Victim Privacy and the Open Court Principle

Chapter Three: Victim privacy, sexual assault, and the Charter (cont'd)

The privacy rights of victims (cont'd)

That, briefly, is how Madam Justice L'Heureux Dubé established a right of victim privacy for complainants. Perhaps to strengthen the textual connection, she included a discussion of s.15's guarantee of equality. Thus she concluded, not only that "a privacy analysis creates a presumption against ordering production of private records , but also that ample and meaningful consideration must be given to complainants' equality rights." [ccxxxvi] In this way she made the link between the myths and stereotypes discussed in Seaboyer and victim rights explicit. As embodied in evidentiary rules both at common law and under the Code , assumptions that were discriminatory played a "pernicious role" in the system. [ccxxxvii] Bluntly put, "uninhibited disclosure of complainants' private lives indulges the discriminatory suspicion that women and children's reports of sexual victimization are uniquely likely to be fabricated." [ccxxxviii] L'Heureux Dubé J.'s dissent in O'Connor admonished that the Court should be careful not to permit such practices to reappear under the guise of "extensive and unwarranted inquiries into the past histories and private lives of complainants of sexual assault." [ccxxxix] Applied to the facts of the case, it meant that the accused should not have ready access to third party records; that would create indirect access to the same evidence to which direct access had been prohibited by the rape-shield provision and other reforms which sought to erase the discriminatory assumptions of the past. In her view, it would be a mistake to "close one discriminatory door only to open another." [ccxl]

Returning again to Dagenais, L'Heureux Dubé J. stated that "[a]s important as the right to full answer and defence may be, it must co-exist with other constitutional rights, rather than trample them." [ccxli] Without mincing words, she declared that "[p]rivacy and equality must not be sacrificed willy-nilly on the altar of trial fairness". [ccxlii] Instead, the Charter required a balance "that places the Charter rights of complainants on an equal footing with those of accused persons". [ccxliii]

O'Connor was decided by a five to four majority at a time when Charter protection for the rights of the accused was strong. The majority opinion balanced the competing interests but concluded, ultimately, that victim privacy must defer to the accused's rights. Following the decision in O'Connor , Parliament enacted Bill C-46, a mini-code of procedure that regulates defence access to this evidence and which, in doing so, substantially endorsed the dissenting opinion in O'Connor . In such circumstances, it was inevitable that the accused would challenge Bill C-46's breach of his rights under the Charter . Less inevitable was the outcome in R. v. Mills . There, the Supreme Court of Canada effectively abandoned O'Connor to avoid invalidating parts of the mini code which were inconsistent with its majority opinion in that case.

R. v. Mills [ccxliv]

The Supreme Court's decision in R. v. Mills is significant for several reasons, many of which are not of immediate concern here. There, the Supreme Court concluded that the Charter protects the privacy and equality rights of sexual assault victims, and upheld Bill C-46. Prior to Mills , the complainants' rights had been promoted, mainly, in dissenting opinions by Madam Justice L'Heureux Dubé J. In addition to O'Connor , she explained in (L.L.) v. (B.(A.) why balancing the rights of the accused and the complainants under the Charter was a "better approach" than a case-by-case privilege for the private records of sexual assault complainants. [ccxlv] Citing the Dagenais principle that fair trial should not have pre-eminence over "other constitutionally protected rights", she re-iterated her commitment to a procedure that placed "the Charter rights of complainants on an equal footing with those of accused persons." [ccxlvi] Subsequently, a majority held in R. v. Carosella that a sexual assault crisis centre's destruction of records and non-disclosure to the accused resulted in a breach of his right of full answer and defence. [ccxlvii] Once again in dissent, L'Heureux Dubé J. strenuously resisted the suggestion that the crisis centre had any obligation to preserve evidence, which she regarded as private in nature, for the benefit of the accused's defence.

Though L.(L) v. B.(A.) and Carosella were decided by contentious five to four margins, it should not be forgotten that, in C.B.C. v. New Brunswick (Re: R. v. Carson) , the Supreme Court recognized that victim privacy could justify an exception to the open court principle. [ccxlviii] Another decision, in M (A.) v. Ryan , should also be noted. [ccxlix] Ryan concerned the disclosure of counselling records in a civil suit arising from a psychiatrist's sexual misconduct with a young woman. In concluding that a privilege could attach to the plaintiff's psychiatric records, McLachlin J. referred to "the law's increasing concern with the wrongs perpetrated by sexual abuse and the serious effect such abuse has on the health and productivity of the many members of our society it victimizes." [ccl] Significantly, she stated that Charter values, including s.8's interest in privacy and s.15's guarantee of equality, were relevant to the question of privilege. In doing so, she explained why sexual assault has distinctive implications for privacy and equality:

The intimate nature of sexual assault heightens the privacy concerns of the victim and may increase, if automatic disclosure is the rule, the difficulty of obtaining redress for the wrong. The victim of a sexual assault is thus placed in a disadvantaged position as compared with the victim of a different wrong. The result may be that the victim of sexual assault does not obtain the equal benefit of the law to which s.15 of the Charter entitles her. She is doubly victimized, initially by the sexual assault and later by the price she must pay to claim redress - redress which in some cases may be part of her program of therapy. [ccli]

As to Bill C-46, it is clear that Parliament's mini-code was designed to override the majority opinion in O'Connor and thereby enhance protection for victim privacy. Not only was the legislation inconsistent in many respects with the decision in O'Connor , its preamble explicitly endorsed the Charter rights of victims, their rights to security of the person, privacy, and the equal benefit of the law, and expressed concerns about the problems associated with the reporting and prosecution of sexual offences. All told, Bill C-46 left little doubt of the impact of L'Heureux Dubé J.'s dissenting opinions in Seaboyer and O'Connor . Its detailed provisions followed the lead of the O'Connor dissent in prescribing rules and procedures to limit defence access to private records in sexual assault proceedings.

How the Court rationalized its decision in Mills to uphold legislation, which effectively reversed its interpretation of the Charter in O'Connor, is one matter, and what the majority opinion said about the privacy and equality rights of complainants is another. By adopting the O'Connor dissent's privacy and equality analysis, the joint opinion authored by Justices McLachlin and Iacobucci converted it to binding precedent.

As noted above, the O'Connor dissent applied the Dagenais presumption against hierarchies between rights to establish victim privacy and then endow it with the same Charter status as the rights of the accused. Likewise, the joint opinion in Mills endorsed the principle of co-equal rights. At the outset, Justices McLachlin and Iacobucci cited Dagenais for its rejection of a "hierarchical approach" to the question of competing interests: "[o]n the one hand stands the accused's right to make full answer and defence"; on the other hand "stands the complainant's and the witness's right to privacy." [cclii] In such circumstances, they held that "[n]either right may be defined in such a way as to negate the other" and both sets of rights "are informed by the equality rights at play in this context." [ccliii] Signalling the Court's willingness to retreat, the joint opinion further stated that, "it is important to keep in mind that the decision in O'Connor is not necessarily the last word on the subject" [ccliv] To emphasize the status of complainants, the judges re-iterated a second time that under s.7, "the rights of full answer and defence, and privacy, must be defined in light of each other" and "both must be defined in light of the equality provisions of s.15." [cclv]

As they prepared to address the rights at stake, the judges admonished, once more, that "[n]o single principle is absolute and capable of trumping the other." [cclvi] As for full answer and defence, Mills explained that s.7 does not guarantee the most favourable procedures imaginable, because fundamental justice "embraces more than the rights of the accused." [cclvii] Specifically, McLachlin and Iacobucci JJ. indicated that the ability to make full answer and defence is subject to "other principles of fundamental justice which may embrace interests and perspectives beyond those of the accused." [cclviii] In their opinion, the accused's rights are not "automatically breached" when he is deprived of relevant information. [cclix]

Following the pattern of the O'Connor dissent, the joint opinion in Mills strongly endorsed the privacy and equality rights of complainants in sexual assault proceedings. Absent any textual guarantee of privacy, the judges found that an order for the production of records under the Code fell within the ambit of s.8's protection against unreasonable search and seizure. After emphasizing the importance of informational privacy and the confidentiality of the therapeutic relationship, McLachlin and Iacobucci JJ. linked those concerns to s. 7's guarantee of security of the person, in these terms:

Counselling helps an individual to recover from his or her trauma. Even the possibility that this confidentiality may be breached affects the therapeutic relationship. Furthermore, it can reduce the complainant's willingness to report crime or deter him or her from counselling altogether. In our view, such concerns indicate that the protection of the therapeutic relationship protects the mental integrity of complainants and witnesses. … Therefore, in cases where a therapeutic relationship is threatened by the disclosure of private records, security of the person and not just privacy is implicated. [cclx]

The relationship between ss.8 and 7 that emerged in Mills is this. Section 8 protects a person's privacy and, in doing so, it addresses a particular application of the principles of fundamental justice. Under that reasoning, a search or seizure can only be consistent with the principles of fundamental justice when it is reasonable, and it will only be reasonable when it "accommodates both the accused's right to make full answer and defence and the complainant's privacy right." [cclxi]

As they had in the O'Connor dissent, equality rights provided an added dimension to the balancing of interests in Mills . There, the joint opinion made it clear that "an appreciation of the myths and stereotypes in the context of sexual violence" is essential in defining the scope of full answer and defence. [cclxii]

As has frequently been noted, speculative myths, stereotypes, and generalized assumptions about sexual assault victims and classes of records have too often in the past hindered the search for truth and imposed harsh and irrelevant burdens on complainants in prosecutions of sexual offences… The myths that a woman's testimony is unreliable unless she made a complaint shortly after the event (recent complaint), or if she has had previous sexual relations, are but two of the more notorious examples of the speculation that in the past has passed for truth in this difficult area of human behaviour and the law. The notion that consultation with a psychiatrist is, by itself, an indication of untrustworthiness is a more recent, but equally invidious, example of such a myth. The purpose [of this mini code] is to prevent these and other myths from forming the entire basis of an otherwise unsubstantiated order for production of private records. [cclxiii]

The Court also stated that the accused would not be permitted to "'whack the complainant' through the use of sexual stereotypes regarding the victims of sexual assault." [cclxiv] To that end, the task of balancing privacy and full answer and defence could not be undertaken "in a manner that fully respects the privacy interests of complainants," without an "appreciation of the equality dimensions of records production." [cclxv] In summary of the Court's reasoning, the non-disclosure of third party records with a high privacy interest that might contain relevant evidence will not compromise trial fairness where such non-disclosure would not prejudice the accused's right to full answer and defence. [cclxvi]

Mills upheld legislation that contradicted one of the Court's majority opinions interpreting the Charter . In doing so, Mills gave constitutional sanction to Criminal Code provisions that unquestionably promoted the rights of complainants in sexual assault proceedings. As a matter of principle, the most significant aspect of the decision is the Court's adoption of victim privacy as a s.7 entitlement equal to the accused's right of full answer and defence. Subsequent decisions, including R. v. Darrach , [cclxvii] R. v. Ewanchuk , [cclxviii] and R. v. Regan [cclxix] should be noted too, as each confirms the Court's vigilance in rectifying the unfairnesses that are perceived to this day as persisting in the law of sexual offences. In R. v. Darrach , for instance, the Court unanimously upheld s.276 of the Criminal Code , which essentially codified the Seaboyer guidelines restricting the accused's scope of cross-examination of complainants in sexual assault cases. Though neither addressed victim privacy, R. v. Ewanchuk and R. v. Regan confirm the Court's ongoing concern about the "disadvantage that women victims have suffered as a result of stereotypes in society and the justice system." [cclxx]


Chapter Two's discussion of the open court principle provides one example of the way the criminal justice system has accommodated the privacy interests of crime victims in recent years. Yet as developments in the law relating to sexual assault demonstrate, it may not be the most prominent example. Though this study is focused on the relationship between open court and victim privacy, it would be a mistake to neglect the emergence of victim privacy in the context of the accused's right to a full answer and defence. One reason is that although rates of reporting and conviction for several offences are low, the precise causes of that problem have not been isolated. For a variety of reasons, including but not limited to anonymity, victims of these crimes have not been confident that their complaints would be fairly treated. From that perspective, tracing the evolution of a right of victim privacy beyond the issues at stake under the open court principle forms an important part of this study.

This Chapter has shown that, especially in sexual assault proceedings, privacy is an issue for complainants at various stages of the process. It is not limited to the exposure of identity or of the details of a sexual encounter that are threatened by the open court principle. Complainant privacy has been asserted in answer to rules of evidence which permitted counsel for the defence to probe a victim's past sexual history or gain access to third party therapeutic and counselling records. These strategies are an aspect of full answer and defence which are aimed at uncovering information that may be unrelated to the charge but relevant in some way to the complainant's credibility. The Supreme Court of Canada has now concluded that these rules and practices are a breach of privacy whose prohibition does not impermissibly violate the accused's right to make full answer and defence.

Purely as an exercise in the evolution of law, the transformation of the concept of privacy that was traced in this Chapter is noteworthy. From its foundation in s.8, the investigative process, and the rights of the accused, privacy became an entitlement belonging to the victims of sexual offences. Although the Charter does not explicitly protect privacy, this development occurred when unfairness in the rules of evidence was linked to the privacy of complainants, and to the Charter 's guarantee of equality. From the dissents in Seaboyer and O'Connor to the majority opinion in Mills , it did not take long for a right of privacy to emerge.

In terms of the focus of this study, the relationship between the privacy rights discussed in Chapters Two and Three is this. Under reporting has been a chronic problem in the law of sexual offences for many years, and it is unquestionably linked to perceptions that the system will re-victimize those who make a complaint. Privacy is consistently mentioned as a concern, and as one of the reasons, complainants give for not reporting an offence or pressing a charge. It is not only the defendant's right to cross-examine the complainant, but the fact that the criminal process ordinarily takes place in open court; the combination of the two compounded the invasion of privacy in the past. At present, though, the jurisprudence does not consider how these elements of privacy interact; in particular, there is no indication whether anonymity and open proceedings would raise the same concerns about privacy in a system that removed the discriminatory beliefs and stigma which attached to sexual offences in the past. More will be said about this in Chapter Five. For now, the point is that if the precise cause of low rates of reporting, prosecution and conviction cannot be pinpointed, at the least it is known that privacy is one of the factors that discourages complainants from coming forward.

As well, the emergence of a privacy right in Chapter Three's trilogy of cases provides a jurisprudential context and analogy for privacy in the open court context. At the time, Canadian Newspapers v. Canada (A.G.) was decided, the Supreme Court did not base its decision on victim privacy. By granting victim privacy Charter status, the O'Connor dissent and Mills decision may affect the balancing of interests the next time privacy and open court are in conflict. At the same time, some words of qualification should be added. Privacy emerged as an entitlement in Chapter Three's trilogy, in response to a history of discriminatory practices. Sexual offences were different, and were subject to rules of evidence that were based on myths and stereotypes which discriminated against complainants and violated their privacy. As a result, Seaboyer , O'Connor and Mills are part of a judicial and legislative process which is aimed

at rectifying this blot on the criminal justice system. To summarize, the privacy of several assault victims was uniquely violated and now must be restored.

The above analysis is not as compelling in the open court setting. To the extent their identity and privacy are protected by Criminal Code provisions, sexual assault complainants are granted preferential or special treatment by the system. Whatever the consequences for their privacy, the victims of other crimes are not entitled to a publication ban protecting their identity, and persuading a judge to close the courtroom in the interest of privacy would be even more difficult. That raises the question whether sexual offences are by their nature different, and therefore subject to distinctive rules for the benefit of victim privacy. Another way of putting the question is to ask whether victim privacy in this area is a short-term remedy for the myths and stereotypes of the past, or whether these offences warrant permanent exceptions to the open court principle. Before pursuing that question in Chapter Five, the next Chapter explores comparative, transnational and international perspectives on these issues.