The Supreme Court of Canada has upheld federal changes to sexual-assault proceedings that established new privacy protections and participation rights for alleged victims.
The new protections split the court, with the majority in the 6-3 ruling saying that more remains to be done to create trials that are fairer for the complainant (alleged victim) in sexual-assault cases, while a dissenting judge called the changes a “formula for wrongful convictions.”
Parliament established two major changes to the Criminal Code in 2018: When an accused individual possesses personal records of a sexual-assault complainant that, if revealed at a public trial, might affect their dignity, a pretrial hearing must be held to determine whether they can be used. The second change was to give complainants the right to argue at that hearing, on their own or through counsel, that their privacy outweighs the importance of the records to the defence.
In two cases, one from British Columbia and one from Ontario, lawyers for men accused of sexual assault challenged the law that established the new procedures. They said it was unfair because it forced their clients to disclose their defence to the Crown, and because it gave complainants advance information on what might await them in cross-examination, allowing them to tailor their initial testimony accordingly. In both cases, judges ruled parts of the new law unconstitutional.
But the Supreme Court has taken a strong position in the Me Too era on improving fairness for sexual-assault complainants. Its previous 34 rulings in sexual-assault appeals over 4½ years all went against the defence, a review by The Globe and Mail found.
The majority began by fixing a critical eye on the state of sexual-assault law: “The criminal trial process can be invasive, humiliating, and degrading for victims of sexual offences, in part because myths and stereotypes continue to haunt the criminal justice system,” Chief Justice Richard Wagner and Justice Michael Moldaver wrote.
Nearly 40 years ago, the federal government created a rape-shield law to bar use of a complainant’s sexual history at trial. In one of its most controversial rulings, the Supreme Court struck that law down in 1991 as unfair to the accused because it did not allow enough exceptions. (Beverley McLachlin, who later became the first female chief justice, wrote that ruling.) The government redrafted the law, and the court upheld it. In 1997, the federal government also passed a law creating admissibility hearings for the use of medical, counselling and school records in the hands of third parties. The court upheld it.
But gaps in the law were exposed in 2002 in a case in which an accused had a complainant’s diary. In 2012, a Senate report proposed a law to fill that gap. Then in 2016, broadcaster Jian Ghomeshi was acquitted of sexual-assault charges after his lawyer, Marie Henein, surprised the complainants with their own text exchanges with Mr. Ghomeshi, in devastating cross-examinations.
The 2018 law does not specifically mention digital records such as e-mails and texts; it does mention medical, therapeutic, education, child welfare, adoption and social services records, personal journals and diaries. But the majority said texts and other digital records cannot be excluded; it is not the medium but the sensitivity of the message that matters.
The majority (which included Justice Nicholas Kasirer, Justice Andromache Karakatsanis, Justice Sheilah Martin and Justice Mahmud Jamal), rejected the argument from defence lawyers and some lower-court judges that the new law dangerously undermines the right to cross-examination.
“Ambushing complainants with their own highly private records at trial can be unfair to complainants and may be contrary to the search for truth.” Accused persons are not said to be encouraged to tailor their testimony because the Crown is obliged to disclose its case, they said. They added that there is no absolute rule against requiring disclosure by the defence.
They said the law helps counter myths and stereotypes about complainants, including that “a ‘real victim’ will avoid all contact with the perpetrator after the fact.” Some women’s groups said that stereotype was at play in the Ghomeshi trial.
The three judges in the minority (Justice Russell Brown, Justice Malcolm Rowe and Justice Suzanne Côté) wrote separate but overlapping dissents. “The records-screening regime … represents an unprecedented and unconstitutional erosion by Parliament of the fair trial rights of the presumptively innocent – who, it should be borne in mind, will sometimes be actually innocent,” Justice Brown wrote.
Criminal-defence lawyers were vehement in their criticisms of the ruling. Ms. Henein, who represented Mr. Ghomeshi, said she read the ruling to see how the court defined a personal record. “Candidly, I could not figure it out from the majority’s decision. … At best, the judgment has created confusion, at worst, it will contribute to wrongful convictions.”
Carlos Rippell, who represents Shane Reddick, the accused in the Ontario case, cited the Brown dissent: “My client will now have a trial under a legislative regime that is a formula for wrongful convictions.”
Megan Savard and Rebecca McConchie, lawyers for J.J., the accused in the B.C. case, who has already been acquitted (but participated in the constitutional appeal at the Supreme Court), said in an e-mail the ruling is a reversal of accepted criminal law principles.
“It now appears to be settled law in Canada that witnesses are more accurate and truthful when given a chance to prepare answers in advance. If that’s the case, I look forward to legislative and judicial reforms that grant our arrested clients a right to disclosure before police interrogation.”
Many of the most hotly contested cases thus far under the new law have involved e-mails, said Joanna Birenbaum, a lawyer who defends the equality rights of sexual-assault complainants. “In the past, these e-mails, no matter how private or humiliating their content, could be sprung on the complainant in cross examination at trial, often years after they were written.”
David Butt, who represented A.S., the complainant in the Reddick case, said that unlike the U.S. Supreme Court, which this month ended the right to an abortion, Canada’s top court showed “it is committed to defining the rights in our Charter with an unwavering, realistic grasp of the current realities faced by women seeking access to justice.”
Elaine Craig, a leading authority on sexual-assault law at Dalhousie’s Schulich School of Law, said the majority decision protects accused people’s rights while “ensuring a sexual-assault trial process that doesn’t unnecessarily violate and intrude upon the dignity interests of sexual-assault complainants by ambushing them with details about their private lives.”
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