As 2019 winds down, a year after the Trudeau government introduced significant changes to our legal system, the courts have wound up in a state of chaos.
New rules of evidence in sexual assault trials came into effect a year ago which were intended to strengthen the protections and privacy rights of complainants. Despite the dire warnings of criminal defence lawyers, Bill C-51 was implemented and the constitutional challenges began.
The primary issue with the new rules of evidence is what’s referred to as reverse disclosure, and the new requirement that all records (like text messages or emails) in the possession of the accused must be revealed to a complainant prior to trial. The purpose was to avoid ambush during cross-examination and to give the complainant the ability, with legal counsel, to either block the evidence from the trial or limit the way in which the records could be used.
Of course, the effect of these hearings, if held in advance, would warn the complainant of the defence material and strategy prior to testimony. It would allow the accuser the time and ability to tailor the testimony to avoid impeachment.
In a National Post article, Brian Platt provides a thorough summary of the fallout across the Canadian courts as judges come to different conclusions on whether or not the new rules violate the accused’s right to a fair trial. Platt discusses some of the recent decisions pointing out that “some judges have upheld the legislation, others have declared it unconstitutional, still others have found serious problems but suggested on-the-fly solutions to save it.”
In an article on his website, criminal defence lawyer Joseph Neuberger notes “the split decisions on how to apply the new legislation has created an uncertainty and the reality that two different people charged with the same crime will find themselves facing different rules at trial. The blame for this chaos falls squarely at the feet of our lawmakers who have rushed to please partisan interest groups at the expense of due process.”
In intervener submissions to the Supreme Court in March, 2019, defence lawyer Marie Henein stated “while [an advance hearing] allows the trial judge to put defence counsel on a leash, there is a difference between a leash and a choke chain. There is a difference between corralling someone and hogtying them.”
And the new rules go well beyond sensitive issues involving evidence of a sexual nature. Bill C-51 added section 278.92 which declares all records in the possession of an accused to be presumed inadmissible unless approved in advance hearings. That captures all communications between a complainant and accused even in the absence of sexual content.
The definition of “record” was originally crafted to address requests for third party documents that would have an expectation of privacy, such as medical or counselling records. Some defence lawyers have successfully argued that evidence in their possession does not qualify as a “record” because the complainant’s privacy concerns are not engaged.
In a recent Ontario decision, R v W.M., Justice Davies found that once a complainant makes a serious criminal accusation the expectation of privacy changes. “Regardless of how their relationship is characterized at the time the messages were sent, it is important to consider the nature of their relationship now.”
Justice Davies went on to consider the other consequences of determining that all communications trigger privacy rights by noting those rights would then extend to the accused. Davies notes that complainants often provide electronic communications to the police in support of an accusation and “if the accused retains or might retain a reasonable expectation of privacy over messages he sent to the complainant, the police may well be required to get a warrant to take copies of them from the complainant.”
This reciprocal application of the law, that would protect both complainants and the accused equally, connects to recent Supreme Court decisions which could start complicating sexual assault trials for Crown prosecutors.
The Supreme Court of Canada has declared that rules of evidence in sexual assault trials apply equally to both the defence and prosecutors regardless of who introduces the evidence. Both sides must comply with the legislation. These evidentiary rules are set out in sections 276 and 278 of the Criminal Code.
Writing for the majority, in R v Goldfinch, Justice Andromache Karakatsanis stated that “Crown-led evidence of prior sexual activity must be governed by the principles set out in s. 276(1) and Seaboyer.” The Seaboyer decision in 1991 had thrown out the previous “rape-shield” provisions as unconstitutional and laid guidelines for determining whether or not evidence had sufficient probative value that outweighed the risk of prejudice.
What this means is that prosecutors must also now obtain prior judicial guidance on what evidence they can use in their case against the accused. They can no longer freely lead evidence from a complainant that references other sexual activity just because it favours the complainant. To put it simply, what’s good for the goose is good for the gander.
This is an important issue with the way sexual assault trials are currently conducted. Too often a complainant will give testimony about prior sexual acts or relationships and the defence is not permitted to properly cross-examine on that evidence.
The primary, forbidden lines of reasoning in legal arguments are referred to as the “twin myths”: that a complainant is more likely to have consented or less worthy of belief because of prior sexual activity. When looked at from reverse, it would be equally wrong to argue that prior lack of sexual activity would make the complainant less likely to consent or more worthy of belief.
In the past, complainants have been allowed to testify that they were a virgin prior to an alleged incident while the accused is not permitted to adduce evidence regarding absence of virginity. This had been justified in appellate courts by the claim that prosecutors were using the evidence of virginity as a “physical state” not as reputation evidence. Of course a jury would likely take this evidence to mean the complainant was less likely to consent but the Supreme Court has not made any rulings on this issue.
Indeed, in a July 31, 2019 Supreme Court decision, R v R.V., the majority decision declined to consider “whether sexual inactivity is captured” by the legislation. Despite not determining the issue, Justice Karakatsanis, who delivered both majority decisions in Goldfinch and R.V., agreed with Justice Paciocco that “it would be incongruous to hold that the statement ‘I am a virgin’ does not engage s. 276 while an answer to the contrary would clearly be a reference to sexual activity.”
Having decided the case on other issues, Justice Karakatsanis stated they will “leave this issue for another day.”
That day may have arrived.
In a December 19, 2019 verdict from the BC Court of Appeal, the majority overturned a conviction in the case of R v Langan on the grounds that Crown led evidence that should have been subjected to the new rules enacted by Bill C-51.
Justice Stromberg?Stein wrote for the majority that “whether sexual history evidence is sought to be admitted by an accused person or by the Crown, the same principles apply.” The prosecutor had entered text messages into evidence in which the complainant told her ex-partner in advance that she would not be having sex with him that weekend.
This evidence appears to have been used to bolster the credibility of the complainant, implying that a prior sexual refusal made her less likely to consent after he arrived for the visit.
It is well established that complainants cannot give advance consent, retaining the right to withdraw consent at any time. Additionally, complainants are not required to fight back or verbally resist sexual activity to prove a lack of consent. The onus is on the accused to acquire positive communications of consent whether through words or actions.
As with the problem of the virginity question, if advance verbal rejection of sexual activity is taken to mean the complainant was less likely to have consented then the reverse logic would imply advance verbal consent makes the person more likely to have consented or less worthy of belief.
The public is regularly inundated with stories and claims in the media that the justice system is failing complainants. Every acquittal is deemed a failure and every conviction is celebrated as a triumph. In response to public outrage, the new rules governing sexual assault evidence were implemented by Bill C-51 to improve conviction rates and make it easier for complainants to come forward with their allegations.
Meanwhile, the public is left with a void of information as to what kind of evidence is really being blocked in court as a result. The Goldfinch case was sent back to trial, the acquittal overturned, simply because Mr. Goldfinch was permitted to tell the jury that he and the complainant had been “friends with benefits” to give “context” to their relationship.
The conviction in the R.V. case was restored after the complainant was allowed to testify that she remained a virgin, despite being pregnant, and the accused was not permitted to fully cross-examine her on whether or not she’d actually had intercourse with someone else that fateful summer.
In the new Langan case, which will probably go to Supreme Court because one appellate judge dissented, the same text messages that were used by the prosecutor to gain a conviction would have been presumed inadmissible if introduced by the accused without a proper hearing.
While we wait for a final decision on whether or not text messages count as a record with an expectation of privacy, or whether or not evidence of sexual inactivity requires the same evidentiary hearings, thousands of people are stuck in limbo. While judges grapple with the question of whether or not the new legislation is even constitutional every trial outcome, both acquittals and convictions, could be overturned if the judge’s ruling is later deemed incorrect.
It is not easy to completely break the legal system in a country like Canada. It takes a lot of audacity and recklessness to wreak the havoc enacted by the Liberal government with Bill C-51.
Because the new rules of evidence hadn’t been in effect during the cases before the Supreme Court at the beginning of the year, the rulings made in cases like Barton, Goldfinch and R.V. have not had to deal with the impact it will have now that Crown prosecutors have to follow the same onerous pre-trial rules.
Because Bill C-51 was crafted and passed into legislation before these Supreme Court decisions, the consequences on the Crown weren’t taken into consideration when they voted to pass the bill. If parliament had known their new rules would also hobble the prosecution of sexual assault allegations I wonder if they might have paid more attention to the defence lawyers who demanded caution.
As it stands, prosecutors will now have to figure out how to build a case if they aren’t allowed to mention things like a lack of prior sexual history or evidence that the complainant would “never” have agreed to specific sexual acts. Prosecutors may have trouble obtaining or using text messages that complainants wish to rely on. After all, the government expanded the new rules to cover all evidence in a sexual assault trial, not just those of a “sexual nature.”
With the reciprocal requirements now affecting both sides, no evidence from either prosecutors or defence will be deemed admissible without prior permission from a judge. It’s probably the first government in the modern world to think presumptively barring all evidence in a criminal trial was a good idea. Hopefully, the Supreme Court can set this right and fix it quickly.
Meanwhile, what a brave new world.