Canada SC


[6:3 verdict] Canada Supreme Court: In the recent matter, the Canada Supreme Court, deliberated upon the matter of expanded rape laws that were implemented in 2018 into the Criminal Code to remove barriers that have deterred victims of sexual offences from coming forward. The 9- Judge Bench of the Court comprising, Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer, and Jamal JJ, with a ratio of 6: 3, held that the amendments introduced to the criminal code are constitutional and if required by the Judge, to deliberate upon the facts, private documents of a complainant or an accused can be used in a trial for balancing the rights and interests of the accused, the complainant, and the public.

The majority observed that “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.” Further it was added that, “the guarantee is fundamentally fair justice, which requires consideration of the privacy interests of others involved in the justice system”

Facts and contentions of the case

J.J and Shane Reddick were accused of sexual assault in different cases in Colombia and Ontario respectively. The two accused challenged the constitutionality of Sections 278.92 to 278.94 of the Criminal Code (Code), arguing that the Parliament had jeopardized three fundamental rights guaranteed to accused persons under the Canadian Charter of Rights and Freedom (Charter), namely:

  1. the right to silence and the privilege against self-incrimination under ss. 7 and 11(c);

  2. the right to a fair trial under ss. 7 and 11(d); and

  3. 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 appealed that ruling, and J cross-appealed, contesting the constitutionality of the regime in its entirety. In Shane Reddick's case, complainant S challenged the application judge's interlocutory constitutional ruling, which effectively prevented her from participating in the record screening process and declared the regime unconstitutional in its entirety. The complainant was granted the right to be added as a party in the record screening process by the Supreme Court.

The Law in question

Criminal Code provisions under Sections 278.92 to 278.94 of the Criminal Code set out a record screening regime to determine the admissibility of records relating to the complainant that is in possession or control of the accused.

The Canadian Charter of Rights and Freedom, under Sections 7 and 11 guarantees the right to silence and the privilege against self-incrimination, the right to a fair trial, and the right to make full answer and defence to the accused.

The Majority Ruling

The opinion of the Court was delivered by Wagner C.J. and Moldaver J in which Karakatsanis, Martin, Kasirer, and Jamal JJ., joined. The majority made the following observations regarding the constitutionality of the “record screening process”-

Admissibility of the record

The majority deliberated that the admissibility threshold in s. 278.92 does not impair fair trial rights as it does not breach ss. 7 or 11(d) of the Charter. The accused's right to a fair trial does not include the unqualified right to have all evidence in support of their defence admitted. The admissibility threshold of the record screening regime establishes that private records are only admissible if the evidence is relevant to an issue at trial and has a significant probative value. Therefore, a balance between the rights and interests of the accused, the complainant, and the public is maintained.

The majority based its following observations that the Stage One application process in s. 278.92 is not overbroad. As the definition of “record” in s. 278.1 which supports the constitutionality of s. 278.92 of the Code, includes records that come within the enumerated categories of evidence or contain information of an intimate and highly personal nature of the complainant. Hence such records that meet the admissibility threshold for screening are adduced at a trial.

Therefore, the majority opined, Private records are analogous to s. 276 evidence, as they can also implicate myths that are insidious and inimical to the truth-seeking function of the trial. Like s. 276 evidence, private records encroach on the privacy and dignity of complainants. They too require screening to ensure trial fairness under Sections 7 and 11(d) of the Charter.

Participation of Complainant in trial

The majority deliberated that the complainant’s participation provisions in Section 278.94 in the record screening process do not violate the accused's fair trial rights protected by Sections 7 and 11(d) of the Charter. The Court stated that firstly, the right to a fair trial does not guarantee the most advantageous trial possible, and requires consideration of the privacy interests of others involved in the justice system. Secondly, there is no absolute principle that disclosure of defence materials inevitably impairs cross-examination and trial fairness, and providing advance notice to complainants that they may be confronted with highly private information is likely to enhance their ability to participate honestly in cross-examination. Therefore, the participation of complainants is justified because they have a direct interest in records, for which they have a reasonable expectation of privacy, which are adduced in open court, and hence, their contributions are valuable in the trial.

The Dissent

Justice Brown found the record screening process unconstitutional for private records but constitutional for evidence of past sexual activity. He stated that the record screening regime is overbroad as the term ‘record' under the process is not limited to records created in a confidential context, nor is it limited to materials containing information of an intimate or highly personal nature.

“The one–sided nature of the obligations shows that it is not rationally connected to its objective as purported concerns for a complainant's privacy, dignity and equality interests, confidence in the justice system and integrity of the trial process are cast aside when those private records are sought to be adduced by the Crown. The regime is not the least drastic means of achieving the legislative objective. The broad definition of “record”, combined with the heightened admissibility threshold, will result in the exclusion of defence evidence that is not prejudicial and is highly relevant. A narrower regime could further the goals of empowering and protecting complainants in a real and substantial manner, while impairing the accused's rights to a lesser extent.”

Justice Rowe agreed with Justice Brown, and explained how to make a decision when sections 7 and 11 of the Charter are brought up at the same time. He stated that accused persons must establish not only the content of the principle of fundamental justice that they allege is violated, but also that it is not outweighed by other considerations. Such an approach undermines the purpose of the broad protection of the right to a fair trial under Section 11 and the purpose of Section 1 to hold the state to the burden of proof to show that any limit is demonstrably justified in a free and democratic society.

Justice Côté agreed with Justices Brown and Rowe that the record screening process is unconstitutional and the analytical approach in respect of Section 7 of the Charter respectively. However, he disagreed with the analyses and the conclusions of both the majority and Brown J. on the interpretation of “record” and “adduce”. He stated that adopting a narrow category–based approach to the interpretation of “record” avoids many of the absurd results that inevitably follow from a broad interpretation. A broad interpretation will result in an absurd two–tiered system of admissibility that favours the Crown and will lead to the absurd consequence of having the record screening regime create a distinction between information exchanged orally and information exchanged through electronic means. With respect to “adduce”, given that the record screening regime is focused on physical records rather than on a category of evidence, its plain meaning should be adopted, as it relates directly to the physical record.


With their afore-stated observations the majority concluded that Sections 278.92 to 278.94 of the Code are constitutional in their entirety, as they apply to both s. 276 evidence applications and private record
applications. Hence, the Court opined that the Crown's appeal should be allowed, J's cross-appeal to be dismissed, S's appeal allowed for participating in the trial and the application judges' rulings quashed.

[R v. J.J., 2022 SCC 28, decided on 30-06-2022]

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