This case concerned the constitutionality of Canada’s “rape shield” provisions. These Criminal Code provisions restricted the ability of defendants in sexual assault trials to lead evidence of a complainant’s sexual history or sexual reputation.  

LEAF intervened at the Ontario Court of Appeal. LEAF also intervened at the Supreme Court of Canada, this time in coalition with: 

Facts 

Both Mr. Seaboyer and Mr. Gayme were accused of sexual assault, and charged under the Criminal Code. At his preliminary hearing, Mr. Seaboyer sought to cross-examine the complainant in his case about her sexual history and her sexual conduct after the alleged assault. Similarly, at his preliminary hearing, Mr. Gayme sought to introduce evidence about the sexual history of the complainant in his case. Neither was allowed to proceed because of restrictions created by the rape shield provisions, which: 

Both defendants were committed to stand trial, and then applied to the Supreme Court of Ontario to have their committals set aside. The Court held that the rape shield provisions violated the Charter and were inoperative.   

The Crown appealed to the Ontario Court of Appeal, which held that the provisions could, in some cases, violate the Charter rights of the accused and could not be saved under s. 1 of the Charter. However, the Court also held that the provisions would continue to apply except in rare situations where they would have an unconstitutional effect. Mr. Seaboyer and Mr. Gayme appealed that decision to the Supreme Court of Canada. 

Arguments 

At the Ontario Court of Appeal, LEAF argued that the provision prohibiting the introduction of sexual reputation evidence was constitutional. This provision solely excluded irrelevant or minimally relevant evidence. LEAF argued that, in the vast majority of cases, the provision limiting the introduction of sexual history evidence did not violate ss. 7 or 11(d) of the Charter. In the limited circumstances where the provision would exclude evidence relevant to the defendant, the provision would be of no force and effect. 

LEAF significantly changed its approach in arguing before the Supreme Court of Canada, this time working in coalition with rape crisis and treatment centres, and organizations using policy, research, litigation, organizing, and action to advocate on behalf of survivors of sexual violence. The Coalition argued that both provisions were constitutional, as any evidence excluded was either irrelevant or of very limited probative value and also highly prejudicial. If there were a violation, it was justified because of the role the provisions played in protecting and enhancing the rights of women and children to equal protection and benefit of the law.  

Outcome 

The Supreme Court of Canada upheld the provision which did not allow sexual reputation evidence to be introduced to undermine or support the complainant’s credibility. A majority of the Supreme Court, however, found that the other rape shield provision – which limited sexual history evidence – allowed for an accused’s ss. 7 and 11(d) Charter rights to be infringed. The majority held that this could not be saved under s. 1 of the Charter, and struck down the provision.  

LEAF’s advocacy in this area did not end with this case. As part of a coalition of women’s organizations, LEAF played an important role in consulting with Canada’s Minister of Justice to ensure that the new rape shield provisions addressed women’s equality concerns. When those provisions were challenged in court, LEAF was there to argue in support of their constitutionality. For more information, see our intervention in R. v. Darrach.  

LEAF is grateful to Elizabeth Shilton and Anne Derrick, counsel before the Supreme Court of Canada, and Mark Sandler, counsel before the Ontario Court of Appeal. LEAF is also grateful to volunteer members of the case committee, including: Christine Boyle, Brettel Dawson, Renate Mohr, and Elizabeth Sheehy. 

Download LEAF’s Ontario Court of Appeal factum here.

Download the Coalition’s Supreme Court of Canada factum here.

Read the Ontario Court of Appeal decision here.

Read the Supreme Court of Canada’s decision here

Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].