Top court convicts man despite errors in application of rape shield law

TORONTO — A man who argued misapplication of Canada’s rape shield law had unfairly hamstrung his defence had his conviction restored on Wednesday even though the country’s top court found errors in how judges had applied the provisions.

In a 5-2 ruling, the Supreme Court of Canada decided the accused had been able to defend himself properly at trial given the questions he was allowed to ask the complainant.

“The accused was not precluded from adequately testing the evidence in this case, despite the errors,” Justice Andromache Karakatsanis wrote for the court. “The scope of permissible cross-examination would not have been any broader than the questioning that actually occurred.”

The case arose in the early hours of Canada Day in 2013 during a family camping trip. The 15-year-old complainant maintained her cousin R.V., then 20, sexually assaulted her in the washroom. He denied any sexual contact with her.

The prosecution relied heavily on the fact that the teen, who said she was a virgin at the time of the assault, became pregnant around that time. Because she had terminated her pregnancy and the fetus was destroyed, no DNA evidence was available to prove paternity.

R.V’s lawyer wanted to cross-examine her on other sexual activity to see if anyone else could have impregnated her. However, the Toronto-area application judge, who called the proposed line of questioning a “fishing expedition,” refused based on Section 276 of the Criminal Code — known as the rape shield law.

The provisions bar questions about a complainant’s sexual history. The aim is to protect the person’s privacy and shut down the twin myths that previous sex acts either make a complainant less credible or more likely to have consented to the sex in question.

The judge did allow R.V. to cross-examine the teen on her understanding of “virgin.” Ultimately, the judge convicted R.V. of sexual interference and handed him a four-year prison term.

The Ontario Court of Appeal found the lower court had misapplied the rape shield provisions. The court found it patently unfair for the prosecution to rely on the complainant’s pregnancy while barring defence questions about it. The appellate court quashed the conviction and ordered a new trial, prompting the Crown to appeal.

Rape Shield Law

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

A $2.3-billion expansion of Alberta’s natural gas transportation system has been approved. “This should provide significant benefits — and we need every little bit of economic boost we can get,” says Reg Warkentin, policy adviser for the Red Deer & District Chamber of Commerce. (Flickr photo)
Red Deer-area to benefit from $2.3 billion gas pipeline expansion project

Project will add 344 km of new pipeline between RMH and Grande Prairie

Red Deer Mayor Tara Veer urged Red Deerians to take more pandemic precautions to stem the rising number of local cases of COVID-19. (Photo by LANA MICHELIN/Advocate staff).
Red Deer Mayor urges citizens to take more pandemic precautions

Active cases are rising at a ‘concerning’ rate

Turning the off-season Ross Street Patio into a vibrant, welcoming place for diners is the new goal of adjacent business owners, who plan to add some heaters and musical entertainment this winter. (Advocate file photo).
Ross Street Patio will keep running in downtown Red Deer this winter

City approves a pilot project during the pandemic

Classes will not resume as normal in January at RDC, but through a blend of online and in-person formats. (Advocate file photo).
RDC to offer a blend of online, in-person classes in January

In-person learning will be upped to 40 per cent

Bojan Pajic, 17, was reported missing. (Photo contributed)
17-year-old Red Deer reported missing

Red Deer RCMP seek public’s assistance

Student taking a math test. (Pixabay photo)
David Marsden: Students need more testing, not less

Testing has been central to Alberta’s response to the COVID-19 pandemic. It’s… Continue reading

Red Deer AAA Bantam Rebels forwards Riley Yzerman helps teammate William Jamieson, right, celebrate his goal against the Leduc U15 AAA Oil Kings at Servus Arena Saturday. (Photo by Sean McIntosh/Advocate staff)
U15AAA Rebels dominate to open AEHL season

U18AAA Optimist Chiefs also grab first win of 2020-21 season

Arizona Cardinals’ Kyler Murray celebrates running the ball for a touchdown in the second half of an NFL football game against the Dallas Cowboys in Arlington, Texas, Monday, Oct. 19, 2020. (AP Photo/Michael Ainsworth)
Murray has happy homecoming, Cards cruise past Cowboys 38-10

‘Monday Night Football’ debut for Murray

Gillian Robertson celebrates her win over Sarah Frota during UFC 240, in Edmonton, Saturday, July 27, 2019. Robertson used her superior grappling skills to dominate Brazil's Poliano Botelho en route to a unanimous decision win Saturday night on a UFC Fight Night card. THE CANADIAN PRESS/Jason Franson
Canadian Gillian (The Savage) Robertson dominates in UFC decision win in Abu Dhabi

Canadian Gillian (The Savage) Robertson dominates in UFC decision win in Abu Dhabi

Most Read