R. v. J.J., 2022 SCC 28, 2020 BCSC 349 (39133) (39516)

“In 2018, Parliament introduced ss. 278.92 to 278.94 (the “impugned provisions”) into the Criminal Code in an effort to remove barriers that have deterred victims of sexual offences from coming forward. These provisions were designed to protect the interests of complainants in their own private records when an accused has possession or control of such records and seeks to introduce them at a hearing in their criminal proceeding. Specifically, the provisions create procedures and criteria to assist a judge in deciding whether the records should be admitted, balancing the rights and interests of the accused, the complainant, and the public. Some of the procedural elements of these provisions also apply to s. 276 evidence applications, governing the admissibility of evidence of complainants’ prior sexual activity or history. Overall, the legislative changes created a new procedure for screening complainants’ private records in the hands of the accused, to determine whether they are admissible as evidence at trial, and a new procedure to provide complainants with additional participation rights in admissibility proceedings.

The procedure set out in the impugned provisions operates in two stages. At Stage One, the presiding judge reviews the accused’s application to determine whether the evidence sought to be adduced is capable of being admissible. For s. 276 evidence applications, if the judge determines that the proposed evidence is not s. 276 evidence, the application will terminate. If the proposed evidence is s. 276 evidence but the judge concludes that it is not capable of being admissible, the application will be denied. If the s. 276 evidence is capable of being admissible, the application proceeds to a Stage Two hearing. For applications under the record screening regime, if the judge determines that the proposed evidence is not a “record” under s. 278.1, the application will terminate. If the proposed evidence is a “record” but the judge concludes that it is not capable of being admissible, the application will be denied. If the evidence is a “record” and it is capable of being admissible, the application proceeds to a Stage Two hearing. At the Stage Two hearing, the presiding judge decides whether the proposed evidence meets the tests for admissibility. For s. 276 evidence applications, the governing conditions are set out in s. 276(2), as directed by s. 278.92(2)(a) and in accordance with the factors listed in s. 276(3). For private record applications, the test for admissibility is whether the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This determination is made in accordance with the factors listed in s. 278.92(3). Complainants are permitted to appear at the Stage Two hearing and make submissions, with the assistance of counsel, if they so choose. By way of pre‑trial applications, two accused, J and R, challenged the constitutionality of ss. 278.92 to 278.94, arguing that Parliament had jeopardized three fundamental rights guaranteed to accused persons under the Charter, namely: the right to silence and the privilege against self‑incrimination under ss. 7 and 11(c); the right to a fair trial under ss. 7 and 11(d); and the right to make full answer and defence under ss. 7 and 11(d). In J’s case, the application judge held that one provision of the record screening regime was unconstitutional; the Crown appeals that ruling, and J cross‑appeals, contesting the constitutionality of the regime in its entirety. In R’s case, the complainant S, who was granted the right to be added as a party by the Court, appeals from the application judge’s ruling that impugned the constitutionality of the regime as a whole, effectively preventing her from participating in the record screening process.”

The SCC held (6:3) sections 278.92 to 278.94 of the Criminal Code are constitutional in their entirety, as they apply to both s. 276 evidence applications and private record applications; Crown’s appeal allowed; J’s cross‑appeal dismissed; S’s appeal allowed; and application judges’ rulings quashed.

The Chief Justice and Justice Moldaver wrote as follows (at paras. 127, 129, 133, 138-139, 150, 163, 169-170, 184, 191):

“Section 278.92(2)(b) establishes that private records are only admissible if “the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”. Similarly, this admissibility threshold is one of the conditions for s. 276 evidence, codified in s. 276(2)(d) (as directed now by s. 278.92(2)(a)) and constitutionally upheld in Darrach.

The record screening regime embodies the fundamental principle governing the law of evidence: “. . . relevant evidence should be admitted, and irrelevant evidence excluded, subject to the qualification that the value of the evidence must outweigh its potential prejudice to the conduct of a fair trial” (Seaboyer, at p. 631). An accused’s right to a fair trial does not include the unqualified right to have all evidence in support of their defence admitted. Many exclusionary rules exist in Canadian criminal law to prevent the Crown or defence from distorting the truth-seeking function of the trial process, which is an integral component of trial fairness (Mills, at para. 74).

In sum, the right to make full answer and defence will only be violated if the accused is prevented from adducing relevant and material evidence, the probative value of which is not outweighed by its prejudicial effect. Section 278.92 does no such thing. With respect to private record applications, the admissibility threshold in s. 278.92(2)(b) and the factors in s. 278.92(3) require the judge to weigh the potential prejudice arising from the proposed evidence, including whether it is myth-based or unjustifiably intrusive on a complainant’s privacy, against the extent of its probative value. It follows, in our view, that the admissibility threshold in s. 278.92(2) does not breach ss. 7 or 11(d) of the Charter.

… [T]he relevant factors for discerning the purpose of the provisions are the following. First, the legislative history demonstrates that the record screening regime was intended to fill a legislative gap to ensure statutory protection of complainants’ privacy and dignity, where the accused is in possession or control of their highly private records. Second, the legislative text and scheme — including the specification of “personal information for which there is a reasonable expectation of privacy” and the factors set out in s. 278.92(3) — provides further guidance on the relevant objectives.

Taking these factors into account, we conclude that Parliament enacted this regime with a view to (1) protecting the dignity, equality, and privacy interests of complainants; (2) recognizing the prevalence of sexual violence in order to promote society’s interest in encouraging victims of sexual offences to come forward and seek treatment; and (3) promoting the truth-seeking function of trials, including by screening out prejudicial myths and stereotypes. Section 278.92 is not overbroad relative to this legislative purpose because it does not go further than is reasonably necessary to achieve these three goals (Safarzadeh-Markhali, at para. 50).

The record screening regime places no burden on the accused to submit an affidavit and undergo cross-examination. If an affidavit is submitted in support of the application, “[i]t need not be the accused [themselves] who presents evidence; it can be anyone with relevant information who can personally testify to its truth” (Darrach, at para. 53). Nor does it require the accused to testify. The accused is simply not compelled to be a witness within the meaning of s. 11(c) by the operation of ss. 278.92 to 278.94.

In sum, to encourage the reporting of sexual offences and promote the truth-seeking function of a trial, the record screening regime is designed to catch records which both implicate complainants’ privacy and dignity in sexual offence cases and which have the potential to engage truth-distorting myths. Interpreted properly, the class of records subject to screening is tailored to Parliament’s objective, and the logic underlying the record screening regime does not apply more broadly to other types of defence evidence. It is permissible to require screening of this evidence because of the potential prejudice that could result from its admission.

While an application must disclose the evidence at issue and its relevance to the case, this is not tantamount to revealing the entire defence theory in response to which the Crown could, hypothetically, tailor its prosecution. The application process is limited to the admissibility of the highly private records sought to be adduced. The guilt or innocence of the accused is not at issue in the record screening regime; the proceedings relate solely to the admissibility of a particular class of evidence sought to be adduced by the accused. The risk of the Crown co-opting this evidence to strengthen its case is accordingly limited. As such, the defence cannot be said to be assisting the Crown’s prosecution.

In conclusion, we are satisfied that s. 278.93 is constitutional under ss. 7 and 11(d) of the Charter. First, the accused is not compelled to testify and, therefore, s. 11(c) of the Charter is not engaged. Second, there is no absolute rule against defence disclosure. The screening of private records is appropriate because the evidence has a high potential for prejudice; it does not constitute a disguised form of self-incrimination.

Ultimately, the right to a fair trial does not guarantee “the most advantageous trial possible from the accused’s perspective” nor does it guarantee “perfect justice” (R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 28; see also O’Connor, at para. 193). Rather, the guarantee is fundamentally fair justice, which requires consideration of the privacy interests of others involved in the justice system (O’Connor, at paras. 193-94, per McLachlin J.). Even if it would be ideal from the accused’s perspective to cross-examine complainants on “every scintilla” of information in an attempt to discredit or shake them, the Charter guarantees no such right (O’Connor, at paras. 193-94). In the present case, the impugned provisions strike a balance that protects fundamental justice for accused persons and complainants.

In the absence of a finding that ss. 278.92 to 278.94 of the Criminal Code breach either ss. 7 or 11(d) of the Charter, it is unnecessary for us to canvass s. 1 of the Charter. And as discussed earlier, there are no s. 11(c) issues at play.”