It seems impossible to open a newspaper without reading about sexual assault. With the popularity of the #MeToo campaign, the focus of the current cultural conversation is on the unfair treatment of victims in our criminal justice system. In an attempt to address these perceived injustices, the Canadian government has introduced amendments to the Criminal Code in Bill C-51 which seek to provide a broader role for complainants in sexual assault trials. However, these fundamental changes will severely compromise the rights of accused parties to a fair trial.
One particularly troubling amendment is an entirely unprecedented disclosure obligation that would be placed on the accused. In every other criminal trial, the disclosure obligation is placed only on the Crown. If this bill becomes law, an accused person will be required to disclose to the Crown, and the complainant, any records they intend to rely on to challenge the complainant’s credibility or reliability. This includes paper and electronic ‘documents’ that are already in the accused’s possession. Items that are commonly part of the evidence in sexual assault cases, such as e-mails and text messages, could be captured by this provision. This would essentially reveal the defence strategy prior to trial and allow untruthful complainants to tailor their evidence to support an untrue version of events. The most effective way to expose a dishonest witness is to catch them off-guard by confronting them with evidence of communications that contradict their testimony. The new disclosure obligation would eliminate the ability to do so. It will be crucial for defence counsel to challenge the constitutionality of this amendment, which interferes with the Charter-protected right of an accused to make full answer and defence.
This disclosure obligation will likely burden on an already overloaded court system. Under the new provision, even records in the accused’s possession will not be admitted at trial without an application before the judge – an additional time-consuming and expensive procedure that will delay the hearing of the case, and place demands on judicial resources.
The new amendments also allow complainants to have a larger role in the prosecution and influence decisions about it should proceed. This is contrary to the fundamental principle that the Attorney General is an independent and neutral body with a mandate to enforce the law, and that the complainant is a simply a witness, rather than a party to proceedings. Allowing complainants to determine what evidence should be heard undermines the court’s truth-seeking function. In many cases, victims of sexual assault sue alleged perpetrators for civil damages. The enhanced status of complainants under the new provisions gives them an opportunity to use the power, influence and resources of the Attorney General to gather information to use in subsequent civil proceedings for financial gain. Disagreements between the Crown and the complainant on issues such as what evidence should be admitted, will inevitably drag out cases, increasing the length of trials.
The increased role of complainants could also impact the accused negatively from a funding perspective. The new provisions include a right of the complainant to have their own counsel. If complainants lack the financial means to retain counsel, this will result in government-funded counsel for complainants. Legal Aid is notoriously underfunded and can only provide funding to a limited group of individuals. There is a real possibility that funding for counsel could be reallocated from accused parties to complainants. There is also a serious concern about the role of private counsel representing the complainant in the criminal justice system, and the extent to which this will influence the process, witness preparation and case management. The Crown has a duty to conduct cases in the interest of justice; a private lawyer retained by the complainant need only advocate for their client.
Bill C-51 is intended to remedy perceived injustices faced by victims of sexual assault in the criminal justice system. However, the proposed amendments, if passed unaltered, will fundamentally alter the rights of the accused. Such changes should not be taken lightly and ought to be the subject of thoughtful deliberations and constitutional challenge.
We have received hundreds of comments in response to Ms. Mamo’s article (see here). Lockyer Posner Craig does not support or endorse any of these comments and has posted them for discussion purposes only.