Nearly five years after the polarizing and sensationalized trial of Jian Ghomeshi, a host of social and legal issues remain far from resolved. The 2016 acquittal of the previously well-loved broadcasting personality was the catalyst that led to recent substantial changes to the rules of evidence as they apply to sexual assault trials.  The constitutionality of these rules are set to be argued before the Supreme Court of Canada this upcoming March of 2021.

Simply put, the controversial amendments to the law, which have come to be known as “the Ghomeshi rules”, place an unprecedented obligation on defence lawyers to seek permission from the court before they are able to introduce evidence in their possession that they wish to use to attack the credibility of a complainant, in circumstances where this evidence could potentially impact a sexual assault complainant’s privacy rights. The law also requires the defence to provide notice to both the prosecution and the complainant, in advance of the trial, that they wish to introduce this evidence, thus taking away the supremely important “element of surprise” that the defence requires to effectively cross-examine prosecution witnesses.

The law creates a situation of “reverse disclosure”, by basically forcing the defence (which normally does not have to disclose any of its own evidence or strategy) to reveal evidence it intends to use to discredit or impeach the complainant to both the Crown and the complainant. Not only does this severely impede the defence’s ability to effectively challenge the credibility of a witness who could be lying, but it also provides crown witnesses a golden opportunity to mould their testimony to suit their own interests and/or desired outcome.

As some of you may recall, the Ghomeshi trial was the cause of outrage and shock amongst women’s groups, as observers watched in horror while his lawyer discredited his accusers with their own words.  What some have referred to as an “ambush” took place where the women were each confronted, in a courtroom filled with spectators, with damaging and embarrassing communications which had taken place between themselves after the time that the alleged attacks took place. Just as importantly, prior to being confronted with these communications, they denied that they had even communicated and colluded with each other. Thus, the complainants were conclusively shown to be lying under oath.

Without this element of surprise, under the current law, they would have known what was coming- they would have assuredly come up with a seemingly logical way to “explain it away”. They would have not been caught in lies that exposed them as witnesses who did not deserve to be believed. Is it too much to ask the crown to prove its case by calling witnesses who do not lie under oath? Do you think a judge trying a sexual assault case would want to know whether a complainant had colluded with others and, to boot, lied about it; and under oath?

Like most sexual assault criminal trials, the Crown’s case relied heavily- or rather, exclusively- on the testimony of the complainants. Thus, the witnesses’ testimony was the only evidence, and really the only thing, standing between a guilty verdict and an acquittal.

Credibility, or whether we think the person is telling the truth, REALLY matters.

The Law Society of Ontario Rules of Professional Conduct state that it is the duty of the defence attorney “to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavor to obtain for the client the benefit of every remedy and defence authorized by law”.

Sexual assault complainants have the right to have their privacy respected, but to what degree? The answer is that when their privacy interests impinge on an accused’s right to defend himself, by taking away the right to surprise a lying witness with their lies, those interests must yield to the fundamental right of an accused person to a fair trial.  If we are unable to surprise a lying or manipulative witness with his or her own words, we will be unable to properly defend our clients. The rules of evidence in sexual assault trials already contain significant safeguards for protecting a complainant’s privacy; however, this law has gone too far

THE “GHOMESHI RULES” SHOULD BE STRUCK DOWN BY THE SUPREME COURT

The aftermath of the trial revealed a host of social and ethical issues which have resulted in our politicians, through legislation, enacting a law of evidence that is misguided in its attempt to deal with the concerns about the under-reporting of sexual assault allegations. The privacy interests of a complainant with respect to their social media content that discusses the allegations cannot be compared to the more sensitive nature of, for example, their psychiatric records or their diaries.  This is especially so when one considers all the other privacy protections available to complainants including, among other provisions, the law that bans publication of the name of the complainant.

In the age of #METOO, victim’s rights have never been more in front of mind- and rightfully so; but what about the accused? A criminal trial is all about avoiding wrongful convictions by requiring the prosecution to prove the guilt of an accused person beyond a reasonable doubt.  The former can only be accommodated if it does not infringe on the latter.  This law should be struck down by the Supreme Court. FULL STOP.

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