New law may jail innocent people

Some laws passed by our government are enacted in ways that are later deemed to be unconstitutional. It happens. And it usually takes years before a successful challenge makes it all the way to Supreme Court to be overturned.In the meantime, many citizens may be charged and tried under a law that is later found to violate their rights. In Canada there are many people currently convicted of marijuana possession which has now become legal. For others they will be convicted under unfair rules of evidence later overturned by constitutional challenge.In terms of marijuana possession, at the time of conviction it wasn’t legal for them to possess the drug so, technically, these “unethical” pot smokers did break the law. But their crimes are no longer shocking or meaningful even though those convicted will likely retain a criminal record. In cases of unfair trials, the convictions have never been in keeping with justice but the convicted rarely have the means to fight back; they just go to jail for crimes they may not have committed and try to rebuild their lives afterwards.Most citizens don’t expect to find themselves on the wrong side of a courtroom. Generally, we believe that if someone gets charged with a crime they must have done something wrong even if not exactly what they were charged with. Though we all break small laws every day (like jaywalking) our societies function because most people have faith that the justice system protects us. In fact, we barter away some minor freedoms in exchange for a sense of safety. But when someone gets charged with a serious crime we all take note.“Where there's smoke there’s fire.” And many Canadians may now be reading this article through a haze of newly legal smoke, quite content in their belief that they’ll never be accused of a serious crime.Most people who don’t intentionally harm another human being don’t fear the legal system because why would they have to worry? Legal problems happen to other people—people who are probably guilty. Aside from the marijuana law changes, another law was recently passed through the Senate this year that will change the rules of court for people facing trial in the Canadian legal system. Those subject to the new change in legal proceedings, Bill C-51, will likely gain little sympathy from the public because the charge these people face is sexual assault.While we can all sympathize with people who smoke pot for medical reasons or social purposes, nobody condones sexual assault. Rape has never been a social endeavour. There is no socially acceptable purpose or reason to sexually assault someone whether or not either party was drunk or stoned at the time.We all know that sexual assault does happen with disturbing frequency and modern societies universally condemn it. What is under dispute with the new regulations is whether or not anyone accused of such a hideous crime deserves a fair trial.The public ethos towards alleged sex crimes over the last decade has been increasingly focused on justice for victims. Complainants are now granted the automatic status of “victim” or “survivor” while still pretending that the accused is granted a presumption of innocence.Due process is a legal right, not a social right.While it is true that actual sex crimes, usually by design, take place without witnesses and are extremely difficult to prove beyond a reasonable doubt, the nature of this type of allegation causes problems for both the complainant and the accused. How do we obtain justice with a crime that rarely has witnesses or external evidence?When all we have is two people with opposing testimony, how do we decide who to believe?Sexual assault law is fraught with complexities, especially when alcohol or drugs are involved. People sometimes do make weird choices, especially when drunk. We sometimes do stupid things and we often have trouble bearing the consequences for those choices whether we are male or female. Quite simply, because each case in a sexual allegation is unique, the criminal courts do not permit a judge or jury to “choose” between testimony -- even though convictions for sexual assault can now be obtained based only on testimony from an alleged victim. Testimony is evidence.That said, sexual interactions can be complex. Humans are human.As we head into the holiday season many people, male and female, will be drinking and enjoying time off work. They may also be smoking newly legal marijuana in the course of their festivities.Next year, those same people may find themselves facing allegations of sexual assault on the grounds that some “after party” was lacking legal consent. It’s a downer but it’s true. What you think is consent today won’t stop police from charging you tomorrow if your sexual partner disagrees.The new law in Canada, Bill C-51 recently passed by the Senate, will now require all those accused of sexual assault to produce their defence evidence in advance of trial. For those defending against sexual assault charges in Canada, they can no longer wait for their day in court to show contradictions or evidence of consent that will catch their accusers off guard. You have a video of someone begging you for sex on the night you are accused of assault? It might not matter any more.Evidence of consent may now be blocked as a potential “rape myth.”For Christmas this year, the Canadian government decided that the New Year’s resolution to deal with the complex problem of sexual assault is to undermine the rights of the accused in order to obtain more convictions.Evidence of innocence is being treated by the Canadian government as an unacceptable ambush tactic.Contrary to popular belief, people accused of sexual assault don’t withhold evidence in order to interfere with or avoid justice. The accused are not trying to shock or surprise anyone as some sort of trick in front of a judge.No one wants to spend thousands of dollars just to embarrass their accusers in court. Under advice of their lawyers, the accused often reserve their defence evidence for court because revealing it in advance would allow for the accuser to alter the complaint, accommodating inconvenient emails or texts.With advance notice that an accused has messages undermining the accusation of non-consent, there are “legal experts” available who can be brought in by prosecutors to explain away anything inconvenient to dispute the available evidence.But what if the method of prosecution and the new rules of court are unconstitutional and you get wrongfully convicted? Well, I guess that’s going to happen to a lot of people before the new disclosure rules in Canada get a hearing before the Supreme Court.Some laws had good intentions but made for bad law. Nevertheless, innocent people may go to jail in the meantime while we wait to find out if civil rights have been obliterated by a desire for social justice.So if you live in Canada, watch out for that mistletoe this year and keep yourself safe.Can a woman in Canada consent to sex anymore? The new law tells us that anything of a “sexual nature,” including emails to you saying how much the woman loved an intimate encounter after the event took place, are potential “rape myths” that need to be disclosed before trial. And, by the time you get to trial, your accuser may have figured out a reason why she said it without consent. No more surprises for the prosecutor. No more acquittals.Merry Christmas, Canada. And if you feel safe because you don’t live in Canada, just wait a year or two. Trudeau style “justice” is coming soon to a court near you.