Criminal Law

Sex assault proposed changes go too far: Neuberger

By AdvocateDaily.com Staff

Criminal Code amendments aimed at protecting sexual assault complainants would dangerously disrupt the balance between the accused and the prosecution, Toronto criminal lawyer Joseph Neuberger tells the Globe and Mail.

“The message that’s being sent by the government is that people who are charged with sexual assault are guilty,” he says.

“The extent to which they are going to restrict cross-examination in this area is unbelievable, as compared to every other offence in the Criminal Code.”

Neuberger, partner with Neuberger & Partners LLP, comments on the proposed changes, which include new provisions that a complainant’s text messages, emails and video recordings with sexual content or a sexual purpose can be kept out of trials, reports the Globe.

If passed into law, the amendment would require such messages, including those sent after an alleged assault, to follow the same rules as a complainant’s past sexual activity and require a judge’s approval for the material to be used in a trial, says the newspaper.

Other changes include preventing the complainant's material that are in the accused’s possession, such as journals, medical records or personal letters, from being used as evidence unless a judge agrees following a private hearing, says the article.

“The government would also, for the first time, say in law that complainants have the right to legal standing when a court is considering an accused person’s request to introduce evidence that is protected under the rape-shield law – that is, to have a lawyer make arguments, separate from those made by the prosecutor, on the complainant’s behalf. Judges would have to inform each complainant of this right,” says the Globe.

Some say the amendments are a direct result of the not-guilty verdict in the sex assault trial of former broadcaster Jian Ghomeshi and other high-profile cases, says the newspaper. The federal justice department tells the Globe the proposed changes came out of a review of a series of cases.

Neuberger says the changes ultimately go too far.

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