Author: Student

David Rabban argues for a distinct theory of the right to academic freedom, as the U.S. and state governments tighten the screws on universities

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By Daniel Minden

As the Trump administration and state governments ramp up efforts to regulate American universities, David M. Rabban, an expert on the law of academic freedom and professor at the University of Texas School of Law, highlights that the U.S. Supreme Court has recognized a distinct right to academic freedom under the First Amendment of the U.S. Constitution – but argues that this distinct right must be properly elaborated by courts and theorized by scholars. 

On November 13, 2025, Rabban was hosted by the David Asper Centre for Constitutional Rights and the H.R. Jackman Faculty of Law Program on the Critical Analysis of Law for a lecture covering the interpretation of academic freedom as a First Amendment right.  

The foundational Sweezy and Keyishian decisions 

Rabban noted that although the text of the First Amendment does not explicitly refer to academic freedom, the Supreme Court of the United States identified academic freedom as a distinct right under the First Amendment in Sweezy v. New Hampshire, 354 U.S. 234 (1957), a McCarthy-era case arising from the state of New Hampshire’s investigation of a Marxist professor. In another landmark case, Keyishian v. Board of Regents 385 U.S. 589 (1967), the Court held that “Academic freedom is a special concern of the First Amendment” – an idea cited in hundreds of subsequent cases. 

Despite the Court’s holding in Keyishian, Rabban argues that the Court has never adequately explained why academic freedom is “special,” and that the large majority of academic freedom cases lack a substantive analysis. To fill in the gaps, Rabban has focused on interpreting the meaning of academic freedom through research presented in his new book, Academic Freedom: From Professional Norm to First Amendment Right. 

Interpreting the right to academic freedom 

What exactly is protected by the right to academic freedom as currently understood by American courts? Rabban finds that courts have principally protected the content of teaching and research. At times, they extended the freedom further, to protect, for instance, the confidentiality of classroom discussions, the confidentiality of medical records, and confidentiality guarantees extended by historians to interviewees previously involved in the Irish Republican Army. 

Other aspects of professors’ conduct have been treated inconsistently by courts. In some instances, courts have protected pedagogical decisions by professors when those decisions were justified on academic grounds as determined by peer academics. However, in Trustees of Indiana University v. Curry, No. 18-1146 (7th Cir. 2019), the United States Court of Appeals, Seventh Circuit, found that the plaintiffs’ argument that the use of fetal tissue in research was protected by the First Amendment was a “non-starter” since the statute forbidding the practice “regulates conduct, not speech.” 

Professors’ “intramural speech,” specifically, their comments about university policies or public issues outside of their domain of specialty, has also been treated inconsistently by courts. Some decisions have extended the right to academic freedom to include a professor’s comments about university policies, but in most cases, courts have decided cases pertaining to intramural speech under the broader First Amendment umbrella.  

In addition to professors, the U.S. Supreme Court has also protected the right of institutions to academic freedom. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Court affirmed a concurring decision from Sweezy which found that the “four essential freedoms” of a university are the rights “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” 

The insufficiency of general First Amendment rights when applied to professors 

Why is a specific right to academic freedom required, given the broader First Amendment? Rabban argues that general First Amendment rights as applied to professors are inadequate, necessitating the specific right. 

To be protected speech under the general First Amendment, speech by public employees must be about matters of “public concern.” In cases involving professors, courts have excluded from the “public concern” such categories as “abstract theorizing,” criticism of university administrators, and comments by professors protesting the denial of tenure to other professors. These categories of speech are fundamental to the work of any professor but are left unprotected by general First Amendment rights, argues Rabban. 

In addition, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the U.S. Supreme Court held that the speech of public officials “pursuant to their official duties” is not protected under the First Amendment. Obviously, this rule restricting the scope of First Amendment rights would massively impede the protection enjoyed by professors, if applied to them. The Court even recognized the possible need to exclude professors from the Garcetti rule, but since the facts of the case did not involve academic freedom, the Court left aside the issue of the rule’s applicability to professors. 

The need to theorize the right to academic freedom as a distinct First Amendment right 

To compensate for the failure of the general First Amendment Rights to adequately protect professors, a specific right to academic freedom is needed, says Rabban. A proper theory of the right to academic freedom can both justify its existence and define its scope. Given the lack of U.S. Supreme Court jurisprudence adequately laying out the justification and scope of the right to academic freedom, Rabban has taken on this work himself.  

As a starting point, Rabban cites a publication by the American Association of University Professors (AAUP) which contains, in his view, the best justification of academic freedom. The AAUP highlights professors’ unique function in society, which is to apply their expertise to the pursuit and dissemination of knowledge which is a benefit to society, a role which would necessarily be impeded if professors could not reach academic conclusions that meet academic standards but offend legislators or members of the public. 

For Rabban, this unique role of the professor in society justifies the existence of a separate First Amendment right to academic freedom. The justification of the right can also help determine its scope. Rabban argues that the scope of the right must include pedagogical decisions and speech about educational issues at universities – but since the theory of the right relies on expertise to justify specific rights to academic freedom, the intramural expression of professors outside their expertise should not be protected by the right to academic freedom. 

Academic freedom in Canada 

During the question-and-answer period, one questioner noted that in Canada, the content of the right to academic freedom is generally seen as the right of professors not to be sanctioned by universities for exercising their general freedom of expression rights. The questioner noted that this Canadian conception of academic freedom is generally protected through collective agreements, rather than constitutional litigation. The efficacy of protecting academic freedom in Canada through collective bargaining is only possible because Canada has a much higher rate of faculty union membership as compared to the United States. 

Current challenges in the United States 

In concluding his talk, Rabban highlighted the current pressure being exerted by the U.S. federal government and state governments on academic freedom rights. Though Rabban accepts that legislatures do have a role in determining the general curriculum requirements for public universities, he contends that through their recent acts, legislatures are inappropriately supplanting the role of universities by determining the specific content of courses. These state acts are far more intrusive than previous state interventions such as the Cold War-era questioning of Professor Sweezy, argues Rabban.  

Even though current state regulations have created a chilling effect and rendered certain American professors hesitant to teach about topics such as race and sex, Rabban argues that the right to academic freedom matters and is worth exercising despite the risk of penalties such as forced early retirement. Rabban notes that in times of totalitarian rule, academics have given up a great deal, including their liberty, to preserve the right to academic freedom. Rabban’s advice to academic colleagues is not to be chilled, and to exercise their rights. 

Daniel Minden is a Research and Communications Assistant with the Asper Centre. He is a 1L JD candidate at the University of Toronto Jackman Faculty of Law.

Supreme Court concludes limits on third-party spending for political advertising violate the right to vote

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By Taoran Li

On 7 March 2025, the Supreme Court of Canada released its decision in Ontario (Attorney General) v. Working Families Coalition (Canada) Inc., 2025 SCC 5, where the majority of the Court found limits on third-party spending for political advertising infringed the right to vote guaranteed under s. 3 of the Canadian Charter of Rights and Freedoms and were not saved under s. 1.

A civil society organization, several unions and individual citizens brought the constitutional challenge against Ontario’s Election Finances Act (“the EFA”), which was amended in 2017 to impose spending limits on third parties for the first time. The EFA was subsequently amended in 2021 to extend the time period during which those spending limits apply to third parties. The EFA imposes different limits on third parties and political parties: Section 37.10.1(2) of the EFA restricts the amount third parties can spend on political advertising to $24,000 in any one electoral district and to $600,000 in total during the 12-month period before a fixed-date election writ is issued.. By contrast, registered political parties may spend up to $1,000,000 on advertising, which applies for only six months before the election period.  In the six months preceding that, political parties face no limits on political advertising.

The Asper Centre intervened in the case and was represented by Debbie Boswell of Lerners LLP. Its intervention argued that the enactment of greater restrictions through legislative amendments is a relevant and important factor in assessing whether the right is infringed and whether the infringement is justified.

Writing for the majority of judges, Karakatsanis J concluded that the third-party spending limit infringes s. 3 of the Charter, fails to be justified, and is therefore constitutionally invalid. Two separate joint dissents were issued by Wagner C.J. and Moreau J, and Côté and Rowe JJ, both concluding the spending limit on third party advertising does not infringe s. 3.

Majority judgment 

According to the majority, the asymmetry between third parties and political parties is a significant, qualitative disparity which leads to disproportionality in the political discourse.  Third parties are strictly limited in their ability to inform citizens, whereas political parties face no restrictions in the first six months of the pre-writ year and may spend a substantially higher amount in the six months before the writ period.

This is because the asymmetry essentially allows political parties to overwhelm the voices of third parties during an important period in the democratic cycle which then deprives voters of a broad range of views and perspectives on social and political issues. Therefore, the voter’s right to an informed vote and to meaningful participation in the electoral process is undermined, limiting the right guaranteed under s 3. of the Charter.

The limitation was not justified under s 1. of the Charter, failing at the minimal impairment stage. The majority arrived at this conclusion after considering expert evidence supporting that a six-month period of pre-writ restrictions on third party political advertising (the previous restriction) would still be effective at achieving the government’s stated objective of ensuring electoral fairness and levelling the playing field, as well as taking into account less restrictive spending limits across the country and at the federal level.

Joint dissent: Wagner C.J. and Moreau J

The starting point for Wagner C.J. and Moreau J was first to affirm that the purpose of s. 3 is to protect the right of citizens to meaningfully participate in the electoral process. This right is comprised of two components: the first is expressive, which ensures that each citizen has a reasonable opportunity to introduce their own ideas and opinions into the political discourse. The second is informational, which ensures that each citizen has a reasonable opportunity to hear others’ perspectives and access information in order to exercise their right to vote in an informed manner.

Third party spending limits engaged the right to meaningful participation in both its expressive and informational components, as third parties can bring new issues to the political discourse and act as a voice for multiple citizens during the electoral process. Regulation of third-party advertising may thus restrict citizens’ opportunity to become informed of political issues, parties, and candidates.

The relevant question then becomes whether the impugned law results in depriving citizens of a reasonable opportunity to introduce their own ideas and opinions into the political discourse or become informed of facts, ideas, and others’ perspectives, thereby infringing the right to meaningful participation.

In order to identify whether there was an infringement, Chief Justice Wagner and Justice Moreau proposed a framework which includes assessing the quantum and temporal reach of the limit, the scope of conduct captured by the limit, and the limit’s impact on different forms of expression.

Based on the evidentiary record, Wagner C.J. and Moreau J concluded the third-party spending limit is not inconsistent with the right to meaningful participation as third parties may still engage in a range of political advertising activities within the spending limit including activities expressly exempted from the spending limit in the EFA, like editorials, columns, or books. Although expensive options like television advertising are limited, there are still other media platforms for citizens to exchange ideas and opinions as well as numerous forms of low-cost political advertising.

Wagner C.J. and Moreau J did not consider the asymmetry between third parties and political parties to undermine a citizen’s opportunity to meaningfully participate in the political process as third parties are not deprived of a reasonable opportunity to speak and be heard: they are still able to mount modest informational campaigns, and most election-specific advertising is generally concentrated around the election period, when both third parties and political parties are subjected to spending limits.

Côté and Rowe JJ Dissent 

Côté and Rowe JJ disagreed with the majority’s “comparative analysis,” which they considered to rest on an erroneous characterization of the purpose of s. 3 as protecting political discourse and extending expressive rights to political actors including third parties. In their view, the majority’s concerns regarding the nature of political discourse and its actors properly fall within s. 2(b) (freedom of expression), which was not at issue in this case due to the Ontario legislature’s clear invocation of the notwithstanding clause.

Côté and Rowe JJ disagreed with Chief Justice Wagner and Moreau J as to whether there is an expressive component within s. 3 and instead concluded that s. 3 is a voter-centric right that protects the ability of individual citizens to be informed in order to make an electoral choice. Thus, the question is not whether the spending limit creates a disequilibrium in the political discourse, but rather whether the limit infringes a voter’s ability to meaningfully participate in the electoral process.

In accordance with this reasoning, third parties ought to be properly conceptualized as “interest groups” who seek to contribute to, and influence, the political discourse. They should not be considered rightsholders under s. 3 as s. 3 does not protect the parties seeking to be heard. Rather, s. 3 belongs to citizens, as it is a participatory right which extends to individual citizens and their right to make an informed vote.

In order to determine whether there is an infringement of the right to meaningful participation, Côté and Rowe JJ endorsed the framework proposed by Chief Justice Wagner and Moreau J but qualified the scope of each consideration so that it is focused on the informational component in s. 3. Having regard to this framework and the purpose of s 3, Côté and Rowe JJ did not find the spending limits infringed s. 3 of the Charter.

Asper Centre’s intervention 

The Asper Centre’s intervention relates to the legislative history of the EFA, which had at first restricted third-party political advertising in the 6-month period leading up to the issuance of the writ of election. While the constitutional challenge to these restrictions was underway, the government further amended the legislation to extend the restriction to 12 months before the writ of election without increasing the $600,000 spending limit.

The Asper Centre argued that where the legislature modified an existing law to impose greater restrictions on a Charter right, this is a relevant and important factor in assessing whether the right has been infringed and whether the infringement is justified. It is particularly important to consider the impact of a change when ascertaining the government’s purpose in enacting the legislation and determining whether the legislative choice made by the government is minimally impairing of the right at issue.

Debbie Boswell commented that, “The Supreme Court’s reasoning reinforces that the right to vote under s. 3 should be given a broad and generous interpretation. While the majority reasons focus heavily on the comparison between third parties and political parties, there was another very relevant comparison here – between the previous version of the legislation and the amended version. Despite not expressly referencing the change in legislation, the evidence that the previous version of the legislation achieved the government’s goal is relied upon to conclude that it was not minimally impairing. This is an important development and lends support to our argument that a change in law is relevant, particularly when determining if it is justified under s. 1.”

Taoran Li is a Research and Communications Assistant with the Asper Centre. She is an international student from New Zealand attending the Master of Laws program at the University of Toronto Faculty of Law.

Kimberly Murray presents findings from Report on Missing and Disappeared Indigenous Children and Unmarked Burials in Canada

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By Taoran Li

On 25 February 2025, the Asper Centre welcomed Ms. Murray to present the bi-annual Morris A. Gross Memorial Lecture.

From June 2022 until December 2024, Ms. Murray was the Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites associated with Indian Residential Schools. She is currently the National Scholar in Indigenous Legal Studies at the Queens University Faculty of Law. The formal introduction for Ms. Murray was given by Professor Kent Roach, who sat on the Expert Panel on Policing in Indigenous Communities (convened by the Council of Canadian Academies) of which Ms. Murray was the Chair of the Panel. Professor Roach also worked with Ms. Murray when she was the Executive Director of Aboriginal Legal Services.

As the Independent Special Interlocutor, Ms. Murray bore the crucial responsibility of making recommendations for a new federal legal framework to help identify and protect the unmarked graves and burial sites associated with former Indian Residential Schools across the country. In the process of formulating recommendations, Ms. Murray took part in conversations with Survivors, Indigenous families and communities who are leading the work of recovering the missing children and unmarked burials, and with governments, churches, and organizations.

In the lecture, Ms. Murray presented some of the important findings in the Final Report. She started by explaining the principles which guided her work, which were formulated with survivors and elders. The principles included that the bodies and Spirits of the missing and disappeared Indigenous children must be treated with honour, respect, and dignity, and that Indigenous families and communities have the right to know what happened to their children who died while in the care of the State and churches.

Ms. Murray outlined some of the powerful and indisputable history evidence contained in the Report of genocide, crimes against humanity and mass human rights violations in the Indian Residential School System. She also shared examples of burial locations with images of historical records that supported testimonies of survivors. One particularly harrowing story was of young boy called George Painter who was accused and eventually convicted of setting a fatal fire at the Cross Lake Indian Residential School. He was 7 years old when he was sent to the residential school and had tried to escape the school. When the fire occurred, he was charged with the crime setting the fire, but Canada did not provide him with a lawyer. He pled guilty and was given the maximum sentence of life imprisonment which he served at stony mountain penitentiary. Efforts to have George released failed, including when George’s father attempted to have the case reviewed, but the Department of Indian Affairs did not support his parole. He died in Winnipeg General Hospital at the age of 32, having spent half of his life in prison and most of the first part of his life at a residential school. He was buried in the prison cemetery along with many other Indigenous peoples, marked only with numbers.

Emphasizing the distinction between “missing and “disappeared”, Ms. Murray urged us to use the language of the latter as it more accurately reflects Canada’s culpability and responsibility in the children’s deaths and disappearances. The children did not go missing by accident; the disappearances happened because of purposeful State violence, action and force. Evidence supporting this in the Report included showing that cemeteries were part of the residential schools from the outset and that the Government had planned for the deaths of the children.

Pursuant to international legal criteria, the enforced disappearance of children requires the State to ensure that a full investigation into the deaths of the children occurs, that families be notified of the fate of the children, and that remedies be provided to the victims, including their families and communities. Canada therefore has an international obligation to establish a commission of investigations into missing and disappeared indigenous children and unmarked burials.

Because Canada cannot investigate its own wrongdoing, Ms. Murray considered Indigenous Nations, exercising their sovereignty, are best placed to lead these investigations. She found this to be best executed through legislation that upholds Indigenous sovereignty and laws.

In her cogent pronouncement, Ms. Murray said that it is time for Canada to shift from a culture of amnesty and impunity to a culture of accountability and justice. This must start with a proper Indigenous-led reparations framework of the many human rights violations, which must be developed through an anti-colonial lens that highlights the importance of Indigenous laws, international human rights and the United Nations Declarations on the Rights of Indigenous Peoples.

Finally, Ms. Murray repeated the call in the Report’s final chapter for Canadians to become upstanders to reconciliation: to be receptive about and fully acknowledge that atrocities, genocide and crimes against humanity have been committed against Indigenous people and proactively foster reconciliation based on truth, accountability and justice. She concluded the lecture with words shared by Natan Obed, President of the Inuit Tapiriit Kanatami at the national event in Iqaluit, who said “there is a point where we have to look people in the eye and tell them that their conduct is unacceptable and that some things are non-negotiable”.

This point in time, Ms. Murray enjoined, is now, and we must all tell the Canadian government that its conduct has been and continues to be unacceptable. It must now provide full reparations for the crimes against humanity it has perpetrated on Indigenous children, families and communities.

Taoran Li is a Research and Communications Assistant with the Asper Centre. She is an international student from New Zealand attending the Master of Laws program at the University of Toronto Faculty of Law.

Asper Centre hosts panel on Indigenous Child Welfare and Self-Governance

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by Taoran Li

On 31 October 2024, the Asper Centre’s Indigenous Rights Working Group presented a panel event to unpack the significant legal issues and potential future implications of two recent decisions on Indigenous child welfare and self-governance. The decisions Haaland v Brackeen, 599 U.S 255 (2023) issued by the Supreme Court of the United States and Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5  issued by the Supreme Court of Canada, determined the validity of federal legislation introduced to address historic and ongoing harms caused by the apprehension of Indigenous children from their families by settler governments in both Canada and the United States.

The panel, moderated by Cheryl Milne, the Executive Director of the Asper Centre, consisted of Maggie Blackhawk, professor at New York University and teacher of federal Indian law, constitutional law and legislation; Sara Mainville, partner at JFK Law LLP and Chief of Couchiching First Nation; and, Professor John Borrows, the Loveland Chair in Indigenous Law at the University of Toronto Faculty of Law.

The idea for the panel and the questions formed for the panelists were the result of research conducted by the Asper Centre’s Indigenous Rights Working Group in 2023. Isabel Klassen-Marshall, one of the co-leaders for the Working Group began the discussion by introducing the facts and issues in the two cases. In Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 the Canadian Supreme Court considered the validity of “An Act Respecting First Nations, Inuit and Metis Children, Youth and Families” or Bill C-92, an Act passed by Parliament in 2019. The Act formally recognized the inherent Aboriginal right of self-government, including jurisdiction over child and family services and established mechanisms through which Indigenous communities can exercise their authority, either by enacting their own laws or through coordination agreements negotiated with federal and provincial governments.

In response to a reference question triggered by the Attorney-General of Quebec, the Quebec Court of Appeal held the provisions in the Act to be valid, except for the provisions which gave Indigenous laws the force of federal law. Upon appeal to the Supreme Court, the Supreme Court of Canada upheld the Act as a whole as constitutionally valid. The Supreme Court’s approach differed from the Quebec Court by recognizing constitutionality through a federalism analysis, rather than a finding of a generic s 35 right to self-government over child and family services. The Court held that the Parliament’s explicit affirmation of an inherent right to self-government was an expression of Parliament’s position on the scope of s 35, rather than any amendment of the Constitution or actual recognition of a s 35 right.

Haaland v Brackeen related to a constitutional challenge to the Indian Child Welfare Act (ICWA), brought by the State of Texas, three families who wished to adopt or foster Indigenous children and an Indigenous woman who wanted non-Indigenous parents to adopt her biological child. The ICWA is a federal law enacted in 1978 providing for minimum standards for foster care and adoption cases involving Indigenous children. It overrides aspects of state family law to preserve the stability of tribal nations and communities, including a placement preference in adoption cases for relatives, members of the child’s tribe, and members of other Indigenous families. The claimants’ challenge comprised many grounds, including that Congress lacked the authority to enact ICWA and that ICWA violated the Equal Protection Clause as the law prioritized placement of children based on race rather than understandings of Indigenous nationhood. The U.S. Supreme Court dismissed the challenge and upheld ICWA. In doing so, it confirmed Congress has a broad plenary power to legislate with respect to different tribal nations. The equal protection claim was dismissed on the basis of standing.

The panel discussion covered many practical and theoretical implications of the decisions: from the mechanisms and architecture of Bill C-92 for resolving conflict between Indigenous and provincial laws and individual and collective rights, to how the decisions impact the existing division of powers regarding child welfare between federal and provincial governments, to how the lower courts are already interpreting and applying the legislation. A strong theme throughout the discussion was the underlying colonial dimension to the decisions and the unresolved question of inherent Indigenous self-government. Professor Borrows noted that by only recognising that the Bill C-92 legislation “acts as if” there is inherent right to self-government under s 35, the Supreme Court of Canada is not committed to uphold or deny the fact that Indigenous peoples might have an inherent right to self-government in their relationship to their child and family services. On the other hand, Professor Borrows commented this incrementalism has a positive element as Parliament binds itself to proceed as if that right already exists and allows parties to gain experience in exercising responsibilities with regards to child well-being.

Similarly, the colonial dimension also permeates through Haaland v Brackeen in the context of American colonialism. Professor Blackhawk explained that the Supreme Court in upholding ICWA both reaffirmed the power of American colonialism but also expressed concerns over its limits. The Court reaffirmed American colonialism by confirming the power Congress had to colonize Native Americans within the territorial borders of the United States lies in the “powers inherent in sovereignty” in the Constitution of the United States. This term captures a body of laws from the 18th and 19th centuries founded upon concepts such as the law of nations and natural law, which rested on the right of “civilized nations” to govern “savage nations” through forms of colonization. The body of laws was eventually flattened into the plenary power doctrine, where the court withheld using its own review power to oversee the process of colonialism due to the political branches possessing “plenary power”. In this sense, Haaland v Brackeen represents an odd juncture where reconstruction amendments that aim to solve the failure of human enslavement are also furthering the American colonial project.

Sara Mainville brought a critical practitioner viewpoint to the panel and explained the available mechanisms to Indigenous governing bodies in Canada to enforce their own laws and how those mechanisms would interact with existing provincial enforcement systems and laws. Sara first drove home the message that the 19th century governance of the Indian Act is still a reality for Indigenous peoples in Canada, and that governance capacity for Indigenous communities presents a great challenge. However, Bill C-92 does assist Indigenous governing bodies, including section 20(3) of the Act which provides that the laws of an Indigenous governing body who has entered into a coordination agreement, or made reasonable efforts to do so for one year, will have the force of federal law. This section is an example of innovation in Bill C-92 that helps to resolve issues in advance of coordination agreement negotiations.

To reiterate a point made by Professor Blackhawk, there is space for colonized people to share strategies that have been empowering in their colonial jurisdictions. The panel is illustrative of the merits of this.

View the webcast of the panel discussion HERE.

Taoran Li is a Research and Communications Assistant with the Asper Centre. She is an international student from New Zealand attending the Master of Laws program at the University of Toronto Faculty of Law.

The SCC in R v J.J.: Upholding the Constitutionality of Criminal Code Reforms which Remove Barriers that Deter Sexual Assault Complainants from Reporting

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By: Caitlin Salvino

On June 23rd, 2022 the Supreme Court of Canada (SCC) released its decision in R v J.J..[1] This 6–3 ruling upheld the constitutionality of recent amendments to the Criminal Code that remove barriers for complainants within the sexual assault trial processes. This piece provides an overview of the history of sexual assault provisions in the Criminal Code and the SCC’s decision in J.J..

History of Sexual Assault Criminal Code Provisions

In 1983, the Criminal Code was reformed to narrow the provisions of “rape” and “indecent assault” into three levels of sexual assault.[2] The 1983 reforms also removed exemptions for marital rape and prohibited evidence on the complainant’s sexual history, subject to  limited exceptions.[3] Following the 1983 Criminal Code reforms, the constitutionality of limits on complainant sexual history evidence was challenged in R v Seaboyer.[4] In Seaboyer, the SCC struck down the Criminal Code provisions related to sexual history, finding that they excluded relevant evidence that would interfere with the accused’s right to make a full answer and defence.[5] The SCC held that these provisions were overbroad as they did not minimally impair the accused’s procedural rights.

In response to Seaboyer, Parliament re-introduced Criminal Code provisions that limited complainant sexual history evidence. These reformed sexual history provisions were deemed constitutional by the SCC in R v Darrach[6] and remain in place today under section 276 of the Criminal Code. These section 276 protections, also known as the “rape shield law”, establish that evidence related to the complainant’s sexual history is inadmissible if it supports assumptions that the complainant is: (1) more likely to have consented to the sexual activity at issue during the trial or (2) less worthy of belief.[7] Section 276 creates an exception to the prohibition of evidence related to sexual history, that requires four criteria to be met: (1) the evidence is not being introduced for the above mentioned assumptions (consent and belief), (2) the evidence is relevant to an issue at trial, (3) the evidence is of specific instances of sexual activity, and (4) the evidence has significant probative value that is not “substantially outweighed by the danger of prejudice to the proper administration of justice”.[8] Section 276(3) lists numerous considerations that judges must take into account during a sexual history evidence admissibility hearing, including society’s interest in encouraging reports of sexual assault and the potential bias against the complainant’s dignity and privacy.[9]

2018 Legislative Reforms to Sexual Assault Evidence Admissibility

Despite the existing rape shield law protections, barriers remain within the criminal justice system for individuals who experience sexual assault. Only 5% of all sexual assaults are reported to police.[10] There is attrition of sexual assault cases at all levels of the criminal justice system. Data from Statistics Canada found that “an accused was solely identified in three in five (59%) sexual assault incidents reported by police; less than half (43%) of sexual assault incidents resulted in a charge being laid; of these, half (49%) courted; of which just over half (55%) led to a conviction; of which just over half (56%) were sentenced to custody”.[11]

In response to the low levels of sexual assault reporting, Parliament in 2018 enacted further reforms to sexual assault trial procedures. Under sections 278.92 and 278.94 of the Criminal Code, Parliament passed amendments creating new procedures for screening complainant evidence to be introduced in a trial.[12] Prior to these amendments there were no procedures for the admissibility of complainant records held by the accused.[13] However, there were procedures for the admissibility of evidence related to the complainant’s prior sexual history under section 276 of the Criminal Code and there were procedures for the admissibility of complainant records held by third parties under section 278 of the Criminal Code. In relation to the latter, the defence can request access to third party records of the complainant to use as evidence in criminal trials.[14] This evidence includes records from medical and counselling centres, child welfare agencies, residential and public schools, drug and alcohol rehabilitation centres, immigration services, and sexual assault crisis centres.[15] The constitutionality of the third-party records processes under section 278 of the Criminal Code was upheld in R v Mills.[16]

The 2018 Criminal Code reforms sought to address this gap in the sexual assault legislative scheme and create processes governing the admissibility of complainant private records held by the accused. The twin Criminal Code provisions of sections 278.92 and 278.94 create a two-stage process for the introduction of records in sexual assault trials, with a focus on increasing the participation of sexual assault complainants. At the first stage, per section 278.93(2), the accused must submit an application to the judge that “set[s] out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial”.[17] Subsequently, the judge will review the application considering the threshold tests under sections 278.92(2)(a) and (b) and depending on the type of evidence will also consider the factors laid out in sections 276(3) or 278.92(3) of the Criminal Code. If the judge determines that the application meets the threshold evidence requirements, they will proceed to stage two.[18]

At the second stage, the judge will hold a hearing to determine if the evidence should be admitted under the test set out in section 278.92(2) of the Criminal Code. The section creates differing admissibility tests for section 276 evidence and private records evidence. First, as already discussed, section 276 evidence applications must meet the conditions under section 276(2) and judges must consider the factors laid out in section 276(3).[19] Second, private records applications undergo the admissibility test laid out in section 278.92(2)(b).[20] This provision requires that the evidence meets two conditions: (1) the evidence is relevant to an issue at trial, and (2) the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.[21] These two conditions must be examined with consideration of the factors listed in section 278.92(3).[22] At the second stage of the evidence admissibility process, the Criminal Code provisions permit the complainant to appear at the hearing and make submissions with assistance of counsel. The complainant’s participation does not extend to the trial and is limited to a victim’s impact statement at sentencing.[23]

The Constitutionality of the Complainant Records Admissibility Processes

Shortly following the passing of the 2018 Criminal Code amendments, their constitutionality was challenged. Two individuals charged with sexual assault (J.J. and Shane Reddick) argued that sections 278.92 and 278.84 of the Criminal Code violated their Charter rights, including the right to silence and the privilege against self-incrimination under sections 7 and 11(c); their right to a fair trial under sections 7 and 11(d); and their right to make a full answer and defence under sections 7 and 11(d).[24] The SCC majority decision, written by Chief Justice Wagner and Justice Moldaver, held that the 2018 amendments to the Criminal Code were constitutional.

First, at the outset, the SCC dismissed the claim that the evidence admissibility process engages the right to silence and the privilege against self-incrimination under sections 7 and 11(c) of the Charter.[25] The SCC made this finding on the basis that during the evidence admissibility processes the accused is not compelled to testify.[26]

Second, the SCC rejected that the evidence admissibility provisions infringe the accused’s right to a fair trial under sections 7 and 11(d) of the Charter. To begin, the SCC affirmed that in the context of the right to a fair trial, sections 7 and 11(d) must be assessed together because they are inextricably intertwined.[27] The SCC held that fair trial rights are not infringed because the evidence admissibility procedures reaffirm the fundamental principle of evidence law that only relevant evidence is admitted. The right to a fair trial does not extend to an unlimited right to have all evidence admitted. Instead, the accused’s Charter rights are only infringed when they are not able to admit relevant evidence.[28]

Third, the SCC held that the sexual assault complainant’s participation in the second stage of the evidence admissibility process does not infringe the rights of the accused to make a full answer and defence under sections 7 and 11(d) of the Charter. The SCC determined that the complainant’s participation does not impact the accused’s disclosure rights or undermine prosecutorial independence.[29] Further, the SCC rejected that the accused’s right to make a full answer and defence is undermined by the complainant learning of the evidence to be admitted before the trial. The SCC held that this right does not include having the complainant’s initial emotional reaction to introduced evidence occur during the trial.

Due to the determination that the evidence admissibility procedures for sexual assault do not infringe any Charter rights, the SCC declined to conduct a section 1 analysis to determine if a Charter infringement is demonstrably justified.[30]  

Looking Ahead

The Criminal Code provisions related to sexual assault have undergone extensive reform and litigation over the past forty years. The creation of admissibility procedures for evidence in sexual assault trials and the inclusion of complainant participation options is the most recent legislative reform enacted by Parliament to remove barriers to reporting sexual assault. The SCC in J.J. upheld the constitutionality of the sexual assault evidence admissibility procedures.[31] In doing so, the SCC recognised continued barriers to reporting for individuals who experience sexual assault and held that “more needs to be done”.[32]

Caitlin Salvino is a JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.

 

[1] R v J.J., 2022 SCC 28 [J.J.].

[2] The Criminal Code of Canada classifies sexual assault into three different levels: Level 1: (s. 271 – Sexual Assault) Any form of sexual activity forced on another person (i.e., sexual activity without consent), or non-consensual bodily contact for a sexual purpose (e.g., kissing, touching, oral sex, vaginal or anal intercourse). Level 1 sexual assault involves minor physical injury or no injury to the victim. Conviction for a level 1 sexual assault is punishable by up to 10 years in prison. Level 2: (s. 272 – Sexual Assault with a weapon, threats to a third party or causing bodily harm) A sexual assault in which the perpetrator uses or threatens to use a weapon, threatens the victim’s friends or family members, causes bodily harm to the victim, or commits the assault with another person (multiple assailants). Conviction for a level 2 sexual assault is punishable by up to 14 years in prison. Level 3: (s. 273 – Aggravated sexual assault) A sexual assault that wounds, maims, or disfigures the victim, or endangers the victim’s life. Conviction for a level 3 sexual assault is punishable by up to life in prison. See Criminal Code, RSC 1985, c. C-46, ss 271-273; Martha Shaffer, “The impact of the Charter on the law of sexual assault: plus ca change, plus c’est la meme chose” (2012) 57 SCLR 354.

[3] Shaffer, supra note 2 at 337-338.

[4] R v Seaboyer, [1991] 2 SCR 577, 83 DLR (4th) 193.

[5] Ibid at 582-585.

[6] R v Darrach, 2000 SCC 46.

[7] Criminal Code, supra note 2, s 276 (1).

[8] Ibid at s 276 (2).

[9] Ibid at s 276 (3)

[10] Department of Justice Canada, “Sexual Assault – JustFacts”, (31 January 2017), online: https://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2017/may02.html.

[11] Statistics Canada, “From arrest to conviction: Court case outcomes of police-reported sexual assaults in Canada, 2009 to 2014”, (26 October 2017), online: https://www150.statcan.gc.ca/n1/pub/85-002-x/2017001/article/54870-eng.htm.

[12] An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, SC 2018, c 29.

[13] J.J., supra note 1 at para 4.

[14] Criminal Code, supra note 2, s 278.3(2) – 278.3(5)

[15] Karen Busby, “Discriminatory uses of personal records in sexual violence cases” (1996) 9:1 CJWL 148 at 149.

[16] R v Mills, [1999] 3 SCR 668, 180 DLR (4th) 1.

[17] Criminal Code, supra note 2, s 278.93 (2).

[18] J.J., supra note 1 at para 28-29.

[19] Ibid at para 31.

[20] Ibid at para 32.

[21] Criminal Code, supra note 2, s 278.92(2)(b)

[22] The factors to consider include society’s interest in encouraging the reporting of sexual assault offences and the potential prejudice to the complainant’s personal dignity and right of privacy. For an exhaustive list, see ibid at s 278.92(3).

[23] J.J., supra note 1 at para 33.

[24] Ibid at para 112.

[25] Ibid at paras 148-150.

[26] Ibid.

[27] Ibid at para 114.

[28] Ibid at paras 125 and 129.

[29] Ibid at paras 151 and 176.

[30] Ibid at para 191.

[31] Ibid.

[32] Ibid at para 2.