NEWMARKET, Ont. — Recent changes to sexual assault law that guarantee complainants the right to be heard on the admissibility of evidence of their sexual history and to be assisted by counsel seriously jeopardize trial fairness, an Ontario Superior Court judge has been told.
Or, as J.T.’s lawyer, Jeremy Butt, put it in his factum, “A discussion is to take place about whether messy details of a person’s sex life should be aired in the cold sterility of a courtroom. Such evidence would be allowed only if it’s relevant and doesn’t engage the impermissible “twin myths” about an unchaste woman allegedly being more likely to consent to sex and less worthy of belief.
The trial was then adjourned to allow for the constitutional challenge as it was apparent J.T. wanted to make submissions on the admissibility of her sexual history — exercising her newly formalized right to fully participate in such a decision. Criminal trials, Kasper said, are “solely a contest between the state and the charged individual … a partisan,” he told Sutherland. “She has a vested interest in the outcome. She has a vested interest in being believed… It’s antithetical to an impartial trial to have a complainant tell an accused how or how he cannot present his defence.”
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