Release: Survivors of sexual assault will be supported by a new legal toolkit to protect against invasive disclosure of private records and sexual history
VANCOUVER – Today, West Coast LEAF launched a toolkit for navigating the admissibility of evidence of a survivor’s sexual activity and the production of third-party records in criminal proceedings. Designed for lawyers representing survivors, the toolkit addresses section 276 and 278 Criminal Code matters. It provides an overview of the evolution of this area of law, practical advice for advancing these types of cases, and guidance on developing a trauma-informed practice.
The disclosure of private records and the introduction of evidence about a complainant’s sexual history can be a devastating intrusion into the lives of survivors of sexual assault and can act as a barrier to reporting sexual assault or accessing counselling and other support services.
Elba Bendo, Director of Law Reform at West Coast LEAF and the project lead, noted, “The current laws around the production of private records mean that everything a survivor tells their therapist can potentially, one day, be disclosed and aggressively analyzed at trial. It is, therefore, not hard to imagine a circumstance where a survivor feels she has to choose between healing and justice.”
As well, these trials often feature myths and stereotypes that undermine survivors’ credibility and reliability. Gloria Ng, a lawyer and co-author of the toolkit, explained the challenges of working within this complex area of law. “Representing complainants of sexual offences can be a daunting task. As lawyers, we must familiarize ourselves with the legal framework that bestows us with the great responsibility of representing survivors of sexual assault. A toolkit that counsel can use as a reference and even build upon will hopefully mean we can better advocate for complainants and ensure their voices are heard in the courtroom.”
In December 2018, Parliament passed Bill C-51, which amended several sections of the Criminal Code with respect to the admissibility of evidence concerning prior sexual activity of the complainant in a sexual offence trial. The changes also apply to the rules around the production of third-party records, which include highly private records such as therapy notes and other medical information. Bill C-51 also legislated the right of survivors to be represented by counsel in these types of proceedings.
“It’s important to note that much of what is set out in Bill C-51 has been recognized by the court for decades,” said Bendo. “The fact that Parliament felt this had to be included in the legislation itself indicates a recognition that unlawful myths and stereotypes continue to appear in these types of proceedings.”
The toolkit also provides guidance for lawyers around practicing in a trauma-informed and culturally safe way. Myrna McCallum, a lawyer, educator, and co-author of the toolkit, said: “Trauma-informed lawyering is an ethical practice that embraces a relational approach to the delivery of legal services. In recognizing trauma, identifying triggers, and avoiding or reducing the risks of retraumatizing our clients or witnesses, we improve our witness engagement skills and client satisfaction rates. We also become more innovative in creating trauma-informed litigation strategies.”
She also noted that the benefits of a trauma-informed approach extend beyond the client to the lawyer. “Adopting a trauma-informed approach to the practice of law also minimizes the risks of adverse mental health effects on lawyers who work in high-conflict or highly traumatizing areas of law.”