An age-old tactic used by defence lawyers facing false accusers in sexual assault trials is holding their cards close to their chest, or the ace up their sleeve until the perfect moment calls for the surprise reveal.
The best-known example of this tactic resulting in the acquittal of an innocent accused person is defence attorney Marie Henein revealing emails between Jian Ghomeshi and the women who accused him of sexual assault and text messages proving collusion among the accusers.
The trial judge, in that case, Justice Horkins, described the accusers succinctly as having “suppressed the truth” which may never have been known had it not been for relevant email records Ghomeshi had in his possession for many years.
While Henein acted entirely within the rules of evidence at the time – revealing the emails and text messages to impeach the accusers only after their testimony contradicted the hidden evidence – vocal protestors proceeded to campaign for the justice system to do more to protect victims of sexual assault.
The protestors speciously claimed evidence of ‘friendly’ communications after the alleged assaults were not relevant to Ghomeshi’s three accuser’s credibility. The distinct difference between the credibility of the women and Horkins finding the women deliberately suppressed the truth eluded them all.
Perhaps protestors were made angry by the fact that Ghomeshi never testified in his defence and that the words of the accusers alone sunk the prosecution’s case against him.
The Defence Can No Longer ‘Hold Their Cards’
The then Minister of Justice, Jody Wilson-Raybould, introduced a bill about a year later to parliament seemingly in response to the outcry of those who opposed Ghomeshi’s acquittal and his lawyer’s method of defending his innocence by surprising his accusers when using their own words against them.
Enter Bill C-51, an Act to amend the Criminal Code by expanding ‘rape shield’ provisions with the potential to send already systemically incoherent sexual assault trials into chaos. Its stated purpose was ‘to ensure that Canada’s criminal justice system protects Canadians, holds offenders to account, shows compassion to victims’ and was particularly tailored for the age of digital communications. The goal was to prevent defence lawyers from surprising or ambushing complainants with their private records such as emails, text messages, or Facebook messages in possession of the accused. Records that the complainant forgot about, or wouldn’t have expected the accused to maintain for so many years, as Ghomeshi did.
The new legislation created a rigorous pre-trial evidentiary screening process that also allows for the complainant to be involved as a party and represented by her own State-funded lawyer, apart from the Crown’s prosecution.
In a case where an innocent accused person has evidence such as text messages between him and his accuser, the accused now has to play his hand to the judge and the Crown in pre-trial hearings. In addition to the Crown prosecution’s arguments, the judge provides the complainant with the opportunity to argue why those text messages shouldn’t be admitted as evidence to impeach her.
That method happens to be congruent with pre-existing procedures for admissibility of third-party record applications and other private documents like psychiatric records. An expansion of what is thought to be reverse disclosure or an opportunity for the complainant to tailor their testimony around their questionable credibility and reliability.