Private Records, Sexual Activity Evidence and the Charter of Rights and Freedoms

38 Pages Posted: 17 Mar 2021 Last revised: 1 Sep 2021

Abstract

The Parliament of Canada has created a new regime dictating the process and admissibility criteria for private records (potentially including digital communications such as emails and texts) that are in the accused's possession in sexual assault proceedings. The legislation also includes new procedural requirements for applications to introduce evidence of a complainant’s other sexual activity under section 276 of the Criminal Code. Several courts have concluded that various parts of these new provisions – which some have nicknamed the ‘Ghomeshi Rules’ – are unconstitutional. The problem with these decisions is that in each one the court has failed to properly balance the competing interests at stake. Stated most plainly, each of them overstates the impact of these provisions on the accused’s right to a fair trial and understates the competing interests to be balanced in an analysis of the constitutionality of these new laws. This article confronts two problematic aspects of the assessment of the impact on the accused’s rights in these cases: hyperbolic assertions about the impact of notice to the complainant on the right to cross-examination and assumptions about the impact of disclosure to the complainant on the truth-seeking function of the trial. This analysis is done, in part, through a case study of the trial transcript in R v Ghomeshi because several of these cases appear to have been litigated or adjudicated in the shadow of Ghomeshi. The article concludes with an assessment of the competing interests that must be balanced with the accused’s right to a fair trial: the complainant’s privacy, equality and dignity interests and the societal interest in encouraging survivors to report sexual offences.

Keywords: sexual assault, evidence, text message, Facebook posts, social media, prior sexual history, private records, Ghomeshi, rape, therapeutic records, counselling records

Suggested Citation

Craig, Elaine, Private Records, Sexual Activity Evidence and the Charter of Rights and Freedoms. Alberta Law Review, Vol. 58, No. 4, 2021, Available at SSRN: https://ssrn.com/abstract=3805035

Elaine Craig (Contact Author)

Dalhousie University ( email )

6061 University Avenue
Halifax, Nova Scotia
Canada

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