June 30, 2022 – Today’s Supreme Court decision upholds important protections for sexual assault survivors in criminal trials, says the Women’s Legal Education and Action Fund (LEAF).
In its decision in A.S. v. Her Majesty the Queen and R. v. J.J., a majority of the Court upheld a legal framework put in place to protect the equality rights of complainants in sexual assault cases. In upholding the framework, the majority recognized that criminal trials “can be invasive, humiliating, and degrading for victims of sexual offences” and that “[m]ore needs to be done.” The Court also provided more clarity on how the framework should be implemented.
“We are pleased by today’s decision, which will promote access to justice for complainants,” says Pam Hrick, LEAF Executive Director & General Counsel. “The Court clearly recognized and responded to the equality, privacy, and dignity of complainants while respecting the accused’s right to full answer and defence.”
Sexual violence disproportionately affects women and girls. Black, Indigenous, trans, queer, and/or disabled women face even higher rates of sexual violence. At the same time, less than 10% of sexual assault incidents are ever reported in Canada. When survivors do report, police dismiss one in five sexual assault reports as unfounded.
“Criminal trials often re-traumatize survivors”, says Hrick. “For those survivors who choose to report, this decision upholds important protections for complainants and reaffirms the need to improve criminal justice responses to sexual assault.”
With today’s decision, an accused person in possession of a complainant’s private records (such as text messages, photographs, and medical records) cannot surprise the complainant with these records during a trial. Instead, the accused person must ask the judge to hold a separate hearing and decide whether to allow the records to be used in court. The judge will consider different factors in making the decision, including factors supporting the equality rights of complainants. Complainants have the right to participate in these hearings, and to have access to independent counsel to help them participate.
While criminal justice responses must be improved, LEAF emphasizes the necessity of exploring alternative justice responses and working to end gender-based violence altogether. LEAF calls on the federal, provincial, and territorial governments to provide funding for alternative justice responses to sexual violence, and to take urgent, coordinated action to implement the Roadmap for a National Action Plan on Violence Against Women and Gender-Based Violence.
Kelley Bryan (PBP Lawyers) and Karen Steward represented LEAF as an intervener before the Supreme Court in this case, where LEAF supported the constitutionality of the legal framework at issue.
LEAF is grateful to the members of the case committee that guided, informed, and supported this intervention: Frances Chapman (Lakehead University), Elaine Craig (Dalhousie University), and Karen Segal (Allevato Quail & Roy).
Executive Director & General Counsel, LEAF
416-595-7170 ext. 2002
PBP Lawyers, Counsel to LEAF