Court deems rape-shield law badly applied, orders new trial

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 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 then-20-year-old accused, identified only 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.