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

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.

Moving Towards Substantive Equality in Sentencing: R v Morris

by: Bailey Fox

Introduction

In R v Morris, 2021 ONCA 680, the Ontario Court of Appeal (OCA) considered the impact and role of anti-Black racism in sentencing. The Asper Centre intervened in the appeal, specifically on the issue of whether an offender is required to prove a causal link between systemic racism and the offence. The Court’s decision is both ground-breaking, in recognizing the impact of systemic racism in sentencing, but aspects of the decision also limit the impact it may have in realizing substantive equality.

Mr. Morris was found guilty of gun-related offences, including possession of a loaded handgun. The sentencing judge, having accepted pre-trial sentencing reports detailing the impact of anti-black racism on Mr. Morris’ life and actions, sentenced him to a mitigated 15-month sentence. The Crown appealed the sentence, arguing that it is unfit and not commensurate with the seriousness of the offence. The Court of Appeal agreed with the Crown and increased Mr. Morris’ sentence to two years but stayed the sentence. In lengthy reasons, the Court clarified the role of anti-Black racism in assessing the offender’s blameworthiness, how to prove the impact of systemic racism, and the interaction between the fact of racism and sentencing principles.

Taking Steps…

Aspects of the decision are important for defence lawyers hoping to advance substantive equality in the criminal law. Specifically, the Ontario Court of Appeal acknowledged the existence and negative effects of anti-Black racism in society and in the criminal justice system. The Court held that anti-Black racism should be considered in the sentencing process, specifically in assessing the offender’s moral blameworthiness. Importantly from an access to justice perspective, the OCA held that judges may take judicial notice of anti-Black racism and Black individuals should not be required to tender expert reports detailing the existence of anti-Black racism and its impact on them.

The Court also held that an offender need not demonstrate a causal link between systemic racism and the relevant offence, a holding in line with the Asper Centre’s submissions and the objectives of substantive equality. As an intervenor, the Asper Centre submitted that an offender should not be required to prove a causal link between systemic anti-black racism and the offending conduct. The Asper Centre highlighted that proving such a causal link is not required in other circumstances, such as in the case of youthful offenders or offenders with mental illness. The Asper Centre also submitted that the requirement to prove a causal link is not compatible with the objectives of substantive equality. While an offender may show evidence of how systemic factors affected them, a requirement to demonstrate a causal link would place an undue evidentiary burden on offenders. In holding that a causal link is not required, the Ontario Court of Appeal’s reasons largely mirror the Asper Centre’s submissions on this point. The Court held that while there must be some connection between systemic racism and the criminal conduct, causation “plays no role when considering the impact of an offender’s background or circumstances on sentencing” (para 96 – 97) The court concluded that social context evidence can be useful in explaining the offence and mitigating the offender’s moral culpability (para 99).

…Cautiously…

However, the Court also limited the utility and scope of recognizing anti-Black racism in sentencing. First, the Court held that sentencing judges may only take the role of anti-Black racism into account when considering the offender’s moral culpability but not in considering the seriousness of the offence (para 75). According to sentencing principles, the more serious the offence – and gun-related offences are generally considered more serious – the more a sentence should emphasize the principles of denunciation and deterrence. The OCA held that anti-Black racism cannot reduce an evaluation of the seriousness of the offence and therefore deterrence and denunciation remain important objectives when sentencing Black individuals. This holding however, maintains a cognitive dissonance between society’s collective responsibility for systemic racism and the individual’s conduct – that anti-Black racism does not affect the principle of denunciation impedes both recognizing the impact of racism and addressing it. In concluding that the sentencing judge erred in taking anti-Black racism into account in the context of assessing the seriousness of the offence, the Court of Appeal signals that systemic racism can affect sentencing, but only to a point.

While the case did not explicitly invoke the Charter’s s.15 equality guarantee, the Court’s analysis is very thin on the interaction between s.15, and the goal of substantive equality, and sentencing. Specifically, while recognizing that an offender need not demonstrate a causal connection between the offence and racism, the Court held that a judge may take systemic racism into account and not that they must. Unlike the Nova Scotia Court of Appeal’s decision in R v Anderson, 2021 NSCA 62, the Court did not go so far as to say that it is an error of law if a sentencing judge fails to consider the impact of systemic anti-Black racism. This is unfortunate because under R v Morris, it remains the defence lawyer’s responsibility to raise the issue, and it is within the sentencing judge’s discretion as to how to apply such considerations. This could lead to uneven application of the Court’s findings in R v Morris.

While recognizing the fact of systemic anti-Black racism, the Court’s decision also clings to some conventional individual responsibility and tough on crime narratives in sentencing, therefore limiting the impact of the decision. Notably, the Court overturned the sentencing judge’s finding of fact on why Mr. Morris fled from the police. The sentencing judge had found that Mr. Morris fled at least in part because of an ‘impulsive reaction’ based on his fear of the police and that he would not be treated fairly. However, the OCA held that the ‘only reasonable inference’ is that Mr. Morris fled to avoid being caught (para 171). The Court does not explain why this is the only reasonable inference, or why it was an error to consider the systemic racism often reflected in policing of Black communities in this finding of fact. Similarly, the Court noted that members of the community would not consider “more lenient” sentences for gun crimes as advancing social equality (para 85). This finding, first, reflects and embeds an understanding of conditional sentences as lenient, as opposed to commensurate with the offender’s circumstances. Second, it assigns a ‘tough on crime’ perspective to the community without considering the impact of incarceration on community well-being. In embedding these perspectives in a decision while also recognizing that anti-Black systemic racism may be considered in sentencing, the Court limits the reach of the latter finding.

Conclusion

R v Morris is a promising step in the direction of promoting substantive equality in sentencing. The Court recognized that judges may take judicial notice of anti-Black racism and that offenders need not prove a causal link, holdings that will promote consideration of racism in sentencing. However, in limiting the role of systemic racism in the sentencing process while clinging to a tough on crime perspective, the Court limited the impact of its finding therefore inhibiting the potential for achieving substantive equality in the sentencing process.

Bailey Fox is a Research Assistant with the Asper Centre and is currently an LLM student at the University of Toronto, Faculty of Law.

Recapping Brandon Garrett’s Constitutional Roundtable on Wealth, Equal Protection, and Due Process

by Kylie de Chastelain

On Wednesday, October 2nd, 2019 the Asper Centre hosted Professor Brandon Garrett for a Constitutional Roundtable titled “Wealth, Equal Protection and Due Process.”

Professor Garrett presented work from a recent paper exploring “equal process” – a term he coined to describe the intersection between the Equal Protection and Due Process Clauses in the United States Constitution. “Equal process” claims have already arisen from Supreme Court and lower court cases where the main issue is wealth inequality, but courts have been wary of engaging with constitutional issues on a cumulative or intersectional basis. Garrett argues that the “equal process” approach should be more widely implemented to help address a series of pressing civil right issues, including the constitutionality of fines, loss of voter rights or driver’s licenses, and detention for inability to pay cash bail.

To illustrate the damaging effects of “punishing the poor,” and the need for an “equal process” approach, Garrett presented findings from a compelling empirical research study he conducted at Duke Law’s JustScience Lab. The study examined driver’s license suspensions in North Carolina from 1996-2018. In North Carolina, licenses can be suspended for a failure to pay traffic tickets or failure to appear in court. Many states have similar legislation. However, in North Carolina, as elsewhere, insufficient public transit options make driving a necessity. The loss of one’s license can have substantial material effects on livelihood and employment.

Garrett and his team found that approximately 1 out of 7 driving-age individuals in North Carolina currently have suspended licenses, for a total of 1,225,000 active suspensions. Of these, 827,000 are for a failure to appear in Court, 263,000 are for a failure to comply with orders to pay traffic fines or court fees, and 135,000 are for both. This data was further analyzed against race and class metrics to find that driver’s license suspensions occur disproportionately in low-income and non-white populations. In other words, license suspension and legal procedure of this kind punish people for poverty; something the Equal Protection Clause explicitly aims to prevent.

Historically, U.S. courts have been unwilling to examine constitutional issues such as these in creative ways, preferring to examine constitutional matters in isolation. This clause-by-clause tactic, Garrett argues, fails to adequately address the complex issues arising from poverty. An interdisciplinary approach yields better results.

For example, in Bearden v Georgia, 461 U.S. 660 (1983), a man who was sentenced to probation and ordered to pay $750 in fines but could not afford to do so eventually had his probation revoked. The Bearden Court explicitly merged Equal Protection and Due Process analyses in this case, noting that a classic procedural approach – where fine amounts are automatic regardless of ability to pay – was inherently unjust. Instead, the Court examined why the man could not pay and explored whether alternative measures could equally serve the state’s interest. Implementing a delayed payment plan, reducing the fine, or ordering time in public service could all fulfill requirements for punishment and restitution without unduly compounding the effects of poverty in this man’s life. Like this, the “equal process” approach could empower courts and litigators to raise joint claims and establish more just modes of penalty.

In this way, Professor Garrett argues, Bearden provides courts and lawyers with a strong basis for raising and trying joint claims. Adopting an “equal process” approach could empower courts to re-examine their objectives and interests in handing down punishment to society’s most vulnerable.

Following Professor Garrett’s presentation, Professor Vincent Chiao offered his comments and insight into the Canadian context. R v Boudreault, 2018 SCC 58 is a recent notable case where the Supreme Court of Canada struck down the mandatory victim surcharge provision of the Criminal Code on the basis that it was unconstitutional. As Chiao noted, the Court’s analysis in Boudreault did not focus on due process or equality but on gross disproportionality and cruel and unusual punishment as per s. 12 of the Charter.

The decision in Boudreault marked a clear departure from R v Tinker 2017 ONCA 522, where the Court reinstated victim surcharges against appellants on the basis that they were “rationally connected” to aims regarding remedy for criminal activities and accountability to victims. In Tinker, s. 12 arguments addressing cruel and unusual punishment were dismissed. But in Boudreault, as in Bearden, the Court acknowledged that victim surcharges compound the effects of poverty, effectively creating ongoing debts that are impossible for offenders to repay. Chiao emphasized that although the result in Boudreault was encouraging, Professor Garrett’s “equal process” approach could help elucidate intersectional, equality-focused jurisprudence in Canada moving forward.

Kylie de Chastelain is a 1L JD student at the Faculty of Law and is the current Asper Centre work-study student.

Unpacking the Issues in the Upcoming TWU Appeals at the Supreme Court of Canada

by Tal Schreier

On November 30th and December 1st 2017, the Supreme Court of Canada will hear two appeals involving Trinity Western University (TWU), a private Christian university in British Columbia wishing to open a new law school. The appeals involve legal challenges to decisions by the law societies of British Columbia and Ontario and the impact of a policy that requires TWU students to sign a code of conduct forbidding sexual intimacy outside heterosexual marriage. Ontario decided to deny the accreditation of TWU law graduates in the future, while BC approved accreditation. The cases are expected to “break new constitutional ground” around how administrative decision-makers are to balance the competing Charter rights of equality and freedom of religion.

The David Asper Centre for Constitutional Rights is involved in three upcoming events at the University of Toronto’s Faculty of Law aimed at assisting students and the public in better understanding the key issues that are involved in the TWU cases. The Asper Centre  is jointly convening these events with Out in Law and the Journal of Law and Equality.

First, on November 23rd, ahead of the actual court dates, a Dean’s Emerging Issues Workshop Series panel discussion has been convened to consider and analyse some of the main issues that will be covered in the TWU appeals. The discussion will cover the administrative law issues involved, the balancing of competing rights and the unique circumstances regarding the involvement of public interest interveners in these cases. The panelists will include Professors Denise Reaume and Richard Stacey of the Faculty of Law, University of Toronto, Professor Richard Moon of the Faculty of Law, University of Windsor and Cheryl Milne, the Executive Director of the David Asper Centre for Constitutional Rights. Maryam Shahid, JD Candidate at the Faculty of Law and co-Editor of the Journal of Law and Equality will moderate the panel.

Second, on the actual hearing dates (Nov 30 and Dec 1) we have organized for the live-stream viewing of the arguments taking place at the Supreme Court of Canada. While the arguments are being live-streamed directly from the court, faculty members from the law school will provide commentary explaining the key issues as they arise. A schedule of “live-commentators” will be made available in due course.

Lastly, following the hearing, we will convene a post-TWU debriefing panel discussion. This presentation will provide an opportunity for some of the intervening parties’ counsel to discuss what transpired in the cases and what they may have liked to say to the court to better enrich the parties’ arguments, if not for the constraints involved. The date for this presentation will take place sometime in late January or early February of 2018.