Jian Ghomeshi

As a fairly (extremely) risk-averse person, I would not be stepping out of character in betting my house on the odds of you having read about a sexual assault scandal within the last seven days.  With the recent unending torrent of sexual misconduct allegations, the issue of sexual assault has been at the forefront of society’s collective mind. 

The public have long decried that complainants are re-victimized and ultimately failed throughout the court process.  As a result, a number of public campaigns have gained momentum urging that complainants in sexual assault cases are to be believed.  This notion was amplified following the Jian Ghomeshi trial wherein defence counsel utilized private messages that the complainants did not recall sending as a means of testing their credibility and reliability. 

The federal government appears to be responding to the public’s criticisms through Bill C-51.  Clauses 22-25 of Bill C-51 propose extreme changes that are intended to address concerns about how complainants are treated during sexual assault trials. 

Presently, the Crown is required to disclose to the defence all of the information it possesses in regard to an alleged sexual assault.  This disclosure enables the accused to make full answer and defence to the allegations against him or her as it would be tremendously unfair to make an accused enter a plea or stand trial unknowing of the case against him or her.  As it stands, only the Crown is obligated to disclose their evidence.  However, Bill C-51 proposes a reverse disclosure onus on the defence to provide the Crown with the evidence in its possession that it will be relying upon at trial to disprove or raise doubt in regard to the allegations made by the complainant.  This is unprecedented in Canadian criminal legal history. 

In response to the inevitable constitutional questions which will be raised in regard to this radical proposed legislation, the government has propositioned that the proposed reverse disclosure clauses are acceptable as they address the same issue as addressed in the Supreme Court case of R v Mills, [1999] 3 SCR 668.  However, the proposed legislation is void of any pertinent or applicable similarity to the case of Mills.  In Mills, the Supreme Court upheld amendments to the Criminal Code which governed the force disclosure of private records related to the complainant which were in the possession of third parties (such as therapists or teachers for example).  The decision of the Supreme Court in Mills was directed at preventing defence counsel from engaging in fishing expeditions for private information.   In contrast, the proposed legislation outlined in Bill C-51 applies to relevant material which is already in the possession of the accused.  The purpose of potentially not disclosing the records referred to in the Mills case was to protect the privacy rights of the complainant.  However, if the defence is already in possession of the record, the horse has left the barn and disclosing the record to the Crown, as directed by Bill C-51, will not undo or remedy the loss of privacy experienced by the complainant. 

Let’s return to the Ghomeshi trial.  Defence counsel was in possession of a number of emails, text messages, and other correspondence between the accused and his complainants.  These private messages largely contradicted the evidence offered by the complainants that Ghomeshi had sexually assaulted them.  The inconsistencies between the private messages and the testimony of the complainants fundamentally contributed to Ghomeshi’s acquittal.

Under Bill C-51, defence counsel would have been obligated to provide all of these private messages to the Crown.  In effect, this would have alerted the complainants to the glaring inconsistencies in their allegations and provided them ample time to generate an explanation for the discrepancies and tailor their evidence, thereby causing them to appear more reliable and credible when providing their testimony in court.  Obviously this would have had a remarkable impact on the outcome of the Ghomeshi case. 

If the reverse disclosure clauses of Bill C-51 are passed, the way in which sexual assault matters proceed will be drastically different.  Importantly, the accused will be faced with far more difficulty in receiving an acquittal.  The proposed reverse disclosure clauses embodied in Bill C-51 fly in the face of long established law and severely compromise the rights of an accused at trial.   

For more on this, or other criminal matters, please contact Brooke Johnson.

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