Court quashes sex-assault conviction

Rape-shield law unfairly applied and cannot be used to prevent an accused from mounting a reasonable defence

TORONTO — Canada’s so-called rape-shield law, which aims to protect sexual-assault complainants from unfair and irrelevant scrutiny of their sex lives, cannot be used to prevent an accused from mounting a reasonable defence, Ontario’s top court ruled on Wednesday.

As a result, the court quashed the sexual-assault conviction of a man whose lawyer was barred from cross-examining a woman on her pregnancy and ordered a new trial.

In its ruling, the court acknowledged the critical importance of protecting complainants from questioning about their sexual activity when that activity does not form the subject matter of the charge. Among other things, the court said, the rule takes into account the privacy interests of a complainant and was prompted by concerns about deterring victims from going to police and about feeding rape myths.

“Notwithstanding these powerful considerations, there are times when such questioning must be permitted,” the Appeal Court said. “This is one of those cases where a proper balancing ... requires that such questioning be permitted.”

According to court documents, the accused, then 20 years old who can only be identified as R.V., was on a family camping trip in July 2013 when his cousin, 15, said he lured her to a washroom and sexually assaulted her in a shower stall. She then said she blacked out. R.V. denied any sexual contact with her.

A key part of the prosecution’s case was that the teen’s subsequent pregnancy corroborated her allegations — that only the accused could be the father. The young woman subsequently terminated her pregnancy and the fetal remains were destroyed, making it impossible to confirm paternity through DNA testing, court records show.

The defence applied in a pretrial motion to cross-examine her on her other sexual activity as a way to attempt to refute the proposition that R.V. had impregnated her during the sexual assault. However, the judge hearing the application refused to allow the cross-examination.

In 2016, Judge Robert Gee convicted R.V. after upholding the earlier ruling as binding on him. Both those decisions were in error, the Appeal Court said.

The higher court said the pretrial judge was wrong in finding that R.V.’s attempt to question the teen amounted to a “fishing expedition”.