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CROSS EXAMINATION - SEXUAL ASSAULT

R. v. Shearing, 2002 SCC 58, [2002] 3 SCR 33


...6                              The critical importance of cross-examination is not doubted.  The appellant stood before the court accused of crimes by numerous complainants but he was presumed to be innocent of each and every count.  All of the alleged sexual misconduct, by its very nature, was in private.  At trial, it was his word against the credibility of his accusers, individually and (by virtue of the similar fact evidence) collectively.  If the complainants were untruthful about what happened in the privacy of their encounters, the most effective tool he possessed to get at the truth was a full and pointed cross-examination.  The general principle was stated in Seaboyer, supra, per McLachlin J., at p. 611:


Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted.  It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law.  [Emphasis added.]

 

It has been increasingly recognized in recent years, however, that cross-examination techniques in sexual assault cases that seek to put the complainant on trial rather than the accused are abusive and distort rather than enhance the search for truth.  Various limitations have been imposed.  One of these limits is the privacy interest of the complainant, which is not to be needlessly sacrificed.  This was explored by Cory J. writing for the majority in Osolin, supra, at pp. 669 and 671, as follows:


A complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system.  Yet a fair balance must be achieved so that the limitations on the cross-examination of complainants in sexual assault cases do not interfere with the right of the accused to a fair trial.

                                                                  . . .

In each case the trial judge must carefully balance the fundamentally important right of the accused to a fair trial against the need for reasonable protection of a complainant, particularly where the purpose of the cross-examination may be directed to “rape myths”.  [Emphasis added.]

 

77                              I underline the reference to “rape myths” because in my view it is a concern about a potential revival of the shibboleth of “recent complaint” in sexual assault cases rather than a privacy concern as such, that lies at the heart of the trial judge’s ruling.

Jim O'Neil, LL.B.

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