On June 30, 2022 the Supreme Court, in its decision R. v. J.J., upheld the constitutionality of a 2017 law that requires an accused to disclose to the prosecutor and their accuser any records that could be used to challenge the complainant’s credibility or reliability.
In short, the defence must not only disclose much of its evidence and litigation strategy but must now bring an application before the trial judge to admit evidence that would otherwise be relevant and material.
The decision was not unanimous. The dissenting judges disagreed with much of the majority’s analysis and conclusions. That said, J.J. is now the law of the land.
It has never been more important to have experience defence counsel to navigate the new sexual assault trial rules, otherwise important evidence could be left on the cutting room floor.
The Supreme Court answered six key questions in their decision:
- What is the procedure set out in the Criminal Code and to what material does it apply?
- To whom does the record screening regime apply?
- What is a “record”?
- When does a complainant have a reasonable expectation of privacy in a record?
- When is an application under s. 278.93 needed?
- Is all this Charter compliant?
What is the procedure set out in the Criminal Code, and to what material does it apply?
The record screening regime, created by Bill C-51, determines the admissibility of records that the accused possesses or controls, and that relate to the complainant. It is codified in ss. 278.92-278.94 of the Criminal Code.
This same procedure applies to evidence of a complainant’s prior sexual history (“s. 276 evidence”) and records (not necessarily pertaining to sexual activity) possessed or controlled by the accused (“private records”). The procedure calls for two steps:
The trial judge reviews the accused’s application, which must detail the evidence that the accused person wants to introduce (or merely refer to – more on that later) and explain why it is relevant to an issue at trial. The trial judge also decides whether the application will be argued in writing, orally, or both. Provided the evidence “has significant probative value that is not substantially outweighed” by its prejudicial effect, and provided it is not being introduced to support “twin myth” reasoning (if it references specific sexual activity in the first place), the proposed evidence is capable of admission, and the procedure progresses to Stage Two.
The trial judge determines whether the evidence is admissible based on factors drawn from s. 278.92(2)(a)-(b) of the Criminal Code. The significant difference between Stage One and Stage Two is that Stage Two deals with the actual admissibility of the evidence and allows the complainant the right to appear, to be represented by a lawyer, and to make submissions.
To whom does the record screening regime apply?
Unlike the regime governing the use of evidence of prior sexual conduct, the record screening regime does not apply to the Crown. Only the defence will have to apply to have proposed evidence vetted according to the record screening regime. The complainant receives the application after it is determined that the procedure will progress to Stage Two to allow for an informed decision respecting their participation. However, their participation is limited to submissions, leaving all cross-examination and the presentation of relevant evidence to the Crown.
What is a “record”?
For the purposes of the record screening regime a “record” is defined by s. 278.1 of the Criminal Code, which is to say: “any form of record that contains personal information for which there is a reasonable expectation of privacy.” The group of records listed in s. 278.1 are now called “enumerated records”.
“Non-enumerated records” are identified based on their content and context. Once identified, they must pass through the record screening regime. The context of a non-enumerated record is significant because it affects whether the complainant has a reasonable expectation of privacy in the record. These records contain “intimate or highly personal” information, “integral to the complainant’s overall physical, psychological or emotional well-being.”
The context of a given record is assessed by posing three questions:
- Why did the complainant share the information in question?
- What was the relationship between the complainant and the person with whom it was shared?
- How was the record shared, created, or obtained?
When does a complainant have a reasonable expectation of privacy in a record?
The majority redefined the term ‘reasonable expectation of privacy’ for application only in the context of the record-screening regime.
Here, a reasonable expectation of privacy only applies to “legally recognized privacy interests” and only applies where the person who claims to have a reasonable expectation of privacy can explain why it is objectively reasonable in the circumstances. The form of the record is not relevant to this consideration. The “sensitivity” of the contents of the record is more significant to establishing whether a “reasonable expectation of privacy” extends to the record in question.
If the accused has information they would like to employ in mounting their defence, determining whether something must pass through the record screening regime depends on the outcome of two inquiries:
- Is the thing in question a “record”, with regard to the information’s content and context?
- Does the complainant have a “reasonable expectation of privacy” over it?
Notably, the complainant can assert a “reasonable expectation of privacy” over records respecting the subject matter of the current charge, not just prior sexual conduct. This means, if a complainant is found to have a “reasonable expectation of privacy” over the “private record” possessed by the accused, the record must pass through the record screening regime before it can be referred to in the accused’s trial.
When is an application under s. 278.93 needed?
Applications will be required when the accused wants to tender any enumerated record, regardless of the record’s content.
Non-enumerated records subject to the complainant’s reasonable expectation of privacy must pass through the record screening regime before they can be tendered as evidence, too.
However, the regime does not merely apply to tendered exhibits. Any time the content of a “record” is to be referenced by the accused as impeachment material or otherwise, the record must be vetted via the record screening regime.
Finally, if there is any doubt about whether or not certain information is a “record”, it must be subject to an application and deemed admissible before it can be referred to by the defence.
As a general rule, applications should be served on the Crown and Court seven days prior to the Stage One inquiry.
The period can be shortened, or applications can be allowed mid-trial so long as they are in the “interests of justice.” Although the majority explains that mid-trial applications are allowed, they also state that they will cause delay and may result in unfairness to the accused.
Is all this Charter compliant?
In a word: sadly yes.
Being charged with a sexual offence is a nightmare for the innocent and now the Supreme Court made it clear that when it comes to sexual assault trials, the playing field is not level.
When your reputation and your life are on the line you need to have a lawyer who knows the rules of the game, even when those rules are not fair.
Hard work, experience, and legal knowledge are essential to preserving your right to a fair trial.
And that is exactly what we do.