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Being questioned on your sexual history is the cost of justice, says Ottawa lawyer Howard Krongold

Witnesses, even complainants in sexual assault cases, have no new right to review judges’ decisions in mid-trial despite recent amendments to the “rape shield” provisions of the Criminal Code.

So says the Ontario Criminal Lawyers Association (CLA), which is seeking intervener status in an unusual and controversial application to be heard in Ontario Superior Court in Ottawa on Wednesday.


But Howard Krongold and Meaghan McMahon, who represent the CLA, said when Parliament amended the rape shield laws last year it gave complainants a right to appear and make submissions on .276 applications, but only at the hearing.

“Prior to the recent legislative changes to the Code, no one ever claimed that complainants had the right to seek certiorari of a Section .276 decision, and there is nothing in the new Code provisions that creates such a right…They do not confer a new right of review,” Krongold and McMahon say in their factum.

“Criminal trials are a contest between the accused and the state, but trial judges nevertheless sometimes make rulings that affect other people,” the CLA lawyers say, pointing out that if the trial had been held in Superior Court, there would be no such right of review.


Krongold and McMahon, for the CLA, argue that while testifying at trial can be “very unpleasant,” cross-examination “is intended to be a crucible of truth, but regrettably, the truth is often not pretty, and being forced to tell it — sometimes, just being asked about it — can be embarrassing and uncomfortable…

“But our justice system would cease to function if discovering the truth became subservient to each witness’s sensitivities…Discomfort, or the fact that the questions relate to deeply private or personal matters, does not mean that a witness has a substantive right not to answer those questions, and then to seek review, and then a further appeal, of every disagreeable mid-trial evidentiary ruling.

“A witness’s testimony about sexual matters is not different…This is the cost of learning the truth and ensuring that justice is done.”

Read Christy Blatchford’s full article: National Post

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