- Robson Crim
Blindsided with Private Records on the Stand: The New 2018 Rules
The 2016 Ghomesi trial exposed a startling lack of understanding in Canada about what consent is and means in the legal system as well as exposing rules of evidence that harm rape victims. Seven years later in 2022 a trial for a case with similar facts began against famous musician Jacob Hoggard. This case too involved a powerful man facing allegations of violent attacks on women who were said to have earlier consented to other sexual activities. Again the actions of the women were discussed, with questions raised about the delicate balance between protecting the accused and protecting alleged victims of crime in the justice system. It refocused national attention back on these issues. Questions lingered. How far have we come? Have the new evidentiary rules protected those coming forward with allegations?
By their very nature, sexual crimes pose complex evidentiary issues. For one, most occur behind closed doors. This makes testimony, both from alleged victims and the accused, especially vital evidence. Often this means an intensive analysis of the story each tells and the credibility each presents. The accused has many important safeguards such as legal representation and Charter-guaranteed rights like the right to a fair trial and the right to be presumed innocent until proven guilty. These are undoubtedly vital but are worth examining in light of the position of the victim. The rules of evidence are very protective of the accused due to the high stakes faced in criminal trials. Victims are in a precarious position--they most often do not have legal representation or counsel, are forced to relive an incredibly traumatic experience, and have their stories scrutinized in response to the demand that evidence be reliable. In addition, prior to the Criminal Code (“CC”) amendments of 2018, they face the possibility of being blindsided by the release of their private records in front of the entire court (and in such heavily publicized trials, the world) and had no right to participate with legal representation in hearings about whether such records should be admissible. The new 2018 CC rules are a wide subject and a full canvas of them is outside of the scope of this blog.
Evidentiary law leans in favour of the accused. The traumatic experiences of the victim are processed differently by different people and methods of dealing with and recalling such memories can be difficult to predict and scrutinize. Largely for this reason a memory of a sexual crime can be true without being unimpeachable or otherwise meeting the evidentiary demands of a criminal trial.
The new CC rules that came in in 2018 were a response in some measure to the famous 2016 Ghomesi trial where this imbalance was centre-stage. Ghomesi was acquitted of charges involving violent rapes partially due to evidence of private records showing friendly e-mail communication after the alleged rape took place (and after the complainant had previously testified to the contrary).
The new CC rules were challenged after the two trials and found to be constitutional by the Supreme Court of Canada (the “SCC”). This comes after critics said they limit the ability of the accused to mount a defence and unduly compromise their constitutional rights. The SCC also provided at least some clarification to the rules in this decision. The Hoggard trial shows why this was necessary. It involved multiple complainants. The focus here will be the trial experiences of one woman.
The private record disclosure rule was particularly important in this complainant’s case and testimony. Partway through their time on the stand, the complainant was confronted during cross-examination with a phone call between her and Hoggard that he had secretly recorded. The judge ruled that the phone call was not a private record. This is important as private records must follow the special application process under the new legislation. The judge did however allow the complainant to have an opportunity to listen to the call in private before it was played for the court (including the jury). The judge was critical that the matter had only been raised this far into the trial. Defence counsel said that they couldn’t have provided any earlier notice as they had come to the conclusion to use the call during their cross-examination.
Although the judge is undoubtedly more informed on the issue than I am, I would have to wonder if a phone call is not deemed a private record what is? The legislation was enacted for records over which the complainant has a reasonable expectation of privacy and, in some measure, in response to the emails of the Ghomeshi trial. Personally, I would consider phone communications to fall more into this category than email communications. I would argue that even the method of how it was collected suggests this—a clandestine audio recording itself has implications an easy-to-print-out email simply does not. As well the fact that this call was sprung midway through the trial leaves less ability for the complainant to respond. But, at the end of the day, some confusion may still remain to what constitutes a private record, and questions may still be in play such as “when, can and must the intention to use a private record be introduced?” and, “if needed, how long could proceedings be paused in order to make this determination?”
The Ghomesi trial exposed problems with evidentiary processes in the Canadian justice system and helped spark the #MeToo movement in Canada. In short, it was a diagnostic test that drew attention to evidentiary functions within the system that needed to be more understanding towards victims of sexual crimes. The Hoggard trial was a check-up appointment. It showed the struggles of the justice system in providing coherent and consistent determinations in these matters. Time will tell if the new SCC ruling provides the guidance necessary to remedy this.
 R v Hoggard, 2022 ONSC 5919 [Hoggard].  Ibid at Appendix A, sentencing charts.  Ibid at paragraph 9.  The conceptual content in this blog draws on material covered by Professor Jaremko Bromwich in Evidence Law, University of Manitoba, 2023.  Criminal Code, RSC 1985, c C-46, s 278.92 to 278.94 (“CC”).  R v Ghomeshi, 2016 ONCJ 155 at paras 37 to 44 (“Ghomesi”).  R v J.J., 2022 SCC 28 at paras 192 and 193.  Ibid at paras 148 and 164.  Hoggard, supra note 1 at para 28.  Paola Loriggio, “What Jurors Didn’t Hear in the Jacob Hoggard Sex-Assault Trial”, (May 31 2022), The Star, online: <https://www.thestar.com/news/canada/2022/05/31/what-jurors-didnt-hear-in-the-jacob-hoggard-sex-assault-trial.html> (“Loriggio”).  CC, supra note 5.  Loriggio, “What Jurors Didn’t Hear,” supra note 10.  Ibid.  Ibid.