- R v. J.J., 2022 SCC28
In 2018 Parliament enacted sections 278.92 to 278.94 of the Criminal Code to address the barriers that had prevented victims of sexual offences from making complaints to police. These provisions created a screening regime to protect the complainants’ interests in their own private records when an accused, who possessed or controlled such records, wanted to have them admitted at a hearing in their criminal proceeding. The screening regime procedures and criteria aided an application judge to determine the admissibility of such records in balancing the rights and interests of the accused, the complainant, and the public. The new procedures also gave complainants additional participation rights in admissibility proceedings. Some, of the same procedural elements of these provisions were also to be applied to s. 276 evidence applications regarding the admissibility of evidence of complainants’ prior sexual activity or history.
In J.’s case, the application judge held that one provision of the record screening regime was unconstitutional, the Crown appealed that ruling, and J. cross-appealed, challenging the constitutionality of the entire screening regime. In R.’s case, the complainant S., whom the Court had granted the right to be added as a party, appealed from the application judge’s ruling impugning the constitutionality of the entire record screening regime as effectively preventing her from involvement in the record screening process.
The Supreme Court of Canada held that the record screening regime incorporated the fundamental principle of the rules of evidence. Namely that relevant evidence should be admitted and irrelevant evidence excluded, subject to the condition that the value of the evidence must outweigh its potential prejudice to the conduct of a fair trial. An accused’s right to a fair trial did not include an unlimited right to admit all evidence in support of their defence. The criminal law in Canada included, “many exclusionary rules to prevent the Crown or the defence from distorting the truth-seeking function of the trial process, which is an integral component of trial fairness”.
“Section 278.92(2)(b) of the Criminal Code, establishes that private records are only admissible if “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”. The same admissibility threshold is one of the conditions for s. 276 evidence under section 276(2)(d) (as directed now by s. 278.92(2)(a)) and was constitutionally upheld in Darrach”.
The Supreme Court held section 278.92 of the Criminal Code did not violate the accused’s right “to make full answer and defence” because it did not prevent the accused from adducing relevant and material evidence,
the probative value of which is not outweighed by its prejudicial effect. The Court stated, “With respect to private record applications, the admissibility threshold in section 278.92(2)(b) and the factors in section 278.92(3) required the judge to weigh the potential prejudice arising from the proposed evidence, including whether it is myth-based or unjustifiably intrusive on a complainant’s privacy, against the extent of its probative value.” The Supreme Court concluded that the admissibility threshold in section 278.92(2) did not breach sections 7 or 11(d) of the Charter.
The Supreme Court considered the legislative objective of the record screening regime and concluded that Parliament enacted this regime in order to: protect a complainant’s dignity, equality and privacy interests; support society’s interest in responding to the prevalence of sexual offences by encouraging victims to report sexual offences and seek treatment; and to support the “truth-seeking function” of a trial by excluding evidence of prejudicial myths and stereotypes. It was necessary to require screening of this type of evidence because of the potential prejudice that could result from its admission.
The Supreme Court found that the screening regime did not require the accused to submit an affidavit and undergo cross-examination so as to engage section 11 (c). The accused was not compelled to be a witness under section 11(c) by the operation of sections 278.92 to 28.94. If an affidavit was submitted in support of an application, anyone with relevant information, who could personally testify to its truth, could be such a witness. Furthermore, although the defence must disclose the evidence and its relevance to the case on an application, such disclosure did not amount to the defence handing the Crown its entire defence theory from which the Crown could hypothetically tailor its prosecution. The accused’s guilt or innocence was not at issue as the application proceeding was limited solely to the admissibility of highly personal private records. Therefore, the risk that the Crown would co-opt such evidence to bolster its case was limited so that the defence could not be said to be helping the Crown’s prosecution.
In view of Parliament’s objective and underlying logic for the enactment of the record screening regime, the Court concluded that sections 278.92 to 278.94 did not apply more broadly to other types of defence evidence. Section 278.93 was constitutional under sections 7 and 11(d) of the Charter for two reasons: the accused was not compelled to testify so section 11(c) was not engaged; and there was no absolute rule against defence disclosure. The screening of private records was appropriate because the evidence had a high potential for prejudice; it does not constitute a disguised form of self-incrimination. The right to a fair trial did not guarantee “the most advantageous trial possible from the accused’s perspective” nor did it guarantee “perfect justice”. Instead, the guarantee was to achieve fair justice, which required consideration of the privacy interests of others involved in the justice system. The impugned provisions struck a balance that protected fundamental justice for accused persons and complainants.