Judicial Discretion and Fundamental Justice

On August 22, 1991 the Supreme Court of Canada delivered its judgment in R. v. Seaboyer.1 At issue was the constitutionality of Criminal Code provisions limiting a defendant's ability to introduce evidence about a complainant's previous sexual activity or reputation in trials for sexual assault. Writing for a seven-justice majority, Justice Beverly McLachlin declared that the prohibition against the admission of sexual activity evidence infringed the right to a fair trial guaranteed under sections 11(d) and 7 of the Charter of Rights and Freedoms. According to Justice McLachlin, the impugned provision failed the test of constitutionality because, with only limited exceptions, it categorically prohibited defendants from introducing potentially exculpatory evidence. In her judgment, defendants could not make full answer and defense to sexual assault charges unless judges retained significant discretion to admit such evidence. Seaboyer was the first in a series of judgments that broadened the rights of sexual assault defendants, contrary to the policy preferences and constitutional arguments advanced by the Canadian federal government and the Canadian feminist movement.2 One interpretation of these judgments is that they reflect judicial hostility toward women's rights generally and feminist legal analysis in particular. Support for this interpretation can be found in a 1989 study of equality rights litigation by the Canadian Advisory Council of the Status of Women, books by Michael Mandel and Allan Hutchinson, and recent judgments in which the Court has divided along gender lines.3 There is, however, significant evidence to suggest that this

Constitutionality · Criminology · Discretion · Economic Justice · Judicial discretion · Judicial review · Plaintiff · Political science · Sociology · Supreme court · Criminal Law and Evidence · Judicial and Constitutional Studies · Law · Multicultural Socio-Legal Studies

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