Top court upholds expanded rape shield protections

Sexual assault complainants cannot be “ambushed” with texts, documents or recordings containing private information and can oppose their admissibility at trial, the Supreme Court of Canada ruled Thursday, upholding a significant expansion of rape shield provisions.

“The accused is not entitled to proceed with an unfair or irrelevant cross-examination or ambush the complainant,” said the decision. “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.”

Joanna Birenbaum, who represented the Barbra Schlifer Commemorative Clinic at the Supreme Court hearing, argued that the legislation protected complainants from being humiliated and degraded during trials by irrelevant private records kept by the accused that could include discussions of mental health diagnoses, past sexual abuse, substance use and sexual content.

Birenbaum praised the decision as yet another step in the right direction by the top court.

“The Supreme Court of Canada has recognized that blindsiding complainants with private information does not enhance the truthseeking function of the criminal trial,” she said.

In 2018, Parliament introduced new rules requiring the accused in sexual assault cases to produce private records involving the complainant in advance of trial so a judge can determine if they are admissible. That could include photos, messages and documents that contain information “integral to the complainant’s overall physical, psychological or emotional wellbeing.”

If a judge finds the evidence could be admissible, the complainant is entitled to a court-appointed lawyer to make arguments.

The legislation was challenged for impairing an accused’s right to a fair trial by giving away the accused’s defence to the Crown and complainant in advance, allowing a complainant to tailor her testimony at trial — an argument that the Supreme Court of Canada did not agree with.

The new rules were proposed in a 2012 Senate report and imposed after the high-profile acquittal of disgraced former CBC radio host Jian Ghomeshi on four counts of sexual assault and one count of choking in 2016. While cross-examining a complainant during the trial, Ghomeshi’s lawyer revealed a so-called “love letter” between the complainant and Ghomeshi to contradict her evidence.

The complications of the new legislation were exposed recently in the trial of Hedley lead singer Jacob Hoggard, when he suddenly sought to play an emotional phone call he secretly recorded between him and a woman he was ultimately found guilty of sexually assaulting.

Hoggard’s defence lawyer said she only decided to play the call after hearing the testimony of the complainant. The lawyer was criticized by the judge for trying to do an “end-run” around the legislation by telling the court about it for the first time during cross-examination instead of before trial, and effectively tying her hands.

The call was ruled not to have been a private record and was played to the jury, but the Crown said the last-minute disclosure placed the complainant in an impossible position — to choose whether to hire a lawyer or to complete her cross-examination and return home.

On Thursday, six Supreme Court justices said the new procedure is constitutional because the accused is not prevented from arguing the evidence is admissible. Meanwhile, the screening process means complainants can be protected from judges and juries relying on rape myths and stereotypes.

The court also found that it does not violate fair trial rights for complainants to know about the records and make submissions on their admissibility. Instead it allows complainants to provide a “unique perspective” on how admitting the record would impact their dignity and privacy.

To determine if a record qualifies, a judge would look at who the information was shared with, and when and why it was shared to determine if there is a reasonable expectation of privacy. The court also settled a hotly contested debate over whether a complainant has a reasonable expectation of privacy in texts and communications sent to the accused. They can, the court said.

“The fact that they may have chosen the wrong person to trust” does not determine if they have a privacy interest, the court said.

The court also found that advance notice to complainants means they will be better equipped to respond honestly during cross-examination rather than being blindsided. And if the records are admitted, complainants can still be cross-examined about tailoring their evidence, the court said.

Lawyer Dawne Way, who represented a complainant at the hearing said the decision means her client is entitled to a “voice at the table” on issues critically important to her dignity and privacy, and reaffirms that complainants must be treated with respect throughout the criminal process.

She hopes the court’s decision will reduce the “tsunami” of litigation stemming from the legislation by making it clear that if a record has the potential to qualify, an application should be made, and that it should be done before a trial starts barring exceptional circumstances.

Defence lawyer Daniel Brown, who represented the Criminal Lawyers’ Association at the Supreme Court hearing, said Thursday’s decision makes it clear the legislation is here to stay, but still leaves open many questions about the actual procedure, including when a record qualifies and at what point in the process the complainant has a right to participate.

“The absence of clear guidance means these trials are going to consume a huge amount of judicial, court and prosecutorial resources and are going to be extremely expensive for accused people to litigate going forward,” he said.

‘‘ 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.

SUPREME COURT DECISION