Sexual Assault Cases in the Supreme Court of Canada: Losing Sight of Substantive Equality?
(2012) 57 Supreme Court Law Review (2d) 295-316, reprinted in Benjamin L. Berger & James Stribopoulos, eds., Unsettled Legacy: Thirty Years of Criminal Justice under the Charter (Markham: LexisNexis, 2012) 329-350.
22 Pages Posted: 14 Feb 2013 Last revised: 31 Jul 2014
Date Written: 2012
The equality guarantee contained in section 15 of the Canadian Charter of Rights and Freedoms has prompted reforms that protect women as complainants in sexual assault cases. This article considers the effectiveness of these reforms. Part 2 supplies a history of the relationships between consent, trial procedure, and substantive equality in sexual assault law. The author argues that substantive equality has had a significant effect on both substance and procedure. Part 3 examines the impact of these reforms by considering the extent to which substantive equality has infused judicial reasoning and fact determination in contested sexual assault cases. Specifically, the author focuses on the factual reasoning in the three sexual assault cases decided by the Supreme Court of Canada (SCC) in 2011 (R v JAA 2011 SCC 17; R v JA 2011 SCC 28; R v JMH 2011 SCC 45).
The author's analysis shows that substantive equality reasoning has not yet infused judicial approaches to fact determination in sexual assault cases, and that individual complainants are not yet fully protected against the operation of myths and stereotypes when consent or credibility are at stake. She suggests in conclusion that the SCC has a leading role to play in moving judicial reasoning towards a more egalitarian approach to fact determination.
Keywords: Canadian Charter of Rights and Freedoms, equality, section 15, sexual assault, judicial reasoning, fact determination, stereotypes, proof
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