In television and movie courtroom dramas, cross-examination of a defendant, victim, or witness frequently proves crucial to resolving the fictional case and bringing the storyline to a successful close. While this isn’t always the case in real-world criminal trials, cross-examination is a fundamental component of Canadian criminal trial procedure, designed to ensure fairness for all parties.
“Cross-examination is one of the most powerful tools in a criminal trial, but in cases of domestic and sexual assault, it must be conducted with care to protect victims while ensuring the accused’s right to a fair defence,” says Jeff Mass, co-managing partner at Mass Tsang .
Whether in respect of a defendant, a victim, or a witness, the right to cross-examine is protected as a principle under Section 7 of the Canadian Charter of Rights and Freedoms. However, a defendant may be cross-examined only if they choose to testify in their own defence, as Section 11(c) of the Charter protects them from self-incrimination. Meanwhile, the cross-examination of any witness, whether called by the prosecution or defence, is also codified by the Canada Evidence Act .
When it comes to domestic and sexual assault cases, though, the defendant’s right to cross-examine the alleged victim is more restricted due to Canadian Criminal Code provisions designed to prevent re-traumatization of the victim, perpetuation of stereotypes about “typical” victim behaviour, and irrelevant inquiries into their sexual history.
Is this fair, and how does it affect a defendant’s ability to mount an effective defence against the charges? Let’s examine how cross-examination works in Canadian domestic and sexual assault cases.
Canada’s Criminal Code puts the most restrictions on cross-examining victims in sexual assault cases. Section 276 of the Code, known as the “rape shield law,” prohibits the introduction of evidence — and related cross-examination — about a victim’s sexual history, whether with the accused or others. Enacted in 1982, this provision was designed to:
The law allows the defendant and Crown to petition the judge to allow such sexual history evidence if it is relevant to distinct issues concerning the actual offence. Judges make their determination in a preliminary hearing, in which they weigh the relevance of the evidence to the case against its potential impact on the purposes of the rape shield law.
Section 273.2 of the Code has provisions that limit the ability of the defendant to ask questions that may potentially imply consent based on the victim’s level of intoxication, clothing worn, or delays in reporting the assault. Judges typically intervene if such questions arise during cross-examination and will usually instruct the jury to disregard them. Two other Criminal Code provisions that constrain sexual assault case cross-examinations include:
Criminal defence lawyer Jeff Mass , co-managing partner of the Greater Toronto Area’s Mass Tsang law firm, says: "Cross-examination restrictions to protect the victim in sexual assault cases dilute the level of fairness the legal system is supposed to afford the accused. However,” he adds, “it’s the law. Thus, in defending our sexual assault clients, we try to focus on inconsistencies in the victim’s account without pushing testimony into prohibited topics.”
The ability to cross-examine a victim in a domestic assault case is not as restrictive as it is for sexual assault cases, as there are fewer direct provisions about it in the Criminal Code. Instead, subtle revisions to the Code, incorporated by 2019’s Bill C-75 , encourage judges to treat such cases with heightened sensitivity that acknowledges victims’ vulnerability.
“In domestic assault cases , judges are quick to tamp down any aggressive tactics from the defence that could potentially re-traumatize the victim,” says Jeff’s Mass Tsang co-managing partner Robbie Tsang . “During cross-examination, we must acknowledge the victim’s vulnerability with respectful questioning that avoids the perception of re-victimizing,” he continues, “and be careful not to steer questioning in ways that might appear to be blaming the victim or inherently raising bias against them. Domestic assault cases often hinge on the credibility of both parties, but we must be delicate in our efforts to expose inconsistencies in the victim’s account.”
From a Criminal Code revision standpoint, Robbie adds that perhaps the most notable change is that preliminary inquiries in domestic assault cases are now limited to the most serious cases that carry penalties of 14 or more years’ imprisonment. As with sexual assault, this was done in large part to limit the victim’s exposure to potentially traumatizing cross-examination.
With over three decades of skillful cross-examination experience in the Greater Toronto Area, the criminal defence lawyers of Mass Tsang understand the nuances of conducting an effective cross-examination in domestic and sexual assault cases. To secure the most effective criminal defence for your domestic or sexual assault charges, contact our legal experts today for a free consultation.
