SCC finds rules on use of sexual-assault complainant’s personal information are constitutional

The Supreme Court of Canada has found constitutional Criminal Code provisions dealing with how a defendant to a sexual-assault prosecution, who is in possession of personal information about the complainant, can introduce that personal information as evidence.

Parliament introduced ss. 278.92-278.94 in 2018 to encourage sexual assault complainants to come forward by protecting their privacy. The provisions set out a screening process through which the accused applies to have evidence, for which the complainant has a reasonable expectation of privacy, considered for admissibility.

Today's SCC ruling in R. v. J.J. stemmed from two sexual assault prosecutions in which both accused argued ss.278.92-278.94 violated their right to silence, protection against self-incrimination, right to a fair trial, and right to make full answer and defence, under Charter ss. 7 and 11(c) and (d).

The court was split, 6-3. In the majority, Justices Richard Wagner, Michael Moldaver, Andromache Karakatsanis, Sheilah Martin, Nicholas Kasirer and Mahmud Jamal founds ss. 278.92-278.94 constitutional in their entirety, both as they apply to evidence about a complainant’s past sexual history and evidence containing the complainant’s private records.

Dissenting in part, Justices Suzanne Côté, Russell Brown, and Malcolm Rowe would have struck down the provisions. They found the rules limit an accused’s ss. 11(c), (d) and s. 7 Charter rights, but only as they relate to private records, not evidence of a complainant’s past sexual activity.

"Yet again, the Supreme Court has affirmed the importance of protecting a complainant's dignity, equality, privacy in sexual assault trials," says Dawne Way, who acted for A.S., the complainant in one of the cases. A.S. appealed the lower court's finding that the provisions were unconstitutional.

"They explicitly recognize the importance of encouraging complainants to come forward to make complaints of sexual assault. And also, they affirm the importance of screening out highly prejudicial evidence based on myths and stereotypes."

In his dissent, Justice Brown wrote that ss. 278.92-278.94 represent "an unprecedented and unconstitutional erosion by Parliament of the fair trial rights of the presumptively innocent." The provisions force an accused person "to reveal their defence before the Crown has made out a case to meet," which goes against the protection from self-incrimination, right to silence, and presumption of innocence. Because the defence must disclose their application for screening seven days before the hearing, the process "risks tainting the complainant's evidence," restricting the accused's ability to cross-examine, which is "a core component of the right to full answer and defence and the right to a fair trial."

Justice Brown adds that the screening regime "makes private records presumptively inadmissible when tendered by the defence, but presumptively admissible when tendered by the Crown," as the latter is not subject to the regime.

"Parliament has legislated a formula for wrongful convictions. Indeed, it has all but guaranteed them," he said.

It is rare to see dissents as "scathing" as in this ruling, says Carlos Rippell, who acted for one of the accused.

"It's because, I think, they fundamentally realize that this decision significantly and permanently erodes fair trial rights for people charged with certain offences. And that goes against our bedrock values – or what used to be our bedrock values."

To determine whether the evidence is admissible, ss. 278.92-278.94 set out a two-step screening process.

In the first stage, the judge determines whether the evidence is capable of being admissible. In the second stage, if the evidence involves the complainant's past sexual activity, the accused must not be adducing it to support the argument that past sexual activity makes the complainant more likely to have consented or less trustworthy. The evidence must also be "relevant to an issue at trial," and must be "of specific instances of sexual activity."

To be admissible, both details of past sexual activity and private records must have "significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice." For both types of evidence, the judge must also consider the accused's right to make a full answer and defence, society's interest in encouraging the reporting of sexual assaults, the need to eliminate discriminatory belief or bias from the fact-finding process, and the potential prejudice to the "complainant's personal dignity and right of privacy," among other factors.

In stage two, complainants can appear and make submissions with the assistance of counsel.

The SCC's ruling recognized the important role ss. 278.92-278.94 play 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," says Dan McLaughlin, communications counsel for the BC Prosecution Service, an appellant in the case.

"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," he says.