Toronto Criminal Lawyers Blog

Before 1982, it was permissible for criminal defence lawyers to attack the credibility of complainants in sexual assault cases by asking them questions about their sexual history. Criminal defence lawyers would ask these questions to suggest that the complainant might be lying about the alleged rape. Criminal defence lawyers routinely use a witness’s past behaviour to attack their credibility on the witness stand; as such, the credibility of a witness is an important issue at any trial. If a criminal defence lawyer can establish that a material witness has a tendency to lie or if the lawyer can expose a motive why he or she may be lying now, this will undermine the Crown’s case and often lead to an acquittal.

However, in the 1980s the government was very concerned with the ability of defence lawyers to question complainants in sexual assault cases about their sexual history. Though both men and woman can be complainants in sexual assault cases, the government was primarily concerned about questioning women because it felt that questions about a woman’s sexual history may play on the stereotypes and prejudices of judges or juries. The main concern was that these questions may lead the judge or jury to acquit a defendant based on what the Supreme Court of Canada referred to as the “Twin Myths”. The myths are that (i) a woman who is sexually experienced is less credible as a witness and/or (ii) a woman who is sexually experienced is more likely to have consented to the sexual activity in question. The government felt that there was a danger that juries and judges may be acquitting defendants based on these two stereotypical assumptions, rather than based on the merits of the evidence before the court.

As a result, Parliament responded in 1982 by enacting section 276 and 277 of the Criminal Code of Canada. These two provisions together came to be known as the “rape shield legislation”. In 1991, the Supreme Court of Canada declared that the original rule was unconstitutional in a case called R. v. Seaboyer. In Seaboyer the court said that the rape shield legislation, as drafted, was in danger of excluding potentially relevant evidence and in doing so hindered the defendant’s ability to make full answer and defence. Since the ability to make full answer and defence is protected by s. 7 of the Canadian Charter of Rights and Freedoms, legislation that interferes with a defendant’s ability to make full answer and defence violates the Charter. When legislation violates the Charter the court is entitled to declare that the legislation is “of no force and effect”. This means that it will be rendered inoperative unless the government chooses to remove the unconstitutional parts.

Of primary concern to the court in Seaboyer was the potential that the rape shield legislation could make it impossible for defendants to establish the defence of “honest mistaken belief in consent”. This defence rests on the idea that the accused may honestly but mistakenly have believed that the complainant was consenting to the sexual act in question. If the defendant is able raise a reasonable doubt as to his intention to commit sexual assault on the basis that he honestly believed the complainant was consenting, he is not guilty under law and is entitled to an acquittal. The defendant may legitimately believe that the complainant consented based on the sexual history that existed between the complainant and defendant at some other time or place. Nonetheless, s. 276 would bar the criminal defence lawyer from questioning the complainant about any such past event. This is problematic as it deprives the defendant of a legitimate defence.

The court was also concerned by the rape shield legislation because it undermines the right of criminal defence lawyers to attack the credibility of the complainant by proving  that the complainant is biased or has a motive to lie about the evidence. For example, in the American case of State v. Jalo the defendant was a father who discovered his daughter and son having sex. The father stopped them and, out of malice, the daughter accused him of raping her. Had this case happened in Canada evidence of the daughter’s past sexual act with her brother would be excluded under the rape shield legislation, even though this fact is extremely relevant to the case because it showed that the daughter had a motive to lie. Moreover, it would be impossible for the criminal defence lawyer to properly explain the father’s defence with any force or credibility without questioning the daughter about the incident. The court concluded that the Rape Shield Legislation therefore has the potential to deny a defendant the building blocks of his or her defence undermining his right to make full answer and defence.

As a result the Supreme Court of Canada struck down the rape shield legislation saying that it was too broad, in that it prevented defendants from asking the complainant legitimate and relevant questions about his or her sexual history.

The government responded to Seaboyer by rewording the rape shield legislation. Now, the rape shield legislation creates a procedure intended to eliminate elements of surprise and needless exposure of the complainant to inappropriate questioning. . A strict procedure must be followed whenever an accused seeks to tender evidence under s. 276(2):

1. 1. Application in writing specifying in a detailed way the particulars of the evidence and why the defence claims it is relevant to an issue at trial.
2. 2. If notice requirements are met and the trial judge believes that the potential evidence is capable of being admissible under s. 276(2), then, a voir dire is held in to determine the admissibility of a particular line of questioning. The complainant cannot be compelled to testify at the voire dire. However, the defence, must at minimum establish that such an inquiry should be allowed due to specific concerns. This is problematic because it may alert the Crown to the details of the defence’s argument in an attempt to get evidence into the trial.
3. 3. If the application succeeds the trial judge must give mandatory reasons and specific reference must be made to the factors in s. 276(3).

In R. v. Darrach the Supreme Court of Canada confirmed that s. 276 is constitutional. According to the court, “the current s. 276 categorically prohibits evidence of a complainant’s sexual history only when it is used to support one of two general inferences. They are that a person is more likely to have consented to the sexual assault and that she is less credible as a witness by virtue of her prior sexual experience. Evidence of sexual activity may be admissible, however, to substantiate other inferences…” Based on this finding, the court found that the new legislation did not interfere with the defendant’s ability to make full answer and defence. As such, it does not violate the Canadian Charter of Rights and Freedoms.

Despite the ruling in Darrach that the new process set up in the amended s. 276 is constitutional, there are still some ways in which the new s. 276 is problematic for criminal defence lawyers. For example, while the old s. 276 only prohibited questioning about sexual activity with an individual other than the accused, the new s. 276 refers to sexual activity with the accused or with any other person. Thus, the new s. 276 is, in some ways, wider in scope than the old provision. The new provision creates a presumption that evidence of prior sexual conduct between the accused and complainant is inadmissible. This evidence can only be admitted if it passes through the special process created by s. 276 and it is deemed admissible by the trial judge.

The restriction on admitting evidence of the sexual history between the defendant and complainant causes some interesting situations to occur at trial. It can be extremely hard for the judge or jury to understand what happened in a particular case if the accused is prevented from leading evidence of the sexual relationship up to that point. Essentially, s. 276 often forces criminal defence lawyers to present the human relationship to the court in abstraction, placing it before the judge or jury as a discrete event happening at a particular place or time without any evidence of the events leading up to the alleged sexual assault or the sexual nature of the relationship between the accused and the complainant prior to the assault.

The special procedure created by s. 276 is unique to Canadian law. Several lower court decisions suggest that it should be changed to only prohibit evidence that leads the court to base their decision on stereotypical inferences. Moreover, as the general public’s stereotypes and opinions change, the danger that judges or juries will base their decisions on the “twin myths” decreases. Several legal scholars, such as David Paciocco, suggest that evidence of prior sexual history with the accused should be admitted under s. 176(2) if the defendant can establish that a specific inference could be drawn from the evidence that would be relevant to an issue at trial. This change would respect the dignity of complainants during cross-examination while still allowing the defence to put forward relevant arguments based on the sexual history between the accused and the complainant.

Kostman and Pyzer, Barristers. Toronto defence lawyers you can trust!

Since 1996, judges in Toronto and throughout Canada have been able to sentence those found guilty of a crime to a conditional sentence as an alternative to incarceration. Canada has one of the highest rates of adult incarceration in the world. The conditional sentence was designed to allow some offenders who are sentenced to serve a prison term of less than 2 years to serve their sentence out in the community, under strict conditions and supervision. Conditional sentences are very popular with Toronto judges. Since the introduction of the conditional sentence, Toronto criminal lawyers have seen the rate of incarceration jump from 37% of convicted offenders in 1997 to 42% of convicted offenders in 2000, mainly because judges are granting conditional sentences where in the past they may have imposed a probation order rather than a sentence of incarceration.

Before choosing to impose a conditional sentence, a judge must be satisfied that the appropriate term of imprisonment is less than two years, that the offender does not pose a threat to the community, and that service of the sentence in the community would be consistent with the fundamental principles of sentencing outlined in the Criminal Code. In addition, a judge cannot impose a conditional sentence if the offence for which the offender is convicted carries a minimum sentence. Moreover, in 2007, Bill C-9 was passed, which made it impossible for judges to impose conditional sentences if the offence for which the offender is convicted is punishable by 10 years or more and is classified as a serious personal injury offence (e.g., sexual assault, aggravated assault, assault with a weapon, etc.), a terrorism offence, or an organized crime offence.

A conditional sentence is not the same as probation, though the optics are similar since in both circumstances the offender lives in the community but supervised by a Conditional Sentence supervisor and subject to conditions. However, according to the Supreme Court of Canada, probation is appropriate where the focus is on rehabilitation, whereas a conditional sentence is appropriate where the focus is on both rehabilitating and punishing the offender. A conditional sentence is imprisonment without incarceration in a custodial environment. Therefore, it is only appropriate to impose a conditional sentence in circumstances where imprisonment is warranted. Because of the focus on punishment, the conditions attached to a conditional sentence are often much more restrictive than those attached to a probation order.  According to the Supreme Court, house arrest should be a common requirement of a conditional sentence.

The Criminal Code outlines several mandatory and/or optional conditions of a conditional sentence. Mandatory conditions include keeping the peace and being of good behaviour, reporting to a supervisor, and remaining in the jurisdiction of the court. Optional conditions include a condition to abstain from drugs and/or alcohol, to abstain from owning, possessing or carrying a weapon, to provide support and care for any dependents, or to perform up to 240 hours of community service. The judge also has the power to impose any reasonable condition the court considers desirable in the circumstances. It is by virtue of this authority, that a Court will impose a condition of house arrest.

A condition of house arrest requires that the offender remain within in his home for a prescribed period of time. The conditional sentence order will ordinarily set out specific circumstances in which the offender may leave his or her home, for example, to go to the hospital in case of emergency, to report in with his or her court appointed supervisor, to go to work, or to go to school. At all other times, the offender must remain within the boundaries of his or her property. Often, the Court will allow for a small window of opportunity for the offender to look after their basic needs (for instance to shop for necessities). The Court will also ordinarily allow an exception for religious observation.

Compliance with a term of house arrest is monitored by the police and the conditional sentence supervisor. However, there is a growing trend for judges to enroll offenders in the Electronic Supervision Program as a condition of their conditional sentence.  The Electronic Supervision Program uses electronic monitoring technology to monitor an offender’s compliance with the terms of his or her house arrest. Offenders are fitted with a tamper-resistant, radio frequency based anklet transmitter. The anklet will send radio frequency signals to a receiver device installed in the individual’s residence. The offender’s presence or absence from the home is monitored by the Ontario Ministry’s Monitoring Center, 24 hours a day, seven days a week. Any violation of the individual’s conditional sentence as well as any technical issues with the monitoring equipment (including any attempt to tamper with an anklet or receiving device) will be immediately reported through a central computer to the Ministry’s Monitoring Center.  Registration in the Electronic Supervision Program is only an available condition for adult offenders. To be eligible for the Electronic Supervision Program, the offender must have a residence and a landline telephone. Toronto criminal defence lawyers have struggled with the growing use of electronic monitoring; however, Toronto lawyers have nonetheless noticed an increased use of these devices in recent years.

In Canada, the average length of a conditional sentence is 8 months. All or part of that may be spent under house arrest. As the sentence progresses, the conditions of a conditional sentence can be varied by a judge upon application by the offender and with the support of the conditional sentence supervisor. If the offender fails to comply with his or her conditional sentence, for example by violating his or her house arrest, he or she may be arrested and ordered to appear before a judge at some point in the next 30 days. If the judge is satisfied that the offender breached a condition of his or her conditional sentence, the judge may do nothing, vary the optional conditions, require the offender to serve a portion of the remainder of his or her term in custody, or require that the offender serve the entire remainder of his or her term in custody.