Sexual assault trials are more complicated than ever before. The new evidence screening regime used to enter evidence from the accused is complex and difficult to navigate even for those with legal expertise.
Under this new framework, the accused must apply to the court for a pretrial ruling on whether they can lead evidence at trial of the complainant’s prior sexual activity or use private records – which may include such things as text messages – as part of the defence.
This process was introduced by Parliament to encourage victims of sexual violence to come forward. In the past, it was common for sexual assault trials to humiliate and further traumatize complainants. Their sexual history could be discussed at length. This practice is now rightfully prohibited, but the new framework still has its share of downsides.
This article provides an overview of the evidence screening regime and identifies the types of evidence that fall under the regime.
What is the Evidence Screening Regime?
The evidence screening regime is a two-stage pretrial process where the accused seeks permission from the court to use two categories of evidence: (1) prior sexual activity evidence; and/or (2) private records (that relate to the complainant) in the possession or control of the accused. Given the modern norm of “sexting” and sharing of sexual images and videos, these two categories can overlap.
Stage One Inquiry – Could the Evidence be Admissible at Trial?
To start the evidence screening process, the accused must provide a written application to both the court and the prosecutor which explains the nature of the evidence they would like to use at trial. At Stage One, the judge will determine whether the proposed evidence is “capable of being admissible”. This stage commonly involves oral submissions from your lawyer and the prosecutor.
The threshold at Stage One is quite low. Only applications that clearly do not meet the statutory criteria will be dismissed and fail to progress to a Stage Two hearing. The threshold criteria differs as between prior sexual activity evidence and private records.
Prior Sexual Activity Evidence
For prior sexual activity evidence to be capable of being admissible, the accused must show that the proposed evidence:
- is not being adduced for the purpose of “twin myth reasoning”, which refers to the use of the complainant’s sexual history to argue they are more likely to have consented or are less worthy of belief;
- is relevant to a live issue at trial;
- is of specific instances of sexual activity; and
- has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
Whether sexual activity evidence will be relevant to an issue at trial depends on the facts of the case. Permissible examples are somewhat limited but may include where the complainant has made a prior inconsistent statement about the existence of a sexual relationship with the accused (e.g., in the complainant’s statement to police); where the proposed evidence demonstrates that the complainant has a motive to lie; or where the accused seeks to advance a defence of honest but mistaken belief in consent.
To pass Stage One, your lawyer will argue how the sexual activity evidence is relevant to a particular issue and/or the complainant’s credibility.
Private Records in the Possession of the Accused
For private records to be capable of being admissible, the court must first determine whether the proposed evidence constitutes a “record” as defined by the Criminal Code. To constitute a record, the evidence must contain information of an intimate or highly personal nature such that the contents are integral to the complainant’s overall physical, psychological, or emotional wellbeing.
Examples of records include medical, psychiatric, and child welfare records. Perhaps the most common example are electronic communications – i.e., text messages, Facebook messages, Instagram direct messages, Snapchat messages, and etcetera. Most people expect their personal electronic communications to be kept private, so your lawyer must provide good reason to trump the complainant’s privacy interest.
If the judge finds that the proposed evidence does not constitute a record, the application will terminate. There is no need for a Stage Two hearing and the evidence may be used at trial.
If the evidence is deemed a record, it must be shown that it is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
If the accused is successful at Stage One, the court will grant the application and order a Stage Two hearing.
Stage Two Hearing – Will the Evidence Actually be Admitted at Trial?
At the Stage Two hearing, the judge will decide whether the proposed evidence – be it prior sexual activity evidence or private records – is actually admissible at trial. The key difference from the Stage One inquiry is the parties’ participatory rights.
If a Stage Two hearing is ordered, the prosecutor will inform the complainant and disclose to them the accused’s application materials. Unlike the Stage One inquiry, the complainant has a right to appear and make submissions at the Stage Two hearing with the assistance of counsel if they so choose. They do not, however, have the ability to lead evidence or cross-examine the accused on the contents of the application. The right to do so is exclusively that of the prosecutor.
In turn, your lawyer will argue why the evidence should be admitted and respond to any questions and concerns raised by the court, the prosecutor, and/or the complainant or their lawyer.
If the judge is satisfied that the proposed evidence, or any part of it, is advanced for a permissible purpose and meets all requisite statutory criteria, they will allow the defence to use the evidence at trial and explain the manner in which it may be used.
What do I do if I am Charged with Sexual Assault?
Sexual assault is a serious offence with serious consequences. Representing oneself on a sexual assault matter is not impossible, but it is unadvisable. The criminal defence team at Lakefield LLP recognizes that charges of this nature are difficult for all parties involved, and we are prepared to help you navigate this sensitive experience with care and expertise.
If you are seeking legal representation and would like to discuss your file, our lawyers would be more than happy to talk to you and work with you.
If you cannot afford a private lawyer, you can apply to Legal Aid to secure competent representation. If you do not qualify for Legal Aid, you may through Court Services be permitted to make an application for court-appointed counsel to assist you in addressing your charges.
The information in this article does not constitute legal advice. The law may have changed since this article was first published. You should consult with your lawyer to confirm the current state of the law and obtain advice specific to your situation.