Sex assault trial reforms followed Ghomeshi case. Some experts worry Hockey Canada trial could spark more

Following the public outcry over the Jian Ghomeshi case, some legal scholars and sexual assault survivor advocates lauded changes made to the Criminal Code that would prevent defence lawyers from surprising complainants at trial with past emails or text messages with the defendant.

However, those changes have proven frustrating for many defence lawyers, and some legal experts say they've significantly delayed and complicated sexual assault trails and made them more unfair for defendants. 

Now, experts are concerned that the high-profile trial of five former World Junior hockey players accused of sexually assaulting a woman in 2018 may also lead to legislative changes that could further complicate the system. 

"I think there are many who … would be concerned or very troubled if some or all of the players were acquitted, as there were many in the public who were concerned or troubled by Ghomeshi's acquittal," said Lisa Kelly, an associate professor of law at Queen's University. 

She says her concerns are about what she called "this kind of reactive lawmaking."

In 2016, Ghomeshi, the former CBC Radio host, was acquitted of all charges relating to sexual assault allegations made by three women.

During the trial, Ghomeshi's lawyer, Marie Henein, surprised some of the complainants during cross examination by confronting the with emails they had sent to Ghomeshi, suggesting inconsistencies in their testimony about contact they'd had with him following the alleged assaults.

In 2017, Parliament introduced bill C-51 that amended sections of the the Criminal Code, in part,  to remove deterrents that might prevent victims of sexual offences from coming forward. 

The amendments, referred to by defence lawyers as the "Ghomeshi rules" or "reverse disclosure," meant that defence lawyers could no longer surprise complainants with such communications.

Now, if the defence wants to include them at trial, they must make an application to the judge, who determines their admissibility. Complainants can then hire their own counsel to get access to these communications and also argue whether they should be admitted as evidence. 

"It prevents trial by ambush, which we really shouldn't be having in Canada," said Daphne Gilbert, a law professor at the University of Ottawa. "The surprise factor shouldn't be a part of how trials get won or lost."

Often, these records are letters or texts that sometimes contain sexual content that should be vetted under prior sexual history before coming to trial, Gilbert said.

"But because there was no screening mechanism, all of that was coming in without that vetting," she said. "It was inappropriate evidence all along that should never have come in, but there was no way to catch it ahead of time."

Yet some criminal defence lawyers argue that these rules violate their clients' Charter rights to a fair trial and eliminate a potentially important legal tool to challenge the credibility of the complainant on the spot.