Victim Privacy and the Open Court Principle

Chapter Three: Victim privacy, sexual assault, and the Charter

Introduction

Privacy was a theme in Chapter Two's analysis of the open court principle. Though it was an indirect or unspoken factor in Canadian Newspapers v. Canada (A.G.) , and an express consideration in Edmonton Journal v. Edmonton (A.G.) and C.B.C. v. New Brunswick (Re: R. v. Carson) , the Supreme Court did not in these cases treat privacy as an entitlement in its own right. [cxlix] The purpose of this Chapter, then, is to explain how it was recognized as a Charter right in sexual assault proceedings. That development occurred in the context of setting evidentiary boundaries around the complainant's privacy in her past sexual history and in securing the confidentiality of her counselling and therapeutic records. [cl]

The discussion begins by acknowledging the significance of privacy in sexual assault proceedings. Canadian Newspapers acknowledged that anonymity is an element in a victim's decision whether to report the commission of an offence and to proceed with charges. Privacy concerns do not stop there, however, but continue through the investigative and trial processes. At every stage, the complainant's credibility is open to question. In addition to the unavoidably private nature of a sexual offence, which can only be revealed by the complainant, the victim has in the past been subject to inquiries into the history of other sexual activities. More recently, complainants' privacy has been threatened by defence claims for access to counselling and therapeutic records which are in the possession either of the Crown or private third parties.

Rules of evidence which regulated the defendant's access to these sources of information provoked contests under the Charter , between the accused's right to full answer and defence, and the privacy and equality rights of complainants. This Chapter focuses on a trilogy of decisions which together led to the recognition of victim privacy under s.7 of the Charter . In order of decision and also of discussion below, those cases are: R. v. Seaboyer , [cli] R. v. O'Connor , [clii] and R. v. Mills . [cliii] Before continuing, it is important to explain why this development is significant. First, sexual assault's implications for privacy are complex and multi-dimensional; it would be a mistake, therefore, to treat conflicts between open court and victim privacy as an isolated phenomenon. Second, as a result of that connection, the entitlement which emerged in Mills may influence the way open court and privacy values will be balanced under s.2(b) of The Charter .

There is one further preliminary to a discussion of the three key decisions. Before explaining how the Supreme Court resolved conflicts between the defendant's right to full answer and defence, and the complainant's assertion of privacy and equality rights, it is worthwhile to review the Charter status of privacy prior to the Seaboyer-O'Connor-Mills trilogy.

The privacy rights of the accused

Nowhere does the Charter explicitly protect privacy, and nor does it mention the rights of crime victims. Rather, its legal rights, which are found in ss.7 to 14, grant those accused of offences a number of procedural and substantive rights. Perhaps for that reason, the primary beneficiaries of the Supreme Court of Canada's early Charter jurisprudence were criminal defendants. One of the Court's first decisions concerned s.8, which provides that "[e]veryone has the right to be secure against unreasonable search or seizure." [cliv] In commenting on the guarantee's interpretation in Hunter v. Southam , Dickson J. announced that the Charter provides for the "unremitting protection of individual rights and liberties". [clv] As for s.8, he rejected the suggestion that common law rules rooted in concerns about property and the law of trespass should determine its scope. Instead, he stated that the Charter 's provisions must be "capable of growth and development over time to meet new social, political and historical realities." [clvi] Once having acknowledged the need for a "broad perspective in approaching constitutional documents", [clvii] Dickson J. signalled his wariness of "foreclosing the possibility that the right to be secure against unreasonable search and seizure might protect interests beyond the right of privacy ", and indicated that "its protection goes at least that far." [clviii] The question, he held, is whether "the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy." [clix]

That determination depends, from one case to the next, on whether the individual is entitled in the circumstances, to "a reasonable expectation of privacy against governmental encroachments quot;. [clx] In R. v. Dyment , Mr. Justice La Forest reinforced the relationship Hunter v. Southam had forged between s.8's guarantee and the concept of privacy. He endorsed the view that "privacy is at the heart of liberty in a modern state", and added that, in being "grounded in many's physical and moral autonomy", it is "essential for the well-being of the individual." [clxi] Worthy of constitutional protection for that reason alone, he declared that privacy has profound significance for the public order because restraints on the government's power to pry into the lives of citizens "go to the essence of a democratic state." [clxii]

La Forest J. also agreed with Dickson J.'s suggestion that Charter rights should be interpreted in a broad and liberal manner. In terms of s.8, that meant "[i]ts spirit must not be constrained by narrow legalistic classifications based on notions of property and the like which served to protect this fundamental human value in earlier times." [clxiii] Quoting from the Task Force on Privacy and Computers , he agreed that privacy transcends the physical and engages the dignity of the human person. [clxiv] His comments about informational privacy are of particular interest in the context of this Chapter:

In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectation of the individual that the information shall remain confidential to the person to whom, and restricted to the purposes for which it is divulged, must be respected. [clxv]

Hunter v. Southam and R. v. Dyment established a strong foundation for privacy but were limited as precedent to s.8 and its application to investigative processes. Any right of privacy outside that context would have to be located elsewhere in the Charter . Over time, s.7, which guarantees entitlements that are more general and abstract, filled that gap in the Charter 's text. The provision protects three entitlements - the right to "life, liberty and security of the person" - and then adds an important proviso: a deprivation of those rights which is consistent with principles of fundamental justice does not violate the Charter . [clxvi]

As s.7's abstract text is amenable to broad and narrow interpretations, it is not surprising that the Supreme Court has shifted in both directions. On the one hand, the Court has been reluctant to freeze or stultify the content of this Charter right; on the other, the judges realize that concepts such as liberty or security of the person, as well as fundamental justice, are malleable. In the case of privacy, then, the genesis of a right under s.7 is found in dicta discussing the meaning of "security of the person." In an early decision, Lamer J. claimed that the meaning of liberty and security of the person should not be confined to elements of physical integrity, but should include violations of an individual's psychological integrity as well. [clxvii] Despite its influence on the s.7 jurisprudence, R. v. Mills was decided under s.11(b), which entitles the accused to trial within a reasonable time. [clxviii] There, Mr. Justice Lamer effictively incorporated s.7's guarantees of liberty and security of the person into his interpretation of s.11(b). [clxix] In his view, the reasonable time guarantee was designed to protect the rights set forth in s.7, albeit "in a specific manner and setting." [clxx] Having linked the general contours of s.7 and the particulars of s.11(b), he held that under the latter, "the security of the person is to be safeguarded as jealously as the liberty of the person." [clxxi] Mr. Justice Lamer then expounded on the meaning of security of the person, in these terms:

Security of the person is not restricted to physical integrity; rather, it encompasses protection against overlong subjection to the vexations and vicissitudes of a pending criminal accusation … These include stigmatization of the accused, loss of privacy , stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life, and work, legal costs, uncertainty as to the outcome and sanction.

Surprisingly, dicta which appeared in a dissenting opinion that addressed the scope of s.7 in a s.11(b) case dealing with the rights of the accused , and in which privacy was but one in a list of security interests, helped provide the foundation for a right of victim privacy.

The Court picked up on the proposition that s.7 protects an individual's psychological integrity in other decisions as well. For instance, in R. v. Morgentaler , Dickson C.J. stated that "[s]ecurity of the person must be given content in a manner sensitive to its constitutional position." [clxxii] After citing the above passage from Mills , he held that "[i]f state-imposed psychological trauma infringes security of the person in the rather circumscribed case of s.11(b), it should be relevant to the general case of s.7 where the right is expressed in broader terms." [clxxiii] Even so, he held that criminal restrictions on a woman's right to seek an abortion were in the circumstances unconstitutional, but concluded that "[i]t is not necessary … to determine whether the right extends further, to protect either interests central to personal autonomy, such as a right to privacy or interests unrelated to criminal justice." [clxxiv] Meanwhile, Madam Justice Wilson's concurring opinion citing the same passage from Mills , found that "the right to security of the person entitled a person to be protected against psychological trauma", and agreed that the entitlement extended to an individual's physical and psychological integrity. [clxxv] She alone held that s.7 guarantees the substantive right to seek an abortion which, in her view, was grounded in s.7's liberty entitlement and its guarantee "to every individual a degree of personal autonomy over important decisions intimately affecting their private lives." [clxxvi]

As seen above in Chapter Two, the Supreme Court accepted that s.2(b)'s principle of open court could be limited, under the s.1 analysis, to protect privacy interests. As an entitlement, however, the concept of privacy was confined to s.8 and those accused of crimes. Meantime, both before and after the Charter 's enactment, the women's movement achieved important reforms in many areas of the criminal law. Early in the 1980s, Parliament repealed the Criminal Code 's rape provision and created the offence of sexual assault in its place. [clxxvii] That step was one of several which, together, comprised a package of reforms. Even before those reforms, Parliament introduced legislation which placed strict limits on an accused's right to cross-examine the complainant on her past sexual history. [clxxviii] Measures which protected a victim's identity, which were discussed in Chapter Two, are another part of the initiatives that were introduced in this period. [clxxix] Subsequently, Criminal Code provisions also narrowed or removed certain defences in sexual assault proceedings. The two most controversial defences were the accused's claim of a mistaken belief that the activity was consensual, [clxxx] and the excuse that he was too intoxicated to be held criminally responsible for his actions. [clxxxi]

These changes were afoot at the time the Charter was enacted in 1982. In the years that followed, the Supreme Court's aggressive protection of the accused's rights prompted complainants to assert Charter entitlements of their own. In the course of the Seaboyer-O'Connor-Mills trilogy, the Court extended the concept of privacy that had protected criminal defendants from search and seizure under s.8, to the victims of crime, under s.7 of the Charter .