A sexual-assault complainant pleaded with the Supreme Court of Canada on Tuesday to treat her rights to dignity and privacy as equal to the fair-trial rights of the accused.
The court was hearing the first test of a 2018 federal law that set out the biggest expansion to rape-shield protections for complainants in decades.
Under that law, accused persons who wish to cross-examine complainants on personal records such as e-mails or texts the two of them have shared must apply to a judge before the trial – and the complainants have the right to make submissions, and to be represented by a lawyer, during that application. A two-day hearing began on Tuesday after judges in Ontario and British Columbia struck the law down in whole or in part, both ruling it unfair to accused individuals.
It was only the second time since the introduction of the 1982 Charter of Rights and Freedoms that a sexual-assault complainant has made arguments, through her lawyers, at the Supreme Court, according to Dawne Way, a lawyer for A.S., the complainant in the Ontario case. (A.S. brought one of the appeals, and the court granted her standing to do so.) The accused, Shane Reddick, wants to use videos at trial that she says were recorded without her knowledge.
“All we ask,” another of her lawyers, David Butt, told the nine judges, “is that … equality in terms of our Charter rights be fully recognized, respected and operationalized.”
He said “sloppy thinking” has led to the criminal process being seen as an “epic clash” between the state and accused, when it should be three-dimensional, with the complainant’s constitutional rights to dignity, privacy and participation when her rights are at stake as the third dimension. He said there is precedent for allowing complainants to participate, such as the right media organizations have had since 1994 to make submissions about court-ordered publication bans.
Underscoring the dramatic stakes for the trial process, Justice Malcolm Rowe erupted:
“So now we’re going to go into this Great Leap Forward. I wouldn’t call it three dimensions,” he said. “It reminds me more of what Mao did in the 1950s. And maybe we’ll just say you can have multiple prosecutors and it’s a tag team. You’ve got the Crown, then you’ve got the complainant, then you’ve got the intervenors, and you know, everyone’s got their rights, and … that’s equality, isn’t it?”
“No,” Mr. Butt replied, “that’s chaos.”
“Exactly sir. That’s exactly what you’re counselling to us.”
“With the greatest of respect, sir. … My client has no standing to act as a second prosecutor. My client has standing to be heard and participate insofar as is necessary to enable a thoughtful consideration of her rights.”
The federal government introduced the changes after the 2016 acquittal of former CBC broadcaster Jian Ghomeshi on sexual-assault charges. In that case, Mr. Ghomeshi’s lawyer, Marie Henein, used e-mails from complainants in withering cross-examinations.
Defence lawyers say the 2018 law forces the accused to disclose their strategy, and undermines the possibility of a successful cross-examination.
Canada’s law on sexual assault generally forbids most uses of past sexual conduct in a trial. There is a process for applying to a judge, pretrial, to determine whether such information would be relevant. Using it to support the “twin myths” – that a complainant is less credible or more likely to have consented – is barred. An accused can also apply to a judge for medical records in the hands of third parties.
At stake in the current case are personal records in the hands of the accused. Judges are to weigh factors that include the need to encourage victims of sexual assault to go to the police, and the potential harm to a complainant’s dignity and privacy if the defence uses the records at trial.
Justice Mahmud Jamal, in his first case since being appointed to replace Justice Rosalie Abella, who retired in July, asked whether Parliament had the right to expand the types of evidence that can’t be admitted in a trial: “Isn’t Parliament free to stipulate any species of injury could be the basis for a rule about admissibility beyond the twin myths?”
No, replied Rebecca McConchie, representing J.J., the accused in the B.C. case (who was acquitted by a jury; only the constitutional element is being appealed). She said a “red flag” was that the Crown would be free to use the same e-mails said to violate the complainant’s privacy.
“So essentially you’re allowing the complainant to determine whether or not she’s going to waive her rights based on whether evidence corroborates or contradicts her account. That is giving an awful lot of power to control the truth-seeking function of the trial to a partial third party.”
The Supreme Court judges had mixed reactions, including ones sympathetic to the changes, such as from Justice Sheilah Martin, an author on sexual-assault law before joining the court. Justice Michael Moldaver, a former criminal-defence lawyer who is the court’s expert on criminal procedure, stressed the “sad history” of sexual-assault law in Canada and that myths about complainants are still in play.
Still, he said he viewed the law’s definition of personal records in a narrow sense. It would have to exclude, for instance, most e-mails from the complainant to the accused, thereby allowing trials like Mr. Ghomeshi’s to unfold exactly as they did. That’s because there is no real expectation of privacy when someone sends a personal text or e-mail, he said.
On Wednesday, several intervenors, including provincial prosecutors, women’s groups and criminal-defence organizations, will have their say.
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Sean Fine