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Expansion of ‘rape shield’ law will lead to wrongful convictions: Neuberger

Proposed changes to Canada’s sex assault laws — that would make a complainant’s relevant sexual communications presumptively inadmissible — are a direct attack on an individual’s right to make full answer and defence, says Toronto criminal lawyer Joseph Neuberger.

“It will just lead to wrongful convictions,” says Neuberger, founding partner with Neuberger & Partners LLP.

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

These would include text messages, emails, audio or video recordings, or any other kinds of communication between the complainant and the accused or another person that had sexual content.

The defence would have to make a pretrial application, under s. 276 of the Criminal Code, before using such communications if they were not handed over by the complainant.

“That’s a major change in the landscape,” says Neuberger, adding 70 per cent of his practice for the past two decades has consisted of sex assault cases. “It imposes a presumptive inadmissibility finding against evidence that deals with the subject matter of the offence.”

Neuberger says the proposed amendment is a knee-jerk reaction to the high-profile sex assault trial of former CBC radio host Jian Ghomeshi, where the defence made effective use of such evidence in securing his acquittal.

 “The government is simply pandering to certain groups — advocates on behalf of what they call survivors of sexual violence — to the detriment of anybody who’s accused of an offence,” he says.

The defence currently does not need to have this type of evidence vetted by a judge to determine its relevance or whether it runs afoul of prohibitions against the “twin myths,” he says. They are: (a) that a complainant with an active sexual past is more likely to have consented to sexual activity; and (b) is less worthy of belief.

“This is a monumental shift, in my opinion, and a significant attack on the rights of an accused to make full answer and defence because it requires defence disclosure and creates tri-party litigation where you have the complainant not only obtaining the disclosure but they can then have their own counsel involved,” Neuberger says.

The motion will have to be brought months before the trial, giving the complainant ample warning of the defence theory and plenty of time to recast the evidence in a way that’s favourable to their position, he says.

“You lose the element of being able to obtain spontaneous answers from a complainant at a trial or preliminary hearing once faced with that evidence,” Neuberger says.

 “For the life of me I cannot understand how text messages and emails that are directly related to the subject matter of the allegation ought to be disclosed to the Crown and vetted by the court as to relevance,” he says. “It’s completely without precedent and it does not have anything to do with the twin myths.”

It also creates a barrier to justice for lower-income defendants because it imposes a costly legal pretrial procedure, Neuberger says.

“Now you have to bring a full-blown motion just to cross-examine on text messages and emails,” he says.  

“Why should the defence have to disclose and an accused have to bear the financial burden of a motion about messages from a complainant about what they are complaining about some years later is non-consensual?” he asks. “The logic to me is ridiculous.”

Neuberger says if the provision comes into effect he will challenge its constitutionality as soon as it applies to one of his cases.

“Where I’m in possession of messages, communications, or recordings that are related to the subject matter of the allegation, I will automatically bring a constitutional challenge to my requirement to have a motion,” he says.

Neuberger says he will argue that it violates sections of the Charter related to the presumption of innocence and the right to life, liberty, and security of the person. He believes a number of other lawyers will also challenge its constitutionality.

“It’ll go all the way to the Supreme Court of Canada,” he says. “It doesn’t have a rational connection to the twin myths. It doesn’t have a rational connection to protecting a complainant from unfair cross-examination on instances of sexual conduct, which would question their integrity in some way.”

“These are messages and material that do relate to the complaint itself,” he says. “To me, it’s clear that this is unconstitutional.”

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