Episode 6 (Part 1): AS and JJ
A.S. vs Her Majesty the Queen and Her Majesty the Queen v. J.J.
This is a two-part episode for two appeals that were jointly heard by the Court, A.S. vs Her Majesty the Queen and Her Majesty the Queen v. J.J.
In A.S. vs Her Majesty the Queen, Shane Reddick was charged with sexual assault as a result of events that allegedly took place at a party in Toronto. At the party, the Complainant, A.S, was captured on two video recordings engaging in sexual activities. At trial, Mr. Reddick intended to cross-examine A.S on the contents of the two videos, but to do so he had to comply with s. 276(2) and ss. 278.92 through 278.94. Mr. Reddick brought an application to find that those sections violated his ss. 7 and 11(d) Charter rights.
As it relates to the procedural sections that govern the disclosure of records to the Complainant, Justice Akhtar found that although the purpose of these sections was legitimate the implementation of the amendments trampled upon the principles of the Charter. Justice Akhtar opined that the procedural provision of s. 278.92 and disclosure of the accused’s application and affidavit to the Complainant was overbroad and infringed the accused’s s. 7 and 11(d) Charter rights.
As it relates to the participation of the Complainant under s. 276, Justice Akhtar found that the effect of the amendments to s. 276 is to elevate the complainant from the role of a witness in the Crown's case to that of a party who is entitled to advance disclosure of records pertaining to an accused's line of questioning as well as their defence. He noted that this is not an incremental change but one that ruptures the foundation of the criminal trial process and removes an accused's constitutional protections by providing their defence to a witness prior to trial.
In Her Majesty the Queen v. J.J., The respondent, J.J., was charged with sexual assault. His lawyer is in possession of communications between J.J. and the complainant. His lawyer wants to use those communications on cross-examination of the complainant; however, he says those communications meet the definition of a record in s. 278.1 of the Criminal Code and as a result he must apply to have the communications admitted as relevant to an issue at trial pursuant to a Criminal Code amendment. The application must be made on seven days’ notice to the Crown, unless the trial judge permits a shorter period. =
Duncan J. held that the seven-day notice requirement in s. 278.93(4) of the Criminal Code violated s. 7 of the Charter and could not be saved under s. 1. Duncan J. “read down” the provision to: (1) remove the seven day notice requirement in s. 278.93(4) only as it applies to s. 278.92 applications; and (2) provide that s. 278.92 applications should be made “at the conclusion of the complainant’s examination in chief, or as otherwise required by the judge, provincial court judge or justice in the interests of justice”. J.J. was acquitted of sexual assault by a jury. The Crown appeals the constitutional ruling but not the jury’s verdict.