ALG's Frank Addario and Matthew Gourlay of Henein Hutchison LLP contributed an op-ed on the Supreme Court of Canada's decision in R. v. J.J. in the July 2, 2022 edition of the Globe and Mail. In J.J., the Court ruled 6-3 that that "pre-screening" regime for the private records of sexual assault complainants is constitutional. The regime requires defendants to seek a judge's permission to introduce records before using them to cross-examine complainants and other witnesses.
Frank and Matthew argue that the regime undermines the effectiveness of cross-examination as a truth-seeking mechanism and one of the few ways for a criminal defendant to resist the power of the state. Cross-examining a witness about prior inconsistent statements is the core of trial advocacy. As Frank and Matthew note, there is little evidence that defence counsel routinely "attack the character" of sexual assault complainants. In cross-examining complainants on their prior statements in texts, emails, or social media messages, defence lawyers are simply doing their job. However, the Supreme Court's decision perpetuates the unfortunate myth that "defence counsel are more disruptive than helpful when it comes to achieving justice."