CCLISAR EXPERT WORKSHOPS
LEGISLATION REGULATING NON-DISCLOSURE AGREEMENTS
In the past few years, sexual assault survivors and their advocates in the U.S., Canada, Ireland and the U.K., have increasingly voiced concern about the use of non-disclosure agreements (“NDAs”) in financial settlements. They have shone a light on how NDAs silence survivors and protect perpetrators and institutions from accountability. As a result, there have been recent calls on government to regulate or even prohibit NDA terms in settlement agreements, with legislation having been passed in various states in the United States and in Ireland.
On November 4, 2021, the province of Prince Edward Island (PEI) became the first province in Canada to pass legislation, the Non-Disclosure Agreements Act (Bill No.118), to regulate the use of non-disclosure terms in settlement agreements in cases involving harassment and discrimination, including sexual harassment and sexual assault. When the legislation comes into force, NDA terms in settlements in PEI will be prohibited, unless the NDA is the express choice of the complainant and the case meets specific pubic interest criteria.
CCLISAR’s NDA Project seeks to engage in education and capacity building in response to this emerging issue of the regulation of NDAs in the context of sexual violence cases.
CCLISAR held an expert workshop on the subject on November 26, 2021. This project is ongoing as CCLISAR monitors the implementation of the PEI NDA legislation and others consider introducing similar legislation.
THE DEFENCE OF EXTREME-INTOXICATION
AND THE CONSTITUTIONALITY OF SECTION 33.1 OF THE CRIMINAL CODE
On May 13, 2022, the Supreme Court of Canada struck down section 33.1 of the Criminal Code as unconstitutional (see R v. Sullivan and Chan; R v. Brown). A summary of these decisions can be found here and here.
Section 33.1 of the Code was enacted in 1995 in response to a 1994 decision of the Supreme Court of Canada, R v. Daviault,  3 SCR 63. In Daviault, the Court upheld the acquittal of an intoxicated accused charged with sexually assaulting a disabled complainant. The complainant was partially paralyzed and confined to a wheelchair. The basis for the acquittal was that the accused did not have the general intent to commit the offence due to his state of extreme intoxication from alcohol.
In response, Parliament amended the Criminal Code to include s.33.1, which precludes self-induced intoxication as a defence to assault and sexual assault offences.
Although the constitutionality of section 33.1 had been challenged in twelve previous cases in the 25-years since its enactment, R v. Sullivan; R v. Chan was the first appellate decision. An appeal to the SCC was heard in June 2021, and the decision is under reserve.
In November 2020, CCLISAR held a workshop with criminal law academics and practitioners from various provinces and territories across Canada to discuss the constitutionality of s.33.1 and the impacts on sexual assault complainants if the defence of extreme self-induced intoxication is made available to accused.
CCLISAR’s consultation brief is available here.
BILL C-51 AMENDMENTS TO THE CRIMINAL CODE
Among the most significant developments in criminal sexual assault law in recent years have been the amendments to the Criminal Code of Canada enacted under Bill C-51.
Effective December 18, 2018, the Code was amended to grant sexual assault complainants the right to standing and representation by their own counsel in sexual history (s.276) applications; the Act also now requires accused persons who are in possession of records over which the complainant has a reasonable expectation of privacy to bring an application to the Court for permission to use those records at trial (under s.278.1 – 278.96 of the Code). The complainant is entitled to notice of the application to admit records in the possession of the accused and thus to a copy of the records themselves (which should generally be included in the application record). As with the third-party records regime, the complainant is entitled to her own counsel and to make submissions at the hearing of the application.
Prior to Bill C-51, an accused person who had copies, for example, of the complainant’s diary or medical records, could put these documents to the complainant in the middle of cross-examination.
Almost immediately after these provisions were enacted their constitutionality was challenged, with conflicting decisions being rendered by trial level courts across the country. A significant issue in many of these cases was whether text, email and other digital communications between the complainant and the accused are caught by the regime.
In May of 2020, CCLISAR held three half-day expert workshops on these Bill C-51 amendments to ss.276 and 278 of the Code. The purpose of the workshops was to bring together private practitioners who represent complainants, Crown attorneys, and academics, to share knowledge and deepen participants’ critical analysis of the challenges to the amendments.
The constitutionality of these amendments was considered by the Supreme Court of Canada on October 5 and 6, 2021, in R v. J.J.; and A.S. v. The Queen. Judgement is currently pending.
An analysis of the Supreme Court of Canada decision, when the judgment is released, will be posted on CCLISAR’s website.