R. v. Shearing (2002)

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Ivon Shearing had appealed his convictions for sexual offences against several women and children between 1965 and 1989. Shearing was the leader of a marginal cult called the Kalbarians and had been convicted at trial of sexually assaulting his housekeeper's two daughters and five other "teenage disciples".

At the trial, Shearing's defence lawyer tried to cross-examine one of the complainants using her diary which had been left behind at the commune and turned over to Shearing when discovered by a cult follower. Defence counsel had wanted to cross-examine one of the complainants on why she had not recorded the sexual abuse in her diary. The trial judge refused the defence's cross-examination on the absence of references to the abuse in the diary.

Based on the specific facts of this case, the Supreme Court however said: "The defence was rightly precluded from asking the jury to assume that if the abuse had occurred it would have been recorded, but it does not follow that the defence should have been precluded from attempting to demonstrate its premise before the jury using the diary".

LEAF argued that the diary should have been returned to the complainant, its rightful owner. Cross-examination based on sexist myths should have no place in a truth seeking process.

Unfortunately, the Supreme Court of Canada ruled that the trial judge erred in restricting the accused's cross-examination of a complainant's diary in the Shearing case.

Supporting documents
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Supreme Court of Canada decision (2002)