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Normally, only the Crown has to disclose their evidence ahead of time. But the bill sets up an application that requires the defendant to get a judge’s ruling on the admissibility of records they possess that relate to a complainant. (Such a process is already in place for records held by a third party, such as a psychologist.)

Photo by Adrian Wyld/CP/File

The process would apply to “any form of record that contains personal information for which there is a reasonable expectation of privacy,” such as diaries, medical records, and possibly even text messages, emails and social media messages.

“That’s unprecedented in Canadian criminal legal history,” said Breese Davies, a Toronto-based defence lawyer who was one of many to testify before the Commons justice committee studying the bill.

“There are some areas in which the defence has to disclose some amount of their theory or some amount of an argument they may make, but there’s no other context in which the defence has to disclose to the court ahead of time, and more importantly to the complainant ahead of time, what information and evidence might be used to cross-examine them,” she said in an interview.

Defence lawyers repeatedly told the committee the bill effectively removes their ability to expose inconsistencies in a complainant’s evidence, as disclosing the records allows prosecutors to adjust their case to what’s in them.

The Canadian Bar Association said it “questions the constitutionality of creating this disclosure obligation on an accused person, and its potential impact on the Charter-protected right of an accused to make full answer and defence.”