Criminal Law

Troubling legislation results from 'knee-jerk' reactions

By Peter Small, Contributor

Hashtag activism and the government’s reaction to it have led to bad law, particularly the elimination of peremptory jury challenges, the reduction in preliminary inquiries, and the curtailing of defence rights in sexual assault trials, Toronto criminal lawyer Joseph Neuberger tells

“These are three areas of very troubling legislation,” says Neuberger, partner with Neuberger & Partners LLP. “They are activist legislation as a result of public outcry, and are just really ill-advised, ill-thought-out knee-jerk reactions.”

Hashtag activism — social media agitation for change — has pressured the federal government to enact legislation for political rather than sound policy reasons, he says.

For instance, the government passed Bill C-51, which expands the Criminal Code’s rape shield provisions that protect a complainant’s private records — such as diaries and medical files — to include all communications of a sexual nature in the possession of a defendant, Neuberger says.

The reforms force defendants to make a pre-trial application for permission to use sexual communications such as text messages, emails, or videos, he says.

This is unprecedented in that it forces the defence to provide disclosure of any communications it has about the act that the complainant alleges was a sexual assault, says Neuberger, who has often used such evidence in sexual assault trials.

The legislation has no bearing on the “twin myths” that the rape shield laws are designed to counter, he says. The twin myths 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.

Passing the legislation capitulates to the social and mainstream media storm — as detailed by the CBC — that followed the 2016 acquittal of former CBC radio host Jian Ghomeshi in a high-profile sex assault trial in which his lawyers made effective use of such evidence, Neuberger says.

“Ghomeshi was splashed all over the media, and there was this special interest outrage, and the government just ate it up,” he says.

The change is “profoundly unfair,” and violates s.7 of the Charter, which guarantees life, liberty, and security of the person, Neuberger says.

The elimination of peremptory challenges for juries is another example of the government’s reflex response to social media outrage, he says.

It followed protests over the acquittal of a white Saskatchewan farmer in the shooting death of a young Indigenous man. Some observers say five people who appeared to be Indigenous were prevented from serving on the jury by defence lawyers using peremptory challenges, the CBC reported.

Peremptory challenges — the right of defence or Crown lawyers to reject a set number of potential jurors — have been in place for decades to deal with potential bias and discrimination in the jury system, Neuberger says.

“You don't just throw that out in response to one verdict,” he adds. “Nor will it advance in any way shape or form a greater composition of Indigenous individuals on jury panels.”

Instead, it will lead to more U.S.-style challenges of potential jurors from both the defence and Crown, which judges will grant, Neuberger says.

Another bad piece of legislation prompted by social pressure is the elimination of preliminary inquiries for offences punishable by sentences that amount to less than life in prison, he says.

Preliminary inquiries — where a judge determines if there is sufficient evidence to warrant a trial — have been a valuable way for both sides to test the strength of the Crown’s case, Neuberger says.

“Eliminating them will clog up many of the provincial courts and will not lead to a proper assessment of evidence in the case,” he says.

Their reduction is the government’s response to alleged delays in the courts and, more importantly, the supposed re-victimization of sexual assault complainants by forcing them to testify twice — first at a preliminary inquiry, and then at a trial, Neuberger says, adding that preliminary inquiries are run efficiently and do not abuse the rights of complainants.

“What the government has done with their legislation is basically take a complainant's evidence as truthful. That's where you work from, and then work backwards in order to ensure conviction,” Neuberger says.

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