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!

What is Domestic Assault?

Domestic assault charges refer to charges which arise within the context of a domestic relationship. In other words, when an incident occurs between two or more individuals who are deemed by the Crown to be in a domestic relationship the resulting charges are labeled as domestic. A domestic relationship can be a relationship between a wife and husband (including commonlaw and same-sex partners), a girlfriend and boyfriend, children and parents (including step-children and adopted children), children and grandparents, or any other individuals who are related to one another.

Special Court Procedures

The Toronto court system segregates domestic matters from other types of charges. Domestic matters are all heard together on specific days at those courthouses which hear domestic cases. A court which hears domestic matters is referred to simply as “domestic court”. Courthouses which hold domestic court are listed below along with the dates, times, and courtrooms it takes place in:

• ¥ Old City Hall: Domestic Court every Monday and Wednesday at 2 PM in courtroom 114.
• ¥ College Park: Domestic Court every Friday at 10 AM and 2 PM in courtroom 505.
• ¥ 1000 Finch: Domestic Court every Monday and Wednesday at 9 AM in courtroom 301.
• ¥ 2201 Finch: Domestic Court every Mondays and Wednesday at 2 PM in courtroom 202
• ¥ Newmarket: Domestic Court every Tuesday at 9:30 AM in courtroom 102

The Crown Attorney in domestic court is often selected because he or she has a special interest in combating domestic violence. This usually means that he or she is an expert in this type of charge. It is highly recommended that an individual accused of a domestic crime retain criminal defence counsel as soon as possible to ensure that his or her rights are adequately represented in domestic court.

Special Programs

In many cases, the entire family is suffering because of the domestic charges. Often, it is everyone’s desire to put the charge behind them to restore the family unit. Because of the zero tolerance policy Toronto has adopted when it comes to domestic crimes, the complainant has no power or control over the proceedings once they have involved the police. For example, the complainant does not have any control over whether to press charges nor does he or she have the ability to stop the proceedings against the accused. Once the police are called the Crown and police will almost certainly press charges. The rationale for this attitude is to protect victims of domestic violence who attempt to withdraw charges out of fear for their own safety or the safety of their children. Unfortunately, in many cases these rules are detrimental to individuals who are forced into an artificial and prolonged separation due to an erroneous or minor charge of domestic violence.

In those situations involving minor charges such as an assault (not including an assault with a weapon, aggravated assault, or an assault which resulted in injury) where the accused has no criminal record, the Crown will often make an offer to the accused which would modify the accused’s bail to allow them to reunite with the complainant. In exchange the accused must plead guilty to the offence and undertake to attend a special counseling program. There are two such programs: PARS (Partner Assault Response Systems) and EIP (Early Intervention Program). These counseling programs typically run one hour a week for sixteen weeks. The program focuses on the nature of the domestic relationship and specific strategies for anger management in the context of a domestic relationship. At the end of the sixteen weeks, the program leader will prepare a report on the accused’s progress through the program. If the report is favourable, the Crown will likely agree to a request for a Conditional Discharge. A Conditional Discharge is a finding of guilt; however, it is not a criminal record. See our blog on Discharges for more information on this result. Though this option may sound appealing because it allows an accused person to reunite with their partner, it is important to remember that this does result in a finding of guilt being made against him or her by the court. We highly recommend that you consult with a lawyer before entering into either of these programs.

An information session on the PARS domestic assault program is held at the 1000 Finch courthouse on Tuesdays at 1 PM in courtroom 303.