That's entirely correct. It is a point that's made in the Criminal Lawyers' Association's brief. Right now, section 276 applications that require the defence to vet questions about other sexual activity with the trial judge before trial are a limited exception to the rule that the defence does not have to disclose its case strategy. That was something Parliament was allowed to do. They did it, but unsurprisingly, the history of that provision has always kind of walked a fine line between constitutionality and unconstitutionality because it is so unique.
One of the things that I would say make it constitutional now is that it is the crown that can share the defence's case strategy with the complainant, and the crown that solicits the complainant's input on a section 276 application. None of those discussions is subject to privilege. There's a police officer present, and if I want to explore the degree to which a complainant used my section 276 materials to prepare, I can ask him or her about it in cross-examination.
If the complainant has his or her own counsel, that's no longer something I can do. We will never know. It will frustrate the search for truth, whether the complainant has in fact prepared in an ethical way just reminding themselves of things they forgot or if they prepared in a more woodshedding kind of way, trying to tailor their evidence to material that exists. That's not something we can look into if the complainant is represented.