In the wake of Bill C-16, another government-introduced bill stands to further erode the bedrock of our democracy, but for some odd reason, no one is talking about it.
If you search for bill C-51, you likely will come across some years-old commentary on the previous Conservative government’s controversial anti-terror bill. After reading the body of 2017’s bill C-51, I can’t help but think that the numbering of the bill was engineered to ensure that it would be hard to track down for the casual researcher of proposed policy. Hopefully, by the end of this article you will see where I’m coming from.
On June 6th, Minister of Justice and Attorney General Jody Wilson-Raybould introduced a bill that was to amend the Canadian criminal code. Some of the bill’s planned changes elicited amused coverage in the mainstream. Particularly the parts of the bill that would strike down laws against dueling and the practice of witchcraft. Buried among the publicized components of the bill however, is a seriously troubling change to how sexual assault trials are conducted. Essentially, these changes would establish a process through which certain pieces of defense evidence are vetted by the judge as part of determining their admissibility. The act refers to the evidence as a, “record relating to a complainant or a witness that is in the possession or control of the accused,” referring to any communication between the accused and a complainant, across any platform.
While this is similar to an already established legal process, a voir dire, a judge holding a trial within a trial from which a jury is excluded to determine the value and admissibility of a piece of evidence, stark differences do still exist between the two. . Where the two differ--and where C-51 edges toward a frightening precedent--is the inclusion of legal counsel representing the complainant (not to be confused for the prosecution who represent the state) whose job it is to argue against the admissibility of the evidence in question. For those of us who aren’t lawyers (myself included) this may not sound at first look, so terribly threatening. After all, where’s the harm in providing the victim of sexual assault with a lawyer who will fight for his or her case? Well, the harm is, rather than being a one-on-one match, this bill would create a situation in which the accused has two separate teams fighting opposite his interest.. This is sadly just the tip of the iceberg.
Before going further into a look at this particular wrinkle, I’ll lay out one of the cornerstones of Canadian, and more generally, Western trial practice. In Canada, the prosecution is required to carry out a disclosure of their evidence to the defence. This is meant to allow the defence adequate warning to address the evidence in order to explain it and thereby introduce reasonable doubt. So, the practical effect of this part of the bill is that it forces the defence to perform a disclosure of its own. In a sexual assault trial, the innocence or guilt of the accused can often hinge on communication between the two before or after the incident or incidents on which the trial is centered. In the case of Jian Ghomeshi this was especially apparent, as the entire trial turned on inconsistencies between the statements of complainants and the electronic communication between the opposing sidesi. As one dives further into the bill, it just gets worse.
The criteria by which a judge is instructed to determine the admissibility and probative value--that is the ability of the evidence to prove a point--are so wide and vague that they might just as well be entirely absent. What follows is a list of these criteria:
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;
(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(e) the need to remove from the fact-finding process any discriminatory belief or bias;
(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(g) the potential prejudice to the complainant’s personal dignity and right of privacy;
(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(i) any other factor that the judge, provincial court judge or justice considers relevant.
Now, it would seem to me that the only criterion that should matter is the first one, given that the life and livelihood of the accused is being decided by this process. In the context of recent Canadian legal battles, the others on the list, particularly that last one, seem dangerously open to exploitation by judges out to make a point, rather than to deliver justice.
While this potential law will very likely be destroyed upon first contact with the constitution and charter of rights and freedoms, it is indicative of the moral direction of the current government. Time and again, we’ve seen that this Liberal government is more concerned with empty activism and the appearance of action. Bill C-16 and the rapidly decomposing National Inquiry into Missing and Murdered Indigenous Girls are just two examples of how the government prioritizes poorly-planned, broadly useless virtue signalling over substantive discussion of issues. Bills C-16 and C-51 in particular show how the government holds their partisan activism over even the foundational liberal democratic values of Canadian society, in these cases freedom of expression and the guarantee of a fair trial. If you aren’t worried yet, you should be.