A new decision on the changes to rules of evidence in sexual assault trials determined that the new rules, forcing an accused to reveal defence evidence to a complainant in advance, must be applied carefully in order to comply with the constitution.

In a ruling issued on September 17, 2019, Ontario’s Justice Timothy Breen dismissed the constitutional challenge in R v R.S.(A), stating that evidentiary hearings can only be held after the witness has completed testimony in chief. This means that trials will likely be interrupted for special “voir dire” hearings after cross-examination has begun.

The new rules, given royal assent in December 2018, have been described as reverse disclosure by defence lawyers who say that exposing their defence material in advance will undermine fair trials. With the complainants being permitted access to defence records and their trial strategy in advance, the witness could “tailor” testimony to avoid impeachment.

Justice Breen explained: “The integrity of a witness and the credibility of their testimony are brought into question when they gain access to relevant information prior to testifying. This concern is entrenched in our criminal law and informs investigative practices, trial procedure and evidentiary rules. The tainting of witnesses, by any means, undermines the truth-seeking function of the trial.”

With the elimination of preliminary hearings in sexual assault cases, intended to spare the complainant from having to testify twice, there is no method by which the defence can meaningfully lay the factual grounds for evidence they wish to use until after the complainant has testified at trial.

While sexual assault cases have specific challenges that make complainants more vulnerable, given the highly personal nature of the alleged crime, the way these trials are conducted must still comply with the fundamental principles of justice and the right to a fair trial. Part of the problem is the lack of understanding from the public as to why these constitutional protections for an accused exist in law.

The most contentious areas of cross-examination are related to prior sexual history, which gives rise to privacy concerns and the need to protect witnesses from unjustified humiliation or baseless smears on their character. But the new rules go further than extrinsic sexual evidence and capture any text messages, emails, or other evidence in the possession of the accused that “relate to the complainant” in any way. That pretty much covers everything ever said between the complainant and the accused, sexual or otherwise.

Breen ruled that compelling disclosure of defence material prior to witness testimony would, indeed, violate the accused’s right to a fair trial and contradict the right to not self-incriminate.

“Self-incrimination” does not specifically mean evidence of or admissions of guilt. An accused person does not have to say anything unless the prosecutors have first made a case to be answered. A person can not be made to answer accusations of criminal wrongdoing unless the Crown first presents sufficient evidence that a crime has been committed.

Basically, a person can not be conscripted by the state to help build a case against themselves.

Disclosing the entire defence material and strategy before the prosecutor has made their case would allow the Crown to use the accused’s own evidence to reshape and strengthen their theory of guilt.

Justice Breen quotes Professor Ed Ratushny’s widely cited reasoning: “The important protection is not that the accused need not testify, but that the Crown must prove its case before there can be any expectation that he will respond, whether by testifying himself or by calling other evidence.”

This principle is why prosecutors must present their entire case first before an accused decides whether or not they will testify or call any witnesses.

That said, Breen points out that the right to not testify is entirely separate from the right to cross-examine and test the evidence of the prosecutor. The verdict specifically notes that material used to impeach a witness is not an affirmative defence tactic and is best handled mid-trial as the evidence becomes relevant.

The main concern about dealing with hearings mid-trial is the question of how disruptive that may be in terms of delay. Just as it is hard to predict what evidence the defence lawyers will wish to use until they hear the testimony of the complainant, it will be difficult to know how many days should be booked for the trial to ensure enough time for the extra hearings.



This combination of new rules passed by Bill C-51 combined with the elimination of preliminary hearings by Bill C-75 could make sexual assault trials even more difficult to complete within the time limits set by Supreme Court in the Jordan ruling.

Justice Breen noted that applications for evidentiary hearings are supposed to be filed with at least seven days advance notice but that judges were granted the ability to waive the notice requirement in the interests of justice. The wording of the applicable sections also demand that juries be excluded during these applications, which implies parliament intended that the hearings could take place during cross-examination.

Breen’s decision predicts that the need to override the seven-day notice may become routine saying ”resort to a statutory exception need not be exceptional.” In other words, the government has passed legislation that can only be constitutional if the overriding clause becomes the norm.

While on the surface, this ruling appears to reject the constitutional challenge made by the accused, it is much more intriguing and complex. In fact, the judge agreed that the new laws would violate the accused’s rights if applied incorrectly.

The easiest part of this whole mess to understand is that criminal trials involving allegations of a sexual nature are the only type of trials in which all evidence an accused person may wish to present is presumed to be inadmissible.

So, it’s not that they #believe the complainant, you’re just not allowed to show any evidence that they are lying unless you win that right in a special court hearing first. It’s basically a game of chess being played with words and technicalities.

And that is getting dangerously close to a presumption of guilt.