Opinion: The Supreme Court decision on the ‘Ghomeshi’ amendments will help sexual assault victims access justice - The Globe and Mail
The amendments give women a greater opportunity to challenge the use of private records and evidence of their sexual history in court
a Supreme Court of Canada decision last week upheld the constitutionality of the so-called Ghomeshi amendments to the Criminal Code for sexual assault trials. The case, R. v J.J., focused on these amendments, which were designed to give women a greater opportunity to challenge the use of private records and evidence of their sexual history in court.
The amendments subject private records in the possession of the accused to the same processes already in place for judicial screening of a woman’s prior sexual activity when the accused seeks to introduce this evidence at trial to discredit her account. These records can include e-mails, videos, Facebook or Instagram posts and text messages. In addition, the amendments give complainants the ability to hire their own lawyers to contest the admissibility of the proposed evidence.
Prior to the amendments, a hearing was required only when the records were in the possession of a third party, such as a rape crisis centre or a doctor. If the accused had already come into possession of the records, no pretrial screening was required, no matter how sensitive and personal the information they contained.
Parliament’s 2018 amendments in part responded to the defence tactics in the sexual assault trial of Jian Ghomeshi, whereby complainants were confronted in cross-examination with their own sexualized text messages sent to the accused. But more importantly, the amendments responded to the current social and legal context in which sexual assault prosecutions take place.
