April 23, 2024

Tullio Corradini

Trusted Legal Source

R v JJ : The SCC Expands the Privacy Rights of Sexual Assault Complainants

R v JJ : The SCC Expands the Privacy Rights of Sexual Assault Complainants

In R v JJ (2022 SCC 28) (“JJ”), the Supreme Court of Canada (“SCC”) viewed as the scope and legality of Invoice C-51, which tries to get rid of some of the hurdles that prevent victims of sexual assault (hereinafter referred to as “complainants”) from coming ahead. The Monthly bill was enacted in 2018, as An Act to amend the Felony Code and the Office of Justice Act and to make consequential amendments to an additional Act, and led to the inclusion of ss. 278.92-278.94 of the Felony Code. These were being the provisions that were being at problem in the current scenario.


Above the earlier couple a long time, Parliament and the SCC have slowly tried to reshape the regulation as it relates to sexual assault and the subsequent trials included. This began with the outlawing of the “twin myths” beneath s. 276 of the Prison Code, specifically, the use of the complainant’s prior sexual history to counsel that, as a final result of this past sexual action, they were (1) considerably less deserving or perception and/or (2) extra probable to have consented (JJ, para 5).  Subsequently, Parliament also sought to control the inclusion of complainants’ non-public documents for the purpose of attacking their character (ss. 278.1-278.91 of the Prison Code). Nevertheless, these improvements did not handle documents that could previously be in the fingers of the accused. Invoice C-51 and its associated provisions sought to control the admission of such documents in a demo on behalf of the accused. Parliament’s best intention in this case concerned the inclusion of an ingredient of privacy in the manufacturing of such data in trials involving sexual offences, and was not restricted to paperwork only relevant to the complainant’s earlier sexual record.

How did the Bill search for to make this alter? It applied an enhanced framework of assessment: despite presently getting in the arms of the accused, the data now experienced to undertake a specific stage of scrutiny before they had been admissible in courtroom. They had been subject matter to a two-aspect inspection. 1st, if the data implicated twin myth reasoning underneath s. 276, then the prerequisites of s. 276 must be satisfied. Secondly, even documents that had been just personal in nature and that did not implicate s. 276, experienced to be demonstrated to not only have evidence that was pertinent to an difficulty at demo, but also that this information and facts had “significant probative benefit that is not significantly outweighed by the danger of prejudice to the correct administration of justice” (Prison Code, s. 278.92(2)(b)).

The components that the judge was to think about were enumerated under subsection (3), and involved, among other people, the appropriate of the accused to make complete reply and defence (s. 278.92(3)(a)), as effectively as society’s interest in encouraging the reporting of sexual assault offences (s. 278.92(3)(b)).

Therefore, a two-phase take a look at was created: initially, the dedication of whether or not the files in concern are documents for the functions of these provisions and if so, regardless of whether they fulfill the balancing test established out subsequently. Moreover, in preserving with the concentration on privacy, the statute also launched a number of other provisions that sought to protect the privateness of the accused, such as the exclusion of the jury and community from a hearing to make these determinations, and the removal of the complainant as a compellable witness. The complainant was also authorized to be represented by counsel at these kinds of proceedings and was authorized to appear and make submissions by themselves – this was a participatory right (Felony Code, s. 278.94).

This was challenged in JJ, where by it was argued that these provisions contravened the accused’s suitable to a honest trial, particularly underneath ss. 7 and 11(d) of the Canadian Constitution of Legal rights and Freedoms (“Charter”).


The SCC’s Choice

The accused, JJ and Shane Reddick, argued that by enacting Invoice C-51, Parliament had contravened the essential rights of the accused, which includes:

  1. The suitable to silence and privilege versus self-incrimination below ss. 7 and 11(c) of the Charter
  2. The appropriate to a reasonable demo less than ss. 7 and 11(d) of the Charter and
  3. The right to make comprehensive reply and defence beneath ss. 7 and 11(d) of the Charter (JJ, para 10).

The accused argued that the provisions compelled the defence to:

 “…disclose equally its strategy and the aspects of its proposed evidence to the Crown prior to trial, therefore violating the ideal to silence and the privilege from self-incrimination… that [they] offer complainants with superior discover of defence evidence and the reasons for which it is staying adduced. As a result, complainants will be capable to tailor their responses in the course of assessment in chief and cross assessment. This detracts from the right to make complete answer and defence, and from the real truth-trying to get function of trial. At last, complainant participation in voir dires threatens demo fairness, as it disrupts the composition of a felony demo, inserts a third-social gathering adversary into the course of action, and undermines the function of the Crown.” (JJ, para 12).

The Supreme Courtroom dominated against the argument, upholding the validity of the provisions.


The Majority Judgement

The greater part judgement, prepared by Chief Justice Wagner and Justice Moldaver, defended the validity of the provisions on the grounds that complete answer and defence and the proper to a fair trial ended up not merely legal rights to be liked by the accused, but have been alternatively offered to the accused, the complainant, the local community and the prison justice process at massive (JJ, para 121). They held that though of exceeding value, the appropriate to a good demo had by no means permitted an accused to count on any evidence but experienced generally positioned selected limitations. Additional, the accused was not entitled to favourable methods, but simply honest processes.

“The crucial rules of s. 11(d) that implement in the current scenario are as follows: (1) an individual have to be established guilty past a fair doubt (2) the condition should bear the stress of evidence and (3) prison prosecutions must be carried out in accordance with due method. (JJ, para 124).

S. 11(d) does not warranty ‘the most favourable processes imaginable’ for the accused, nor is it automatically breached every time pertinent proof is excluded. As this court docket affirmed in Darrach, an accused is not ‘entitled to have processes crafted that acquire only [their] pursuits into account. Nevertheless fewer are they entitled to procedures that would distort the truth-searching for operate of a trial by allowing irrelevant and prejudicial substance at trial’. Nor is the wide principle of demo fairness assessed exclusively from the accused’s perspective. Crucially, as this Court docket mentioned in Mills, fairness is also assessed from the point of check out of the complainant and the community” (JJ, para 125).

As a outcome, the vast majority held that the provisions in concern do not impugn any constitutional provisions. In fact, the intention of the provisions is to enable take out boundaries that prevent sexual assault victims from coming ahead. The method enumerated in ss. 278.92-278.94 does not violate the Constitution rights of the accused, and as a result, the provisions are constitutional and legally valid.


The Dissenting Judgements

Justices Brown, Rowe, and Cote all dissented.

Justice Brown held that the report screening regime limited the accused’s rights under ss. 11(c), (d) and s. 7 of the Charter, and held that these limitations ended up disproportionate. As a outcome, he held that the provisions should really be struck down, but only to the extent to which they connected to the history screening routine, and that they must be returned to Parliament for reconsideration and reformulation in a much more minimal shape (JJ, paras 200-205).

Justice Rowe agreed, holding that “the legislation restricts the reasonable trial legal rights of accused persons by putting boundaries on how they can conduct the cross-assessment of Crown witnesses and what evidence they can introduce in guidance of their possess defence, even if that proof is remarkably probative and not prejudicial to the complainants” (JJ, para 322). He proposed an analytical technique in respect of s. 7.

Justice Cote held that “the file screening regime does not come close to passing constitutional muster,” arguing for a narrower interpretation of ”record”, and that anticipations of privateness ended up contextual and “must be assessed in mild of the totality of circumstances… in the context of a demo in which the accused’s liberty is at stake, a complainant therefore does not have an objectively fair expectation of privacy in their communications with the accused” (JJ, paras 439, 456).



In JJ, the SCC proceeds its trend of modifying proof legislation in get to make the lawful process extra available for complainants. Recognising the limitations that reduce complainants from approaching the legal system and reporting this sort of crimes, Parliament tried to relieve their entry be guaranteeing that their personal data were not utilised from them in a superfluous manner. In quite a few methods, this is an extension of the twin fantasy routine espoused under s. 276, which makes an attempt to guard complainants from unjustified and unjustifiable assaults on their character or depend on out-of-date notions bordering the principle of consent.

In noting that the appropriate to a good trial extends not only to the accused, but also to the complainant and the community at huge, as very well as the prison justice technique as a total, the SCC recognises that the influence of a trial extends beyond just the rights of the accused. Certainly, the accused occupies the most privileged situation in a demo, owing to the point that it is their legal rights that are most threatened, and that they are at threat of losing their liberty. Nevertheless, trials are, in essence, a method by way of which modern society has specified the finding of guilt or innocence to an neutral 3rd celebration (the choose and jury) – as these kinds of, the SCC appears to indicate that it is their duty to take into consideration not only the pursuits of the accused, but relatively those people of all functions associated. Though the accused’s interests consider primacy, they can’t do so at the expense of undermining the technique by itself. Through the unique promulgation of s. 276, society, by way of Parliament, in result said that the rights of the accused would not just take primacy over the rights of modern society to have out-of-date notions bordering consent vitiated that regardless of the prejudice to the accused, they could not count on such reasoning in buy to make their scenario. This is the very same notion that ties to the reasoning behind the sections in dilemma in the existing circumstance.

In essence, R v JJ includes the SCC reiterating that, though the accused enjoys primacy in a demo, the legal rights of other parties will have to be taken into account as effectively. It does not spot a entire barrier to the introduction of these evidence, but rather requires that it goes via an improved evaluation procedure so as to make certain that this kind of information is brought up for its real relevance, and not just because the probability of its publicity is intended to intimidate the complainant in opposition to coming forward in the to start with area. The SCC is conscious of the fact that historically, a large portion of sexual assault trials have been primarily based not only on simple goal point, but fairly on social mores and a society of silence and oppressive intimidation that is created to reduce complainants from creating grievances in the initially area. R v JJ is as a result a stage in the appropriate route.