Civil Litigation, Criminal Law

New sexual assault laws likely to face Charter challenge

By AdvocateDaily.com Staff

Defence lawyers should be worried about legislation that proposes significant changes to Canada’s sexual assault laws, as counsel need to be able to use all relevant information in order to make full answer and defence, Toronto criminal and civil litigator Laurelly Dale writes in The Lawyer’s Daily.

As Dale, principal of Dale Legal Firm, explains in the article, Bill C-51 includes critical changes to sexual assault laws, specifically rape shield, as well as the elimination of unconstitutional provisions such as time served, and the retention of other sections such as mandatory minimum sentences.

Although running the best possible defence for your client means using all available information, says Dale, “the creation of s. 278.92 mandates that defence essentially hand over major chapters in their impeachment of the complainant over to the Crown and complainant 60 days before trial.

“The amendments establish a ‘new’ s. 278/s.276 type of pretrial application, going way beyond giving the Crown a peek at your cards through a preliminary hearing or judicial/Crown pretrial,” she adds.

There is also an exception to the rule to exclude witnesses, she explains, including those whose credibility is in question.

“Complainants are permitted at these hearings, can make submissions and will be advised by the trial judge that they can be represented by counsel. Defence counsel cannot ask the complainants any questions at the hearing. Complainants will be privy to the defence theory, learning about anticipated lines of questioning. Ahead of trial they can shape their testimony to their advantage, risking deliberate falsification,” writes Dale.

In light of Jordan, she says, these changes will increase the amount of time required for pretrial applications.

In addition, says Dale, reversing the disclosure obligations runs a serious risk of violating the accused’s constitutional right to a fair trial and the presumption of innocence.

“Included in the discussion of consent and defence of mistaken belief are references to the Charter rights of the complainants, specifically s. 15 equality and s. 7 security of the person. As defence counsel drafting submissions for s. 278/s. 276 and now, potentially, s. 278.92 applications, it is imperative that we distinguish the rights of the accused from all others.

"Complainants are not entitled to Charter protection from the accused. Our clients do not have standing to either protect or violate their Charter rights,” she writes.

As Dale notes, there are several reasons why the rights of an accused person are contained in the Charter of Rights and Freedoms — including the unique consequences they face, such as mandatory minimum jail sentences and registering as a sex offender.

“Regardless of type of convicted sex offender, their future is painful. Few other convictions under the code result in similar hardships that follow the offender the rest of their life,” writes Dale.

Ultimately, Dale says if the legislation is passed, she expects it to face numerous Charter challenges.

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