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Joseph A. Neuberger & Diana Davison
Neuberger & Partners LLP
Toronto Criminal Lawyers
On June 30, 2022, the Supreme Court of Canada ruled in R. v. J.J., 2022 SCC 28 that Criminal Code amendments brought in by Bill C-51 after the Jian Ghomeshi trial, are constitutional, requiring the defence in sexual assault cases to reveal all “records” in their possession prior to trial. The legislation has been in effect since December 2018 and across the country there have been split decisions in the lower courts resulting in uneven application of the new rules. Some provinces which had declared the disclosure requirements to be unconstitutional will now have to implement the screening procedures.
At the very least, lower courts were in need of guidance on how to apply the procedures created by the new Criminal Code sections 278.92 through 278.94, governing the timing and extent of the complainant’s access to the pre-trial application. Additionally, the definition of “record”, determined by section 278.1 left uncertainty on what type of communications between the accused and complainant would hold an “expectation of privacy,” triggering the application requirement.
The Supreme Court had three dissenting opinions, all of which would have declared the legislation to have no force or effect. There was clear tension between the majority and the opinions of Justices Brown, Rowe and Coté.
Notably the majority began their reasons with statements about the low conviction rates in sexual assault crimes and statistics showing that it is severely under-reported. With numbers of convictions in mind, the majority declared in para 2: “More needs to be done.”
Justice Brown, in his dissent, was the first to mention the risk of wrongful convictions. At para 198:
In declaring the legislation constitutional in its entirety, the majority decision offers a few points of guidance on procedure and participation rights but leaves a lot of uncertainty on what is or is not a “record” requiring the screening regime.
The relevant section, 278.1, enumerates a number of records that have high privacy value, such as medical, therapy and employment information which is often held by third parties in a confidential manner. In determining whether something is a “record” for other purposes, the Supreme Court said it is based on “content” and “context”, not on the platform of the information such as text or audio recording. They seem to offer some clarity at para 53:
Primarily, the Supreme Court left most decisions up to the trial judge’s discretion yet, oddly, declared at para 72 that the accused should know whether or not their own evidence meets the definition of “record.”
In all circumstances the majority is clear that, if there is any uncertainty, both the judge and accused should “err on the side of caution” and bring the pre-trial application. The effect of para 72 is fraught with danger. If the accused decides that something is not a “record” and the trial judge disagrees during the trial, the evidence will not be admissible due to a failure of the accused to bring an advance application. Ultimately, as stated by the Supreme Court in R. v. Barton, 2019 SCC 33 and R. v. Goldfinch, 2019 38, the trial judge is the “ultimate gatekeeper” of admissible evidence and it is not up to the Crown or defence to make those determinations.
There are but a few helpful aspects in the majority decision regarding the process of these applications.
The complainant does not necessarily receive the full defence application with all the records and description of how the accused intends to use them. The Court described the timing of the process as follows:
An application hearing has two parts: Stage One to determine if the evidence is a record and, if so, whether a hearing for admissibility will be granted. Stage Two to determine if the records are admissible in trial.
The defence must file the written application seven days prior the court date for Stage One and at that point the Crown should give only a general description of the application to the complainant so she can decide if she wants to participate and obtain legal counsel if she so wishes.
The trial judge will make a determination after hearing Stage One and may use discretion as to whether or not the complainant will receive the application record in full or in part. The complainant is not entitled to directly receive the full application and documents. (J.J. para 174)
The complainant’s submissions are limited to oral and/or written submissions. The complainant does not have the right to cross-examine the accused on his affidavit. (J.J. para 100)
The application must be supported by an affidavit from the defence but the accused is not required to lay out his full defence evidence and the affidavit may be given by a third party regarding the veracity of the documents. (J.J. para 150)
Previously, the common practice since the new legislation was passed was that the accused would serve the application and all documents with the court and the Crown. The Crown would then get an order for the complainant to be assigned counsel at the State’s expense. The Crown would then supply the full application record to the complainant’s counsel prior to the Stage One hearing. Two court dates were booked for the hearing with some period of time between the Stages. The presiding judge needs to make a determination at Stage One of what, if any, documents and information from the application record will be shared with the complainant prior to Stage Two but after Stage One.
Up until now, many defence lawyers had decided to bring a “Motion for Directions” prior to filing the application and put the documents under seal so that only the judge could view them until or unless they were determined to be “records” requiring an application. This strategy allowed for the defence to make the trial judge the “gatekeeper” of the evidence while still preserving the integrity of the defence evidence if it was not, in fact, a record with sufficient privacy interests.
The Supreme Court majority has discouraged this practice, making it less effective by allowing for the complainant to potentially have notice and participation in a motion for directions while maintaining that the complainant did not have standing or participation in Stage One of an actual application. There is very little logic in this reasoning other than to force the accused to engage in the full application and go directly to Stage One to prevent the complainant from obtaining detailed knowledge of the defence evidence without reason. In the end, most judges will thus prefer to hear input from the Crown before making a decision and going directly to Stage One saves court time. This essentially renders any motion for directions futile.
In regards to concerns that the complainant will tailor her evidence after seeing the documents in the accused’s possession, the majority offered an odd approach. They compared the situation to an accused having a right to disclosure yet their evidence cannot be considered tainted by that advance knowledge. After making that comparison in para 185, the majority then stated at paras 188-189 that if a complainant changes or enhances her evidence after participating in the application it can be used to undermine her credibility.
However, there is very clear jurisprudence that an accused’s right to know the case against him and be present at his own trial cannot be used against him. When a judge or prosecutor suggests that an accused should not be believed because he allegedly tailored his testimony based on evidence he heard at trial it is overturned on appeal as a mistake of law. (R. v. C.T., 2022 ONCA 163) An accused must have access to full disclosure of the Crown’s case in order to make full answer and defence, given that the accused is facing the loss of his liberty if convicted. A complainant does not have her or his liberty at stake and the Crown often has no evidence other than the testimony and credibility of the complainant to obtain a conviction.
The advanced disclosure of defence records and strategy as now completely mandated by J.J., inescapably impairs cross-examination of the complainant. Cross-examination at trial is not in a vacuum, and often complainants with advanced notice of defence evidence, will address the evidence in chief or in cross, and explain that when giving their statement to police, they were not able to give the full details due their emotional state and/or not knowing how much detail was to be given. As such, some vague reference to a judge’s ability to assign weight to evidence of a complainant based upon enhanced details or altering of their evidence is of little comfort to an accused whose liberty and life is at stake.
Notably, the majority in J.J. also determined that evidence related directly to the subject matter of the charge, which would be excluded under the stricter requirements of section 276 of the Criminal Code, is now subject to an application under the new section 278.92. Thus, thanks to J.J., all defence records must now be disclosed prior to trial and run the risk of not being allowed into evidence.
The dissenting opinions in J.J. are strongly worded and align with the disposition of defence lawyers regarding the new legislation. Regardless, the majority decision is now the law in Canada and defence lawyers will have to be very strategic on how they comply with these new rules of evidence.
These applications will continue to create access to justice issues, increasing the cost of legal fees with the new procedures, and the applications must be carefully crafted because they must be filed prior to trial and prior to the complainant’s testimony in court.
In Shakespearean times, audiences would be given a mimed “dumbshow” of the storyline before the play began. A “show within a show.” This was so that the public could follow the plot line better when the play began. Trials are not like plays. Liberty is at stake and the challenge for defence lawyers is how to comply with the legislation without giving away the whole plot in advance.