R.+c.+Seaboyer;+R.+c.+Gayme


 * __Megret’s Notes on R c. Seaboyer and R c. Gayme – 1991__**

The question is **whether art. 276 and 277 of the Criminal Code on the protection of “victims of violation” are contrary to the principles of fundamental justice and to fair process guaranteed by art. 7 and 11d of the Charter**. These provisions of the CC restrain the right of the defence to cross-examine and present proof on the sexual comportment of the plaintiff on other occasions.

Seaboyer is accused of sexual aggression by a woman he met in a bar. At trail, the judge refused to permit the accused to cross examine the plaintiff relative to her sexual history or present proof to that effect.

Gayme takes place in different circumstances. The plaintiff was 15 and the accused18 – they were friends. The accused founded his defence on a sincere belief of consent but he was not permitted to cross-examine or refer to the plaintiff’s past sexual histroy. He challenged the constitutionality of ss. 276 and 277, alleging it prevented a full defense and infringed his Charter rights.

The cases were appealed (together) all the way to the Supreme Court of Canada where they were rejected. The majority ruled it is a fundamental principle of our justice system that the rules of proof permit the judge and jury to discover the truth. (strike down rape-shield provision in art. 276) **The trial judge must determine weigh the value of the proof in relation to its possible harm.**

Note that art. 277 excludes proof of the sexual past of the accused. There is no logical or practical link between the sexual reputation of a woman and her credibility. This provision excludes proof that could not have a legitimate end in the trial but not that which has a valid end... thus art. 277 does NOT violate the right to a fair trial.

However, Art. 276 could involve the exclusion of pertinent proof for the defense and thus, its value is not exceeded by its possible harmful effect on the fairness of the trial. The proof it excludes could help indicate where there was error in assessing consent. This provision creates two problems in the law:

Given that our justice system is based on the idea that an innocent person cannot be found guilty, his right to represent himself should not be restrained unless this restriction can be justified by more important considerations. -To attain its goal – abolishing the sexist usage of proof, it goes beyond what is necessary and renders inadmissible elements of the proof that could be essential to a legitimate defense and, thus to a fair trial -It is not saved by s.1. Violation is not proportionate to its objective.

The doctrine of constitutional exemption does not apply here – it would incorporate in the provision an element that the legislator expressly excluded that being the discretionary power of the trial judge. SO How do the courts use art.276? The legitimate uses should be maintained and the irregular ones abolished. The following principles apply: NOTE: re Charter: Art. 52 of the Constitution Act 1982 does not give the Court the power to decide if a legislative provision is constitutional. That must be found in its enabling legislation. The competence of the trial judge is found in Part XVIII of the Criminal Code which does NOT provide that it is a competent tribunal in the sense of Art. 24 of the Charter --- thus cannot give a remedy for a Charter violation. Generally, there is no judicial review of a case based on Charter grounds. This usually follows
 * 1) In a trial regarding a sexual offence it is not admissible to admit proof to a) support a contention that an individual is more likely to consent to sexual acts as a victim or b) less reliable as a witness
 * 2) The proof relative to the consent or credibility can be admitted if it is of key value and if the harmful nature of admitting it would not outweigh its value
 * 3) Can be admitted if when looking to the heresay, affidavit or testimonies of the accused or third parties to see whether it might be valid
 * 4) When it is admitted at trial before jury, the judge has to specify how to handle it.

Dissent in part – L’Heureux-Dube et Gonthier – Sexual assault is different from other crimes (usually non-reported – rates of conviction lower than other violent crimes). \

Myths around rape present considerable obstacles for plaintiffs from the moment of initiating claim with police to its conclusion. The common law recognized that the proof of easy morals was pertinent to the issue of consent and credibility of the woman. The problem with the pertinence test is that “common sense” and logic may be based on stereotypes. That said, aside from Art. 276, all past sexual comportment is prima facie admissible.

The proof excluded by art. 276 is non pertinent because it is founded on prejudices about women in sexual assault. Not the notion of “equity” or “principles of fundamental justice” justice declaring art. 276 as unconsitutional – rather this provision is necessary for realizing the latter.

Because art. 276 only excludes non-pertinent/prejudicial proof, it is constitutional.

Art. 7 and 11d not only protect the interest of the accused but also other interests. Women have a legitimate interest in a trial that occurs in a way that down not subordinate facts to myths and stereotypes.

Even if declared unconstitutional, art. 276 would be justified by s. 1. The legislator aimed to stop sexual discrimination in trials for sexual offences by eliminating non pertinent or prejudicial proofs. This goal is very important in light of the harm we are talking about. The measures are proportionate and go against the rights of the accused in a minimal manner.

The exclusion of proof regarding sexual behaviour that in large is not relevant and is highly prejudicial does not obstruct the right of the accused to a fair trial and full defence.