Notice of records in sexual assault cases unconstitutional, forfeiture of money for bail breaches, and radar speed evidence

This week on Legally Speaking with Michael Mulligan:

The Supreme Court of Canada has granted the Crown leave to appeal a BC Supreme Court decision that found a new law that required people accused of various sexual offences to provide advance notice of records they wish to rely on to the complaint and Crown to be unconstitutional. 

The law in question was passed following the Jian Ghomeshi case where the complainant’s credibility was undermined by email messages, they had sent that contradicted their evidence at trial. 

The BC Supreme Court judge that found the advance notice law to be unconstitutional said the following: “The danger that the complainant’s evidence may be tailored, consciously or unconsciously, is not illusory. This is why witnesses are almost invariably excluded from the courtroom until they have given their evidence.”

Also discussed is a BC Provincial Court decision that deals with the process and test to be applied when an accused person provides a cash deposit to be released on bail and then breaches their conditions of release. 

When this occurs, the Crown can make an application for forfeiture of the money and the accused person would be given an opportunity to show cause why this should not occur. There is a presumption that when bail conditions are breached, cash bail will be forfeited upon application by the Crown. 

Finally, a BC Supreme Court decision is discussed which was concerned with the requirements for radar readings to be accepted on a prosecution for speeding. 

Evidence of the following is required: 

1.     That the particular equipment used was properly operated by a qualified person;

2.     That the equipment function and accuracy were tested with whatever tests were required or suggested for it;

3.     That the tests or procedures indicated the equipment was operating properly; and

4.     That those tests indicated that the equipment was capable of accurately registering the speed of an alleged offending vehicle.

In the particular case being considered the evidence on these points was very brief and general, however, it was not challenged at trial in any way and, as a result, was found to be sufficient to permit consideration of the radar speeding reading.

Follow this link for a transcript of the episode and links to the cases discussed.