Supreme Court of Canada

Indexed as: R. v. J.J.

2022 SCC 28

File Nos.: 39133, 39516.

2021: October 5, 6; 2022: June 30.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Parties

Between:

Her Majesty The Queen Appellant/Respondent on cross‑appeal

v.

J.J. Respondent/Appellant on cross‑appeal

— and —

Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of Manitoba, Attorney General of Saskatchewan, Attorney General of Alberta, West Coast Legal Education and Action Fund, Women Against Violence Against Women Rape Crisis Centre, Barbra Schlifer Commemorative Clinic, Criminal Trial Lawyers' Association, Criminal Lawyers' Association (Ontario), Canadian Council of Criminal Defence Lawyers and Independent Criminal Defence Advocacy Society Interveners

‑ and ‑

A.S. Appellant

v.

Her Majesty The Queen and Shane Reddick Respondents

— and —

Attorney General of Canada, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, Criminal Lawyers' Association (Ontario), Barbra Schlifer Commemorative Clinic, Women's Legal Education and Action Fund Inc., Criminal Defence Lawyers Association of Manitoba, West Coast Legal Education and Action Fund and Women Against Violence Against Women Rape Crisis Centre Interveners

Reasons

Joint Reasons for Judgment: (paras. 1 to 196) Wagner C.J. and Moldaver J. (Karakatsanis, Martin, Kasirer and Jamal JJ. concurring)

Reasons Dissenting in Part: (paras. 197 to 320) Brown J.

Reasons Dissenting in Part: (paras. 321 to 438) Rowe J.

Reasons Dissenting in Part: (paras. 439 to 491) Côté J.

Appeals

On appeal from the Supreme Court of British Columbia

On appeal from the Ontario Superior Court of Justice

Headnote

Constitutional law — Charter of Rights — Fundamental justice — Right to silence — Self‑incrimination — Right to fair hearing — Right to make full answer and defence — Evidence — Sexual offences — Criminal Code provisions setting out record screening regime to determine admissibility of records relating to complainant that are in possession or control of accused — Whether record screening regime infringes accused's Charter-protected rights — If so, whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(c), 11(d) — Criminal Code, R.S.C. 1985, c. C‑46, ss. 276, 278.1, 278.92 to 278.94.

In 2018, Parliament introduced ss. 278.92 to 278.94 (the "impugned provisions") into the Criminal Code in an effort to remove barriers that have deterred victims of sexual offences from coming forward. These provisions were designed to protect the interests of complainants in their own private records when an accused has possession or control of such records and seeks to introduce them at a hearing in their criminal proceeding. Specifically, the provisions create procedures and criteria to assist a judge in deciding whether the records should be admitted, balancing the rights and interests of the accused, the complainant, and the public. Some of the procedural elements of these provisions also apply to s. 276 evidence applications, governing the admissibility of evidence of complainants' prior sexual activity or history. Overall, the legislative changes created a new procedure for screening complainants' private records in the hands of the accused, to determine whether they are admissible as evidence at trial, and a new procedure to provide complainants with additional participation rights in admissibility proceedings.

The procedure set out in the impugned provisions operates in two stages. At Stage One, the presiding judge reviews the accused's application to determine whether the evidence sought to be adduced is capable of being admissible. For s. 276 evidence applications, if the judge determines that the proposed evidence is not s. 276 evidence, the application will terminate. If the proposed evidence is s. 276 evidence but the judge concludes that it is not capable of being admissible, the application will be denied. If the s. 276 evidence is capable of being admissible, the application proceeds to a Stage Two hearing. For applications under the record screening regime, if the judge determines that the proposed evidence is not a "record" under s. 278.1, the application will terminate. If the proposed evidence is a "record" but the judge concludes that it is not capable of being admissible, the application will be denied. If the evidence is a "record" and it is capable of being admissible, the application proceeds to a Stage Two hearing. At the Stage Two hearing, the presiding judge decides whether the proposed evidence meets the tests for admissibility. For s. 276 evidence applications, the governing conditions are set out in s. 276(2), as directed by s. 278.92(2)(a) and in accordance with the factors listed in s. 276(3). For private record applications, the test for admissibility is whether the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This determination is made in accordance with the factors listed in s. 278.92(3). Complainants are permitted to appear at the Stage Two hearing and make submissions, with the assistance of counsel, if they so choose.

By way of pre‑trial applications, two accused, J and R, challenged the constitutionality of ss. 278.92 to 278.94, arguing that Parliament had jeopardized three fundamental rights guaranteed to accused persons under the Charter, namely: the right to silence and the privilege against self‑incrimination under ss. 7 and 11(c); the right to a fair trial under ss. 7 and 11(d); and the right to make full answer and defence under ss. 7 and 11(d). In J's case, the application judge held that one provision of the record screening regime was unconstitutional; the Crown appeals that ruling, and J cross‑appeals, contesting the constitutionality of the regime in its entirety. In R's case, the complainant S, who was granted the right to be added as a party by the Court, appeals from the application judge's ruling that impugned the constitutionality of the regime as a whole, effectively preventing her from participating in the record screening process.

Held (Côté, Brown and Rowe JJ. dissenting in part): Sections 278.92 to 278.94 of the Criminal Code are constitutional in their entirety, as they apply to both s. 276 evidence applications and private record applications. The Crown's appeal should be allowed, J's cross‑appeal dismissed, S's appeal allowed and the application judges' rulings quashed.

Per Wagner C.J. and Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.: Before determining the constitutionality of the impugned provisions, it is necessary to interpret them. First, it must be determined what qualifies as a "record" for private record applications, using s. 278.1 as the starting point. The definition of "record" creates two distinct groups: (1) records that fall within enumerated categories; and (2) records that do not fall within the enumerated categories but otherwise contain personal information for which there is a reasonable expectation of privacy. Should an accused wish to tender an enumerated record, they must proceed with a s. 278.93(1) application, regardless of the specific content of the record. Non‑enumerated records are those which contain personal information about complainants for which they have a reasonable expectation of privacy. These records contain information of an intimate or highly personal nature that is integral to the complainant's overall physical, psychological or emotional well‑being. A presiding judge should consider both the content and context of the record to determine whether a record contains such information. If it does, the accused must proceed with a s. 278.93(1) application.

Second, a purposive approach to the meaning of the word "adduce" should be adopted to include references to the content of a record made in defence submissions or the examination and cross-examination of witnesses. This interpretation is not limited to circumstances where evidence is entered as an exhibit.

Third, the scope of complainant participation has not been comprehensively defined in the impugned provisions. Where the presiding judge decides to hold a Stage One hearing to determine whether the record is capable of being admissible, the complainant's participatory rights do not apply. Both the complainant and their counsel can attend the entire Stage Two hearing and make oral and written submissions to facilitate meaningful participation. The complainant's right to make submissions does not extend to the trial itself. Further, the complainant does not have the right to cross‑examine the accused in the Stage Two hearing, either directly or through counsel. The complainant also may not lead evidence at the Stage Two hearing.

Fourth, the timing of applications is specified in s. 278.93(4), which requires that applications be brought "seven days previously". Properly interpreted, "previously" refers to the Stage One inquiry where the presiding judge determines whether a Stage Two hearing is necessary. The Crown and clerk of the court must have at least seven days' notice of the application before it is reviewed by the judge at Stage One. However, s. 278.93(4) states that the judge can exercise their discretion to truncate the notice period in the "interests of justice". While the statutory language does not specify that these applications must be conducted pre‑trial, this should be the general practice. Mid‑trial applications should not be the norm.

The appropriate framework for the Charter analysis in the instant case is based on the Court's prior jurisprudence, which recognized that both ss. 7 and 11(d) of the Charter are inextricably intertwined. These rights should be assessed together where they are co‑extensive and separately where a concern falls specifically under one of the rights. As s. 7 should not be used to limit the specific guarantees in ss. 8 to 14 of the Charter, the conclusion that the ss. 7 and 11(d) analysis is co‑extensive in the instant case should not be misconstrued as an internal limiting of s. 11(d) using s. 7 principles. Further, this approach should not be interpreted as a principle of broader application when accused persons raise both ss. 7 and 11(d). The appropriate methodology for assessing multiple Charter breaches alleged by the accused may depend on the factual record, the nature of the Charter rights at play, and how they intersect; this methodology is highly context‑ and fact‑specific.

A claimant must follow two analytical steps to establish that a law breaches s. 7 of the Charter: they must demonstrate that (1) the impugned provisions result in the deprivation of life, liberty or security of the person; and that (2) the deprivation violates principles of fundamental justice. Because both accused face the possibility of imprisonment in the instant appeals, the right to liberty in the first stage of the s. 7 analysis is engaged. Accordingly, the s. 7 analysis must focus on the second analytical step — the alleged breaches of the principles of fundamental justice.

The principles of trial fairness and the accused's right to make a full answer and defence are expressions of procedural principles of fundamental justice under s. 7, and are also embodied in s. 11(d). The key principles of s. 11(d) that apply are that (1) an individual must be proven guilty beyond a reasonable doubt; (2) the state must bear the burden of proof; and (3) criminal prosecutions must be carried out in accordance with due process. Section 11(d) does not guarantee the most favourable procedures imaginable for the accused, nor is it automatically breached whenever relevant evidence is excluded. The broad principle of trial fairness is not assessed solely from the accused's perspective; fairness is also assessed from the point of view of the complainant and community. While the emphasis on an accused's fair trial rights under s. 7 should be primary, the right to make full answer and defence and the right to a fair trial are considered from the perspectives of the accused, the complainant, the community and the criminal justice system at large.

Any concerns regarding self-incrimination due to defence disclosure can be addressed through the concepts of full answer and defence and trial fairness rights embodied in the ss. 7 and 11(d) analysis. Since the accused is not compelled to testify, s. 11(c) of the Charter is not engaged.

The admissibility threshold in s. 278.92 does not impair fair trial rights as it does not breach ss. 7 or 11(d) of the Charter. The record screening regime embodies the fundamental principle governing the law of evidence — i.e., relevant evidence should be admitted, and irrelevant evidence excluded, subject to the qualification that the probative value of the evidence must outweigh its potential prejudice to the conduct of a fair trial. The accused's right to a fair trial does not include the unqualified right to have all evidence in support of their defence admitted. The admissibility threshold of the record screening regime establishes that private records are only admissible if the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This is also one of the conditions for s. 276 evidence, which has been constitutionally upheld by the Court. Both regimes seek to protect complainants against harmful myths and stereotypes. The right to make full answer and defence will only be violated if the accused is prevented from adducing relevant and material evidence, the probative value of which is not outweighed by its prejudicial effect. The admissibility threshold in the record screening regime does not give rise to such a violation.

Furthermore, the Stage One application process in s. 278.92 is not overbroad. Overbreadth must be understood relative to the legislative purpose. The record screening regime was intended to fill a legislative gap to ensure statutory protection of complainants' privacy and dignity, where the accused is in possession or control of their highly private records. Parliament enacted the record screening regime with a view to protecting the dignity, equality, and privacy interests of complainants; recognizing the prevalence of sexual violence in order to promote society's interest in encouraging victims of sexual offences to come forward and seek treatment; and promoting the truth‑seeking function of trials, including by screening out prejudicial myths and stereotypes. The procedure for the record screening regime is not overbroad relative to this legislative purpose because it does not go further than is reasonably necessary.

As well, the definition of "record" in s. 278.1 supports the constitutionality of s. 278.92 because it will only capture materials that come within the enumerated categories, or that otherwise contain information of an intimate and highly personal nature that is integral to the complainant's overall physical, psychological, or emotional well‑being. The screening of records that meet this definition is rationally connected to Parliament's objective of protecting the privacy and dignity interests of complainants. This narrow definition includes only evidence that has implications for complainants' dignity. There will be cases where it is unclear whether evidence falls into the definition. But this, alone, does not render the regime overbroad. Also, just because a record is subject to screening does not mean it will be excluded at trial. Records that meet the admissibility threshold for screening can still be adduced at trial. Further, requiring an accused to bring an application to adduce materials that might contain information of an intimate and highly personal nature is consistent with the objective of the regime, since it respects both the accused's fair trial rights and the complainant's privacy and equality interests.

Likewise, the Stage One application process, set out in s. 278.93, is constitutional. With respect to ss. 7 and 11(d), the record screening regime does not require compelled defence disclosure in a manner that would violate an accused's right to a fair trial. First, there is no absolute rule against requiring the defence to disclose evidence to the Crown before the prosecution closes its case. Second, the record screening regime applies to a narrow set of evidence that implicates important interests of complainants in sexual offence cases and has the potential to create serious prejudice. Private records are analogous to s. 276 evidence, as they can also implicate myths that are insidious and inimical to the truth‑seeking function of the trial. Like s. 276 evidence, private records encroach on the privacy and dignity of complainants. They too require screening to ensure trial fairness under ss. 7 and 11(d) of the Charter.

The complainant participation provisions in s. 278.94, which apply to the s. 276 regime and to the record screening regime (at Stage Two), do not violate the accused's fair trial rights protected by ss. 7 and 11(d) of the Charter. There is no support for the assumption that the application deprives the accused of knowing the complainant's initial reaction to the application evidence. There is no change from the previous regime, as the accused has not lost any right to Crown disclosure. In any event, there is no evidence that a complainant's initial emotional reaction to the application is inherently valuable, outside of myth‑based reasoning that relies on stereotypes. If any new relevant information arises during the Crown's consultation with the complainant, then it has a duty to disclose this information to the accused. The provisions granting participatory rights to complainants have not altered the Crown's obligations.

As well, the complainant participation provisions in s. 278.94 have no impact on prosecutorial independence. The Stage Two hearing does not violate the right to a fair trial by disrupting the general structure of a criminal trial as a bipartite proceeding between the Crown and the accused. The participation of complainants is justified because they have a direct interest in whether their records, for which they have a reasonable expectation of privacy, are adduced in open court, and their contributions are valuable exactly because they are different from the Crown's. This limited standing on the issue of admissibility, however, does not turn complainants or their counsel into parties, much less quasi-prosecutors, usurping the role of the Crown on the ultimate issue of guilt. Complainants have no participatory rights in the trial itself; they are merely bringing their unique perspective on the impact that the admission of the evidence will have on their privacy and dignity, which is directly relevant to the issue of admissibility. The presiding judge remains the final arbiter on admissibility and is entitled to accept or reject a complainant's submissions and weigh them against competing considerations.

Finally, complainant participation does not violate the accused's right to cross‑examine the complainant without significant and unwarranted restraint. First, the right to cross‑examine is not unlimited, and the accused is not entitled to proceed with an unfair or irrelevant cross‑examination or ambush the complainant. The right to a fair trial does not guarantee the most advantageous trial possible, and requires consideration of the privacy interests of others involved in the justice system. The impugned provisions strike a balance that protects fundamental justice for accused persons and complainants. Second, there is no absolute principle that disclosure of defence materials inevitably impairs cross‑examination and trial fairness. Complainant participation in a Stage Two hearing does not create such a risk; and providing advance notice to complainants that they may be confronted with highly private information is likely to enhance their ability to participate honestly in cross‑examination. Third, the accused will still be able to test a complainant's evidence by comparing it to prior statements made to the police, which are available to the defence under the Crown's disclosure obligations. Fourth, complainants can be cross‑examined on their access to the private record application; the accused can impugn the credibility and reliability of complainants by suggesting that they tailored their evidence to fit what they learned in the application. Finally, if there is a situation where advanced disclosure of the application to a complainant will genuinely negate the efficacy of cross‑examination, the accused may choose to bring the application during cross‑examination to avoid the risk of witness tainting. The trial judge is then responsible for determining whether it is in the interests of justice to allow such an application.

In the absence of a finding that ss. 278.92 to 278.94 of the Criminal Code breach either ss. 7 or 11(d) of the Charter, it is unnecessary to canvass s. 1 of the Charter. And there are no s. 11(c) issues at play. Sections 278.92 to 278.94 of the Criminal Code are constitutional in their entirety, as they apply to both s. 276 evidence applications and private record applications.

Per Brown J. (dissenting in part): The record screening regime enacted under ss. 278.92 to 278.94 of the Criminal Code limits the accused's rights under ss. 11(c), 11(d) and 7 of the Charter. These limits are disproportionate and cannot be demonstrably justified in a free and democratic society. Therefore, ss. 278.92 to 278.94 should be struck down, with immediate effect, but only as those sections relate to the record screening regime. This would preserve the existing s. 276 regime restricting admissibility of other sexual activity evidence and the definition of "record" in the ss. 278.1 to 278.91 regime for production of third‑party records. The record screening regime ought to be returned to Parliament to be narrowed.

First, there is agreement with Rowe J. with respect to the proper analytical framework to be applied where both s. 7 and s. 11(d) of the Charter are raised. The jurisprudence on s. 7 and its relationship to other sections of the Charter, including s. 11, is doctrinally obscure and methodologically incoherent, being the product of 40 years of accumulated judicial ad hoc‑ery. The majority's reasons extend this trajectory by using s. 7 not to protect the fair trial and due process guarantees under the Charter, but to erode them. Since the accused's rights are not in competition with any other set of rights, it is not necessary to decide whether the appropriate framework would be that which requires balancing or that which requires reconciling: there is nothing to balance, or reconcile. And even if competing Charter rights were engaged, previous jurisprudence would not be determinative of the constitutionality of the record screening regime, as it is not a principled extension of the common law and related codified schemes that have already survived constitutional scrutiny (i.e., the s. 276 and ss. 278.1 to 278.91 regimes). Rather, it raises a different problem, requiring a different solution; the analysis must therefore turn on the interpretation of the specific provisions and requires the application of the existing Charter framework.

The record screening regime is overbroad. As can be concluded from the proper interpretation of the terms "record" and "adduce", this regime renders presumptively inadmissible a remarkably broad range of records in the hands of the defence, capturing not only records that are sensitive or prejudicial, and it regulates their use in any manner. Properly interpreted, the definition of "record" is not limited to records created in a confidential context, nor is it limited to materials containing information of an intimate or highly personal nature that is integral to the complainant's overall physical, psychological or emotional well‑being. For the purposes of the regime, a "record" is defined in s. 278.1 as anything that "contains personal information for which there is a reasonable expectation of privacy". Although the provision does not refer to electronic communications or personal correspondence, the legislative proceedings suggest that Parliament did intend to capture digital communications sent between the accused and complainant about the subject matter of the charge. Alongside the legislative debates emphasizing the protection of privacy and equality rights for all sexual assault complainants must also be read the Court's jurisprudence recognizing that electronic communications often contain highly private content. The weight of the jurisprudence applying s. 278.92 has also concluded that the complainant retains a reasonable expectation of privacy in electronic communications sent to the accused. Therefore, an electronic communication is a "record" if it contains personal information giving rise to a reasonable expectation of privacy, as that term has been interpreted in the s. 8 jurisprudence, and this includes any communication concerning the subject matter of the charge, whether of an explicit sexual nature or not.

Furthermore, as the record screening regime applies both to material in the accused's possession and the information contained in that material, it therefore regulates not only the use of the record itself but the information it contains. Accused persons must now bring an application anytime they intend to refer to the contents of a private record relating to the complainant, even if they do not seek to enter it into evidence or use it to impeach the complainant, but instead simply wish to refer to it in their own defence.

The focus in an overbreadth analysis is properly directed to the relationship between the law's purpose and its effects. Since the record screening regime captures all private records relating to the complainant that are in the accused's possession, which the accused intends to adduce or rely on in any manner, and which may include the accused's own digital conversations with the complainant about the subject matter of the charge, it could deprive individuals of liberty in situations that have no connection whatsoever to the object of the law. It requires disclosure of defence evidence that would not distort the truth‑seeking process or significantly interfere with the complainant's privacy, all before the Crown makes out a case to meet. It follows that it goes too far and interferes with some conduct that bears no connection to its objective.

In addition, properly interpreted, the record screening regime limits the accused's rights under ss. 11(c), 11(d) and 7 of the Charter in four ways. First, the record screening regime forces accused persons to reveal, in detail, particulars of their own prior statements and cross‑examination strategy and potential impeachment material, even before the Crown has laid out a case to be answered, as an application will be brought pre‑trial in the vast majority of cases. This shifts away from foundational principles of the criminal trial process, violating the principle against self‑incrimination, the right to silence, the presumption of innocence, and the related principle that the Crown must establish a case to meet before the accused can be expected to respond. While the Court approved advance disclosure to the Crown and complainant for evidence of other sexual activity, the principles stated are limited to the application of s. 276, which is designed to exclude only irrelevant information, and relevant information that is more prejudicial to the administration of justice than it is probative. The same rationale does not apply to the record screening regime. Similarly, compelled production of confidential materials from third parties raises different sensitivity and privacy concerns compared to records in the accused's possession. While it is true that the law imposes limited obligations on parties to provide disclosure so as to justify questioning or admission of evidence in situations that do not unconstitutionally limit the right to silence, none of these instances remotely support the conclusion that the right to silence is unaffected by the record screening regime. The Court has never concluded that tactical burdens to provide pre‑trial disclosure are automatically Charter‑compliant. In any event, confronting an accuser with all relevant evidence is quite different than making tactical choices such as challenging a search warrant. The limits to the protection from self‑incrimination and the right to silence are, on their own, fatal to the constitutionality of the regime. The violations to the self‑incrimination principle are in no way attenuated by the later admission of the highly relevant and probative evidence.

Secondly, the advance disclosure requirement and complainant's participatory rights operate together to limit the accused's ability to effectively cross‑examine the complainant, contrary to the presumption of innocence, the right to make full answer and defence and the right to a fair trial. The accused's right to make full answer and defence gives meaning and operation to the presumption of innocence — the most elementary manifestation of society's commitment to a fair trial. This extends to calling the evidence necessary to establish a defence, and challenging the evidence called by the prosecution, without significant and unwarranted constraint. Unwarranted constraints on cross‑examination may undermine the fairness of the trial, and increase the risk of convicting the innocent. Reasonable limits may be placed on the cross‑examination of a complainant in a sexual assault trial to prevent it from being used for improper purposes. But cross‑examination in respect of consent and credibility should be permitted where the probative value is not substantially outweighed by the danger of unfair prejudice that may flow from it. In sexual assault cases, cross‑examination is often the only way to expose falsehoods, memory issues, and inconsistencies in the complainant's testimony. In many cases, advance disclosure of counsel's dossier or strategy may improperly shape the complainant's testimony, consciously or unconsciously, in a manner that cannot be readily exposed or mitigated at trial, thereby reducing the effectiveness of the cross‑examination. The risks go beyond the explicit fabrication of evidence, and include the subtle manipulation of testimony by a witness to address the frailties or inconsistencies disclosed in advance by the defence. In many cases, there will also not be any pre‑trial sworn statements on which the accused can impeach the complainant. While there is no right to ambush or whack a complainant with misleading or abusive cross‑examination, confronting a complainant with inconsistencies that have not previously been disclosed is a well‑established and often exceedingly effective aspect of cross‑examination used to test the complainant's credibility. Impeachment of a Crown witness, including impeachment by surprise, is a legitimate and valuable defence tactic, which the regime eviscerates.

Thirdly, the fact that the record screening regime makes private records presumptively inadmissible when tendered by the defence, but presumptively admissible when tendered by the Crown, renders the trial unfair and undermines the regime's purpose. In this way, the regime differs from the s. 276 and ss. 278.1 to 278.91 regimes, and limits the right to a fair trial.

Fourthly, combined with the broad scope of "record" and advance notice requirement, the effect of the heightened standard of admissibility of defence evidence set by the record screening regime limits the rights to a fair trial and to make full answer and defence. The accused must establish, in advance of the complainant's testimony, that the records have significant probative value, meaning some relevant and probative evidence will necessarily be excluded. A judge may exclude evidence relevant to a defence allowed by law only where the prejudice substantially outweighs the probative value of the evidence. Section 278.92(2)(b) does violence to that principle by allowing admission of evidence only where it is of significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. Although the significant probative value standard in the s. 276 context was upheld, the same rationale does not apply mutatis mutandis to the record screening regime. While s. 276 addresses inherent damages and disadvantages in admitting sexual history evidence, the regime captures evidence that may well not have any distorting or damaging effect on the trial.

The limits on the accused's rights are not demonstrably justified. While the record screening regime has a pressing and substantial objective, it fails at the rational connection, minimal impairment, and final balancing stages of the s. 1 analysis. The one‑sided nature of the obligations shows that it is not rationally connected to its objective as purported concerns for a complainant's privacy, dignity and equality interests, confidence in the justice system and integrity of the trial process are cast aside when those private records are sought to be adduced by the Crown. The regime is not the least drastic means of achieving the legislative objective. The broad definition of "record", combined with the heightened admissibility threshold, will result in the exclusion of defence evidence that is not prejudicial and is highly relevant. By requiring disclosure of potential defence evidence, strategy, and lines of cross‑examination before the Crown has made out a case to meet, and by depriving the accused of establishing the relevance of that evidence based on the complainant's testimony, the regime does not minimally impair the right to silence, the presumption of innocence, or the principle against self‑incrimination. By mandating advance notice and disclosure to both the Crown and complainant, and by giving the complainant a role in the admissibility determination before trial, the regime allows the Crown's key witnesses to reconcile inconsistencies and potentially alter their evidence in subtle ways that are difficult to test or expose in court. The deleterious effects on individual accused persons are substantial, and this is all quite independent of significant deleterious effects on the criminal justice system, including increased trial complexity and delay. A narrower regime could further the goals of empowering and protecting complainants in a real and substantial manner, while impairing the accused's rights to a lesser extent. The harmful impacts and risk of wrongful convictions outweigh any potential benefits of the regime. The Crown has not demonstrated that the law's salutary effects outweigh its deleterious effects.

Per Rowe J. (dissenting in part): On the merits, there is agreement with Brown J. that ss. 278.92 to 278.94 of the Criminal Code are unconstitutional and of no force and effect except in so far as they apply to the existing s. 276 regime. The legislation restricts the fair trial rights of accused persons by placing limits on how they can conduct the cross‑examination of Crown witnesses and what evidence they can introduce in support of their own defence, even if that evidence is highly probative and not prejudicial to the complainants. As well, the screening process introduced by the legislation violates ss. 11(c) and 11(d) by requiring the accused to disclose all records relevant to their defence before the Crown has established the case to meet.

In order to give proper effect to ss. 7, 11 and 1 of the Charter, the following approach should be applied: where a specific Charter guarantee, such as s. 11, is pleaded along with the broader guarantee in s. 7, the specific guarantee should be addressed first. If a violation of the specific Charter guarantee is found, there is no reason to proceed to s. 7. If there is no violation of the specific guarantee, or the violation is found to be justified under s. 1, the courts must then look to s. 7. This approach accords with the structure of the Charter, and with the text and purposes of the "Legal Rights" in ss. 7 to 14 and s. 1.

The methodological approach adopted by the majority in these appeals inverts the proper role of s. 7 by introducing internal limits on s. 7 rights into s. 11. However, s. 7 is a broad, rights‑conferring provision. To construe it as a limit on other Charter rights is wrong in principle and, in the instant case, undermines the longstanding, fundamental right to a fair trial.

Ordinarily, a Charter right can only be limited in one of two ways: internally, through its own text, or by undertaking the balancing required in s. 1. Qualifying words used in the text of the Charter are the starting point for the interpretation of the scope of Charter rights and any internal limits. Sections 11(c) and 11(d) have few internal limits and can otherwise be limited only following a proportionality assessment under s. 1.

A limit on s. 11 based on s. 7 does not conform either to the architecture of the Charter or to the purposes of those provisions or of s. 1. There is no foundation for an analytical approach whereby ss. 11(c) and 11(d) rights can be limited by reference to internal limits in s. 7. This would involve a grave distortion of s. 7, which is a broad, rights‑conferring provision.

The improper use of s. 7 to create limits on s. 11 results from an inconsistent interpretation of s. 7 that has given rise to doctrinal difficulties. The s. 7 jurisprudence has been unclear on how to identify and define the principles of fundamental justice. An expansive approach to these principles, which includes not only procedural protections, but also substantive ones, has given rise to considerable uncertainty; it has contributed to s. 7 jurisprudence marked by indeterminacy and an ongoing lack of doctrinal clarity. These uncertainties are being introduced into s. 11.

There is also a lack of coherence in the s. 7 methodology and no clear guidance for how principles of fundamental justice are balanced with competing considerations in arriving at the scope of s. 7 rights, or whether such a balancing is appropriate. When engaging in an internal balancing under s. 7, the Court has sometimes categorized competing considerations as Charter rights, Charter values, or societal interests, but without a systematic or consistent approach to how these are to be weighed against one another, or even whether the considerations applicable to each category are different. It is not clear how Charter values and societal interests as opposed to Charter rights are defined; whether these rights, values or interests must engage s. 7 or at least amount to principles of fundamental justice in order to be part of the balancing; or, in the event of conflict between rights, interests and values, how one should decide which consideration prevails. These ambiguities mean that Charter rights can be weighed against Charter values and societal interests — unclear and amorphous concepts of uncertain legal origin and status that can be chosen from, at will, by a decision maker to arrive at a given result. The outcomes provide little certainty and little predictability, and open the door widely to conclusory decision‑making.

Internal limits on s. 7 rights are being relied on by the majority in three ways to introduce limitations into s. 11. The first approach finds that ss. 11(c) and 11(d) protect rights that illustrate principles of fundamental justice, and therefore these may be balanced against other considerations under s. 7. When s. 7 is given priority in the analysis, it subsumes ss. 11(c) and 11(d) and the latter can be limited without a s. 1 analysis. The second approach defines ss. 11(c) and 11(d) following consideration of other interests because they are inextricably intertwined with s. 7. The third approach holds that, because it is so closely related to s. 7, the definition of fairness in s. 11(d) includes considerations of the interests of the state and other parties. All these approaches conflate s. 7 with the other rights in ss. 8 to 14 of the Charter and tend to channel the entire constitutional analysis through s. 7. Such an analysis operates almost entirely outside the constitutional text, structure, and purposes of the various provisions. It defines the right to a fair trial by reference to the perspectives of the accused, the complainant, the community and the criminal justice system at large. However, the right to a fair trial under s. 11(d) is one that appertains to the accused only. The majority's approach limits the fair trial right of the accused based on societal interests analyzed through the vehicle of the principles of fundamental justice under s. 7. Instead, the proper methodology by which to have regard to such societal considerations is under s. 1 and not by using s. 7 as a mechanism to limit rights under s. 11.

In addition, as a practical matter, balancing s. 7 internally and using the outcome to limit s. 11 leads to a reversal of the burden of proof and a dilution of Charter protections. Under s. 11, an accused alleging a violation must prove it; if proven, the onus shifts to the state to justify the violation under s. 1. By contrast, if there is a balancing of Charter rights, Charter values and societal interests under the principles of fundamental justice in s. 7, the burden is on the accused throughout. Accused persons must establish not only the content of the principle of fundamental justice that they allege is violated, but also that it is not outweighed by other considerations. Such an approach undermines the purpose of the broad protection of the right to a fair trial under s. 11 and the purpose of s. 1 to hold the state to the burden of proof to show that any limit is demonstrably justified in a free and democratic society. A further potentially anomalous result under this approach is that s. 11 may first be limited by s. 7 and then, when the usual s. 1 analysis is undertaken, s. 11 rights may be further limited. Most fundamentally, limiting s. 11 through s. 7 is contrary to the purposes of both ss. 7 and 11.

Per Côté J. (dissenting in part): There is agreement with Brown J. that the record screening regime does not come close to passing constitutional muster. There is also agreement with Rowe J.'s analytical approach in respect of s. 7 of the Charter. However, there is disagreement with the analyses and the conclusions of both the majority and Brown J. on the interpretation of "record" and "adduce". A narrow interpretation should be preferred.

A proper interpretation of "record" as defined in s. 278.1 of the Criminal Code excludes any communications — electronic or otherwise — between the accused and the complainant other than communications made in the context of a professional relationship in which there was an expectation of some degree of confidentiality. Such an interpretation better accords with the text of s. 278.1. Communications between the complainant and the accused are not specifically enumerated as records in that section. The common thread weaving through the enumerated records is the complainant's reasonable expectation that such records will not be publicly disclosed. The defining feature is not the highly personal nature of the information. Accordingly, unenumerated records will be documents containing personal information that the complainant expects not to be disclosed. These could be either (1) records created in a professional context for which there is an expectation of some degree of confidentiality, even if the relationship is not strictly confidential, or (2) records that are intended for the complainant's exclusive personal use and review.

In addition to being consistent with the text of s. 278.1, a narrower interpretation of "record" is more consistent with the section's legislative evolution and legislative history. By importing a definition of "record" from the regime for the production of third party records, which did not contemplate or include communications between the accused and the complainant, Parliament signaled an intention that such communications do not constitute records for the purposes of the record screening regime. As well, the record screening regime was enacted to address a gap in the law that arose where an accused legally came into possession of a record. The mischief to be remedied was not the admission at trial of voluntary communications between the complainant and the accused. This again weighs heavily in favour of an interpretation of "record" that excludes electronic communications between an accused and a complainant.

A narrow interpretation of "record" is also more consistent with the Court's jurisprudence and with the common law meaning of the phrase "reasonable expectation of privacy". Expectations of privacy are contextual, and must be assessed in light of the totality of circumstances. The key contextual factor is that an individual does not have an objectively reasonable expectation of privacy in communications vis‑à‑vis the recipient of the message. Where the accused's liberty is at stake, a complainant's expectation of privacy in communications with the accused is objectively unreasonable. The only exception to this category‑based approach relates to messages exchanged in the context of a professional relationship in which there is an expectation of some degree of confidentiality. In such circumstances, the professional relationship and the corresponding expectation of some degree of confidentiality ground a reasonable expectation of privacy.

The majority's approach fails fundamentally to assess whether the complainant's expectation of privacy is objectively reasonable in the circumstances. It gives undue weight to the content of the communication, while simultaneously disregarding or minimizing other significant contextual factors. As a result, no meaningful guidance is offered on how to discern whether a message is subject to the record screening regime. As well, the majority's conception of and approach to privacy is inconsistent with the idea that a reasonable expectation of privacy standard is normative rather than simply descriptive. The trial context is determinative.

There is quite simply no reason to depart from the common law meaning of the phrase "reasonable expectation of privacy" and the content‑neutral approach that has been developed in relation to it. There is nothing in the text of s. 278.1 that suggests doing so is necessary. A content‑neutral approach would also facilitate the operation of the record screening regime and would have the significant benefit of largely averting the need for motions for directions. The majority's justification for jettisoning the content‑neutral approach is unpersuasive and inconsistent with the fundamental premise of the record screening regime. It is also internally inconsistent with their own reasons as well as being inconsistent with the Court's jurisprudence.

It would not be difficult to meaningfully assess or protect a complainant's privacy interests, as the focus should be on the expectation of privacy rather than on the content of the information. Records can attract a reasonable expectation of privacy — regardless of their content — based on the medium used to convey the information. In the record screening regime, the medium — and the expectation of privacy that exists in the context of that medium — is determinative.

Adopting a narrow category‑based approach to the interpretation of "record" avoids many of the absurd results that inevitably follow from a broad interpretation. A broad interpretation will result in an absurd two‑tiered system of admissibility that favours the Crown and will lead to the absurd consequence of having the record screening regime create a distinction between information exchanged orally and information exchanged through electronic means. A category‑based approach would have significant practical benefits in terms of trial efficiency as it would not be necessary to contextually assess each message in order to determine whether it constitutes a "record".

With respect to "adduce", given that the record screening regime is focused on physical records rather than on a category of evidence, its plain meaning should be adopted, as it relates directly to the physical record. Sections 278.92 and 278.93 of the Criminal Code are clear. An application is required only where an accused intends to introduce a copy of the actual record into evidence. It is not required where an accused intends only to ask questions about the information contained in the record, and not to adduce the record in evidence. Interpreting "adduce" more broadly leads to an inherent incongruity, preventing one accused from using relevant information merely because this accused possesses the best evidence of the information. An accused should be permitted to ask the complainant questions about any electronic conversations between them that are relevant to an issue at trial, and barring an evidentiary rule, should also be permitted to testify about electronic conversations with the complainant.

Even with narrower interpretations of "record" and "adduce", Brown J.'s constitutional analysis remains overwhelmingly applicable. The record screening regime continues to force accused persons to reveal their defence before the Crown has made out a case to meet, contrary to the principle against self‑incrimination, the right to silence, and the presumption of innocence. The regime continues to restrict the accused's ability to cross‑examine Crown witnesses by giving the complainant a role in pre‑trial admissibility determinations. The regime still makes private records presumptively inadmissible when tendered by the defence, but presumptively admissible when tendered by the Crown. Finally, the regime still sets a stricter test for admitting defence evidence than is warranted or constitutionally permissible. None of these limits on the accused's Charter rights can be justified under s. 1. The regime is not rationally connected to its objective, it is not minimally impairing, and its salutary effects do not outweigh its deleterious effects.

Cases Cited

By Wagner C.J. and Moldaver J.

Applied: R. v. Mills, [1999] 3 S.C.R. 668; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; considered: R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; referred to: R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. O'Connor, [1995] 4 S.C.R. 411; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Dyment, [1988] 2 S.C.R. 417; Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Wong, [1990] 3 S.C.R. 36; Canada v. Canada North Group Inc., 2021 SCC 30, [2021] 2 S.C.R. 571; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; Telecommunications Workers Union v. Canada (Radio‑television and Telecommunications Commission), [1995] 2 S.C.R. 781; A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. L. (D.O.), [1993] 4 S.C.R. 419; R. v. Levogiannis, [1993] 4 S.C.R. 475; R. v. Fitzpatrick, [1995] 4 S.C.R. 154; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; M. (A.) v. Ryan, [1997] 1 S.C.R. 157; R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 607; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. E. (A.W.), [1993] 3 S.C.R. 155; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. S.A.B., 2003 SCC 60, [2003] 2 S.C.R. 678; R. v. White, [1999] 2 S.C.R. 417; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405; Martineau v. M.N.R., 2004 SCC 81, [2004] 3 S.C.R. 737; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Anderson (2002), 57 O.R. (3d) 671; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36; R. v. Scopelliti (1981), 34 O.R. (2d) 524; R. v. G. (S.G.), [1997] 2 S.C.R. 716; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. M.S., 2019 ONCJ 670.

By Brown J. (dissenting in part)

R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; R. v. Osolin, [1993] 4 S.C.R. 595; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193; R. v. Rose, [1998] 3 S.C.R. 262; R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. G. (S.G.), [1997] 2 S.C.R. 716; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105; R. v. Carosella, [1997] 1 S.C.R. 80; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726; R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475; R. v. Samaniego, 2020 ONCA 439, 151 O.R. (3d) 449, aff'd 2022 SCC 9, [2022] 1 S.C.R. 71; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; R. v. Ghomeshi, 2016 ONCJ 155, 27 C.R. (7th) 17; R. v. M.S., 2019 ONCJ 670.

By Rowe J. (dissenting in part)

R. v. Mills, [1999] 3 S.C.R. 668; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193; R. v. Osolin, [1993] 4 S.C.R. 595; Fleming v. Ontario, 2019 SCC 45, [2019] 3 S.C.R. 519; R. v. White, [1999] 2 S.C.R. 417; R. v. Seaboyer, [1991] 2 S.C.R. 577; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3; R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936; R. v. O'Connor, [1995] 4 S.C.R. 411; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Carosella, [1997] 1 S.C.R. 80; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Rose, [1998] 3 S.C.R. 262; R. v. Levogiannis, [1993] 4 S.C.R. 475; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Brown, 2022 SCC 18, [2022] S.C.R. 374; R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180.

By Côté J. (dissenting in part)

R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; R. v. M.S., 2019 ONCJ 670; R. v. Ghomeshi, 2016 ONCJ 155, 27 C.R. (7th) 17; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535.

Statutes and Regulations Cited

• An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29.
• An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25, s. 238.
• Canadian Charter of Rights and Freedoms, ss. 1, 7 to 14.
• Criminal Code, R.S.C. 1985, c. C‑46, ss. 117.13(2), 145(10), 276, 276.1 to 276.5 [rep. 2018, c. 29, s. 22], 278.1 to 278.94, 347(6), 645(5), 648, 672.5(11), 694.1, 722(3), 722(9).
• Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, s. 2(1) "personal information".
• Rules of the Supreme Court of Canada, SOR/2002‑156, Sch. B.
• Supreme Court Act, R.S.C. 1985, c. S‑26, ss. 40, 47.

Appeals

APPEAL and CROSS-APPEAL from a decision of the British Columbia Supreme Court (Duncan J.), 2020 BCSC 349, [2020] B.C.J. No. 1526 (QL), 2020 CarswellBC 2403 (WL), declaring that the violation of s. 7 of the Canadian Charter of Rights and Freedoms by s. 278.93(4) of the Criminal Code cannot be saved by s. 1 of the Charter, and reading down the seven‑day notice requirement in s. 278.93(4). Appeal allowed and cross‑appeal dismissed, Côté, Brown and Rowe JJ. dissenting in part.

APPEAL from a decision of the Ontario Superior Court of Justice (Akhtar J.), 2020 ONSC 7156, 398 C.C.C. (3d) 227, 475 C.R.R. (2d) 290, [2020] O.J. No. 5412 (QL), 2020 CarswellOnt 18201 (WL), declaring that ss. 278.92, 278.94(2) and 278.94(3) of the Criminal Code violate ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms and that the violations cannot be saved by s. 1 of the Charter. Appeal allowed, Côté, Brown and Rowe JJ. dissenting in part.

Counsel

Lesley A. Ruzicka, for the appellant/respondent on cross‑appeal Her Majesty The Queen.

Dawne Way, David Butt and David M. Reeve, for the appellant A.S.

Rebecca McConchie and Megan Savard, for the respondent/appellant on cross‑appeal J.J.

Jill Witkin and Jennifer Trehearne, for the respondent Her Majesty The Queen.

Carlos Rippell and Marianne Salih, for the respondent Shane Reddick.

Marc Ribeiro and Lauren Whyte, for the intervener the Attorney General of Canada.

Jennifer Trehearne and Jill Witkin, for the intervener the Attorney General of Ontario.

Abdou Thiaw, for the intervener the Attorney General of Quebec.

Erica Koresawa, for the intervener the Attorney General of Nova Scotia.

Jennifer Mann and Charles Murray, for the intervener the Attorney General of Manitoba.

Lara Vizsolyi, for the intervener the Attorney General of British Columbia.

Sharon H. Pratchler, Q.C., for the intervener the Attorney General of Saskatchewan.

Deborah J. Alford, for the intervener the Attorney General of Alberta.

Gloria Ng and Kate Feeney, for the interveners the West Coast Legal Education and Action Fund and the Women Against Violence Against Women Rape Crisis Centre.

Joanna Birenbaum, for the intervener the Barbra Schlifer Commemorative Clinic.

Peter Sankoff and William van Engen, for the intervener the Criminal Trial Lawyers' Association.

Gerald Chan, Daniel Brown and Lindsay Board, for the intervener the Criminal Lawyers' Association (Ontario).

John M. Williams and Thomas Hynes, for the intervener the Canadian Council of Criminal Defence Lawyers.

Greg DelBigio, for the intervener the Independent Criminal Defence Advocacy Society.

Kelley Bryan and Karen A. Steward, for the intervener the Women's Legal Education and Action Fund Inc.

Saul B. Simmonds, Q.C., and Jessie S. Brar, for the intervener the Criminal Defence Lawyers Association of Manitoba.

Joint Reasons for Judgment

The Chief Justice and Moldaver J. —

I. Overview

[ 1 ] The criminal trial process can be invasive, humiliating, and degrading for victims of sexual offences, in part because myths and stereotypes continue to haunt the criminal justice system. Historically, trials provided few if any protections for complainants. More often than not, they could expect to have the minutiae of their lives and character unjustifiably scrutinized in an attempt to intimidate and embarrass them, and call their credibility into question — all of which jeopardized the truth-seeking function of the trial. It also undermined the dignity, equality, and privacy of those who had the courage to lay a complaint and undergo the rigours of a public trial.

[ 2 ] Over the past decades, Parliament has made a number of changes to trial procedure, attempting to balance the accused's right to a fair trial; the complainant's dignity, equality, and privacy; and the public's interest in the search for truth. This effort is ongoing, but statistics and well-documented complainant accounts continue to paint a bleak picture. Most victims of sexual offences do not report such crimes; and for those that do, only a fraction of reported offences result in a completed prosecution. More needs to be done.

[ 3 ] These appeals concern the constitutionality of Bill C-51, a recent ameliorative effort by Parliament to remove the barriers that have deterred complainants from coming forward. This bill, which was enacted in 2018 (An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29), introduced ss. 278.92 to 278.94 into the Criminal Code, R.S.C. 1985, c. C-46 ("impugned provisions"). These provisions were designed to protect the interests of complainants in their own private records when an accused has possession or control of the records and seeks to introduce them at a hearing in their criminal proceeding. Specifically, they create procedures and criteria to assist the judge in deciding whether the records should be admitted, balancing the rights and interests of the accused, the complainant, and the public. Some of the procedural elements of the impugned provisions also apply to s. 276 evidence applications, as Parliament repealed the prior procedural provisions governing such applications.

[ 4 ] Prior to Bill C-51, there was no statutory procedure governing the admissibility of complainants' private records held by accused persons. There were, however, procedures governing the admissibility of evidence of complainants' prior sexual activity or history ("s. 276 regime") and of complainants' private records in the hands of third parties ("third party production regime"). This Court has affirmed the constitutionality of both regimes (see R. v. Mills, [1999] 3 S.C.R. 668; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443). In order to contextualize Bill C-51, it is helpful to consider the regime changes that preceded it in further detail.

[ 5 ] The first set of legislative changes sought to expose and eliminate two insidious myths — commonly referred to as the "twin myths" — which allowed the use of complainants' prior sexual history to suggest that they were (1) less worthy of belief and/or (2) more likely to have consented to the alleged assault. These myths had long been used to attack the credibility and dignity of complainants, tarnish their reputations, and sideline the truth-seeking function of a criminal trial. Recognizing the harm caused by them, Parliament enacted legislation to govern the use of evidence relating to complainants' prior sexual history. While Parliament's first iteration of s. 276 was found to be overbroad in R. v. Seaboyer, [1991] 2 S.C.R. 577, revised provisions were found by this Court to be constitutionally compliant in Darrach. This general framework remains in place today, albeit in amended form.

[ 6 ] The second set of legislative changes sought to restrict what had become a routine practice — defence counsel seeking production of complainants' private records in order to engage in invasive attacks on their character. For example, defence counsel often sought production of medical records in order to advance myth-based arguments impugning the credibility and reliability of complainants who had previously consulted with psychiatrists or counsellors. This problem was first addressed in R. v. O'Connor, [1995] 4 S.C.R. 411, resulting in the creation of a common law procedure governing the production of complainants' private records by third parties. Parliament subsequently legislated its own procedure (ss. 278.1 to 278.91 of the Criminal Code), which drew upon but modified the O'Connor procedure. This Court affirmed the constitutionality of that regime in Mills, finding that it struck a reasonable balance between the rights of the accused, the rights of the complainant, and the public interest.

[ 7 ] A third problem emerged. In R. v. Osolin, [1993] 4 S.C.R. 595, the Court addressed a situation where the defence cross-examined the complainant on the basis of her personal medical records, which had come into the accused's possession. Similarly, in R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, the Court was confronted with a situation where the accused sought to cross-examine the complainant based on entries in her own private diary, which happened to be in the accused's possession. Since the accused already had the diary, there was no need to seek production through the third party production regime. The main issue was the admissibility of the diary. In the absence of legislation, the Court endorsed the use of motions brought at the instance of complainants to protect against the improper use of their private documents already in the hands of accused persons.

[ 8 ] Following Osolin and Shearing, it became clear that there was no legislation governing the admissibility of a complainant's private records in the hands of the accused, rather than a third party — even though the complainant's privacy and dignity interests are similar in both contexts. A 2012 Senate report recommended creating legislation designed to address this gap: a regime governing the admissibility of complainants' private records in the hands of the accused, using similar factors to those in the third party production regime (Standing Senate Committee on Legal and Constitutional Affairs, Statutory Review on the Provisions and Operation of the Act to amend the Criminal Code (production of records in sexual offence proceedings): Final Report ("2012 Senate Report"), at p. 19).

[ 9 ] Bill C-51 was Parliament's response. Among other features, it extended the protections provided to complainants in sexual offence trials in two ways. First, it created a new procedure to determine whether the complainant's private records in the hands of the accused are admissible as evidence at trial ("record screening regime"). Second, it provided complainants with additional participation rights in admissibility proceedings under the new record screening regime and the pre-existing s. 276 regime for prior sexual history evidence ("complainant participation provisions").

[ 10 ] In the two appeals presently before the Court, each accused (J.J. and Shane Reddick) brought a pre-trial application challenging the constitutionality of the impugned provisions, arguing that Parliament had moved too far in favour of protecting the interests of complainants, and in the process, had jeopardized three fundamental rights guaranteed to accused persons under the Canadian Charter of Rights and Freedoms, namely: the right to silence and privilege against self-incrimination under ss. 7 and 11(c); the right to a fair trial under ss. 7 and 11(d); and the right to make full answer and defence under ss. 7 and 11(d). The judges in both cases granted the applications and found the provisions unconstitutional, in whole or in part (see the Charter breach analysis in R. v. J.J., 2020 BCSC 29, and the s. 1 analysis and decision on remedy in R. v. J.J., 2020 BCSC 349; and see R. v. Reddick, 2020 ONSC 7156, 398 C.C.C. (3d) 227). In Mr. Reddick's case, part of the application judge's ruling included a finding that s. 278.92 was overbroad under s. 7 of the Charter.

[ 11 ] In J.J.'s case, this Court granted the Crown's application for leave to appeal from the application judge's interlocutory constitutional ruling, which held that part of the record screening regime was unconstitutional. The Court also granted J.J.'s later application for leave to cross-appeal on the issue of the constitutionality of the regime in its entirety. In Mr. Reddick's case, the complainant, A.S., sought to challenge the application judge's interlocutory constitutional ruling that effectively prevented her from participating in the record screening process and declared the regime unconstitutional in its entirety. This Court granted A.S. the right to be added as a party to the proceedings because, being a complainant, she would not normally have been a party. The Court then granted A.S.'s application for leave to appeal. Mr. Reddick is a respondent on the appeal. The Crown is also a respondent, despite arguing (like A.S.) that the regime as a whole is constitutionally valid.

[ 12 ] The main arguments of the respondents J.J. and Mr. Reddick were as follows. First, the impugned provisions force the defence to disclose both its strategy and the details of its proposed evidence to the Crown prior to trial, thereby violating the right to silence and the privilege against self-incrimination. Second, the impugned provisions provide complainants with advanced notice of defence evidence and the purposes for which it is being adduced. As a result, complainants will be able to tailor their responses during examination-in-chief and cross-examination. This detracts from the right to make full answer and defence and from the truth-seeking function of trial. Finally, complainant participation in voir dires threatens trial fairness, as it disrupts the structure of a criminal trial, inserts a third-party adversary into the process, and undermines the role of the Crown.

[ 13 ] For the reasons that follow, we would not give effect to these arguments. Properly construed, ss. 278.92 to 278.94 of the Criminal Code do not infringe upon ss. 7, 11(c), or 11(d) of the Charter. In the result, we would allow the Crown's appeal and dismiss J.J.'s cross-appeal; we would also allow A.S.'s appeal.

[ 14 ] We have had the benefit of reading the dissenting reasons prepared by our colleague Côté J. With respect, we cannot accede to her interpretation of the relevant statutory provisions, as we consider it to be unduly narrow and restrictive. We have also read the separate dissenting reasons of our colleagues Brown J. and Rowe J. Respectfully, they have mischaracterized our reasons and their effect and disregarded the principle of stare decisis — sweeping aside decades of this Court's binding jurisprudence as "judicial ad hoc-ery". Quite simply, their approach to the constitutional analysis must be rejected.

II. Relevant Statutory Provisions

[ 15 ] The following provisions of the Criminal Code are relevant to these appeals:

Evidence of complainant's sexual activity

276(1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject matter of the charge; or (b) is less worthy of belief.

Conditions for admissibility

(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence (a) is not being adduced for the purpose of supporting an inference described in subsection (1); (b) is relevant to an issue at trial; and (c) is of specific instances of sexual activity; and (d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Factors that judge must consider

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account (a) the interests of justice, including the right of the accused to make a full answer and defence; (b) society's interest in encouraging the reporting of sexual assault offences; (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (d) the need to remove from the fact-finding process any discriminatory belief or bias; (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (f) the potential prejudice to the complainant's personal dignity and right of privacy; (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (h) any other factor that the judge, provincial court judge or justice considers relevant.

Interpretation

(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

Definition of record

278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

Admissibility — accused in possession of records relating to complainant

278.92(1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences: (a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or (b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.

Requirements for admissibility

(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, (a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or (b) in any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Factors that judge shall consider

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(a) the interests of justice, including the right of the accused to make a full answer and defence;

(b) society's interest in encouraging the reporting of sexual assault offences;

(c) society's interest in encouraging the obtaining of treatment by complainants of sexual offences;

(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(e) the need to remove from the fact-finding process any discriminatory belief or bias;

(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(g) the potential prejudice to the complainant's personal dignity and right of privacy;

(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(i) any other factor that the judge, provincial court judge or justice considers relevant.

Application for hearing — sections 276 and 278.92

278.93(1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 278.94 to determine whether evidence is admissible under subsection 276(2) or 278.92(2).

Form and content of application

(2) An application referred to in subsection (1) must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court.

Jury and public excluded

(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

Judge may decide to hold hearing

(4) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2).

Hearing — jury and public excluded

278.94(1) The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2) or 278.92(2).

Complainant not compellable

(2) The complainant is not a compellable witness at the hearing but may appear and make submissions.

Right to counsel

(3) The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.

Judge's determination and reasons

(4) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part of it, is admissible under subsection 276(2) or 278.92(2) and shall provide reasons for that determination, and (a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted; (b) the reasons must state the factors referred to in subsection 276(3) or 278.92(3) that affected the determination; and (c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.

Record of reasons

(5) The reasons provided under subsection (4) shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing.

III. Issues

[ 16 ] These appeals call into question the constitutionality of ss. 278.92 to 278.94 of the Criminal Code. It is alleged that the impugned provisions violate the rights of accused persons under ss. 7, 11(c) and 11(d) of the Charter and should be struck down.

IV. Analysis

A. Statutory Interpretation of the Provisions

[ 17 ] Before determining the constitutionality of the impugned provisions, it is first necessary to interpret them. The modern principle of statutory interpretation assists us in this exercise: ". . . the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21).

[ 18 ] As a rule, "[c]ourts must presume that Parliament intended to enact constitutional, [Charter‑compliant] legislation and strive, where possible, to give effect to this intention" (Mills, at para. 56; see also R. Sullivan, Statutory Interpretation (3rd ed. 2016), at pp. 307-8; R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110, at paras. 28-29). Furthermore, this Court stated in Mills that "if legislation is amenable to two interpretations, a court should choose the interpretation that upholds the legislation as constitutional" (para. 56, referring to Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078).

[The full text of the majority reasons (paras. 19–196), Brown J.'s dissent in part (paras. 197–320), Rowe J.'s dissent in part (paras. 321–438), and Côté J.'s dissent in part (paras. 439–491) follow in the original judgment. The headnote above summarizes the key holdings of each set of reasons.]

V. Disposition

[ 192 ] Sections 278.92 to 278.94 of the Criminal Code are constitutional in their entirety, as they apply to both s. 276 evidence applications and private record applications.

[ 193 ] Accordingly, we would allow the Crown's appeal and dismiss J.J.'s cross-appeal; we would also allow A.S.'s appeal. The application judges' constitutional rulings in both matters are hereby quashed.

VI. Costs

[ 194 ] In J.J.'s case, there will be no order as to costs, whether with respect to the Crown's appeal or to J.J.'s cross-appeal, as this is a criminal matter without exceptional circumstances.

[ 195 ] In the other appeal, A.S. brought a motion to appoint counsel pursuant to s. 694.1 of the Criminal Code. Section 694.1 does not contemplate appointments of counsel for parties other than accused individuals and, accordingly, A.S.'s motion must be denied.

[ 196 ] However, A.S. provided an important perspective before this Court on behalf of complainants on a novel constitutional question at her own expense. Pursuant to this Court's costs jurisdiction under s. 47 of the Supreme Court Act, we exercise our discretion in these exceptional circumstances to order the Attorney General of Ontario to pay A.S.'s costs before this Court. As such, A.S.'s appeal is allowed with costs to A.S. in this Court, in accordance with the tariff of fees and disbursements set out in Schedule B of the Rules of the Supreme Court of Canada, SOR/2002-156.

Dissenting Reasons — Brown J. (dissenting in part)

I. Introduction

[ 197 ] In R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 625, this Court held that Parliament, in rightly seeking to abolish the "outmoded, sexist‑based use" of evidence of a complainant's prior sexual activity, "oversho[t] the mark" by rendering inadmissible "evidence which may be essential to the presentation of legitimate defences and hence to a fair trial". In so doing, the Court added, Parliament created "the real risk that an innocent person may be convicted" (p. 625).

[ 198 ] These appeals arise from a measure that also imposes precisely that risk. The records screening regime enacted under ss. 278.92 to 278.94 of the Criminal Code, R.S.C. 1985, c. C-46, represents an unprecedented and unconstitutional erosion by Parliament of the fair trial rights of the presumptively innocent ⸺ who, it should be borne in mind, will sometimes be actually innocent. It seriously impedes the ability of such persons to prove that innocence, by making presumptively inadmissible all private records relating to the complainant that are in the possession of the accused and which the accused intends to adduce in a sexual offence prosecution. It is the only evidentiary rule that mandates pre‑trial disclosure of defence evidence and strategy, before the Crown has made out a case to meet, and even where the evidence sought to be relied on is neither irrelevant nor inherently prejudicial.

[Brown J.'s full dissenting reasons in part (paras. 199–320) follow in the original judgment.]

Dissenting Reasons — Rowe J. (dissenting in part)

[Rowe J.'s full dissenting reasons in part (paras. 321–438) follow in the original judgment.]

Dissenting Reasons — Côté J. (dissenting in part)

[Côté J.'s full dissenting reasons in part (paras. 439–491) follow in the original judgment.]

Solicitors

Solicitors for the appellant/respondent on cross‑appeal Her Majesty The Queen: Attorney General of British Columbia, Victoria.

Solicitors for the appellant A.S.: Peck and Company, Vancouver; West Coast Legal Education and Action Fund, Vancouver; Dawne Way Law, Burnaby.

Solicitors for the respondent/appellant on cross‑appeal J.J.: Savard Foy, Toronto.

Solicitor for the respondent Her Majesty The Queen: Attorney General of Ontario, Toronto.

Solicitors for the respondent Shane Reddick: Rippell Salih & Partners, Toronto.

Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Montréal.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of Quebec: Attorney General of Quebec, Québec.

Solicitor for the intervener the Attorney General of Nova Scotia: Attorney General of Nova Scotia, Halifax.

Solicitor for the intervener the Attorney General of Manitoba: Attorney General of Manitoba, Winnipeg.

Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Victoria.

Solicitor for the intervener the Attorney General of Saskatchewan: Attorney General of Saskatchewan, Regina.

Solicitor for the intervener the Attorney General of Alberta: Attorney General of Alberta, Edmonton.

Solicitors for the interveners the West Coast Legal Education and Action Fund and the Women Against Violence Against Women Rape Crisis Centre: Gloria Ng Law, Vancouver; West Coast Legal Education and Action Fund, Vancouver.

Solicitors for the intervener the Barbra Schlifer Commemorative Clinic: Birenbaum Law, Toronto.

Solicitors for the intervener the Criminal Trial Lawyers' Association: Bottos Law Group, Edmonton.

Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Stockwoods, Toronto; Daniel Brown Law, Toronto.

Solicitors for the intervener the Canadian Council of Criminal Defence Lawyers: Gerrand Rath Johnson, Regina.

Solicitor for the intervener the Independent Criminal Defence Advocacy Society: Greg DelBigio, Vancouver.

Solicitors for the intervener the Women's Legal Education and Action Fund Inc.: Perez Bryan Procope, Toronto.

Solicitors for the intervener the Criminal Defence Lawyers Association of Manitoba: Simmonds and Associates, Winnipeg.

[^1]: Remarks of the Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada (Carole Morency), Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 47, 1st Sess., 42nd Parl., June 20, 2018, at p. 82 ("The provision in Bill C-51 seeks to do something similar, with respect to communications such as emails and texts that were previously prepared, sent to the accused, are of a sexual purpose or about sexual activity in the past, to restrict and prevent their use for irrelevant purposes, which the Supreme Court has held applies to the case of twin myths. That's not probative and it's irrelevant to the consideration before the court" (emphasis added)).

[^2]: With the enactment of Bill C‑51, there were some minor, non-substantive changes to the text of s. 278.1. The statutory definition of "record" was modified to the extent that the phrase "without limiting the generality of the foregoing" was removed. As was noted in R. v. M.S., 2019 ONCJ 670, at paras. 33‑36, this was not a substantive change.