A recent case illustrates how amendments to the rape shield provisions of the Criminal Code have “thrown criminal litigation into insane disarray,” says Toronto criminal lawyer Joseph Neuberger.
Neuberger cites a Postmedia story about a 33-year-old woman who recently testified against her estranged spouse. The husband faces 19 charges, including two counts of sexual assault with a weapon.
Postmedia reports that before the woman could be cross-examined about her past consensual sexual practices with her husband, the man’s lawyer was compelled to show “that the evidence he wanted to elicit didn’t invoke the stereotypical twin myths — the inference that a sexual assault complainant is more likely to have consented or is less worthy of belief because of their previous sexual history.”
When the judge ruled the defence had successfully passed that hurdle, there was a separate hearing to determine whether the “evidence was relevant and had significant probative value not outweighed by the danger of prejudice,” the story adds.
That’s when her lawyer asked for a review of the judge’s earlier decision, “abruptly stopping the trial and delaying it for at least several months,” according to Postmedia.
“Normally you cannot appeal a judge’s ruling in a criminal case,” Neuberger, partner with Neuberger & Partners LLP, tells AdvocateDaily.com. “An interlocutory appeal is a civil notion and has never been applicable to criminal cases before.”
He says that prior to the amending of s. 276 of the Criminal Code there was no need to vet communications between parties that were relevant to the allegations before the court.
“What has traditionally been part of an s. 276 application is evidence that the accused wants to bring out to provide context for historical evidence relating to the complainant,” Neuberger says.
“In this particular instance, the defence wanted to marshal evidence about prior sexual history that is relevant to the contextualized understanding of the allegations and why their client’s defence is viable,” he explains.
If this appeal of the judge’s ruling is successful, Neuberger says that will have wide-reaching implications.
“If an interlocutory appeal, via a complainant, is allowed, we can see many other sexual assault cases being derailed by these types of tactics,” he says. “It has already derailed the prosecution of this case, and may cause a significant time delay that could very well result in the charges being stayed.”
Neuberger said the amendments to s. 276 “were a direct result of the government’s displeasure with the Jian Ghomeshi trial.”
In that case, he says women accusing the former CBC personality of sexual assault “were cross-examined about texts or emails they sent, which directly addressed the issue of consent.”
After certain advocacy groups expressed outrage over this line of questioning, “the government stupidly made amendments to the rape shield provision, indicating that any and all communication between the complainant and the accused must be disclosed and be subject to a court application before a judge for screening its relevance,” says Neuberger.
“These amendments were a knee-jerk reaction,” he says. “The government should never act impulsively on one case because that just makes for bad law and interferes overall with the access to justice in a fair system.”
In an upcoming case, Neuberger says he will be challenging the constitutionality of the amendments to s. 276, “which will include whether the complainant has party standing and a right to have counsel in these applications.”
He says his views about the amendments are shared by the Criminal Lawyers’ Association (CLA) and many other litigators.
According to Postmedia, the CLA has stated that while testifying at trial can be “very unpleasant,” cross-examination “is intended to be a crucible of truth, but regrettably, the truth is often not pretty, and being forced to tell it — sometimes, just being asked about it — can be embarrassing and uncomfortable.”
The group’s statement also notes, “Discomfort, or the fact that the questions relate to deeply private or personal matters, does not mean that a witness has a substantive right not to answer those questions, and then to seek review, and then a further appeal, of every disagreeable mid-trial evidentiary ruling.”
“This case is a debacle,” Neuberger says. “The government should never have tried to tamper with this legislation.”