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The Ghomeshi rules: Bill C-51 creates unprecedented case of reverse disclosure

Earlier this month, Justice Minister Jody Wilson-Raybould introduced legislation to modernize the Criminal Code. The new legislation, Bill C-51, would repeal sections of the Criminal Code that have been found unconstitutional, remove outdated offences and bring written sexual assault law up to speed with court decisions.


At least, this is what made it into the headlines. Vice reported that “Updates to Canada’s criminal law will legalize duels and permit pretending to practise witchcraft,” CTV’s headline read “Government bringing sexual assault law up to speed with the courts, times” and the headline in Metro News read “Duels, 'crime comics' and witchcraft: The battiest laws being scrubbed from the Criminal Code.”


So, funny, old-timey laws that have not been relevant since the turn of the century will be removed from the Criminal Code, sexual assault laws will be updated to clarify the well-established common law principle that an unconscious person cannot consent to sex and clearly unconstitutional laws will be scrubbed from the books.


This is all good even if it is not the ambitious reforms our criminal justice system needs. But Wilson-Raybould should not be patting herself on the back for grabbing the lowest of the low-hanging justice fruit. This is especially true given that not all the unconstitutional laws will be repealed. Take mandatory minimum sentencing, for example. In 2015, the Supreme Court found some minimum sentences violated the Charter and struck down the mandatory sentencing provisions. Wilson-Raybould’s new bill was silent on those unconstitutional laws. I suppose unconstitutional sentencing laws for gun crimes are less funny and more politically problematic than crime comics and witchcraft.


Beyond the humour and incoherence of the new legislation there was a significant change to sexual assault laws buried in the middle of the bill. This proposed change was not just about modernization. It was not just a simple update. And it made its way into few new headlines.


Under the new law, an accused person will be required to disclose to the Crown and the complainant any records that will be used to challenge the complainant’s credibility or reliability.  


Let’s cut to the chase — these are the new Ghomeshi rules.


In the Ghomeshi trial, defence counsel was in possession of various emails, text messages and other electronic records that contradicted large sections of the complainant’s evidence. The inconsistencies between the complainant’s evidence in court evidence and the private messages played a large part in Ghomeshi’s acquittal.


People did not like that.


So, now, if the defence has a record that shows the complainant is lying or misrepresenting the evidence, that record must be disclosed in advance. A lawyer is then appointed for the complainant who is granted standing to argue for suppression of the defence evidence.


In other words, the legislation will tip off a liar that records exist exposing their lie and then gives them a chance to come up with an explanation.


The new law creates an unprecedented case of reverse disclosure. In all other cases, it is the state that must disclose evidence, but not anymore. Now, the defence must not only disclose its evidence and litigation strategy but must also argue to admit evidence that would otherwise be relevant and material.


There are serious constitutional questions about this radical new law — but not according to the government.


In its Charter Statement defending the new bill, the government argues that this is just like the Supreme Court case of R. v. Mills — so everything is fine.


In Mills, the court upheld Criminal Code amendments from the 1990s that governed the forced disclosure of private records relating to the complainant held by third parties. Mills was about preventing defence fishing expeditions for private information through the coercive power of a subpoena.


The new law is nothing like the case of Mills. The new law applies to relevant and otherwise admissible material already in the accused’s possession. The accused is not relying on subpoena and forced disclosure. There is no fishing expedition. There are not the same privacy implications as in Mills — that horse has already left the barn.


Wilson-Raybould’s Charter Statement creates a false analogy to justify a major and potentially unconstitutional change in criminal procedure. The Charter statement is otherwise very thin gruel — devoid of any meaningful analysis or substance.


So, in the end, Wilson-Raybould has sold us a bill designed to modernize the Criminal Code and repeal unconstitutional laws that actually leaves unconstitutional minimum sentencing on the books and makes wrongful criminal convictions easier.


In other words, this is the perfect Harper Conservative justice bill: There are major changes to historic criminal law principles deep within the proposed legislation; the buried changes are a clear reaction to a highly public and unpopular court case; and the constitutional defence of those changes is non-existent.


But let’s ignore that because at least we can all practise false witchcraft free from prosecution.

  • Mutual Discovery in Other Jurisdictions

    William Pitcher
    I understand there may be constitutional issues, but don't jurisdictions such as California have mutual discovery? Would that be considered problematic by Canadian standards of jurisprudence? I don't profess to know what the answer is, but it seems there is a challenge that exists in sexual assault cases that is not as pronounced with other crimes given the murky issue of whether consent was given. So, mutual discovery may not be the ideal solution, but I feel something needs to be done. Do you have alternative recommendations?
  • not a lawyer, just an interested party...

    Karen Straughan
    "don't jurisdictions such as California have mutual discovery? Would that be considered problematic by Canadian standards of jurisprudence?" Yes. And by many states in the US, if I recall. The biggest issue for me is that the complainant and/or her personal attorney will have the right to be present at the rape shield hearing. Disclosing to the Crown is different. The complainant is neither the Crown's client nor a party to a criminal trial--they're just a witness. The Crown isn't supposed to disclose any evidence revealed to them (in any manner) that the witness doesn't already know about. Doing so would taint the witness's testimony--a big no-no, from what I gather. You could argue that the Crown in the Ghomeshi trial would have been tipped off enough to know not to open certain lines of questioning on direct examination. Crown had no ability to object to any of the evidence introduced by defence because Crown itself had opened the door by asking complainant Decoutere, "what did you do after the assault?" and she answered, "I 100% absolutely completely avoided him from the moment I got back home." Her testimony is evidence, and that evidence can (must) be tested. There were no grounds for Crown to object to defence introducing the love letters and texts/sexts and emails and bouquets of flowers, etc, that contradicted her answer. If Crown counsel knew of their existence, they might have avoided certain lines of questioning that might open the door (I would hope they'd be ethical/honest enough to drop the case). But with C-51, the complainant and/or her personal counsel (who is allowed to prep their client) will have access to that evidence.
  • Crown counsel

    M Engley
    The "records" referred to in the section are the private records of the complainant - that is, medical records, counselling records, etc that are subject to 278.1 if the defence wants access to them. In the event the accused has those records already (either illegally or legally) the new sections require an admissibility hurdle, similar to proving the relevance of prior sexual acts. I fail to see how this is relevant to Ghomeshi as the emails the complainants were confronted with would not have been considered private records as per this section.
  • It Undermines Diligent Defence

    Articling Student
    Are you sure about that? The way I read the proposed language, its ANY form of record containing personal information with an expectation of privacy. That's pretty broad, and medical or counselling records are just specifically enumerated as qualifying under that criteria.
    Its a pretty broad sword for the Crown.

    Per the Bill:

    Definition of record
    278.?1 For the purposes of sections 278.?2 to 278.?92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
  • citizen

    Allan Kirk
    Yes,this is a VERY significant problem. Once, the strength og religious conviction meant that swearing on the Bible to tell the truth was an efficacious requirement. Telling the truth is after all fundamental to the process by ALL participants. But today there is no such moral conviction and hence people generally lie whenever it suits them. Destroying the ability for council to CATCH a lie is therefore a heavy blow indeed to a system that already is on the ropes.
  • Just like alibi

    Moldaver Michael
    An alibi must also be disclosed by defence. This also allows for the complainant to "fix" the story to possibly another time or date, example: "sometime between Jan. 1 and Jan 31" or even extend the years of when the offence took place (such as: "between 2007 and 20010") rather than exact date and time (such as: "Jan 15 at 6 pm"). So how is this disclosure requirement on defence any different?!
  • criminal defence lawyer

    Mike Scrase
    An alibi is typically given in a case where the time and date of the offence are very specific to begin with. If I can show that the accused was not possibly available at that time, I have never had the Crown amend the time frame, but simply attack the validity of the alibi itself. I would certainly hope that no agent of Her Majesty would amend a specific time frame after the defence production of alibi evidence. Surely this would be viewed as an abuse of process. Further, I guarantee no complainant has been appointed a lawyer to argue for the suppression of such an alibi against an accused.