Disclosure in the Defence of Sexual Assault

Authors: Tony Zipp

Abstract:

This paper will identify developments in the law in British Columbia, Canada, to disclosure to be provided to the defense in cases of sexual misconduct and sexual assault. Disclosure is the keystone to providing a full and robust defense to such charges. The investigation of sexual misconduct and sexual assault involving children usually involves multiple government agencies. This includes child welfare agencies, police and other social service participants. This paper will examine situations in which Courts have ordered disclosure of material from non-police agencies in criminal cases of charges of sexual assault when that material is ‘obviously relevant’ to the charges to enable the defense to present full answer and defense to the charges. The methodology of the oral presentation/paper will be a case analysis of decisions of the Supreme Court of British Columbia, the British Columbia Court of Appeal and the Supreme Court of Canada in the area of disclosure to the defense in criminal trials, including those for sexual assault and sexual misconduct. The emphasis will be on the decisions that expand the disclosure available. The robust defense of these charges is significant to the rule of law as it engenders public confidence in the Judicial system by remembering to protect the innocent while prosecuting these allegations. As such, disclosure is fundamental to human rights and human security. Human rights and human security cannot exclusively be confined to alleged victims but must also protect the rights of those charged to a fair Judicial process. This oral presentation/paper will illustrate that fulsome disclosure enhances the rule of law and law enforcement rather than hinders the prosecution of charges.

Keywords: defence, law, human rights, sexual assault, sexual misconduct