There’s another very bizarre part of the Criminal Code which says that no record which may be in the possession of a complainant or a witness can be produced as part of the disclosure, without prior approval by the court. Those records include medical records, psychiatrist clinic notes and even include personal journals and diaries, if they exist. They do not have to be turned over to the defence, even if they provide information which provides a complete defence to the person charged. In other words, you can have a situation where some girl is alleging that a boy has sexually assaulted her but then she writes either on her iphone or her personal diary or somewhere else that in fact he didn’t sexually assault her, but that she consented to it, this cannot be produced to question her credibility without special application to the Court. It is these kind of provisions which are completely unnecessary and served only to tighten the noose around the neck on anybody charged with sexual assault. It would seem logical and certainly acceptable to most people that if someone makes an allegation of sexual assault but then writes in their diary that they lied to the police and that the other person didn’t actually sexual assault her, that this would be the information that should be turned over to the police and ultimately to defence counsel.
And this part of the law is being expanded even further. In response to the acquittal of the TV personality Gian Ghomeshi the feminist lobby exerted a huge pressure on a PM Justin Trudeau to make even further restrictions on what evidence can be turned over. If any of you remember the Ghomeshi case, what happened was that there were several women including some well-known TV actresses who dated Mr. Ghomeshi and in fact had sex with them. He was well known to these women prior to the time that they started dating Ghomeshi that he liked to engage in violent sex and often times gratuitously violent and abusive behavour to these women. After at least 3 of these women dated Ghomeshi and had sex with him they wrote several emails to him telling him that they either like him, love him, or admire him and wanted to see him again. They then, apparently forgetting that they wrote these emails and went lay charges against Ghomeshi of sexual assault and other serious sexual assault crimes. During the trial of that case, Ghomeshi’s lawyer was able to get a hold of these emails and crossed-examined the women about the truthfulness of their evidence, in other words, asking them quite frankly if Mr. Ghomeshi did in fact sexually assaulted you then why after the fact did you send him either naked pictures of yourself or tell him that you wanted to get together and have sex with him again. These kinds of revelations clearly would affect the creditability of any witness. Further than that, there was evidence of emails where these 3 women got together and plotted to destroy Mr. Ghomeshi through their allegation of sexual misbehavior. Following the extensive cross-examination and the breakdown of all credibility of these witness, Mr. Ghomeshi was ultimately acquitted. In response to that, the special Interest groups have pressured the government to add further provisions to the criminal code that women cannot now be cross-examined on any text or email messages that they may have sent to the person that they’re accusing of sexually assaulting them. One can well imagine that in a teenager’s world in 2018 that almost every bit of communication is done either by messaging or texting. It is therefore highly relevant to a charge of sexual assault that if the girl subsequently contacted the boy and sent messages to him that contradicted her story of rape or sexual assault, this would be important, but under the new law these text or email messages could not be used as evidence. Once again I make the point that these changes are being purely ideologically and politically driven by these special interest groups are completely contrary to all of the well-established principles of Criminal Law and criminal evidence.