by David Gildiner, Associate
There is a new law of the land for sexual assault cases. The most significant changes introduced by bill c-51, which came into force on December 13, 2018, relate to what evidence can be used by the defence in a sex assault trial.
The Defence has to Disclose Texts of a Sexual Nature
Suppose the accused has records of involving the complainant, like text messages, videos, social media posts, and pictures, that involve the subject matter of the alleged sexual assault. What use can the accused make of the records at trial?
The old way of doing business allowed defence counsel to keep the records in their back pocket, to be used – or not – at trial. Defence counsel often used the records to impugn the credibility of the complainant in cross-examination. The point is, it was up to the defence whether to use them or not.
All that has changed.
Now the law says that the defence must disclose all records in which the complainant has a reasonable expectation of privacy, prior to trial. The judge, the prosecutor, and above all, the complainant will therefore have advance warning of the text messages and therefore, of the defence strategies. Despite concerns raised by the defence bar that this could lead to witnesses tailoring their evidence around the often inconvenient text messages, the bill passed.
The accused will also have to make an application to court – complete with a written argument – prior to introducing the documents into evidence. The court will decide if they are relevant. At best, if the records are found admissible, it will allow the Crown and the complainant to know the defence strategy, effectively removing the defence’s ability to expose inconsistencies in a complainant’s evidence. At worst, if the judge finds the records inadmissible, it will deprive the accused from mounting an effective defence supported by legitimate evidence.
The bottom line is that the accused is forced to disclose what he or she has, to the state. That’s a new concept; there is nothing like it for any other criminal offence. The basic idea in criminal law is that the Crown has to disclose everything they have to the accused so that the accused can make full answer and defence. The defence, on the other hand, has no obligation to provide the Crown with the evidence it anticipates bringing at trial. The defendant is presumed innocent. As such, he or she does not have to help the Crown prove its case. With this new law, the accused is essentially being asked to prove his or her innocence, which is a notion that offends the basic principle that the Crown has to prove the accused’s guilt beyond a reasonable doubt.
The complainant gets a lawyer
Another change in the law is that complainants in sex assault cases will now be represented by their own lawyer. Again, this is something totally new to criminal law. The rationale behind the new law is that complainants in these cases are a special breed of complainant who need legal advice that they cannot get from the Crown. The troubling assumption built into the new law is that victims of sexual assault are somehow different from other victims. It assumes that victims of non-sexual crimes are somehow less deserving of special supports. It is a slippery slope. Is the victim of domestic violence less deserving of his or her own lawyer than the victim of a sex assault?
Will the law pass constitutional muster?
The legislature has put forth a controversial law. The ultimate question is whether the law offends the Charter of Rights and Freedoms. That question will be decided by the courts.
Derstine Penman will be bringing a constitutional challenge to the new law. Accused persons facing sexual assault allegations are now more disadvantaged than those facing allegations of a non-sexual manner. The reverse disclosure provision, we will argue, impacts the Charter-protected right of an accused to make full answer and defence.
In the final analysis, the new law seeks to address the very serious problem of sexual assault by altering the way we conduct trials. In so doing, the new law sacrifices the rights of the accused.
Update: New Article – Bill C-51 in Practice: Severe Implications For the Rights of the Accused.