“The defence bar cannot sit back and take this sitting down,” Neuberger, partner with Neuberger & Partners LLP, tells AdvocateDaily.com.
“There needs to be activism, and there needs to be discourse about this because it affects the integrity of the trial process. This is a serious blow to fairness.”
The bill recently made its way through the Senate and still must be passed in the House of Commons to become law.
Once approved, C-51 will expand the Criminal Code’s “rape shield” provisions that guard a complainant’s private records — such as diaries and medical files — to include communications of a sexual nature that are in the possession of a defendant.
Emails, text messages, video and audio recordings, or other kinds of communication between the accused and complainant that contain sexual content, would be among the records added for protection.
C-51 will also require defendants to apply by way of a pre-trial hearing for the right to use any such communications.
The provisions have been labelled the “Ghomeshi rules,” for former CBC Radio host Jian Ghomeshi, whose 2016 sex assault trial saw his lawyers present emails and text messages that challenged the credibility of the complainants and resulted in his acquittal.
The fallout from the decision led to protests over the criminal justice system’s treatment of sex assault complainants, and the government’s introduction of the reforms contained in Bill C-51.
The bill will diminish access to justice, allow complainants unprecedented access to disclosure, expose defendants to a tri-party litigation and lead to “unfair or wrongful convictions,” says Neuberger, who estimates sexual assault cases make up at least 60 per cent of his practice.
“The difficulty now is that months in advance of a trial, the complainant has full knowledge of the material he or she will be cross-examined on with the benefit of counsel,” he says.
“This robs the defence of being able to present such information at trial without the complainant being able to manufacture or fashion their own answers.”
Neuberger says requiring defendants to apply for the right to use communications through a pre-trial hearing will increase their financial burden.
“This may prevent people from bringing these applications because they don’t have the funds. So it will raise very significant access to justice issues,” he says.
Neuberger believes soon after Bill C-51 becomes law, multiple constitutional challenges will be filed, including a case he handles that involves a pre-trial hearing on communications.
“The defendant is on trial and subject to the stigma and repercussions resulting from an accusation,” he says. “These are very serious charges with dire consequences, and the accused is entitled to rights and a fair process.
“Having to disclose relevant information about the subject matter of the offence, in my opinion, offends the Charter.
“It is not something that we’ve ever contemplated in the criminal justice system in this way,” Neuberger says. “This is a difficult circumstance that I see as a knee-jerk reaction to the Ghomeshi case. It is not well thought out and creates a barrier to justice. It will be fought all the way to the Supreme Court.”