Complainant should get legal funding in battle over sexual history, court says
'It would be an injustice' if the complainant did not have a lawyer to represent her, judge says
The Nova Scotia Supreme Court has ordered that a sexual assault complainant should have a state-funded lawyer represent her when the alleged attacker seeks to introduce evidence about her sexual history.
The unidentified woman, who is in her early 20s, was allegedly abused when she was between three and eight years old.
According to a Supreme Court ruling released Friday, her alleged abuser is seeking to introduce evidence that she "has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge."
Under the Criminal Code, such evidence can only be admitted after a two-step procedure in which a judge determines its admissibility.
The young woman wanted to participate in that hearing, as was made possible under Criminal Code amendments that came into effect on Dec. 13, 2018, but said she earns minimum wage and can't afford to hire a lawyer.
The Crown prosecutor asked the Supreme Court to order a state-funded lawyer, saying it is the only way to make the woman's right to counsel meaningful.
'It would be an injustice'
Justice Mona Lynch agreed, saying the woman's interests would be left unprotected without a lawyer making submissions on her behalf.
"It would be an injustice to this complainant and to all complainants if they are unable to exercise their right to be represented by counsel to protect their privacy and personal dignity," she said.
"It is fair and just that the complainant be represented by counsel to protect her privacy and equality interests and rights."
The judge said that if legal aid cannot provide counsel for her, the provincial attorney general should cover her legal bills.
The accused is charged with invitation to sexual touching; being in a position of trust or authority invitation to sexual touching; and touching for a sexual purpose for alleged events between Jan. 1, 1999, and Dec. 31, 2004.
His name is banned from publication.
The Supreme Court ruling said there are discussions ongoing between the Justice Department and Nova Scotia Legal Aid about the creation of a program to provide counsel to complainants in such cases.