Criminal Law

SCC dissent in rape shield case ‘speaks volumes‘: Zita

By Paul Russell, Contributor

The “stark dissent” in a recent Supreme Court of Canada (SCC) ruling that involves the right of the accused to explore the sexual history of the complainant could influence how defence lawyers approach rape shield provisions in the future, says Toronto criminal lawyer Jessica Zita.

“In every criminal trial defence, one of the fundamental principles is that whenever evidence is introduced by the Crown, the defence should have the right to challenge it, especially if that evidence goes to the elements of the offence,” says Zita, an associate with Hicks Adams LLP.

She cites a Canadian Press story about a recent SCC decision where a man unsuccessfully argued that a misapplication of Canada’s rape shield law unfairly hamstrung his defence in a sexual interference case.

According to the article, a 15-year-old girl claimed her 20-year-old cousin sexually assaulted her on a family camping trip, though he denied any sexual contact happened.

During pre‑trial proceedings, he applied under s. 276 of the Criminal Code — also known as the rape shield law — for permission to cross‑examine the complainant about her prior sexual activity, however, the application judge called the proposed line of questioning a “fishing expedition.”

“The prosecution relied heavily on the fact that the teen, who said she was a virgin at the time of the alleged assault, became pregnant around that time,” Canadian Press states. “Because she had terminated her pregnancy and the fetus was destroyed, no DNA evidence was available to prove paternity.”

The judge turned down the s. 276 application, ruling the accused could only question the teen about her understanding of the term “virginity” and her sexual inactivity.

After the first judge withdrew from the case and another took over, the man reapplied to reopen the s. 276 application, but was told the court was bound by the first ruling, Zita tells

“The trial went on, with the defence limited to asking questions about her understanding of virginity and her sexual inactivity, but not allowed to ask about sexual activity, though there’s a real difference there,” she says. “He wasn’t allowed to challenge the statement that he was the only man who had been in physical contact with her.”

After the man was found guilty of sexual interference, Ontario’s Court of Appeal set aside that conviction, ruling that he should have been allowed full answer and defence about the Crown’s evidence, says Zita, who was not involved in the matter and comments generally.

“The Supreme Court gives an interesting decision because it agrees with the appeal court in finding that the first trial judge was wrong in applying the s. 276 rule and the second trial judge was wrong to not reopen the application,” Zita says.

“Despite these errors in the application of the law, the majority of the court ruled that since he was still allowed to ask limited questions in cross-examination, that was enough for him to argue his case and therefore there was no miscarriage of justice.”

She explains the court invoked curative proviso, which is a section of the Criminal Code that says if there’s no miscarriage of justice, small errors in the proceedings don’t matter.

“Two dissenting Supreme Court judges found the defence was precluded from being able to effectively challenge the Crown’s case,” Zita says. “The man was convicted on Crown-led evidence that she was never sexually active until that night, yet he was not able to effectively challenge that.”

While she appreciates the value of rape shield laws, which protect people from answering irrelevant questions when they are in vulnerable states, Zita says everyone is still entitled to a full defence.

According to court documents, the two dissenting judges wrote, “The errors in this case were not ‘harmless’ or ‘minor.’ Nor was the evidence overwhelming … while the immediate effect of the ruling was to prohibit [the man] from cross-examining the complainant on the legitimate theory that a different person was the cause of the complainant’s pregnancy … he was denied an entire process of questioning.”

Zita agrees the first trial judge mishandled the s. 276 ruling, with the second judge compounding that error when he failed to reopen the application.

“This man has to live with this decision, but going forward, it will be interesting to see if defence counsel in other cases will try to work this dissent into their s. 276 arguments,” she says.

“The dissent speaks volumes about this decision, and I think that’s where we’re going to see tension in the future.”

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