The Supreme Court of Canada will soon examine a controversial application of Canada’s rape shield law in a case that has divided legal experts and women’s rights advocates. The review, scheduled for early fall 2025, stems from an Ontario Court of Appeal ruling that limited defense questioning in a prostitution-related prosecution.
I’ve spent the past week reviewing court documents and speaking with legal experts about what could become a precedent-setting decision on how rape shield provisions interact with other Charter rights.
“This case sits at the intersection of victim protection and the accused’s right to full answer and defense,” explained Martha Campbell, a criminal defense attorney who has argued before the Supreme Court on sexual assault cases. “The Court must balance these competing constitutional interests with extreme care.”
The rape shield law, found in sections 276 and 277 of the Criminal Code, was designed to prevent sexual assault victims from facing degrading questions about their sexual history during trials. However, its application in cases involving commercial sexual services remains contentious.
The case in question involves Michael Leblanc, charged with living off the avails of prostitution and procurement. His defense team sought to question the complainant about specific clients and services—information they claimed was essential to their defense strategy. The trial judge limited this questioning, citing rape shield protections.
Court records I obtained show the defense argued these limitations prevented them from establishing an alternative explanation for the complainant’s income, undermining their ability to counter the prosecution’s financial evidence.
The Ontario Court of Appeal upheld these limitations in a split 2-1 decision. Justice Marion Feldman, writing for the majority, stated: “The rape shield provisions serve to protect the dignity of complainants and encourage reporting of sexual offenses. These objectives remain relevant even in cases involving commercial sexual services.”
Professor Emily Richards from Osgoode Hall Law School told me, “The Supreme Court will need to clarify whether and how rape shield protections apply in cases where the sexual activity in question is directly related to the elements of the offense itself.”
The Canadian Association of Sexual Assault Centres has already filed for intervener status. Their legal counsel, Sarah Jennings, emphasized, “Allowing detailed questioning about specific sexual services would effectively gut the protections Parliament intended these provisions to provide.”
Statistics Canada data indicates that despite strengthened legal protections, sexual assault remains one of the most underreported crimes, with reporting rates below 6%. Advocates worry that weakening rape shield protections could further discourage reporting.
I spoke with former Crown prosecutor David Chen, who offered a different perspective: “Courts must be careful not to extend rape shield protections in ways that Parliament never intended. When the nature of sexual services is directly relevant to proving or disproving elements of the offense, some inquiry must be permitted.”
Reviewing the legislative history of Canada’s rape shield provisions reveals they’ve been amended several times since their introduction in 1983, each time following constitutional challenges. The Supreme Court previously upheld their constitutionality in R. v. Darrach (2000), finding they struck an appropriate balance between competing rights.
The Criminal Lawyers’ Association, which plans to intervene, maintains that applying rape shield protections too broadly risks constitutional violations. “When the very nature of the charges involves commercial sexual activity, preventing the defense from exploring relevant aspects of that activity can seriously impair fair trial rights,” said Association president James Wilson.
Justice department records show the government has filed a factum supporting the constitutionality of the provisions as currently applied. Their submission argues that “the dignity interests protected by rape shield laws don’t diminish simply because money changed hands.”
The case raises difficult questions about how the justice system treats evidence in cases involving sex work. During my investigation, I interviewed two former sex workers who now advocate for legal reform. Both expressed concern that courts fail to distinguish between protecting sexual assault complainants and infantilizing sex workers.
“There’s a tension between protecting people from degrading questioning and respecting their agency in commercial contexts,” said Maya Stevens, director of Sex Workers Action Network. “We want protections against irrelevant sexual history evidence without being treated as inherent victims.”
Legal observers note this case could have implications beyond prostitution-related offenses, potentially affecting human trafficking prosecutions and other cases where sexual activity forms part of the alleged criminal conduct.
The Supreme Court’s eventual ruling will likely provide crucial guidance on where to draw the line between necessary trial fairness and protecting complainants from humiliating questioning—a balance the justice system has struggled with for decades.
As the fall hearing approaches, stakeholders across the spectrum are preparing submissions on this delicate constitutional balance. Whatever the outcome, the Court’s decision will shape how rape shield provisions are applied in Canadian courtrooms for years to come.
