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If this bill passes, defence lawyers will be more restricted in the evidence they can lead or the case theory they can propose (defence often taking its cue from Crown strategy). The defence’s prior disclosure may also identify complainant landmines, permitting the Crown to plot a course around them. There’s also a risk that a complainant who participates in the closed hearing (to rule on an email or text’s admissibility) will be tipped off on what to say or not say in court. Those complainants who have no problem lying anyway may simply tailor their in-court testimonies, once they’ve been made aware of the evidence that the defence plans to lead. Anthony Moustacalis, head of the Ontario Criminal Lawyers Association, told me, “It’s using the power of the state to help prepare the Crown to prosecute the accused at the accused’s expense.”

This is an appalling bill that will make it even more difficult for accused individuals to provide a full and robust defence

Moreover, under C-51, if the defence doesn’t seek to introduce such sexual-nature communications as evidence, it’s a likely signal that it has none, and the Crown can be fairly confident that the case will be little more than “he said-she said.” This forced revelation of the defence’s cards essentially makes the defence an unwilling player for the Crown team.

Retired family-law lawyer Grant Brown believes C-51 is so misguided that it is tantamount to a repeal of the presumption of innocence, because it so weakens the defence’s ability to defend himself. He wrote to me: “Canadians have a charter right against self-incrimination, which entails that an accused is not required to speak to the police or to testify at a trial. Requiring defence disclosure comes perilously close to revoking that Charter right.”

This is an appalling bill that will make it even more difficult for accused individuals to provide a full and robust defence. If defence disclosure is such a great idea for the administration of justice, why should it only apply in cases of sexual assault? That was a rhetorical question. Only in sexual assault cases can one be nearly certain that the law will be tilted heavily in favour of finding men guilty of the offences of which they’ve been accused.

National Post

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