Supreme Court to decide the constitutionality of law that states defendants in a sexual-assault trial must obtain the permission of a judge to use complainant’s records for their defence
The biggest expansion to privacy protections for sexual-assault complainants in a quarter-century could be rolled back on Thursday, when the Supreme Court of Canada rules on whether it violates the right of an accused to a fair trial.
The law establishing the new process also, for the first time, granted complainants the right to play a direct role in the hearings to argue that their privacy interest outweighs the importance of the records to the defence. The new law is under scrutiny in separate cases from Ontario and British Columbia. Judges in both provinces ruled parts of the law unconstitutional.
Ontario Superior Court Justice Suhail Akhtar ruled two years ago that this expansion of a complainant’s right to participate in the process is a violation of a fair trial. “This is not an incremental change but one that ruptures the foundation of the criminal trial process and removes an accused’s constitutional protections by providing their defence to a witness prior to trial,” he wrote.
As a result of what a complainant might learn in the pretrial hearing, “the danger that the complainant’s evidence may be tailored, consciously or unconsciously, is not illusory,” she wrote. A jury acquitted J.J of sexual assault. The Crown did not appeal the acquittal, but did appeal Justice Duncan’s constitutional ruling.
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