By: Caitlin Salvino
On June 23rd, 2022 the Supreme Court of Canada (SCC) released its decision in R v J.J.. 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. The 1983 reforms also removed exemptions for marital rape and prohibited evidence on the complainant’s sexual history, subject to limited exceptions. Following the 1983 Criminal Code reforms, the constitutionality of limits on complainant sexual history evidence was challenged in R v Seaboyer. 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. 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 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. 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”. 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.
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. 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”.
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. Prior to these amendments there were no procedures for the admissibility of complainant records held by the accused. 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. 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. The constitutionality of the third-party records processes under section 278 of the Criminal Code was upheld in R v Mills.
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”. 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.
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). Second, private records applications undergo the admissibility test laid out in section 278.92(2)(b). 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. These two conditions must be examined with consideration of the factors listed in section 278.92(3). 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.
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). 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. The SCC made this finding on the basis that during the evidence admissibility processes the accused is not compelled to testify.
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. 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.
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. 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.
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. In doing so, the SCC recognised continued barriers to reporting for individuals who experience sexual assault and held that “more needs to be done”.
Caitlin Salvino is a JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.
 R v J.J., 2022 SCC 28 [J.J.].
 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.
 Shaffer, supra note 2 at 337-338.
 R v Seaboyer,  2 SCR 577, 83 DLR (4th) 193.
 Ibid at 582-585.
 R v Darrach, 2000 SCC 46.
 Criminal Code, supra note 2, s 276 (1).
 Ibid at s 276 (2).
 Ibid at s 276 (3)
 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.
 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.
 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.
 J.J., supra note 1 at para 4.
 Criminal Code, supra note 2, s 278.3(2) – 278.3(5)
 Karen Busby, “Discriminatory uses of personal records in sexual violence cases” (1996) 9:1 CJWL 148 at 149.
 R v Mills,  3 SCR 668, 180 DLR (4th) 1.
 Criminal Code, supra note 2, s 278.93 (2).
 J.J., supra note 1 at para 28-29.
 Ibid at para 31.
 Ibid at para 32.
 Criminal Code, supra note 2, s 278.92(2)(b)
 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).
 J.J., supra note 1 at para 33.
 Ibid at para 112.
 Ibid at paras 148-150.
 Ibid at para 114.
 Ibid at paras 125 and 129.
 Ibid at paras 151 and 176.
 Ibid at para 191.
 Ibid at para 2.