The Harms of “Reverse Disclosure” in Sexual Assault Trials

This year Parliament passed Bill C-51.  Among other things, the new law changed many rules of evidence with respect to Sexual Assault trials in Canada.

In some instances, the legislation codified that which was already in place at common law. For example, the bill added s. 276(4), declaring that communications of a sexual nature were “sexual activity” under that section and prima facie require an application seeking permission to adduce such evidence at trial.

Some of the changes, however, introduced new restrictions and obligations.  And some of those changes are likely to have unintended consequences that reduce the effectiveness of the truth-seeking functions of trials.  In particular, the new laws regarding “personal records” the defence seeks to use to defend himself form a criminal charge.

THE NEW LAW

 It may be naïve to call this an “unintended consequence”, but we will get to that later.  Whatever the motivation of Parliament, new provisions under s. 278.92 of the Criminal Code impose an unprecedented obligation on the part of an accused person to inform both the Crown and the Crown’s witness about records the defence has in its possession.

Specifically, if the defence has in its possession any record in which the complainant (the alleged victim) has a reasonable expectation of privacy, the defence must bring an application ahead of time to seek permission from the court to use that evidence at trial.  The value of the evidence to the truth-finding function of the trial will be balanced against the danger of prejudice to the administration of justice.

This is the most clear and direct (and reactionary) response to the Jian Ghomeshi trial, in which sexual assault complainants were shown evidence which contradicted their sworn testimony.  There was a great deal of public backlash in the wake of that trial. While there are certainly improvements that can always be made to our criminal justice system and it is critically important that we ensure sexual assault victims are encouraged to report assaults and always be treated with the respect they deserve as justice system participants, Parliament apparently chose to simply change the law that allowed this one accused to be acquitted.

PRIVACY FOR SEXUAL ASSAULT COMPLAINANTS

 The language within the Criminal Code makes it seem as though the new “private record admissibility” law is grounded in the protection of the privacy and dignity of complainants. Which is, of course, a laudable goal. From my experience, the notion that defence lawyers might drudge up embarrassing and private information about a sexual assault complainant – not for any legitimate legal purpose, but simply to intimidate or “whack” or discourage sexual assault victims from giving evidence is absurd.  But the collateral consequence of highly private or embarrassing records being brought before the court for a tangentially relevant purpose are worthy of consideration. This appears to be what the new legislation seeks to balance:  the prejudicial effect of the private records being used versus the probative value of the evidence to an issue at trial.

Really, there is little in the new law that did not exist prior: it is always the role of the court to consider the probative value of evidence as compared to its prejudicial effect, and the court always had the ability and duty to exclude evidence on that basis.

What is new is: (a) there is a list of factors to be considered in making that determination in the case of private records in sexual assault trials, and (b) there is a new process in place in which the admissibility of the records must be canvassed ahead of time and as such, disclosed to the Crown and the witness (the complainant).

The former addition is not problematic.  The trial judge is directed to consider such factors as: encouraging the reporting of sexual assault offences, encouraging victims to obtain treatment, avoiding discriminatory belief or bias, and the protection of the complainant’s personal dignity and right to privacy.

It is the latter addition that has “unintended consequences”. Namely, an essential fact-finding tool is largely stripped away: the ability to test a witness’s reliability and/or credibility by disproving incorrect testimony.

THE “REVERSE DISCLOSURE” OBLIGATION

In a criminal trial and especially in sexual assault trials, where there are rarely witnesses or corroborating evidence, the believability of the witnesses is how judges and juries make the all-important determination about whether a crime was committed or not.

Judges and especially juries are not psychologists and they are not lie-detector tests.  It can be difficult sometimes to know whether somebody is telling the truth.  The ability to determine who is telling the truth and who is not (either because they are lying or because they are mistaken) is the be-all and end-all of criminal justice.  When we get it right, justice is served; when we get it wrong, justice has been miscarried.

We will never achieve a perfect ability to judge who is telling the truth, but a criticallyimportant tool is the ability to disprove testimony that is objectively disprovable. The only real test is whether the person giving evidence is willing and/or capable of giving evidence under oath that is not true. Accused can do it, complainants can do it, innocent third-party witnesses can do it.  The question is who is telling the truth, and who is giving evidence that is not true?

The ability to disprove testimony confidently given with objective counter-evidence is an invaluable tool for the finders of fact.  Even if the objective evidence is not proof that the crime was or was not committed, it is an essential tool to finding the truth.

C-51 Reverse disclosure sexual assault canada

AN EXAMPLE OF THE HARM OF “REVERSE DISCLOSURE”

 Let us take the example of a dishonest witness.  (We do not like to think of complainants as being dishonest or even unreliable witnesses, but in almost every criminal case, two different witnesses will say opposite things about the same event: at least one of those witnesses is either dishonest or unreliable.  Our system obviously requires us to find out who is telling the truth based on the evidence at the trial and never ever presume that a person is guilty).

A Dishonest Witnesses’ Evidence

Let us imagine this dishonest witness has reason to say that he was beat up by a bouncer outside a bar.  The witness is lying – but as the jury we don’t know that: how could we? The witness testifies he is certainhe remembers what happened to him.  It happened right out in front of the bar.  He is certain because he remembers it well: he arrived at the club at 12:00a.m., was attempting to enter through the front door; the bouncer insulted the witness and refused to let him in; when the witness asked why he was not going to be allowed into the bar, the bouncer punched him in the face unprompted.

Let us imagine that is not at all what happened.  So the accused bouncer’s lawyer suggests to the witness that – in fact – what happened was that the witness had been in the bar for hours already.  He went out into the back alley with a beer in his hand and was smoking a cigarette; the bouncer came out and told him he could neither drink nor smoke in that alley, that the witness refused to comply and began a physical fight with the bouncer, which led to injuries to both men.

The witness, of course, absolutely denies this version of events: it is just like he just said: he had not been inside the bar yet; it all happened at front entrance of the bar; he was not even aware there WAS an alley behind the bar and certainly had never been in that alley; and in fact, he does not smoke cigarettes and never has.

After the incident, the witness had told police “the bouncer punched me in the face!  It happened around 12:00 a.m.  I didn’t do anything wrong.  He punched me.  It was the big bald guy with the black T-Shirt”.

On its face, the judge or jury may be left with a tough decision. The witness seems believable.  Nothing he just told the court is inconsistent with what he told the police.  He is testifying politely and eloquently.  He has no apparent reason to lie about what happened to him.  Since there were no witnesses, all he can do is tell the court what happened to him.  The lawyer tried to make it sound like it was his fault but he was very clear that the things the lawyer suggested were not true and it happened just like he claims.  This witness may very well be believed and this bouncer may very well be convicted: it happens, despite the best efforts of judges and juries to get it right.

Some Text Messages

Now imagine the accused bouncer’s lawyer has text messages from that witness to a friend.  One text message was from hours before the alleged assault and say “Hey guys, I am inside the club”.  And another message an hour later saying to another friends “Hey, I am in inside the club”. And another text message right at the time of the alleged assault that says “Hey, I am outside having a cigarette.  Come join me.  I am out in the alley in the back.  Across from the Scotiabank.”

They story, as told, is exposed as a fabrication.  The fact that he had not been at the club for hours, the fact that he did not know there was a back alley, the fact he had not ever beenin that alley, the fact that he does not smoke cigarettes.  Clearly this witness is willing to lie to the court.  No judge or jury would properly find, based on his evidence, a finding of guilt beyond a reasonable doubt.  The bouncer would be properly and appropriately acquitted.

The Effect of Reverse Disclosure

Now: even in a sex assault case, in which the accused would have to apply to be able use those text messages, the judge would almost certainly allow text messages such as those to be used – they are highly probative of where the complainant was at the time of the incident.  There is nothing embarrassing in the texts, so it is barely prejudicial at all.  But the issue here is not with the law on when texts can be used and when they cannot. The issue is: what is the difference between being required to show that text to the witness ahead of time?

Without a law requiring the defence to disclose the texts, the judge and jury would have an excellent and important clue as to whether the witness was willing and able to testify to details that were clearly not true; the story of assault as told under oath was a complete fabrication.  Thing that make it easier for judges and juries to learn the truth – so that they do not convict innocent people or acquit guilty people – is of paramount importance to us a society.    The exposition of this witness as a liar – because he happened to be a liar – is a highly valued moment for us as a society.  Not because we are happy the witness lied; not because we like this bouncer or hate this witness, but because that exposition was immensely helpful to the judge or jury in finding the truthand therefore making the right decision.

But if that dishonest witness was made aware ahead of time that the defence had possession of those text messages, this exposition of truth would not occur.

The witness – who is lying – would simply alter his evidence.  He would tell the court “it all happened in the back alley behind the club.  I stepped out for a cigarette.  I did not know I was not allowed to smoke there.  The bouncer came out, told me I am not allowed to smoke there.  I told him ‘OK I’ll put it out, just relax’.  He got very upset about being told to relax and grabbed me and punched me in the face.  It was awful.”

That story too may be very compelling.  It is – on its face – perfectly believable.  It also fits with what he told the police.  It also certainly makes out the offence of assault. The judge and jury may very well believe that version of events.  We will have missed the opportunity to expose a liar as a liar and get to the truth and therefore a just outcome.  This could lead to a wrongful conviction.  Nobody is served by this.

The Honest Witness

Now, of course, this example was tailored to prove a point. We used the example of a witness that we know is lying, because it was established from the beginning: this is what the effect of the text messages will be on a dishonest witness.

It goes without saying, not all witnesses are dishonest of course.  And – the critical dilemma in the pursuit of justice is that the trier of fact does not know who is being honest and who is not. The new legislation is not designed with only dishonest witnesses in mind.  The law set out to protects not only accused persons but all justice system participants, including – of course – true victims of crime.

So, let us consider the counter-example of an honest witness.  Imagine our club-goer and the bouncer, but in a scenario where – in fact – the witness is honest, and an assault actually did take place.

Critically, for the witness who is telling the truth and has a reliably good memory of the events, being surprised with a text from his pastwould not lead to any injustice!  It would not undermine his account of events because there would be nothing to undermine if he is telling the truth.  If he is an honest and reliable witness, he would never have testified that he did not know there was a back-alley, that he had never been there, or that he had not been inside the club that night.  If in fact he was assaulted in the back alley during a cigarette break, he would have said so right from the start: the defence having the text messages as a “secret, hidden weapon” will be meaningless – there is no use to be made of those texts, as they do not expose any lie.  (Alternatively, if in fact the assault took place at the front door and the victim had never been inside the club or in the back alley – well, obviously, those text messages would not exist.)

The ability of the defence to surprise a witness with hard evidence only harms the believability of the dishonest or mistaken witness, not a truthful witness.  And that is an invaluable tool in the pursuit of justice.

THE SEXUAL ASSAULT VICTIM AND BILL C-51

This article focusses on the serious deleterious effects of the “reverse disclosure” obligation.  The reverse disclosure is – ostensibly – a collateral effect of a law in pursuit of a legitimate end.  While it is not the focus of this article, it is important to understand the true value of the protection of the privacy or dignity of sexual assault complainants.

As we have evolved as a society, we have come to understand the prevalence of sexual assault in Canada and its massively destructive effect.  We have also come to appreciate how difficult it can be for sexual assault victims to testify in court.  Parliament has partly addressed this by giving sexual assault complainants legal standing for parts of the trials in which they are witnesses.  Also, critically, we have decided to address the crisis of underreporting of sexual assault.  Appropriately, we are taking measures to support and protect sexual assault complainant’s privacy and dignity throughout the criminal justice process for the sake of each individual complainant and in pursuit of the massively important goal of encouraging victims to report sexual assault so that they can gain access to the available support systems and so that the perpetrators of sexual assault can be brought to justice.

All of these are laudable goals.  They must be balanced with the critically important right of the accused to a fair trial.  If we knew at the outset of each trial whether the accused was factually guilty or innocent, it would be much easier to know how to balance the respective rights, but obviously the reason we have a trial is because we do not know.  So we must strike an appropriate balance knowing that any given law may negatively affect some innocent accused and may negatively affect some true victims.

The Balance

The harm the admission of the private records is listed (non-exhaustively) in the new legislation.  It says the judge – in deciding whether or not to admit the records, must consider:

  • (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.

This article does not take issue with the importance of those issues or even the way in which the law requires an application for the use of records.  The main problem is not with this element of the law.  It is with the requirement that the records be given to the witness in advance.

The responsible provision is found at s. 278.94(2) of the Criminal Code, which allows the complainant (with or without counsel) to “make submissions” at the admissibility hearing. This has been interpreted by the courts to include therefore a right to learn the exact content of the records and the use the defence wants to make of it.

So why are Factors (a)-(i) copied out above?  To illustrate that all those interests would still be servedeven if the law did not include a requirement to advise the witness of the ways in which the accused hopes to counter any false testimony that may arise.

The balance is not between the right to a full answer and defence vs. interests of our society in all these above factors, (a) to (i). It is a balance between the right to a fair trial and the right for the complainant to make a submission to the judge about his or her view of how the law should be applied.

It is not a meaningless right – to be able to raise a legal issue that the judge may not have turned her mind to – but it is very minor right compared to the value in finding the truth about what happened and whether the accused is guilty or innocent.   In an alternate universe, the judge can still be presented with arguments for and against the admission of the records (by the defence and the Crown), would make a judicial determination, would balance the rights of each party and competing societal interests, would excluded any records that ought to be excluded.  It would all be done without the witness being given advance knowledge of how a lie would be exposed.

Unlike most legal issues (including the ultimate decision about admissibility of the records themselves), there is no judicial consideration.  There is no consideration of context or the circumstances to decide whether or not the reverse disclosuremust be made.  It is automatic.  The damage is automatically done.  Even if it is the clearest of cases that the records ought to be included, the damage will have been done: the witness gets a hold of the records as soon as the judge determines that that an admissibility hearing ought to be held.

When considering the balancing act as it exists: the ability to expose untruthful testimony vs. the right of the complainant to make submissions at the hearing that is anyway being conducted to determine admissibility, recall the value of the former:  it will only expose FALSE testimony and will have no effect on the believability of TRUE testimony.

IS THIS REALLY AN “UNINTENDED” CONSEQUENCE?

So far this article has presumed the noblest of intentions on the part of Parliament: to allow the complainant to make submissions that may assist the judge in making a just determination as to the proper balancing of competing rights and interests.  And still, we find the collateral effect of reverse disclosure far outweighs the legitimate goal of the legislation.

But, as it was said at the start of this article, it may be naïve to even presume that the harmful effect – of tipping off witnesses so they can tailor their evidence – is “unintended”.

The Ghomeshi Trial

First, the historical context:  it is not controversial that this law was introduced in the wake of the backlash to the Jian Ghomeshi trial.  In that case, complainants were undone by the introduction of hard evidence that exposed clear and unequivocal false evidence. This is not to say that Ghomeshi was factually innocent.  For the purpose of the laws of criminal procedure, the factual guilt or innocence of one accused is not relevant: the protection of the various parties going forwardis the only thing that should matter. But this new law likely was born precisely because many observers felt that Ghomeshi likely was factually guilty, but accepted that a conviction cannot enter when the only witness to an alleged offence are exposed as being incredible. The misguided reaction to a very narrow set of circumstances seems to have been to reverse-engineer circumstances in which Jian Ghomeshi could be found guilty.  Rather than encouraging sexual assault complainants – like all witness – to always tell the truth while giving evidence, we now have a system where sexual assault complainants are uniquely protected from the exposure of untrue testimony.

It is naïve to think that the response to the Ghomeshi acquittal had nothing to do with public backlash to the fact that he was acquittedinstead of convicted.   It is naïve to think that the law was born out of a sense that the injustice in the Ghomeshi case was that the e-mails sent by a complainant to the accused was simply too private, that a new scheme allowing a judge to vet out such emails would not be sufficient, that a judge would be incapable of making that determination without hearing submissions for a third lawyer– one for the complainant.  Obviously, the prevailing notion from that trial was that he was acquitted due to the use hard evidence to undermine false evidence of a witness.

In other words, the “reverse disclosure” was not merely an unintended consequence of the new admissibility hearings and the strong belief in the right of the complainant to make submissions (and if the witness gets advanced notice of evidence that could undermine her, that is unfortunate, but so be it).  The “reverse disclosure” itself was a goal.  The interest of the complainant being protected is not merely the right to make submissions about the privacy of her records – as the Code section suggests; the interest being protected is actually the complainant’s interest in the accused being convicted.

Parliamentary Discussion

The notion that Parliament intended to achieve the effects of “reverse disclosure” is not some far-fetched conspiracy theory.  It is bodly apparent.  Senator Murray Sinclair said the following in support of the proposed legislation during the Debates of the Senate, 42nd Parl, 1st Sess, Volume 150, Issue No. 233 (3 October 2018):

“This issue arose in Ghomeshi, as you may remember, where texts were produced in the course of the trial that had been exchanged between the complainant and the accused, and they had not been disclosed to the prosecutor either by the complainant or by the accused, and the prosecutor was caught short by not knowing them. In addition to that, the complainant herself was not aware of some of the texts.”

“The prosecutor was caught short”, and so was the complainant. In other words, the defence was able to expose false testimony that they would not have been able to expose if this reverse disclosure obligation had been in place.

It is contrary to the interests of justice to take away a trier of fact’s ability to fully assess the believability of a witness.  It is not in anyone’s interest to protect agasint the exposure of false testimony.

It is certainly not in the interest of sexual assault victims.  As we have said repeatedly, the reverse disclosure assists in the provision of false testimony.  It does nothing to impugn victims of sexual assault giving honest accounts of what happened to them.

CONCLUSION

 This article does not contest the notion that special exceptions may be made for sexual assault victims in the interests of protecting their privacy and dignity or in the interest of encouraging the reporting of sexual assault.

This article does not even contend that complainants who are not true victims are undeserving of protections.  (Not everybody giving untrue testimony is intentionally lying).

The notion that any particular witness should be shielded from the exposure of the distinction between true testimony from false testimonyis offensive to interests of justice.  It is unjust for false testimony to be protected from exposure as such.  It is unfair of course to the accused who may be convicted based on that false testimony. And it is unfair to all sexual assault victims who bravely stand up and give true accounts of their experiences.

It is a dangerous collateral effect to even the noblest goals and it is unacceptable as a goal in and of itself.