Case information

Charter of Rights - Constitutional law - Criminal law - Evidence - Admissibility of third party records in sexual assault trials - Interlocutory constitutional ruling - Trial judge concluding that ss. 278.92, 278.94(2) and 278.94(3) of Criminal Code violate ss. 7 and 11(d) of Charter and cannot be saved under s. 1 - Complainant bringing application for leave to appeal constitutional ruling - Whether striking down sections means complainant no longer has rights of standing and participation granted by Parliament in deciding whether evidence of other sexual activity is admissible at trial - Whether Supreme Court of Canada has jurisdiction to entertain application for leave to appeal, given that complainant has no other avenue of appeal from final ruling - Whether ruling raises issues of public importance, including Charter rights, by striking down national legislation of high legal and social importance in terms of ongoing efforts to improve fairness for sexual assault complainants - Whether case presents opportunity to consider legislative scheme comprehensively and provide comprehensive guidance - Whether ruling is demonstrably inconsistent with principled trends in this jurisprudence - Whether ruling is significantly disruptive to orderly flow of criminal litigation - Whether ruling creates confusion and uncertainty, in Ontario and across Canada, with contradictory decisions and approaches by lower courts - Whether issue of complainant participation in decisions about their own other sexual activity is highly vulnerable to insulation from appellate review - Canadian Charter of Rights and Freedoms, ss. 1, 7 and 11(d) - Criminal Code, R.S.C. 1985, c. C-46, ss. 276, 278.1, 278.92, 27.93 and 278.94.

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In 2018, Parliament introduced a new set of amendments to the Criminal Code regime dealing with the introduction of evidence concerning a complainant’s prior sexual activity in the context of sexual assault trials.

The respondent, Mr. Shane Reddick, was charged with sexual assault. As part of his defence, Mr. Reddick intended to cross-examine the complainant, A.S., on evidence of her prior sexual activity. Prior to his trial, Mr. Reddick brought an application challenging the constitutionality of some of the 2018 legislative amendments and seeking to declare certain provisions of the Criminal Code unconstitutional, arguing that their overall effect constitutes a breach of fundamental justice and a breach of his right to a fair trial protected under the Canadian Charter of Rights and Freedoms.

An application judge of the Ontario Superior Court of Justice granted Mr. Reddick’s application in part, and declared ss. 278.92, 278.94(2) and 278.94(3) of the Criminal Code to be unconstitutional, concluding that these legislative provisions violated ss. 7 and 11(d) of the Charter and that the infringements were not saved by s. 1 of the Charter.

The complainant, A.S., now appeals from this ruling to the Supreme Court of Canada, arguing that the decision curtailed the right of sexual assault complainants to participate in proceedings to determine how details of their private sexual lives would be used in a public courtroom. By way of motion, the Supreme Court of Canada granted A.S. the right to be added as a party to the proceedings; the Court then granted A.S.’s application for leave to appeal. The Court specified that the appeal hearing in A.S. would be heard together with the appeal and cross-appeal hearing in Her Majesty the Queen v. J.J. (39133).