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A challenge to what is sometimes known as the 'Ghomeshi law' is part of a busy winter schedule for the Supreme Court of Canada.Adrian Wyld/The Canadian Press

A federal law protecting sexual-assault complainants from being “ambushed” in court by e-mails or notes they wrote to the accused faces a major test at the Supreme Court this winter.

The law – which defence lawyers say makes it difficult to conduct an effective cross-examination – is among the biggest changes to how sexual-assault trials are conducted in the past 20 years.

Sexual-assault law has become a large part of the court’s docket over the past two years, reflecting the heightened consciousness around the issue, federal legislation intended to give complainants more rights and appellate-court efforts aimed at protecting fairness for the accused in such cases.

The challenge to what is sometimes known as the “Ghomeshi law” is part of a busy winter schedule in which the court will also look at what people are allowed to do in self-defence when intruders come to the home; how far human-rights protections extend for people with disabilities, including alcohol dependency, and how far free expression goes for comedians; and when lawsuits against government can or can’t go ahead.

Ten of the 16 criminal cases that came before the court during its fall session involved sexual assault. And last year, the court made major rulings in three sexual-assault cases, reinforcing and extending limits on the use of a complainant’s sexual history in trials.

The case this winter, R v J.J., set for late March, is the first challenge to reach the top court of a 2018 law passed after the acquittal of former CBC broadcaster Jian Ghomeshi in 2016. Mr. Ghomeshi’s defence lawyers cross-examined multiple complainants about their communications with the broadcaster after alleged sexual assaults, using those communications to undermine their initial testimony. Mr. Ghomeshi was acquitted of all charges.

Under the 2018 law, complainants cannot be blindsided. Defendants need to obtain a court’s permission before the trial begins if they wish to use material affecting the privacy rights of the complainant, and give seven days’ notice to the Crown and the complainant. The complainant has a right to participate in a closed hearing on the possible use of the communications, and to retain a lawyer to present arguments on the complainant’s behalf.

J.J. said the law compels the defence to disclose evidence, which is otherwise seldom done in Canadian criminal cases. It thus forces defendants to give away their strategy, and allows complainants to frame their initial testimony in a way that prevents their story from being undermined in cross-examination, his lawyers argued. Justice Jennifer Duncan of the B.C. Supreme Court agreed, and struck down the seven-days notice requirement. The trial went ahead, and J.J. was acquitted. The Crown appealed the constitutional ruling even before the trial occurred. It did not appeal the acquittal. (The defence is also appealing, saying it wants the entire law struck down. The hearing date of March 22 might change to accommodate this cross-appeal by the defence.)

“From our perspective, the J.J. case is about the ability of individuals to fully and fairly defend themselves against allegations of sexual assault and other sexual offences,” Rebecca McConchie, one of J.J.’s lawyers, said.

Two other sexual-assault cases are also on the docket, one from Newfoundland and Labrador, the other from Ontario; both centre on the credibility of the complainant. In the seven sexual-assault cases last fall in which the Supreme Court ruled from the bench, it sided each time with the complainant and prosecution, mostly around the issue of the complainant’s credibility.

“There’s a recurring theme in relation to how you balance the rights of an accused to a fair trial with those of complainants,” Megan Stephens, executive director of Women’s Legal Education and Action Fund, said of the three sexual-assault cases ahead on the winter schedule.

Other cases:

R v Khill, Feb. 18: May set rules for self-defence. Peter Khill, a former military reservist, was acquitted by a jury of second-degree murder in the shooting death of Jonathan Styres, a father of two from Six Nations, whom he found breaking into his car at 3 a.m. The acquittal left people on the Six Nations reserve feeling like it was “open season for violence on Indigenous people,” a band spokeswoman said.

Mike Ward v the Quebec Human Rights Commission, Feb. 15: Pits free speech against the protection of dignity. A comedian made fun of a disabled youth, and a human-rights tribunal awarded damages of $42,000 to the youth and his mother, under the Quebec Charter of Human Rights and Freedoms.

Northern Regional Health Authority v Linda Horrocks, Feb. 16: May set rules for employers of those with alcohol dependency, which is deemed a disability under the Manitoba human-rights code. A Flin Flon, Man., health care worker was suspended after being intoxicated at work, and after returning to the job under certain conditions, was reported twice to have been intoxicated outside the workplace, and fired. A human-rights adjudicator ordered that she be given her job back.

City of Toronto v Attorney General of Ontario, March 16: Big for Toronto. Shortly before civic elections in May, 2018, Ontario reduced the number of wards in the city to 25 from 47. Toronto went to court, and the Ontario Superior Court said the change violated voters’ freedom of expression. The Court of Appeal suspended the ruling and the election went ahead.

City of Nelson v Taryn Joy Marchi, March 25: On limits to government liability. Ms. Marchi was crossing the street when she slipped through a snowbank and injured her leg. Nelson says the way it plows its street is a policy decision that gives it immunity from negligence suits. Or is it an operational decision, creating potential liability?

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