In the recent R. v. Seaboyer and Gayme decision, the Supreme Court of Canada, in a decision split seven to two ruled that Section 276 of the Criminal Code was unconstitutional. Section 276 had restricted the right of defence counsel, in a trial for a sexual offence, to cross-examine and lead evidence of a complainant's sexual conduct on other occasions. The majority of the court ruled that this Section violated the accused's right to a fair trial guaranteed in Sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The fundamental issue in the Seaboyer and Gayme appeals was the evidentiary relevance of the past and/or present sexual activity of a complainant in a trial for sexual assault. In this commentary, I will outline the reasoning and mode of analysis of both the majority and dissent on the issue of relevance. I will focus on the decision's turning point: the majority's lack of reference to empirical evidence, social science research, and feminist legal scholarship as compared to the dissenting judges' reliance on such material as the starting point for their analysis.
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Catherine Cogswell, "The Issue of Relevance in R. v. Seaboyer and Gayme" (1992) 1 Dal J Leg Stud 197.