Canada’s lower courts are now bearing the brunt of an ill-conceived and constitutionally fraught innovation in sexual assault law: reverse disclosure. Introduced under Bill C‑51 in 2018, this legislative regime forces accused persons to disclose in advance any private communications; such as texts, emails, or social media messages, they intend to use in cross-examination of the complainant. The complainant, in turn, is granted full participatory rights and legal representation to argue against the admissibility of such evidence. While politically expedient and publicly palatable in the wake of the Ghomeshi trial, the legal architecture of reverse disclosure has proven to be unstable, incoherent, and in many cases, plainly unconstitutional.

Trial courts across the country have issued sharply divergent rulings on how these provisions should operate. In some decisions, judges have deemed the mandatory timelines imposed on the defence to be incompatible with the fair-trial rights guaranteed by section 7 of the Charter. Others have questioned the very foundation of the regime, arguing that it unjustly burdens the accused with obligations that reverse the presumption of innocence and compromise the right to full answer and defence. Nowhere else in Canadian criminal procedure is a complainant, essentially a Crown witness, granted standing to challenge what evidence may be used in their own cross-examination. It is a distortion of the adversarial system.

The concept of reverse disclosure is not merely controversial; it is structurally flawed. The defence is no longer free to mount a case in the manner required by the facts and theory of the defence, but is instead placed under the supervision of the court and the complainant’s counsel, long before trial. This undermines not only trial strategy, but also the accused’s right to test the Crown’s case without disclosing defence evidence in advance. Worse still, it creates an asymmetry in which the complainant is effectively briefed on what the defence intends to argue, giving them an opportunity, conscious or not, to shape their testimony accordingly.

This problem is compounded by the legislative vagueness surrounding what constitutes a “private record” and how relevance, prejudice, and privacy should be weighed. The result has been legal uncertainty and procedural chaos. Judges are left to interpret a vague and often contradictory set of provisions, and defence counsel must navigate a landscape where each courtroom may yield different rules and interpretations. This is not how constitutional criminal law is meant to function.

Some courts have gone so far as to strike down portions of the reverse disclosure regime altogether, citing fundamental Charter violations. These judgments are not aberrations, they are warnings. When a regime designed to protect complainants ends up jeopardizing the constitutional rights of the accused, the entire framework must be re-evaluated. The criminal trial must remain a place where the presumption of innocence is more than a platitude, and where the right to a fair trial is not subject to the political winds of the day.

Until the Supreme Court addresses these concerns decisively, lower courts will continue to struggle with reverse disclosure. And in that struggle, justice itself hangs in the balance.