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opinion

Frank Addario and Matthew Gourlay are criminal lawyers in Toronto.

In the past 30 years, the Canadian legal system has attempted to eliminate the sexist treatment of witnesses in criminal proceedings. Judges, lawyers and Parliament have been enlisted to vanquish myths and stereotypes and to ensure that trials produce more accurate results.

With some notorious exceptions, the law is moving in the right direction. The Supreme Court’s decision last week in R. v. J.J. was expected to continue this progress while protecting the unpopular: the accused sexual offender.

However, the court failed in its basic duty to preserve fair trials and to prevent wrongful convictions.

Some background: In the wake of the Jian Ghomeshi trial, Parliament enacted a procedural scheme for pre-vetting “private records” of the complainant in the defendant’s hands. The intent was to protect the interests of witnesses in sexual assault cases.

This new law, at issue in the R. v. J.J. case, made records already in the defendant’s possession presumptively inadmissible. It sweeps in all manner of things, including the defendant’s own communications with the complainant. Text messages and e-mails, freely sent by the complainant to the defendant, are now considered private records.

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Imagine that, following a sexual encounter, two people exchange text messages about the incident. One of them later complains to the police. Imagine, as well, that the complainant’s text describes the incident differently from their testimony at trial. Is the defence free to ask the complainant questions about this discrepancy? Common sense and basic fairness would answer “yes.”

Parliament, and now the Supreme Court, have answered “it depends.” The Supreme Court’s decision to uphold the constitutionality of the law puts the onus on the defence to convince the court that the evidence should be admissible. The Crown and complainant are invited to argue that some unspecified quality of “privacy” should trump the defendant’s interest in not being wrongly convicted.

Troublingly, the Supreme Court’s decision offers no meaningful guidance as to what degree of “privacy” will suffice to trigger the screening regime. Defence counsel will need to get permission to use this evidence, or risk having it peremptorily excluded at trial.

Western legal systems have been organized for centuries around a belief that it is better for 10 guilty people to go free than for one innocent person convicted. Thus, many rules of procedure and evidence are purposely skewed toward the defence. The burden of proof and the presumption of innocence are the bedrock on which such rules are built. Authoritarian regimes, in contrast, start from the opposite premise.

Though our system is widely considered superior to the alternative, the “private records” rules are an outlier to the regular rules. They require the defendant to jump through time-consuming, expensive hoops to secure a routine entitlement: cross-examining one’s accuser on their previous statements.

As Justice Russell Brown observed in dissent in the J.J. case, the new provisions are “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.”

Instead of indicating a concern for wrongful convictions, the majority judgment expressed its mistrust of defence counsel who, in its telling, are constantly in search of devious methods to “attack the character” of complainants. The majority thus reinforces the popular urban myth that defence counsel are more disruptive than helpful when it comes to achieving justice.

No doubt, some defence counsel have, in the past, resorted to unfair tactics in cross-examining complainants. But there is little evidence that such practices are widespread today. Unfounded character attacks on a complainant are not just unsavoury; they are ineffective advocacy.

In seeking to use texts and e-mails to undermine the reliability of a complainant’s account, defence counsel are not doing anything improper. They are doing their job. It is unclear why the Supreme Court felt the need to denigrate the public’s front-line defence against state abuse and wrongful conviction. Degrading the fair trial guarantee based on an artificial view that defendants charged with sex crimes cannot be acquitted by traditional means is unhelpful.

A century ago, the great scholar John Wigmore described cross-examination as the greatest legal engine ever created for discovering the truth. As one of the few weapons available to defendants to resist the state, courts have always been reluctant to curtail such questioning unless it is abusive.

If lawful cross examination is off the table because it might “surprise” a witness – one of the court’s key points – it is not the defence lawyer who suffers: it is the credibility of the legal system as a vehicle for getting to a just result.

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