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INTRODUCTION OF PRIVATE RECORDS SECTIONS 278.1 TO 278.94 OF THE CRIMINAL CODE

R. v. J.J., 2022 SCC 28, JUNE 30, 2022.

FACTS:  The accused (JJ and Shane Reddick) were charged with the offence of sexual assault.  They sought to introduce private records of the complainants that were in his possession. This required an application and hearing in accordance with sections 278.92 to 278.94 of the Criminal Code. The accused submitted that the screening process in violated section 7 of the Charter and was therefore inapplicable. The Supreme Court of Canada described their arguments in the following fashion (at paragraph 12):

The main arguments of the respondents J.J. and Mr. Reddick were as follows. the impugned provisions force the defence to disclose both its strategy and the details of its proposed evidence to the Crown prior to trial, thereby violating the right to silence and the privilege against self-incrimination. Second, the impugned provisions provide complainants with advanced notice of defence evidence and the purposes for which it is being adduced. As a result, complainants will be able to tailor their responses during examination-in-chief and cross-examination. This detracts from the right to make full answer and defence and from the truth-seeking function of trial. Finally, complainant participation in voir dires threatens trial fairness, as it disrupts the structure of a criminal trial, inserts a third-party adversary into the process, and undermines the role of the Crown.  

HELD:  The Supreme Court held that “[p]roperly construed, ss. 278.92 to 278.94 of the Criminal Code do not infringe upon ss. 7, 11(c), or 11(d) of the Charter” (at paragraph 13).

Sections 276 to 278.94:

The Supreme Court indicated that “records that do not fall within one of the enumerated categories [see section 278.1] but are nevertheless included within the scope of the regime are records which contain personal information about complainants for which they have a reasonable expectation of privacy… non-enumerated record will only be captured by s. 278.1 , in the context of the record screening regime, if the record contains information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being. Such information will have implications for the complainant’s dignity” (at paragraphs 41 and 42).

The Court summarized the procedure to be followed pursuant to section 276 and 278.1 in the following manner (at paragraphs 69 to 72):

The presiding judge should first determine if the proposed evidence contains information that falls under s. 276 . If the evidence falls under both ss. 276  and 278.1 , as stated above, the judge should assess the evidence as s. 276  evidence.

If the proposed evidence does not fall under s. 276 , the judge should then determine whether it is a “record” under s. 278.1 . If the evidence does not come within one of the enumerated categories, the inquiry should focus on whether it contains personal information for which there is a reasonable expectation of privacy. Where the evidence is found to be an enumerated or non-enumerated record, the record screening regime is engaged.

A non-enumerated record will be caught by the record screening regime if it contains information of an intimate and highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being. Such information will have implications for the complainant’s dignity. This assessment considers the content and context of the record. Electronic communications are subject to this analysis like all forms of records. In addition, records of an explicit sexual nature not covered by s. 276  because they concern the subject matter of the charge will often attract a reasonable expectation of privacy and fall under the record screening regime.

When it is unclear whether the evidence is a “record”, counsel should err on the side of caution and initiate Stage One of the record screening process. To be clear, under the record screening regime, the accused will be in possession or control of the evidence at issue, and they will know the context in which the evidence arose. For this reason, the accused will be well equipped to discern whether the evidence is a “record” and to make submissions on this point, if need be.