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. 

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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.

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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. 

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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.

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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. 

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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.

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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.

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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. 

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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. 

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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. 

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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.

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Dubbed the ‘Ghomeshi Rules’ and despite heated debate among the legal community, the new legislation was codified into Criminal Code sections 278.92 to 278.94 coming into force in December of 2018. Those debates included fears of defence lawyers who argued that the new legislation would create all sorts of unconstitutional barriers for the accused, confusion among judges interpreting the new rules and more wrongful convictions. 

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Defence lawyers largely argued that these new rules of evidence admissibility mean that the accused has to unfairly give away their defence strategy before knowing the case to meet.

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As expected, some judges in different jurisdictions across Canada applied the rules differently and some outright rejected the new rules declaring them unconstitutional in favour of the accused person. As a result, two recent cases made their way to the Supreme Court of Canada by way of a Crown attorney and a complainant each successfully seeking for the ‘Ghomeshi Rules’ to be declared constitutional.

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The two cases were combined into one within R. v. J.J. 2022 SCC 28 since they were both challenging the constitutionality of the same section of the legislation. 

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Chief Justice Wagner and (soon to be retired) Moldaver wrote for the majority decision: “The criminal trial process can be invasive, humiliating, and degrading for victims of sexual offences, in part because myths and stereotypes continue to haunt the criminal justice system.” In their lengthy declaration of the constitutionality of the ‘Ghomeshi Rules’, they bring to mind a thinly veiled myth that accusers never lie and that every defence the accused employs is just a malicious effort to get away with committing sex crimes with impunity.

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Justice Brown, however, one of three dissenting justices wrote: “It forces accused persons to reveal their defence before the Crown has made out a case to meet, contrary to the principle against self‑incrimination, the right to silence, and the presumption of innocence. Accused persons must disclose not only their cross‑examination strategy and potential impeachment material but also their own prior statements, even before the Crown has opened its case.”

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“Parliament has legislated a formula for wrongful convictions. Indeed, it has all but guaranteed them.”

- Justice Brown, dissenting in R. v. J.J.

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Ultimately the majority decision is that the new legislation is compliant with the Canadian Charter of Rights and Freedoms and it sets out steps to clarify how the new evidentiary screening process should be applied so that it is fair to all parties. 

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Determine Outcome of Case Before Trial

All is not completely lost, however, for those that are innocent of sex crimes they’ve been accused of. Behind the veneer of protecting the complainant’s dignity, privacy, and their new right to a State-funded attorney still lay the opportunity for adept defence lawyers to reveal all their cards before trial in pre-trial hearings potentially resulting in withdrawn charges.

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