Ontario judges reject two charter challenges of liberal government’s sex assault reforms, passed after Ghomeshi case

With Bill C-51 now in effect, defence lawyers have brought the first wave of Charter challenges — but two different judges ruled the regime is constitutionalvva
OTTAWA — Defence lawyers in two separate Ontario cases have failed to strike down the Liberal government’s overhaul of sexual assault trial laws, a package of reforms widely seen in the legal community as a response to the Jian Ghomeshi trial.Bill C-51, passed in December 2018, contained numerous sexual assault reforms. But the most controversial one gave complainants the automatic right to bring their own lawyers and make submissions when the defence applies to introduce evidence of sexual history. This right has already been interpreted to include the power to cross-examine the defendant, first established this spring in the high-profile Ottawa trial of Joshua Boyle (a former hostage in Afghanistan now accused by his estranged wife of sexual assault).No other type of criminal case gives the complainant an automatic right to make submissions. During Parliament’s study of the bill, many defence lawyers argued it was an unprecedented intrusion on a defendant’s right to a fair trial, and that they’re now essentially squared off against two sets of prosecutors: the Crown’s and the complainant’s.
The Canadian Bar Association also said that giving complainants this power could interfere in the ability of prosecutors to make independent decisions on trial strategy, and that this would all exacerbate trial delays.With Bill C-51 now in effect, defence lawyers have brought the first wave of Charter challenges — but two different judges ruled the regime is constitutional.

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In one case, R. v. A.C. (a publication ban protects the name), lawyer Ian Kasper argued in Ontario Superior Court that Bill C-51 “injects a purely partisan advocate into the merits of the trial.”
These types of offences are particularly plagued by myths and stereotypes

“A criminal trial is solely a contest between the state and the charged individual,” said Kasper’s factum. “Bill C-51’s grant of standing to a complainant to participate in an accused’s trial foundationally alters this constitutional paradigm. It introduces a stranger into the litigation; it provides a witness with a ‘party-like’ status fundamentally altering the dynamic of a fair prosecution.”

Kasper argued the new law means defendants are required to disclose their trial plan to the complainant’s lawyer. “It provides the complainant an opportunity to study the evidence to be led against her, and to correct or adjust her evidence in response to the accused’s disclosed trial plan,” the factum said.

The factum also argued Bill C-51 was vague on how extensively the complainant is entitled to take part in these hearings. “The government’s complete failure to address obvious procedural questions is remarkable,” the factum said.

But the judge, Phillip Sutherland, rejected these arguments in a decision released July 15.

“Sexual violence offences are unlike other criminal offences,” Sutherland’s ruling began. “These offences are predominantly perpetrated against women. These types of offences are particularly plagued by myths and stereotypes.”

Sutherland pointed to the Supreme Court of Canada’s earlier decisions in R. v. Darrach and R. v. Mills that determined that admissibility hearings on a complainant’s sexual history do not violate the right to a fair trial.

“Thus, the question remains; have the amendments changed the landscape to an extent that the accused’s right to a fair trial and right against self-incrimination have been violated?” Sutherland wrote. “I am not persuaded by the defence that it has.”

Sutherland described the changes as “incremental,” and said he found Bill C-51 to be clear in intent. “As stated many times by Canada’s highest court, it is important to give a voice to the complainant, to allow for the court to hear her point of view at the hearing, determining the admissibility of proposed evidence which concerns matters in her private life,” he wrote.

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