The Supreme Court has restored a conviction in a sexual-assault case, despite concluding that the accused man was deprived of his right to question the complainant on her sexual history.
It is the third ruling in three months in which the court has attempted to clarify a law that protects sexual-assault complainants from intrusive questioning, and to send a message to sexual-assault survivors that their complaints about the justice system are registering at the highest court level.
“Inquiries into any individual’s sexual history are highly intrusive," Justice Andromache Karakatsanis wrote for the majority, and in a reference to the underage complainant, added: "The threat to the complainant’s dignity and privacy is even higher when the proposed questions surround the conduct of a 15-year-old.” Others in the majority were Chief Justice Richard Wagner, Justice Michael Moldaver, Justice Rosalie Abella and Justice Sheilah Martin.
The Crown, not the defence, introduced the 15-year-old complainant’s sexual history, eliciting from her that she had been a virgin before attending a family camping trip in Cayuga, Ont., on Canada Day weekend in 2013, when she said a 20-year-old cousin sexually assaulted her, leading to a pregnancy. (The case is known as R.V., to protect the complainant’s identity.) The 20-year-old denied any sexual involvement with his cousin.
When lawyers for the defendant asked a lower-court judge for permission to question the complainant as to whether she had been engaging in sexual activity with anyone else around the time she became pregnant, the judge said the federal rape-shield law prohibited the question. The law prohibits any use of sexual history to argue a complainant was less credible or more likely to consent, though other uses may be permitted by a judge.
Ontario Court Justice Kathleen Baker, who had not made the initial rape-shield ruling, refused to reconsider the issue and convicted the man of sexual interference (Canada’s age of consent is 16), saying his testimony had lacked credibility; she sentenced him to four years in prison. The Ontario Court of Appeal threw out the conviction and ordered a new trial. Ontario prosecutors appealed to the Supreme Court.
The highest court ruled 5-2 that prohibiting the defendant’s question was an unfair way to apply the rape-shield law; however, the majority found the accused man’s lawyers had nonetheless managed to conduct an effective cross-examination, and the man had still received a fair trial. The dissenters – Justice Russell Brown and Justice Malcolm Rowe – accused the majority of turning established precedent “on its head” by convicting a man denied the cross-examination to which he was entitled.
In addition to the guilty verdict, the court’s majority said that in sexual-assault cases from here on, defence lawyers may need to propose specific questions to judges before asking them. It also stressed that judges need to keep a close eye on the questioning of complainants, when they have given initial approval for limited questioning of sexual conduct.
The case highlighted the importance of cross-examination in sex-crimes cases: there were no witnesses and, while there was a pregnancy, there was no physical evidence of who the father was. (The complainant terminated the pregnancy and the fetal tissue was disposed of.)
Megan Savard, a lawyer for the accused, said in an interview she was disappointed for her client.
“It’s hard to reconcile,” she said of the guilty verdict despite the limits on her client’s right to cross-examine.
She also said the majority had oversimplified what cross-examination is about.
“Conducting an effective cross-examination is not just a matter of identifying the facts you want to elicit, putting them on a list and then checking that list off like a robot.” She added that it would often be impractical to have specific questions approved in advance, because during pretrial hearings, lawyers may not know yet what questions will be necessary.
In three cases since May, the Supreme Court has tried to end confusion in the lower courts over Canada’s 25-year-old rape-shield law.
The first of the three cases, Barton, a murder case, was the most controversial. An Indigenous mother of three had died from blood loss during or after two consecutive nights of a paid sexual engagement. An Alberta trial judge, Justice Robert Graesser, allowed evidence of the first night’s activity to be admitted without a rape-shield hearing, and eventually acquitted the man of murder and the lesser charge of manslaughter. (Whether a sexual assault had occurred was relevant to manslaughter.) The Supreme Court threw out the acquittal and ordered a new trial on a charge of manslaughter.
In Goldfinch, also an Alberta case, the accused man had been permitted at trial to introduce evidence that he and the complainant were “friends with benefits,” and he was found not guilty. On appeal, the Supreme Court said in June that the evidence was not relevant, and ordered a new trial.
The latest case, R.V., featured a provision of the rape-shield rule which says that to the limited extent defence lawyers may raise a complainant’s sexual history, they must point to specific instances. The initial lower-court ruling was that the defence was on a “fishing expedition” without specific instances in mind. But the Supreme Court was unanimous that that was a faulty interpretation in the circumstances of R.V.’s case.
Emma Cunliffe, who specializes in sexual-assault law at the University of British Columbia, applauded the ruling, and the previous two.
“I think these three, read together, send a very clear message to Crowns, defence counsel and especially to trial judges that they share the responsibility of carefully policing the introduction of sexual history evidence,” she said in an interview.
Sean Fine