Ottawa

Limits on questions of sexual history during trial welcomed

Advocates for survivors of sexual violence and the accused support this week's Supreme Court ruling on Canada's "rape shield" law, though a defence lawyer says it's not perfect.

Defence lawyer says part of Supreme Court ruling is troubling

The Supreme Court overturned a lower court decision on July 31 and kept a man's assault conviction in place. (CBC)

An Ottawa defence lawyer said he supports Canada's rape shield law, but is still troubled by a Supreme Court ruling Wednesday that upheld it and convicted an Ontario man.  

The law prevents victims from being asked about their sexual history during a trial.

The case in front of the court involved a man known as R.V. who was convicted of assaulting a 15-year-old girl.

As part of the case the Crown introduced evidence the girl had become pregnant after the assault, but the defence had been prevented from asking the girl if she had any other partners.

Defence lawyer Michael Spratt said the court's ruling is hard to understand because it found that the defence should have been able to ask about the issue — but that those answers wouldn't have affected the trial.

"The Supreme Court has predetermined a result, said things could not have possibly been different, even though those questions were never asked," he said. 

He said cross-examination is an essential part of the law. 

"In our adversarial system that relies on cross-examination, we often describe [it] as the crucible of truth," he said on CBC's All In A Day

Lawyer Michael Spratt said there are good things in the ruling, but he is concerned the court has devalued cross-examination. (Jean Delisle/CBC)

Spratt said the ruling did underscore that any questions about sexual history should be limited and relevant.

"It is a very good reminder to trial judges and all counsel in court that even if you get permission to ask these questions, we have a responsibility to stay on course." 

Removes a major barrier 

Bailey Reid, sexual assault services co-ordinator at Carleton University, said she was pleased by the ruling.

She said the shield law is important, because it prevents survivors from being tried on their sexual history. 

"It is there to address one of the major barriers survivors experience," she said.

 
Advocate Bailey Reid said the rape shield laws make it easier for survivors to come forward and tell their stories. (Trevor Pritchard/CBC)

She said in this case, the girl's pregnancy shouldn't have been the focus it became.

"It wasn't about whether or not she got pregnant, it was about whether she was inappropriately and non-consensually assaulted."