NCJ Number
123747
Journal
Canadian Journal of Women and the Law Volume: 3 Issue: 2 Dated: (1989-1990) Pages: 592-601
Date Published
1990
Length
10 pages
Annotation
In the Ontario Court of Appeal, two men accused of rape appealed on the grounds that the rape shield provisions in the Criminal Code were in offense of section 7 of the Canadian Charter of Rights and Freedoms.
Abstract
In R. v. Seaboyer and R. v. Gayme, the Court unanimously decided the appeal on other grounds, but agreed that section 246.6 of the Code offended section 7 of the Charter. There was division over the constitutionality and appropriate remedy therefore. Among the criticism of the Court's decision were (1) that accused men were deprived of their liberty and security interests by the rape shield without consideration of female complainants' competing right to personal security; (2) that the gender dichotomy of complainants and accuseds was completely overlooked so that the rape shield's purpose in removing chastity as a precondition to women's right to personal security and bodily integrity was ignored; and (3) that the "constitutional exception" remedy was unacceptable -- not only because it created an impression that men accused of sexual assault would be placed in a "separate and worse" position by having to demonstrate in individual cases that the rape shield was offensive, but because this remedy re-opened discretionary judicial inquiry into women's sexual conduct. The remedy is offered that future constitutional challenges to the rape shield must include a section one analysis with regard to the women's personal security and legal protection as well as a determination of possible infringement of the rights of the accused. 23 footnotes. (Author abstract modified)