Private Records, Sexual Activity Evidence, and the Charter of Rights and Freedoms
Bibliographic record
Abstract
In December 2018, Parliament amended the Criminal Code to add a new regime dictating the process and admissibility criteria for private records in the possession of an accused in a sexual assault proceedings. The legislation also includes new procedural requirements for applications to introduce evidence of a complainant’s other sexual activity under section 276 of the Criminal Code. Several courts have concluded that various parts of these new provisions – which some have nicknamed the Ghomeshi Rules – are unconstitutional. The problem with these decisions is that, in each one, the court has failed to properly balance the competing interests at stake. Stated most plainly, each of them overstates the impact of these provisions on the accused’s right to a fair trial and understates the competing interests to be balanced in an analysis of the constitutionality of these new laws. This article confronts two problematic aspects of the assessment of the impact on the accused’s rights in these cases: hyperbolic assertions about the impact of notice to the complainant on the right to cross-examination and assumptions about the impact of disclosure to the complainant on the truth-seeking function of the trial. This analysis is done, in part, through a case study of the trial transcript in R. v. Ghomeshi because several of these cases appear to have been litigated or adjudicated in the shadow of Ghomeshi. The article concludes with an assessment of the competing interests that must be balanced with the accused’s right to a fair trial: the complainant’s privacy, equality and dignity interests, and the societal interest in encouraging survivors to report sexual offences.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.013 | 0.029 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.000 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.008 | 0.045 |
| Scholarly communication | 0.015 | 0.013 |
| Open science | 0.002 | 0.008 |
| Research integrity | 0.008 | 0.011 |
| Insufficient payload (model declined to judge) | 0.008 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".