In December 2018, amendments to the Criminal Code (sections 278.92 to 278.94) came into force which, for the first time, required defendants in sexual assault cases to disclose material in their possession to the prosecutor (the Crown) and to the complainant before being allowed to use that material at trial.
In the years following the amendments, some lower courts had found that these sections were unconstitutional in whole or in part. In addition to the question of constitutionality, there were also major questions of how the sections should be interpreted.
In its recent decision R. v. JJ, 2022 SCC 28, the Supreme Court found that the sections were constitutional. The Supreme Court also attempted to clarify how these sections should be interpreted. Therefore, understanding the JJ decision will be essential for defence lawyers (and defendants) in sexual assault cases.
The purpose of the record screening regime
The stated purposes of sections 278.92 to 278.94 are to protect the privacy and dignity of complainants, to encourage the reporting of sexual offences, and to encourage complainants seeking treatment following assaults. While the sections are most obviously targeted at complainants in sex offences, the provisions also apply to non-sexual offences if they have some connection to sexual offences (for example, a serious assault or homicide committed during sex).
The amendments aim to protect the privacy and dignity of complainants by limiting how and when an accused person can introduce “records” during a trial. “Records” are any form of recorded information in which the complainant has a reasonable expectation of privacy. Most commonly in sexual assault cases this might include messages between the complainant and the accused whether by text, email, letter, or social media such as Facebook, Instagram, or Snapchat.
Prior to the amendments, defendants and defence counsel could use records in their possession however they saw fit. For example, emails and letters between complainants and the accused were used to great effect during the Ghomeshi trial to undermine the credibility of the different complainants. Although not, as is sometimes believed, a reaction to the Ghomeshi case, Sections 278.92 to 278.94 eliminated this practice and replace it with a regime requiring pre-screening of the records before they can be used in any way.
Procedure for s. 278.92 pre-trial motions after R v JJ
Defence counsel first need to determine whether the evidence held by the accused is a “record”. If the material is not a “record” then the records screening process in section 278.92 to 278.94 does not apply and the defence can use the material without any pre-screening.
Section 278.1 Criminal Code defines a “record” in two ways. First, it there is a list of categories of certain types of things that fall within the definition of “record” including: medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries. Collectively these are often referred to as enumerated categories of records. Anything that does not fall into one of the listed categories, will still be a record if the complainant has a reasonable expectation of privacy in the material. Records in this residual category are often referred to as non-enumerated records.
The Supreme Court in J.J. diverged from prior case law in how they handled enumerated records. Earlier non-Supreme Court cases had decided that, if material fell within an enumerated category it was presumed to be private, but the accused could call evidence and argue that it was not in fact private. In J.J. the Supreme Court declared that enumerated records are presumedprivate and that the defence cannot rebut this presumption. Therefore, when dealing with an enumerated record, the defence will always have to bring a s.278.92 motion.
J.J. also established a new test or standard for non-enumerated records: material not falling into one of the specifically mentioned categories will be a record is “integral to the complainant’s overall physical, psychological, or emotional well-being.”
Whether something matches that overall definition involves “content and context-based analysis” and the majority in J.J. offered some guidance as to what “context” and “content” mean.
Before getting there, it is worth noting that the majority in JJ expressly said that its discussion of “reasonable expectation of privacy” was specific to the s. 278.92 regime and that it did not apply to other uses of that term even in closely related parts of the Criminal Code. This is interesting because the definition of “record” is the same for both production applications under s.278.3 (i.e. application by an accused to a court order compelling a person, such as the complainant, to turn over private material to the defence) and s.278.92 admissibility applications. How the same defined term, “record”, can mean two different things is philosophical question the court did not tackle.
If the information in the record is similar to what would be contained in an enumerated record, that is an important indicator that there is a significant privacy interest.
Consideration must be given to the context in which the record came into existence. Context is extremely broad meaning “the totality of the circumstances”. However, some specific factors a court may consider include:
- The reason why the complainant shared the private information question
- The relationship between the complainant and the person with whom the information was shared
- Where the record was shared and how it was created or obtained
When considering context, a court will apply a common-sense approach by considering the norms and conduct in our society.
The material in the accused’s possession is private, now what?
If the material in the defence’s possession is a private and therefore a “record”, the defence must follow the detailed procedures in s.278.93 and 278.94 of the Criminal Code.
First, the defence must schedule a pre-trial motion – a court date in front of the trial judge. The defence then must provide a written application, to the Court and the Crown prosecutor at least 7 days before the pre-trial motion date. The written application must summarize the nature and content of the records or simply attach the records themselves and must describe why the records are relevant to the defence and why they should be admitted.
The application will then proceed in two stages. The public is excluded for the entirety of this process to protect the privacy of the complainant.
At the first stage, the judge will review the application to determine if the evidence is a record under s. 278.1 of the Criminal Code and if it is capable of being admitted. To determine if the evidence is capable of being admitted, the judge must consider the following factors under s. 278.92(3):
- The interests of justice, including the right of the accused to make a full answer and defence;
- Society’s interest in encouraging the reporting of sexual assault offences;
- Whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
- The need to remove from the fact-finding process any discriminatory belief or bias;
- The risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
- The potential prejudice to the complainant’s personal dignity and right of privacy;
- The right of the complainant and of every individual to person security and to the full protection and benefit of the law; and
- Any other factor that the judge, provincial court judge or justice considers relevant
- Society’s interest in encouraging the obtaining of treatment by complainants of sexual offences
J.J. made two refinements to the Stage 1 process. First, the court clarified that the judge at Stage 1 can determine whether material is a record. If it is not, then the defence succeeds on the application because admissibility screening is not really required. This is significant because defence lawyers had developed a practice of bringing “motions for directions” to get a preliminary ruling on whether material was a record. J.J. will likely eliminate this practice because that argument can now be made at Stage 1. In addition, J.J. confirmed that the complainant does not have standing to appear or make submissions at Stage 1 whereas a complainant might have a standing at a motion for directions.
Second, J.J. read in the requirement that the judge find the records are “capable of being admissible” at Stage 1 to fix what the court viewed as a drafting error. As a result, the Supreme Court gave the Stage 1 process more teeth in that judges can take a more active role in screening out applications that will clearly fail at Stage 2. For defence lawyers, this means filing a strong application before Stage 1 rather than trying to fill in the blanks during the Stage 2 hearing.
If the judge rules that the evidence is a “record” and it is capable of being admitted, then the application will proceed to the second stage.
At Stage 2, the judge will determine whether the evidence meets the test for admissibility set out in s. 278.92(2)(b) of the Criminal Code. The test is as follows: the evidence is admissible if it “is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger or prejudice to the proper administration of justice.” This determination is made by once again looking considering the factors in s. 278.92(3) listed above.
At Stage 2, the complainant has the right “appear and make submissions.” Importantly, and contrary to how some lower courts had interpreted this phrase, J.J. explained the complainant’s lawyer does not have the right to cross-examine any witnesses (such as the accused) who might testify on the s.278.92 application.
The Supreme Court’s ruling in R. v. J.J. means that the records screening process in sections 278.92 to 278.94 of the Criminal Code is here to stay.
Some defence lawyers have worried that the J.J. decision will usher in more requirements for defence disclosure in advance of trial. This remains to be seen. For right now, defence lawyers must comply with these sections even if that means turning over material they would rather the complainant not know until they are already being cross-examined. While Supreme Court in J.J. suggested some ways a defence lawyer might try to avoid disclosing the details of their defence to the complainant in advance – for example, bringing mid-trial applications or asking the judge to order that the complainant not get a copy of the application – the Court left these at the discretion of the trial judge. This makes these tactics risky for defence lawyers. A judge could reject a mid-trial s.278.92 application. If that happens, the defence cannot use the materials at all.
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.