Hoggard case highlights need for clarity on reforms to sex assault trials: experts

The Hoggard trial is “definitely one of, if not the most, high-profile sexual assault cases following the Ghomeshi verdict, and many of these changes to the legislation were seen as knee-jerk reactions to the Ghomeshi case,” said Daniel Brown, a Toronto defence lawyer and vice-president of the Criminal Lawyers’ Association.

Brown, who made submissions to the Supreme Court arguing the new rules are unconstitutional, and Dawne Way, a Toronto lawyer who argued in favour of the changes, said some of the legal issues that arose during Hoggard’s trial – such as what is considered a private record and the process through which that is determined – reflect broader confusion in how the rules are applied.

“The legislation has given us what we need, and what we require now is some guidance from the Supreme Court,” said Way, who specializes in representing complainants and witnesses in sexual assault cases.

The rules introduced in 2018 established a new procedure for screening records in the possession of the defence for which the complainant has a reasonable expectation of privacy, which could include text messages and emails.

They also gave complainants the right to participate, with legal representation, in the hearings on the admissibility of such records and any evidence related to sexual history.

The federal government said the changes aimed to “help make the criminal justice system more compassionate towards complainants in sexual assault matters.”

Critics, however, said they effectively give complainants a preview of the defence’s strategy, putting the accused at a disadvantage and compromising their constitutional right to a fair trial.

Some have criticized the new rules as a reactionary response to the Ghomeshi case. In one of the key moments of that trial, defence lawyers confronted one of the complainants with friendly emails she sent the radio host a year and 18 months after the alleged assaults. That complainant had testified she didn’t contact Ghomeshi after the alleged assaults.

In fact, Way said, the genesis of the reforms can be traced back to the 1990s, to a case in which the defence was in possession of the complainant’s diary and sought to use it during cross-examination. A Senate committee in 2012 also found the issue needed to be addressed, she said.

In the Hoggard case, the admissibility of evidence related to some records – including text messages the singer exchanged with the younger complainant before the alleged sexual assault – was determined before the trial began.

But the issue emerged again mid-trial as the defence cross-examined the Ottawa complainant. Defence lawyer Megan Savard sought to introduce as evidence a phone call between Hoggard and that complainant – a record for which there had been no advance notice.

Prosecutors objected, saying the call should be deemed private because it was an emotional, vulnerable exchange recorded without the complainant’s knowledge. As such, it should have been vetted before trial in the process laid out under the new rules, with the complainant allowed to participate, they argued.

Raising the matter during cross-examination – a time during which the complainant is barred from discussing her evidence with anyone, including a lawyer – effectively forces her to choose between exercising her rights and continuing her testimony, Crown attorney Jill Witkin argued.

Savard argued the call did not constitute a private record and thus shouldn’t require a special application. The defence lawyer added she had only just decided to use the recording in light of the complainant’s answers during cross-examination, and so could not have brought it up earlier.

Ontario Superior Court Justice Gillian Roberts expressed outrage that the matter had been raised so late in the proceedings, but eventually ruled the call wasn’t a private record. She found, however, that the complainant should be allowed to hear the call privately, under supervision, before it was played for the jury.

Way, who largely represents complainants and witnesses in sexual assault cases, said she was “somewhat surprised” by the judge’s finding on the call, given that in her view, it would constitute a private record.

More importantly, she said, the fact that the nature of the call was decided without input from the complainant illustrates a recurring issue in how the rules are being applied, she said. In making the changes, legislators intended for the complainant to “have a voice on that very issue,” she said.

“It’s very, very difficult for complainants to reap the benefits of the intention of that legislation when that kind of an application is sprung mid-trial,” Way said.

Brown, the defence lawyer, said the arguments surrounding the call show it’s not clear, even for experienced litigators, what is considered a private record and when an application needs to be brought in advance.

“We’ve spent a lot of time over the last few years kind of trying to interpret this legislation, and every judge has arrived at a different conclusion about what is or isn’t a private record,” he said.

Some private records, such as texts of a sexual nature, are also considered evidence of sexual history, which is subject to a different process to determine its admissibility, he said.

Some judges have also concluded that vetting records in the possession of the defence in the middle of a trial, after a complainant has testified, would help preserve the accused’s right to a fair trial.

Janine Benedet, a law professor at the University of British Columbia who specializes in the law of sexual offences, said that approach may have “intuitive appeal” but it is “arguably unworkable.”

“We can’t just be suspending the trial in the middle … for who knows how long for these applications to be brought forward,” she said.

“Even if that is going to be the case, then they’ve got to be proper applications in which there’s a hearing and in which, at least according to the law as it currently stands, the complainant has standing and can be represented by counsel.”

The reforms represent an “important, good-faith attempt” to respond to a growing amount of electronic communication “that often can be just as private as somebody’s sexual history or their counselling records,” she said.

But even with those in place, the “central problems” in sexual assault trials remain, she said.

She noted the younger complainant in the Hoggard case was questioned about why she chose to wear matching underwear before meeting the singer, and the defence argued both complainants lied about being raped because they were upset after being rejected.

“The complainants are still being pilloried using all the same … stereotypes that the defence always trots out: you’re a woman scorned, you’re embarrassed, you’re ashamed, you’re trying to seek revenge,” Benedet said.

“These provisions, yes, they allow for notice to the complainant about certain kinds of communication, but at the end of the day, the core of what’s going on is still that.”

This report by The Canadian Press was first published June 7, 2022.

Paola Loriggio, The Canadian Press

by Canadian Press

Hoggard case highlights need for clarity on reforms to sex assault trials: experts

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