This is the second part of a two-part blog on “Use of Records in Defending Sexual Offence Charges.” Read our first blog here.
Over the past 30-odd years, both legislators and Canadian courts have gradually reshaped the law as it relates to sexual offences. First, “twin myth” reasoning was outlawed under s.276 of the Criminal Code of Canada, specifically, the use of a complainant’s prior sexual history to suggest that because of this sexual history, a complainant was (1) less worthy of belief and/or (2) more likely to have consented to the sexual activity that is the subject matter of the charge. Not long after that, legislators also regulated the production of records to the defence.
But for decades, there were no unique provisions governing the admissibility of “records” in sexual offences. As alluded to in the first part of this two-part blog, Bill C-51 and its associated provisions changed this, enacting rules and procedures to regulate the admission of “records” that an accused person already possessed but sought to lead as part of their trial. R v JJ dealt with the constitutionality of some of these new provisions. It is important to understand how the JJ ruling may impact strategy, timing, and cost when defending an accused person charged with a sexual offence(s).
What constitutes a “record” (s.278.1) in sexual offence cases, and the impact that pre-trial applications can have on when a trial is expected to finish
The legislation is clear that a pre-trial application must be brought anytime an accused person has a “record” (as defined by s.278.1 of the Criminal Code of Canada) in their possession that they intend to “adduce” as evidence in a sexual offence trial. Notably, “adduce” captures the content of the record, so pre-trial applications are required even where the accused does not intend to enter the “record” formally as an exhibit. Put differently, an accused cannot cross-examine a complainant by using a record unless a successful admissibility motion is brought first.
Moreover, Chief Justice Wagner and Justice Moldaver, writing for the majority of the Supreme Court of Canada in JJ, interpreted “record” broadly. A “record” can include anything from a complainant’s medical and psychiatric records (which are presumptively records) to text messages exchanged with others, including but not limited to, the accused. Indeed, in some circumstances, even a social media post can be a “record.” Oftentimes, whether something is a “record” or not must be decided on a case-by-case basis, with may require a judge to assess the content and context of the potential record to determine if it contains highly personal information that would attract a reasonable expectation of privacy and be captured by s.278.1 so as to need a further pre-trial application. Functionally, what this might mean is that a pre-trial motion for directions may be needed to determine whether a further pre-trial application under s.278.92 must be brought. More motions, more filings and more court time means more costs to an accused.
Furthermore, the bringing of pre-trial applications, although often required to make full answer and defence and maximize an accused’s chances at trial, can prolong a trial, given that these pre-trial applications occur in stages, have their own service timelines (which can be adjusted by the court if doing so is in the interests of justice), and are supposed to usually be brought before the trial proper begins. The ‘timing’ issue presents a particular concern for accused persons who are in custody awaiting trial, who are out of custody but are on strict bail conditions, who are suspended from work pending the completion of their criminal case, or whose ongoing criminal matter is affecting other litigation, including family law litigation or civil proceedings.
Despite being presumed innocent of the charge(s) they are facing, the enactment of Bill C-51 and the Supreme Court of Canada upholding the constitutionality of the Bill’s admissibility related provisions in J.J. may often mean that it will take longer for sexual offence cases to finish, at least when compared to before the admissibility provisions for “records” were created.
Defence disclosure obligations
Sections 278.92 to 278.94 (i.e., the “records” related admissibility regime in sexual offence cases) place certain disclosure obligations on an accused person. Normally in a criminal trial, only the prosecution has an obligation to disclose to the accused and their defence counsel the case against the accused. The purpose of this is to allow an accused the opportunity to properly respond to the allegations against them. Unlike in civil proceedings where both parties participate in extensive pre-trial discovery and disclosure of documents and witnesses, in a criminal trial, an accused person is not usually required to disclose any information to the opposing side (i.e., the prosecution) prior to trial, even if the accused intends on using that information in their trial later. This is because basic tenets of the Canadian justice system include that an accused person cannot be compelled to assist in their own prosecution, has the right to silence, and has the right to a fair trial. An accused person is also presumed innocent, and it is up to the prosecution to prove their guilt beyond a reasonable doubt; it is not up to an accused to establish their innocence. To put things more accurately, these are not just tenets; they are constitutional protections. Of note, in J.J., the Supreme Court of Canada ultimately concluded that ss. 278.92-278.94 are constitutional in their entirety. Still, it is important to understand how ‘advance’ disclosure can impact strategy when mounting a defence in sexual assault cases, as the Supreme Court of Canada in J.J. offered some guidance here as well.
Prior to the Stage One inquiry under the record screening regime, an accused person is required to bring a written application and serve this on the prosecution. The application must set out the detailed particulars of the evidence the accused is seeking to adduce. This forces defence counsel to show the prosecution at least part of their defence before the prosecution’s case (usually) starts. Moreover, should the matter proceed to Stage Two, the defence’s application is not only reviewed by prosecutors, but is also shared with the complainant (and often complainant’s counsel). The concern many defence lawyers have in disclosing this information beforehand to a complainant is that a complainant can plan in advance of trial and then tailor their responses in cross-examination at trial to explain away potential discrepancies. This, in turn, may impact how effective defence counsel’s line of questioning is. Since credibility and reliability are often central to a sexual offence trial, in J.J., both J.J. and Mr. Reddick argued that the complainant even participating in Stage Two of these applications violated the accused’s right to make full answer and defence.
This argument was unsuccessful, but notably, in J.J., the Supreme Court of Canada stressed that the accused can still test a complainant’s evidence by comparing it to prior statements the complainant made. If the complainant’s evidence has changed significantly, this will be readily apparent to the trier of fact even if there was some advance planning by the complainant. The Supreme Court also said that the complainant can be cross-examined on their access to the defence’s admissibility application too and that the accused can impugn the complainant’s credibility and reliability by suggesting they tailored their evidence to fit what they learned in the defence’s application. Finally, the Supreme Court of Canada added that trial judges also have discretion to hear admissibility applications “mid-trial” where doing so is in the interests of justice. Thus, in situations where advanced disclosure would genuinely negate the efficacy of cross-examination, the accused may choose to bring the application during cross-examination to avoid the risk of ‘witness tainting.’ Still, the Court in J.J. cautioned that it is up to the trial judge to decide whether it is in the interests of justice to even allow an application to be brought late, adding that mid-trial applications should not be the norm, so there is some risk in waiting until a trial starts to bring this application as well.
While the caselaw is still developing in the aftermath of J.J., what J.J. promises is that the admissibility related regime surrounding the accused’s use of “records” in sexual assault cases is here to stay. Sometimes, it is not always clear when a “records”-related admissibility application should be brought, or what content should be included in such an application to best maximize its chance of success without ideally forecasting too much of the defence to the Crown and the complainant. The timing as to when these applications should be brought is also worth considering as this can vary from case to case. Because there are procedural and substantive hurdles that defence counsel must often overcome to properly defend a client charged with a sexual offence, it is that much more important that an accused hire not just a talented and experience defence lawyer, but a lawyer who is well-versed in defending sexual offence cases specifically.
This blog is not intended and does not constitute legal advice. Instead, it provides some preliminary legal information about using records to make full answer and defence for sexual offence charges. If you’ve been charged with a sexual offence or any other criminal offence, contact one of our criminal defence lawyers today.