Release: Supreme Court set to review protections for sexual assault survivors in criminal trials

VANCOUVER, UNCEDED COAST SALISH HOMELANDS – A two-day hearing that has significant implications for how courts handle sexual assault cases commences today at the Supreme Court of Canada.

West Coast LEAF and Salal Sexual Violence Support Centre (formerly WAVAW Rape Crisis Centre) (“the Coalition”) are intervening together in two appeals being heard at the same time—R. v J.J. and A.S. v Her Majesty the Queen et al. Both cases concern the constitutionality of Criminal Code provisions for sexual assault cases that restrict the ability of the accused to surprise the complainant during cross-examination with the complainant’s private records. These provisions also allow complainants to participate and be represented by a lawyer in applications by the accused to make use of such records or information about the complainant’s sexual history.

For too long, the unfair use of complainants’ private information in sexual assault trials has revictimized complainants and perpetuated myths and stereotypes about sexual assault. The Coalition will argue that complainants require a voice at the table in evidentiary applications to ensure that courts are respecting their rights to privacy and substantive equality.

“Courts must hear directly from complainants when making decisions which affect complainants’ own legal protections,” says Kate Feeney, co-counsel and Director of Litigation at West Coast LEAF. “Complainants, and especially those who are at highest risk of systemic discrimination in the criminal justice system, such as Indigenous women and sex workers, cannot and should not have to rely on Crown counsel to place their diverse perspectives before the court.

“As a victim services worker who supported survivors before the courts for many years, the move in 2018 to expand what is considered a protected record was an incredibly important step in growing survivors’ confidence in the criminal legal system,” says Dalya Israel, Executive Director of Salal Sexual Violence Support Centre. “The changes to the Criminal Code offered a level of protection against the ambushing tactics of defense counsel; tactics that would often very seriously impact a survivor’s ability to continue testifying during trial and negatively impact their mental health.”

She adds, “Survivors are always watching how individuals and systems respond to sexual violence. The reversal or repeal of these new legal protections for survivors would be a devastating blow to the advancement of survivors’ rights before the court. It would send a loud message to survivors once again that their dignity, autonomy, and rights are not a central concern of the courts. This will likely have a further freeze effect on survivors feeling that accessing justice after sexual violence is an option.”