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Bill C-51: on sexual assault, records and the right to a fair trial

It seems that news of sexual assault is everywhere you look these days. With the fall of Hollywood mogul Harvey Weinstein following allegations of sexual misconduct and the ensuing cascade of allegations, the issue of sexual assault and harassment is becoming more and more pervasive.

In Canada, the courts have long been criticized for failing complainants and re-victimizing witnesses throughout the court process. Parliament is currently working on the issue in Bill C-51, which proposes a host of amendments to the Criminal Code, including those addressing evidentiary issues in sexual assault cases. One clause in particular in the bill that deals with disclosure of records within the accused's possession is attracting a lot of criticism.

As it stands, an accused person who wants to use a complainant's records must go through a third party record application under s. 278.1 of the Criminal Code. This means that documents such as hospital records, counselling records and CAS records will need to be vetted by a judge before they can be given to the accused. A judge has to balance the privacy of the complainant with the accused's right to a fair trial and full answer and defence.

Bill C-51 is proposing to require this process for any document in the hands of the accused. In their recently published book Prosecuting and Defending Sexual Offences, Daniel Brown and Jill Witkin outline how so long as the documents were not wrongfully taken, records in the possession of the accused do not fall within the third party records regime. Whether they can be used will be determined by the trial judge, based with on their relevance and appropriateness to the cross-examination. In other words, if a person already has a record, such as a text or letter, they can use it to cross-examine a complainant at trial, so long as it is relevant.

The proposed change would have any document be subject to judicial vetting, even if it is not a typically private document. So if the accused had letters, e-mails, texts or other social media sent by the complainant, they would need to disclose this to the court and the Crown, and then the judge would make a determination as to whether it is admissible into evidence.

While this proposal is meant to avoid a complainant being ambushed at trial, the approach violates a fundamental principle of criminal law that places the burden of disclosure on the Crown, not on the defence. The defence has no obligation to provide the Crown with the evidence it anticipates bringing at trial (with certain exceptions, such as an alibi). Here, the scope of the records is so wide that it includes documents that are now outside of the scope of third party records and may be as innocuous as a letter that does not include any personal information. The new proposal seems to draw on the experience of the Jian Ghomeshi trial, where the defence used e-mails that the complainant did not remember sending to test her credibility and reliability. What this approach would do is permit the Crown to view any such documents and adjust their case accordingly, allowing the complainant time to explain any inconsistencies. The privacy interests of the complainant may well not be outweighed by the accused's right to full answer and defence, but once the record is disclosed, it will be too late.

It is clear that the courts need to work on making the criminal justice system accessible for complainants in order to encourage the reporting of sexual offences. However, any approach needs to balance the need to protect complainants with the rights of the accused and the Charter. As Chief Justice McLachlin recently said at a speech to the Criminal Lawyer's Association, we need to find a balance between the right to a robust defence and the fundamental principles of dignity and respect for victims and complainants. As I argued in my post about judicial education on sexual assault, the Attorney General would be better suited to fund independent legal advice for complainants, as well as more resources for Crowns to prosecute these types of cases. Instead, they have proposal that will likely attract a Charter challenge given the unprecedented disclosure obligation and the impact on the accused's ability to use documents that they are lawfully entitled to possess. The strategy of requiring disclosure of records held by the defence will not help to solve the pervasive problem of sexual offences and Parliament can do better to find a more meaningful solution.

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