Saskatchewan judge Bruce Henning found the reforms force defence lawyers to disclose too much of their evidence to the complainant ahead of time

OTTAWA — A Saskatchewan judge has found the Liberal government’s sexual assault trial reforms are unconstitutional because they force defence lawyers to disclose too much of their evidence to the complainant ahead of time, potentially allowing the complainant to modify their testimony in response.

The provincial court decision addresses reforms contained in Bill C-51, which took effect last December. The new legislation gives complainants in sex assault trials the automatic right to make submissions in certain evidence admissibility hearings (at issue in this case were records held by the defendant that were unrelated to prior sexual activity, but in which the complainant had a privacy interest). Because complainants are now a party to these hearings, they are also entitled to disclosure from the defendant.

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“In my opinion, the Crown arguments do not address adequately the effect of disclosure to the complainant that may allow the complainant to prepare for trial ready to explain and minimize inconsistencies, omissions, additions or other modifications in giving their evidence,” Judge Bruce Henning wrote in his decision, which came down on Aug. 1 and is not yet posted online.

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“The evidence of a complainant is almost always crucial and central in any trial relating to sexual assault. Mandatory disclosure to the prime witness in a prosecution reaches to the centre and integrity of the trial process in such cases.”

Henning concluded this aspect of C-51 violates section 7 of the Charter (the right to make a full answer and defence) and section 11 (the right to a fair trial), and could not be justified as a reasonable limit. He said the effect of the new law is to “seriously limit an accused person’s ability to effectively challenge the veracity of a complainant.”

Photo by Dave Abel/Toronto Sun/QMI Agency

The case, called R. v. A.M., is being heard in a lower provincial court, so the ruling only affects the law as applied in this case and is not binding on other courts. It stands in contrast to two recent Ontario cases where judges upheld the constitutionality of C-51 (though Henning points out the issues were slightly different in those cases). The constitutionality of the law across the country won’t be settled until a case is appealed up to the Supreme Court of Canada.

The 2016 trial of Jian Ghomeshi looms large in Henning’s reasons. Many defence lawyers see C-51 as a reaction to the blockbuster Ghomeshi trial, which saw Ghomeshi’s lawyers expose major inconsistencies in the complainants’ testimony during cross-examination. Henning refers to the Ghomeshi case multiple times, saying it “dramatically illustrates the value of cross-examination.”

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In his brief to the Saskatchewan court, defence lawyer John Williams calls C-51 “an apparent reaction by Parliament to the (Ghomeshi) verdict.” He says the judge’s reasons in the Ghomeshi case “give credence to the view that, had the complainants been apprised in advance of what was coming, the cross-examination almost certainly would not have produced the evidence that ultimately resulted in Mr. Ghomeshi’s acquittal.”

The Crown argued that C-51 was not a response to Ghomeshi, but to earlier Supreme Court of Canada decisions in R. v. Shearing and R. v. Mills, which addressed how records can be used in sex assault trials. But Henning expressed some skepticism towards this, and rejected arguments from Crown counsel that C-51 was simply an incremental change from existing laws that governed the use of third-party records.

“No previous legislation made the complainant a party to a hearing with notice of all records or questioning disclosed to the complainant,” he wrote. “The minimization in considering these provisions is not helpful in determining the complex effects and validity of this legislation.”

Henning wrote that there are already “legislative safeguards” to protect the rights of complainants during sexual assault trials, particularly when it comes to preventing improper lines of questioning about a complainant’s sexual history (including the “twin myths” that sexual history means the complainant should be less likely to be believed, or was more likely to have consented to the acts in question).

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“The social value of eliminating (improper questioning) cannot be overstated, nor the need to limit examination on material with a high privacy interest which could deter legitimate complaints from coming forward if not regulated,” Henning wrote. But he said such limits on cross-examination are already well established.

In an email on Thursday, Williams — the defence lawyer in the case — said the decision “affirms the fundamental importance of an accused’s right to a full cross-examination of a complainant, without unwarranted constraints.”

“In short, challenging the credibility of the Crown’s principal witness in cross examination becomes exceedingly difficult when you have to explain to that witness in advance how you propose to make that challenge,” Williams wrote. “The Supreme Court has noted that full cross-examination may be the only tool an accused has to challenge the truthfulness of his accuser. The court in A.M. recognized that these provisions would have blunted that tool.”