When Privacy Prevails Over the Admission of Evidence

Author: DT

In the realm of evidence, one issue that has arisen is whether private records can be admissible in sexual assault trials. This question is prominently featured in the Canadian case R. v. J.J., 2022 SCC 28. The case has been highly influential in upholding provisions that provide complainants in sexual assault cases greater control over their own personal records and their usage in trial. This blog will explain the importance of privacy and dignity in criminal law, particularly in relation to the experiences of complainants, as illustrated in this case. In R. v. J.J., the Court showed that a defendant's right to a fair trial must be balanced with the privacy of complainants, provided that the defendant's right to a full answer and defense are ensured and maintained.

Background

As the Supreme Court of Canada (SCC) states in the first paragraph of this case, "[t]he criminal trial process can be invasive, humiliating, and degrading for victims of sexual offences, in part because myths and stereotypes continue to haunt the criminal justice system."[1] The SCC pointed out that complainants have often had to expect that their character traits would be unjustifiably scrutinized so that the defense could call their credibility into question through intimidation and embarrassment.[2] The SCC pointed out that more needs to be done to strike a just balance between the accused's right to a fair trial and the complaint's right to dignity and privacy.[3] More needs to be done because without the confidence that a complainant's dignity and privacy will be protected, more offences will remain unreported.[4] In response to this, Parliament has created legislation—sections 278.92 and 278.94 of the Criminal Code—to remove the barriers that deter complainants from coming forward with the harms that have been committed against them.[5] 

Section 278.92(1) and (2) state:

(1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

(a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171,172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1,286.2 or 286.3; or

(b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.

(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,

(a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or

 (b) in any other case, that 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.[6] [CCC 278.92]

Section 278.94 (1) and (2) state:

(1) The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2) or 278.92(2).

(2) The complainant is not a compellable witness at the hearing but may appear and make submissions.

The purposes of these two sections of the Canadian Criminal Code are to protect the privacy and dignity of complainants involved in sexual assault cases. In this case, J.J. was accused of sexual assault. He argued that sections 278.92 and 278.94 of the Criminal Code are unconstitutional and they violated his rights under ss. 7, 11(c) and 11(d) of the Charter.[7] 

J.J. possessed records between the complainant and himself that he wanted to use to cross-examine the complainant.[8] J.J. wanted to know whether the record screening process violated his rights under the Charter. Specifically, he wanted to know whether the record screening process violated "the right to remain silent and to not self-incriminate, the right to a fair trial, and the right of an accused to present evidence in their defense and challenge the evidence against them."[9] The SCC decided that the record screening process in sections 278.92 and 278.94 of the Criminal Code is constitutional.[10] 

Chief Justice Richard Wagner and Justice Michael Moldaver wrote that the accused's rights were not violated because the right to silence was not an issue and the accused was not forced to testify during the record screening process.[11] The right to a fair trial was also not violated because a right to a fair trial does not imply a right to the most advantageous trial possible.[12] Finally, it was decided that the right to present and challenge evidence was not an unlimited right and that it would be unfair to ambush complainants with their own records that may be highly private.[13] 

Analysis

Like most criminal law cases that are decided by the SCC, the dilemma present is a weighing game of moral principles. On the one hand, access to truth is the first virtue of systems of thought in the same way that justice is the first virtue of social institutions and any evidentiary evidence that assists in acquiring truth would be prima facie beneficial. On the other hand, evidence needs to be admitted properly and consistently to ensure that the legal system operates in a uniform and predictable way. In this case, the value of ss. 278.92 and 278.94 amounts to a removal of barriers faced by victims of sexual offences that have prevented them from reporting the crimes committed against them and thus both sections are constitutional in their entirety.[14] Prior to reading cases such as this one, one may hold on to the intuition that any factual evidence that leads us to better understanding the truth of an event ought to be used. Therefore, it seems intuitive that before the Court can properly deliver justice, its raison d'être is to ascertain the facts of a case, and that the more facts that can be ascertained, the better. This case reminds us that the facts are only one step on the staircase to justice. The Courts also need to weigh the protections and promotions of human dignity and privacy. In this case, the complainant’s privacy was of more importance than the admission of documents with recorded conversations between the complainant and the accused. 

Conclusion

R. v. J.J., 2022 SCC 28 is an important case in the field of evidence because it balances the privacy rights of sexual assault complainants with the rights of the accused to present the type of evidence expected in a fair trial. In this case, the SCC determined that there need to be protections for the complainant that prevent certain private records from being admitted as evidence in sexual assault cases. While these safeguards are crucial for the protection of dignity for complainants, future cases and developments will need to determine whether there will be situations significant enough to necessitate the inclusion of records relating to the complainant in possession of the accused, but as it stands, ss. 278.92 and 278.94 are both constitutional pieces of legislation.

[1] R. v. J.J., 2022 SCC 28 (CanLII) at para 1.

[2] Ibid at para 1.

[3] Ibid at para 2.

[4] Ibid at para 2.

[5] Ibid at para 3.

[6] Criminal Code, RSC 1985, c C-46, s 278.94.

[7] Supra 1 at para 16.

[8] Supreme Court of Canada, “Case in Brief: R. v. J.J.,” (2022), online (pdf): https://www.scc-csc.ca/case-dossier/cb/2022/39133-39516-eng.pdf at para 2.

[9] Ibid at para 3.

[10] Ibid at para 6.

[11] Ibid at para 7.

[12] Ibid at para 7.

[13] Ibid at para 7.

[14] Supra 1 at paras 191 & 192.