© Dave Abel/Postmedia/File Bill C-51 was introduced in June 2017, about a year after the high-profile acquittal of Jian Ghomeshi, however there is disagreement over whether the legislation was directly prompted by his case.

OTTAWA — Courts in Canada are grappling with new sex assault trial rules aimed at better protecting the privacy of accusers, but which may come at the cost of demolishing an accused’s right to a fair trial.

One judge recently concluded the changes “eviscerate” the most important tool the accused has when it comes to challenging the complainant’s version of events.

The shadow of Jian Ghomeshi looms heavy over the new legislation, but it also comes during the MeToo era and concern the trial process is still too hostile towards accusers, who are most often women.

Bill C-51, federal legislation that took effect in December 2018, will inevitably wind up at the Supreme Court of Canada as Charter challenges have been launched against it across the country.

Some judges have upheld the legislation, others have declared it unconstitutional, still others have found serious problems but suggested on-the-fly solutions to save it.

“It’s chaotic right now,” said Peter Sankoff, a University of Alberta law professor who is also co-counsel for an Alberta defendant challenging C-51. “In every case, you have to try and convince your particular judge that it should be dealt with in a particular way. And judges are making ad hoc solutions to the problem, or trying to sidestep the legislation in some way.”

Bill C-51 was described by then Justice Minister Jody Wilson-Raybould as the first major update to sexual assault laws in more than 20 years. It set up a new evidence screening procedure for records the defence holds — potentially including all electronic communications such as texts or Facebook messages. It also granted complainants the automatic right to take part in evidence admissibility hearings, which has the effect of giving an alleged victim a sneak peek at the defendant’s evidence.

In the past month, superior court judges in both Saskatchewan and Alberta have found C-51 violates the Charter’s section 7 (the right to make full answer and defence) and 11d (the right to a fair trial). The Crown still has a chance in each case to argue the violations are saved under the Charter’s section one, which allows for reasonable limits that can be justified in a free society. But given the judges’ strong language, the prosecutors have their work cut out for them.

“These procedural screening requirements eviscerate the most valuable tool available to the defence in a sexual assault trial,” wrote Saskatchewan Justice Allisen Rothery on Nov. 25 in a case called R. v. Anderson.

Alberta Justice Sterling Sanderman ruled the legislation “violates (the accused’s) right to silence and right to make full answer and defence in requiring him to reveal evidence in his possession and how it will be used at trial beforehand,” in an oral ruling on Nov. 19 in R. v. J.S.

These follow on a Saskatchewan lower court decision called R. v. A.M. in August that found C-51 unconstitutional. Judge Bruce Henning ruled that the effect of C-51 “is to seriously limit an accused person’s ability to effectively challenge the veracity of a complainant.”

In Ontario, the situation is murkier. Some judges have rejected Charter challenges, ruling C-51 is in line with Supreme Court of Canada jurisprudence. Others have expressed deeper concern and said C-51 is only constitutional if the new admissibility hearing takes place in the middle of a trial, after the complainant has testified. Another judge found this solution too disruptive. Clarity won’t come until the Ontario Court of Appeal weighs in.

C-51 was introduced in June 2017, about a year after the high-profile acquittal of Jian Ghomeshi, where written records were used by his lawyers to devastating effect in exposing inconsistencies during cross-examination. There is disagreement over whether C-51 was directly prompted by Ghomeshi, however, as a 2012 Senate committee had proposed similar reforms.

During parliamentary hearings, a parade of defence lawyers argued C-51 was an unprecedented requirement for reverse disclosure on the accused. (It is the Crown that must disclose its case to the accused, not the other way around.) Others, including some law professors and the Women’s Legal Education and Action Fund, supported the changes as necessary protection for the privacy and dignity of complainants. The defence lawyers were rebuffed, and the bill ultimately received all-party support on its final House of Commons vote.

Proponents of C-51 argue it’s a natural extension of the rules already in place for compelling the production of third-party records — for example, hospital or therapeutic records — and for admitting evidence relating to sexual history. Courts are specifically instructed to avoid the “twin myths”: that a complainant’s sexual history makes them less likely to be believed, or more likely to have consented to a specific act. These rules have been upheld by the Supreme Court of Canada.

But C-51 sweepingly applies to any record held by the accused in which the complainant has a “reasonable expectation of privacy,” even if those records are not about sexual history. A modern-day sex assault trial very often involves electronic communications: texts, Facebook, WhatsApp, Twitter, Tinder and so on. Does a complainant have a reasonable expectation of privacy in these messages? Some judges have said yes, some have said no. It depends on the case.

If the judge says the records qualify, the evidence then goes through an admissibility hearing. This is where things get constitutionally problematic.

© Chris Helgren/Reuters Bill C-51 will inevitably wind up at the Supreme Court of Canada.

A foundation of Canada’s criminal justice system is that the burden is on the state to prove its case, not on the accused to prove their innocence. For that reason, the Crown must disclose its evidence, but the accused can keep their cards close to their chest. This is particularly important when it comes to cross-examination of Crown witnesses. Defendants can use evidence in their possession to try to prove witnesses gave misleading or false testimony. Cross-examination is at the heart of what’s called the “truth-seeking function” of a trial.

But in this new admissibility process, the defendant has to reveal what they plan to use at trial — texts, for example — and why they want to use it. Furthermore, C-51 gives the complainant the right to have their own lawyer in these hearings. The complainant can use that information to tailor their future testimony. “Armed with knowledge of the content of the defence brief, a complainant is unlikely to supply the foundation for contradiction,” is how Ontario judge Timothy Breen succinctly put it in a recent ruling.

Rothery, the Saskatchewan superior court judge, noted in her ruling that sex assault trials are very often a “he said, she said” situation, meaning cross-examination is of utmost importance to the defendant.

“The defence must be permitted to test the veracity of the complainant,” she wrote, emphasizing that the questioning still has to stay within established constraints, such as avoiding the twin myths. Ultimately, she wrote, the complainant’s privacy concerns must give way to the defendant’s right to an “unencumbered cross-examination.”

There have been a half dozen rulings in Ontario courts on the constitutionality of C-51. Two issued in the summer concluded the legislation is constitutional because it’s only an incremental change from existing sexual assault law. “As stated many times by Canada’s highest court, it is important to give a voice to the complainant, to allow for the court to hear her point of view at the hearing, determining the admissibility of proposed evidence which concerns matters in her private life,” wrote Ontario Superior Court Justice Phillip Sutherland in R. v. A.C. on July 15.

Since then, other Ontario judges have been more skeptical. On Sept. 17, Breen ruled in R. v. R.S. that C-51 can only avoid violating the Charter if the hearing is allowed to happen in the middle of cross-examination, rather than pre-trial.

Eight days later, Ontario provincial court judge Susan Chapman disagreed, ruling the interruption would be too disruptive to trials, and that C-51 is constitutional as is. A month after that, Ontario judge William Horkins — the judge who presided over the Ghomeshi trial — issued a ruling agreeing with Breen.

“I think the range of decisions that we’re seeing reflects that it is a significant change to the dynamic in sexual assault cases,” said Emma Cunliffe, a UBC law professor who testified at parliament on C-51. “Trial judges are genuinely grappling with how to implement the purpose behind the changes, while also keeping as robust as possible a space for the accused’s right to make full answer and defence.”

Cunliffe broadly supports C-51, arguing it’s in line with previous SCC rulings, and said she thinks the Ontario decisions have been a clearer discussion of the issues. However, she said Breen’s solution of having the hearings take place during cross-examination may be necessary to avoid the disclosure problem. “I think that looks like a very pragmatic and workable way forward,” she said.

Rosel Kim, staff lawyer for the Women’s Legal Education and Action Fund, said her organization still strongly supports C-51.

“It’s our position that sexual assault trials deserve special consideration from other kinds of criminal trials just because of the nature of the crime and the harm that can be caused for complainants going through the system,” she said. “There’s a history of women being discriminated against, not being believed, and stigmatized. So I think some of the Ontario decisions recognize this fact.”

Toronto lawyer Adam Weisberg, a vice-president of the Criminal Lawyer’s Association who presented on C-51 at the CLA’s fall conference, said people must remember that ultimately it’s the defendant facing prison time, not the complainant.

“The accused person faces the potential of a criminal record, incarceration, and lifelong stigma upon a finding of guilt,” he said. He said the new admissibility regime “has gone further than what is necessary to encourage the reporting of sexual assaults and allows sexual assault complainants to tailor their evidence before hitting the witness box, armed with the knowledge of not only the defence position, but of exactly what the defence can and cannot prove.”

“Often a truthful answer is revealed in the cross-examination of a complainant because they do not know what the accused can or cannot prove,” Weisberg said. For him, it all adds up to this: “This legislation will result in wrongful convictions.”

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