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When Bill C-51 was passed by Parliament in December 2018 it changed rules of evidence in sexual assault trials. The most egregious changes for the accused is that all records in their possession and which they may wish to use at trial now have to be disclosed in advance, with the complainant having access to those documents. Additionally, if the accused successfully obtains a ruling for disclosure of third party records, like medical or therapy records, the defence now has to make a separate application in order to actually be allowed to use the third party records at trial.
A recent decision from Saskatchewan reveals that some prosecutors have now decided that even a standard sexual assault kit performed on the complainant at a hospital is a third-party record and does not have to be disclosed to the accused’s lawyers.
The decision, R v Oakes, 2020 SKPC 23 (CanLII), states that “The Crown argued that the sexual assault kit and forensic analyses of any samples seized were pieces of personal information created with a reasonable expectation of privacy.”
Defence argued that “the Crown’s refusal to provide this was the result of a fairly recent policy change, not founded in law.” The application judge, Justice Kovach, noted the following:
“Mr. Robertson [the prosecutor] advised the Crown’s view of the law had changed. I suggested that there should be some legal analysis to support the changed legal interpretation and change of policy, and requested this be provided to the Court. Mr. Robertson asked for time to provide this and on April 7, 2020, served and filed a Brief of Law. In this Brief of Law, Crown Counsel spoke of a document entitled, ‘Child and Family Medical Services Report’ and argued it was a medical report. However, in my view, Crown counsel did not advance any legal reasoning or argument that the sexual assault kit, in and of itself, should not be disclosed.”
In the full analysis, Justice Kovach points out that the sexual assault kit evidence was obtained by the hospital for the purpose of providing it to the police and thus the forensic products of the kit did not hold an expectation of privacy. The section of the Criminal Code which requires applications for records specifies it only applies to records with “an expectation of privacy” and that threshold cannot be ignored without violating the rights of the accused.
In respect to evidence like a sexual assault kit obtained from a complainant the Criminal Code specifically states “does not include records made by persons responsible for the investigation or prosecution of the offence.”
Justice Kovach recognized that hospital records may sometimes include other, non-forensic information which may have to be redacted and proposed a solution:
“By way of future reference, it might be advisable for medical personnel to prepare two sets of records: One dealing with only the sexual assault kit, and a separate record dealing with clinical observations and treatment of the Complainant.”
This recommendation is also concerning. Any statements made by the complainant about the subject matter of the charge in the course of the investigation must be recorded and turned over to the defence. The concept of creating two sets of records creates a perception of selective note taking and hence disclosure that may impact full answer and defence. If this practice is followed and standardized it will no doubt lead to defence motions for a full set of records that are intricately connected to the investigation of the alleged offence.
Further, any attempt to create policies that would bar the defence from accessing crucial records, such as sexual assault kits, should be disturbing to every member of the legal system and goes well beyond what Bill C-51 was meant to accomplish.
Clearly the new regime since Bill C-51 was passed needs to be addressed as a constitutional question and be fully adjudicated to ensure that all Canadian’s are receiving proper disclosure and fair trials. The rules of evidence should not be left in such a state of ambiguity that such basic, essential evidence was being withheld from the accused.