The Supreme Court Ruling on The New Rules of Evidence In Sexual Assault Trials

Joseph A. Neuberger & Diana Davison
Neuberger & Partners LLP
Toronto Criminal Lawyers

On June 30, 2022, the Supreme Court of Canada ruled in R. v. J.J., 2022 SCC 28 that Criminal Code amendments brought in by Bill C-51 after the Jian Ghomeshi trial, are constitutional, requiring the defence in sexual assault cases to reveal all “records” in their possession prior to trial. The legislation has been in effect since December 2018 and across the country there have been split decisions in the lower courts resulting in uneven application of the new rules. Some provinces which had declared the disclosure requirements to be unconstitutional will now have to implement the screening procedures.

At the very least, lower courts were in need of guidance on how to apply the procedures created by the new Criminal Code sections 278.92  through 278.94, governing the timing and extent of the complainant’s access to the pre-trial application. Additionally, the definition of “record”, determined by section 278.1 left uncertainty on what type of communications between the accused and complainant would hold an “expectation of privacy,” triggering the application requirement.

The Supreme Court had three dissenting opinions, all of which would have declared the legislation to have no force or effect. There was clear tension between the majority and the opinions of Justices Brown, Rowe and Coté.

Notably the majority began their reasons with statements about the low conviction rates in sexual assault crimes and statistics showing that it is severely under-reported. With numbers of convictions in mind, the majority declared in para 2: “More needs to be done.”

Justice Brown, in his dissent, was the first to mention the risk of wrongful convictions. At para 198:

• The records screening regime enacted under ss. 278.92 to 278.94 of the Criminal Code, R.S.C. 1985, c. C-46, represents an unprecedented and unconstitutional erosion by Parliament of the fair trial rights of the presumptively innocent ⸺ who, it should be borne in mind, will sometimes be actually innocent. It seriously impedes the ability of such persons to prove that innocence, by making presumptively inadmissible all private records relating to the complainant that are in the possession of the accused and which the accused intends to adduce in a sexual offence prosecution. It is the only evidentiary rule that mandates pre‑trial disclosure of defence evidence and strategy, before the Crown has made out a case to meet, and even where the evidence sought to be relied on is neither irrelevant nor inherently prejudicial.

In declaring the legislation constitutional in its entirety, the majority decision offers a few points of guidance on procedure and participation rights but leaves a lot of uncertainty on what is or is not a “record” requiring the screening regime.

The relevant section, 278.1, enumerates a number of records that have high privacy value, such as medical, therapy and employment information which is often held by third parties in a confidential manner. In determining whether something is a “record” for other purposes, the Supreme Court said it is based on “content” and “context”, not on the platform of the information such as text or audio recording. They seem to offer some clarity at para 53:

• [53] In our view, s. 278.1 presupposes that a certain level of privacy must be engaged; namely, this provision concerns only records that could cause “potential prejudice to the complainant’s personal dignity”. These factors suggest that the scheme is not intended to catch more mundane information, even if such information is communicated privately. Moreover, given the accused’s right to make full answer and defence, mere discomfort associated with lesser intrusions of privacy will generally be tolerated. In this context, a complainant’s privacy in open court “will be at serious risk only where the sensitivity of the information strikes at the subject’s more intimate self” (Sherman Estate, at para. 74).

Primarily, the Supreme Court left most decisions up to the trial judge’s discretion yet, oddly, declared at para 72 that the accused should know whether or not their own evidence meets the definition of “record.”

• [72] When it is unclear whether the evidence is a “record”, counsel should err on the side of caution and initiate Stage One of the record screening process. To be clear, under the record screening regime, the accused will be in possession or control of the evidence at issue, and they will know the context in which the evidence arose. For this reason, the accused will be well equipped to discern whether the evidence is a “record” and to make submissions on this point, if need be.

In all circumstances the majority is clear that, if there is any uncertainty, both the judge and accused should “err on the side of caution” and bring the pre-trial application. The effect of para 72 is fraught with danger. If the accused decides that something is not a “record” and the trial judge disagrees during the trial, the evidence will not be admissible due to a failure of the accused to bring an advance application. Ultimately, as stated by the Supreme Court in R. v. Barton, 2019 SCC 33 and R. v. Goldfinch, 2019 38, the trial judge is the “ultimate gatekeeper” of admissible evidence and it is not up to the Crown or defence to make those determinations.

There are but a few helpful aspects in the majority decision regarding the process of these applications.

The complainant does not necessarily receive the full defence application with all the records and description of how the accused intends to use them. The Court described the timing of the process as follows:

An application hearing has two parts: Stage One to determine if the evidence is a record and, if so, whether a hearing for admissibility will be granted. Stage Two to determine if the records are admissible in trial.

The defence must file the written application seven days prior the court date for Stage One and at that point the Crown should give only a general description of the application to the complainant so she can decide if she wants to participate and obtain legal counsel if she so wishes.

• [92] Section 278.93(4) provides that the accused must provide a copy of the application to the prosecutor and clerk of the court. When the Crown receives the application prior to the Stage One inquiry, it should provide a general description of the nature of the record and of its relevance to an issue at trial to the complainant and/or the complainant’s counsel. The seven-day notice period prior to Stage One provides the complainant with time to retain counsel in anticipation of the accused’s application being granted under s. 278.93(4). At the same time, only a general description is required at this stage because it is not yet clear whether a Stage Two hearing involving the complainant will be required.

The trial judge will make a determination after hearing Stage One and may use discretion as to whether or not the complainant will receive the application record in full or in part. The complainant is not entitled to directly receive the full application and documents. (J.J. para 174)

The complainant’s submissions are limited to oral and/or written submissions. The complainant does not have the right to cross-examine the accused on his affidavit. (J.J. para 100)

The application must be supported by an affidavit from the defence but the accused is not required to lay out his full defence evidence and the affidavit may be given by a third party regarding the veracity of the documents. (J.J. para 150)

Previously, the common practice since the new legislation was passed was that the accused would serve the application and all documents with the court and the Crown. The Crown would then get an order for the complainant to be assigned counsel at the State’s expense. The Crown would then supply the full application record to the complainant’s counsel prior to the Stage One hearing. Two court dates were booked for the hearing with some period of time between the Stages.  The presiding judge needs to make a determination at Stage One of what, if any, documents and information from the application record will be shared with the complainant prior to Stage Two but after Stage One.

Up until now, many defence lawyers had decided to bring a “Motion for Directions” prior to filing the application and put the documents under seal so that only the judge could view them until or unless they were determined to be “records” requiring an application. This strategy allowed for the defence to make the trial judge the “gatekeeper” of the evidence while still preserving the integrity of the defence evidence if it was not, in fact, a record with sufficient privacy interests.

The Supreme Court majority has discouraged this practice, making it less effective by allowing for the complainant to potentially have notice and participation in a motion for directions while maintaining that the complainant did not have standing or participation in Stage One of an actual application. There is very little logic in this reasoning other than to force the accused to engage in the full application and go directly to Stage One to prevent the complainant from obtaining detailed knowledge of the defence evidence without reason. In the end, most judges will thus prefer to hear input from the Crown before making a decision and going directly to Stage One saves court time.  This essentially renders any motion for directions futile.

In regards to concerns that the complainant will tailor her evidence after seeing the documents in the accused’s possession, the majority offered an odd approach. They compared the situation to an accused having a right to disclosure yet their evidence cannot be considered tainted by that advance knowledge. After making that comparison in para 185, the majority then stated at paras 188-189 that if a complainant changes or enhances her evidence after participating in the application it can be used to undermine her credibility.

• [185] Second, it is incorrect to assume that advanced disclosure prevents effective cross-examination or impairs the search for truth. Accused persons receive extensive disclosure from the Crown, yet there is no assumption that their testimony is less reliable or credible as a result. Indeed, this Court in Stinchcombe soundly rejected this suggestion:
  • Refusal to disclose is also justified on the ground that the material will be used to enable the defence to tailor its evidence to conform with information in the Crown’s possession. For example, a witness may change his or her testimony to conform with a previous statement given to the police or counsel for the Crown. I am not impressed with this submission. All forms of discovery are subject to this criticism. There is surely nothing wrong in a witness refreshing his or her memory from a previous statement or document. The witness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to the witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings which the prosecutor holds close to the vest. The principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material. [Emphasis added; p. 335.]
• Therefore, contrary to the submission of J.J. and Mr. Reddick, there is no absolute principle that disclosure of defence materials inevitably impairs cross-examination and trial fairness.
• [186] In civil proceedings, both parties participate in extensive pre-trial discovery and disclosure of documents and witnesses, without raising the issue of “witness tainting”. Although surprise was historically a “weapo[n] in the arsenal” of adversarial trials in general, its decline has resulted from the acceptance of the principle that “justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met” (Stinchcombe, at p. 332). This Court applied that principle in Darrach, holding that “[t]he right to make full answer and defence does not include the right to defend by ambush” (para. 55). Similarly, in the third party production regime, complainants receive a copy of the production application and have the ability to participate in the hearing concerning the likely relevance of that evidence in advance of cross-examination. The Court wrote:
• [187] “Witness tainting” is not a concern that precludes effective cross‑examination with respect to Crown disclosure in criminal trials or civil proceedings. For the same reasons, complainant participation in a Stage Two hearing does not create a risk of “witness tainting” that impermissibly impairs the search for truth or the effectiveness of cross-examination. Providing advance notice to complainants that they may be confronted with highly private information in open court is likely to enhance their ability to participate honestly in cross-examination. Specifically, they are likely to be better equipped to respond rather than being blindsided with the use of their private records. In addition, the requirement that an application be disclosed in advance of trial ensures that sexual offence complainants are informed about the implications of participating in the trial process (Craig, at pp. 808-9; R. v. M.S., 2019 ONCJ 670, at para. 92 (CanLII)). This in turn promotes just and fair trials.
• [188] Third, the accused will still be able to test a complainant’s evidence by comparing it to prior statements made to the police. These statements are available to the defence under the Crown’s Stinchcombe obligations. If the complainant’s evidence has changed significantly between the police statement and the trial, this will be readily apparent to the trier of fact, and the accused will be able to cross-examine on that basis (whether or not the police statement was made under oath) (see Craig). Triers of fact can assess whether they believe the complainant and adjust the weight they give to the complainant’s evidence.
• [189] Fourth, complainants can be cross-examined on their access to the private record application. The accused can impugn the credibility and reliability of the complainant by suggesting that they tailored their evidence to fit what they learned in the application. To the extent that our colleague Brown J. suggests that ss. 645(5) and 648 of the Criminal Code render such cross-examination impermissible, we disagree.

However, there is very clear jurisprudence that an accused’s right to know the case against him and be present at his own trial cannot be used against him. When a judge or prosecutor suggests that an accused should not be believed because he allegedly tailored his testimony based on evidence he heard at trial it is overturned on appeal as a mistake of law. (R. v. C.T., 2022 ONCA 163)  An accused must have access to full disclosure of the Crown’s case in order to make full answer and defence, given that the accused is facing the loss of his liberty if convicted. A complainant does not have her or his liberty at stake and the Crown often has no evidence other than the testimony and credibility of the complainant to obtain a conviction.

The advanced disclosure of defence records and strategy as now completely mandated by J.J.,  inescapably impairs cross-examination of the complainant.  Cross-examination at trial is not in a vacuum,  and often complainants with advanced notice of defence evidence, will address the evidence in chief or in cross, and explain that when giving their statement to police, they were not able to give the full details due their emotional state and/or not knowing how much detail was to be given.  As such, some vague reference to a judge’s ability to assign weight to evidence of a complainant based upon enhanced details or altering of their evidence is of little comfort to an accused whose liberty and life is at stake.

Notably, the majority in J.J. also determined that evidence related directly to the subject matter of the charge, which would be excluded under the stricter requirements of section 276 of the Criminal Code, is now subject to an application under the new section 278.92.  Thus, thanks to J.J., all defence records must now be disclosed prior to trial and run the risk of not being allowed into evidence.

The dissenting opinions in J.J. are strongly worded and align with the disposition of defence lawyers regarding the new legislation. Regardless, the majority decision is now the law in Canada and defence lawyers will have to be very strategic on how they comply with these new rules of evidence.

These applications will continue to create access to justice issues, increasing the cost of legal fees with the new procedures, and the applications must be carefully crafted because they must be filed prior to trial and prior to the complainant’s testimony in court.

In Shakespearean times, audiences would be given a mimed “dumbshow” of the storyline before the play began. A “show within a show.” This was so that the public could follow the plot line better when the play began. Trials are not like plays. Liberty is at stake and the challenge for defence lawyers is how to comply with the legislation without giving away the whole plot in advance.

• “All the world’s a stage, and all the men and women merely players. They have their exits and their entrances; And one man in his time plays many parts.” ~ Shakespeare