The Regulation of Sexual History Evidence: A Historical-Doctrinal Study of its Origins, Judicial Treatment, and Contemporary Limitations
This is a long-term historical-doctrinal study of the law governing the admissibility of sexual history evidence. It begins in the period before 1982, when Canada’s original rape shield legislation was enacted. It (mostly) ends in 2000, when the Supreme Court held that Canada’s current rape shield legislation, enacted in 1992, was constitutional. (A brief coda to this thesis surveys more recent developments.) The historical parts of this thesis examine, among other things, the social and political processes that compelled Parliament to begin regulating the use of sexual history evidence, how a feminist defence of rape shield legislation was organized in the late-1980s amidst challenges to its constitutionality, and the legal and ideological contexts in which all this occurred. In telling this story, this thesis focuses largely on the lobbying and litigation efforts of self-consciously feminist legal actors, examining the nature and ideological origins of the legal claims they made to Parliament and the Supreme Court, and describing the receptivity of each of those institutions to those claims. The doctrinal parts of this thesis, which are weaved into its historical narrative, address two interrelated topics. First, they consider the extent to which the Supreme Court has over time understood the purpose of rape shield legislation in terms of women’s right to equal benefit and protection of the law, and how this has affected the Court’s assessment of it. Second, they engage with the way in which legal actors have historically understood the law around sexual history evidence as effecting a balance between the rights and interests of (a) people accused of sexual assault, (b) sexual assault complainants, and (c) Canadian society more generally. They also examine critically a more recent view that rape shield legislation does not, in fact, put these rights and interests into conflict. The purpose of this study is to work toward a comprehensive portrait of how this area of law has developed to its current form, in order to better understand its functioning and underlying purposes.