De­spite con­cerns, only mi­nor changes to sex­ual as­sault bill

Lawyer fore­sees ‘con­sti­tu­tional prob­lems’

Saskatoon StarPhoenix - - CLASSIFIED - BRIAN PLATT

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.

ADRIAN WYLD / THE CANA­DIAN PRESS FILES

Jus­tice Min­is­ter Jody Wil­son-Ray­bould dis­putes that Bill C-51 ob­li­gates de­fence lawyers to dis­close ev­i­dence.

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