Following the public outcry over the Jian Ghomeshi case, some legal scholars and sexual assault survivor advocates lauded changes made to the Criminal Code that would prevent defence lawyers from surprising complainants at trial with past emails or text messages with the defendant.
However, those changes have proven frustrating for many defence lawyers, and some legal experts say they’ve significantly delayed and complicated sexual assault trails and made them more unfair for defendants.
Now, experts are concerned that the high-profile trial of five former World Junior hockey players accused of sexually assaulting a woman in 2018 may also lead to legislative changes that could further complicate the system.
“I think there are many who … would be concerned or very troubled if some or all of the players were acquitted, as there were many in the public who were concerned or troubled by Ghomeshi’s acquittal,” said Lisa Kelly, an associate professor of law at Queen’s University.
She says her concerns are about what she called “this kind of reactive lawmaking.”
Closing arguments wrap at hockey sexual assault trial
In 2016, Ghomeshi, the former CBC Radio host, was acquitted of all charges relating to sexual assault allegations made by three women.
During the trial, Ghomeshi’s lawyer, Marie Henein, surprised some of the complainants during cross examination by confronting the with emails they had sent to Ghomeshi, suggesting inconsistencies in their testimony about contact they’d had with him following the alleged assaults.
In 2017, Parliament introduced bill C-51 that amended sections of the the Criminal Code, in part, to remove deterrents that might prevent victims of sexual offences from coming forward.
The amendments, referred to by defence lawyers as the “Ghomeshi rules” or “reverse disclosure,” meant that defence lawyers could no longer surprise complainants with such communications.
Now, if the defence wants to include them at trial, they must make an application to the judge, who determines their admissibility. Complainants can then hire their own counsel to get access to these communications and also argue whether they should be admitted as evidence.
“It prevents trial by ambush, which we really shouldn’t be having in Canada,” said Daphne Gilbert, a law professor at the University of Ottawa. “The surprise factor shouldn’t be a part of how trials get won or lost.”
Often, these records are letters or texts that sometimes contain sexual content that should be vetted under prior sexual history before coming to trial, Gilbert said.
“But because there was no screening mechanism, all of that was coming in without that vetting,” she said. “It was inappropriate evidence all along that should never have come in, but there was no way to catch it ahead of time.”
Yet some criminal defence lawyers argue that these rules violate their clients’ Charter rights to a fair trial and eliminate a potentially important legal tool to challenge the credibility of the complainant on the spot.
Vancouver-based criminal defence lawyer Sarah Leamon says the amendments definitely have impacted the way defence lawyers handle sexual assault cases.
“Before, you could just hang on to those [communications] and not disclose it and present them at a nice, pivotal point in your cross-examination to have the effect,” she said. “And now, that element of surprise is undermined.”
Defence lawyer Nick Cake says the amendments give the complainant an opportunity to prepare and shore up their evidence.
If the communications are relevant to the defence, he says they should have the right to use them without the application process.
The amendments mean the defence now has to disclose the communications it wants to use, but also swear out an affidavit that outlines what it will do with those communications and why it’s relying on them, Cake said, noting that this means clients can be cross examined on that affidavit.
“It runs contrary to the principles of fundamental justice that our legal system is based on,” he said. “If you make this application … you open your client up to that loss of the right to remain silent and you have to show your hand.”
In 2022, the Supreme Court upheld the constitutionality of amendments, ruling that “the broad principle of trial fairness is not assessed solely from the accused’s perspective; fairness is also assessed from the point of view of the complainant and community.”
This decision meant “women can breathe a sigh of relief,” Elizabeth Sheehy, a law professor emerita for the University of Ottawa, wrote in a column for the Globe and Mail shortly after the ruling. “Parliament and the Supreme Court have taken a vital step to protect complainants.”
Lisa Dufraimont, a law professor and associate dean at York University’s Osgood Hall Law School, says these amendments help ensure complainants’ voices are heard regarding the admissibility of evidence that could violate their privacy and dignity before it’s aired in court.
“There’s value in that, and that really is the purpose behind the legislation and I think that’s laudable,” she said.
The bigger problem with these amendments and application processes, Dufraimont says, is that they can slow down trials at a time when the Supreme Court of Canada has been trying to move them along and generally reduce delays in the criminal justice system.
Dufraimont says it’s become very challenging for judges to keep sexual assault trials on the rails when communications between complainants and defendants come up all the time as evidence in just about every sexual assault case.
Criminal defence lawyer Peter Sankoff says the new amendments mean sexual assault trials are putting enormous stress on the system and he isn’t convinced they’ve done anything positive for anyone when it comes to the treatment of records.
“The biggest problem is that every sexual assault trial has become a lengthy ordeal, and that’s not good for the accused or the complainant.”
Sankoff says he believes most of the material that defence lawyers submit for applications are text messages and communications between parties and says judges are spending much of their time scrolling through text chains that are thousands of pages long.
“It seems insane to me that anyone thinks that a lengthy vetting process through this is actually helping anybody.”
Sankoff says he’s concerned the World Junior sexual assault trial could prompt more of what he calls “reactionary legislation,” particularly as it pertains to the definition of consent, something that’s been at the centre of the trial.
He says it wouldn’t shock him if he started to see new laws that make the definition of consent even more grey, for example, by making presumptions that consent could not be given for certain sexual acts.
Kelly, the associate professor of law at Queen’s, says that when Parliament acts quickly to make or change legislation in response to public outcry, it doesn’t necessarily allow the careful weighing of consequences for various parties in the criminal justice system.
She says that if Parliament decided to change the definition of consent based on a single case, it could, like the Criminal Code amendments following Ghomeshi’s trial, have “significant consequences for other cases.”
