For Immediate Release – Thursday, June 30, 2022

Ottawa, unceded Algonquin Anishinaabe territory—The Supreme Court of Canada released a decision today that will improve protections for sexual assault survivors in criminal trials.

The decision in R v J.J. and A.S. v Her Majesty the Queen et al. has significant implications for how courts handle sexual assault cases. It upholds 2018 Criminal Code reforms that both restrict an accused person’s ability to rely on a survivor’s private records and expand the right of survivors to participate in court applications that decide when and how their private information can be used at trial.

“We know that access to justice is not a reality for all survivors of sexual violence,” says Dalya Israel, Executive Director at WAVAW Rape Crisis Centre. “However, this ruling means that survivors who do gain access to the criminal justice system can count on some protection of their privacy, and it also continues the work of demonstrating that survivors are worthy of having their rights upheld before the court. We will remain vigilant in watching how today’s decision unfolds before the courts.”

West Coast LEAF and WAVAW Rape Crisis Centre jointly intervened in the two appeals being heard together to discuss the critical role that complainants can play in enforcing their own privacy, equality, and security rights in criminal trials. This includes their ability to participate in evidentiary applications with the support of independent legal representation.

“Today’s decision means that survivors of sexual assault will no longer be dependent on Crown counsel to put their perspectives and experiences before the court. Courts need to hear directly from survivors, especially those who are at highest risk of systemic discrimination in the criminal justice system, such as Indigenous women and sex workers,” says Kate Feeney, West Coast LEAF’s Director of Litigation.

Before the 2018 Criminal Code reforms, defence counsel could surprise a survivor during cross-examination with their own private records. Aside from potentially destabilizing and distressing the survivor, this tactic often was used to support prejudicial or stereotypical ways of thinking about the survivor’s testimony. The Supreme Court of Canada’s ruling has put this type of “trial by ambush” squarely in the past.

While today’s decision is an important milestone in the development of survivors’ rights in criminal trials, West Coast LEAF and WAVAW Rape Crisis Centre remain concerned about how trial courts will decide which records are sufficiently private to attract these protections at all. Unfortunately, today’s decision suggests that complainants could be shut out of the hearings to decide this fundamental question.

“The devil is in the details,” says Dalya Israel. “The question of which records are captured by these privacy protections is critical to how meaningful these protections will be in reality. We call on courts to ensure that survivors and their counsel can participate in decisions such as this, which will define the very scope of survivors’ rights.”

West Coast LEAF and WAVAW Rape Crisis Centre are represented by pro bono counsel Gloria Ng and West Coast LEAF’s Director of Litigation Kate Feeney.

Read the Supreme Court of Canada decision.

Read West Coast LEAF and WAWAW Rape Crisis Centre’s written arguments for R v J.J. and A.S. v Her Majesty the Queen et al.

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Media Contacts:

Dalya Israel
Executive Director, WAVAW Rape Crisis Centre
dalya@salalsvsc.ca

Kate Feeney
Director of Litigation, West Coast LEAF
kfeeney@westcoastleaf.org

About West Coast LEAF

West Coast LEAF is a non-profit organization formed in 1985, the year the equality guarantees of the Canadian Charter of Rights and Freedoms came into force. West Coast LEAF’s mandate is to use the law to create an equal and just society for all women and people who experience gender-based discrimination in BC. In collaboration with community, we use litigation, law reform, and public legal education to make change. For more information, visit westcoastleaf.org.

About WAVAW Rape Crisis Centre

WAVAW is a feminist, anti-oppressive, decolonizing rape crisis centre operating on unceded Coast Salish Territories. WAVAW provides support services to survivors of sexualized violence who have shared experiences of gender marginalization: cis and trans women, Two-Spirit, trans and/or non-binary people. WAVAW advocates for social and systemic change through education, outreach, and activism. For more information, visit salalsvsc.ca.