Defending Sexual Violence Part 2: Admissibility of Defence records under s. 278 post JJ
By Jocelyn Heaton, Articling Student
In 2018, Parliament introduced ss. 278.92 to 278.94 into the Criminal Code, with the purpose of protecting the interests of complainants in private records in possession of the accused. Most commonly this includes text messages, social media posts, diary/journal entries, medical/therapeutic records, and more. 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, as well as procedures that provide complainants with additional participation rights in the admissibility proceedings.
While this legislation has been highly criticized by defence lawyers, citing concerns over the impacts on the accused person's ability to make full answers and defence, the legislation was upheld as constitutional by the Supreme Court in R v JJ, 2022 SCC 28[1], which was a BC case that was combined with a complainant's appeal from the Ontario case of R v Reddick, 2020 ONSC 7156[2].
While the concerns that have been raised remain pertinent within the defence bar, the legislation seems as though it is here to stay, and the defence must be prepared to follow its procedure in relevant cases. What follows is a brief primer on the steps involved in bringing an application under this legislation, however, the area of law is complex and still evolving and this should not be interpreted as a complete summary of all aspects and factors.
The amendments that introduced s. 278 applies beyond sexual violence cases, but their applicability in such cases is extremely common, and something that defence counsel ought to canvass early and thoroughly with their client. If it becomes apparent that there is evidence in the accused’s possession that may be considered a record, then section 278 of the Criminal Code will require an admissibility proceeding.
The admissibility proceedings take place in various stages. As a preliminary matter, the court will consider whether the evidence in question is a “record” as defined by the Criminal Code. While many things, as previously listed, have been found to be records, there is still significant ambiguity and room for interpretation at this stage. If something is not a ‘record’ and is not otherwise inadmissible by other rules of evidence, then that evidence can be admitted without continuing with the admissibility proceedings. If the evidence is a record, then we enter Stage 1.
At Stage 1, the court considers whether the evidence is capable of being admitted. The complaint does not have participatory rights at this stage. The Criminal Code outlines a list of factors to be considered at this stage, including the rights of the accused, societal interests, and any potential for prejudice against the complainant. Additionally, if the subject matter of the record relates to prior sexual activity or history, s. 276 of the Criminal Code is also engaged. Please refer to Part 1 for more information on this aspect of the legislation. If the court deems the record capable of admissibility, the matter proceeds to Stage 2.
At Stage 2, the court will determine if the record should be admitted at trial. The complainant does have participatory rights at this stage and is often represented by complainant's counsel. 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, which once again is considered in light of enumerated factors in the Criminal Code. If the court denies the application to admit the record at trial, the defence cannot rely on it or its contents at trial, despite its potential relevance.
Defence counsel, having lost preliminary hearing eligibility for many sexual violence offences through Criminal Code amendments, are dealing with increasingly complicated legal landscapes when defending sexual violence allegations, and the s. 278 regime is now another barrier, despite the Supreme Court finding in JJ that the legislation is constitutional.
Much like the s. 276 regime discussed in Part 1, the reality remains that s. 278 is another instance of slowly carving away accused persons rights to full answer and defence, mandating production of defence evidence to the Crown and complainant, which is not otherwise expected in other areas of criminal law, and creating increasingly costly legal fees that come with these complicated admissibility proceedings.
[1] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19428/index.do
[2] https://www.canlii.org/en/on/onsc/doc/2020/2020onsc7156/2020onsc7156.html?searchUrlHash=AAAAAQAHUmVkZGljawAAAAAB&resultIndex=2
