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Enhanced protections for the privacy of sexual-assault complainants in federal law have undermined long-held rights of accused persons, including protections against self-incrimination, criminal-defence groups told the Supreme Court of Canada on Wednesday, the second day of a two-day hearing.

But women’s groups likened the defence view of those protections to the “common sense” of decades ago, now seen as deeply stereotypical and unfair to victims.

At issue is a 2018 law requiring accused individuals who have personal records of the complainants – such as texts between them, or diaries – to ask a judge for permission to use them during the trial. Judges in B.C. and Ontario ruled the law unfair to accused persons, and therefore unconstitutional in whole or in part, in separate cases.

Because the complainant has a right to a lawyer, and to make arguments in that process, and because the hearing occurs before trial, defence lawyers say it requires them to disclose strategy, and diminishes the chances of a successful cross-examination.

The Supreme Court reserved its decision. It will likely be months before it rules.

The law poses a challenge to a young court in which six of the judges have joined since 2014. It raises questions about the treatment of complainants in sexual assault trials, and the deterrent effect on reporting to police. It also raises questions about how far Parliament can go in trying to improve the system for complainants without treading on accused individuals’ ability to defend themselves.

Federal law already bans using evidence of past sexual conduct to support an inference that the complainant is less worthy of belief or more likely to have consented. And there is a pretrial process before a judge if an accused wishes access to medical records of the complainant. The 2018 law requires judges to consider factors such as a fair trial and harm to a complainant’s privacy and dignity.

The federal government and seven provincial governments intervened to make arguments, as did three women’s groups and five groups of criminal-defence lawyers.

John Williams, representing the Canadian Council of Criminal Defence Lawyers, said the law invariably requires an accused to disclose how they will use the records to attack credibility. “Having provided the complainant with all of that information, any cross-examination of that complainant thereafter will be far from full and pointed. It will be an illusion that will not allow the trier of fact [a judge or jury] to get at the truth.”

Peter Sankoff, a University of Alberta law professor representing the Criminal Trial Lawyers’ Association, said the defence normally is not obliged to disclose its case.

“It’s part of the constitutional principle against self-incrimination,” he told the nine judges. “The principle exists for good reason. It ties directly into the presumption of innocence, the recognition of the imbalance of power between the state and the individual accused.”

But Joanna Birenbaum, representing the Barbra Schlifer Commemorative Clinic in Toronto, said the defence position reminds her that in decades past, complainants who did not report immediately or “raise a hue and cry” when attacked were not seen as believable, and that attitude was deemed “common sense.”

“Why do we assume that [a complainant’s] evidence . . . will be more reliable if she’s surprised, rather than if she’s alerted to the information pretrial?”

The government enacted the law, she said, “in the face of the routine shredding of women’s privacy. It was enacted in the face of the ongoing humiliation and degradation of sexual assault complainants based on peripheral and private information.”

Among the private matters she said “go to the biographical core” are “things like her reproductive capacity, the fact she had a child apprehended, her qualities as a parent or a spouse, her street involvement, her drug addiction, her fraught relationships with family members.”

She added that the clinic, which offers legal and counselling services to marginalized and racialized women who have experienced violence, says to complainants: “‘What are the most private things about your life that he knows you would never want to be made public and that he has a record of? Prepare to be asked about that.’”

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