So begins an important Supreme Court of Canada decision released on June 30th, which tackles issues relating to the extent to which those accused of a sexual offence can intrude upon the privacy of survivors in the interests of their Charter rights to a fair trial.
A brief review of the long history leading up to last week’s decision is necessary if its importance is to be properly understood.
Looking back
In Canada, anyone accused of a crime is presumed to be innocent until the Crown Attorney proves, beyond a reasonable doubt, that they did whatever they were charged with doing. The accused person does not have to prove they are innocent but, to avoid a guilty verdict, they do have to poke enough holes in the Crown’s case to create reasonable doubt as to their guilt. To do this, they need, obviously, to know the case against them, which includes having access to any evidence the Crown plans to use. In order to ensure this happens, the Crown has a legal duty to disclose any such evidence to the accused. This generally happens early in the proceedings, although disclosure is an ongoing obligation and, if new evidence emerges later, it, too, must be shared.
All of this is good but, as is so often the case, what is good as a general principle does not work well in sexual assault situations. In the 1990s, defence lawyers began asking Crowns to disclose any private records relating to the survivor (called the complainant in criminal law lingo), and Crowns did so, believing this to be part of their legal disclosure obligation. Often, these records were from therapists or counsellors women had turned to for support following the sexual assault. Often, they contained highly private information about the complainant, much of it utterly unrelated to the sexual assault case.
As no doubt intended by the defence lawyers seeking the disclosure, this had a chilling impact on survivors and sexual assault centres in particular, but private therapists, psychologists and psychiatrists were also affected. Women hesitated to seek emotional support, fearing their most private thoughts would be shared with the man who had sexually assaulted them. Those providing services to women worried about what they should and shouldn’t include in their records, wishing to protect their clients’ privacy as much as possible. Some sexual assault centres stopped keeping any records at all. The reporting rates of sexual assault – already appallingly low at less than 10% — dropped.
A flurry of cases in the mid-1990s brought matters to a head. Some sexual assault centres refused to turn over their records and were held in contempt or had costs ordered against them. In other cases, criminal charges were dropped when the records were not turned over.
I was practicing law at the time and, I can tell you, it was a grim time. I worked closely with a number of sexual assault centres to find ways to keep their records out of the hands of abusers, some of which were successful. I also talked to a lot of women who told me they faced, in effect, a Sophie’s choice: to report the sexual assault to the police or seek the therapeutic support they needed.
First step forward
After a particularly high-profile case, then-Minister of Justice Allan Rock, working closely with women’s advocates, introduced amendments to the Criminal Code that would set limits on the ability of the accused to gain access to the private records of complainants in sexual assault cases. Once passed, the legislation was challenged for being unconstitutional. One such challenge made its way to the Supreme Court of Canada, where the legislation was upheld.
The new regime did not prohibit the accused from seeking these records; rather, it introduced a procedure that required the accused to bring an application to establish that the records they sought were of meaningful value and that turning them over would not overly violate the right to privacy of the complainant or prejudice the administration of justice. Importantly, the legislation gave the complainant—who is not a party in the criminal trial – the opportunity to make arguments about whether or not she wanted her records turned over. The third-party recordholder (the sexual assault centre or therapist, for example) also had the right to appear to make its own arguments pro or con sharing the records.
This issue has continued to arise, but the number of cases in which the accused has been able to gain access to the complainant’s private records fell dramatically, thanks to those Criminal Code provisions.
Next step forward
When they were written, the Criminal Code provisions had in mind the kinds of situations described above: records held by a third party such as a therapist or sexual assault centre. They did not speak to situations where the private records were already in the hands of the accused.
This issue arose in the early 2000 in a case in which the leader of a religious cult, who had been charged with sexually assaulting the two daughters of one of his adherents, sought to enter the diary of one of them at his criminal trial. He had the diary in his possession, so he did not need to bring an application to have it produced to him.
This illustrated a clear and unintended gap that could potentially lead to further harm to complainants if the abuser – perhaps in anticipation of future criminal proceedings – stole items such as the complainant’s journals and diaries. Advancing technologies made it even easier for an abuser to become aware of and/or steal emails, text messages and other communications in which the complainant may have talked about the sexual assault.
In 2018, the federal government passed Bill C-51, which expanded the privacy of records provisions to include any records that the accused might already have and extended the definition of records to include electronic communications between the survivor and others, including the accused.
Most recent step forward
Naturally, it did not take long for accused persons to challenge the constitutionality of these revised provisions. Last week’s Supreme Court of Canada decision addressed such challenges.
In a 6 – 3 majority decision, the Court upheld the privacy provisions, noting that the right of the accused to a fair trial does not mean they get “the most advantageous trial possible” and that “ambushing complainants” with their private records is both unfair and not helpful in the court’s search for truth.
Joanna Birenbaum, the lawyer for the Barbra Schlifer Commemorative Clinic, one of the many intervenors in the case, said of the decision: