Limits on Canadian Rape Shield Laws: Cross-Examination and The Right to Full Answer and Defence
The law surrounding sexual assault has evolved in recent decades. In R v R.V., the Supreme Court further developed the rules on cross-examining complainants of sexual assault. Canadian rape shield provisions limit questioning victims in sexual assault cases. In R.V., the Court ruled that an accused may have the right to ask about prior sexual activity. The court emphasized that courts must balance protecting the complainant with an accused’s right of full answer and defence.
R v R.V.
In 2013, over the Canada Day long weekend, the accused and the complainant were camping. At the time of the alleged incident, the two cousins were 20 and 15. The complainant, 15, claims that on the last night of camping, the cousins stayed awake several hours after the parents. While at R.V.’s campsite, the complainant alleges that the accused asked to speak to her alone. R.V. then lead the complainant to the men’s public washroom. Inside the bathroom, the complainant claims that R.V. began trying to kiss her and removed her clothing. After ordering her to lay on the floor, the complainant asserts that R.V. sexually assaulted her.
The complainant did not report the assault right away. Two months after the alleged incident, the complainant went to a doctor with nausea and abdominal pain. Although the complainant denied being sexually active, her doctor confirmed she was pregnant. The ultrasound showed that the complainant conceived at the end of June or the beginning of July. The complainant reported her interaction with R.V. to her doctor. Due to the complainant’s age, the doctor contacted the Children’s Aid Society. Children’s Aid then called the police.
Police charged R.V. with sexual assault and sexual interference (touching a minor in a sexual way). The accused denies the charges. R.V. insists that he has not had any sexual contact with the complainant.
The Law on Sexual Assault
Section 276 of the Criminal Code restricts an accused’s right to introduce evidence. Parliament introduced these provisions to protect sexual assault victims. This rule forbids any evidence which supports the twin myths. The twin myths suggest two incorrect assumptions about sexual assault victims. First, that complainants with long sexual histories are less worthy of belief. Second, a victim's sexual history can suggest if she likely consented. This amendment was also designed in the hopes that it would encourage victims to come forward.
To ask about complainant’s sexual activity, counsel must request permission. The application must convince the judge that the evidence is relevant and does not support the twin myths. The accused must demonstrate that the questions relate to specific sexual activities. Lastly, the evidence must be of significant value and that is not outweighed by the danger of prejudice.
Section 276 applies to all defence evidence. This provision is relevant whether the evidence provides a defence or rebuts Crown evidence. Whether the judge allows the evidence depends on the interests of justice, the effect on full answer and defence, and the impact on the complainant’s dignity and privacy.
Is Cross-Examination a Protected Right?
The right to advance and test evidence are rights protected by the Charter of Rights and Freedoms. Section 7 of the Charter protects the right to make a full answer and defence. An important element of full answer and defence is testing the Crown’s evidence through cross-examination.
Cross-examination is a necessary tool in any criminal case. However, cross-examining witnesses is important in sexual assault cases when credibility is a key issue. Cross-examination can expose changes and flaws in witness’ evidence. The Court explained that there may be “no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed.”
However, the right to cross-examine is not absolute. Cross-examination questions must be relevant, and the value must outweigh the potential for bias. As explained above, judges must balance full answer and defence with the complainant’s privacy and dignity.
When is Cross-examination on Sexual History Allowed?
During pre-trial proceedings, the Crown claimed that the complainant was a virgin before the alleged assault. The Crown introduced the complainant’s virginity and her pregnancy as evidence of the assault. R.V. requested to cross-examine the complainant about her prior sexual activity. In particular, R.V. sought to question the complainant about other sexual activity during the window of conception. The application judge dismissed the accused’s application. The judge would not permit cross-examination because R.V. did not know about specific instances of sexual activity. The Supreme Court ruled that the application judge had erred in this decision. Although the accused did not have specific instances of sexual activity, the time period was specific enough to contain the questioning.
The decision to allow cross-examination is made on a case-by-case basis. However, cross-examination is necessary when the Crown’s evidence impacts the ability to raise a reasonable doubt. The more important the evidence is to the defence, the more likely the judge should allow questioning.
On appeal, the Supreme Court found that questioning the complainant was the only way to challenge the Crown’s position. The accused should be able to refute the Crown’s argument that a sexual assault caused the pregnancy. The only way to refute the Crown’s argument is to suggest that the complainant became pregnant by someone else. The complainant terminated the abortion, leaving no evidence of the fetus’ paternity. The complainant gave the only evidence of the assault and her resulting conception. The Court compared denying R.V.’s application to denying him the right to testify that he hadn’t caused the pregnancy.
An accused, facing the loss of their liberty, needs protection from false accusations and improper verdicts. Cross-examination is one way in which accused are granted this protection. Cross-examination helps uncover the truth. It tests the strength of evidence and uncovers flaws in testimonies. This tool is essential for both the accused and the administration of justice.
Canadian rape shield laws limit the protection cross-examination affords. These limits are accepted to protect assault victims from re-victimization. These laws also encourage sexual assault victims to report their abuse. However, these protections are not absolute. Although Parliament introduced rape shield laws to protect victims, victims are not the only ones needing protection. There are some instances where the complainant’s privacy must give way to avoid convicting the innocent. The Court in R.V. helped clarify some of these instances.