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Joseph A Neuberger, Neuberger & Partners LLP
Criminal Defence Lawyers
Changes in Canadian policy happened well before the “MeToo” movement. There have been advocates pressing for changes through “re-educating” judges and intervening in appellate courts for decades. In Canada pressure was put on the justice system by Robyn Doolittle’s “Unfounded” series of articles in the Globe and Mail.
That series talked a lot about numbers in terms of how many cases don’t result in charges and how many charges don’t end with convictions. In criminal cases every case is unique and cannot be approached mathematically. Justice requires that the merits of every charge be heard impartially and there is no benefit to laying charges without a proper investigation.
It is very important that the public maintain faith in the justice system and we have open, public courts for a very good reason. Transparency is an integral component in maintaining fair trials. That said, the public can easily be whipped into a frenzy when trial processes aren’t explained properly or fully.
The Supreme Court of Canada does not hear every appeal. The majority of appeals are resolved in the provincial courts. After a rapid volume of sexual assault appeals in early 2020, which ruled in favour of the Crown, the biggest impact on the provincial appellate courts was the detailed ruling in R. v. G.F., 2021 SCC 20. In G.F., the Supreme Court reflected on their recent rulings and discouraged the lower courts from overturning convictions unless there was a clear and unambiguous problem with the trial judge’s written reasons. This has resulted in the reality of ensuring that every defence for a sexual assault trial must be meticulously prepared and executed at trial. In other words, you must get it right the first time because chances of success on appeal are slim.
Changes to the process of sexual assault trials also took effect with new legislation passed in December 2018. All defence evidence that has a sexual content or are considered records with a privacy interest must now be vetted prior to trial and complainants are provided with legal counsel before being cross-examined. Simultaneously, preliminary hearings were eliminated hampering our ability to test and challenge the Crown’s evidence prior to trial. The loss of the prelim negatively affected both the Crown and Defence. However, I have been able to use the new 276/278 motion process to effectively expose the weaknesses in the allegations prior to trial and have had a number of serious cases withdrawn after completing the pre-trial motions successfully. Just this past fall we had three major sexual assault cases withdrawn after succeeding on these motions.
Although the SCC has said that prior sexual history evidence is rarely relevant, I have seen the opposite. When framed properly and grounded in the evidence of the complainant, there is not one case I have defended in which past sexual history evidence has NOT been permitted for specific reasons. Because I provide written submissions for all cases, I am able to ensure that the evidence is not misused and the accused evidence is not subjected to “uneven scrutiny”. Thus, the way to deal with the issue of “uneven scrutiny” is to draft detailed submissions rather than simply make oral submissions alone.