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We have seen a significant shift in the criminal justice system over the past two years that has and will continue to erode the ability of an individual’s right to make full answer and defence to allegations of sexual assault. The most controversial changes as proposed by Bill C-51 is to automatically exclude relevant evidence in the possession of the accused. Text messages, emails, pictures, video recordings, even thank you cards, that have any content related in any way to “sex” with the complainant will be presumptively inadmissible even though it involves the actual subject matter of the alleged sexual assault.
In 25 years of defending sexual assault cases, I have used successfully demonstrative evidence such as messages, cards and recordings that directly impugned the credibility of the complainant and in many cases established innocence. Whether the complainant remembers sending those cards, or messages, and fails to disclose same to the police or prosecution, is absolutely an insufficient bases to exclude these sources of relevant and important evidence from a trial of an offence with such serious consequences and stigma. If the government is successful to implement these changes, the defence will have to bring motions with full disclosure from the defence of all material to be relied upon in cross-examination with a formal application, factum and argument. The defence will have to serve the Crown and the complainant and her own counsel. Leaving aside that it is contrary to our criminal justice principles that the defence should have to disclose relevant evidence, and this legislation will most definitely require defence disclosure, what is most dangerous is the fact that the complainant will have standing at a hearing and will be represented by her own lawyer. This will unduly complicate the procedure, add incredible expense for any accused, and will certainly permit the complainant to have ample time and assistance to craft her own responses to the disclosed evidence ruining the spontaneous nature of answers in cross-examination. This alone will damage the fair trial process. Never should a complainant have the right to defence disclosure and then an opportunity to review and develop a way to explain the evidence away. This is so incredibly harmful to the right to make full answer and defence that it cannot be overstated that this legislation must be challenged as unconstitutional the minute it comes into force. Consider as well how this added process imposes significant barriers to access to justice. The costs associated with defending a sexual assault charge are high already never mind now adding in this additional layer of work. An accused must have counsel with experience in defending sexual assault cases in order to properly and fully advance the defence. Anyone accused of a sexual assault allegation must take it seriously and realize that they are not simple cases. There are increasing burdens on the defence now and shifts in public sentiment about sexual assault allegations espoused by special interest groups are insidiously having an impact on the Courts and prosecutions thus damaging the presumption of innocence, and the right to defend. Experienced and skilled defence lawyers know how to deal with these types of cases and will have to resort to the Charter to challenge this new proposed legislation.