According to the Government of Canada’s website it is, “Legislation introduced by the Minister of Justice and Attorney General of Canada on June 6, 2017 [that] reflects the Government of Canada’s ongoing commitment to ensure that Canada’s criminal justice system protects Canadians, holds offenders to account, shows compassion to victims, and upholds the Canadian Charter of Rights and Freedoms.”
Advocates for those falsely accused of sex crimes have a different interpretation. While the Bill is meant to “ensure that victims of sexual assault and gender-based violence are treated with the utmost compassion and respect”, it does so at the expense of the rights of the accused. Most notably with regard to the “rape shield” provisions.
A “rape shield” law (sections 276 and 277 of the Canadian Criminal Code enacted in 1982 and expanded in the early ‘90s) is one that prohibits the defence counsel from introducing evidence or cross-examining rape complainants about their past sexual behavior. The idea behind this was to protect victims of sexual assault while still preserving the rights of the accused.
Under the new terms of Bill C-51 the “rape shield” will be expanded to include communications of a sexual nature or communications for a sexual purpose between the defendant and the complainant either before or after the alleged assault.
These changes have been dubbed the “Ghomeshi rules” as they come on the heels of the very public Jian Ghomeshi trial- in which several women came forward with claims of sexual assault against a well known radio personality. Ghomeshi was ultimately acquitted due to messages that the women had sent him prior to and after the alleged assaults took place.
How Can This Lead to Wrongful Convictions?
What the change means, essentially, is that the defendants will now have to apply through a pre-trial hearing to use these messages at trial. This can lead to wrongful convictions in two ways:
1) By giving the complainant access to “unprecedented disclosure” well in advance of the trial.
According to an article in AdvocateDaily.com, the bill will diminish access to justice by giving complainants an unfair advantage at trial. They will now have months to prepare testimony with their lawyer, with full knowledge of what evidence the defence will be using to cross-examine them. Frankly, this also gives them time to fabricate their story to align with the evidence.
2) By placing an undue financial burden on the defendant.
Trials are already costly and this additional hearing increases that burden. And, according to Joseph Neuberger, where sexual assault cases make up about 60% of his practice, “…this may prevent people from bringing these applications because they don’t have the funds. So it will raise very significant access to justice issues,”
In light of the #metoo movement there has been a lot of pressure put on the government to seek convictions. This Bill is a feeble attempt to do that, and it goes against the defendants right to a fair trial. It cannot, and it will not be tolerated. As Neuberger promises at the close of the aforementioned article, “It is not well thought out and creates a barrier to justice. It will be fought all the way to the Supreme Court.” You can bet without a doubt that Neuberger and Partners will be at the forefront of this fight.