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Photo by Nathan Denette / THE CANADIAN PRESS

Supporters of this bill have dismissed it as mere “housekeeping” to bring the Criminal Code up to date with decisions already made in the Supreme Court. Those who oppose it, like Neuberger, have called it a “catastrophic” shift in rules of evidence that will increase wrongful convictions. Evidence directly related to the sex act in question would have to be disclosed in advance. The debate was punctuated with the appropriate amount of vexation towards such dangerous legislation. While Marin argued that the bill would not have blocked any evidence used in the Ghomeshi case, he failed to acknowledge the devastating effect of giving a complainant advance warning of contradictory evidence. As Neuberger repeatedly pointed out, the complainant would have legal counsel to assist in blocking those texts or emails from trial and, with time to plan, could “tailor their evidence” around the inconvenient messages.

Photo by Seth Wenig / AP

The element of surprise is key to exposing lies under cross-examination but it can also expose flaws in memory. In cases of sexual assault, which Marin correctly noted usually have no witnesses, it is not just the complainant’s credibility that we need to test. As I pointed out in the debate, a complainant may honestly believe he or she is telling the truth but the evidence shows that memory to be unreliable.

I was amused to see Marin dismiss me as a “loudmouth,” but shocked he attributed quotations to me that were neither words I said nor representative of my position. I was accused of saying there was “data” and “lots of stuff out there” showing that false accusations were prolific. The only statistical assertion made was that false accusations are almost never prosecuted. Journalists who fabricate quotations don’t often suffer consequences either. We don’t actually know the statistics for sexual assault or for false accusations. They are impossible to calculate with any certainty. One thing that everyone agreed upon was that Justice William Horkins arrived at the correct decision in the Ghomeshi trial.