By AdvocateDaily.com Staff

Proposed changes to Canada's sex assault laws threaten to undermine the fair trial rights of accused people by forcing them to disclose evidence in their possession, says Toronto criminal lawyer Melanie Webb.

“It really seems as if we’re seeing an increasing slant towards being very concerned with the rights of a complainant, and focused on treating them with dignity and respect,” says Webb, founder and principal of the firm Melanie J. Webb Barrister.

“But it seems to be at the cost of an accused’s right to make full answer and defence and, frankly, it’s contrary to some of the fundamental tenets of the justice system,” she tells AdvocateDaily.com.

The federal government is proposing in Bill C-51 to expand the Criminal Code’s “rape shield” provisions — which now protect private records like medical files and diaries — to include communications of a sexual nature or for a sexual purpose.

These would include text messages, emails or any other kinds of communication between the complainant and the accused or another person that makes reference to sexual content, Webb says.

She finds it problematic that the defence would have to make a pre-trial application before being able to use these communications, whether or not they already have them.

“It prohibits the accused from making use of records that are already in their possession or control unless they go through a pre-trial application, thereby giving notice to the complainant,” Webb says.

This imposes what amounts to a reciprocal disclosure obligation on the defence which heretofore has not existed in Canadian criminal law, she says.

“It really forces the accused to show their cards. And frankly, that’s simply offensive to the principles of the criminal justice system,” Webb says.

It gives complainants notice of evidence the defence might use to test their credibility, thus allowing them to consider their options, confer with counsel and prepare their testimony accordingly, she adds.

The proposed application process will be costly and time-consuming not only for the accused but also for the justice system, she says.

The Criminal Code already contains special provisions protecting complainants in sexual assault cases, Webb says, including publication bans on their names and requiring the defence to apply for production of their personal records.

The law prohibits the use of such records or any evidence to invoke the “twin myths” that a sexually active woman is unworthy of belief and more likely to have consented to sexual activity, she says.

But the defence has a legitimate interest in introducing into evidence sexual communications that cast doubt on the credibility of a complainant who may have already given evidence inconsistent with the truth, Webb says.

“I’m having difficulty with the proposition that it will be considered unfair to the complainant for the defence to make use of those communications of a sexual nature,” she says.

The proposed changes seem to be an effort to even the playing field for complainants in a misguided presumption of the truth of their allegations, she says.

Webb points out defence lawyers don't sidestep around allegations at trial and go straight to the heart of the matter when questioning witnesses.

“It’s rarely fun for the person being cross-examined, but I’ll remind people that neither is it pleasant for an accused to be arrested, charged, interrogated, held overnight in jail for bail, await disclosure, and spend one or two years going through the criminal justice system,” she says.

If an accused has to withstand all this scrutiny, a complainant should be able to tolerate a challenge to his or her credibility over a day or two of cross-examination, Webb adds.

“We need to strike a balance between respect for witnesses and the privacy of the records, and an accused’s right to mount full answer and defence without requiring them to show their hand in advance of trial,” she says.