This case commentary discusses the new process for admitting private records in sexual assault proceedings under the Criminal Code as examined in R. v. A.M., a recent decision out of the Provincial Court of Saskatchewan, which declared parts of the new Code provisionsinvalid. These new provisions force the courts to balance the protection of a complainant’s private records in sexual assault proceedings with the rights of an accused in a criminal proceeding under the Canadian Charter of Rights and Freedoms. Presently, these provisions appear to tip the balance too far in favour of the complainant.
I. BILL C-51
On December 13, 2018, Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act,introduced new provisions governing the admissibility of evidence in sexual assault cases.The legislation provides a process for the admission of a complainant’s private records that are already in possession of the accused, by adding ss. 278.92–278.97 to the Criminal Code. The new procedure now prevents an accused charged with an offence listed under s. 278.92(1) from admitting a complainant’s private records in the accused’s possession into evidence unless a judge determines that the evidence meets specific admissibility requirements at an admissibility hearing.
The process for the admittance of private records has two stages, requiring the accused to first make a written application under s. 278.93 of the Code for a hearing under s. 278.94. If upon review of the application the judge is satisfied that it is in the interest of justice to admit the evidence and that the evidence could be admissible under s. 276(2), they will call an admissibility hearing pursuant to s. 278.94. The complainant is then notified of the hearing, provided with a copy of the defence’s application, and is granted standing to submit arguments regarding the admittance of their records.
After arguments are heard at the admissibility hearing, the judge must decide if the evidence is admissible under ss. 276(2) or 278.92(2). Despite the differentiation between ss. 276(2) and278.92(2), all applications are considered in the context of s. 278.92(2). However, evidence that relates to sexual history must go through additional considerations under s. 276(2) in order to ensure the evidence is not being adduced to make the complainant appear more likely to have consented to the sexual activity in question or less worthy of belief.
A novel and perhaps controversial addition to the Criminal Code is the complainant’s standing to make submissions at the admissibility hearing and review the defence’s application before the hearing. Parliament has admitted that this provision may deprive the defence of the tactical advantage of surprise due to the required disclosure of the application. In a legislative summary of Bill C-51, the following was stated about this provision: “[i]t remains to be seen whether this provision will be found to be constitutional in a situation where complainants’ private records in the hands of the accused are sought to be tendered for a legitimate purpose, such as impeaching a complainant’s credibility through a prior inconsistent statement.” The implications of the complainant’s standing were the main issue in R. v. A.M.
II. R. v. A.M.
In R. v. A.M., the accused was charged with committing sexual assault contrary to ss. 271 and 153(1)(a) of the Code. The accused brought an application under s. 52 of the Canadian Charter of Rights and Freedomsand argued that that ss. 278.92(1), 278.92(2)(b), and 278.94(2) of the Code violated the accused’s s. 7 Charter right to make a full answer and defence, and the accused’s s. 11(d) right to a fair trial.
Judge Henning of the Provincial Court of Saskatchewan found that the combined effect of ss. 278.92(1), 278.92(2)(b), and 278.94(2) greatly impinges on the truth-seeking purpose of cross-examination as well as the accused’s ss. 7 and 11(d) Charter rights. In his decision, Henning J. stated that “[m]andatory disclosure to the prime witness in a prosecution reaches to the center and integrity of the trial process in such cases.”
Henning J. found the former provisions did not compromise the integrity of the trial process and still achieved the goal of providing powerful protection to the complainant. He held that “courts have the means of protecting a complainant and maintaining the objectives in contemporary sexual assault provisions in the Criminal Code without adding a further provision that could fundamentally impair the right to full answer and defence of an accused person in a sexual assault trial.”
As a provincial court judge, Henning J. is unable to make a formal declaration that a law is of no force and effect under s. 52(1) of the Charter. He is, however, entitled to declare laws invalid in the context of a proceeding before him. In this case, Henning J. declared the provisions invalid after finding that they could not be saved under s. 1 of the Charter.
The competing interests of the complainant and the accused require the appropriate balance to be struck between encouraging the reporting of sexual assaults and the protection of victims and upholding the rights of an accused in a criminal proceeding. In enacting these new provisions, Parliament intended to promote “society’s interest in encouraging the obtaining of treatment by complainants of sexual offences” but may have done so at the expense of the rights of the accused. The Supreme Court of Canada in R. v. Seaboyer; R v. Gayme held that Canadian courts are cautious in restricting evidence called by the accused so as to uphold the fundamental tenet that innocent persons must not be convicted. Not only do the new provisions restrict the evidence that can be called, the provision granting complainants standing in an admissibility hearing significantly interferes with the defence’s ability to effectively cross-examine complainants for legitimate purposes, as decided in R. v. A.M.
Granting the complainant standing allows them to advocate on their own behalf in protecting records that may reveal truly intimate details about their life that they do not wish to disclose. However, our vision must not be clouded by efforts to encourage the reporting and prosecution of sexual assault to the point that the Charter rights of an accused are unjustifiably infringed, as it is ultimately the accused whose liberty interests are at stake in a criminal proceeding.
In declaring parts of the new Criminal Code provisions invalid, Henning J. indicated that Parliament missed the mark when it attempted to balance the rights of the complainant against the rights of the accused. Further case law is required to achieve clarity on this issue, so it is now the unenviable task of the courts to decide the future of a complainant’s standing in sexual assault proceedings.
* JD Candidate (Saskatchewan), BA Sociology (Saskatchewan).
 1st Sess, 42nd Parl, 2018 (assented to 13 December 2018), RSC 1985, c C-46 [Bill C-51].
 Canada, Department of Justice, Cleaning up the Criminal Code, Clarifying and Strengthening Sexual Assault Law, and Respecting the Charter (7 June 2017), online: Government of Canada <www.canada.ca/en/department-justice/news/2017/06/cleaning_up_the_criminalcodeclarifyingandstrengtheningsexualassa.html> [perma.cc/85J7-SJRZ].
 RSC 1985, c C-46.
 Ibid, ss 278.92(1)–(2). The admissibility requirements reflect the competing interests at stake in such a proceeding and also provide consideration of society’s interest in such a proceeding.
 Canada, Library of Parliament, Legislative Summary of Bill C-51: An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, by Lyne Casavant et al, Publication No 42-1-C51-E (Ottawa: Library of Parliament, 1 October 2018), s 22.214.171.124, online: <lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/LegislativeSummaries/421C51E#a3> [perma.cc/K9WS-FK6W] [Bill C-51 Legislative Summary].
 Criminal Code, supra note 3, s 278.93(4).
 Ibid, s 278.94.
 Ibid, s 278.94(4).
 Ibid, s 278.92(2).
 Ibid, s 276(1). These provisions are commonly referred to as the “rape shield” provisions. The provisions exist to protect complainants from the perpetuation of the “twin myths” in sexual assault proceedings, which imply that a person is less worthy of belief or more likely to have consented to the activity in question based on previous sexual history not related to the charge being prosecuted. This section was also amended by Bill C-51 to include communication of a sexual nature or for a sexual purpose (Bill C-51 Legislative Summary, supra note 5, s 2.2.3).
 Criminal Code, supra note 3, s 278.94(2). The complainant also has the right to counsel at the hearing (ibid s 278.94(3)). At this time, it is not mandated that the complainant’s counsel be paid for by the state. It is within the discretion of the provinces to determine whether they will provide legal counsel for a complainant.
 Bill C-51 Legislative Summary, supra note 5, s 2.2.5.
 2019 SKPC 46.
 Ibid at para 1.
 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
 R v A.M., supra note 14 at para 2.
 Ibid at para 40.
 Ibid at para 38.
 Ibid at para 39.
 Ibid at para 43.
 Ibid at para 4 citing R v Lloyd, 2016 SCC 13 at para 15,  1 SCR 130.
 R v A.M., supra note 14 at para 42.
 Bill C-51 Legislative Summary, supra note 5, s 126.96.36.199.
  2 SCR 577, 1991 CanLII 76 (SCC).
 Ibid at 611.
 R v. A.M., supra note 14 at para 38.