Victim Privacy and the Open Court Principle
Chapter Three: Victim privacy, sexual assault, and the Charter (cont'd)
The privacy rights of victims
As seen above in Chapter Two, Canadian Newspapers v. Canada (A.G.) employed a law enforcement rationale to protect victim anonymity in sexual assault proceedings. Yet privacy concerns are not limited to the question of identity, but run through the process. An issue which may surface for the first time when a complainant is deciding whether to report an offence can be magnified at trial, when she is required to testify about the assault in open court, and then to submit to cross-examination by the lawyer for the accused. That part of the process has been especially contentious in recent years. On the one hand, the accused is entitled, under the Charter , to various aspects of a fair trial, one of which is his right to make "full answer and defence.
" This entitlement, which is protected under ss.7 and 11(d), guarantees access to whatever evidence is
necessary for him to make his defence, including private information about the complainant. [clxxxii]
Before the reforms just mentioned, this evidence in sexual assault proceedings included the right to cross-examine the complainant on her past sexual experience. Common law rules of evidence allowed that line of questioning on the assumption that such information was relevant to the question of consent. When the common law was modified by Criminal Code provisions restricting access to such evidence, those limits were challenged under the Charter , as violations of the defendant's fair trial right and his right to make full answer and defence.
Meanwhile, the perception that complainants were being re-victimized by a process which was dominated by myths and stereotypes drew attention to their rights in the criminal trial process. In this way, the privacy and equality claims of sexual assault victims were set up against the rights of the accused. This contest gave rise to two major developments in the Charter jurisprudence: first, the Supreme Court of Canada recognized a right of victim privacy under s.7; and second, in doing so, the Court held that the victims of such crimes are not subordinate, but equal in their rights, to the accused. Before turning to the trilogy of cases, it should be mentioned that this Chapter does not comment on the concept of relevance, as its purpose instead is to trace the evolution of a Charter right of privacy.
R. v. Seaboyer [clxxxiii]
R. v. Seaboyer was a decision which highlighted the divisive issues which arise in sexual assault cases. There, a Supreme Court majority opinion invalidated s.276 of the Criminal Code , which made cross-examination on a complainant's previous sexual history effectively unavailable to the accused in prosecutions for sexual assault. [clxxxiv] According to then Madam Justice McLachlin, who wrote the Court's opinion, the Code 's so-called "rape-shield" provision impermissibly infringed the accused's rights under the Charter . In restricting access to a line of questioning that could result in an acquittal, s.276 denied him the opportunity to answer the charge against him. Though her decision to strike s.276 effectively restored the common law, McLachlin J. articulated a number of guidelines to prevent a return to past patterns of cross-examination. [clxxxv]
Meanwhile, L'Heureux Dubé J. wrote a stinging dissent which extensively reviewed the myths and stereotypes of rape law, before concluding that s.276 did not offend s.7 and was, in any case, easily justified under s.1 of the Charter . As far as she was concerned, the exclusion of "largely irrelevant and highly prejudicial sexual history evidence does not significantly entrench [sic] upon an accused's right to a fair trial or an accused's right to make full answer and defence.
" [clxxxvi] Not only did Seaboyer expose sharp disagreement between the Supreme Court's two women judges, the dissent aggressively supported a feminist interpretation of sexual assault. Yet by majority vote, the rights of the accused prevailed over those of his victims, as they had so consistently in the past.
For these and other reasons, Seaboyer marked a defining moment in the rising conflict between the rights of those accused of sexual offences and their accusers.
McLachlin J.'s majority opinion described s. 276 as imposing a "blanket exclusion" on evidence of a complainant's prior sexual history, subject only to three exceptions. [clxxxvii] In the circumstances, her difficulty was that the provision denied the accused access to evidence, in some instances, that he was constitutionally entitled to, as a matter of fair trial under s.11(d) and fundamental justice under s.7 of the Charter . After describing a number of situations in which such evidence might be relevant, she held that s.276 was constitutionally flawed because an absolute exclusion provided no means for evidence to be evaluated. [clxxxviii] From her perspective, such an approach was "inherently incapable of permitting the Court sufficient
latitude to properly determine relevance in the individual case.
" [clxxxix]
Supporters of s.276 maintained that its key purpose was to abolish common law rules which permitted evidence of the complainant's sexual conduct that was of little probative value and was calculated to mislead the jury. In addition, they submitted that the provision advanced the truth-seeking objective of criminal justice, and that eliminating this evidence would preserve the integrity of the trial process, encourage the reporting of crime, and protect the witness's privacy. [cxc] Responding, in particular, to the privacy issue, McLachlin J. stated that such a claim could not justify s.276's rigid exclusionary rule. "Important as it is to take all measures possible to ease the plight of the witness
", she held that "the constitutional right to a fair trial must take precedence in case of conflict.
" [cxci] As for the notion that complainants could claim entitlements of their own under ss.7 and 15 of the Charter , she noted that s.7 includes a variety of societal interests but stated that a measure which denied the accused's right to full answer and defence would violate s.7 in any event. [cxcii] For her, the problem was that s.276's "pigeon-hole approach
" was incapable of addressing the evidentiary question whether the evidence was relevant or not in any particular case. [cxciii]
Despite invalidating s.276, Madam Justice McLachlin did not favour a return to the common law's "outmoded sexist-based use of sexual conduct evidence.
" [cxciv] She described as "totally discredited
" the idea that a complainant's integrity might be affected by whether she has had other sexual experiences, and went on to state that "[t]here is no logical or practical link between a woman's sexual reputation and whether she is a truthful person.
" [cxcv] A provision that excluded evidence which was sought for illegitimate purposes was unquestionably permissible; the difficulty for her was that the existing provision also had unconstitutional effects. Her solution formulated guidelines which were designed to "reduce and even eliminate the concerns
" which had prompted the
enactment of s.276, and at the same time to preserve the right of an accused to a fair trial. [cxcvi]
Meantime, L'Heureux Dubé J. was adamant that the provision did not violate the Charter and should be upheld. She described McLachlin J.'s optimism that judicial guidelines could address Parliament's objectives and avoid the infirmities of the common law as "badly misplaced." [cxcvii] In her view, the guidelines were "entirely too broad and support the very stereotypes and myths that they are meant to eradicate.
" [cxcviii] But if the tone of her dissenting opinion magnified divisions between the two, it is worth noting that victim privacy was not a central consideration in either opinion.
Madam Justice L'Heureux Dubé declared more than once that sexual assault is "not like any other crime.
" [cxcix] Nor was her dissenting opinion limited in scope to the constitutionality of s.276; Seaboyer presented the opportunity to write an indictment of the law of sexual assault, and so she did. Accordingly, her lengthy reasons detailed and catalogued the myths and stereotypes that infuse the system, [cc] and serve as a filtering process which "select[s] out the cases not worthy of further attention.
" [cci] As a result, when a woman's victimization does not "fit the myths",
she declared it unlikely that an arrest would be made or a conviction obtained. [ccii] Myths, which she unmistakeably viewed as insidious, affect "perceptions of the culpability of the aggressor and the moral
"character" and, hence, the credibility of the complainant
". [cciii] In summarizing the flaws of the system, she found that "from the making of the initial complaint down to the determination of the issue at trial
", discriminatory beliefs are at work, thereby lowering the number of reported cases, influencing police decisions to decrease the rate of arrest, and distorting the issues at trial, with implications for the outcome. [cciv] L'Heureux Dubé J.'s reasons left little doubt that she regarded these beliefs as an endemic and destructive force.
Not surprisingly, she also found that the common law uncritically "enshrined" these discriminatory beliefs in its rules of evidence. Because the law viewed victims of sexual assault with "suspicion and distrust", unique evidentiary rules were developed, and the complainant in a sexual assault trial was treated "unlike any other." [ccv] In enacting s.276 and a host of other reforms, Parliament took important steps to address and remedy discriminatory beliefs that were deeply entrenched in the common law. Under a view that condemned the common law and applauded the statutory initiatives, the constitutional analysis of s.276 became a foregone conclusion. There, L'Heureux Dubé J. held that s.7 is not confined to the "narrow interests of the accused", and rejected the "recognition of an unfettered right in the accused to adduce all relevant evidence." [ccvi] Under s.1, she made these observations about the justifiability of the provision:
It is obvious that in respect of the provision at issue in this case, the goal of Parliament was to eliminate sexual discrimination in the trial of sexual offences through the elimination of irrelevant and/or prejudicial sexual history evidence. A further legislative goal, intimately linked to the first, is to encourage women to report their victimization. My discussion of sexual assault at the outset makes it clear that a factor that loomed large in the failure of women to report, and police to classify complaints as "founded" and in the high rate of acquittal was the admission of prior sexual history into the trials of sexual offences. [ccvii]
Additionally, it is noteworthy, considering her subsequent opinion in R. v. O'Connor , that she introduced s.15 and equality values in her discussion under s.1. Finally, citing Canadian Newspapers and its conclusion that " an absolute ban on publication is the only means to reach the desired objective
", she stated that "
much the same can be said" of s.276: in order to "effectively combat sex discrimination and increase reporting", Parliament had attempted to eliminate the application of discriminatory beliefs at trials of sexual offences."
[ccviii]
Seaboyer represents a point of departure in the evolution of a privacy right for sexual assault complainants. The analysis and debate between the Court's two women judges focussed on shifting conceptions of relevance and the right of full answer and defence. Somewhat like Canadian Newspapers , then, Seaboyer addressed concerns about victim privacy without suggesting or accepting that it might be protected by the Charter. The Court had not reached the point of balancing the rights at stake; privacy had not yet emerged as an entitlement, much less been granted equal status with fair trial and full answer and defence.
By the time R. v. O'Connor was decided, the dynamics had changed. While Madam Justice L'Heureux-Dubé's Seaboyer dissent was praised, McLachlin J.'s majority opinion was scorned. In due course, Parliament enacted a new "rape-shield law" along the lines the dissent had suggested. [ccix] Meantime, substantial restrictions on an accused's free rein to explore a complainant's past sexual history shifted the right of full answer and defence to another source of evidence - counselling or therapeutic records which could provide information about a complainant that might assist an accused in defending a charge of sexual assault.
R. v. O'Connor [ccx]
Like Seaboyer , the Court's decision in R. v. O'Connor took a critical step in the direction of establishing a right of victim privacy under the Charter . Once again, innovative reasoning appeared in the dissenting opinion of Madam Justice L'Heureux Dubé. This time she linked the myths and stereotypes reviewed in Seaboyer to the privacy and equality rights of complainants in sexual assault proceedings. Not only did L'Heureux Dubé J. set those rights up against the accused's right of full answer and defence, she maintained that their rights were equal, and should not be subordinated to those which belong to criminal defendants. For those reasons, the O'Connor dissent may be one of L'Heureux Dubé J.'s most powerful opinions. In responding to the Court's decision, which applied the Charter in a non-statutory setting, Parliament enacted Bill C-46, [ccxi] and legislation that rejected the majority opinion in favour of the dissent in O'Connor was subsequently upheld in R. v. Mills . [ccxii] Through the trajectory of O'Connor , Bill C-46, and R. v. Mills , the Supreme Court entrenched a right of victim privacy under s.7.
Meantime, in the period between Seaboyer and O'Connor , the Supreme Court dismissed full answer and defence challenges to Code provisions which protected witnesses who were young and vulnerable. Thus Chief Justice Lamer wrote for a majority in R. v. L.(D.O.) , [ccxiii] which agreed that s. 715.1 did not impermissibly violate the accused's Charter rights. [ccxiv] Under its terms, young complainants who have been the victims of sexual offences are permitted to give their evidence by videotape. L'Heureux Dubé J.'s concurrence spoke of the "innate power imbalance between the numerous young women and girls who are the victims of sexual abuse at the hands of almost exclusively male perpetrators.
" [ccxv] In light of that, she held that the Court could not disregard the "propensity of victims of sexual abuse to fail to report the abuse in order to conceal their plight from institutions within the criminal justice system which hold stereotypical and biased views about the victimization of women.
" [ccxvi] Referring, as well, to privacy concerns, she added that the subject matter of the crime "requires that the child provide intimate and embarrassing details about the events that occurred - the unwanted interference with the child's body.
" [ccxvii]
Then in Levogiannis v. the Queen , s.486(2.1), which permits a young complainant to testify behind a screen, was also upheld. [ccxviii] Under that provision, the screen blocked the complainant's view of the accused, which might threaten or intimidate the witness, but not the accused's view of the complainant. There, too, the interest in creating conditions for the complainant's testimony, which would facilitate the prosecution of sexual abuse, prevailed.
Significantly, Dagenais v. C.B.C. was also decided in the interim between Seaboyer and O'Connor . As noted above in Chapter Two, Chief Justice Lamer indicated that the Court should adopt a non-hierarchical approach to the interpretation of Charter rights. [ccxix] He stated that principle in the context of a contest between fair trial and a free press, both of which are guaranteed by the Charter 's text. In O'Connor , however, that part of Dagenais provided support for the proposition that the rights of the accused should not prevail over those of their victims. Specifically, Madam Justice L'Heureux Dubé J.'s dissent stated that, "a balance must be struck
", which places the Charter rights of complainants " on an equal footing with those of
accused persons.
" [ccxx]
For purposes of this Chapter, the key question in R. v. O'Connor was whether an accused charged with sexual offences could require third parties to produce counselling and therapeutic records which pertained to the complainant. [ccxxi] A brief digression is necessary to explain how the accused claimed the right, under the Charter , to review records which were held by private, non-governmental parties. Once again, the entitlement at stake was full answer and defence, and the argument was that the accused required access to such records in order to defend the charges against him. The milestone precedent was R. v. Stinchcombe , which imposes a constitutional duty on the Crown to disclose all information in its possession to the accused. [ccxxii] Parenthetically, it is noteworthy that Stinchcombe and Seaboyer were decided the same year; ironically, while Stinchcombe expanded the accused's access to defence evidence, the majority in Seaboyer agreed with Parliament that a complainant's past sexual history was irrelevant in most cases and, excepting in specified circumstances, unavailable to the accused. Thus, effectively denied access to areas of cross-examination which had previously been open, criminal defendants began seeking another source of evidence - the complainant's records. O'Connor raised the question whether the Crown's Stinchcombe duty should extend to records held by third parties, as an aspect of the accused's right of full answer and defence. [ccxxiii]
In the absence of Criminal Code provisions on this issue, the Supreme Court proposed an approach that granted the accused access to such records, but not as a matter of course, and not without establishing a procedure to safeguard victim privacy. Even so, there was a sharp split in the way the majority and minority opinions balanced the competing interests. Without rehearsing the differences between the procedures adopted by the two, it is fair to say that Chief Justice Lamer and Sopinka J. accepted that victim privacy should be protected, but accorded full answer and defence a higher priority; as a result, the joint opinion set a lower threshold for access to the evidence. [ccxxiv] Unlike the dissent, their joint opinion did not mention the equality rights of complainants, and rejected its suggestion that there should be a presumption in favour of privacy.
Meanwhile, though Madam Justice L'Heureux Dubé's dissent also balanced those interests, her solution was based on the Dagenais principle of equality between rights. She invoked the Chief Justice's warning in Dagenais , that "the court must exercise its discretion in a manner that is respectful of Charter values,
" [ccxxv] and stated that any production order in favour of the accused must balance Charter rights to ensure that any adverse effects on one right are proportionate to the salutary benefits for the other. [ccxxvi] At that point, she had not yet established that victim privacy is protected by the Charter . Before addressing that question, L'Heureux Dubé J. commented on the scope of
full answer and defence. From her perspective, the right could not be considered "in the abstract"; moreover, fairness must be considered, not only from the accused's point of view, but that of the complainant and the community as well. [ccxxvii] In the specific terms of the case, she indicated that the rights of the defendant could not be "so broad as to grant the defence a fishing licence into the personal and private lives of others.
" [ccxxviii]
Full answer and defence might not be absolute, but that still did not explain or address the Charter status of the complainant's records. To articulate a right based on privacy, it became necessary for L'Heureux Dubé J. to piece together the Supreme Court's scattered comments on the subject. Thus she explained that, at the level of generality, the Court had "on many occasions recognized the great value of privacy in our society
", and had "expressed sympathy for the proposition that s.7 of the Charter includes a right of privacy
". [ccxxix] For instance, Wilson J.'s concurring opinion in R. v. Morgentaler stated the view that s.7 guarantees "a degree of personal autonomy over important decisions intimately affecting their private lives.
" [ccxxx] Moreover, as noted earlier in this Chapter, Lamer J.'s dissent in R. v. Mills included privacy in s.7 of the Charter , via s.11(b). There, he commented on the "stigmatization, loss of privacy, stress and anxiety
" an accused might suffer, along with disruption of family, social life and work, costs and uncertainty when his trial was unreasonably delayed. [ccxxxi] In L'Heureux Dubé J.'s view, substituting the word "complainant
" for the word "accused
" resulted in "an excellent description of the psychological traumas potentially faced by sexual assault complainants.
" [ccxxxii]
Drawing that analogy between the complainant and the accused enabled her to incorporate s.8's reasonable expectation of privacy into s.7's entitlements of liberty and security of the person. Her reasoning was that having to produce counselling and therapeutic records is compelled production and a form of search; yet respect for privacy is "an essential component of what it means to be free
", and the infringement of that right undeniably "impinges upon an individual's liberty.
" [ccxxxiii] When private records are revealed, "it is an invasion of the dignity and self-worth of the individual, who enjoys the right to privacy as an essential aspect of his or her liberty in a free and democratic society.
" [ccxxxiv] In her view, it followed that the reasonable expectation of privacy that is guaranteed by s.8 is worthy of protection under s.7. [ccxxxv]
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