Consultations aside, the first thing to note is that this particular provision replicates an intent for the rehearing—and I'm talking not about the motion but about the original Bill C-2 provision—what already exists in subsection 753(6). That section has been around since the mid-1970s. There is abundant case law on the ability of crown and defence to not be restricted to evidentiary rules that are in place during trial. They have more latitude as it stands.
I think the issue here is, from the perspective of the motion, what its impact might be. It is clearly quite broad. I think it deserves significant analysis. On the face of it, I would agree it would probably be supported by many crowns. I'm not so sure it could be supported in the same manner by defence counsel. It may give an advantage beyond what, on its face, is apparent. I would also suggest you may need to consider ability to challenge that as it stands. While there's good rationale for victims, I think because we know what that rationale is, when we go beyond victims you have to ask yourself, is it proper for the state to be able to, for example, table evidence introduced at a prior hearing for a current hearing and suggest that there is no opportunity for cross or for examination of what has already been determined?
So it's not just broad on its face. I think it also has significant impacts that we haven't really been able to consider yet. It is clearly something that is out there, is being considered, but I don't think we're prepared at this time to suggest it will work as fully as intended and without some unintended consequence.