Skip to main content

Sexual assault Crown prosecutor Constance MacIsaac, left, says it’s important for complainants to have their own lawyer when the defence applies to introduce evidence of other sexual activity outside the scope of the sexual assault charge.

Sexual assault complainants in Nova Scotia will now have access to free legal representation to challenge attempts to have their sexual history exposed in court.

Justice Minister Mark Furey said Wednesday the new program aims to protect complainants from the trauma of having past relationships used as evidence in criminal court cases.

“It’s important that they have legal support to represent them in the court process,” the minister told a news conference.

Nova Scotia is among the first provinces to respond to a recent federal legislative amendment that provides complainants in sexual assault cases with the right to a lawyer when the defence applies to have their sexual history introduced in court.

Canada’s rape shield provisions – Section 276 of the Criminal Code – aim to prevent the misuse of a complainant’s sexual activity for irrelevant or misleading purposes.

The goal of the law is to eliminate gender stereotypes from courtrooms, including banning the “twin myths” of rape – that women with sexual experience are more likely to consent to sex, and that women who are sexually active are less trustworthy.

However, defence attorneys are able to make what’s called a Section 276 application to introduce evidence of a complainant’s sexual history that could be relevant to the case.

“It is unfathomable to think that a female victim/survivor of sexual assault would be expected to represent herself in a Section 276 application,” Furey said.

In the past, complainants were not provided with legal counsel during these hearings.

The new program will provide sexual assault complainants with a lawyer to challenge those applications.

Sexual assault Crown prosecutor Constance MacIsaac said it’s important for complainants to have their own lawyer when the defence applies to introduce evidence of other sexual activity outside the scope of the sexual assault charge.

“It’s important to remind people that Crown attorneys are not complainant’s counsel. They don’t act on behalf of complainants in sexual violence files,” MacIsaac said.

“When an accused person makes an application to introduce other sexual activity, for a complainant to have access to independent legal advice and make their own submissions is important because a Crown attorney doesn’t take instructions from a complainant.”

MacIsaac said there are about 500 sexual violence cases each year in the province – about a quarter of which will involve section 276 applications.

Furey said it’s unclear how many complainants will take advantage of the program or what it will cost, but he said it will be managed within the Justice Department’s budget.

“Although the majority of sexual assaults are committed against women and girls, it’s important to remember that this is everyone’s issue,” he said.

Justine Colley-Leger, African Nova Scotian sexual violence community engagement co-ordinator for the East Preston Family Resource Centre, said the program is a good idea.

“I’m very hopeful that they will be able to seek that legal representation,” she said.

“Not just my organization, but other organizations are ready for the possibility of a wave of people to 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.”

The province already has programs in place to provide complainants with up to four hours of free legal advice, as well as legal representation when applications are made for medical and therapeutic records.