Sex assault trial reforms followed Ghomeshi case. Some experts worry Hockey Canada trial could spark more

In the aftermath of the Jian Ghomeshi case, changes were made to the Criminal Code to prevent defence lawyers from surprising complainants with past emails or text messages with the defendant at trial. While this was praised by some legal scholars and sexual assault survivor advocates, it has proven to be frustrating for defence lawyers. Some legal experts argue that these changes have complicated sexual assault trials and made them more unfair for defendants.

The amendments, known as the “Ghomeshi rules” or “reverse disclosure,” require defence lawyers to make an application to the judge if they want to include past communications as evidence. Complainants can then hire their own counsel to access these communications and argue whether they should be admitted as evidence. This process aims to prevent trial by ambush and ensure that inappropriate evidence is not presented in court.

However, some criminal defence lawyers argue that these rules violate their clients’ Charter rights to a fair trial and eliminate a potentially important legal tool to challenge the credibility of the complainant in real-time. The amendments mean that the element of surprise is undermined, giving complainants an opportunity to prepare and strengthen their evidence.

In 2022, the Supreme Court upheld the constitutionality of the Criminal Code amendments, emphasizing the importance of trial fairness from the perspective of both the accused and the complainant. While this decision was seen as a positive step to protect complainants, it has also resulted in trial delays and added stress to an already burdened criminal justice system.

Legal experts are now concerned that the high-profile trial of five former World Junior hockey players accused of sexually assaulting a woman in 2018 may lead to further legislative changes that could complicate the system. There are fears that reactionary legislation, particularly regarding the definition of consent, could have significant consequences for other cases.

As the legal landscape continues to evolve in response to public outcry and high-profile cases, it is crucial for lawmakers to carefully consider the implications of any new legislation on all parties involved in the criminal justice system. Balancing the rights of the accused and the rights of complainants is essential to ensure fair and just outcomes in sexual assault trials.