355
Cross-Examination
onPrivate
Records:
Section.
12
I. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Overview...........................................
B. Development of the Legislation ........................
II. Interpretation of the Legislation..............................
A. Denition of “Record” ................................
B. Denition of “Adduce”................................
C. Screening Regime Does Not Apply to the Crown...........
D. Timing of the Application .............................
E. Scope of Complainant Participation .....................
III. Threshold for Admissibility..................................
IV. Application Process........................................
A. Stage One..........................................
B. Stage Two ..........................................
C. Publication Ban .....................................
V. Additional Issues..........................................
A. Motions for Directions................................
B. Crown Use of Evidence Disclosed in Application Record ....
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356 Prosecuting and Defending Sexual Oence Cases
I. Background
A. Overview
Sections278.92-94 of the Criminal Code1 set out a scheme under which an accused
must apply to “screen” any evidence they intend to adduce at trial if that evidence
consists of “private records” relating to the complainant for several enumerated sex-
ual oences listed in section278.92(1)(a) of the Criminal Code. This is a change from
the previous law, under which the accused could introduce at trial any evidence in
their possession governed only by the general rules of admissibility—except evidence
of the other sexual history of the complainant, which was governed by section276 of
the Criminal Code.
This “private records screening regime” was introduced in 2018 by Parliament in
Bill C-51,2 in response to a Senate Report setting out concerns with the conduct of
sexual oence trials and their eect on complainants, and potential complainants, in
sexual oence cases.3
Following the passing of the legislation, there was a great deal of debate over
whether the law was desirable, whether it was constitutional, and how it was to be
interpreted in practice. The Supreme Court of Canada’s (SCC) decision in Rv JJ4
resolved many of these questions. There remains, however, many interpretive and
constitutional debates.
The Court held that the “private records screening regime” struck an appropriate
balance between the fair trial rights of accused persons and the interests of society—
including the interests of complainants—in ensuring that sexual assault proceedings
respect the privacy and dignity of trial participants. The legislation aimed to counter-
balance the history of defence lawyers improperly “whacking” or assassinating the
character of complainants in sexual oence proceedings.
The legislation, which can be complex in practice, tasks the Crown, defence coun-
sel, and judges with the burden of applying the regime in a manner that is fair, e-
cient, and workable. While the SCC’s guidance in JJ provided significant direction
on many of the key issues, several areas of uncertainty remain, and more are likely
to emerge as the jurisprudence develops. As a result, litigating a case involving the
private records screening regime provides great scope for advocacy through long-term
1 RSC 1985, c C-46.
2 An Act to amend the Criminal Code and the Department of Justice Act and to make consequential
amendments to another Act, 1st Sess, 42nd Parl, 2018 (assented to 13 December 2018), SC 2018,
c 29.
3 See Standing Senate Committee on Legal and Constitutional Aairs, Statutory Review on
the Provisions and Operation of the Act to amend the Criminal Code (production of records in sex-
ual ofence proceedings): Final Report (Ottawa: Government of Canada, 2012), online (pdf):
<https://publications.gc.ca/collections/collection_2013/sen/yc24-0/YC24-0-411-20-eng
.pdf> [2012 Senate Report], discussed further below.
4 2022 SCC 28.
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Chapter Cross-Examination onPrivate Records: Section. 357
strategizing, careful attention to the purposes of the legislation, and creative thinking
on unresolved issues for both Crown and defence.
B. Development of the Legislation
Parliament introduced the private records screening regime through Bill C-51, which
was passed in December 2018. This legislation was part of a series of “ameliorative
eort[s] by Parliament to remove the barriers that have deterred complainants from
coming forward” in sexual oence cases.5 Its purpose was to protect complainants
in sexual oence cases from the unwarranted introduction of their private records
into evidence at trial. Such a legislative move requires a careful balance. The cross-
examination of a complainant in any prosecution requires the court to consider com-
peting interests such as witness privacy and dignity, the search for truth, and the
constitutional rights of the accused to make full answer and defence. In sexual oence
cases, the stakes may be heightened on both sides of the equation compared to other
kinds of oences.
1. Balancing Interests
The accused has the right to cross-examine Crown witnesses without significant and
unwarranted constraint.6 The SCC has recognized that the right to cross-examine
witnesses in criminal cases is
a faithful friend in the pursuit of justice and an indispensable ally in the search for truth.
At times, there will be no other way to expose falsehood, to rectify error, to correct distor-
tion or to elicit vital information that would otherwise remain forever concealed.7
Cross-examination is, therefore, a key tenet of the right to make full answer and
defence and the right to a fair trial, and it is protected by both sections 7 and 11(d) of
the Canadian Charter of Rights and Freedoms.8
It is neither a goal of cross-examination, nor a legitimate constraint on its
scope, that a witness remains comfortable or happy during the process. The cross-
examination of any witness about sensitive and intimate issues will always be unpleas-
ant for the witness. Sexual oence trials by their nature implicate such sensitive and
intimate issues—for both the complainant and the accused person. As the SCC has
observed, “trials are not—nor are they meant to be—tea parties.”9 The potential
5 Rv JJ, supra note 4 at para 3.
6 Rv Lyttle, 2004 SCC 5 at para 2.
7 Ibid at para 1 (emphasis in original).
8 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[the Charter]. Rv NS, 2012 SCC 72 at para 24; Rv RV, 2019 SCC 41 at para 39.
9 Groia v Law Society of Upper Canada, 2018 SCC 27 at para 3, cited in Rv JJ, supra note 4 at
para 277 (Brown J, in dissent).
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