The Supreme Court of Canada has unanimously upheld that a trial judge properly dismissed a request to introduce evidence of prior sexual activity in a sexual assault trial. In a 7-2 split, however, the Court differed on whether that evidence could be revisited over the course of a trial.
The Court also unanimously agreed that a Crown motion on a sealing order and in camera hearings were not necessarily binding at the appellate level, affirming that trials should be as open as possible while still protecting complainants’ privacy and dignity.
In the case, the complainant and defendant were in a relationship for twenty years. When they separated, the defendant moved into the family home’s basement. One night, they had consensual sex, but the following morning, the complainant was sexually assaulted. The defendant, identified as T.W.W., initially claimed consent was given before denying any assault occurred. At trial, he wanted the evidence of prior sexual history from the evening before introduced.
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Kyla Lee of Acumen Law in Vancouver, and chair of the Canadian Bar Association’s criminal justice section, says there could be an opening for mischief by not allowing these orders to carry through to the appellate level.
“I would imagine that there are going to be instances following this decision where neither Crown nor defence implores the court to say they need to exercise the power of their own process to continue the effect of the publication ban or not to publish details about sexual activity that wanted to be introduced, or relationship history that could identify a complainant,” Lee says.
“I worry because errors happen, and this interpretation that the Supreme Court of Canada has given could lead to harm.”
In such an instance, Lee says if information is inadvertently made public or not covered by the statutory publication ban, a nefarious person could use that information from an appellate decision to embarrass or humiliate a complainant after a matter has concluded.
“This could be an opening for sextortion,” Lee says. “The idea that there is not an automatic pathway to protecting this information, to me, treads a very fine line.”
To that end, she suspects a bill may be tabled in Parliament to continue these kinds of orders through an appellate process.
Regarding the introduction of records, Lee suspects this may have been a borderline case for introducing prior records.
“I do appreciate the clarification from the Court on how specific you need to be in your application to introduce these records to get them in the door because that is also going to help speed up processes,” she says.
