And also note that none of the idiot "experts" quoted here (the Canadian Bar Association or Canada's Liberal Government 'Justice' Minister) has noticed that this makes their new "law" into an entirely illegal crime!
From here, and here:
Sexual assault bill gets few changes from MPs, despite lawyers' concerns over 'reverse disclosure'
Defence lawyers repeatedly told the committee that Bill C-51 effectively removes their ability to expose inconsistencies in a complainant's evidence
Legislation that makes big changes to Canada’s sexual assault laws
is getting only minor amendments from MPs, despite strong concerns from
defence lawyers it creates an unconstitutional requirement to disclose a
defendant’s evidence ahead of a trial.
Bill C-51, introduced last
spring by the government and widely perceived as a response to the Jian
Ghomeshi trial, makes numerous changes that are meant to address
concerns over how complainants are treated during a sexual assault
trial.
The bill also brings the written law into line with
previous Supreme Court of Canada rulings on areas such as consent (for
example, making it clear that consent must be actively given throughout a
sexual encounter, not just ahead of time).
As is common with any
large change to the Criminal Code, expert witnesses expressed a variety
of concerns around the new language. But one particular provision of the
bill has seen a huge pushback from lawyers: a new process they say
creates an obligation to show their evidence to the prosecution before
using it during a trial.
Normally, only the Crown has to disclose
their evidence ahead of time. But the bill sets up an application that
requires the defendant to get a judge’s ruling on the admissibility of
records they possess that relate to a complainant. (Such a process is
already in place for records held by a third party, such as a
psychologist.)
The process would apply to “any form of record that contains
personal information for which there is a reasonable expectation of
privacy,” such as diaries, medical records, and possibly even text
messages, emails and social media messages.
“That’s unprecedented
in Canadian criminal legal history,” said Breese Davies, a Toronto-based
defence lawyer who was one of many to testify before the Commons
justice committee studying the bill.
“There are some areas in
which the defence has to disclose some amount of their theory or some
amount of an argument they may make, but there’s no other context in
which the defence has to disclose to the court ahead of time, and more
importantly to the complainant ahead of time, what information and
evidence might be used to cross-examine them,” she said in an interview.
Defence
lawyers repeatedly told the committee the bill effectively removes
their ability to expose inconsistencies in a complainant’s evidence, as
disclosing the records allows prosecutors to adjust their case to what’s
in them.
The Canadian Bar Association said it “questions the
constitutionality of creating this disclosure obligation on an accused
person, and its potential impact on the Charter-protected right of an
accused to make full answer and defence.”
Justice Minister
Jody-Wilson Raybould has contested this view of the legislation, telling
the committee it is “simply not true” to call it a disclosure
requirement. Such obvious lies!
“These changes provide no rights to the Crown to
receive evidence, nor do they mean that the defence would be obligated
to hand such evidence over,” she said. “Rather, the changes concern
rules of evidence and seek to balance the rights of the accused with the
rights of the complainant and to support the truth-seeking function of
the courts.”
Experts testifying at the committee also expressed
concern about the trial delays this new process would cause in Canada’s
already sluggish court system, and the fact it creates a
records-admission process that wouldn’t be used for any other type of
case, such as domestic assault.
They suggested numerous fixes to
narrow the scope, such as tightening the definition of what counts as a
record, making it clear the process only applies to records being
introduced as evidence, and changing it to a mid-trial process that
would take less time.
The
committee wrapped up its C-51 deliberations on Wednesday. The only
amendment made to the records-admission portion of the bill was to
specify that the records subject to the new process are only those that
relate to the complainant, not the other witnesses.
“The proposed
change is welcome, but not enough,” said defence lawyer Megan Savard,
who had suggested it in her committee testimony. “It does not solve the
bill’s constitutional problems.”
Davies said she was disappointed
but not surprised to see the bill emerge mostly unchanged. She said she
understands the intention, but thinks the legislation is far too broad
and will result in a torrent of litigation and Charter challenges.
“You can’t legislate your way out of the complexities and the inherent difficulties of sexual assault cases,” she said.
“I
think we need to be worried about putting in place evidentiary rules
that make it more difficult for accused people to defend themselves, and
more likely that there will be convictions on the basis of what is in
fact unreliable evidence.”
The bill now goes back to the House of Commons for a final vote, and then goes for study in the Senate.
