Her Majesty The Queen Appellant/Respondent on cross-appeal v. J.J., 2022 SCC 28

SUPREME COURT OF CANADA Citation: R. v. J.J., 2022 SCC 28 Appeals Heard: October 5 and 6, 2021 Judgment Rendered: June 30, 2022 Dockets: 39133, 39516 Between: Her Majesty The Queen Appellant/Respondent on cross-appeal and J.J.

Respondent/Appellant on cross-appeal - and - Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of Manitoba, Attorney General of Saskatchewan, Attorney General of Alberta, West Coast Legal Education and Action Fund, Women Against Violence Against Women Rape Crisis Centre, Barbra Schlifer Commemorative Clinic, Criminal Trial Lawyers’ Association, Criminal Lawyers’ Association (Ontario), Canadian Council of Criminal Defence Lawyers and Independent Criminal Defence Advocacy Society Interveners And Between: A.S.

Appellant and Her Majesty The Queen and Shane Reddick Respondents - and -

Attorney General of Canada, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, Criminal Lawyers’ Association (Ontario), Barbra Schlifer Commemorative Clinic, Women’s Legal Education and Action Fund Inc., Criminal Defence Lawyers Association of Manitoba, West Coast Legal Education and Action Fund and Women Against Violence Against Women Rape Crisis Centre Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Joint Reasons for Judgment : (paras. 1 to 196) Wagner C.J. and Moldaver J. (Karakatsanis, Martin, Kasirer and Jamal JJ. concurring) Reasons Dissenting in Part : (paras. 197 to 320) Brown J. Reasons Dissenting in Part : (paras. 321 to 438) Rowe J. Reasons Dissenting in Part : (paras. 439 to 491) Côté J. Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports . Her Majesty The Queen Appellant/Respondent on cross-appeal v. J.J.

Respondent/Appellant on cross-appeal and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of Manitoba, Attorney General of Saskatchewan, Attorney General of Alberta, West Coast Legal Education and Action Fund,

Women Against Violence Against Women Rape Crisis Centre, Barbra Schlifer Commemorative Clinic, Criminal Trial Lawyers’ Association, Criminal Lawyers’ Association (Ontario), Canadian Council of Criminal Defence Lawyers and Independent Criminal Defence Advocacy Society Interveners - and - A.S. Appellant v.

Her Majesty The Queen and Shane Reddick Respondents and Attorney General of Canada, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, Criminal Lawyers’ Association (Ontario), Barbra Schlifer Commemorative Clinic, Women’s Legal Education and Action Fund Inc., Criminal Defence Lawyers Association of Manitoba, West Coast Legal Education and Action Fund and Women Against Violence Against Women Rape Crisis Centre Interveners Indexed as: R. v.

J.J. 2022 SCC 28 File Nos.: 39133, 39516. 2021: October 5, 6; 2022: June 30.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the supreme court of british columbia on appeal from the ontario superior court of justice Constitutional law — Charter of Rights — Fundamental justice — Right to silence — Self-incrimination — Right to fair hearing — Right to make full answer and defence — Evidence — Sexual offences — Criminal Code provisions setting out record screening regime to determine admissibility of records relating to complainant that are in possession or control of accused — Whether record screening regime infringes accused’s Charter-protected rights — If so, whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11(c) , 11(d) — Criminal Code, R.S.C. 1985, c.

C-46, ss. 276 , 278.1 , 278.92 to 278.94 . 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.

Held (Côté, Brown and Rowe JJ. dissenting in part): 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. The Crown’s appeal should be allowed, J’s cross-appeal dismissed, S’s appeal allowed and the application judges’ rulings quashed. Per Wagner C.J. and Moldaver , Karakatsanis, Martin, Kasirer and Jamal JJ.: Before determining the constitutionality of the impugned provisions, it is necessary to interpret them.

First, it must be determined what qualifies as a “record” for private record applications, using s. 278.1 as the starting point. The definition of “record” creates two distinct groups: (1) records that fall within enumerated categories; and (2) records that do not fall within the enumerated categories but otherwise contain personal information for which there is a reasonable expectation of privacy. Should an accused wish to tender an enumerated record, they must proceed with a s. 278.93(1) application, regardless of the specific content of the record.

Non-enumerated records are those which contain personal information about complainants for which they have a reasonable expectation of privacy. These records contain information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being. A presiding judge should consider both the content and context of the record to determine whether a record contains such information. If it does, the accused must proceed with a s. 278.93(1) application.

Second, a purposive approach to the meaning of the word “adduce” should be adopted to include references to the content of a record made in defence submissions or the examination and cross-examination of witnesses. This

interpretation is not limited to circumstances where evidence is entered as an exhibit. Third, the scope of complainant participation has not been comprehensively defined in the impugned provisions. Where the presiding judge decides to hold a Stage One hearing to determine whether the record is capable of being admissible, the complainant’s participatory rights do not apply. Both the complainant and their counsel can attend the entire Stage Two hearing and make oral and written submissions to facilitate meaningful participation. The complainant’s right to make submissions does not extend to the trial itself.

Further, the complainant does not have the right to cross-examine the accused in the Stage Two hearing, either directly or through counsel. The complainant also may not lead evidence at the Stage Two hearing. Fourth, the timing of applications is specified in s. 278.93(4), which requires that applications be brought “seven days previously”. Properly interpreted, “previously” refers to the Stage One inquiry where the presiding judge determines whether a Stage Two hearing is necessary.

The Crown and clerk of the court must have at least seven days’ notice of the application before it is reviewed by the judge at Stage One. However, s. 278.93(4) states that the judge can exercise their discretion to truncate the notice period in the “interests of justice”. While the statutory language does not specify that these applications must be conducted pre-trial, this should be the general practice. Mid-trial applications should not be the norm. The appropriate framework for the Charter analysis in the instant case is based on the Court’s prior jurisprudence, which recognized that both ss. 7 and 11(

d) of the Charter are inextricably intertwined. These rights should be assessed together where they are co-extensive and separately where a concern falls specifically under one of the rights. As s. 7 should not be used to limit the specific guarantees in ss. 8 to 14 of the Charter , the conclusion that the ss. 7 and 11(

d) analysis is co-extensive in the instant case should not be misconstrued as an internal limiting of s. 11(

d) using s. 7 principles. Further, this approach should not be interpreted as a principle of broader application when accused persons raise both ss. 7 and 11 (d). The appropriate methodology for assessing multiple Charter breaches alleged by the accused may depend on the factual record, the nature of the Charter rights at play, and how they intersect; this methodology is highly context- and fact-specific.

A claimant must follow two analytical steps to establish that a law breaches s. 7 of the Charter : they must demonstrate that (1) the impugned provisions result in the deprivation of life, liberty or security of the person; and that (2) the deprivation violates principles of fundamental justice. Because both accused face the possibility of imprisonment in the instant appeals, the right to liberty in the first stage of the s. 7 analysis is engaged. Accordingly, the s. 7 analysis must focus on the second analytical step — the alleged

breaches of the principles of fundamental justice. The principles of trial fairness and the accused’s right to make a full answer and defence are expressions of procedural principles of fundamental justice under s. 7, and are also embodied in s. 11(d). The key principles of s. 11(

d) that apply are that (1) an individual must be proven guilty beyond a reasonable doubt; (2) the state must bear the burden of proof; and (3) criminal prosecutions must be carried out in accordance with due process.

Section 11(

d) does not guarantee the most favourable procedures imaginable for the accused, nor is it automatically breached whenever relevant evidence is excluded. The broad principle of trial fairness is not assessed solely from the accused’s perspective; fairness is also assessed from the point of view of the complainant and community. While the emphasis on an accused’s fair trial rights under s. 7 should be primary, the right to make full answer and defence and the right to a fair trial are considered from the perspectives of the accused, the complainant, the community and the criminal justice system at large.

Any concerns regarding self-incrimination due to defence disclosure can be addressed through the concepts of full answer and defence and trial fairness rights embodied in the ss. 7 and 11 (

d) analysis. Since the accused is not compelled to testify, s. 11(

c) of the Charter is not engaged. 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 record screening regime embodies the fundamental principle governing the law of evidence — i.e., relevant evidence should be admitted, and irrelevant evidence excluded, subject to the qualification that the probative value of the evidence must outweigh its potential prejudice to the conduct of a fair trial. 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 significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This is also one of the conditions for s. 276 evidence, which has been constitutionally upheld by the Court. Both regimes seek to protect complainants against harmful myths and stereotypes.

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. The admissibility threshold in the record screening regime does not give rise to such a violation. Furthermore, the Stage One application process in s. 278.92 is not overbroad. Overbreadth must be understood relative to the legislative purpose.

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.

Parliament enacted the record screening regime with a view to protecting the dignity, equality, and privacy interests of complainants; 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 promoting the truth-seeking function of trials, including by screening out prejudicial myths and stereotypes. The procedure for the record screening regime is not overbroad relative to this legislative purpose because it does not go further than is reasonably necessary.

As well, the definition of “record” in s. 278.1 supports the constitutionality of s. 278.92 because it will only capture materials that come within the enumerated categories, or that otherwise contain information of an intimate and highly personal nature that is integral to the complainant’s overall physical, psychological, or emotional well-being. The screening of records that meet this definition is rationally connected to Parliament’s objective of protecting the privacy and dignity interests of complainants. This narrow definition includes only evidence that has implications for complainants’ dignity.

There will be cases where it is unclear whether evidence falls into the definition. But this, alone, does not render the regime overbroad. Also, just because a record is subject to screening does not mean it will be excluded at trial. Records that meet the admissibility threshold for screening can still be adduced at trial.

Further, requiring an accused to bring an application to adduce materials that might contain information of an intimate and highly personal nature is consistent with the objective of the regime, since it respects both the accused’s fair trial rights and the complainant’s privacy and equality interests. Likewise, the Stage One application process, set out in s. 278.93, is constitutional. With respect to ss. 7 and 11 (d), the record screening regime does not require compelled defence disclosure in a manner that would violate an accused’s right to a fair trial.

First, there is no absolute rule against requiring the defence to disclose evidence to the Crown before the prosecution closes its case. Second, the record screening regime applies to a narrow set of evidence that implicates important interests of complainants in sexual offence cases and has the potential to create serious prejudice. 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 ss. 7 and 11(

d) of the Charter . The complainant participation provisions in s. 278.94, which apply to the s. 276 regime and to the record screening regime (at Stage Two), do not violate the accused’s fair trial rights protected by ss. 7 and 11(

d) of the Charter . There is no support for the assumption that the application deprives the accused of knowing the complainant’s initial reaction to the application evidence. There is no change from the previous regime, as the accused has not lost any right to Crown disclosure. In any event, there is no evidence that a complainant’s initial emotional reaction to the application is inherently valuable, outside of myth-based reasoning that relies on stereotypes.

If any new relevant information arises during the Crown’s consultation with the complainant, then it has a duty to disclose this information to the accused. The provisions granting participatory rights to complainants have not altered the Crown’s obligations. As well, the complainant participation provisions in s. 278.94 have no impact on prosecutorial independence. The Stage Two hearing does not violate the right to a fair trial by disrupting the general structure of a criminal trial as a bipartite proceeding between the Crown and the accused.

The participation of complainants is justified because they have a direct interest in whether their records, for which they have a reasonable expectation of privacy, are adduced in open court, and their contributions are valuable exactly because they are different from the Crown’s. This limited standing on the issue of admissibility, however, does not turn complainants or their counsel into parties, much less quasi-prosecutors, usurping the role of the Crown on the ultimate issue of guilt.

Complainants have no participatory rights in the trial itself; they are merely bringing their unique perspective on the impact that the admission of the evidence will have on their privacy and dignity, which is directly relevant to the issue of admissibility. The presiding judge remains the final arbiter on admissibility and is entitled to accept or reject a complainant’s submissions and weigh them against competing considerations.

Finally, complainant participation does not violate the accused’s right to cross-examine the complainant without significant and unwarranted restraint. First, the right to cross-examine is not unlimited, and the accused is not entitled to proceed with an unfair or irrelevant cross-examination or ambush the complainant. 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. The impugned provisions strike a balance that protects fundamental justice for accused persons and complainants.

Second, there is no absolute principle that disclosure of defence materials inevitably impairs cross-examination and trial fairness. C omplainant participation in a Stage Two hearing does not create such a risk; 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. Third, the accused will still be able to test a complainant’s evidence by comparing it to prior statements made to the police, which are available to the defence under the Crown’s disclosure obligations.

Fourth, complainants can be cross-examined on their access to the private record application; the accused can impugn the credibility and reliability of complainants by suggesting that they tailored their evidence to fit what they learned in the application. Finally, if there is a situation where advanced disclosure of the application to a complainant will genuinely negate the efficacy of cross-examination, the accused may choose to bring the application during cross-examination to avoid the risk of witness tainting.

The trial judge is then responsible for determining whether it is in the interests of justice to allow such an application. 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 to canvass s. 1 of the Charter . And there are no s. 11 (

c) issues at play. 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. Per Brown J. (dissenting in part): The record screening regime enacted under ss. 278.92 to 278.94 of the Criminal Code limits the accused’s rights under ss. 11(c) , 11(

d) and 7 of the Charter . These limits are disproportionate and cannot be demonstrably justified in a free and democratic society. Therefore, ss. 278.92 to 278.94 should be struck down, with immediate effect, but only as those sections relate to the record screening regime. This would preserve the existing s. 276 regime restricting admissibility of other sexual activity evidence and the definition of “record” in the ss. 278.1 to 278.91 regime for production of third-party records. The record screening regime ought to be returned to Parliament to be narrowed. First, there is agreement with Rowe J. with respect to the proper analytical framework to be applied where both s. 7 and s. 11(

d) of the Charter are raised. The jurisprudence on s. 7 and its relationship to other sections of the Charter , including s. 11 , is doctrinally obscure and methodologically incoherent, being the product of 40 years of accumulated judicial ad hoc -ery. The majority’s reasons extend this trajectory by using s. 7 not to protect the fair trial and due process guarantees under the Charter , but to erode them.

Since the accused’s rights are not in competition with any other set of rights, it is not necessary to decide whether the appropriate framework would be that which requires balancing or that which requires reconciling: there is nothing to balance, or reconcile. And even if competing Charter rights were engaged, previous jurisprudence would not be determinative of the constitutionality of the record screening regime, as it is not a principled extension of the common law and related codified schemes that have already survived constitutional scrutiny (i.e., the s. 276 and ss. 278.1 to 278.91 regimes).

Rather, it raises a different problem, requiring a different solution; the analysis must therefore turn on the

interpretation of the specific provisions and requires the application of the existing Charter framework. The record screening regime is overbroad. As can be concluded from the proper

interpretation of the terms “record” and “adduce”, this regime renders presumptively inadmissible a remarkably broad range of records in the hands of the defence, capturing not only records that are sensitive or prejudicial, and it regulates their use in any manner. Properly interpreted, the definition of “record” 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 that is integral to the complainant’s overall physical, psychological or emotional well-being.

For the purposes of the regime, a “record” is defined in s. 278.1 as anything that “contains personal information for which there is a reasonable expectation of privacy”. Although the provision does not refer to electronic communications or personal correspondence, the legislative proceedings suggest that Parliament did intend to capture digital communications sent between the accused and complainant about the subject matter of the charge.

Alongside the legislative debates emphasizing the protection of privacy and equality rights for all sexual assault complainants must also be read the Court’s jurisprudence recognizing that electronic communications often contain highly private content. The weight of the jurisprudence applying s. 278.92 has also concluded that the complainant retains a reasonable expectation of privacy in electronic communications sent to the accused.

Therefore, an electronic communication is a “record” if it contains personal information giving rise to a reasonable expectation of privacy, as that term has been interpreted in the s. 8 jurisprudence, and this includes any communication concerning the subject matter of the charge, whether of an explicit sexual nature or not. Furthermore, as the record screening regime applies both to material in the accused’s possession and the information contained in that material, it therefore regulates not only the use of the record itself but the information it contains.

Accused persons must now bring an application anytime they intend to refer to the contents of a private record relating to the complainant, even if they do not seek to enter it into evidence or use it to impeach the complainant, but instead simply wish to refer to it in their own defence. The focus in an overbreadth analysis is properly directed to the relationship between the law’s purpose and its effects.

Since the record screening regime captures all private records relating to the complainant that are in the accused’s possession, which the accused intends to adduce or rely on in any manner, and which may include the accused’s own digital conversations with the complainant about the subject matter of the charge, it could deprive individuals of liberty in situations that have no connection whatsoever to the object of the law.

It requires disclosure of defence evidence that would not distort the truth-seeking process or significantly interfere with the complainant’s privacy, all before the Crown makes out a case to meet. It follows that it goes too far and interferes with some conduct that bears no connection to its objective. In addition, properly interpreted, the record screening regime limits the accused’s rights under ss. 11(c) , 11(

d) and 7 of the Charter in four ways. First, the record screening regime forces accused persons to reveal, in detail, particulars of their own prior statements and cross-examination strategy and potential impeachment material, even before the Crown has laid out a case to be answered, as an application will be brought pre-trial in the vast majority of cases.

This shifts away from foundational principles of the criminal trial process, violating the principle against self-incrimination, the right to silence, the presumption of innocence, and the related principle that the Crown must establish a case to meet before the accused can be expected to respond. While the Court approved advance disclosure to the Crown and complainant for evidence of other sexual activity, the principles stated are limited to the application of

s. 276, which is designed to exclude only irrelevant information, and relevant information that is more prejudicial to the administration of justice than it is probative. The same rationale does not apply to the record screening regime. Similarly, compelled production of confidential materials from third parties raises different sensitivity and privacy concerns compared to records in the accused’s possession.

While it is true that the law imposes limited obligations on parties to provide disclosure so as to justify questioning or admission of evidence in situations that do not unconstitutionally limit the right to silence, none of these instances remotely support the conclusion that the right to silence is unaffected by the record screening regime. The Court has never concluded that tactical burdens to provide pre-trial disclosure are automatically Charter -compliant. In any event, confronting an accuser with all relevant evidence is quite different than making tactical choices such as challenging a search warrant.

The limits to the protection from self-incrimination and the right to silence are, on their own, fatal to the constitutionality of the regime. The violations to the self-incrimination principle are in no way attenuated by the later admission of the highly relevant and probative evidence. Secondly, the advance disclosure requirement and complainant’s participatory rights operate together to limit the accused’s ability to effectively cross-examine the complainant, contrary to the presumption of innocence, the right to make full answer and defence and the right to a fair trial.

The accused’s right to make full answer and defence gives meaning and operation to the presumption of innocence — the most elementary manifestation of society’s commitment to a fair trial. This extends to calling the evidence necessary to establish a defence, and challenging the evidence called by the prosecution, without significant and unwarranted constraint. Unwarranted constraints on cross-examination may undermine the fairness of the trial, and increase the risk of convicting the innocent.

Reasonable limits may be placed on the cross-examination of a complainant in a sexual assault trial to prevent it from being used for improper purposes. But cross-examination in respect of consent and credibility should be permitted where the probative value is not substantially outweighed by the danger of unfair prejudice that may flow from it. In sexual assault cases, cross-examination is often the only way to expose falsehoods, memory issues, and inconsistencies in the complainant’s testimony.

In many cases, advance disclosure of counsel’s dossier or strategy may improperly shape the complainant’s testimony, consciously or unconsciously, in a manner that cannot be readily exposed or mitigated at trial, thereby reducing the effectiveness of the cross-examination. The risks go beyond the explicit fabrication of evidence, and include the subtle manipulation of testimony by a witness to address the frailties or inconsistencies disclosed in advance by the defence. In many cases, there will also not be any pre-trial sworn statements on which the accused can impeach the complainant.

While there is no right to ambush or whack a complainant with misleading or abusive cross-examination, confronting a complainant with inconsistencies that have not previously been disclosed is a well-established and often exceedingly effective aspect of cross-examination used to test the complainant’s credibility. Impeachment of a Crown witness, including impeachment by surprise, is a legitimate and valuable defence tactic, which the regime eviscerates.

Thirdly, the fact that the record screening regime makes private records presumptively inadmissible when tendered by the defence, but presumptively admissible when tendered by the Crown, renders the trial unfair and undermines the regime’s purpose. In this way, the regime differs from the s. 276 and ss. 278.1 to 278.91 regimes, and limits the right to a fair trial.

Fourthly, combined with the broad scope of “record” and advance notice requirement, the effect of the heightened standard of admissibility of defence evidence set by the record screening regime limits the rights to a fair trial and to make full answer and defence. The accused must establish, in advance of the complainant’s testimony, that the records have significant probative value, meaning some relevant and probative evidence will necessarily be excluded. A judge may exclude evidence relevant to a defence allowed by law only where the prejudice substantially outweighs the probative value of the evidence.

Section 278.92(2)(

b) does violence to that principle by allowing admission of evidence only where it is of significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. Although the significant probative value standard in the s. 276 context was upheld, the same rationale does not apply mutatis mutandis to the record screening regime. While s. 276 addresses inherent damages and disadvantages in admitting sexual history evidence, the regime captures evidence that may well not have any distorting or damaging effect on the trial.

The limits on the accused’s rights are not demonstrably justified. While the record screening regime has a pressing and substantial objective, it fails at the rational connection, minimal impairment, and final balancing stages of the s. 1 analysis. 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.

By requiring disclosure of potential defence evidence, strategy, and lines of cross-examination before the Crown has made out a case to meet, and by depriving the accused of establishing the relevance of that evidence based on the complainant’s testimony, the regime does not minimally impair the right to silence, the presumption of innocence, or the principle against self-incrimination.

By mandating advance notice and disclosure to both the Crown and complainant, and by giving the complainant a role in the admissibility determination before trial, the regime allows the Crown’s key witnesses to reconcile inconsistencies and potentially alter their evidence in subtle ways that are difficult to test or expose in court. The deleterious effects on individual accused persons are substantial, and this is all quite independent of significant deleterious effects on the criminal justice system, including increased trial complexity and delay.

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. The harmful impacts and risk of wrongful convictions outweigh any potential benefits of the regime. The Crown has not demonstrated that the law’s salutary effects outweigh its deleterious effects. Per Rowe J. (dissenting in part): On the merits, there is agreement with Brown J. that ss. 278.92 to 278.94 of the Criminal Code are unconstitutional and of no force and effect except in so far as they apply to the existing s. 276 regime.

The legislation restricts the fair trial rights of accused persons by placing limits on how they can conduct the cross-examination of Crown witnesses and what evidence they can introduce in support of their own defence, even if that evidence is highly probative and not prejudicial to the complainants. As well, the screening process introduced by the legislation violates ss. 11 (

c) and 11 (

d) by requiring the accused to disclose all records relevant to their defence before the Crown has established the case to meet. In order to give proper effect to ss. 7 , 11 and 1 of the Charter , the following approach should be applied: where a specific Charter guarantee, such as s. 11 , is pleaded along with the broader guarantee in s. 7, the specific guarantee should be addressed first. If a violation of the specific Charter guarantee is found, there is no reason to proceed to s. 7. If there is no violation of the specific guarantee,

or the violation is found to be justified under s. 1 , the courts must then look to s. 7. This approach accords with the structure of the Charter , and with the text and purposes of the “Legal Rights” in ss. 7 to 14 and s. 1 . The methodological approach adopted by the majority in these appeals inverts the proper role of s. 7 by introducing internal limits on s. 7 rights into s. 11. However, s. 7 is a broad, rights-conferring provision. To construe it as a limit on other Charter rights is wrong in principle and, in the instant case, undermines the longstanding, fundamental right to a fair trial.

Ordinarily, a Charter right can only be limited in one of two ways: internally, through its own text, or by undertaking the balancing required in s. 1 . Qualifying words used in the text of the Charter are the starting point for the

interpretation of the scope of Charter rights and any internal limits. Sections 11(

c) and 11(

d) have few internal limits and can otherwise be limited only following a proportionality assessment under s. 1. A limit on s. 11 based on s. 7 does not conform either to the architecture of the Charter or to the purposes of those provisions or of s. 1 . There is no foundation for an analytical approach whereby ss. 11 (

c) and 11 (

d) rights can be limited by reference to internal limits in s. 7. This would involve a grave distortion of s. 7, which is a broad, rights-conferring provision. The improper use of s. 7 to create limits on s. 11 results from an inconsistent

interpretation of s. 7 that has given rise to doctrinal difficulties. The s. 7 jurisprudence has been unclear on how to identify and define the principles of fundamental justice. An expansive approach to these principles, which includes not only procedural protections, but also substantive ones, has given rise to considerable uncertainty; it has contributed to s. 7 jurisprudence marked by indeterminacy and an ongoing lack of doctrinal clarity. These uncertainties are being introduced into s. 11 .

There is also a lack of coherence in the s. 7 methodology and no clear guidance for how principles of fundamental justice are balanced with competing considerations in arriving at the scope of s. 7 rights, or whether such a balancing is appropriate. When engaging in an internal balancing under s. 7, the Court has sometimes categorized competing considerations as Charter rights, Charter values, or societal interests, but without a systematic or consistent approach to how these are to be weighed against one another, or even whether the considerations applicable to each category are different.

It is not clear how Charter values and societal interests as opposed to Charter rights are defined; whether these rights, values or interests must engage s. 7 or at least amount to principles of fundamental justice in order to be part of the balancing; or, in the event of conflict between rights, interests and values, how one should decide which consideration prevails.

These ambiguities mean that Charter rights can be weighed against Charter values and societal interests — unclear and amorphous concepts of uncertain legal origin and status that can be chosen from, at will, by a decision maker to arrive at a given result . The outcomes provide little certainty and little predictability, and open the door widely to conclusory decision-making. Internal limits on s. 7 rights are being relied on by the majority in three ways to introduce limitations into s. 11 . The first approach finds that ss. 11 (

c) and 11 (

d) protect rights that illustrate principles of fundamental justice, and therefore these may be balanced against other considerations under s. 7. When s. 7 is given priority in the analysis, it subsumes ss. 11 (

c) and 11 (

d) and the latter can be limited without a s. 1 analysis. The second approach defines ss. 11 (

c) and 11 (

d) following consideration of other interests because they are inextricably intertwined with s. 7. The third approach holds that, because it is so closely related to s. 7, the definition of fairness in s. 11 (

d) includes considerations of the interests of the state and other parties. All these approaches conflate s. 7 with the other rights in ss. 8 to 14 of the Charter and tend to channel the entire constitutional analysis through s. 7. Such an analysis operates almost entirely outside the constitutional text, structure, and purposes of the various provisions. It defines the right to a fair trial by reference to the perspectives of the accused, the complainant, the community and the criminal justice system at large. However, the right to a fair trial under s. 11 (

d) is one that appertains to the accused only. The majority’s approach limits the fair trial right of the accused based on societal interests analyzed through the vehicle of the principles of fundamental justice under s. 7. Instead, the proper methodology by which to have regard to such societal considerations is under s. 1 and not by using s. 7 as a mechanism to limit rights under s. 11 . In addition, as a practical matter, balancing s. 7 internally and using the outcome to limit s. 11 leads to a reversal of the burden of proof and a dilution of Charter protections.

Under s. 11, an accused alleging a violation must prove it; if proven, the onus shifts to the state to justify the violation under s. 1 . By contrast, if there is a balancing of Charter rights, Charter values and societal interests under the principles of fundamental justice in s. 7, the burden is on the accused throughout. 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 s. 11 and the purpose of s. 1 to hold the state to the burden of proof to show that any limit is demonstrably justified in a free and democratic society. A further potentially anomalous result under this approach is that s. 11 may first be limited by s. 7 and then, when the usual s. 1 analysis is undertaken, s. 11 rights may be further limited. Most fundamentally, limiting s. 11 through s. 7 is contrary to the purposes of both ss. 7 and 11.

Per Côté J. (dissenting in part): There is agreement with Brown J. that the record screening regime does not come close to passing constitutional muster. There is also agreement with Rowe J.’s analytical approach in respect of s. 7 of the Charter . However, there is disagreement with the analyses and the conclusions of both the majority and Brown J. on the

interpretation of “record” and “adduce”. A narrow

interpretation should be preferred. A proper

interpretation of “record” as defined in s. 278.1 of the Criminal Code excludes any communications — electronic or otherwise — between the accused and the complainant other than communications made in the context of a professional relationship in which there was an expectation of some degree of confidentiality. Such an

interpretation better accords with the text of s. 278.1. Communications between the complainant and the accused are not specifically enumerated as records in that section. The common thread weaving through the enumerated records is the complainant’s reasonable expectation that such records will not be publicly disclosed. The defining feature is not the highly personal nature of the information. Accordingly, unenumerated records will be documents containing personal information that the complainant expects not to be disclosed.

These could be either (1) records created in a professional context for which there is an expectation of some degree of confidentiality, even if the relationship is not strictly confidential, or (2) records that are intended for the complainant’s exclusive personal use and review. In addition to being consistent with the text of s. 278.1 , a narrower

interpretation of “record” is more consistent with the

section’s legislative evolution and legislative history. By importing a definition of “record” from the regime for the production of thirdparty records, which did not contemplate or include communications between the accused and the complainant, Parliament signaled anintention that such communications do not constitute records for the purposes of the record screening regime. As well, the recordscreening regime was enacted to address a gap in the law that arose where an accused legally came into possession of a record. Themischief to be remedied was not the admission at trial of voluntary communications between the complainant and the accused. Thisagain weighs heavily in favour of an

interpretation of “record” that excludes electronic communications between an accused and acomplainant. A narrow

interpretation of “record” is also more consistent with the Court’s jurisprudence and with the common lawmeaning of the phrase “reasonable expectation of privacy”. Expectations of privacy are contextual, and must be assessed in light of thetotality of circumstances. The key contextual factor is that an individual does not have an objectively reasonable expectation of privacy incommunications vis-à-vis the recipient of the message. Where the accused’s liberty is at stake, a complainant’s expectation of privacy incommunications with the accused is objectively unreasonable.

The only exception to this category-based approach relates to messagesexchanged in the context of a professional relationship in which there is an expectation of some degree of confidentiality. In suchcircumstances, the professional relationship and the corresponding expectation of some degree of confidentiality ground a reasonableexpectation of privacy. The majority’s approach fails fundamentally to assess whether the complainant’s expectation of privacy is objectivelyreasonable in the circumstances.

It gives undue weight to the content of the communication, while simultaneously disregarding orminimizing other significant contextual factors. As a result, no meaningful guidance is offered on how to discern whether a message issubject to the record screening regime. As well, the majority’s conception of and approach to privacy is inconsistent with the idea that areasonable expectation of privacy standard is normative rather than simply descriptive. The trial context is determinative.

There is quite simply no reason to depart from the common law meaning of the phrase “reasonable expectation of privacy”and the content-neutral approach that has been developed in relation to it. There is nothing in the text of s. 278.1 that suggests doing so isnecessary. A content-neutral approach would also facilitate the operation of the record screening regime and would have the significantbenefit of largely averting the need for motions for directions.

The majority’s justification for jettisoning the content-neutral approach isunpersuasive and inconsistent with the fundamental premise of the record screening regime. It is also internally inconsistent their ownreasons as well as being inconsistent with the Court’s jurisprudence. It would not be difficult to meaningfully assess or protect a complainant’s privacy interests, as the focus should be on theexpectation of privacy rather than on the content of the information. Records can attract a reasonable expectation of privacy —regardless of their content — based on the medium used to convey the information.

In the record screening regime, the medium — andthe expectation of privacy that exists in the context of that medium — is determinative. Adopting a narrow category-based approach to the

interpretation of “record” avoids many of the absurd results thatinevitably follow from a broad

interpretation. A broad

interpretation will result in an absurd two-tiered system of admissibility thatfavours the Crown and will lead to the absurd consequence of having the record screening regime create a distinction betweeninformation exchanged orally and information exchanged through electronic means. A category-based approach would have significantpractical benefits in terms of trial efficiency as it would not be necessary to contextually assess each message in order to determinewhether it constitutes a “record”.

With respect to “adduce”, given that the record screening regime is focused on physical records rather than on a category ofevidence, its plain meaning should be adopted, as it relates directly to the physical record. Sections 278.92 and 278.93 of the CriminalCode are clear. An application is required only where an accused intends to introduce a copy of the actual record into evidence. It is notrequired where an accused intends only to ask questions about the information contained in the record, and not to adduce the record inevidence.

Interpreting “adduce” more broadly leads to an inherent incongruity, preventing one accused from using relevant informationmerely because this accused possesses the best evidence of the information. An accused should be permitted to ask the complainantquestions about any electronic conversations between them that are relevant to an issue at trial, and barring an evidentiary rule, shouldalso be permitted to testify about electronic conversations with the complainant. Even with narrower

interpretations of “record” and “adduce”, Brown J.’s constitutional analysis remains overwhelminglyapplicable. The record screening regime continues to force accused persons to reveal their defence before the Crown has made out a caseto meet, contrary to the principle against self-incrimination, the right to silence, and the presumption of innocence. The regime continuesto restrict the accused’s ability to cross-examine Crown witnesses by giving the complainant a role in pre-trial admissibilitydeterminations.

The regime still makes private records presumptively inadmissible when tendered by the defence, but presumptivelyadmissible when tendered by the Crown. Finally, the regime still sets a stricter test for admitting defence evidence than is warranted orconstitutionally permissible. None of these limits on the accused’s Charter rights can be justified under s. 1. The regime is not rationallyconnected to its objective, it is not minimally impairing, and its salutary effects do not outweigh its deleterious effects. Cases Cited By Wagner C.J. and Moldaver J. Applied: R. v. Mills, (SCC), [1999] 3 S.C.R. 668; R. v.

Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443;considered: R. v. Osolin, (SCC), [1993] 4 S.C.R. 595; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; referred to: R.v. Seaboyer, (SCC), [1991] 2 S.C.R. 577; R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411; Rizzo & RizzoShoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110; Slaight CommunicationsInc. v. Davidson, (SCC), [1989] 1 S.C.R. 1038; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; R. v. Plant, (SCC), [1993] 3 S.C.R. 281; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Dyment, (SCC), [1988] 2S.C.R. 417; Sherman Estate v.

Donovan, 2021 SCC 25; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Wong, (SCC), [1990] 3 S.C.R. 36;Canada v. Canada North Group Inc., 2021 SCC 30; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; Dagg v. Canada (Minister of

Finance), (SCC), [1997] 2 S.C.R. 403; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. R.V., 2019 SCC 41,[2019] 3 S.C.R. 237; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; Telecommunications Workers Union v. Canada (Radio-televisionand Telecommunications Commission), (SCC), [1995] 2 S.C.R. 781; A. (L.L.) v. B. (A.), (SCC), [1995]4 S.C.R. 536; R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87; Thomson Newspapers Ltd. v. Canada (Director of Investigation andResearch, Restrictive Trade Practices Commission), (SCC), [1990] 1 S.C.R. 425; R. v. L. (D.O.), (SCC), [1993] 4 S.C.R. 419; R. v.

Levogiannis, (SCC), [1993] 4 S.C.R. 475; R. v. Fitzpatrick, (SCC),[1995] 4 S.C.R. 154; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; M. (A.) v. Ryan, (SCC), [1997] 1 S.C.R. 157;R. v. Brown, 2022 SCC 18; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (AttorneyGeneral), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726; R. v. Oakes, (SCC), [1986] 1S.C.R. 103; R. v. E. (A.W.), (SCC), [1993] 3 S.C.R. 155; R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852; R.v. W. (R.), (SCC), [1992] 2 S.C.R. 122; R. v.

Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; R. v. Moriarity,2015 SCC 55, [2015] 3 S.C.R. 485; R. v. S.A.B., 2003 SCC 60, [2003] 2 S.C.R. 678; R. v. White, (SCC), [1999] 2S.C.R. 417; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; R. v. P. (M.B.), (SCC), [1994] 1 S.C.R. 555; R. v. Singh,2007 SCC 48, [2007] 3 S.C.R. 405; Martineau v. M.N.R., 2004 SCC 81, [2004] 3 S.C.R. 737; R. v. Beare, (SCC),[1988] 2 S.C.R. 387; R. v. Anderson (2002), 57 O.R. (3d) 671; R. v. Chambers, (SCC), [1990] 2 S.C.R. 1293; R. v.Stinchcombe, (SCC), [1991] 3 S.C.R. 326; R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36; R. v.

Scopelliti(1981), (ON CA), 34 O.R. (2d) 524; R. v. G. (S.G.), (SCC), [1997] 2 S.C.R. 716; R. v. Find, 2001SCC 32, [2001] 1 S.C.R. 863; R. v. M.S., 2019 ONCJ 670. By Brown J. (dissenting in part) R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. Mills, (SCC), [1999] 3 S.C.R. 668; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; R. v. Osolin, (SCC),[1993] 4 S.C.R. 595; Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC76, [2001] 3 S.C.R. 442; R. v. A.C., 2020 ONSC 184; R. v.

Navaratnam, 2021 ONCJ 272, 488 C.R.R. (2d) 214; R. v. Whitehouse, 2020NSSC 87, 61 C.R. (7th) 400; R. v. McKnight, 2019 ABQB 755, 7 Alta. L.R. (7th) 195; R. v. A.M., 2020 ONSC 8061, 397 C.C.C. (3d)379; R. v. S.R. (2021), 488 C.R.R. (2d) 95; Sherman Estate v. Donovan, 2021 SCC 25; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R.390; R. v. Ghomeshi, 2016 ONCJ 155, 27 C.R. (7th) 17; R. v. R.M.R., 2019 BCSC 1093, 56 C.R. (7th) 414; R. v. Marakah, 2017 SCC 59,[2017] 2 S.C.R. 608; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488; R. v. M.S., 2019 ONCJ 670; R. v. D.L.B., 2020 YKTC 8, 460C.R.R. (2d) 162; R. v.

Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180;Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754; R.v. P. (M.B.), (SCC), [1994] 1 S.C.R. 555; R. v. Chambers, (SCC), [1990] 2 S.C.R. 1293; R. v.Stinchcombe, (SCC), [1991] 3 S.C.R. 326; R. v. G. (S.G.), (SCC), [1997] 2 S.C.R. 716; R. v. J.S.,[2019] A.J. No. 1639 (QL); R. v. A.M., 2019 SKPC 46, 56 C.R. (7th) 389; R. v. Farah, 2021 YKSC 36; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105; R. v.

Rose, (SCC), [1998] 3 S.C.R. 262;R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726; R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R.193; R. v. Wallick (1990), (MB CA), 69 Man. R. (2d) 310; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v.Carosella, (SCC), [1997] 1 S.C.R. 80; R. v. Cook, (SCC), [1998] 2 S.C.R. 597; R. v. Khan, 2001 SCC86, [2001] 3 S.C.R. 823; R. v. Lyons, (SCC), [1987] 2 S.C.R. 309; R. v. Harrer, (SCC), [1995] 3 S.C.R.562; R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v.

Bjelland, 2009 SCC 38,[2009] 2 S.C.R. 651; Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772; R. v. Lindsay, 2019 ABQB 372, 95Alta. L.R. (6th) 163; R. v. Green, [1998] O.J. No. 3598 (QL), 1998 CarswellOnt 3820 (WL); Re Collette and The Queen (1983), (ON SC), 6 C.C.C. (3d) 300; R. v. Latimer, ; R. v. Spence, 2011 ONSC 2406, 249 C.R.R. (2d) 64; R. v.White (1999), (ON CA), 42 O.R. (3d) 760; R. v. Stobbe, 2011 MBQB 293, 277 Man. R. (2d) 65; R. v. Anderson, 2019SKQB 304, 61 C.R. (7th) 376; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475; R. v.

Samaniego, 2020 ONCA 439, 151 O.R. (3d) 449,aff’d 2022 SCC 9; R. v. Pereira, 2008 BCSC 184, 247 C.C.C. (3d) 311; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1S.C.R. 331; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; RJR-MacDonald Inc. v. Canada(Attorney General), (SCC), [1995] 3 S.C.R. 199; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; R. v. Anderson, 2020SKQB 11, 461 C.R.R. (2d) 128. By Rowe J. (dissenting in part) R. v. Mills, (SCC), [1999] 3 S.C.R. 668; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; R. v.

Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; Hunter v.Southam Inc., (SCC), [1984] 2 S.C.R. 145; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486;Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293; R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193; R. v. Osolin, (SCC), [1993] 4 S.C.R. 595;Dubois v. The Queen, (SCC), [1985] 2 S.C.R. 350; Fleming v. Ontario, 2019 SCC 45, [2019] 3 S.C.R. 519; Gosselin v.Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429; R. v.

White, (SCC), [1999] 2 S.C.R. 417; CanadianFoundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76; Rodriguez v. BritishColumbia (Attorney General), (SCC), [1993] 3 S.C.R. 519; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; R.v. Seaboyer, (SCC), [1991] 2 S.C.R. 577; Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726; Canada (AttorneyGeneral) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v.

Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v.Keegstra, (SCC), [1990] 3 S.C.R. 697; Edmonton Journal v. Alberta (Attorney General), (SCC), [1989]2 S.C.R. 1326; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, (SCC), [1995] 1 S.C.R. 315; Ross v. NewBrunswick School District No. 15, (SCC), [1996] 1 S.C.R. 825; Harvey v. New Brunswick (Attorney General), (SCC), [1996] 2 S.C.R. 876; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256;Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; R. v.

Sharpe, 2001 SCC 2, [2001] 1 S.C.R.45; Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772; RWDSU v. DolphinDelivery Ltd., (SCC), [1986] 2 S.C.R. 573; R. v. Salituro, (SCC), [1991] 3 S.C.R. 654; Hill v. Church ofScientology of Toronto, (SCC), [1995] 2 S.C.R. 1130; M. (A.) v. Ryan, (SCC), [1997] 1 S.C.R. 157;WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; McKitty v.

Hayani, 2019 ONCA 805, 439 D.L.R. (4th) 504; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research,Restrictive Trade Practices Commission), (SCC), [1990] 1 S.C.R. 425; R. v. Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154; R. v. Swain, (SCC), [1991] 1 S.C.R. 933; R. v. Morgentaler, (SCC),[1988] 1 S.C.R. 30; R. v. Brown, 2022 SCC 18; R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757; R. v. Beare, (SCC),[1988] 2 S.C.R. 387; R. v. Hebert, (SCC), [1990] 2 S.C.R. 151; Kindler v. Canada (Minister of Justice), (SCC), [1991] 2 S.C.R. 779; Chiarelli v.

Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R.711; R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1S.C.R. 350; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405; Cunningham v. Canada, (SCC), [1993] 2 S.C.R. 143; R. v.Smith, 2015 SCC 34, [2015] 2 S.C.R. 602; Dersch v. Canada (Attorney General), (SCC), [1990] 2 S.C.R. 1505; R. v.Stinchcombe, (SCC), [1991] 3 S.C.R. 326; R. v. Carosella, (SCC), [1997] 1 S.C.R. 80; R. v. McClure,2001 SCC 14, [2001] 1 S.C.R. 445; R. v. Pearson, (SCC), [1992] 3 S.C.R. 665; R. v.

Rose, (SCC),[1998] 3 S.C.R. 262; R. v. Levogiannis, (SCC), [1993] 4 S.C.R. 475; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863;Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983; R. v.St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187; R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936; R. v. Morrison, 2019 SCC15, [2019] 2 S.C.R. 3; R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33;Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code (Man.), (SCC), [1990] 1 S.C.R. 1123; R. v. Généreux, (SCC), [1992] 1 S.C.R. 259; R. v. Harrer, (SCC), [1995] 3 S.C.R. 562. By Côté J. (dissenting in part) R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; R. v. M.S., 2019ONCJ 670; R. v. Ghomeshi, 2016 ONCJ 155, 27 C.R. (7th) 17; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R.27; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v.

Mills, 2019 SCC 22, [2019] 2 S.C.R. 320; R. v.Mills, (SCC), [1999] 3 S.C.R. 668; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Spencer, 2014 SCC 43,[2014] 2 S.C.R. 212; R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535. Statutes and Regulations Cited

An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C.2018, c. 29.

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to otherActs, S.C. 2019, c. 25, s. 238. Canadian Charter of Rights and Freedoms, ss. 1, 7 to 14. Criminal Code, R.S.C. 1985, c. C-46, ss. 117.13(2), 145(10), 276, 276.1 to 276.5 [rep. 2018, c. 29, s. 22], 278.1 to 278.94, 347(6),645(5), 648, 672.5(11), 694.1, 722(3), 722(9). Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, s. 2(1) “personal information”. Rules of the Supreme Court of Canada, SOR/2002-156, Sch. B. Supreme Court Act, R.S.C. 1985, c. S-26, ss. 40, 47.

Authors Cited Canada. House of Commons. House of Commons Debates, vol. 148, No. 195, 1st Sess., 42nd Parl., June 15, 2017, p. 12789. Canada. Senate. Debates of the Senate, vol. 150, No. 233, 1st Sess., 42nd Parl., October 3, 2018, p. 6419. Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee onLegal and Constitutional Affairs, No. 47, 1st Sess., 42nd Parl., June 20, 2018, p. 82. Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs.

Statutory Review on the Provisions and Operation ofthe Act to amend the Criminal Code (production of records in sexual offence proceedings): Final Report. Ottawa, 2012. Canada. Senate and House of Commons. Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of theHouse of Commons on the Constitution of Canada, No. 46, 1st Sess., 32nd Parl., January 27, 1981, pp. 32-36 and 42-43. Colvin, Eric. “Section Seven of the Canadian Charter of Rights and Freedoms” (1989), 68 Can. Bar Rev. 560. Coughlan, Steve, and Robert J.

Currie. “Sections 9, 10 and 11 of the Canadian Charter”, in Errol Mendes and Stéphane Beaulac, eds.,Canadian Charter of Rights and Freedoms, 5th ed. Markham, Ont.: LexisNexis, 2013, 793. Craig, Elaine. “Private Records, Sexual Activity Evidence, and the Charter of Rights and Freedoms” (2021), 58 Alta. L. Rev. 773. Hasan, Nader R. “Three Theories of ‘Principles of Fundamental Justice’” (2013), 63 S.C.L.R. (2d) 339. Hogg, Peter W., and Wade K. Wright. Constitutional Law of Canada, 5th ed. Supp. Toronto: Thomson Reuters, 2021 (updated 2021,release 1).

Horner, Matthew. “Charter Values: The Uncanny Valley of Canadian Constitutionalism” (2014), 67 S.C.L.R. (2d) 361.

Iacobucci, Frank. “‘Reconciling Rights’ The Supreme Court of Canada’s Approach to Competing Charter Rights” (2003), 20 S.C.L.R. (2d) 137 . Lederman, Sidney N., Alan W. Bryant and Michelle K. Fuerst. Sopinka, Lederman & Bryant: The Law of Evidence in Canada , 5th ed. Toronto: LexisNexis, 2018. Lipton, Thomas. “All Charter Rights Are Equal, But Some Are More Equal than Others” (2010), 52 S.C.L.R. (2d) 449 . Paciocco, David M. “Self-Incrimination: Removing the Coffin Nails” (1989), 35 McGill L.J. 73. Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence , 8th ed. Toronto: Irwin Law, 2020. Roach, Kent. “The Protection of Innocence Under

Section 7 of the Charter ” (2006), 34 S.C.L.R. (2d) 249 . Singleton, Thomas J. “The Principles of Fundamental Justice, Societal Interests and

Section 1 of the Charter ” (1995), 74 Can. Bar Rev. 446. Stuart, Don. Charter Justice in Canadian Criminal Law , 7th ed. Toronto: Thomson Reuters, 2018. Sullivan, Ruth. Statutory

Interpretation , 3rd ed. Toronto: Irwin Law, 2016. Sullivan, Ruth. Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: LexisNexis, 2014. Tochor, Michael D., and Keith D. Kilback. “Defence Disclosure: Is it Written in Stone?” (2000), 43 C.L.Q. 393. APPEAL and CROSS-APPEAL from a decision of the British Columbia Supreme Court (Duncan J.), 2020 BCSC 349 , [2020] B.C.J.

No. 1526 (QL), 2020 CarswellBC 2403 (WL), declaring that the violation of s. 7 of the Canadian Charter of Rights and Freedoms by s. 278.93(4) of the Criminal Code cannot be saved by s. 1 of the Charter , and reading down the seven-day notice requirement in s. 278.93(4). Appeal allowed and cross-appeal dismissed, Côté, Brown and Rowe JJ. dissenting in part. APPEAL from a decision of the Ontario Superior Court of Justice (Akhtar J.), 2020 ONSC 7156 , 398 C.C.C. (3d) 227, 475 C.R.R. (2d) 290, [2020] O.J.

No. 5412 (QL), 2020 CarswellOnt 18201 (WL), declaring that ss. 278.92 , 278.94(2) and 278.94(3) of the Criminal Code violate ss. 7 and 11(

d) of the Canadian Charter of Rights and Freedoms and that the violations cannot be saved by s. 1 of the Charter . Appeal allowed, Côté, Brown and Rowe JJ. dissenting in part. Lesley A. Ruzicka , for the appellant/respondent on cross-appeal Her Majesty The Queen. Dawne Way , David Butt and David M. Reeve , for the appellant A.S. Rebecca McConchie and Megan Savard , for the respondent/appellant on cross-appeal J.J. Jill Witkin and Jennifer Trehearne , for the respondent Her Majesty The Queen. Carlos Rippell and Marianne Salih , for the respondent Shane Reddick.

Marc Ribeiro and Lauren Whyte , for the intervener the Attorney General of Canada. Jennifer Trehearne and Jill Witkin , for the intervener the Attorney General of Ontario. Abdou Thiaw , for the intervener the Attorney General of Quebec. Erica Koresawa , for the intervener the Attorney General of Nova Scotia. Jennifer Mann and Charles Murray , for the intervener the Attorney General of Manitoba. Lara Vizsolyi , for the intervener the Attorney General of British Columbia. Sharon H. Pratchler , Q.C. , for the intervener the Attorney General of Saskatchewan. Deborah J.

Alford , for the intervener the Attorney General of Alberta. Gloria Ng and Kate Feeney , for the interveners the West Coast Legal Education and Action Fund and the Women Against Violence Against Women Rape Crisis Centre. Joanna Birenbaum , for the intervener the Barbra Schlifer Commemorative Clinic. Peter Sankoff and William van Engen , for the intervener the Criminal Trial Lawyers’ Association. Gerald Chan , Daniel Brown and Lindsay Board , for the intervener the Criminal Lawyers’ Association (Ontario). John M. Williams and Thomas Hynes , for the intervener the Canadian Council of Criminal Defence Lawyers.

Greg DelBigio , for the intervener the Independent Criminal Defence Advocacy Society. Kelley Bryan and Karen A. Steward , for the intervener the Women’s Legal Education and Action Fund Inc.

Saul B. Simmonds , Q.C. , and Jessie S. Brar , for the intervener the Criminal Defence Lawyers Association of Manitoba. The judgment of Wagner C.J. and Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ. was delivered by The Chief Justice and Moldaver J. — TABLE OF CONTENTS Paragraph I. Overview 1 II. Relevant Statutory Provisions 15 III. Issues 16 IV. Analysis 17 A. Statutory

Interpretation of the Provisions 17

(1) Overview of the Impugned Provisions 19 (

a) Stage One 22 (

b) Stage Two 30 (

c) Overlap Between

Section 276 Evidence and Private Records Under

Section 278.1 34

(2) What Is a Record? 35 (

a) Two Groups of Records 38 (

b) Identifying Non-Enumerated Records 42 (

i) Text and Scheme of the Record Screening Regime 43 1. Personal Information 44 2. Reasonable Expectation of Privacy 46 3. Factors in

Section 278.92(3) 51 (ii) Framework to Apply 54 1. Content 55 2. Context 57 (iii) Specific Types of Records 61 1. Communications 61 2. Records of a Sexual Nature (Not Covered by

Section 276 ) 65 (iv)

Summary of the Analytical Process 68

(3) Who Do the Impugned Provisions Apply to? 73

(4) When Is Evidence “Adduced” Such That an Application Is Required? 76

(5) What Is the Appropriate Timing of an Application? 82

(6) What Is the Scope of Complainant Participation? 87 (

a) Complainant’s Receipt of Application 91 (

b) Complainant’s Attendance and Submissions 97 (

c) Complainant’s Ability to Cross-Examine and Lead Evidence 100

(7) Are Motions for Direction Permitted, and Can Complainants Participate? 103

(8) Do Complainants Have Appeal Rights Under the Impugned Provisions? 106 B. Charter Analysis 111

(1) Analytical Framework 113

(2) Key Principles of

Section 7 of the Charter 116

(3) Key Principles of

Section 11(

d) of the Charter 123

(4) Section 278.92 — Threshold for Admissibility 126 (

a) Section 278.92 Does Not Impair Fair Trial Rights 127 (

b) Section 278.92 Procedure Is Not Overbroad 134

(5) Section 278.93 — Stage One Application to Hold Hearing 144 (

a) General Principles: The Right to Silence and the Principle Against Self-Incrimination 144 (

b) No Self-Incrimination Under

Section 11(

c) Due to Testimonial Compulsion 149 (

c) No Defence Disclosure Undermining Right to a Fair Trial 151 (

i) The Right to Silence Does Not Entail an Absolute Rule Against “Defence Disclosure” 154 (ii) The P. (M.B.) Concern About Crown Advantage Does Not Apply 164

(6) Section 278.94 — Stage Two Hearing Procedure 171 (

a) No Deprivation of Relevant Evidence 173 (

b) No Impact on Prosecutorial Independence 176 (

c) No Violation of the Right to Cross-Examine 181

(7) Final Conclusions Regarding Constitutionality 191 V. Disposition 192 VI. Costs 194 I. Overview

[1] The criminal trial process can be invasive, humiliating, and degrading for victims of sexual offences, in partbecause myths and stereotypes continue to haunt the criminal justice system. Historically, trials provided few if any protections forcomplainants. More often than not, they could expect to have the minutiae of their lives and character unjustifiably scrutinized in anattempt to intimidate and embarrass them, and call their credibility into question — all of which jeopardized the truth-seeking function ofthe trial.

It also undermined the dignity, equality, and privacy of those who had the courage to lay a complaint and undergo the rigours ofa public trial. [2] Over the past decades, Parliament has made a number of changes to trial procedure, attempting to balance theaccused’s right to a fair trial; the complainant’s dignity, equality, and privacy; and the public’s interest in the search for truth. This effortis ongoing, but statistics and well-documented complainant accounts continue to paint a bleak picture.

Most victims of sexual offences donot report such crimes; and for those that do, only a fraction of reported offences result in a completed prosecution. More needs to bedone. [3] These appeals concern the constitutionality of Bill C-51, a recent ameliorative effort by Parliament to remove thebarriers that have deterred complainants from coming forward. This bill, which was enacted in 2018 (An Act to amend the Criminal Codeand the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29), introduced ss. 278.92 to278.94 into the Criminal Code, R.S.C. 1985, c.

C-46 (“impugned provisions”). These provisions were designed to protect the interests ofcomplainants in their own private records when an accused has possession or control of the records and seeks to introduce them at ahearing in their criminal proceeding. Specifically, they create procedures and criteria to assist the judge in deciding whether the recordsshould be admitted, balancing the rights and interests of the accused, the complainant, and the public.

Some of the procedural elementsof the impugned provisions also apply to s. 276 evidence applications, as Parliament repealed the prior procedural provisions governingsuch applications. [4] Prior to Bill C-51, there was no statutory procedure governing the admissibility of complainants’ private recordsheld by accused persons. There were, however, procedures governing the admissibility of evidence of complainants’ prior sexual activityor history (“s. 276 regime”) and of complainants’ private records in the hands of third parties (“third party production regime”).

ThisCourt has affirmed the constitutionality of both regimes (see R. v. Mills, (SCC), [1999] 3 S.C.R. 668; R. v. Darrach,2000 SCC 46, [2000] 2 S.C.R. 443). In order to contextualize Bill C-51, it is helpful to consider the regime changes that preceded it infurther detail. [5] The first set of legislative changes sought to expose and eliminate two insidious myths — commonly referred to asthe “twin myths” — which allowed the use of complainants’ prior sexual history to suggest that they were (1) less worthy of beliefand/or (2) more likely to have consented to the alleged assault.

These myths had long been used to attack the credibility and dignity ofcomplainants, tarnish their reputations, and sideline the truth-seeking function of a criminal trial. Recognizing the harm caused by them,Parliament enacted legislation to govern the use of evidence relating to complainants’ prior sexual history. While Parliament’s firstiteration of s. 276 was found to be overbroad in R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577, revised provisions werefound by this Court to be constitutionally compliant in Darrach.

This general framework remains in place today, albeit in amended form. [6] The second set of legislative changes sought to restrict what had become a routine practice — defence counselseeking production of complainants’ private records in order to engage in invasive attacks on their character. For example, defencecounsel often sought production of medical records in order to advance myth-based arguments impugning the credibility and reliabilityof complainants who had previously consulted with psychiatrists or counsellors. This problem was first addressed in R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411, resulting in the creation of a common law procedure governing the production ofcomplainants’ private records by third parties. Parliament subsequently legislated its own procedure (ss. 278.1 to 278.91 of the CriminalCode), which drew upon but modified the O’Connor procedure. This Court affirmed the constitutionality of that regime in Mills, findingthat it struck a reasonable balance between the rights of the accused, the rights of the complainant, and the public interest. [7] A third problem emerged. In R. v.

Osolin, (SCC), [1993] 4 S.C.R. 595, the Court addressed asituation where the defence cross-examined the complainant on the basis of her personal medical records, which had come into theaccused’s possession. Similarly, in R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, the Court was confronted with a situation where theaccused sought to cross-examine the complainant based on entries in her own private diary, which happened to be in the accused’spossession. Since the accused already had the diary, there was no need to seek production through the third party production regime.

Themain issue was the admissibility of the diary. In the absence of legislation, the Court endorsed the use of motions brought at the instanceof complainants to protect against the improper use of their private documents already in the hands of accused persons. [8] Following Osolin and Shearing, it became clear that there was no legislation governing the admissibility of acomplainant’s private records in the hands of the accused, rather than a third party — even though the complainant’s privacy and dignityinterests are similar in both contexts.

A 2012 Senate report recommended creating legislation designed to address this gap: a regimegoverning the admissibility of complainants’ private records in the hands of the accused, using similar factors to those in the third partyproduction regime (Standing Senate Committee on Legal and Constitutional Affairs, Statutory Review on the Provisions and Operationof the Act to amend the Criminal Code (production of records in sexual offence proceedings): Final Report (“2012 Senate Report”), atp. 19). [9] Bill C-51 was Parliament’s response.

Among other features, it extended the protections provided to complainants insexual offence trials in two ways. First,

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