Cross-Examination on Private Records: Section 278.92

• Author: Daniel Brown/Jill Witkin
• Pages: 321-352



Cross-Examination

onPrivate

Records:

Section.

12

I. Background .............................................. 

II. Overview of Legislation .................................... 

A. Private Records Screening Regime ...................... 

B. Denition of “Record” ................................ 

III. Process ................................................. 

A. Timing ............................................ 

B. Service ............................................ 

C. Motion for Directions ................................ 

Appendix . Private Records Screening Regime .............. 

© [2020] Emond Montgomery Publications. All Rights Reserved.

 Prosecuting and Defending Sexual Oence Cases

I. Background

The cross-examination of a complainant in a sexual oence prosecution, as in any

case, requires the court to balance competing interests. In a sexual assault trial, the

accused, presumed innocent, is facing serious allegations that may be false or exagger-

ated and have potentially permanent consequences to his or her liberty. The Supreme

Court of Canada (SCC) has recognized that the right to cross-examine witnesses in

criminal cases is

a faithful friend in the pursuit of justice and an indispensable ally in the search for truth.

At times, there will be no other way to expose falsehood, to rectify error, to correct distor-

tion or to elicit vital information that would otherwise remain forever concealed.1

Cross-examination of any witness about sensitive and intimate issues will always be

unpleasant for the witness. This is an unfortunate, but not unfair, feature of sexual

oence trials.

However, the right to cross-examine is not unlimited.2 It cannot be abusive, irrel-

evant, or unduly repetitive or prolonged. In sexual assault prosecutions, this rule must

be carefully complied with because the consequences to the witness may be severe.

Victims of sexual crimes have experienced violations of sexual integrity, privacy, and

autonomy that can have enduring and substantial eects, which may be exacerbated

by the experience of reliving them in cross-examination. Complainants, even if they

are not the victim of a crime, may have experienced a breach of sexual trust at the

hands of the defendant or someone else, and may have historical or personal reasons

to doubt that their interests will be protected by the Canadian criminal justice system.

For years, the justice system has suered from reliance on rape myths, misogyny, and

stereotypes, particularly in sexual assault prosecutions. As a result, complainants of

sexual assault have reported feeling revictimized by a system meant to protect them

and hold perpetrators accountable, so it is not surprising that many victims of sexual

oences never report.

Given the historic mistreatment of sexual oence complainants in criminal trials,

the public has an interest in seeing sexual oence cross-examinations conducted in a

scrupulously fair way that intrudes on the privacy and dignity of complainants to the

extent necessary to preserve the accused’s right to a fair trial, but no further.

Over the past number of decades, Parliament has enacted laws aimed at balancing

those competing interests and enhancing procedural fairness in sexual assault pros-

ecutions. For example, the requirement that an accused must bring an application to

access private records in the hands of a third party (discussed in Chapter 11, Produc-

tion of Third-Party Records: Section 278.3), the limits on an accused adducing evi-

dence of the complainant’s other sexual history (discussed in Chapter 13, Evidence

1 R v Lyttle, 2004 SCC 5 at para 1 (emphasis in original).

2 R v RV, 2019 SCC 41 at paras 38-41.

© [2020] Emond Montgomery Publications. All Rights Reserved.

Chapter  Cross-Examination onPrivate Records: Section. 

of Other Sexual Activity: Section 276), and reforms aimed at accommodating chil-

dren and vulnerable witnesses while testifying (discussed in Chapter 5, Protections

for Victims and Witnesses). The introduction of the Canadian Victims Bill of Rights3

in 2015 further recognized and strengthened testimonial and participatory protec-

tions for complainants and victims of sexual oences who are involved in the criminal

process. Furthermore, the SCC has anchored the rights of complainants to privacy,

security, dignity, and equality in sections7, 15, and 28 of the Canadian Charter of

Rights and Freedoms.4 In R v Mills, the Court noted that Charter protection applies

to complainants as well as accused persons, and equality concerns must inform the

contextual circumstances in which the rights of full answer and defence and privacy

will come into play. It held that “the right to make full answer and defence does not

include the right to information that would only distort the truth-seeking goal of the

trial process.”5 Indeed, a criminal trial is a search for the truth.6

In 2016, the sexual assault prosecution of former CBC Radio host Jian Ghomeshi7

in Toronto sparked a widespread, predominately online debate about the treatment of

sexual assault victims in the criminal justice system.8 The case itself was prosecuted,

defended, and adjudicated well within the rules of professional conduct and proced-

ural and ethical fairness expected of counsel and the judiciary. However, it came at

a time when there were many public reports of sexual assault and harassment in the

workplace, on university campuses, and in government, causing widespread societal

concern about the prevalence of this type of behaviour and the treatment of sexual

assault complainants in the criminal justice system. R v Ghomeshi9 was a catalyst for

questions about the integrity and fairness of the criminal trial process as it relates to

sexual assault prosecutions.

3 SC 2015, c 13, s 2.

4 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11 [the

Charter]. See e.g. R v Osolin, [1993] 4 SCR 595 at 669, where the SCC held that

[t]he provisions of ss.15 and 28 of the Charter guaranteeing equality to men and women,

although not determinative should be taken into account in determining the reasonable

limitations that should be placed upon the cross-examination of a complainant.… A com-

plainant should not be unduly harassed and pilloried to the extent of becoming a victim of

an insensitive judicial system.

See also R v Shearing, 2002 SCC 58 at paras 121-22; R v O’Connor, [1995] 4 SCR 411 at para110.

5 R v Mills, [1999] 2 SCR 668 at para 90. See also R v Harrer, [1995] 3 SCR 562 at para 45; R v

Darrach, 2000 SCC 46 at para 24; R v Boone, 2016 ONCA 227 at para 44.

6 As the SCC held in R v Levogiannis, [1993] 4 SCR 475 at 483, in relation to the constitutionality

of s486(2.1) allowing a child witness to testify behind a screen: “The goal of the court process

is truth seeking and, to that end, the evidence of all those involved in judicial proceedings must

be given in a way that is most favourable to eliciting the truth.”

7 R v Ghomeshi, 2016 ONCJ 155.

8 Ghomeshi was alleged to have sexually assaulted three dierent women dating back over a

decade by acts of hitting, punching, and choking. At trial, he was acquitted of all charges.

9 Supra note 7.

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