Bill C-51 was passed by Parliament in 2018 and declared law in Canadian criminal law. Section 278.92 of the Criminal Code now requires defence counsel to bring an application to attempt to introduce private records of a victim into evidence. This new law was seen as a direct response to the public outcry as a result of the Jian Ghomeshi trial where defence counsel effectively used private messages of the complainants to challenge their credibility and veracity. Many viewed this as unfair as the alleged victims were caught by surprise at the trial and ultimately the inconsistencies between their testimony at trial and their private messages was one of the reasons why Mr. Ghomeshi’s charges were dismissed.
278.92 states that if a person charged with sexual crimes, including sexual assault, is in possession of any private communications or records of the complainant (i.e. the alleged victim) which they want to use at the trial to challenge the victim’s credibility or reliability, this new law requires defence counsel to hand over this material to the Crown, complainant, and court before the trial to receive a ruling regarding whether the private record can be used by the defence at the accused’s trial. These types of records include the complainant’s private information, emails, text message, Facebook messages, social media, electronic records, photographs, etc.
This section of the Criminal Code makes any private record of the alleged victim of a sexual crime (i.e. text messages, social media, photographs, emails, etc.) presumptively inadmissible unless a judge specifically orders that the evidence can be used as evidence at trial.
As an example, assume someone accused of sexual assault has a text message from the alleged victim stating that she or he lied about being sexually assaulted and, in fact, the sexual encounter was consensual. This would be very powerful evidence which would probably in most cases lead to the accused’s charges being dismissed at trial. Prior to the introduction of s. 278.92 of the Criminal Code, the defence lawyer did not have to disclose this powerful and contradictory evidence before the trial and would probably have strategically keep it in their back pocket. They would have effectively confronted the complainant for the very first time at the trial to show that they were not a credible witness.
Under the new law, the defence lawyer is required to serve an application on the Crown and the victim before the trial, with a view to hopefully receiving an order from the judge that the prior inconsistent statement is admissible. Of course, the great disadvantage to this requirement for “reverse disclosure” is that the defence lawyer has lost his or her strategic advantage of the element of surprise and the complainant can craft an appropriate answer well before the trial to attempt to explain away the inconsistency.
There is a big difference between being able to surprise a witness with a powerful piece of evidence which contradicts their evidence and leaves them speechless and unable to respond at trial, versus providing them with the material several months before the trial so that they can come up with a clever explanation to effectively explain away an inconsistency. The new law is great if we assume all people charged with a sexual assault or a sexual crime are in fact guilty. However, some legal commentators feel it will lead to miscarriages of justice if, for example, a complainant is actually lying about being sexually assaulted and now has weeks or months to plan how to effectively explain away contradictory private records.