The vengeful sword of Lady Justice

If politics is downstream of culture, and legislation downstream of politics, then the dam is burst and revolution is upon us. So begins this criminal barrister’s hair-on-fire lament for the erosion of due process of law in the moment of #MeToo. The legislative contempt for due process presently manifest in Bill C-51, now before the Senate of Canada, is not the whole story of revolution. It is merely illustrative of it. The full picture of revolution – in cultural expectations, yes, and as much again in political morality – can be seen in the increasingly constant illiberal impulse at work across and within the central institutions of our civic life: culture, certainly, but as significantly in politics, law, and the public professions. The pattern, a pathology not strange to history, is to demolish liberty in the name of justice, and to do it with majority support.

Bill C-51 passed third reading in the House of Commons on December 11, 2017. The legislation makes numerous amendments to the Criminal Code of Canada, most consequentially to the procedure for trials in cases of sexual assault. Justice Minister Judy Wilson-Raybould did not explicitly name her law after the infamous former CBC radio host who inspired it. But Ontario NDP leader Andrea Horwath was less restrained in her recent rejection of due process for deposed PC leader Patrick Brown: “Two words: Jian Ghomeshi.”

“Ghomeshi’s law”

In 2016 Ghomeshi’s lawyer sensationally won acquittals for her client by confronting his accusers with amorous after-the-fact communications with Ghomeshi that belied their claims of assault. C-51 will render records of such correspondence presumptively inadmissible at trial. An accused may only rebut the presumption by leaping two new procedural obstacles. First, where an accused seeks, for example, to rely upon a “thanks for a great night” text message, C-51 forces the defence to first disclose it to the prosecutor and to the complainant. This will blunt the cross examination of a complainant. As lawyers warned the Commons Justice Committee last October, a complainant playing fast and loose with the truth will be fortified in doing so by knowing at least part of the defence case in advance.

This upends the traditional principle of justice that only the accused needs to know the case to meet, because only the accused is at risk of going to prison.

Minister Wilson-Raybould has insisted the amendments do not “…mean that the defence would be obligated to hand evidence over”. But, the minister’s spokeswoman Kathleen Davis explained, “the procedure for the admissibility of records of a complainant’s personal information will only be engaged in cases where the accused possesses it and seeks to introduce it into evidence.”

No need to disclose it, in other words, unless you need to rely on it.

The second new procedural hurdle is that the defence must satisfy the court that admitting the evidence will agree with nine policy goals expressed as “factors” in the legislation, and not contravene the two prohibitions in Section 276 (the existing “rape shield law”). Fully four of the new factors, and in some cases more, will militate against admission of the evidence, including the mandate of “encouraging the reporting of sexual assault offences”, “the need to remove…any discriminatory belief or bias”, and “potential prejudice to the complainant’s personal dignity and right of privacy”.

What constitutes a prohibited record is broadly defined. Such records will likely include emails and text messages (which were vital to Ghomeshi’s defence), or other information such as employment or school records that might, for example, speak to where the accuser was at a particular time. Prior to these amendments such records were already subject to the threshold for admissibility of all evidence: relevance and necessity. That is, if any record is irrelevant to an issue or unnecessary as proof, counsel may not introduce it. C-51’s extra factors are obstacles in the path of evidence already likely to be relevant, subjecting its admissibility to policy goals beyond simply trial fairness.

C-51 is the latest in a long line of law reforms aimed at increasing the rate of convictions for sexual offences and reducing obstacles to the reporting of sexual assault to authorities. Beginning in the 1970s in Canada, a series of what might alternately be called obstacles to justice (by victims) or due process protections (by accused) were stripped from the law of sexual assault. These include: de facto limitations on the prosecution of historic, stale-dated offences; the doctrine of recent complaint (an expectation that a credible complaint will be reported sooner than later) (Section 275, Criminal Code); and the rule against convictions on uncorroborated evidence. Parliament expressly abrogated this rule in Section 274 of the Criminal Code. The Supreme Court of Canada in R. v. W.(D.) (1991) introduced a formula for preferring she-said or he-said evidence in the absence of corroboration by forensics or other witnesses, enabling convictions in some cases on the say-so of a single accuser. This now includes where applicable the testimony of a small child.

Rape shield legislation enacted in 1992 prohibits an accused from relying on either of what are known as the “twin myths”: that a complainant’s sexual history makes her more likely to have consented to the activity in question, or less worthy of belief (Section 276, Criminal Code). More recent changes inhibit the disclosure and use of records concerning a complainant that are in possession of a third party (Section 278, Criminal Code). The Supreme Court ruling in R. v. Mills (1999) upheld legislation permitting an accused to access such records where defence counsel can satisfy a court that specific records are likely to be relevant to an issue at trial. One catch: defence counsel is not first permitted to see the record.

Jian Ghomeshi and his defence lawyer Marie Henein leave the Toronto courthouse after winning acquittals in his sexual assault trial. (Image: CP)

Last but not least, the definition of consent has developed to mean the voluntary agreement of a complainant, as it exists in the mind of the complainant at a moment in time. Notions of advance consent, implied consent and presumed consent have been rejected and removed from the law. (See section 273.1, Criminal Code and Supreme Court of Canada R. v. Ewanchuk, 1999 and R. v. J.A., 2011).

Better victim protections

The difficult position of victims of sexual assault should not be understated. For much of post-enlightenment history, common law jurisdictions routinely acquitted perpetrators of sexual violence on specious grounds. She failed to make “hue & cry”. She was promiscuous. She was his wife. She did not present herself “in bonnets and crinolines”. Fear of public shame continues to be real for many victims. Sexual assaults often go unreported. Rates of conviction relative to other offences continue to languish. As the academy and legal profession opened to women in the 1960s, 70s and 80s, reform of the law of sexual assault gained advocates.

To be sure, much in these reforms is salutary. And consideration of trial fairness is part of the back and forth between Parliament and the courts that the process of law reform entails. But it is an open question how much more room for social justice-oriented reform exists before the line of fundamental justice is crossed. If prior reforms constituted meaningful social progress with minimal effect upon fundamental freedoms, legislation such as C-51 promises to reverse the former by stamping on the latter.

Going overboard

The popular reaction to Ghomeshi’s acquittal, reflected soon afterward in the (now discredited) reasoning of the trial judge in Toronto’s Mustafa Ururyar-Mandi Gray case, thrust to the fore a new set of twin myths:

1. That complainants never lie; and

2. That fair trials can still be had on a tilted field.

These new dogmas clearly animate the C-51 revision, with its focus on strengthening the position of complainants, and less apparent concern for the risk of wrongful conviction. C-51 increases the risk of wrongful convictions by fortifying the position of complainants who lie, and by potentially excluding exculpatory evidence that otherwise should be admitted as necessary and relevant. Worst of all, such wrongful convictions will be impossible to verify in many cases since corroboration (for example, by forensic evidence) will never have existed in the first place. C-51 represents a choice by Parliament to pursue social justice policy goals and accept the collateral damage of justice denied to the wrongly convicted.

American feminist Emily Lindin, a writer with Teen Vogue, caused a social media firestorm when she expressed a similar animus in a tweet last November:

Here’s an unpopular opinion: I’m actually not at all concerned about innocent men losing their jobs over false sexual assault/harrassment allegations.

Such reckless disregard for justice might be expected from a writer for a fluffy fashion and celebrity magazine for juveniles. We should expect better from the Parliament of Canada. C-51 suggests that our lawmakers risk losing the plot on their primary, constitutive obligations to the liberty and rights of Canadians. C-51 puts policy in the service of preferred result instead of fair process, with ominous implications for fair trials.

This theme of “results before process” lays bare the ideological motivations of contemporary feminist and progressive activists, and sheds light on the nature of the revolution in political morality that has brought us to this place. When a majority in Parliament decides to trade the fundamentals of fair trial procedure for the political pottage of desirable trial verdicts, we are no longer all equal in the eyes of the law. The western liberal concept of universal rights flowing from one shared, indivisible humanity gives way to subjective, utilitarian notions of rights applied selectively to further political goals. In the classic formulation of Animal Farm, all are equal, but some are more equal than others.

If the right to a fair trial is subservient to the higher purpose of the ideologues, how safe are our other fundamental rights and freedoms? Witness the conscience rights of physicians yielding to the recently contrived but now absolute right to death-by-doctor in January of this year (Christian Medical and Dental Society v. College of Physicians and Surgeons of Ontario, Ontario Superior Court, 2018), or the new federal fiat effectively excluding religious groups from equal access to public funding for summer jobs. Recent examples of pressure on the legal system include the Alberta Court of Appeal’s effort to fix future jury verdicts for conformity in R. v. Barton (soon to be revisited by the Supreme Court of Canada), and the installation of sexual assault commissars in the training of our judges (a legacy of former Conservative leader Rona Ambrose) and the decision making of some police services.

The late prime minister and celebrated trial lawyer John Diefenbaker put it this way: “Parliament is more than procedure. It is the custodian of the nation’s freedom.” Our elected representatives, in other words, are accountable to a core understanding of our fundamental freedoms, to protect them from the corruptions and distortions of politics. If that lesson is lost, it will not easily be learned again.

The tree of liberty is withering in Canada, where it ought to flourish.


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