Three Essential New Decisions From the Supreme Court: Decision #1

Blog by Arun S.Maini

The final word on the validity of criminal laws in Canada comes from the Supreme Court. And in recent weeks, the Court has issued three decisions which will have a profound impact on Canadians facing criminal charges, especially those accused of sexual assault.

Two of those decisions make life harder for those accused of sexual assault; one of them actually makes life a little bit easier after a conviction. These three decisions deal with the following issues:

• The new obligation of the defence to disclose its evidence to the Crown;
• The mandatory obligation to be registered as a sex offender if found guilty of sexual offence;
• The availability of a conditional sentence of house arrest rather than an actual prison.

This blog will deal with the first of these issues: the reverse disclosure requirement.

Defence Disclosure: the Case of J.J.

The J.J. case forms part of three major initiatives by the government that have the effect of tilting the playing field against those charged with sexual offences, or at least strongly give that impression to voters and those who believe that too many defendants “get away with it”:

• Preliminary hearings have been eliminated in almost all cases of sexual assault;
• Peremptory challenges to potential jurors, where the defendant has a limited say in picking the jury that will decide his fate, have been eliminated;
• The defence now has to disclose evidence in its possession to the complainant before the complainant testifies.

The J.J. case deals with this last point, called “reverse disclosure”.

The CBC once employed a star broadcaster named Jian Ghomeshi. He had a secret sex life in which he allegedly abused women he dated. He had a trial and was found Not Guilty because the complainants lied repeatedly in court, and the defence had the emails and text messages to prove it.

There was a public outcry among people who felt that someone accused of engaging in perverted and violent sexual activity should never be acquitted; or, to put it another way, those who proclaim that a woman who alleges sexual assault must always be believed. In part to cater to those concerns, the federal government immediately passed a law requiring the defence to disclose to the Crown, the court and the complainant any evidence in their possession that they might want to use at trial, including messages, emails, photos, etc. The idea is that if the complainants in the Ghomeshi case, and in future cases, could know in advance what evidence they might be contradicted with at trial, they could figure out what they would say about it before they testify, and not be taken by surprise in the witness box.

Of course, the government did not state its purpose in that blunt a fashion, that it was to tilt the playing field in favour of a conviction, but that is one effect of this law, in my opinion as an experienced criminal lawyer. Instead, the government speaks of enhancing the protection of a complainant’s privacy rights.

There are already strong protections of complainants’ privacy rights in the Criminal Code, including prohibitions on asking any questions in relation to a complainant’s prior sexual activity, including texts and statements, and the judge’s discretion to exclude irrelevant evidence. The new law goes much further, requiring basically that all evidence that can be considered a “record”, including photos, texts, and emails, be disclosed by the defence and subjected to a very strict multi-step vetting and filtering process before trial.

The final test of whether this reverse disclosure law is legal came in July, when the Supreme Court of Canada upheld it. The Court found that the law was fair and balanced the interests of the accused in defending himself, with the interests of the complainant in protecting the privacy of her communications, and getting a say in how they are to be used.

The Court was split 6-3, which is an indication of how controversial this new law is. It has been a fundamental principle of justice for hundreds of years that when faced with the overwhelming power and resources of the state, that an individual does not have to show his evidence to the prosecutor or to his accuser before trial. This principle has now been eroded, and will no doubt be further whittled away as advocates and activists demand that their concerns and interests be added to the trial of a defendant charged with a crime.

Needless to say, adding these complex and time-consuming requirements to a criminal trial has added to their length, their complexity, and their cost. Many individuals facing charges of sexual assault cannot afford the cost of an experienced lawyer, who invests a lot of time, knowledge and experience in preparing and litigating the case. Legal Aid is usually not willing to assist anyone except the destitute, and it gets more difficult to qualify for such assistance. So defendants charged in sexual assault cases are now waiting longer for their trial; those trials are taking longer and costing more to litigate; and the new laws are making it more difficult for them to maintain their innocence. Add to that the fact that more and more defendants are having to represent themselves at trial because they cannot afford a lawyer to represent them from beginning to end, and one can see why the justice system is struggling to deliver justice in a timely fashion.

In the next two blogs, I will discuss two other recent cases from the Supreme Court that affect those charged with sexual assault.

Please note that these laws and cases are complex, so I am simplifying them here to explain their purpose and effect, from the standpoint of a defence lawyer who represents people accused of the very serious crime of sexual assault. The opinions expressed in this blog are my own. Advocates of victim’s rights, and government representatives will of course have a different view. These are complex factors and layers of meaning which take up weeks of class time in law school, and which are beyond the scope of a blog intended for the public to get a basic idea of what is at stake.

If you or a loved one are facing criminal charges and need the advice of an experienced and skilled lawyer to help you through the legal process, call The Defence Group for a free consultation at 877-295-2830 or email us through the Contact Us link throughout our website.

Arun S. Maini is a criminal lawyer and former prosecutor with over 25 years of experience