Bill C-51 would infringe rights of the accused

Last month, Attorney General of Canada and Justice Minister Jody Wilson-raybould introduced legislation which, if passed into law, would profoundly impact some of the sexual assault provisions contained in the Criminal Code of Canada.

Bill C-51 would, in part, create and impose serious, unprecedented and potentially unconstitutional reverse disclosure obligations on an accused facing a sexual assault charge; dramatically modify Canadian criminal law rules of evidence and procedure; and lead to wrongful convictions.

Under the proposed legislation, a person accused of sexual assault would be compelled to provide to the Crown all evidence in his/ her possession relating to any correspondence that the accused has received from the complainant, prior to, during and subsequent to the alleged sexual assault. This correspondence, which may include sexually explicit photographs or video, text messages, emails and handwritten letters, will become the focus of an evidentiary hearing before a judge to determine its admissibility at the trial of the accused on the sexual assault charge.

The parties involved in the evidentiary hearing would include the Crown attorney; the accused and his/her defence counsel; the complainant and his/her legal counsel. The complainant and his/ her legal counsel would be granted standing at the hearing. They would be afforded an opportunity to argue, after thoroughly reviewing the correspondence, that any or all of the material in question, which may potentially undermine the complainant’s credibility and exonerate the accused at trial, should not be received into evidence at trial.

Furthermore, the evidentiary hearing format would provide the complainant with an opportunity to explain away any inconsistencies, contradictions and mendacity with regard to prior statements made to police and other potential trial witnesses. Also, it would allow the complainant to tailor his/her prospective trial testimony to conform with the subject matter tendered at the hearing.

The Canadian Charter of Rights and Freedoms (Section 7) states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” This powerful and expansive constitutional right was interpreted by the Supreme Court of Canada (R. v. Stinchcombe [1991]) as creating a constitutional obligation on the Crown to make full disclosure of relevant evidence between the Crown and the defence in a criminal prosecution. This seminal pronouncement, delivered by the highest court in our country, entitles any person accused of committing a criminal offence the constitutional right to make full answer and defence to that criminal charge.

Bill C-51 would, in effect, create a reverse disclosure obligation on the accused to furnish correspondence in his/her possession to the Crown (and complainant) for judicial vetting. This legislation would be contrary to the aforementioned Crown disclosure obligations to a defendant facing a criminal prosecution, as elucidated in Stinchcombe.

On the constitutional front, Bill C-51 would infringe upon a criminal accused’s right, under Section 7 of the Canadian Charter of Rights and Freedoms, to make full answer and defence to a criminal charge; it would be deemed unconstitutional and, under the saving provision of Section 1 of the Charter, not a justifiable infringement on the Section 7 right to make full answer and defence to a criminal charge.

Colin James Hall St. John’s