by: Allison Lee, articling student
In our last post, New Law For Sexual Assault Forces Defence to Disclose Texts, we discussed the new regime governing the type of evidence that can be used by the defence, and ultimately how it may be used, following the introduction of new sexual assault provisions into the Criminal Code Bill C-51 on December 13, 2018. My colleague identified several issues with the new provisions and their potential impact on the rights of the accused. In this post, I intend to review the case law which has emerged since the enactment of these provisions to determine whether these issues have materialized in practice.
New Provisions: Bill C-51
Briefly, these new provisions require the defence to disclose records or communications related to the complainant that were made for a sexual purpose or whose content is of a sexual nature. At the first stage, the defence must apply to admit these records, which, pursuant to the new provisions, are presumptively inadmissible. In addition, the complainant now has the right to appear and make submissions at the admissibility hearing. To ensure that her submissions are meaningful, she also has a right to retain counsel for this purpose.
So how have the courts interpreted these new provisions? Two cases have actually grappled with how to properly give effect to some of the new requirements, none of which are favourable to the accused. In fact, they are downright contrary to the rights of an accused person and create a dangerous precedent moving forward.
R v Boyle: The Complainant Must be Served with the Application Record Prior to the Hearing
In R v Boyle, the central issue was whether the Application record, containing the evidence the defence wished to adduce, had to be provided to the complainant prior to the admissibility hearing.
Based on the language of the new provisions, which provide that the complainant has a right to appear and make submissions at the hearing, Doody J found that the complainant must be served with the Application Record to ensure that these submissions are meaningful. Meaningful submissions, the court found, can only result where the complainant may “learn what evidence is proposed to be admitted, the purported relevance of that evidence, and the evidence relied upon to support its admissibility.”
The Ontario Court of Justice thus concluded that providing the complainant with the Application Record prior to the admissibility hearing did not offend the accused’s Charter rights.
Concerns about the effect of these provisions on the accused’s right to a fair trial are well-founded. Providing the complainant with the Application Record results in the following drawbacks to the accused:
- The accused is forced to either reveal the defence strategy or decide not to participate in the case against them
- The accused is unable to call the case as the they sees fit or call the best response evidence to the Crown’s case
- The accused is unable to fully test the complainant’s evidence by confronting her with unexpected evidence, which may contradict the assertions made by the complainant.
- The trier of fact is deprived of the ability to gauge the complainant’s reaction to the records, and the opportunity to observe her demeanour and assess her credibility
- The complainant is able to prepare a response to the records or communications presented and the Crown is able to fix flaws in its case
R v TPS: The Complainant now has a Right to State-Funded Counsel
In R v TPS, the Nova Scotia Supreme Court decided on whether the court should order state-funded counsel for the complainant on such an application. Unsurprisingly, the Court ordered that the complainant be represented by state-funded counsel, whether through the Legal Aid Programme or via the Attorney General of Nova Scotia. The court found that for the complainant to exercise his or her right to make submissions, counsel is required.
In addition, the court also decided that the complainant had to be served with the application 60 days prior to the date of the hearing.
In addition to the complainant having 60 days to prepare to be confronted with the records or communications of prior sexual activity, court ordered state-funded counsel also puts the accused at a huge disadvantage:
- An accused person may be left unrepresented, while the complainant benefits from the assistance of both an independent lawyer and Crown counsel
Sexual assault complainants in Ontario are now provided with publicly funded counsel as part of the Rowbotham Pilot Project (see R v Brown, 2019 ONSC 1335 at para 6)
Will The Provisions Withstand a Constitutional Challenge?
Derstine Penman has already filed a constitutional challenge to these new provisions at the Ontario Court of Justice.
Since the last time we opined on this question, we have learned that a constitutional challenge has been brought to these provisions at the Newmarket Superior Court of Justice. It will be argued June 1, 2019.