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CONSTITUTIONAL ISSUES - Legal Rights - Right to full answer and defence

Tuesday, October 01, 2019 @ 8:35 AM  

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Application by the accused, who was charged with sexual assault and sexual interference, for a declaration that sections 278.92(1), 278.92(2)(b) and 278.94(2) of the Criminal Code were unconstitutional. The applicant had in his possession a diary and text messages to a third party that were written by the complainant, and which he sought to adduce at trial. The impugned provisions required a hearing as to admissibility of the materials, and required the defendant to disclose the materials to the complainant in the context of the admissibility hearing. The defendant argued that his right to make a full answer and defence as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms (Charter), and his right to a fair trial guaranteed by s. 11(d), were infringed by this section in that it potentially limited or eliminated a legitimate avenue of cross-examination, and would greatly weaken the efficacy of such examination even where records in his possession are allowed to be used.

HELD: The effect of disclosure to the complainant raised concerns that the complainant could then modify his or her testimony. Mandatory disclosure to the prime witness in a prosecution reached to the centre and integrity of the trial process. The combined effected of the impugned provisions was to seriously limit the accused’s ability to effectively challenge the veracity of a complainant in cases where the accused was in possession of potentially significant material that would be utilized in cross-examination to counter evidence already given in court. The effect constituted a serious infringement of the accused’s ability to challenge the complainant in seeking truth at trial. The accused’s right to a full answer and deference and to a fair trial under ss. 7 and 11(d) of the Charter were infringed. The breaches were not justified under s. 1 of the Charter.

R. v. A.M., [2019] S.J. No. 281, Saskatchewan Provincial Court, B.D. Henning Prov. Ct. J., August 1, 2019. TLD-September302019004