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R v J.J. — Addressing Systemic Barriers to Justice in Sexual Offences - Madeline Comeau

Cases involving sexual assault are among the most sensitive and difficult types of cases to navigate in the criminal justice system. On the one hand, courts must ensure that those accused of sexual offences are guaranteed their right to a fair trial and the ability to present evidence in their defense.[1] However, on the other hand, courts must also weigh these rights against the harm that would result from allowing certain types of evidence against the complainant to be admissible in court. In the case of R v J.J., the issue of how to properly balance these two concerns under the law and the constitutionality of excluding certain forms of evidence from trials involving sexual offences was questioned. Particularly, the focus of the Court was on deciding whether the process of determining whether a complainant’s highly sensitive records in the accused’s possession were admissible in sexual assault trials was constitutional, or whether this violated a defendant’s right to produce evidence to come to his or her defence. In this blog, I will be examining the practical implications the outcome of JJ has on dismantling barriers faced by victims of sexual assault in coming forward with their cases in the formal criminal justice system. First, I will outline the facts of the case of R v J.J. as well as any relevant legislation to provide a background to contextualize this ruling. Following this, I will examine the Supreme Court’s ruling and argue that cases involving sexual offences require balancing the accused’s right to a fair trial with the complainant’s right to a reasonable expectation of privacy throughout the legal process. Finally, I will highlight the practical implications of adopting such an approach, including lowering the perceived personal ‘cost’ to a complainant in pursuing their cases.


Background and Relevant Legislation

To attempt to encourage victims to come forward with cases of sexual assault, Parliament introduced legislation which attempted to dismantle barriers to pursuing criminal charges for sexual offences, including the fear of sensitive, often humiliating details of a plaintiff’s intimate life being used during trial to discredit them[2]. Specifically, Bill C-51 contains provisions 278.92 to 278.94 which require evidence relating to a complainant’s sexual history (referred to as s.276 evidence), or any type of a complainant’s sensitive records (including psychiatric records, medical records, journal entries, etc.) in possession of the accused (referred to as s.278 evidence) undergo a two-step judicial review process before it is deemed admissible as evidence in trial.[3] This legislation also reserves the right for the judge to deem this evidence inadmissible to the jury or the public.[4]


To determine the admissibility of s. 276 and s.278 evidence, the defence team must apply to admit the evidence under one of those two categories. The trial judge must then determine in the first step whether the evidence fits within the submitted category on the application. In the second step, the trial judge uses criteria to decide the admissibility of s.276 or s.278 evidence, by weighing the probative value of the evidence against other factors, including the broader interests of justice, society’s interest in encouraging reporting of sexual assault, the potential harm to complainant’s dignity, as well as other factors.[5]


Facts

Two individuals accused separately of sexual offences, J and R, challenged the constitutionality of provisions s.278.92 to s.278.94 in Bill C-51. They argue that this legislation infringes on ss.7 and 11(c) of the Charter, which guarantees them the right to silence and freedom from self-incrimination, and ss.7 and 11(d), which guarantee the accused the right to make full answer and defence in response to an accusation.[6] In the case of defendant J, the trial judge allowed his appeal on the grounds that a specific provision in the record screening process was unconstitutional. The Crown appealed this decision, prompting J to issue a cross-appeal on the grounds that the entire record screening process was unconstitutional.[7] In R’s case, the trial judge also allowed his appeal, and ruled that the entire record-screening process was unconstitutional. The Crown appealed this ruling broadly, and the complainant, S, was given permission to be added as a party to the Crown’s appeal on the grounds that the trial judge’s ruling meant she was prevented from participating in the record-screening process.[8]


Ruling

In a 6-3 majority ruling, the Supreme Court found that sections 278.92 to 278.94 are entirely constitutional, and ‘apply to both s.276 evidence applications and private record applications.’[9] The Judges consequently allowed the Crown’s appeal in both J and R’s cases, dismissed J’s cross-appeal, and allowed S’s appeal. [10]The majority found that these provisions did not violate the constitutional right to a fair trial, as the assessment of ‘fairness’ is not solely consisted of fairness from the accused’s perspective, but rather also includes the perspectives of the complainant and community more broadly. Chief Justice Wagner and Moldaver, for the majority, cited the similarity between this legislation and other, previously settled cases affirming the constitutionality of limiting the use of evidence relating to a complainant’s sexual history in R v Mills [11] and R v Darrach,[12] and limiting the admissibility of private records in the hands of third parties in R v O’Connor.[13] The Court reasoned that in this case, this legislation was acting to fill the legislative gap between these two settled laws, and was not thus overreaching beyond any constitutional bounds.[14] Regarding the accused’s argument that the legislation violated their Charter rights, the court asserted that the right to a fair trial does not mean the right to the most favourable trial possible for the accused, and that the exclusion of certain forms of evidence does not automatically breach this right.[15] Furthermore, they rejected the argument that these provisions gave rise to concerns about self-incrimination, as the accused is not compelled to testify in their defence.[16] Furthermore, they reasoned that because the scope of evidence covered by the provisions of s.278 are not guaranteed to be excluded and is incredibly narrow (including only evidence which has negative implications for the complainant’s dignity), the provisions are not overboard, and in fact support the right to a fair trial for all parties involved. [17]


Regarding the complainant participation outlined within the provisions, the judges ruled that complainant involvement in the record-screening process also did not violate the accused’s right to a fair trial. They argue that the provisions are not a stark departure from the general structure of a criminal trial as they do not allow broader participation from complainants, and that by providing a complainant with advanced notice that they will be cross-examined on a particular article of evidence, it can allow the complainant to participate more honestly in the cross-examination process.[18]


Practical Implications

The ruling in R v JJ sends an incredibly important message to the broader public regarding the future of sexual assault cases in the justice system. As society became forced to reckon with how we as a culture have handled sexual offences during the Me Too and Time’s Up movements, the numerous systemic factors which exist that deter victims from pressing charges and bringing their cases to trial have also been brought to light. Fears about past choices or intimate personal details of a complainant’s life being brought into the public record and weaponized against them in order to attempt to undermine their credibility as a victim was, until recently, thought to be an inevitable part of the criminal justice process. For many victims, that potential harm to their reputation and the emotional toll this intrusion into their lives would take is simply too big a price to pay for achieving ‘justice’, and as a result of this, many victims of sexual offences have not considered the criminal justice system to be a vehicle of recourse for them to achieve accountability or justice. Ultimately this only serves to further entrench rape culture in our society and sends the message to perpetrators that they can continue with predatory behaviour without facing accountability for their actions. However, by affirming the constitutionality of statutes like that contained in Bill C-51, the Justices have acted to dismantle one such barrier. Ultimately with this decision, the Justices recognized the importance of balancing the rights of the individual parties with advancing the best interests of society and signalled with this decision that the court was supportive of handling these sensitive cases with a more holistic consideration of potential impacts.


It is important to note that, like with social movements like Me Too, opponents to such a decision may raise concerns that it is a slippery slope separating this decision from a justice system which abandons the presumption of innocence for those accused of sexual offences. It is important that the justice system still upholds and respects the individual rights of the accused, in order to avoid wrongful convictions or other potential consequences. But as demonstrated by the glaringly wide gap between the number of sexual offences that are estimated to occur and the number which end up going to trial or result in convictions, it is clear the system up until this point has prioritized individual rights at the cost of society’s right to live safely. By acting to reduce the personal cost to victims in coming forward, the court is not abandoning the rights of a fair trial, but rather including the very real consequences facing the complainant by coming forward in its calculation of ‘fairness’ and ‘justice’. This decision will very likely encourage many more victims to come forward with their cases, and ease some of the fears facing victims of sexual offences in formally reporting their crimes, which will undoubtedly have a profoundly positive effect on the safety of society overall.

[1] Charter of Rights and Freedoms, s 11, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [2] R v JJ, 2022 SCC 28 at para 1-2 [JJ]. [3] Criminal Code, RSC 1985, c C-46, s 276-278. [4] Ibid. [5] JJ, 2022 supra note 2 at para 22-33. [6] Charter of Rights and Freedoms, supra note 1 at s 7, 11. [7] JJ, supra note 2 at para 10-12. [8] Ibid. [9] Ibid at para 191. [10] Ibid at para 13. [11] R v Mills, [1999] 3 SCR 668, SCJ 68. [12] R v Darrach, 2000 SCC 46. [13] R v O’Connor [1995] 4 SCR 411, 130 DLR (4th) 235. [14] JJ, supra note 2 at para 113. [15] Ibid at para 125. [16] Ibid at para. 149-150. [17] Ibid at para 126. [18] Ibid at para 158-187

 

The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.

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