OTTAWA–Canadians’ right to a fair trial would be jeopardized by Conservative legislation allowing anonymous testimony in court, legal experts say.

It would be up to a judge to decide whether a witness could testify anonymously, and whether the accused has the right to know the identity of their accuser, under the Conservatives’ so-called Victims’ Bill of Rights.

While Justice Minister Peter MacKay’s office said the changes to the Criminal Code simply codify common practices, some lawyers say it could prevent them from effectively arguing their client’s case.

“It can never be acceptable to deny the identity of witnesses to defence counsel,” said Bill Trudell, with the Canadian Council of Criminal Defence Lawyers. “It would be fundamentally wrong.

“You don’t sort of play peek-a-boo with evidence.”

Bill C-32 amends the Criminal Code to allow judges to permit anonymous testimony, should it be requested by either the witness or Crown attorneys on their behalf.

The wording of the bill requires the judge to take into consideration a number of factors in making that decision, including the public’s interest in knowing the details of an offence, whether the witness requires anonymity for their security, and the nature of the offence. First in the list, however, is the right to a fair trial.

Peter Rosenthal with the University of Toronto’s law faculty said that requirement doesn’t go far enough.

“It’s not enough because the defence counsel, for example, and the judge that’s adjudicating may not know enough about the relationship between that witness and other witnesses or aspects of the trial to determine (the anonymous testimony’s) effect on the trial,” Rosenthal said.

“It would interfere in ways you couldn’t calculate with the right to a fair trial.”

The Star requested an interview with MacKay on Wednesday but the minister was unavailable.

In a statement, spokeswoman Paloma Aguilar said the legislation simply codifies a common practice in Canadian courtrooms.

“It is up to judges as to which precautions might be needed to protect witnesses’ identities,” Aguilar wrote.

“Allowing a witness to testify under a pseudonym would require a special order from a judge that has taken a number of factors into account including the right to a fair trial.”

When asked if that would mean the defence could be kept in the dark on a witness’s identity, Aguilar said, “It would be up to the discretion of the judge to determine those decisions.”

The so-called Victims’ Bill of Rights, introduced by MacKay last week, has long been promised by the Conservative government.

Critics argue the legislation lacks substance, and is little more than a public relations exercise for a government that has painted itself as tough of crime and standing with victims.

Trudell said that accused the government of being “blinded” by that law and order agenda — to the detriment of the system they say they’re trying to strengthen.

“This prime minister talks about changing the system so it’s not for the criminals, it’s for the victims. That’s totally ridiculous,” Trudell said. “The system is there to decide guilt our innocence. And until this government starts to respect the system, this war is going to continue.”

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NDP Justice Critic Françoise Boivin said the bill still requires close scrutiny, including the provisions around anonymous testimony.

“The devil is in the details,” said Boivin, adding she’s not sure why the government would have to codify the practice if it’s already being widely used.

The parliamentary committee tasked with studying Bill C-23 is expected to begin its work in the coming weeks.