It’s significant that the Supreme Court of Canada (SCC) found a trial judge erred in not allowing a line of questioning surrounding the pregnancy of the complainant in a sexual assault case, says Toronto criminal lawyer Joseph Neuberger.
“The Supreme Court upheld the decision to restore the conviction but did note that cross-examination by the defence should have been permitted on the issue of sexual history in relation to the pregnancy because it was relevant, says Neuberger, a partner with Neuberger & Partners LLP.
“There is also a very strong dissent in this decision that the failure to allow that cross-examination was neither trivial nor harmless. Given the evidence in the case, this was certainly an avenue the accused should have been allowed to pursue,” he tells AdvocateDaily.com.
In a 5-2 ruling, the Supreme Court decided the accused had been able to defend himself properly at trial given the questions he was allowed to ask the complainant, The Canadian Press reports.
“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 2013 during a family camping trip. The 15-year-old complainant maintained her cousin R.V., then 20, sexually assaulted her in a washroom. He denied any sexual contact with her, CP reports.
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 terminated her pregnancy and the fetus was destroyed, no DNA evidence was available to prove paternity, the national news agency notes.
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 s. 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 to the SCC, CP reports.
Writing for the Supreme Court majority, Karakatsanis agreed the trial judge was wrong to stop R.V. from questioning his accuser about her pregnancy.
In a joint dissenting opinion, Justices Russell Brown and Malcolm Rowe called the majority’s rationale “highly unpersuasive.” They said R.V. was unfairly restricted in mounting a defence, and the legal errors of the trial court were neither harmless nor minor, especially given that the evidence against him was not overwhelming.
Neuberger agrees, adding that kind of error at trial “strikes at the heart of the defence.”
“We can’t necessarily predict what the complainant might have said under continued cross-examination on relevant areas, particularly because, in this case, it was a central feature of the Crown’s examination in chief that the complainant was a virgin and became pregnant as a result of the sexual assault,” he says.
“Once the Crown made this a central component of evidence to support the complainant’s credibility, it seems abundantly relevant and probative for the defence to question not only about the complainant’s understanding of being a virgin and virginity but also about other sexual activity that could have resulted in a pregnancy,” Neuberger says.
“I think this was quite a serious error on the part of the trial court. I think the Court of Appeal got it right. But in this case, unfortunately, I think the Supreme Court did not.”