Sarah Leamon: Judges reach different conclusions on disclosure rules for those charged with sexual assault

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      A controversial ruling on a controversial issue has come out of Saskatchewan.

      Earlier this month, Judge Bruce Henning declared some of the Liberal government’s sexual assault trial reforms unconstitutional. 

      This decision was aimed at the reforms embodied by Bill C-51, which appeared to have been introduced as a knee-jerk reaction to the much-publicized Jian Ghomeshi acquittal in 2016. 

      Among other things, these new legislative changes afford complainants in sex assault cases an automatic right to make submissions in certain evidence-admissibility hearings. This means that they are also entitled to disclosure in advance of the trial, which would otherwise be produced by the accused person in their own defence. 

      This change marks a significant departure from the usual procedure in criminal trials, which affords an accused person with a number of constitutional protections, including the right to a fair trial.  

      In spite of ample warning from legal professionals, who questioned whether such provisions would hold up in court, the bill was passed and the changes took effect last December.

      But Henning has thrown a much-needed legal wrench into things by ruling that the new law is contrary to the constitutional rights of the accused. 

      In coming to his conclusion, the judge stated that the new law works to seriously limit an accused person’s ability to effectively and properly challenge the veracity of an accusation at trial.  

      Ultimately, Henning wrote that this violated a person's right to a fair trial and their ability to make full answer and defence to the charges against them, two constitutionally protected charter rights.

      After all, as he aptly pointed out, revealing too much of the defence’s strategy may provide the complainant with time to prepare, alter, and tailor their version of events in response to it. It allows the complainant time to study the case and to adjust their evidence if needed. 

      In doing so, it flies in the face of constitutionally established norms. It also creates a power imbalance between the accused and the state that is troubling at best and insurmountable at worst. 

      Henning’s decision recognizes this.  

      But if you’re looking to breathe a sigh of relief, you’d best hold off. This ruling is, by no means, the end of the story. 

      The first reason for this is the forum from which it came. 

      Because the decision was issued by the lower provincial court of Saskatchewan, it is not binding on other courts, either in Saskatchewan or elsewhere. As it stands right now, it only affects the law, as it was applied in this case. 

      The second reason is that the legal landscape on this issue is largely unsettled. 

      Henning’s ruling stands in stark contrast to two other recent cases out of Ontario, where different judges went a different way by upholding the constitutionality of Bill C-51.  

      In one case, it was argued that the changes in Bill C-51 compromise the trial process by paving the way for the complainant to participate in proceedings with the help of independent counsel. As in the Saskatchewan case, it was argued that this change unreasonably and unconstitutionally forces an accused person to disclosure their trial plan, thereby giving the complainant a distinct leg-up. 

      The Ontario judge rejected those arguments, though, stating that special allowances should be made in cases of sexual violence, which are more prone to the persistence of difficult myths and stereotypes. 

      The second case out of Ontario suffered a similar fate, with the judge declaring herself unsympathetic to the arguments pertaining to constitutional invalidity. Instead, she pointed to what she described as the importance of ensuring access to justice and protecting the rights of complainants in sex assault proceedings. 

      There is no doubt that sexual assault cases are particularly vexing and persistently formidable. The language around them is often fraught with ideological hot buttons. Sifting through the issues can be difficult at best.

      Certainly, there is public interest in ensuring that victims feel secure enough in the process to come forward, and that justice is served.  

      However, this cannot come at the expense of the rights of an accused, who is undoubtedly facing extreme jeopardy as a result of unproven accusations. 

      Striking a balance between these issues will ultimately fall in the hands of the higher courts. So, you may be holding your breath for awhile…or at least until one of these cases works its way up to the Supreme Court of Canada.