Balancing act

It was never going to be simple.

In fact, trying to set a level playing field in situations as fraught as sexual assault cases is hopelessly complex.

But governments have tried. Last year, when Bill C-51 took effect, the rules in sexual assault trials changed so that, if a defendant’s lawyers were going to use some kinds of private information about a complainant to try and disprove the complainant’s version of events, the defence would have to release the information to the complainant in advance.

For example, if a defence was going to use emails to try and show a relationship that was more intimate than the complainant had testified it was, the defence would have to hand the emails over in advance. (The change in the law was widely seen as a response to the acquittal of Jian Ghomeshi.)

While politicians get to make laws, it’s judges in court who end up interpreting them, and not only that, deciding if the laws are reasonable and acceptable under the Canadian Charter of Rights and Freedoms.

Now, a Saskatchewan judge has ruled that giving alleged victims information about the defence in advance could hurt an accused’s rights to a fair trial.

“The evidence of a complainant is almost always crucial and central in any trial relating to sexual assault. Mandatory disclosure to the prime witness in a prosecution reaches to the centre and integrity of the trial process in such cases,” Saskatchewan provincial court Judge Bruce Henning wrote, saying C-51 could “seriously limit an accused person’s ability to effectively challenge the veracity of a complainant.”

That, Henning said, was a violation of the Charter of Rights and Freedoms guarantee of the right to make a full answer and defence, and the equally important Charter right to a fair trial.

You can see the point — to a degree.

If you liken it to chess, which admittedly might not be the best comparison, how can you play the game fairly if you’re required to tell your opponent your moves in advance? Of course, it isn’t completely like chess, because in criminal law the prosecution has to outline its case to the defence and provide the evidence it plans to call in advance. That’s because one of the fundamental elements of criminal law in Canada is the intention that an innocent person doesn’t get convicted, even if that means some guilty people escape conviction.

And that’s why the balance in court is so unusual. It means there is an awful lot of the benefit of the doubt left for the accused.

At this point, two court cases in Ontario — argued on different issues — have found C-51 to be acceptable under the Charter.

But the Saskatchewan case, which isn’t binding on other courts, suggests there may be many more court battles before the proper balance is reached.