R v J.J – The Admissibility of a Victim’s Entire Life

by Freya Dionysus

The admission of evidence in a trial dealing with sexual offences is always a sensitive topic. The courts must balance the interests of the accused and their ability to present a fair defence, as well as the complainant and the importance that they are not subjected to undue intimidation, harassment, and other barriers that prevent many complainants from coming forward. One such barrier is the admission of evidence in sexual offence trials.

Traditionally, a mechanism within the Criminal Code that existed to prevent the misuse of a victim of a sexual offence’s history is section 276,  whereby any evidence of a complainant’s sexual history (with or without the accused) is not admissible if the evidence supports by inference that the complainant is more likely to have consented to the offence, or that the complainant is any less worthy of belief due to the divulging of their sexual history.[1] Now, this does not completely solve the issue of misusing a victim’s sexual history in court, or the many barriers that victims of sexual offences face when accessing justice.

However, in 2018, Parliament enacted significant amendments to the Criminal Code, particularly in relation to the admissibility of evidence in possession of an accused who seeks to rely upon said evidence during trial for sexual offences. These newer amendments to the Criminal Code attempt to further address this issue, while increasing access to justice for victims of sexual offences, and the SCC upholds this. The amendments serve to function as an expansion of section 276 of the Criminal Code to further protect complainants from the dissection of private records, including communications for a sexual purpose or any other private records of the complainant.[2] Additionally, with the enactment of Bill C-51 in 2018, sections 278.92 – 278.94 of the Code were enacted, which renders private records, from medical notes to journals, inadmissible by the accused unless the evidence is capable of meeting specific admissibility criteria, even when the evidence is in the possession of the accused.[3] 

The accused, even when in possession of the private records, must show that the evidence is admissible by meeting a twofold test, set out by the Criminal Code. The accused applies to a judge, who then must determine if the evidence is admissible in accordance with section 276(3) of the Criminal Code according to the following factors being taken into account;

(a) the interests of justice and the rights of the accused; (b) society’s interest in reporting sexual offences and treating victims of offences; (c) the evidence will reasonably assist in determinations of the matter (d) the need to ensure minimal bias and discriminatory belief within the fact-finding process; (e) the risk that the evidence may arise certain sentiments in the jury that may help or hinder the victim or the accused, (f) the potential of prejudice; (g) the right of the victim to personal security, and; (h) any other factors the judge determines is relevant.[4]

R v J.J., 2022 SCC 38

The SCC, in R v J.J. in a 6:3 decision, affirms the amendments that narrow the admissibility of evidence under the amendments of Bill C-51, are constitutional and should be upheld, continuing a trend of increasing accessibility to justice.

The matters of the two accused, J.J. (J) and Shane Reddick (R) were examined on appeal before the SCC. The accused are not co-accused, but each committed separate sexual offences. By way of pre-trial motions, both accused challenged the constitutionality of sections 278.92-278.94 of the Criminal Code. The application judge in J’s case determined that part of the test for admissibility was unconstitutional, which the Crown appealed.  J cross-appealed the constitutionality of the entire scheme, and in R’s case, the complainant (S) appealed the trial judge’s decision which ruled all provisions unconstitutional and prevented her from participating in screening the evidence.[5] Basically, both accused argued that the provisions were unconstitutional and violated their Charter rights.

First, they argued that the right to silence and privilege against self-incrimination was violated, as was their right to a fair trial, and finally so was their right to full answer and self-defence , all issues falling under sections 7 and 11 of the Charter. The accused argue that the provisions force them to divulge strategy and details of evidence to the Crown, as well as providing advanced notice of strategy and details to the Crown.[6] This, according to the accused, detracts from their rights under the Charter, specifically sections 7, 11(c), and 11(d).[7]

The Crown’s and the complainant’s appeals were allowed, while J’s cross-appeal was dismissed, with the majority of the SCC finding that the provisions were constitutional.

Overall, the majority points to the fact that “section 11(d) does not guarantee ‘the most favourable procedures imaginable’ for the accused, nor is it automatically breached whenever relevant evidence is excluded… Nor is the broad principle of trial fairness assessed solely from the accused’s perspective. Crucially, as this Court stated in Mills, fairness is also assessed from the point of view of the complainant and the community.”[8] The accused is not the only party who has rights within proceedings before the courts.

The SCC majority in their decision defended the validity and constitutionality of the provisions in question. Further, the majority incorporates surprisingly thoughtful discussion of the barriers that face victims of sexual offences, and the importance of the provisions in increasing access to justice, noting the societal issues that complainants must face if they report to the police and their matter goes before the courts.[9] The majority of the SCC determined that the regime under which the provisions were enacted has the purpose of protecting the dignity, equality and privacy of the complainant, encouraging victims of sexual violence to come forward, and enhancing the “truth-seeking function of trials” by attempting to block harmful myths and stereotypes from taking root within the court.[10]

Perhaps unsurprisingly, former Justice Brown vigorously dissented, declaring that the screening process for private records (but not sexual activity) was wildly unconstitutional. While Côté J. and Rowe J. did also dissent, Brown J. enthusiastically expresses displeasure for the regime, calling it a “ham-fisted measure… of legislative overkill.”[11] He would propose a far narrower approach to defining precisely what a record is, along with an admissibility voir dire that would be required regardless of which parties seek to adduce the record.[12] However, and thankfully, the majority prevailed.

For victims of sexual assault who fear coming forward, this decision may serve as encouragement to seek justice.  Further, a narrower approach, particularly when defining what records should be considered private, could hinder the ability of the provisions to protect the dignity, equality, and privacy of the complainant. In turn, this could open victims up to humiliating and traumatizing cross-examination and judgement that could ideally be avoided under the current regime.

Result of J.J.

Victims of sexual offences already face innumerable barriers such as the societal stigma of being a victim of a sexual crime, potential harassment and guilt, and even disparaging remarks from judges themselves.[13] For example, in Canada, female victims of sexual assault only report to the police about 6% of the time, though nearly a quarter of women are victimized in this way in North America.[14] These statistics are worsened when one considers other factors that may increase a victim’s vulnerability- Indigeneity, disability, or being in a high-risk profession, such as being a sex worker. These individuals who may fall into any of these vulnerable communities often experience more barriers to accessing justice and thus are less likely to report crimes against them, even though they are at a higher risk of being victimized.[15] Further still, an abysmal number of sexual crimes, like sexual assault, never result in justice served.[16]

In a system that is notoriously difficult to navigate for vulnerable victims of sexual offences, every bit of protection and grace that can be afforded to these victims is crucial in ensuring that they are able to access justice. Provisions that prevent unnecessary scrutiny of victims in an already stressful situation while they are in a vulnerable state are needed. R v J.J. upholds this and enforces the need for provisions that aim to prevent a victim’s entire life from being on display and scrutinized. Hopefully, this is a sign of a continuing trend toward a more accessible and progressive justice system.

This decision is significant in that it actively and openly seeks to increase the accessibility of the court and justice for victims of sexual assault by affirming measures taken by Parliament to address gaps within the justice system that may prevent victims from reporting sexual crimes. As the SCC acknowledges, “[m]ore needs to be done” and this is simply a start.[17]

[1] Criminal Code, RSC 1985, c C-46, s 276.

[2] R v J.J., 2022 SCC 38 at paras 43-45 [J.J].

[3] Supra note 1 at 278.92 – 278.94.

[4] Supra note 1. 

[5] Supra note 2 at 10.

[6] Ibid at para 12.

[7] Ibid at para 16.

[8] Ibid at para 125.

[9] Ibid at para 1.

[10] Ibid at para 139.

[11] Ibid at para 311.

[12] Ibid.

[13] Alison Crawford, ‘Justice Robin Camp resigns after judicial council recommends removal’ CBC News, 9 March 2017.

[14] “Sexual Assault Statistics in Canada”, 2023, online: Sexual Assault in Canada <www.sexassault.ca/statistics.htm> [perma.cc/9PUX-Y6TM]

[15] Ibid.

[16] Supra note 2 at 2.

[17] Supra note 2 at 2.