Nova Scotia is going to help sexual assault survivors challenge attempts to have their past sexual history examined as evidence in criminal trials.
Justice Minister Mark Furey, accompanied by Kelly Regan, minister responsible for the advisory council on the status of women, Constance MacIsaac, Crown attorney specializing in sexual assault and Megan Longley, executive director of Nova Scotia Legal Aid, announced on Wednesday that the province will provide free legal representation should an accused make an application for sexual history to be considered in court.
Furey stressed the importance of the added support when the criminal justice system can be a “re-traumatizing experience” for victims.
“I know, as we speak, there are a number of cases moving through the criminal justice system where these applications have been made and we want to ensure that those victims interested in obtaining legal counsel, have the opportunity to do so without undue financial hardship,” Furey said.
This follows recent federal legislation amendments providing complainants the right to legal representation for an application hearing under Section 276 of the Criminal Code.
Ontario is the only other province that has put similar measures in effect.
Victims will be able to obtain legal representation through a lawyer assigned by certificate to deal with the applications, Furey said. There is no set budget designated to pay for this service yet.
“When an accused person makes an application to introduce other sexual activity, for a complainant to have access to independent legal advice — be able to make their own submissions — is important because the Crown attorney doesn’t take instructions from a complainant.”
- Constance MacIsaac, Crown attorney specializing in sexual assault
In general, under Section 276, past sexual history is prohibited but an accused may make an affidavit in an application for its consideration, setting out detailed particulars that the accused says are relevant at trial, MacIsaac said.
“The new changes really go to Stage 2 and this is where the law has now created rights for complainants,” the Crown prosecutor said.
If a judge is satisfied that the application met the proper criteria, the judge will then grant the application and hold a hearing.
“They will then tell the complainant now that they have the right to have counsel, that they have the right to appear and make submissions and they have the right to be present, and this is the new part — that a counsel will now be present with a complainant,” MacIsaac said.
Crown attorneys are not complainants’ counsel, she added, with no attorney-client privilege.
“When an accused person makes an application to introduce other sexual activity, for a complainant to have access to independent legal advice — be able to make their own submissions — is important because the Crown attorney doesn’t take instructions from a complainant.”
She said of about 500 sexual assault files opened yearly, about a quarter of them would see an application made under Section 276.
When you need that lawyer...
Longley said Nova Scotia Legal Aid, which may actually be providing a lawyer for the accused, will handle administrative duties in connecting a complainant with an independent lawyer.
“So what’s really important in our involvement in this matter is that there’s integrity in our process to ensure that nobody has the wrong idea about where the loyalties of the counsel lie,” Longley said.
She added that they are developing “a roster of lawyers who have the knowledge and interest in doing this kind of work.
“The complainant never becomes a client of Nova Scotia Legal Aid. We’re simply there in an administrative role to make sure that this really important right that now exists is given effect.”
Justine Colley-Leger, African Nova Scotian sexual violence community engagement co-ordinator with the East Preston Family Resource Centre, said she sees this helping her community quite a bit.
She said she was very hopeful that those who come to her in such situations will be able to get that legal representation.
“I’m also extremely hopeful that not just my organization but other organizations are ready for the possibility of a wave of people (who may) flood their gates because this is really impactful that someone’s past isn’t going to be held against them when they are seeking assistance,” Colley-Leger said.
“So I definitely think that this would be impactful for the people that I connect with and the people that I observe.”
She called it “a huge step” in trying to overcome barriers to seeking legal assistance when victims can feel re-traumatized by the process.
“Just having the courage to find your voice over something that happened to you that could be quite traumatic is very difficult to do, so reducing this barrier of having your past held against you, I think, is really, really great.”
