R. v. Seaboyer; R. v. Gayme

R. v. Seaboyer; R. v. Gayme
Collection
Supreme Court Judgments
Date
1991-08-22
Report
[1991] 2 SCR 577
Case number
20666, 20835
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Stevenson, William; Iacobucci, Frank
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 20666, 20835
Decision Content
R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577
Steven Seaboyer Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada, the Attorney General
of Quebec, the Attorney General for Saskatchewan, the
Canadian Civil Liberties Association and Women's Legal
Education and Action Fund et al. Interveners
and between
Nigel Gayme Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada, the Attorney General
of Quebec, the Attorney General for Saskatchewan, the
Canadian Civil Liberties Association and Women's Legal
Education and Action Fund et al. Interveners
Indexed as: R. v. Seaboyer; R. v. Gayme
File Nos.: 20666, 20835.
1991: March 26, 27; 1991: August 22.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Whether ss. 276 and 277 of Criminal Code infringe s. 7 of Charter ‑‑ If so, whether infringement justified under s. 1 of Charter ‑‑ Whether legislation can be saved by doctrine of constitutional exemption ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 276 , 277 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 .
Constitutional law ‑‑ Charter of Rights ‑‑ Presumption of innocence ‑‑ Whether ss. 276 and 277 of Criminal Code infringe s. 11 (d) of Charter ‑‑ If so, whether infringement justified under s. 1 of Charter ‑‑ Whether legislation can be saved by doctrine of constitutional exemption ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 276 , 277 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 11 (d).
Criminal law ‑‑ Sexual offences ‑‑ Evidence ‑‑ "Rape‑shield" provisions restricting right of defence to cross‑examine and lead evidence of complainant's previous sexual conduct ‑‑ Whether provisions infringe s. 7 or s. 11 (d) of Canadian Charter of Rights and Freedoms ‑‑ If so, whether infringement justified under s. 1 of Charter or legislation saved by doctrine of constitutional exemption ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 276 , 277 .
Criminal law ‑‑ Preliminary inquiry ‑‑ Jurisdiction ‑‑ Whether preliminary inquiry judge has jurisdiction to decide constitutionality of legislation relating to evidence.
At issue here was whether the Criminal Code 's "rape‑shield" provisions (R.S.C., 1985, c. C‑46, ss. 276 and 277 ) infringe the principles of fundamental justice or the right to a fair trial found in ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms . The "rape-shield" provisions restrict the right of the defence on a trial for a sexual offence to cross‑examine and lead evidence of a complainant's sexual conduct on other occasions.
Seaboyer was charged with sexual assault of a woman with whom he had been drinking in a bar. The judge at the preliminary inquiry refused to allow the accused to cross‑examine the complainant on her sexual conduct on other occasions. The appellant contended that he should have been permitted to cross‑examine as to other acts of sexual intercourse which may have caused bruises and other aspects of the complainant's condition which the Crown had put in evidence. Such evidence might arguably be relevant to consent since it might provide other explanations for the physical evidence tendered by the Crown in support of the use of force against the complainant.
The Gayme case arose in different circumstances. The complainant was 15, the appellant 18. They were friends. The Crown alleged that the appellant sexually assaulted the complainant at his school. The defence, relying on the defences of consent and honest belief in consent, contended that there was no assault and that the complainant was the sexual aggressor. In pursuance of this defence, the appellant at the preliminary inquiry sought to cross‑examine and present evidence on prior and subsequent sexual conduct of the complainant. Accordingly, he brought a motion that ss. 276 and 277 of the Code were unconstitutional. The judge rejected the motion, on the ground that he lacked jurisdiction to hear it, and committed the appellant for trial.
Both Seaboyer and Gayme applied to the Supreme Court of Ontario for an order quashing the committal for trial on the ground that the judge below had exceeded his jurisdiction and deprived the appellant of his right to make full answer and defence by enforcing the provisions of s. 276 of the Criminal Code . The orders were granted on the ground that ss. 276 and 277 violate the Charter , and the cases were remitted to the preliminary inquiry judges for a ruling on the evidentiary issues unhampered by the statutory provisions. An appeal to the Ontario Court of Appeal was allowed on the ground that the preliminary inquiry judges lacked the jurisdiction to determine the constitutional validity of the sections in question. They accordingly had not erred in applying the sections and the orders quashing the committal therefore had to be set aside. The Court went on, however, to consider the constitutionality of ss. 276 and 277 of the Criminal Code and found that the sections were capable of contravening an accused's rights under the Charter in some circumstances. It held that while the provisions had a constitutionally valid purpose, they were not saved by s. 1 . The court nevertheless found that the provisions would be operative except in those limited and rare circumstances where they would have an unconstitutional effect.
The constitutional questions stated in this Court queried whether ss. 276 and 277 infringed ss. 7 and 11 (d) of the Charter and, if so, whether they were saved by s. 1 . Also queried was whether the constitutional exemptions doctrine applied and, if the legislation was invalid, what was the law. With respect to the jurisdiction of the preliminary inquiry judge, the evidence sought to be tendered in the two cases was not at issue. In neither case did the preliminary inquiry judge consider whether the evidence would have been relevant or admissible in the absence of ss. 276 or 277 of the Criminal Code .
Held (L'Heureux‑Dubé and Gonthier JJ. dissenting in part): The appeals should be dismissed; however, s. 276 of the Criminal Code is inconsistent with ss. 7 and 11 (d) of the Charter and that inconsistency is not justified under s. 1 of the Charter . Section 277 is not inconsistent with the Charter .
Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Stevenson and Iacobucci JJ.: It is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues. Nothing is to be received which is not logically probative of some matter requiring to be proved and everything which is thus probative should be received absent some other ground for its exclusion. A law which prevents the trier of fact from getting at the truth by excluding relevant evidence in the absence of a clear ground of policy or law justifying the exclusion runs afoul of our fundamental conceptions of justice and what constitutes a fair trial. The trial judge must balance the value of the evidence against its potential prejudice. Virtually all common law jurisdictions recognize a power in the trial judge to exclude evidence on the basis that its probative value is outweighed by the prejudice which may flow from it. The prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law.
Sections 276 and 277 of the Code are to be measured against this yardstick. They have the capacity to deprive a person of his or her liberty and they violate the fundamental principles underlying our justice system if they exclude evidence whose probative value is not substantially outweighed by its potential prejudice.
Section 277 excludes evidence of sexual reputation for the purpose of challenging or supporting the credibility of the plaintiff. The idea that a complainant's credibility might be affected by whether she has had other sexual experience is today universally discredited. There is no logical or practical link between a woman's sexual reputation and whether she is a truthful witness. Section 277 excludes evidence which can serve no legitimate purpose in the trial but does not touch evidence which may be tendered for valid purposes. It accordingly does not infringe the right to a fair trial.
Section 276 has the potential to exclude evidence which is relevant to the defence and whose probative value is not substantially outweighed by the potential prejudices to the trial process. It constitutes a blanket exclusion, subject to three exceptions ‑‑ rebuttal evidence, evidence going to identity, and evidence relating to consent to sexual activity on the same occasion as the trial incident. The value of the excluded evidence will not always be trifling when compared with its potential to mislead the jury.
Two fundamental flaws mark s. 276 . First, the different purposes for which evidence may be tendered are not distinguished. The legislation misdefines the evil to be addressed as evidence of sexual activity, when in fact the evil to be addressed is the narrower evil of the misuse of evidence of sexual activity for irrelevant and misleading purposes--the inference that the complainant consented to the act or that she is an unreliable witness. The result of this misdefinition of the problem is a blanket prohibition of evidence of sexual activity, regardless of whether the evidence is tendered for an illegitimate purpose or for a valid one. Secondly, a "pigeon‑hole approach" is adopted which is incapable of dealing adequately with the fundamental evidentiary problem, that of determining whether or not the evidence is truly relevant, and not merely irrelevant and misleading. This amounts, in effect, to predicting relevancy on the basis of a series of categories.
Section 276 has the potential to exclude otherwise admissible evidence which may be highly relevant to the defence. Such evidence is excluded absolutely, without any means of evaluating whether in the circumstances of the case the integrity of the trial process would be better served by receiving it than by excluding it. Given the primacy in our system of justice of the principle that the innocent should not be convicted, the right to present one's case should not be curtailed absent an assurance that the curtailment is clearly justified by even stronger contrary considerations.
The existence of other exclusionary rules of evidence does not support the contention that such rules are not contrary to the principles of fundamental justice or to our notions of what constitutes a fair trial. These rules are based on the justification that the evidence excluded is likely to do more harm than good to the trial process. They, moreover, admit of a great deal of flexibility, allowing considerable discretion to the trial judge to admit evidence in cases where the value of the evidence outweighs its potential prejudice.
Courts in other jurisdictions have found it necessary to curtail the effect of legislation similar to s. 276 of the Criminal Code so as to permit accused persons to present evidence relevant to their defence. This fact reinforces the conclusion that the legislation offends the principles of fundamental justice underlying a fair criminal trial.
The operation of s. 276 permits the infringement of the rights enshrined in ss. 7 and 11 (d) of the Charter . In achieving its purpose ‑‑ the abolition of the outmoded, sexist‑based use of sexual conduct evidence ‑‑ it overshoots the mark and renders inadmissible evidence which may be essential to the presentation of legitimate defences and hence to a fair trial. In exchange for the elimination of the possibility that the judge and jury may draw illegitimate inferences from the evidence, it exacts as a price the real risk that an innocent person may be convicted. The price is too great in relation to the benefit secured, and cannot be tolerated in a society that does not countenance in any form the conviction of the innocent.
Section 276 is not saved under s. 1 of the Charter . It addresses a pressing and substantial objective but the rights infringed are not proportionate to the pressing objective. Section 276 is rationally connected to the objective because it helps to exclude unhelpful and potentially misleading evidence of the complainant's prior sexual conduct. It does not, however, impair the right as little as possible. Even assuming that this case, which is criminal and therefore a contest between the state and the accused, might fall into the class where the state is given more latitude in fixing a balance between competing interests, the degree of impairment effected by s. 276 is still not appropriately restrained. The section excludes relevant defence evidence whose value is not clearly outweighed by the danger it presents and is therefore overbroad. Finally, there is no balance between the objective and the injurious effect of the legislation. A provision which rules out probative defence evidence which is not clearly outweighed by the prejudice it may cause to the trial strikes the wrong balance between the rights of complainants and the rights of the accused. The line must be drawn short of the point where it results in an unfair trial and the possible conviction of an innocent person.
The doctrine of constitutional exemption should not be applied here. The exemption, while perhaps saving the law in one sense, dramatically alters it in another. Applying this doctrine would not achieve the end of substantially upholding the law which Parliament enacted. It would import the discretion of the trial judge, which was an element that the legislature specifically chose to exclude from the provision. The will of the legislature would become even more obscured with the addition of a host of judge‑made procedures which have been proposed to effect this judicial amendment to the legislation. The result, too, will set up a regime based on discretion and common law notions of relevancy, which is precisely what striking down would do. Finally, this solution would delegate to the trial judge the task of determining when the legislation should not be applied. This result has the effect of placing on the accused the burden of showing that the decision to exclude evidence is unconstitutional.
Striking down s. 276 does not revive the old common law rules of evidence which permitted evidence of sexual conduct and condoned invalid inferences from it. These rules, like other common law rules of evidence, must be adapted to conform to current reality. Evidence of sexual conduct and reputation in itself cannot be regarded as logically probative of either the complainant's credibility or consent. The twin myths which s. 276 sought to eradicate have no place in a rational and just system of law.
The inquiry as to what the law is, in the absence of s. 276 of the Code, must be considered in light of the fundamental principles governing the trial process and the reception of evidence. Legitimate uses should be preserved and illegitimate uses abolished. The approach of a general exclusion supplemented by categories of exceptions is bound to fail because of the impossibility of predicting in advance what evidence may be relevant in a particular case. Trial judges are not free to act on whim.
The following principles apply:
1. On a trial for a sexual offence, evidence that the complainant has engaged in consensual sexual conduct on other occasions (including past sexual conduct with the accused) is not admissible solely to support the inference that the complainant is by reason of such conduct (a) more likely to have consented to the sexual conduct at issue on the trial; or (b) less worthy of belief as a witness.
2. Evidence of consensual sexual conduct on the part of the complainant may be admissible for purposes other than an inference relating to the consent or credibility of the complainant where it possesses probative value on an issue in the trial and where that probative value is not substantially outweighed by the danger of unfair prejudice flowing from the evidence.
3. Before evidence of consensual sexual conduct on the part of a victim is received, it must be established on a voir dire (which may be held in camera) by affidavit or the testimony of the accused or third parties that the proposed use of the evidence of other sexual conduct is legitimate.
4. Where evidence that the complainant has engaged in sexual conduct on other occasions is admitted on a jury trial, the judge should warn the jury against inferring from the evidence of the conduct itself, either that the complainant might have consented to the act alleged, or that the complainant is less worthy of credit.
Section 52 of the Constitution Act, 1982 does not confer jurisdiction on a tribunal to determine whether a law is constitutional. That jurisdiction must be found in the legislation which defines the powers of the body. The jurisdiction of a judge on a preliminary hearing is conferred exclusively by Part XVIII of the Criminal Code . A justice presiding over a preliminary inquiry does not have the jurisdiction to grant a remedy under s. 24 of the Charter because a preliminary inquiry is not a "court of competent jurisdiction" under that section. The Criminal Code gives the magistrate no jurisdiction which would permit him to hear and determine the question of whether or not a Charter right has been infringed or denied. The preliminary inquiry judges therefore did not have power to determine the constitutionality of ss. 276 and 277 of the Criminal Code .
It was unnecessary to consider whether the refusal of the preliminary inquiry judges to determine the constitutional question was an error of jurisdiction so as to be reviewable.
The right to appeal from the rulings of preliminary inquiry judges is restricted to questions of loss or excess of jurisdiction. Charter violations do not give rise to jurisdictional errors. In criminal cases, Charter review will generally take place at the trial stage. The only exception to this rule would appear to be cases where no other remedy, existing or prospective, lies for a wrong under the Charter .
Appeals from rulings on preliminary inquiries are to be discouraged. While the law must afford a remedy where one is needed, the remedy should, in general, be accorded within the normal procedural context in which an issue arises, namely the trial. Such restraint will prevent a plethora of interlocutory appeals and the delays which inevitably flow from them. It will also permit a fuller view of the issue by the reviewing courts, which will have the benefit of a more complete picture of the evidence and the case.
Per L'Heureux‑Dubé and Gonthier JJ. (dissenting in part): Sexual assault is not like any other crime. It is for the most part unreported and the prosecution and conviction rates are among the lowest for all violent crimes. These statistics indicate that prejudicial beliefs may distort our perception of what actually happens. Rape myths still present formidable obstacles for complainants in their dealings with the very system charged with discovering the truth. From the making of the initial complaint down to the determination of the issue at trial, stereotype and mythology are at work, lowering the number of reported cases, influencing police decisions to pursue the case, thereby decreasing the rates of arrest, and finally distorting the issues at trial and, necessarily, the results.
Parliament intervened on two notable occasions. First, it repealed s. 142 of the Code and enacted a provision designed to alleviate some of the problems caused by the virtually unrestricted inquiry into a complainant's previous sexual history allowed at common law. Judicial interpretation of the section thwarted any benefit that might have accrued to the complainant. In fact, the provision, as judicially interpreted, provided less protection to the complainant than that offered at common law. Second, a sweeping reform was introduced in 1982 for the protection of the integrity of the person, the protection of children and special groups, the safeguarding of public decency, and the elimination of sexual discrimination. Sections 246.6 and 246.7 (now ss. 276 and 277 ) under scrutiny here were enacted as part of that reform.
The concept of relevance has been imbued with stereotypical notions of female complainants and sexual assault. This is plain from the common law which held that evidence of "unchasteness" was relevant to both consent and credibility. Any connection between the evidence sought to be adduced and the fact or matter of which it was supposedly probative must be bridged by stereotype (that "unchaste" women lie and "unchaste" women consent indiscriminately) in order to make sense.
Any relevancy decision is particularly vulnerable to the application of private beliefs whether the test be one of experience, common sense or logic. Generally the determination of what is relevant will not be problematic. However, there are certain areas of inquiry where experience, common sense and logic are informed by stereotype and myth. This area of the law has been particularly prone to the use of stereotype in determinations of relevance and again this appears to be the unfortunate concomitant of a society which, to a large extent, holds these beliefs. Recognition of the large role that stereotype may play in such determinations has had surprisingly little impact in this area of the law.
It is contradictory to conclude that "truth" has been found if only stereotype renders a determination of relevancy understandable. And it is perverse to suggest that an objective application of the law of evidence mandates the admission of evidence which exhibits "rank prejudice". The examination of, and responsibility for, individual decision making is excluded. The application of "logic" and "common sense" may, in any given case, show "rank prejudice".
The irrelevance of most evidence of prior sexual history is clear once the mythical basis of relevancy determinations in this area of the law is revealed. Nevertheless, Parliament has provided broad avenues for its admissibility in setting out exceptions to the general rule in s. 276 . Moreover, all evidence of the complainant's previous sexual history with the accused is prima facie admissible under those provisions. Evidence that is excluded by these provisions is simply irrelevant in a decision-making context free of myth and stereotype.
The exclusion of "pattern" evidence and "habit" evidence is not unconstitutional; the mythical basis of these arguments denies their relevance. "Pattern of conduct evidence" usually occurs where the complainant has had consensual sexual relations in circumstances that look much like those supporting the assault allegation. Such evidence is almost invariably irrelevant. It is highly prejudicial to the integrity and fairness of the trial process and, in any event, is nothing more than a prohibited propensity argument. Arguments in its favour depend for their vitality on the notion that women consent to sex based upon such extraneous considerations as the location of the act, the race, age or profession of the alleged assaulter and/or considerations of the nature of the sexual act engaged in. Consent is to a person and not to a circumstance; the use of the words "pattern" and "similar fact" deny this reality. Such arguments are implicitly based upon the notion that women will, in the right circumstances, consent to anyone and, more fundamentally, that "unchaste" women have a propensity to consent.
Evidence characterized as habitual, as being more specific than character and as denoting one's regular response to a repeated situation, too, is inadmissible. Adopting such an argument here would lend support to the stereotypical proposition that "unchaste" women have a propensity to consent. No analogy can be drawn between this behaviour and volitional sexual conduct.
The relevance of evidence of mistaken belief in consent in some cases does not conclusively demonstrate the infirmity of the provision. No relevant evidence regarding the defence of honest but mistaken belief in consent is excluded by the legislation under attack here. Assuming that both the trier of fact and the trier of law are operating in an intellectual environment that is free of rape myth and stereotype about women, any evidence excluded by this subsection would not satisfy the "air of reality" that must accompany this defence nor would it provide reasonable grounds for the jury to consider in assessing whether the belief was honestly held. The structure of the exception set out in s. 276(1)(c) is thus not offensive to the defence of honest belief.
Evidence of prior acts of prostitution or allegations of prostitution are properly excluded by the provision. This evidence is never relevant and, moreover, is highly prejudicial. A prostitute is not generally more willing to consent to sexual intercourse and is no less credible as a witness because of that mode of life. There is no understandable reason for asking complainants in sexual assault cases if they are prostitutes.
Refutation of stereotype strikes at the heart of the argument that s. 276 does not allow evidence going to show motive to fabricate or bias. Clearly, most such alleged motives or bias will not be grounded in the complainant's past sexual history. Moreover, much of this evidence depends for its relevance on certain stereotypical visions of women ‑‑ that women lie about sexual assault and that women who allege sexual assault often do so in order to get back in the good graces of those who may have their sexual conduct under scrutiny. Evidence that a complainant has made prior false allegations of sexual assault is admissible under the existing provision, however, because this evidence does not involve the admission of her previous sexual history.
The evidence excluded by s. 276 is simply irrelevant because it is based upon discriminatory beliefs about women and sexual assault. This provision provides wide avenues for the introduction of sexual history evidence that is relevant. Paradoxically, some of the exceptions may be cast overly broadly with the unfortunate result that a large body of evidence may still be improperly admitted on the basis of specious relevancy claims. Even if relevant sexual history evidence is excluded, such exclusion is proper because of its extremely prejudicial effect on the trial of the legal issues. The trial judge has a long‑recognized discretion to exclude otherwise relevant evidence. Hence, a determination that something is relevant does not answer the further question whether, regardless of its relevance, there exists some rule or policy consideration that nevertheless mandates exclusion of the proffered evidence.
Relevant evidence may be excluded for many reasons and such exclusions play a significant and important role in the traditional law of evidence. Some evidence is excluded in order to protect values that our society holds dear. Other evidence may be excluded because of its inherent unreliability. As well, evidence will be excluded if it distorts rather than enhances the search for truth. The exclusion of evidence of sexual history, rather than negatively affecting decisions of guilt and innocence, rationalizes such determinations. Evidence of sexual history transforms the guilt or innocence determination into an assessment of whether or not the complainant should be protected by the law of sexual assault.
Neither "fairness" nor "the principles of fundamental justice" mandate the constitutional invalidity of s. 276 . Rather, in order to achieve fairness and to conduct trials in accordance with fundamental tenets of criminal law, this provision must be upheld in all of its vigour.
An accused does not have a constitutional right to adduce irrelevant evidence. Accordingly, to the extent that much, if not all, of the evidence excluded by s. 276 is irrelevant, there is no constitutional issue. An accused, furthermore, does not have the right under the Charter , whether under the rubric of a right to a fair trial or the right to make full answer and defence, to adduce evidence that prejudices and distorts the fact‑finding process at trial. Notions of a "fair trial" and "full answer and defence" do not recognize a right in the accused to adduce any evidence that may lead to an acquittal. Such propositions cast ss. 7 and 11 (d) in an extremely narrow fashion and deny meaningful content to notions of "fairness" and "principles of fundamental justice".
Because it excludes only irrelevant or prejudicial evidence, s. 276 passes constitutional muster. The accused, on any meaningful and purposive interpretation of the rights involved, has no right to adduce such evidence. Rather than making the ordinary rules of evidence inapplicable and putting an accused charged with sexual assault in a separate and worse position than persons charged with other serious crimes, the provision ensures that the ordinary rules of evidence are applied. Parliament has excluded no evidence that is not properly excluded both at common law and under the Charter .
Sections 7 and 11 (d) of the Charter protect not only the accused but other interests as well. The exact nature of the other interests involved depends upon the nature and aspect of the right considered. The complainant, and indeed the community at large, have an interest in the reporting and prosecution of sexual offences. They also have a legitimate interest in ensuring that trials of such matters are conducted in a fashion that does not subordinate the fact-finding process to myth and stereotype. However, a discussion of the community or group interests involved is not strictly necessary as the competing interest in this case, that of ensuring that trials and thus verdicts are based on fact and not on stereotype and myth, is not one belonging solely to any group or community but rather is an interest which adheres to the system itself; it maintains the integrity and legitimacy of the trial process. This interest is so closely intertwined with the interests of complainants and of the community that the distinction may be unimportant in reality.
The recognition of the accused's unfettered right to adduce all relevant evidence seriously misconstrues the phrase "principles of fundamental justice". Clearly, these principles have developed with an eye to values and interests beyond those of the accused, and thus such values and interests are pertinent in constitutional inquiries. The argument that an accused is prevented from adducing all relevant evidence going to innocence has little weight in this inquiry and must give way to other considerations. Sexual history evidence excluded by the provision is either irrelevant or so prejudicial that its minimal probative value is overwhelmed by its distorting effect on the trial process. It operates as a catalyst for the invocation of stereotype about women and about rape.
The Code provision, even if found to be unconstitutional in its effect, is justified under s. 1 of the Charter .
By enacting this provision, Parliament sought to minimize sexual discrimination in the trials of sexual offences through the elimination of irrelevant and/or prejudicial sexual history evidence. A further legislative goal, intimately linked to the first, was to encourage women to report their victimization. The importance of Parliament's objectives in the reform of the law of sexual assault is amplified by the nature of the harm done and by the fact that its legislative effort gives voice to values that are paramount in a free and democratic society.
The measures were proportional. The effort on the part of Parliament to exclude sexual history evidence at trial, evidence which is largely irrelevant and biased, is rationally connected to the stated objectives of ridding the law in this area of discriminatory beliefs and of encouraging increased reporting of such offences.
The measures impair the rights of the accused as little as possible. Parliament weighed the claims of different groups and attempted to balance their concerns. The courts are not better situated than or even as well situated as Parliament to determine whether the "least drastic means" have been chosen. The appropriate standard of review at this stage of the proportionality inquiry is one of reasonableness ‑‑whether the government had a reasonable basis for concluding that the legislative solution they chose impaired rights as little as possible given the government's pressing and substantial objective. The legislative choice was, at a minimum, reasonable.
The nature of the problem facing Parliament did not admit of a solution through the exercise of discretion of trial judges. That discretion saturated the law in this area with stereotype and society is still not rid of such beliefs. Discretionary decision making in this area is absolutely antithetical to the achievement of government's pressing and substantial objectives.
Lastly, the effects of the measures were not so deleterious as to outweigh the importance of the objective. The exclusion of largely irrelevant and highly prejudicial sexual history evidence does not significantly entrench upon an accused's right to a fair trial or an accused's right to make full answer and defence. The provision still permits the accused wide avenues of admissibility to adduce evidence of sexual history which is relevant and sufficiently probative that its admission is not outweighed by its discriminatory effect.
Although it is not necessary to consider the doctrine of constitutional exception, the same rationales which make the doctrine inapplicable highlight the infirmity of the guidelines suggested by the majority.
Cases Cited
By McLachlin J.
Followed: Sweitzer v. The Queen, [1982] 1 S.C.R. 949; referred to: R. v. Beare, [1988] 2 S.C.R. 387; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; Duke v. The Queen, [1972] S.C.R. 917; R. v. Wray, [1971] S.C.R. 272; R. v. Scopelliti (1981), 34 O.R. (2d) 524; Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494; R. v. Dunbar and Logan (1982), 68 C.C.C. (2d) 13; Davis v. Alaska, 415 U.S. 308 (1974); Alford v. United States, 282 U.S. 687 (1931); Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Potvin, [1989] 1 S.C.R. 525; State v. Jalo, 557 P.2d 1359 (1976); State v. Carpenter, 447 N.W.2d 436 (1989); Commonwealth v. Majorana, 470 A.2d 80 (1983); People v. Mikula, 269 N.W.2d 195 (1978); State ex rel. Pope v. Superior Court, 545 P.2d 946 (1976); R. v. LeGallant (1985), 47 C.R. (3d) 170; R. v. Greene (1990), 76 C.R. (3d) 119; State v. Pulizzano, 456 N.W.2d 325 (1990); Commonwealth v. Black, 487 A.2d 396 (1985); State v. Oliveira, 576 A.2d 111 (1990); State v. Carver, 678 P.2d 842 (1984); State v. Howard, 426 A.2d 457 (1981); State v. Reinart, 440 N.W.2d 503 (1989); Summitt v. State, 697 P.2d 1374 (1985); R. v. Wald (1989), 47 C.C.C. (3d) 315; Winfield v. Commonwealth, 301 S.E.2d 15 (1983); State v. Shoffner, 302 S.E.2d 830 (1983); State v. Gonzalez, 757 P.2d 925 (1988); State v. Hudlow, 659 P.2d 514 (1983); R. v. Morin, [1988] 2 S.C.R. 345; Ares v. Venner, [1970] S.C.R. 608; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Oakes, [1986] 1 S.C.R. 103; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Smith, [1987] 1 S.C.R. 1045; Mills v. The Queen, [1986] 1 S.C.R. 863; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Forsythe v. The Queen, [1980] 2 S.C.R. 268.
By L'Heureux‑Dubé J. (dissenting in part)
Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Keegstra, [1990] 3 S.C.R. 697; Timm v. The Queen, [1981] 2 S.C.R. 315; Forsythe v. The Queen, [1980] 2 S.C.R. 268; Laliberté v. The Queen (1877), 1 S.C.R. 117; Gross v. Brodrecht (1897), 24 O.A.R. 687; R. v. Konkin, [1983] 1 S.C.R. 388; R. v. Camp (1977), 36 C.C.C. (2d) 511; R. v. Firkins (1977), 37 C.C.C. (2d) 227, leave to appeal refused, [1977] 2 S.C.R. vii; Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; R. v. Oquataq (1985), 18 C.C.C. (3d) 440; R. v. Coombs (1985), 23 C.C.C. (3d) 356; R. v. Scopelliti (1981), 63 C.C.C. (2d) 481; R. v. Bulmer, [1987] 1 S.C.R. 782; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Corbett, [1988] 1 S.C.R. 670; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Beare, [1988] 2 S.C.R. 387; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Swain, [1991] 1 S.C.R. 933; Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494; R. v. Dunbar and Logan (1982), 68 C.C.C. (2d) 13; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Oakes, [1986] 1 S.C.R. 103; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Chaulk, [1990] 3 S.C.R. 1303.
Statutes and Regulations Cited
Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980‑81‑82‑83, c. 125, s. 19.
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (d), 15 , 24(1) , 28 .
Constitution Act, 1982, s. 52 .
Criminal Code, R.S.C. 1970, c. C‑34 [am. 1980‑81‑82‑83, c. 125, s. 19], ss. 139(1), 142, 246.4, 246.5, 246.6, 246.7, 246.8.
Criminal Code, R.S.C., 1985, c. C‑46, ss. 276 , 277 .
Criminal Law Amendment Act, 1975, S.C. 1974‑75‑76, c. 93, s. 8.
Authors Cited
Adler, Zsuzsanna. "The Relevance of Sexual History Evidence in Rape: Problems of Subjective Interpretation", [1985] Crim. L.R. 769.
Backhouse, Constance and Lorna Schoenroth, "A Comparative Survey of Canadian and American Rape Law" (1983), 6 Can.‑U.S. L.J. 48.
Berger, Vivian. "Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom" (1977), 77 Colum. L. Rev. 1.
Borgida, Eugene and Phyllis White. "Social Perception of Rape Victims: The Impact of Legal Reform" (1978), 2 Law and Hum. Behav. 339.
Boyle, Christine. "Section 142 of the Criminal Code : A Trojan Horse?" (1981), 23 Crim. L.Q. 253.
Boyle, Christine, L. M. Sexual Assault. Toronto: Carswells, 1984.
Brickman, Julie and John Briere, "Incidence of Rape and Sexual Assault in an Urban Canadian Population" (1985), 7 Int'l J. of Women's Stud. 195.
Canada. Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children. Ottawa: Ministry of Supply and Services, 1984.
Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence, Issue No. 77, April 22, 1982.
Canada. Law Reform Commission. Corroboration: A Stu