National Post

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Wednesday, December 01, 1999

Trial and error
National Post

In a decision released last week, the Supreme Court of Canada ruled that those accused of sexual assault (almost invariably men) no longer have the right to present certain evidence that could prove their innocence, if that evidence, in the opinion of a judge, might embarrass their accuser. Even non-lawyers should find this decision worth reading.

In almost all offences, from murder to jaywalking, the accused has the right to present any evidence that could set him free. If the prosecutors have that information, they must turn it over to the accused. This is a basic rule of fair trial. For those accused of sexual assault -- and only for those accused of sexual assault -- that right no longer exists.

The Supreme Court has upheld a law that can block the accused from obtaining documents from doctors, therapists or other "counsellors" who have interviewed their alleged victims. Even if those documents are "likely relevant" to the defence, and even if the police and the prosecutors have copies of them, they can be withheld from the accused. If an accuser tells a therapist her rape charge was a hoax, or she wasn't sure of the facts, or she's made the story up as revenge, those confessional notes can be suppressed.

The excuse for such a stonewall need not be strong; if a judge feels the accused requests this information because of "discriminatory belief or bias," or if it might threaten the "personal dignity" of the accuser, the accused may not even look at the notes. The accused can also be denied access to these vindicating notes if a judge thinks such a ban might encourage other victims to report sexual assaults, or even just to get counselling.

It is rare these days that the court rules so overwhelmingly against the rights of the accused. This Supreme Court generally gives every benefit of the doubt to the accused. And indeed those charged with attempted murder or bodily assaults will still enjoy access to the medical and psychological notes of their victims.

Exactly why the court reached such an extraordinary decision should be a matter of acute concern. For this is not a case of judicial overreaching, since the court upheld a law passed by Parliament. It is Parliament, therefore, that has a clear responsibility not to let the law stand as it is. Either it must be amended so all those accused of serious assault, whether sexual or not, are afforded access to all the documents relevant to their defence; or so all the alleged victims in such cases are afforded equal protection for their therapeutic records.

Justice may be a lady, but she is not Lady Luck.

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