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February 10, 2001

Man who fought rape shield law cleared of assault

Accuser flees courtroom: Judge finds girl changed her story numerous times

Bob Weber
The Canadian Press
National Post

John Lucas, Edmonton Journal
Dennis Edney, the defence lawyer for Brian Mills, talks to the press after Mills was acquitted for sexually assaulting a 12-year-old girl yesterday.

EDMONTON - The man who tried to throw out Canada's laws protecting the medical records of sexual assault victims collapsed in tears after being found not guilty of sex offences Friday.

But Brian Mills' lawyer still had harsh words for legislation that he said did nothing to help clear his client.

Dennis Edney was also critical of the Supreme Court of Canada, which rejected his client's challenge and upheld the law.

"Under Bill C-46 you get nothing," Mr. Edney said outside court. "It was a cowardly response by the Supreme Court of Canada to public pressure and special interest groups."

Court of Queen's Bench Justice Paul Belzil found that the girl who complained Mr. Mills assaulted her changed her story numerous times and even invented an assault she later admitted was false.

"It is clear that the complainant's testimony is pivotal to the Crown's case," Judge Belzil told Mr. Mills. "In my view she is not a reliable historian of what did or did not occur. The court has grave concerns about the quality and consistency of her recollection."

Although Judge Belzil suggested that "something happened" between Mr. Mills and his accuser, he added: "It would be dangerous to convict."

Mr. Mills, whose legal ordeal has lasted 5 1/2 years, was embraced by his family as court adjourned.

"It feels pretty good," he said outside court. "I want to go home now."

His accuser, also in tears, fled the courthouse with her family without comment. Her name is protected by a publication ban.

Mr. Mills, 25, was charged with the sexual assault and sexual exploitation of the girl, then 12, in her mother's apartment in 1995.

His case gained national attention when Mr. Edney argued successfully that a 1997 law preventing people accused of sexual assault from gaining access to the medical and psychiatric records of their accusers violated constitutional guarantees to a fair trial.

That lower court decision overturned Bill C-46, under which lawyers must convince a judge any such records they seek are relevant. The Supreme Court, however, reinstated the law after a November, 1999, hearing that drew 18 interveners.

Still, Mr. Edney maintained the law harmed his client. He said he applied twice under the legislation for psychiatric records on the accuser and received only notes that the girl had met with her social worker.

Meanwhile, information that surfaced before Bill C-46 was passed suggested the girl had a history of mental problems.

As well, Mr. Edney says he "stumbled" on unreleased police files that detailed a 1998 instance in which the girl said Mr. Mills raped her.

She later admitted the charge was a lie.

"I had the perfect case for getting evidence under the law that permits it," said Mr. Edney. "Bill C-46 adamantly shuts the door on that.

"Had I not stumbled on [those files] in discussion with the police, the trial would have gone ahead and Mr. Mills may not have been acquitted."

Carissima Mathen of the Women's Legal Education and Action Fund called Mr. Edney's statement "highly speculative" and defended Bill C-46.

Defence lawyers routinely use methods such as cross-examinations and rebuttal witnesses to test the credibility of witnesses without opening their medical records, she said.

"We don't assume someone is lying about a case just because of the existence of some records in the past," she said.

Ms. Mathen said the best people to decide whether a witness is telling the truth are the judge and jury who watch and hear the testimony.

"Credibility has historically been determined by the judge or person in the jury box with the witness sitting there before them," she said.

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