The biggest expansion to privacy protections for sexual-assault complainants in a quarter-century could be rolled back on Thursday, when the Supreme Court of Canada rules on whether it violates the right of an accused to a fair trial.
Lower-court judges have said the privacy expansion “ruptures the foundation” of the criminal trial process and dangerously undermines the traditional right to cross-examination.
Since 2018, a defendant in a sexual-assault trial who possesses a complainant’s e-mails, texts, diaries or other personal records must obtain the permission of a judge in a pretrial hearing to use them for their defence.
The law establishing the new process also, for the first time, granted complainants the right to play a direct role in the hearings to argue that their privacy interest outweighs the importance of the records to the defence.
It also gives complainants the right to be represented by counsel in “rape-shield” hearings on the admissibility of evidence about their sexual history.
The Supreme Court will decide the constitutionality of that law on Thursday.
The Liberal government introduced the Criminal Code changes after the 2016 acquittal of former CBC broadcaster Jian Ghomeshi on sexual-assault charges. In that case, Mr. Ghomeshi’s lawyer, Marie Henein, surprised complainants with their own e-mails at his trial and used them in withering cross-examinations.
The new law is under scrutiny in separate cases from Ontario and British Columbia. Judges in both provinces ruled parts of the law unconstitutional.
The country’s top court has repeatedly stressed the need to promote fairness for complainants in sexual-assault trials and to encourage victims to report such crimes. In the previous 34 sexual-assault appeals it has heard over the past 4 1/2 years, it has ruled against the defence each time, a review by The Globe and Mail found.
In the Ontario case, Shane Reddick met A.S. online, and she came from the United States to meet him in Toronto. Accused of sexually assaulting her at a party, he said he has videos of her engaging in sexual activity and wishes to use them in his defence. Because these video records pertained to sexual conduct, the defence would have had to seek a judge’s permission to use them even before the new law took effect. (Federal law already prohibits most uses of a complainant’s sexual history in a trial.) The difference with the new law is that the complainant has the right to attend the pretrial hearing and cross-examine the accused.
Ontario Superior Court Justice Suhail Akhtar ruled two years ago that this expansion of a complainant’s right to participate in the process is a violation of a fair trial. “This is not an incremental change but one that ruptures the foundation of the criminal trial process and removes an accused’s constitutional protections by providing their defence to a witness prior to trial,” he wrote.
A.S., the complainant, appealed the ruling to the Supreme Court of Canada. The trial itself has not happened yet.
In the B.C. case, J.J., the accused, wished to cross-examine the complainant on communications between the two of them, and challenged the law’s constitutionality. Justice Jennifer Duncan of the B.C. Supreme Court said a requirement that J.J. give seven days notice of an application to use personal records could undermine the right to cross-examination. She didn’t strike down the law; instead she “read down” or rewrote the provision to give judges the power to delay the hearing that determines the admissibility of such personal records until mid-way through the trial, after the complainant has already testified under questioning from the Crown.
As a result of what a complainant might learn in the pretrial hearing, “the danger that the complainant’s evidence may be tailored, consciously or unconsciously, is not illusory,” she wrote. A jury acquitted J.J of sexual assault. The Crown did not appeal the acquittal, but did appeal Justice Duncan’s constitutional ruling.
Six provinces, the federal government and several criminal-defence and women’s groups intervened in one case or both.
“There is no right to trial by ambush,” the Ontario prosecution says in a written argument in A.S.
Defence groups say the new rules could lead to wrongful convictions.
“By disclosing material in the accused’s possession in advance of trial, these sections compel the accused to give a potentially deceitful witness advance notice that they could be caught in a lie or inconsistency,” the Criminal Defence Lawyers Association of Manitoba said in a filing with the Supreme Court.
The Women’s Legal Education and Action Fund argues that complainants have a right to privacy, dignity and equality, yet their alleged attackers may possess, legally or illegally, a wide range of highly intimate materials, such as medical and therapy records, immigration and refugee files and children’s aid society documents. Until the new law took effect, complainants “may never have learned or fully understood why and how their private records were sprung upon them in open court,” the group said in a legal filing.
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