The Ideal Victim, the Hysterical Complainant, and the Disclosure of Confidential Records: The Implications of the Charter for Sexual Assault Law

This article explores the current state of Canadian law on the production and disclosure of complainants\u27 records to reflect upon the implications of the Canadian Charter of Rights and Freedoms for Canadian sexual assault law and jurisprudence. Some scholars assert that the Supreme Court\u27s decision in R. v. Mills, upholding section 278 of the Criminal Code governing access to complainants\u27 records, constitutes an erosion of accuseds\u27 rights and an unjustified compromise of constitutional standards. By contrast, this article demonstrates that R. v. Mills is a highly contradictory decision that can be read as creating an interpretation of section 278 that privileges defendants\u27 rights and undermines the protections that the legislative regime sought to erect. Emerging out of the tensions inscribed within Mills, recent decisions continue to privilege the legal rights of the accused and to reinforce a liberal legalistic construction of sexual violence. Privacy, posed as a right to contain narratives of sexualized violence within a bounded personal space, may provide but tenuous protection against vigorous pursuit of records by defence counsel. When complainants can be constructed as failing to enact the characteristics of ideal victimhood, their entitlement to privacy is discounted. Through a discursive analysis of the case law on access to complainants\u27 records, the article contends that the mechanism of disclosure constitutes the central contemporary enactment of the hysterization of the rape victim