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An Attack on the Right to Make Full Answer and Defence in Sexual Assault Trials

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Joseph A. Neuberger
Neuberger & Partners LLP

Growing public and media attention on the way sexual assault trials are conducted has increased the scrutiny upon defence lawyers and how these trials are conducted, with a focus on the way a complainant experiences the trial process.

Since new legislation was passed in Canada, by Bill C-51 in December 2018, there are new rules governing evidence and the cross-examination of complainants in sexual assault trials. These changes mostly altered the way that evidence must be vetted prior to trial but haven’t changed whether or not relevant evidence is admissible.

It has long been agreed upon that the general sexual history of a complainant is rarely relevant to the specific allegations of a sexual assault charge. Defence to an allegation must focus only on evidence that connects to the subject matter of the charge. In other words, unless the accused can show how their proposed evidence of prior sexual history is directly relevant to the accusation, and an issue at trial, it will not be admissible.  This is appropriate and consistent with preventing the abuse of complainants when testifying. That has not changed.

Evidence of prior sexual history must be relevant and rationally connected to the issues in the trial other than the twin myths.  As long as the evidence an accused person intends to rely on connects to some part of the allegations against them, the evidence is generally admissible to ensure their ability to make full answer and defence. The concerning changes due to the new legislation are; the new ability for a complainant to participate in that decision regarding what evidence is relevant, and hence admissible which in effect creates tri-party litigation and a general move to establish that any prior sexual history evidence is never relevant or admissible.

The impact of a complainant having his or her own lawyer, with standing at the hearing with an ability to cross-examine the accused is a serious infringement on the rights of an accused person and will inevitably result in delays in the trial and substantial costs to the accused to not only fight the trial but now a protracted motion for the admission of usually relevant and necessary evidence.  A further impact is in relation to communications between the parties that are directly related to the subject matter of the allegation which previously has never been subject to defence disclosure let alone to have it vetted on a motion by a trial judge with the complainant having full participation.  This aspect of the new legislation is still unclear and needs to be tested in a proceeding, however, at this time, it appears the process requires the defence to disclose any and all communications on the motion, which essentially allows the complainant to have the defence prior to trial and prepare with the evidence with her or his own counsel. This is an unprecedented intrusion into the right to make full answer and defence.

In the criminal process, a defendant is presumed innocent until found guilty and cross-examination has been deemed the best “engine” to discover the truth. While being questioned about sexual interactions is uncomfortable, for both the complainant and the accused, it is a necessity in a trial for an alleged sexual assault.

While everyone involved in a court proceeding has the right to dignity and compassion, the accused’s right to full answer and defence is essential in order to prevent innocent people from being incarcerated. It is important that our legal system upholds the foundations of a fair trial no matter how uncomfortable that may be.

The fact that some evidence may undermine a complainant’s veracity does not make that evidence unjust nor should it be an onus no the defence to disclose the evidence prior to trial and vet it before a judge so long as it pertains to the actual allegations in contention. Despite the current popular belief, not all accusations of sexual assault are true and the risk of innocent people going to jail should not become a casualty of “war” in a social movement.  Many aspects of this new legislation is very damaging to an individual to be able to properly defend themselves and challenges to this new legislation will be necessary in order to protect against wrongful convictions.

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