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Three Former Crown Prosecutors

Reverse Disclosure in Sexual Assault Cases

Bill C-51 was recently passed by Parliament and declared law in Canadian criminal law and this Bill was really prompted by the Jian Ghomeshi trial and what happened there.  You’ll recall in Jian Ghomeshi the defence lawyer had extensive private emails and texts and other electronic materials between the complainants and Mr. Ghomeshi and she was able to very and quite properly confront the complainants with this information which showed inconsistencies with their trial evidence and they were caught off guard of course and Ghomeshi eventually won his trial and these very glaring inconsistencies which were commented upon on by the trial Judge in the judgment.

So Parliament reacted to this and said well now we are going to require, if defence counsel has this private information, emails, text messages, other electronic records, in their possession, if you want to use those at the trial you have to hand those over to the prosecution in advance.  The complainant, the victim’s then going to get those records as well. They’re going to be granted standing with the lawyer to appear for them to try and suppress that information number one. If the Judge lets it in what does it do? Well this is great for everyone who’s truly guilty, who truly did it because if the complainant is telling the truth and did an inconsistency, well that’s of no consequence.  The person should probably get convicted right? Well what about the truly innocent person who didn’t do it? Now they’re handing their cards to the complainant, to the prosecution, a lying victim and there may be some lying victims out there. I’m not saying there are. There may be some. They are now going to get a chance to get their stories straight and give an explanation why there is an inconsistency rather than being confronted on the spot in court with their lies.  Now you get your story straight. So this is a great thing of course if the client is truly guilty. Not so great for the innocent.

Now bear in mind that in the Canadian criminal law people are presumed innocent and the Crown has to prove its case beyond a reasonable doubt and we’re trying to protect those people who are truly innocent in the Canadian criminal system.  That’s why the burden to prove is on the Crown and a lot of commentators have said, and it will be I expect, this will be challenged in court and it may very well wind its way through the court system to the Supreme Court of Canada. It’s really one of the few instances where a defence lawyer has to show their cards at a trial.  I mean there is alibi evidence where you have to show your cards ahead of time. You have to present, you know, tell the Crown about your alibi but I can think of few other instances if any, where there is reverse disclosure. This is really a first and I expect it to be challenged and that’s really been prompted by the Jian Ghomeshi trial and the developments in that trial with private records in the hands of defence counsel.

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