Article content continued

But Bill C-51 changed the Criminal Code to make that more difficult. Introducing that kind of evidence now requires a hearing before a judge, where the complainant can participate and even question the accused. That’s true even if the records aren’t of a sexual nature, as the defence asserted in the Regina case.

The defence argued that those changes compromise the right of accused persons to properly cross-examine their accusers, since the complainant would be able to change their testimony at trial after learning about the defence evidence. It would become more difficult for the defence to draw attention to contradictory statements.

“The applicant argues that his rights with respect to making full answer and defence as guaranteed by the Charter are infringed by this section in that it potentially limits or eliminates a legitimate avenue of cross-examination,” said the decision.

“This would be so because the complainant will have the opportunity to plan and adjust testimony to counter the material.”

The defence explicitly pointed to the trial of Ghomeshi, a former CBC radio broadcaster, saying such evidence was used with great effect in that case.

Much of the argument centred on how the new provisions related to long-recognized protections for sexual assault complainants, intended to prevent undue privacy violations and reliance on “rape myths.” Records in the possession of a third-party, such as counselling or psychiatric records, are already subject to similar restrictions.