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Authored by: Joseph Neuberger
Recent developments out of the United Kingdom have reignited an important conversation about the balance between protecting complainants in sexual assault cases and preserving the right of the accused to a fair trial.
In a decision that has sent ripples through the Scottish legal community, the UK Supreme Court warned that Scottish courts have, in some cases, interpreted rape shield provisions in a way that improperly restricts an accused person’s ability to present a full defence. The concern is not with the existence of rape shield laws themselves, which serve an important and necessary purpose, but with how those laws are being applied in practice.
The Purpose of Rape Shield Laws
Rape shield provisions were introduced to prevent unfair and irrelevant attacks on a complainant’s sexual history or character. Historically, complainants were subjected to humiliating and intrusive questioning that had little to do with whether an alleged offence occurred. Modern sexual assault law rightly rejects that approach.
However, these protections were never intended to prevent juries from hearing relevant, probative evidence that goes to the heart of credibility, context, or what actually happened between two people. When evidentiary rules are applied too rigidly, they risk tipping the scales in a way that undermines the integrity of the trial process itself.
The Risk of Pre-Trial Screening Regimes
One of the central criticisms raised in the UK decision is the growing use of pre-trial approval processes that require defence counsel to seek permission before leading certain evidence or lines of questioning. While intended to protect complainants from unnecessary harm, these procedures can create serious fairness concerns.
When the defence is required to disclose its theory of the case and intended lines of cross-examination in advance, it risks:
In Canada, defence counsel are already familiar with similar procedural regimes, including applications relating to private records, sexual history evidence, and other forms of pre-trial screening. These processes are constitutionally valid, but they must be applied with care. The Supreme Court of Canada has repeatedly emphasized that trial fairness is not a technicality. It is a foundational principle of our criminal justice system.
Real-Time Evidence and Credibility
Another growing issue in modern sexual assault litigation is the role of contemporaneous evidence such as text messages, audio recordings, or video footage. Courts are increasingly confronted with situations where digital evidence directly contradicts or complicates testimonial accounts given months or years after the fact.
This does not mean that digital evidence should automatically override human testimony. But it does mean that judges and juries must be permitted to see and assess relevant evidence, even when it challenges prevailing assumptions about how people “would never” behave in certain situations.
A justice system that filters out inconvenient evidence does not protect complainants. It risks producing unreliable outcomes.
The Canadian Context
Canadian courts continue to wrestle with the tension between protecting complainants and ensuring fair trial rights. Screening regimes for private records, prior sexual history, and related evidence are now a routine part of sexual assault litigation. These procedures exist for good reason, but they must be applied in a manner that remains faithful to Charter values, including the right to make full answer and defence.
The UK Supreme Court’s intervention serves as a cautionary tale. Laws designed to promote fairness can, if misapplied, have the opposite effect. The legitimacy of sexual assault prosecutions depends not only on sensitivity to complainants, but also on confidence that trials remain fundamentally fair.
When Process Shapes Evidence
Canadian courts have also recognized the real-world risks that can arise when pre-trial disclosure and screening regimes shape how evidence unfolds at trial.
In a recent Ontario case defended by Joseph Neuberger of Neuberger & Partners LLP, a 19-year-old student faced allegations of sexual assault and violence arising from an encounter with another student. Following a full trial, all charges were dismissed. In written reasons, the trial judge observed that the complainant’s evidence evolved after learning the defence theory and the specific challenges that would be advanced at trial.
The court ultimately concluded that the prosecution had not met its burden of proof and went further, formally apologizing to the accused for the burden imposed by the proceedings:
“On behalf of the administration of justice for the Province of Ontario, I wish to apologize for the significant inconvenience and expense to which you have been subjected, as a result of these proceedings.”
This type of judicial comment is rare. It reflects a broader concern that procedural mechanisms, even when well-intentioned, can sometimes have unintended consequences for the reliability of evidence and the fairness of the trial process.
Why This Matters
Sexual assault cases are among the most difficult matters our courts deal with. They carry profound consequences for complainants and for the accused. Ensuring that these cases are tried fairly is not about favouring one side over the other. It is about preserving public confidence in the justice system itself.
When evidentiary rules become instruments of exclusion rather than tools of fairness, everyone loses. Justice requires both compassion and rigor. One without the other is not justice at all.
