R. v. J.J.

R. v. J.J.
Collection
Supreme Court Judgments
Date
2022-06-30
Neutral citation
2022 SCC 28
Case number
39133, 39516
Judges
Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud
On appeal from
British Columbia
Subjects
Constitutional law
Notes
Case in Brief
SCC Case Information: 39133, 39516
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. J.J., 2022 SCC 28
Appeals Heard: October 5 and 6, 2021 Judgment Rendered: June 30, 2022 Dockets: 39133, 39516
Between:
Her Majesty The Queen Appellant/Respondent on cross-appeal
and
J.J. Respondent/Appellant on cross-appeal
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of Manitoba, Attorney General of Saskatchewan, Attorney General of Alberta, West Coast Legal Education and Action Fund, Women Against Violence Against Women Rape Crisis Centre, Barbra Schlifer Commemorative Clinic, Criminal Trial Lawyers’ Association, Criminal Lawyers’ Association (Ontario), Canadian Council of Criminal Defence Lawyers and Independent Criminal Defence Advocacy Society Interveners
And Between:
A.S. Appellant
and
Her Majesty The Queen and Shane Reddick Respondents
- and -
Attorney General of Canada, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, Criminal Lawyers’ Association (Ontario), Barbra Schlifer Commemorative Clinic, Women’s Legal Education and Action Fund Inc., Criminal Defence Lawyers Association of Manitoba, West Coast Legal Education and Action Fund and Women Against Violence Against Women Rape Crisis Centre Interveners
Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
Joint Reasons for Judgment: (paras. 1 to 196)
Wagner C.J. and Moldaver J. (Karakatsanis, Martin, Kasirer and Jamal JJ. concurring)
Reasons Dissenting in Part: (paras. 197 to 320)
Brown J.
Reasons Dissenting in Part: (paras. 321 to 438)
Rowe J.
Reasons Dissenting in Part: (paras. 439 to 491)
Côté J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Her Majesty The Queen Appellant/Respondent on cross‑appeal
v.
J.J. Respondent/Appellant on cross‑appeal
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of Nova Scotia,
Attorney General of Manitoba,
Attorney General of Saskatchewan,
Attorney General of Alberta,
West Coast Legal Education and Action Fund,
Women Against Violence Against Women Rape Crisis Centre,
Barbra Schlifer Commemorative Clinic,
Criminal Trial Lawyers’ Association,
Criminal Lawyers’ Association (Ontario),
Canadian Council of Criminal Defence Lawyers and
Independent Criminal Defence Advocacy Society Interveners
‑ and ‑
A.S. Appellant
v.
Her Majesty The Queen and
Shane Reddick Respondents
and
Attorney General of Canada,
Attorney General of Quebec,
Attorney General of Nova Scotia,
Attorney General of Manitoba,
Attorney General of British Columbia,
Attorney General of Saskatchewan,
Attorney General of Alberta,
Criminal Lawyers’ Association (Ontario),
Barbra Schlifer Commemorative Clinic,
Women’s Legal Education and Action Fund Inc.,
Criminal Defence Lawyers Association of Manitoba,
West Coast Legal Education and Action Fund and
Women Against Violence Against Women Rape Crisis Centre Interveners
Indexed as: R. v. J.J.
2022 SCC 28
File Nos.: 39133, 39516.
2021: October 5, 6; 2022: June 30.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
on appeal from the supreme court of british columbia
on appeal from the ontario superior court of justice
Constitutional law — Charter of Rights — Fundamental justice — Right to silence — Self‑incrimination — Right to fair hearing — Right to make full answer and defence — Evidence — Sexual offences — Criminal Code provisions setting out record screening regime to determine admissibility of records relating to complainant that are in possession or control of accused — Whether record screening regime infringes accused’s Charter -protected rights — If so, whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11(c) , 11(d) — Criminal Code, R.S.C. 1985, c. C‑46, ss. 276 , 278.1 , 278.92 to 278.94 .
In 2018, Parliament introduced ss. 278.92 to 278.94 (the “impugned provisions”) into the Criminal Code in an effort to remove barriers that have deterred victims of sexual offences from coming forward. These provisions were designed to protect the interests of complainants in their own private records when an accused has possession or control of such records and seeks to introduce them at a hearing in their criminal proceeding. Specifically, the provisions create procedures and criteria to assist a judge in deciding whether the records should be admitted, balancing the rights and interests of the accused, the complainant, and the public. Some of the procedural elements of these provisions also apply to s. 276 evidence applications, governing the admissibility of evidence of complainants’ prior sexual activity or history. Overall, the legislative changes created a new procedure for screening complainants’ private records in the hands of the accused, to determine whether they are admissible as evidence at trial, and a new procedure to provide complainants with additional participation rights in admissibility proceedings.
The procedure set out in the impugned provisions operates in two stages. At Stage One, the presiding judge reviews the accused’s application to determine whether the evidence sought to be adduced is capable of being admissible. For s. 276 evidence applications, if the judge determines that the proposed evidence is not s. 276 evidence, the application will terminate. If the proposed evidence is s. 276 evidence but the judge concludes that it is not capable of being admissible, the application will be denied. If the s. 276 evidence is capable of being admissible, the application proceeds to a Stage Two hearing. For applications under the record screening regime, if the judge determines that the proposed evidence is not a “record” under s. 278.1 , the application will terminate. If the proposed evidence is a “record” but the judge concludes that it is not capable of being admissible, the application will be denied. If the evidence is a “record” and it is capable of being admissible, the application proceeds to a Stage Two hearing. At the Stage Two hearing, the presiding judge decides whether the proposed evidence meets the tests for admissibility. For s. 276 evidence applications, the governing conditions are set out in s. 276(2), as directed by s. 278.92(2)(a) and in accordance with the factors listed in s. 276(3). For private record applications, the test for admissibility is whether the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This determination is made in accordance with the factors listed in s. 278.92(3). Complainants are permitted to appear at the Stage Two hearing and make submissions, with the assistance of counsel, if they so choose.
By way of pre‑trial applications, two accused, J and R, challenged the constitutionality of ss. 278.92 to 278.94 , arguing that Parliament had jeopardized three fundamental rights guaranteed to accused persons under the Charter , namely: the right to silence and the privilege against self‑incrimination under ss. 7 and 11(c) ; the right to a fair trial under ss. 7 and 11(d) ; and the right to make full answer and defence under ss. 7 and 11(d) . In J’s case, the application judge held that one provision of the record screening regime was unconstitutional; the Crown appeals that ruling, and J cross‑appeals, contesting the constitutionality of the regime in its entirety. In R’s case, the complainant S, who was granted the right to be added as a party by the Court, appeals from the application judge’s ruling that impugned the constitutionality of the regime as a whole, effectively preventing her from participating in the record screening process.
Held (Côté, Brown and Rowe JJ. dissenting in part): Sections 278.92 to 278.94 of the Criminal Code are constitutional in their entirety, as they apply to both s. 276 evidence applications and private record applications. The Crown’s appeal should be allowed, J’s cross‑appeal dismissed, S’s appeal allowed and the application judges’ rulings quashed.
Per Wagner C.J. and Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.: Before determining the constitutionality of the impugned provisions, it is necessary to interpret them. First, it must be determined what qualifies as a “record” for private record applications, using s. 278.1 as the starting point. The definition of “record” creates two distinct groups: (1) records that fall within enumerated categories; and (2) records that do not fall within the enumerated categories but otherwise contain personal information for which there is a reasonable expectation of privacy. Should an accused wish to tender an enumerated record, they must proceed with a s. 278.93(1) application, regardless of the specific content of the record. Non‑enumerated records are those which contain personal information about complainants for which they have a reasonable expectation of privacy. These records contain information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well‑being. A presiding judge should consider both the content and context of the record to determine whether a record contains such information. If it does, the accused must proceed with a s. 278.93(1) application.
Second, a purposive approach to the meaning of the word “adduce” should be adopted to include references to the content of a record made in defence submissions or the examination and cross-examination of witnesses. This interpretation is not limited to circumstances where evidence is entered as an exhibit.
Third, the scope of complainant participation has not been comprehensively defined in the impugned provisions. Where the presiding judge decides to hold a Stage One hearing to determine whether the record is capable of being admissible, the complainant’s participatory rights do not apply. Both the complainant and their counsel can attend the entire Stage Two hearing and make oral and written submissions to facilitate meaningful participation. The complainant’s right to make submissions does not extend to the trial itself. Further, the complainant does not have the right to cross‑examine the accused in the Stage Two hearing, either directly or through counsel. The complainant also may not lead evidence at the Stage Two hearing.
Fourth, the timing of applications is specified in s. 278.93(4), which requires that applications be brought “seven days previously”. Properly interpreted, “previously” refers to the Stage One inquiry where the presiding judge determines whether a Stage Two hearing is necessary. The Crown and clerk of the court must have at least seven days’ notice of the application before it is reviewed by the judge at Stage One. However, s. 278.93(4) states that the judge can exercise their discretion to truncate the notice period in the “interests of justice”. While the statutory language does not specify that these applications must be conducted pre‑trial, this should be the general practice. Mid‑trial applications should not be the norm.
The appropriate framework for the Charter analysis in the instant case is based on the Court’s prior jurisprudence, which recognized that both ss. 7 and 11(d) of the Charter are inextricably intertwined. These rights should be assessed together where they are co‑extensive and separately where a concern falls specifically under one of the rights. As s. 7 should not be used to limit the specific guarantees in ss. 8 to 14 of the Charter , the conclusion that the ss. 7 and 11(d) analysis is co‑extensive in the instant case should not be misconstrued as an internal limiting of s. 11(d) using s. 7 principles. Further, this approach should not be interpreted as a principle of broader application when accused persons raise both ss. 7 and 11(d) . The appropriate methodology for assessing multiple Charter breaches alleged by the accused may depend on the factual record, the nature of the Charter rights at play, and how they intersect; this methodology is highly context‑ and fact‑specific.
A claimant must follow two analytical steps to establish that a law breaches s. 7 of the Charter : they must demonstrate that (1) the impugned provisions result in the deprivation of life, liberty or security of the person; and that (2) the deprivation violates principles of fundamental justice. Because both accused face the possibility of imprisonment in the instant appeals, the right to liberty in the first stage of the s. 7 analysis is engaged. Accordingly, the s. 7 analysis must focus on the second analytical step — the alleged breaches of the principles of fundamental justice.
The principles of trial fairness and the accused’s right to make a full answer and defence are expressions of procedural principles of fundamental justice under s. 7 , and are also embodied in s. 11(d). The key principles of s. 11(d) that apply are that (1) an individual must be proven guilty beyond a reasonable doubt; (2) the state must bear the burden of proof; and (3) criminal prosecutions must be carried out in accordance with due process. Section 11(d) does not guarantee the most favourable procedures imaginable for the accused, nor is it automatically breached whenever relevant evidence is excluded. The broad principle of trial fairness is not assessed solely from the accused’s perspective; fairness is also assessed from the point of view of the complainant and community. While the emphasis on an accused’s fair trial rights under s. 7 should be primary, the right to make full answer and defence and the right to a fair trial are considered from the perspectives of the accused, the complainant, the community and the criminal justice system at large.
Any concerns regarding self-incrimination due to defence disclosure can be addressed through the concepts of full answer and defence and trial fairness rights embodied in the ss. 7 and 11 (d) analysis. Since the accused is not compelled to testify, s. 11(c) of the Charter is not engaged.
The admissibility threshold in s. 278.92 does not impair fair trial rights as it does not breach ss. 7 or 11(d) of the Charter . The record screening regime embodies the fundamental principle governing the law of evidence — i.e., relevant evidence should be admitted, and irrelevant evidence excluded, subject to the qualification that the probative value of the evidence must outweigh its potential prejudice to the conduct of a fair trial. The accused’s right to a fair trial does not include the unqualified right to have all evidence in support of their defence admitted. The admissibility threshold of the record screening regime establishes that private records are only admissible if the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This is also one of the conditions for s. 276 evidence, which has been constitutionally upheld by the Court. Both regimes seek to protect complainants against harmful myths and stereotypes. The right to make full answer and defence will only be violated if the accused is prevented from adducing relevant and material evidence, the probative value of which is not outweighed by its prejudicial effect. The admissibility threshold in the record screening regime does not give rise to such a violation.
Furthermore, the Stage One application process in s. 278.92 is not overbroad. Overbreadth must be understood relative to the legislative purpose. The record screening regime was intended to fill a legislative gap to ensure statutory protection of complainants’ privacy and dignity, where the accused is in possession or control of their highly private records. Parliament enacted the record screening regime with a view to protecting the dignity, equality, and privacy interests of complainants; recognizing the prevalence of sexual violence in order to promote society’s interest in encouraging victims of sexual offences to come forward and seek treatment; and promoting the truth‑seeking function of trials, including by screening out prejudicial myths and stereotypes. The procedure for the record screening regime is not overbroad relative to this legislative purpose because it does not go further than is reasonably necessary.
As well, the definition of “record” in s. 278.1 supports the constitutionality of s. 278.92 because it will only capture materials that come within the enumerated categories, or that otherwise contain information of an intimate and highly personal nature that is integral to the complainant’s overall physical, psychological, or emotional well‑being. The screening of records that meet this definition is rationally connected to Parliament’s objective of protecting the privacy and dignity interests of complainants. This narrow definition includes only evidence that has implications for complainants’ dignity. There will be cases where it is unclear whether evidence falls into the definition. But this, alone, does not render the regime overbroad. Also, just because a record is subject to screening does not mean it will be excluded at trial. Records that meet the admissibility threshold for screening can still be adduced at trial. Further, requiring an accused to bring an application to adduce materials that might contain information of an intimate and highly personal nature is consistent with the objective of the regime, since it respects both the accused’s fair trial rights and the complainant’s privacy and equality interests.
Likewise, the Stage One application process, set out in s. 278.93, is constitutional. With respect to ss. 7 and 11 (d), the record screening regime does not require compelled defence disclosure in a manner that would violate an accused’s right to a fair trial. First, there is no absolute rule against requiring the defence to disclose evidence to the Crown before the prosecution closes its case. Second, the record screening regime applies to a narrow set of evidence that implicates important interests of complainants in sexual offence cases and has the potential to create serious prejudice. Private records are analogous to s. 276 evidence, as they can also implicate myths that are insidious and inimical to the truth‑seeking function of the trial. Like s. 276 evidence, private records encroach on the privacy and dignity of complainants. They too require screening to ensure trial fairness under ss. 7 and 11(d) of the Charter .
The complainant participation provisions in s. 278.94 , which apply to the s. 276 regime and to the record screening regime (at Stage Two), do not violate the accused’s fair trial rights protected by ss. 7 and 11(d) of the Charter . There is no support for the assumption that the application deprives the accused of knowing the complainant’s initial reaction to the application evidence. There is no change from the previous regime, as the accused has not lost any right to Crown disclosure. In any event, there is no evidence that a complainant’s initial emotional reaction to the application is inherently valuable, outside of myth‑based reasoning that relies on stereotypes. If any new relevant information arises during the Crown’s consultation with the complainant, then it has a duty to disclose this information to the accused. The provisions granting participatory rights to complainants have not altered the Crown’s obligations.
As well, the complainant participation provisions in s. 278.94 have no impact on prosecutorial independence. The Stage Two hearing does not violate the right to a fair trial by disrupting the general structure of a criminal trial as a bipartite proceeding between the Crown and the accused. The participation of complainants is justified because they have a direct interest in whether their records, for which they have a reasonable expectation of privacy, are adduced in open court, and their contributions are valuable exactly because they are different from the Crown’s. This limited standing on the issue of admissibility, however, does not turn complainants or their counsel into parties, much less quasi-prosecutors, usurping the role of the Crown on the ultimate issue of guilt. Complainants have no participatory rights in the trial itself; they are merely bringing their unique perspective on the impact that the admission of the evidence will have on their privacy and dignity, which is directly relevant to the issue of admissibility. The presiding judge remains the final arbiter on admissibility and is entitled to accept or reject a complainant’s submissions and weigh them against competing considerations.
Finally, complainant participation does not violate the accused’s right to cross‑examine the complainant without significant and unwarranted restraint. First, the right to cross‑examine is not unlimited, and the accused is not entitled to proceed with an unfair or irrelevant cross‑examination or ambush the complainant. 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. The impugned provisions strike a balance that protects fundamental justice for accused persons and complainants. Second, there is no absolute principle that disclosure of defence materials inevitably impairs cross‑examination and trial fairness. Complainant participation in a Stage Two hearing does not create such a risk; and providing advance notice to complainants that they may be confronted with highly private information is likely to enhance their ability to participate honestly in cross‑examination. Third, the accused will still be able to test a complainant’s evidence by comparing it to prior statements made to the police, which are available to the defence under the Crown’s disclosure obligations. Fourth, complainants can be cross‑examined on their access to the private record application; the accused can impugn the credibility and reliability of complainants by suggesting that they tailored their evidence to fit what they learned in the application. Finally, if there is a situation where advanced disclosure of the application to a complainant will genuinely negate the efficacy of cross‑examination, the accused may choose to bring the application during cross‑examination to avoid the risk of witness tainting. The trial judge is then responsible for determining whether it is in the interests of justice to allow such an application.
In the absence of a finding that ss. 278.92 to 278.94 of the Criminal Code breach either ss. 7 or 11(d) of the Charter , it is unnecessary to canvass s. 1 of the Charter . And there are no s. 11(c) issues at play. Sections 278.92 to 278.94 of the Criminal Code are constitutional in their entirety, as they apply to both s. 276 evidence applications and private record applications.
Per Brown J. (dissenting in part): The record screening regime enacted under ss. 278.92 to 278.94 of the Criminal Code limits the accused’s rights under ss. 11(c) , 11(d) and 7 of the Charter . These limits are disproportionate and cannot be demonstrably justified in a free and democratic society. Therefore, ss. 278.92 to 278.94 should be struck down, with immediate effect, but only as those sections relate to the record screening regime. This would preserve the existing 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.
First, there is agreement with Rowe J. with respect to the proper analytical framework to be applied where both s. 7 and s. 11(d) of the Charter are raised. The jurisprudence on s. 7 and its relationship to other sections of the Charter , including s. 11 , is doctrinally obscure and methodologically incoherent, being the product of 40 years of accumulated judicial ad hoc‑ery. The majority’s reasons extend this trajectory by using s. 7 not to protect the fair trial and due process guarantees under the Charter , but to erode them. Since the accused’s rights are not in competition with any other set of rights, it is not necessary to decide whether the appropriate framework would be that which requires balancing or that which requires reconciling: there is nothing to balance, or reconcile. And even if competing Charter rights were engaged, previous jurisprudence would not be determinative of the constitutionality of the record screening regime, as it is not a principled extension of the common law and related codified schemes that have already survived constitutional scrutiny (i.e., the s. 276 and ss. 278.1 to 278.91 regimes). Rather, it raises a different problem, requiring a different solution; the analysis must therefore turn on the interpretation of the specific provisions and requires the application of the existing Charter framework.
The record screening regime is overbroad. As can be concluded from the proper interpretation of the terms “record” and “adduce”, this regime renders presumptively inadmissible a remarkably broad range of records in the hands of the defence, capturing not only records that are sensitive or prejudicial, and it regulates their use in any manner. Properly interpreted, the definition of “record” is not limited to records created in a confidential context, nor is it limited to materials containing information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well‑being. For the purposes of the regime, a “record” is defined in s. 278.1 as anything that “contains personal information for which there is a reasonable expectation of privacy”. Although the provision does not refer to electronic communications or personal correspondence, the legislative proceedings suggest that Parliament did intend to capture digital communications sent between the accused and complainant about the subject matter of the charge. Alongside the legislative debates emphasizing the protection of privacy and equality rights for all sexual assault complainants must also be read the Court’s jurisprudence recognizing that electronic communications often contain highly private content. The weight of the jurisprudence applying s. 278.92 has also concluded that the complainant retains a reasonable expectation of privacy in electronic communications sent to the accused. Therefore, an electronic communication is a “record” if it contains personal information giving rise to a reasonable expectation of privacy, as that term has been interpreted in the s. 8 jurisprudence, and this includes any communication concerning the subject matter of the charge, whether of an explicit sexual nature or not.
Furthermore, as the record screening regime applies both to material in the accused’s possession and the information contained in that material, it therefore regulates not only the use of the record itself but the information it contains. Accused persons must now bring an application anytime they intend to refer to the contents of a private record relating to the complainant, even if they do not seek to enter it into evidence or use it to impeach the complainant, but instead simply wish to refer to it in their own defence.
The focus in an overbreadth analysis is properly directed to the relationship between the law’s purpose and its effects. Since the record screening regime captures all private records relating to the complainant that are in the accused’s possession, which the accused intends to adduce or rely on in any manner, and which may include the accused’s own digital conversations with the complainant about the subject matter of the charge, it could deprive individuals of liberty in situations that have no connection whatsoever to the object of the law. It requires disclosure of defence evidence that would not distort the truth‑seeking process or significantly interfere with the complainant’s privacy, all before the Crown makes out a case to meet. It follows that it goes too far and interferes with some conduct that bears no connection to its objective.
In addition, properly interpreted, the record screening regime limits the accused’s rights under ss. 11(c) , 11(d) and 7 of the Charter in four ways. First, the record screening regime forces accused persons to reveal, in detail, particulars of their own prior statements and cross‑examination strategy and potential impeachment material, even before the Crown has laid out a case to be answered, as an application will be brought pre‑trial in the vast majority of cases. This shifts away from foundational principles of the criminal trial process, violating the principle against self‑incrimination, the right to silence, the presumption of innocence, and the related principle that the Crown must establish a case to meet before the accused can be expected to respond. While the Court approved advance disclosure to the Crown and complainant for evidence of other sexual activity, the principles stated are limited to the application of s. 276, which is designed to exclude only irrelevant information, and relevant information that is more prejudicial to the administration of justice than it is probative. The same rationale does not apply to the record screening regime. Similarly, compelled production of confidential materials from third parties raises different sensitivity and privacy concerns compared to records in the accused’s possession. While it is true that the law imposes limited obligations on parties to provide disclosure so as to justify questioning or admission of evidence in situations that do not unconstitutionally limit the right to silence, none of these instances remotely support the conclusion that the right to silence is unaffected by the record screening regime. The Court has never concluded that tactical burdens to provide pre‑trial disclosure are automatically Charter ‑compliant. In any event, confronting an accuser with all relevant evidence is quite different than making tactical choices such as challenging a search warrant. The limits to the protection from self‑incrimination and the right to silence are, on their own, fatal to the constitutionality of the regime. The violations to the self‑incrimination principle are in no way attenuated by the later admission of the highly relevant and probative evidence.
Secondly, the advance disclosure requirement and complainant’s participatory rights operate together to limit the accused’s ability to effectively cross‑examine the complainant, contrary to the presumption of innocence, the right to make full answer and defence and the right to a fair trial. The accused’s right to make full answer and defence gives meaning and operation to the presumption of innocence — the most elementary manifestation of society’s commitment to a fair trial. This extends to calling the evidence necessary to establish a defence, and challenging the evidence called by the prosecution, without significant and unwarranted constraint. Unwarranted constraints on cross‑examination may undermine the fairness of the trial, and increase the risk of convicting the innocent. Reasonable limits may be placed on the cross‑examination of a complainant in a sexual assault trial to prevent it from being used for improper purposes. But cross‑examination in respect of consent and credibility should be permitted where the probative value is not substantially outweighed by the danger of unfair prejudice that may flow from it. In sexual assault cases, cross‑examination is often the only way to expose falsehoods, memory issues, and inconsistencies in the complainant’s testimony. In many cases, advance disclosure of counsel’s dossier or strategy may improperly shape the complainant’s testimony, consciously or unconsciously, in a manner that cannot be readily exposed or mitigated at trial, thereby reducing the effectiveness of the cross‑examination. The risks go beyond the explicit fabrication of evidence, and include the subtle manipulation of testimony by a witness to address the frailties or inconsistencies disclosed in advance by the defence. In many cases, there will also not be any pre‑trial sworn statements on which the accused can impeach the complainant. While there is no right to ambush or whack a complainant with misleading or abusive cross‑examination, confronting a complainant with inconsistencies that have not previously been disclosed is a well‑established and often exceedingly effective aspect of cross‑examination used to test the complainant’s credibility. Impeachment of a Crown witness, including impeachment by surprise, is a legitimate and valuable defence tactic, which the regime eviscerates.
Thirdly, the fact that the record screening regime makes private records presumptively inadmissible when tendered by the defence, but presumptively admissible when tendered by the Crown, renders the trial unfair and undermines the regime’s purpose. In this way, the regime differs from the s. 276 and ss. 278.1 to 278.91 regimes, and limits the right to a fair trial.
Fourthly, combined with the broad scope of “record” and advance notice requirement, the effect of the heightened standard of admissibility of defence evidence set by the record screening regime limits the rights to a fair trial and to make full answer and defence. The accused must establish, in advance of the complainant’s testimony, that the records have significant probative value, meaning some relevant and probative evidence will necessarily be excluded. A judge may exclude evidence relevant to a defence allowed by law only where the prejudice substantially outweighs the probative value of the evidence. Section 278.92(2)(b) does violence to that principle by allowing admission of evidence only where it is of significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. Although the significant probative value standard in the s. 276 context was upheld, the same rationale does not apply mutatis mutandis to the record screening regime. While s. 276 addresses inherent damages and disadvantages in admitting sexual history evidence, the regime captures evidence that may well not have any distorting or damaging effect on the trial.
The limits on the accused’s rights are not demonstrably justified. While the record screening regime has a pressing and substantial objective, it fails at the rational connection, minimal impairment, and final balancing stages of the s. 1 analysis. The one‑sided nature of the obligations shows that it is not rationally connected to its objective as purported concerns for a complainant’s privacy, dignity and equality interests, confidence in the justice system and integrity of the trial process are cast aside when those private records are sought to be adduced by the Crown. The regime is not the least drastic means of achieving the legislative objective. The broad definition of “record”, combined with the heightened admissibility threshold, will result in the exclusion of defence evidence that is not prejudicial and is highly relevant. By requiring disclosure of potential defence evidence, strategy, and lines of cross‑examination before the Crown has made out a case to meet, and by depriving the accused of establishing the relevance of that evidence based on the complainant’s testimony, the regime does not minimally impair the right to silence, the presumption of innocence, or the principle against self‑incrimination. By mandating advance notice and disclosure to both the Crown and complainant, and by giving the complainant a role in the admissibility determination before trial, the regime allows the Crown’s key witnesses to reconcile inconsistencies and potentially alter their evidence in subtle ways that are difficult to test or expose in court. The deleterious effects on individual accused persons are substantial, and this is all quite independent of significant deleterious effects on the criminal justice system, including increased trial complexity and delay. A narrower regime could further the goals of empowering and protecting complainants in a real and substantial manner, while impairing the accused’s rights to a lesser extent. The harmful impacts and risk of wrongful convictions outweigh any potential benefits of the regime. The Crown has not demonstrated that the law’s salutary effects outweigh its deleterious effects.
Per Rowe J. (dissenting in part): On the merits, there is agreement with Brown J. that ss. 278.92 to 278.94 of the Criminal Code are unconstitutional and of no force and effect except in so far as they apply to the existing s. 276 regime. The legislation restricts the fair trial rights of accused persons by placing limits on 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, the screening process introduced by the legislation violates ss. 11 (c) and 11 (d) by requiring the accused to disclose all records relevant to their defence before the Crown has established the case to meet.
In order to give proper effect to ss. 7 , 11 and 1 of the Charter , the following approach should be applied: where a specific Charter guarantee, such as s. 11 , is pleaded along with the broader guarantee in s. 7 , the specific guarantee should be addressed first. If a violation of the specific Charter guarantee is found, there is no reason to proceed to s. 7 . If there is no violation of the specific guarantee, or the violation is found to be justified under s. 1 , the courts must then look to s. 7 . This approach accords with the structure of the Charter , and with the text and purposes of the “Legal Rights” in ss. 7 to 14 and s. 1 .
The methodological approach adopted by the majority in these appeals inverts the proper role of s. 7 by introducing internal limits on s. 7 rights into s. 11 . However, s. 7 is a broad, rights‑conferring provision. 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.
Ordinarily, a Charter right can only be limited in one of two ways: internally, through its own text, or by undertaking the balancing required in s. 1 . Qualifying words used in the text of the Charter are the starting point for the interpretation of the scope of Charter rights and any internal limits. Sections 11(c) and 11(d) have few internal limits and can otherwise be limited only following a proportionality assessment under s. 1 .
A limit on s. 11 based on s. 7 does not conform either to the architecture of the Charter or to the purposes of those provisions or of s. 1 . There is no foundation for an analytical approach whereby ss. 11(c) and 11(d) rights can be limited by reference to internal limits in s. 7 . This would involve a grave distortion of s. 7 , which is a broad, rights‑conferring provision.
The improper use of s. 7 to create limits on s. 11 results from an incon