A Modern Assault on the Rights of the Accused

Criminal Lawyer Blog

Yesterday was a small victory for the falsely accused. I watched as my dear friend, Mike Bullard, got to share his story for the first time.

Mike Bullard was tarred and feathered by the Toronto media and was the victim of a social movement that has galvanized our politicians into enacting legislative amendments which have dealt irreparable harm to the right to full answer and defence. Today, he had the chance to tell his side of the story.

To give the reader some background: Mike Bullard was a household name in Canada for about 20-years’. He ran the only Canadian-run late night talk show in our nation’s history. His calm demeanour coupled with that boyish smile endeared him to legions of Canadian fans. Then the bottom fell out.

In 2016, Mike began dating Cynthia Mulligan; a Canadian media personality in her own right who had considerable sway and influence. Working for one of the largest telecommunications companies in North America (I’m not going to name them because they will probably sue the balls off my dog), Cynthia Mulligan and the Office of the Crown Attorney in Toronto were able to bring bogus charges in a 5-year-long smear campaign which nearly killed Mr. Bullard.

At the same time, the #MeToo movement was in full swing and Mike Bullard was called a stalker, abuser, and every other vile name under the sun before his charges were even brought to court.

In the end, Mike Bullard pled guilty to two counts of harassing communications in an effort to end the ordeal and move on with his life.

The problem with this situation is that Mike Bullard’s story is repeated in courthouses throughout Canada on a daily basis because the social and political reckoning that was the #MeToo movement is still being felt through legislative amendments to the Criminal Code.

Some of the amendments to the Criminal Code are relevant to Mike’s story and others are not. What they have in common, however, is these legislative amendments are a reflection of the political and legal ramifications of the #MeToo movement.

Like Your Preliminary Inquiry? No Mas!

On June 21, 2019, Bill C-75 received Royal Assent and was passed into law. Bill C-75 was an omnibus bill which made sweeping amendments to the Criminal Code, Youth Criminal Justice Act (YCJA), and consequential amendments to other criminal justice legislation.

The federal government stated the main goal of Bill C-75 was to modernize the criminal justice system and reduce systemic delay in courthouses throughout Canada. The real purpose, however, quickly came to light as the effects of Bill C-75 were realized.

One of the most important effects of Bill C-75 was to remove the right to a Preliminary Inquiry for persons charged with sexual assault. Prior to Bill C-75, if the Crown was proceeding by Indictment on a charge of sexual assault, the accused had the right to a Preliminary Inquiry (for a detailed explanation on indictable vs. summary conviction offences, click here).

The Preliminary Inquiry is basically a dry-run at trial where, in the context of a sexual assault case, the complainant would have to testify. More importantly, the complainant would be subject to cross-examination by the defence. This cross-examination would be used to identify and exploit inconsistencies in the complainant’s testimony wherein a skilled defence lawyer could expose these inconsistencies during cross-examination at trial. It was an invaluable tool when protecting the rights of accused persons.

Cue the #MeToo movement. The social and political pressures of the #MeToo movement do not exist in a vacuum. Indeed, the ramifications are still being felt in the criminal justice system. One of the most significant effects of the #MeToo movement was to remove the right to a Preliminary Inquiry for persons charged with sexual assault.

Why remove this fundamental procedural protection? Great question! The main reason is because cross-examination is seen as too hard on complainants in the wake of the #MeToo movement. We need to protect complainants from testifying more than once because it could be too damaging for them.

I’m not saying cross-examination is pleasant. I’ve been that asshole defence lawyer aggressively cross-examining a complainant in court. The problem with Bill C-75 and the amendments to the Criminal Code in the wake of the #MeToo movement is they ignore the fundamental part of a criminal trial which is finding the truth while protecting the rights of the accused.

A criminal trial is not about the complainant. It is about the accused and whether their actions meet the threshold for the offence(s) which they are charged with. Canadian history is punctuated with notable miscarriages of justice which led to wrongful convictions. Just ask David Milgaard, William Mullins-Johnson, or Steven Truscott about the importance of protecting the rights of the accused in a criminal trial. Removing procedural protections for accused persons as a knee-jerk reaction to a social movement can, and likely will, lead to wrongful convictions.

Mike Bullard was not directly affected by Bill C-75. Mike Bullard was, however, directly affected by the social and political attitudes which led to the passing of Bill C-75. The #MeToo movement was also a contributing factor in the malicious treatment by Kevin Donavan, the Toronto Star, and abusive behaviour by an Assistant Crown Attorney all geared toward nailing a perceived abuser of women who was in fact innocent.

As a response to Mike Bullard being able to tell his story for the first time, I am going to write a series of articles on how the #MeToo movement has been used to take away fundamental protections for the accused. These articles will discuss the legal ramifications of #MeToo, nothing else.

It’s time to bend back a little because #MeToo is now #MeTooTooFar.