Despite concerns, only minor changes to sexual assault bill
Lawyer foresees ‘constitutional problems’
Legislation that makes big changes to Canada’s sexual assault laws is getting only minor amendments from MPs, despite strong concerns from defence lawyers it creates an unconstitutional requirement to disclose a defendant’s evidence ahead of a trial.
Bill C-51, introduced last spring by the government and widely perceived as a response to the Jian Ghomeshi trial, makes numerous changes that are meant to address concerns over how complainants are treated during a sexual assault trial.
The bill also brings the written law into line with previous Supreme Court of Canada rulings on areas such as consent (for example, making it clear that consent must be actively given throughout a sexual encounter, not just ahead of time).
As is common with any large change to the Criminal Code, expert witnesses expressed a variety of concerns around the new language. But one particular provision of the bill has seen a huge reaction from lawyers: a new process they say creates an obligation to show their evidence to the prosecution before using it during a trial.
Normally, only the Crown has to disclose their evidence ahead of time. But the bill sets up an application that requires the defendant to get a judge’s ruling on the admissibility of records they possess that relate to a complainant. (Such a process is already in place for records held by a third party, such as a psychologist.)
According to the definition of the Criminal Code, the process would apply to “any form of record that contains personal information for which there is a reasonable expectation of privacy,” such as diaries, medical records and possibly even text messages, emails and social media messages.
“That’s unprecedented in Canadian criminal legal history,” said Breese Davies, a Toronto-based defence lawyer who was one of many to testify before the Commons justice committee studying the bill.
“There are some areas in which the defence has to disclose some amount of their theory or some amount of an argument they may make, but there’s no other context in which the defence has to disclose to the court ahead of time, and more importantly to the complainant ahead of time, what information and evidence might be used to cross-examine them,” she said in an interview.
Defence lawyers repeatedly told the committee the bill effectively removes their ability to expose inconsistencies in a complainant’s evidence, as disclosing the records allows prosecutors to adjust their case to what’s in them.
The Canadian Bar Association said it “questions the constitutionality of creating this disclosure obligation on an accused person, and its potential impact on the charter-protected right of an accused to make full answer and defence.”
Justice Minister Jody Wilson-Raybould has contested this view of the legislation, telling the committee it is “simply not true” to call it a disclosure requirement.
“These changes provide no rights to the Crown to receive evidence, nor do they mean that the defence would be obligated to hand such evidence over,” she said.
Experts testifying at the committee also expressed concern about the trial delays this new process would cause in Canada’s already sluggish court system, and the fact it creates a records admission process that wouldn’t be used for any other type of case, such as domestic assault.
They suggested numerous fixes to narrow the scope, such as tightening the definition of what counts as a record, making it clear the process only applies to records being introduced as evidence, and changing it to a mid-trial process that would take less time.
The committee wrapped up its C-51 deliberations on Wednesday. The only amendment made to that portion of the bill was to specify that the records subject to the new process are only those that relate to the complainant, not the other witnesses.
“The proposed change is welcome, but not enough,” said defence lawyer Megan Savard, who had suggested it in her committee testimony. “It does not solve the bill’s constitutional problems.”
Davies said she was disappointed but not surprised to see the bill emerge mostly unchanged. She said she understands the intention, but thinks the legislation is far too broad and will result in a torrent of litigation and charter challenges.
“You can’t legislate your way out of the complexities and the inherent difficulties of sexual assault cases,” she said.
The bill now goes back to the House of Commons for a final vote, and then goes for study in the Senate.
Justice Minister Jody Wilson-Raybould disputes that Bill C-51 obligates defence lawyers to disclose evidence.