The Supreme Court of Canada has upheld the expansion of Canada’s rape shield law introduced by the Liberals four years ago.
In a six-to-three ruling on Thursday, the highest court said the expanded rules aimed at further preventing an alleged sexual assault victim’s past from being used against her in evidence at trial are ” constitutional in their entirety”.
Sexual assault laws were enacted some 40 years ago to prevent the sexual history of a complainant in a sexual assault case from being used against her at trial, to discredit her.
The Criminal Code states that evidence of a complainant’s past sexual activity that is unrelated to the charges may only be admitted with the permission of a judge, following an in camera hearing. closed.
This evidence cannot be used to infer that the complainant is “less trustworthy or more likely to have consented to the activity giving rise to the charge”.
In 2018, the Liberals expanded the definition of what this evidence includes to include communications of a sexual nature, such as emails or videos, as well as documents about the complainant that are in the possession of the accused.
The government also granted the complainant the right to participate in the hearing on the admissibility of this evidence, with the judge, and to be represented by counsel.
In Thursday’s judgment, the majority of the judges said that “the right to a fair trial does not guarantee the most advantageous trial possible”.
They conclude that “taking the complainant by surprise with her own very private records at trial may be unfair to her and run counter to the search for truth”.
” The right to a fair trial […] requires consideration of the privacy interests of others who find themselves in the justice system. »