Canada’s sexual assault laws – as laid out in the Criminal Code – are often said to be among the most progressive towards women in the world. Our “rape shield” laws are explicitly intended to balance the Charter rights of all involved: the fair trial rights of the accused, the truth seeking functions of the court (for the public), and the privacy, security and equality rights of the complainant. These laws are designed in part to encourage reporting of sexual violence, but also to guard against impermissible reasoning based on stereotypes and myths about sexual assault complainants.

Unfortunately, close to 20 years after the rape shield regime was upheld as constitutional in R v Darrach, Canadian trial courts continue to struggle to apply these laws appropriately, too often falling back on the myths and stereotypes LEAF has been working to debunk for decades. The Supreme Court of Canada’s decision in R v Barton is the most recent egregious example of a trial judge’s failure to understand and apply this regime properly.

Simply put, despite the goal of limiting when complainants can be asked about their prior sexual history, they continue to be subject far too often to questioning that draws on the very myths and stereotypes the rape shield laws were intended to ban. This is all the more true for particular vulnerable complainants – those who work in the sex industry, those in domestic relationships with the accused, and those who are intoxicated at the time of the assault. Given the persistence of such myths and stereotypes, LEAF believes complainants need an effective mechanism to review a trial judge’s decision allowing them to be cross-examined about their prior sexual history in real time.

It was this concern that motivated LEAF to intervene in the recent mid-trial application brought by the complainant in R v Boyle seeking to quash the provincial court judge’s decision that she could be cross-examined on previous sexual history with the accused. LEAF intervened in the application before the Superior Court of Justice to argue in favour of a complainant’s right to seek such a review (known as a certiorari application) before being subjected to cross-examination.

LEAF is dismayed by the Superior Court of Justice’s decision on that application, which was recently released. The judge ruled that complainants do not have the right to ask a higher court to review a judge’s decision allowing a complainant to be cross-examined about her prior sexual history, even where the trial judge has committed an error of law on the face of the record. Although that was sufficient to decide the issue, he went on to find that he did not think the judge had erred in his application of the rape shield law.

LEAF believes that the decision fails to adequately balance the competing Charter rights at play and is at odds with Supreme Court jurisprudence and Parliament’s recent efforts to empower sexual assault complainants. LEAF looks forward to revisiting these issues in a future case and will remain vigilant in safeguarding the Charter rights of complainants.

LEAF thanks Gillian Hnatiw and Julia Wilkes of Adair Goldblatt Bieber LLP, and Zohar Levy of Fasken, who acted so capably as pro bono counsel for LEAF on this important intervention.

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