The Balancing Of Interests and The Tilting Of Scale

On October 5th and 6th, 2021, the Supreme Court will hear arguments in R. v. J.J., challenging the constitutionality of the new “reverse disclosure” legislation created by Bill C-51 in 2018. The entire records screening regime is subject to the appeal and cross-appeal, primarily focusing on the treatment of non-sexual records in the possession of the accused. The legislation was largely seen as a response to the trial of Jian Ghomeshi, where the complainants’ credibility was significantly undermined by emails and correspondences they had provided.

The debate centers around what constitutes a “record” with an expectation of privacy. Different courts have reached different conclusions, especially concerning electronic communications between the complainant and the accused. Complainants have the freedom to provide police with text messages or electronic communications to support their allegations without needing a warrant.

Counsel for J.J. argues that the new sections 278.92 to 278.94 represent Parliament’s choice to protect complainants’ interests rather than their constitutionally protected rights. They claim that the legislation is ineffective, harmful, and ultimately unsalvageable in its attempt to balance the interests of complainants against the fair trial rights of the accused.

An access to justice concern arises with the new regime, as accused individuals must pay for extended evidentiary hearings and face time delays, while complainants are provided with free legal counsel. This unequal treatment raises questions about the fairness of the process.

The most significant concern with the changes for both sexual and non-sexual evidence is the complainant’s standing and ability to know which evidence the defense plans to cross-examine her on. The legislation requires the defense to provide much more detail on their anticipated theory and trial strategy, which assumes that there is no legitimate defense to a sexual assault allegation.

While counsel for J.J. and intervenors for criminal defense lawyers have focused on foundational principles of the legal system, the Attorney General and groups advocating for complainants have emphasized emotional arguments and public faith in the legal system. The fact that complainants may be harmed by the trial process is discussed, but there is no clear solution to prevent them from being involved in a trial.

The Supreme Court has mostly ruled in favor of the Crown in sexual assault appeals over the last year, deferring to the decisions of trial judges who have viewed all the evidence. However, this appeal provides an opportunity to ensure that all relevant evidence is admitted in the trial.

Production of CAS Records

In a recent decision, the Ontario Court of Appeal ruled that Children’s Aid Society (CAS) records should be accessible on a third-party records application when a parallel investigation has taken place. In R. v. S.S.S., 2021 ONCA 552, the CAS had conducted a “targeted” investigation into the subject matter of the criminal charges. The court agreed with the defense that any statement made by the complainant to the CAS, if any, would have related to the allegations in the case and would not have been of a therapeutic nature, thus the privacy interest in the record is not as high as in counseling records.

The records should have been produced for review by the court to determine their probative value. This decision aligns with R. v. K.C., 2021 ONCA 401, where the likely relevance threshold for a second stage Mills application was met. In K.C., the appellant was not granted a retrial because the complainants had already admitted to lying to the CAS during the investigation, reducing the probative value of any inconsistencies. However, Justice Fairburn, in dissent, would have granted the appeal in K.C. on this ground.

The level of privacy attributed to CAS records depends on the nature of the investigation and the length of CAS involvement. Generally, stage one of a third-party records application should be met when there is evidence that the complainants gave statements about the subject matter of the charges. However, the probative value must be high enough to outweigh privacy interests and succeed at stage two.

In S.S.S., the trial judge was also found to have improperly bolstered the complainant’s credibility by incorrectly determining that there was a proven absence of motive for the complainant to fabricate the allegation. It was the combination of these two errors that resulted in the retrial.

Legalizing Prostitution. Again!

The current anti-prostitution laws under s. 286 of the Criminal Code are being reviewed by the Ontario Court of Appeal for the first time since the Supreme Court struck down the previous legislation in Canada (Attorney General) v. Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101.

The Ontario Court of Justice found the new legislation unconstitutional in R. v. Anwar, 2020 ONCJ 103, and Superior Court of Ontario’s Justice Sutherland reached the same conclusion for different reasons in R. v. N.S., 2021 ONSC 1628.

Meanwhile, the Canadian Alliance for Sex Work Law Reform has initiated a civil suit challenging all of the s. 286 legislation as it pertains to adults. One of the litigants in that case was also a co-accused in the successful Anwar challenge.

The Alliance, comprised of 25 leading sex workers’ rights groups, sought various forms of relief as an intervenor in the N.S. Crown appeal. On September 7, 2021, the Ontario Court of Appeal ruled in favor of the group’s intervention in both the Crown application for a stay of Justice Sutherland’s section 52(1) declaration that the legislation is of no force or effect and the appeal of the decision. The Criminal Lawyers Association was also granted intervenor status in the motion for a stay.

The Alliance also requested an order to suspend the hearing of the appeal until their application in the Superior Court of Justice was adjudicated upon. In case that order was denied, the group requested permission to introduce fresh evidence on the stay and participate fully in cross-examinations on that application. The basis for these requests was the Alliance’s argument that the record in N.S. was “woefully inadequate.”

The constitutional challenge in N.S. was based entirely on hypothetical scenarios submitted by the defense. In comparison, the Anwar case relied directly on the specific circumstances of the accused, and numerous experts were called by both the defense and Crown to testify at the hearing.

The Alliance submitted over 2000 pages in their own application and a “condensed version” of over 600 pages in the N.S. motion. However, the Court of Appeal ruled that they could only submit 15 pages as intervenors.

Too Much Complainant Control

While there has been much lobbying to grant complainants more rights and access to information about the prosecution of sexual assault charges, one prosecutor recently found out there is a limit to how much control can be granted to a complainant.

In R. v. Strybosch, 2021 ONSC 6109 the Crown had agreed to withdraw charges for a peace bond and then withdrew that agreement after the accused had already begun the agreed upon therapy sessions as part of the deal.

The complainant had made an audio recording of her meeting with the prosecutor in which the complainant claimed her accusation had been misapprehended. The recording showed that the prosecutor believed there was no prospect of conviction but agreed to renew the prosecution to give the complainant closure.

Justice Goodman granted a stay of proceedings finding that the complainant “by her own admission, intimated a desire to use the public prosecution as a means of advancing her own agenda, namely, to confront the accused with the allegations in front of his family, irrespective of whether there was any prospect of proving such allegations beyond a reasonable doubt.”

Specifically, it was determined that “the applicant has established that the Crown attorney improperly repudiated the agreement based on the direction or instance of the complainant. The prosecution has engaged in conduct that is offensive to societal notions of fair play and decency, and proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system.”

If the complainant had not surreptitiously recorded her meeting with the Crown it is unknown if this injustice would have come to light. As it was, the prosecutor attempted to heavily redact the transcript of the conversation before turning it over to the defence.

Zooming In On Demeanour

There has been much debate about whether or not trials conducted over Zoom compromise the ability of a judge to make proper credibility assessments.

Presence in a courtroom not only lends more gravity to the proceedings but, as one judge recently found, it can also affect the judge’s view of a complainant’s entire demeanour.

In R v. B.G., 2021 ONSC 6248, Justice Harris noted a dramatic change in the complainant when, due to technical difficulties, she had to change from testifying from home to giving evidence at the Crown’s office.

“It has been observed that credibility can be better assessed on Zoom because the witness faces the camera straight on, as opposed to the profile view that a judge has of witnesses in a courtroom [citation removed]. While that is true, there are also major observational deficits in assessing credibility over video. This trial highlighted several aspects.”

In particular, Justice Harris found that the ability to assess demeanour is affected by the lighting, framing the camera too close and the angle or sharpness of other aesthetic features.

While demeanour is only one factor in credibility assessments everything affecting credibility becomes important in sexual assault cases which often hinge on nothing but the testimony of a complainant with no corroborating evidence.

In the case of B.G. there was significant other evidence that the allegations were retributive for the accused ending their marriage, including the complainant’s claim to not have known about other legal action being taken against the accused on her behalf in another country. Nevertheless, the decision gives reason to be cautious about how Zoom trials are conducted.

No Such Thing As “Unreasonable Acquittal”

Just as the Supreme Court has limited appeals of convictions claiming uneven scrutiny, the Ontario Court of Appeal has confirmed that the Crown is also limited in making similar arguments when appealing an acquittal.

In R. v. E.B., 2021 ONCA 635, Justice Zarnett wrote: “As the Supreme Court of Canada has held, caution must be taken not to create a ground of appeal of “unreasonable acquittal” by seizing on perceived deficiencies in a trial judge’s reasons for acquittal.”

While the Crown believed their case had been strong enough with supporting DNA evidence, the Crown is not permitted to use an appeal to retry their case.

Appeals of acquittals remain strictly limited. Nevertheless, the accused in this case had to defend his acquittal despite the obvious deficiencies in the Crown’s grounds of appeal.

Other Cases To Watch

R. v. J.J, 2020 BCSC 349 SCC File # 39133
It’s finally here. This decision will give continuity and important guidance across Canada on how to interpret the new legislation from Bill C-51 if it is deemed to be constitutional. It is likely that the decision won’t be rendered until 2022.

R. v. Kirkpatrick, 2020 BCCA 136 SCC File # 39287
This case will be looking at the correct interpretation of the Supreme Court decision in Hutchinson as it relates to consent being dependent on condom usage. The lower court was also split on whether failure to use a condom was a form of fraud. There are numerous intervenors in this case.

R. v. Ndhlovu, 2020 ABCA 307 SCC File # 39360
Whether or not mandatory SOIRA order is unconstitutional. There are numerous intervenors in this case.

Contributors:
Joseph A. Neuberger, LL.B, LL.M., C.S.
Diana Davison, Legal Researcher