This case concerned the use of a complainant’s diary in cross-examination during a sexual assault trial.
LEAF, with the involvement of West Coast LEAF, intervened before the Supreme Court of Canada.
Facts
Ivon Shearing was convicted for sexual offences committed against several women and children between 1965 and 1989. Mr. Shearing was the leader of a marginal cult and had used his status as cult leader to engage in sexual contact with young girls and women in the cult. One of the complainants had kept a diary, which she left behind at the commune. The diary, which did not mention sexual abuse, was given to Mr. Shearing.
At Mr. Shearing’s trial, his defence lawyer tried to use the diary while cross-examining the complainant. The trial judge allowed Mr. Shearing to cross-examine the complainant on entries the defence considered probative, but not on the absence of entries related to sexual abuse. The British Columbia Court of Appeal upheld that decision. Mr. Shearing appealed to the Supreme Court of Canada.
Arguments
LEAF argued that Mr. Shearing should have been required to return the diary to the complainant. If he wanted to obtain access to the diary, he should have then applied under the personal records sections under the Criminal Code. Cross-examining a complainant based on a lack of diary entries on alleged sexual abuse had no probative value, was not necessary to make full answer and defence, and was based on discriminatory myths and stereotypes.
LEAF also argued that any allegations of collusion between complainants needed to be held to high evidentiary standards, avoiding the use of myths and stereotypes.
Outcome
A majority of the Supreme Court of Canada held that Mr. Shearing should have been allowed to cross-examine the complainant on the absence of entries in her diary. As a result, the majority ordered a new trial for the offences related to the complainant.
LEAF is grateful to Sheilah Martin and Ritu Khullar, counsel in this case.
LEAF’s interventions are all guided, informed and supported by a case committee composed of academics and practitioners with expertise in the relevant issues. The case committee members for this intervention were Sondra Gibbons, Diana Majury, Margaret Denike, Jennifer Koshan, Dianne Martin, Veronica Jackson, Theresa Louise Stowe, Gail Marion Dickson, and Elizabeth Thomas. LEAF gratefully acknowledges their contributions to the arguments in this factum.
Download the factum 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].
