Defending the privacy and equality rights of sexual assault survivors

West Coast LEAF and Salal Sexual Violence Support Centre, formerly WAVAW, have been granted leave to jointly intervene in two appeals before the Supreme Court of Canada that address the constitutionality of new protections for complainants in sexual assault trials.

The cases, R. v J.J. (an appeal and cross-appeal arising out of BC), and A.S. v Her Majesty the Queen (an appeal arising out of Ontario), will be heard together in October of 2021.

In 2018, Parliament amended the Criminal Code to restrict the accused’s ability to use and/or surprise the complainant during trial with the complainant’s private records, such as a diary, health records, or text messages. These provisions aim to support complainants’ privacy and equality rights; they also prevent myths and stereotypes about sexual assault from seeping into the trial process through the irrelevant and prejudicial use of private information.

Parliament also gave complainants the right to participate—and be represented by their own lawyer— in applications by the accused to use the complainant’s private records or information about the complainant’s sexual history.

West Coast LEAF and Salal are intervening to make arguments about how critically important it is for the complainant to participate in applications that determine if and how the accused can use the complainant’s private information.

For too long, complainants were asked to rely on others—Crown counsel, defence counsel, and the trial judge—to ensure that their private information was not being used in an unfair or abusive way. This paternalistic approach was simply not working. This is especially true for complainants who are most likely to face bias and stereotypes in the trial process, such as IBPOC complainants, complainants with disabilities, and sex workers.

Now, with the assistance of a lawyer, complainants can speak in their own voices about what is at stake in these applications and how the law should be interpreted and applied.

Criminal sexual assault trials have a long history of unnecessarily revictimizing complainants, in part because of enormous power differentials between complainants and the other trial actors. Allowing complainants to vigorously defend their own rights chips away at these power differentials and ultimately protects the fairness and integrity of the trial process.

We are grateful to pro bono counsel Gloria Ng for her work on this case.

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