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!

Paralegals operating in Ontario must be licensed by the Law Society of Upper Canada. Once licensed, a paralegal may practice in specific areas of law. According to Law Society By-Law 4, a paralegal can represent an individual:

• • In Small Claims Court,
• • In the Ontario Court of Justice in respect of a charge under the Provincial Offences Act (e.g., a speeding ticket or traffic ticket),
• • On a summary conviction charge under the Criminal Code for which the maximum penalty does not exceed 6 months imprisonment, and
• • Before administrative tribunals (e.g., Financial Services Commission of Ontario which deals with Pension and Insurance cases)

However, the powers of a paralegal representing a person in one of the above-mentioned proceedings are limited. The paralegal cannot do all the things that a criminal defence lawyer operating in the same proceeding would be capable of doing. The scope of the paralegals powers allow the paralegal to:

• • Give legal advice concerning legal interests, rights or responsibilities with respect to a proceeding or on the subject matter of a proceeding,
• • Draft or assist with drafting of documents for use in the proceeding, and
• • Negotiate on behalf of a person who is a party to a proceeding.

Though a paralegal can give advice or draft documents, they may do so only with respect to a specific proceeding. A paralegal cannot give general legal advice or draft general legal documents (such as a will or contract).

To become a licensed paralegal, an individual must have graduated from a legal services program approved by the Ministry of Training, Colleges and Universities within the three years prior to the date that they apply to be licensed. The legal services program must have included a minimum of 18 courses on legal services with the permitted scope of the practice of a paralegal, a course of ethics and professional responsibility, and a internship/ field placement in a legal environment (such as a courthouse or law firm) for a minimum of 120 hours. Qualifying legal services programs are the “court and tribunal agent” programs offered at community colleges and the “paralegal” programs often offered at private career colleges. After June 2010, all applicants will be required to have graduated from an accredited legal services program. To date, the law society has accredited ten college paralegal programs. All applicants must write a licensing examination in order to become a licensed paralegal.

To become a paralegal, applicants must also satisfy a “good character requirement”.  Generally, you can satisfy this requirement by providing the Law Society with a police clearance check or reference.

Paralegals tend to specialize in a legal niche whereas lawyers are given a more holistic training. As a result, lawyers tend to analyze facts and develop legal strategies, whereas paralegals are generally responsible for carrying out specific tasks required to put those strategies into action. The most important difference between a lawyer and a paralegal is that a lawyer can give legal advice. A paralegal, on the other hand, can give advice pertaining to the specific task at hand (“I suggest you fill out this form”) but not general advice (“if you do this, you will not be liable”).

If you are charged with a criminal offence, retain a criminal defence lawyer from Kostman and Pyzer, Barristers, for effective legal representation.

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