Canadian Judges and the Law of Rape: Should the Charter Insulate Bias?

(1990) 21:3 Ottawa Law Review 741

47 Pages Posted: 10 May 2013

See all articles by Elizabeth A. Sheehy

Elizabeth A. Sheehy

University of Ottawa - Common Law Section

Date Written: 1990


Rape and fear of rape have a constant and pervasive impact upon the lives of women. The laws which prohibit rape, and the legal process by which this crime either is or is not punished, reinforce relations of dominance between men and women, shape attitudes and ideologies regarding male and female sexuality, and colour women's experience of rape and of their own credibility as actors in the criminal justice system. Canadian legislators have come some distance in meeting women's demands for an effective legal response to rape, as evidenced by the 1982 rape law reforms to the Criminal Code of Canada.

Initial legislative steps toward addressing the injury of rape to women have been seriously jeopardized by recent legal challenges to the constitutionality of the legislation which rely on the Canadian Charter of Rights and Freedoms. These cases are being pursued on a widespread scale in criminal trials across Canada, and they have been aimed at both substantive and procedural provisions.

Many of these Charter challenges have concentrated on sections 276 and 277 of the Criminal Code, the sections which place legislative, non-discretionary limits on the type of evidence which may be introduced at trial with respect to a rape victim's past sexual history and character. Challenges to sections 276 and 277 have been pursued in several provinces, have received the support of liberal lobby groups such as the Canadian Civil Liberties Association, and have been at least partially successful in several cases.

The resulting confusion about the legal status of sections 276 and 277 poses a serious threat to the integrity of the entire package of rape law reforms. Police, Crown attorneys and judges across Canada must inevitably utilize different criteria in assessing the admissibility of sexual history and character evidence, and thus the strength of a particular case for the purpose of prosecution. Rape crisis centres and counsellors have been forced to tell victims that there are no guarantees about what evidence can be used to discredit them if they decide to report and prosecute the crime.

In this article, I argue that sections 276 and 277 must survive these constitutional challenges. This matter is of such urgency to Canadian women that both Parliament and the Supreme Court of Canada should facilitate the speedy resolution of the constitutionality of this legislation: the former by pronouncing clearly on the intent behind the legislation; and the latter by upholding the validity of sections 276 and 277 in key cases pending before the court which should be heard and decided in an expeditious fashion.

I begin my analysis of the current status of sections 276 and 277 with an examination of the recent decision of the Alberta Court of Appeal in R v Wald. This decision struck down section 276 as invalid legislation because the judges perceived that it conflicted with an accused's section 7 and subsection 11(d) Charter rights to a "fair" hearing. Wald will undoubtedly be appealed to the Supreme Court of Canada, and may in fact be heard together with Re Seaboyer, another significant case on the same legal issue.

I argue that Wald was wrongly decided on every legal issue, and I use Wald as the starting point for a more wide-ranging critique of the legal doctrines. The concept of "relevance" as used in Wald and other cases is so indeterminate and dependant upon unsubstantiated cultural beliefs that it must be rejected as likely to produce erroneous verdicts. The defence of honest, but unreasonable mistake of fact with respect to consent relied upon by the court in Wald as necessitating the invalidation of section 276 should itself be repudiated by our courts because it legitimizes intolerable levels of physical coercion in sexual relations between men and women. The section 7 and subsection 11(d) Charter rights of the accused which were said to be in jeopardy in Wald cannot be characterized as compromised when viewed in the specific context of the treatment of offences of sexual violence as compared to other offences. Further cases such as Wald in fact involve conflicts of Charter interests, since women can assert section 7 and 15 rights to security of the person and equal protection of the law in defence of the validity of sections 276 and 277. By virtue of section 28 of the Charter, women's section 15 rights ought to prevail over those of the accused. In addition, given that parliament has already spoken clearly and deliberately on this question when it redefined "relevance" in section 276, and given that this legislation resulted from women's use of the democratic process, it is imperative that our courts defer to Parliament by invoking section 1 of the Charter to preserve sections 276 and 277 even if a Charter violation is identified.

If the Supreme Court of Canada strikes down or varies this legislation when it pronounces upon Wald and Re Seboyer the criticisms and apprehensions of both critical and feminist legal scholars will have borne fruit. Critical legal scholars have argued that the Charter invites judges to reassert judicial sovereignty over issues legislated by parliament; feminist legal scholars have warned that judges, both male and female, may be unable to detach themselves sufficiently from the framework of our patriarchal society to render Charter interpretations which are also fair to women. The contradictions inherent in the Charter would be made apparent if the legislation is not upheld, for it is arguable that women in countries such as the Australia, which do not have a Charter or a Bill of Rights, may have better access to "equality" than do Canadian women, given that Australian rape shield laws cannot be struck down or altered by the judiciary on this basis.

Most important, the consequences of judicial invalidation of sections 276 and 277 would be disastrous for both present and future victims of rape. The only recourse left at that point would be to lobby Parliament to utilize the section 33 override power in the Charter to reenact this legislation which is so important to those women who courageously attempt to prosecute sexual offences committed against them. The analysis which follows is dedicated to avoiding the need for such drastic action.

Keywords: rape, laws which prohibit rape, dominance between men and women reinforced, male and female sexuality, Charter or Rights and Freedoms, section 276, section 277, criminal code, rape victim, rape & past sexual history, rape & character evidence, R v Wald, section 7 Charter, subsection 11(d) charter

Suggested Citation

Sheehy, Elizabeth A., Canadian Judges and the Law of Rape: Should the Charter Insulate Bias? (1990). (1990) 21:3 Ottawa Law Review 741. Available at SSRN:

Elizabeth A. Sheehy (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5

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