Sexual Offences

Personal Journals as Evidence in Sexual Assault Cases

Written on behalf of Barrison Law
A stack of two journals with coloured pencils on top, representing a sexual assault complainant's journals

A recent Ontario Court of Appeal case, R. v. C.B., dealt with whether or not a sexual assault complainant’s personal journals should be inspected by the Court.

Accused wanted teenage complainant’s journals put into evidence

The appellant was convicted of committing sexual offences against the complainant, his teenage daughter. He appealed that decision, stating that the complainant had falsely accused him of sexual abuse to “get him out of the house and liberate herself from his control.” 

The appellant argued that the trial judge made three mistakes in reaching her decision:

  1. She did not review the victim’s personal journals, which he believed would support his claim;
  2. During third-party records applications, she did not consider the complainant’s motive to lie; and
  3. She did not correctly assess both the appellant’s and the complainant’s credibility.

The test for reviewing third-party records

The trial judge made her decision not to review the complainant’s personal journals based on the rules concerning third-party records found in section 278.5 of the Criminal Code. A two-step test determines if a judge should review third-party records.

  • Relevance: The first requirement is that the records are “likely relevant” to the case and the particular issue(s) they address.
  • Necessity: The second requirement is that the records are “necessary in the interest of justice.”

Trial judge refused to accept journals into evidence

In the case at hand, the trial judge found that the application made by the appellant to have the personal journals reviewed by the Court failed both components of the third-party records test. She came to this decision because there was other evidence that could address the same issues that the appellant claimed the journals would address. The trial judge also determined that the broader consequences of inspecting personal journals were more significant than the benefit it may bring to the case. 

Court of Appeal affirmed trial judge’s decision

The Court of Appeal agreed with the trial judge’s use of the test and the resulting decision. First, the Court disagreed with the appellant’s argument that only logical relevance was required to determine whether the journals would have been “likely relevant”. The Court cited another decision that considered the availability of other evidence that addresses the same issues as the third-party records.

Furthermore, the Court also agreed with the trial judge’s finding that the appellant’s application failed the second component of the test. They acknowledged that since this was a discretionary finding, the trial judge’s decision is owed deference. Therefore, the Court of Appeal dismissed this ground of appeal.

Impact that inspection of personal journals could have on other cases

The Court of Appeal found no issues with the considerations that the trial judge made in determining whether or not the complainant’s personal journals should be reviewed. The Court agreed that allowing personal journals to be reviewed by a judge could negatively impact the reporting of sexual assault and the practice of therapeutic journaling. By reviewing personal journals of a victim of sexual assault, other victims may be dissuaded from taking part in therapeutic journaling out of fear that judges will choose to inspect them. 

Additionally, the Court of Appeal noted that this decision does not represent a blanket ban on introducing private journals into evidence in court cases. In this case, the harm to the complainant’s privacy and the potential message the inspection would send to other victims outweighed any potential benefits of having the personal journals inspected.

Trial judge thoroughly considered complainant’s motive to lie

The appellate Court dismissed the argument that the trial judge failed to consider the complainant’s motive to lie. The trial judge thoroughly addressed the appellant’s motive theory, cited specific evidence that contradicted it, and highlighted the appellant’s inability to support his claims. Overall, the Court of Appeal found that the trial judge’s decision “included consideration and rejection beyond a reasonable doubt of [the appellant’s] contention that [the complainant] lied out of animus and to liberate herself from the restrictive rules he imposed.” 

Court of Appeal found trial judge properly assessed parties’ credibility

The Court of Appeal also dismissed the appellant’s final ground of appeal, which challenged the trial judge’s credibility and reliability analysis. The appellant listed several errors that he argued the trial judge made in her analysis: 

  • She used “unfair scrutiny” when reviewing his evidence and testimony;
  • She gave undue weight to the complainant’s demeanour during her testimony;
  • She incorrectly preferred the complainant’s evidence over the conflicting elements of another witness’s evidence (a church counsellor); and
  • She did not correctly interpret and rely upon the evidence of the complainant’s mother.

The Court of Appeal disagreed with all of the appellant’s arguments regarding credibility, finding that the trial judge correctly conducted her analysis. She correctly interpreted and addressed all the available evidence and therefore made no errors in her decisions regarding the appellant’s lack of credibility.

Barrison Law Provides Reliable Criminal Defences Against Sexual Offence Charges

The talented criminal defence team at Barrison Law is experienced in defending clients against a variety of sexual offence charges, including sexual offences involving childrenchild pornography, and sexual assault. We help accused individuals at all stages of the criminal justice process, from bail hearings to trials.

Our office is conveniently located just steps from the Durham Consolidated Courthouse. We accept cases on private retainer and Legal Aid and offer 24-hour phone service. To schedule a confidential consultation on your criminal law matter, call us at 905-404-1947 or reach out online.