People charged with sexual assault should not be allowed to apply for their victim’s mental health or other personal records under Section 278.1 of the Criminal Code of Canada.

Section 278.1 of the Criminal Code of Canada currently allows a person who has been charged with sexual assault to apply for access to their victim’s private and confidential records, which means any form of record that contains personal information for which there is a reasonable expectation of privacy.

The rationale for this provision is reported to be in support of the right of the accused to Full Answer and Defence (FAD).

For a victim, it is very frightening to be threatened by their alleged abuser with this violation of privacy. Section 278.1 of the Criminal Code attempts to provide some protection for victims who have reported to the police in good faith. Once the case proceeds to trial however, the threat of this violation of privacy is intimidating, and may be enough to cause victims to discontinue the court process out of fear for the violation of their privacy and personal safety.

It is our view that the accused should be tried based on the evidence of the case, as gathered by the police in support of the charges that were laid. A victim’s personal records, unless part of the original evidence, are not relevant to the crime that was committed against their own bodies.

A victim’s personal records may contain information describing their personal journey. Victims of sexual assault need safe peer support networks, authentic connections with safe and trusted people, and safe spaces to disclose their experiences. This helps them work through the harm caused, make sense of what happened and process the confusion associated with having been sexually assaulted.

R v JJ excerpts: The Supreme Court of Canada (SCC) has affirmed that “the right to a fair trial extends not only to the accused, but also to the complainant and the community at large, as well as the criminal justice system as a whole.” The “SCC recognizes that the impact of a trial extends beyond merely the rights of the accused.” “While the accused’s interests take primacy, they cannot do so at the cost of undermining the system itself.”

In essence, R v JJ involves the SCC reiterating that, although the accused enjoys primacy at trial, the rights of other parties must be taken into account as well. It does not place a complete barrier to the introduction of such evidence (as it should, in our determination),  but instead requires that it goes through an enhanced review process so as to ensure that such information is brought up for its true relevance, and not merely because the possibility of its exposure is intended to intimidate the complainant against coming forward in the first place (however, this is how it is being used in real life court situations). The SCC is conscious of the fact that historically, a large portion of sexual assault trials have been based not only on plain objective fact, but rather on social mores and a culture of silence and oppressive intimidation that is designed to prevent complainants from making complaints in the first place.[i]

This invasion of the victim’s privacy through the release of confidential records does not support the proper administration of justice and interferes with their ability to obtain necessary support and report their sexual assault in a safe, fair and equitable manner.

[i] R v JJ : The SCC Expands the Privacy Rights of Sexual Assault Complainants - TheCourt.ca