clinic which argued in support of the law’s constitutionality, said the majority “recognized that blindsiding complainants with private information does not enhance the truth-seeking function of the criminal trial. This is an incredibly important affirmation of what those of us who work with survivors know to be true and is an important step forward in reducing barriers to reporting.”

Birenbaum added that many of the hotly contested cases that have come before the courts under the new regime have involved texts or e-mails that the complainant has deleted but the accused has preserved. “As the clinic pointed out in the hearing, women often delete these communications after an assault as a method of coping and survival. In the past, these e-mails, no matter how private or humiliating their content, could be sprung on the complainant in cross-examination at trial, often years after they were written.”

She also highlighted the importance of the court upholding the regime’s application to “unenumerated” communications (between the complainant and accused), with the scope of the regime’s application to be determined based on the content and context of the records. “Where e-mails, or texts or other social media contain private information, a nuanced framework is applied that will ensure that complainants’ dignity and privacy are protected, while fair trial rights of accused are maintained,” Birenbaum said. The court also clarified that where the communication relates to the sexual assault itself, the communication is “likely” caught by the regime too since such communications “are likely to engage the complainant’s reasonable expectation of privacy’” as per para. 67, she suggested. “The Supreme Court got it right by confirming that private digital communications are caught by the regime. The decision will bring much needed clarity and relief.”

Birenbaum lauded the majority judgment for rejecting lower court rulings that there can be no expectation of privacy in digital communications as once you send a text or e-mail, you lose control over that record. “The court rightly observed that ‘the fact that [the complainant] may have chosen the wrong person to trust should not be determinative of their privacy interest’.”

She added that it is “extremely important” that the court “has strongly discouraged mid-trial applications”, i.e. pretrial applications should be the norm. “As the court recognized, and the clinic sees on the front-line, mid-trial applications, which can result in a complainant being held over under cross for months on end, absolutely risk harm to complainants and discourage reporting.”

Lindsay Board, Daniel Brown Law LLP

Lindsay Board, Daniel Brown Law LLP

Lindsay Board of Toronto’s Daniel Brown Law LLP, who with Daniel Brown and Gerald Chan of Stockwoods LLP in Toronto represented the intervener Criminal Lawyers Association (Ontario), said the majority decision leaves some questions unanswered, such as the scope of evidence to which the records screening regime will apply. “Given the serious consequences for an accused person as a result of a conviction for a sexual offence, these cases tend to be hard fought and strenuously litigated,” Board noted.

She predicted, “we can anticipate much more litigation on evidentiary points in sexual offence cases, which can generate lengthy court delays. Such delays can compromise an accused person’s constitutional right to a trial within a reasonable time and risk charges being stayed for unreasonable delay. This is particularly concerning given the current climate of court backlogs as a result of the COVID-19 pandemic.”

Chan said defence counsel “must now work to protect the interests of their clients within the parameters of the court’s judgment.”

He said it will continue to be a challenge to figure out when a text message is sufficiently private to be considered a “record” such that a pretrial screening application is required. “Each text will have to be examined carefully,” he advised. “Motions for direction may continue to be necessary in many cases.”

Moreover, the fact that a text message may cause discomfort to the complainant if revealed in open court does not necessarily turn it into a “record” subject to screening, Chan said. “The pre-screening regime will only apply where the sensitivity of the information strikes at the complainant’s intimate self.”

Peter Sankoff, Sankoff Criminal Law

Peter Sankoff, Sankoff Criminal Law

Peter Sankoff of Sankoff Criminal Law in Edmonton, who with William Van Engen represented the intervener Criminal Trial Lawyers’ Association, called the majority decision “a comprehensive win” for supporters of the challenged legislation. “It literally rejects almost every one of the arguments put up by the defence and groups concerned about accused’ trial rights,” he said.

From a defence perspective, the majority judgment is “troubling,” Sankoff suggested. “Not only because of the legislation itself, but also because it sort of dilutes the importance of fundamental principles that the defence believes are important to ... reduce the possibility of wrongful conviction,” he said. “It just dilutes those, or minimizes their importance, by suggesting that there are special principles that apply in sexual assault trials — that is woven throughout the judgment.”

Given that Parliament has gotten the green light to create a records regime to compel defence to provide information in its possession prior to trial, Sankoff asked, “what’s next?”

Given the court’s reasoning, could it apply in other types of cases, like murder, drug trafficking or fraud? he queried.

Sankoff said what is certain, however, is that there soon will be many pretrial applications, since in most jurisdictions outside Ontario, the screening regime had been put on constitutional pause.

“You’re about to see a swamping of the courts with pretrial applications,” he predicted. “The real wrangling has just begun, because what the court has done is encouraged a regime in which pretrial screening of any information that’s on a record in the accused’s possession that relates to a complainant — which includes every text message or e-mail you’ve ever received — is now subject to pretrial screening. So you got to bring applications, so both the Crown and defence are likely to be inundated with work.”

Sankoff also said this is a “disaster for lawyers because this is set against the backdrop of a legal aid system in crisis.”

“I can tell you that the immediate reaction of many is going to be to decline Legal Aid certificates in sexual assaults unless the tariff structure is radically restructured,” Sankoff suggested. “I don’t think every lawyer is going to stop taking them, but I do think they’re going to have to be more selective because quite frankly, I don’t know if the Crown has endless resources to litigate these cases, but I know that the defence does not, and it definitely will affect my view of how many legal aid cases my firm can take. Because ... it is a decision that encourages a lot more procedure.”

Photo of Justice Michael Moldaver by SCC Collection 

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