University of British Columbia Law Review
Nick Carosella owes his freedom from conviction on gross indecency charges not to a single judge or jury, but to two entities whom he has never met. These two-the Supreme Court of Canada and the Windsor Sexual Assault Crisis Centre-have transformed a handful of written notes into an ambiguous extension of the concept of relevance. The latter organization, by destroying the complainant's counselling records, forced the former to revisit, via the Charter, 1 the relevance of such records. At the end of the day, the fates of Carosella and his alleged victim seem almost incidental to the Court's latest installment in an ongoing foundational confrontation over whether, and if so, the way in which, the rules of evidence might need to be customized in cases of sexual assault. In the recently-released decision R. v. Carosella,2 Sopinka J. (in the majority) and L'Heureux-Dube ]. (in the minority) continue to illustrate the stark conceptual and doctrinal gulf which separates those Justices who see no need for the law to recognize or adapt to social inequities beyond the ambit of the courtroom "contest," and those who do.3 The division in the court on the issue of production of records by third parties in cases of alleged sexual assault was demonstrated in late 1995 in two cases: R. v. O'Connor4 and R v. Beharriell. 5 In the several years since the cases arose, it has become commonplace for accused persons to seek production of such records. The results of such applications have been inconsistent.
Haigh, Richard. “Valorizing the Subjunctive: The Unfortunate Judicial Contribution of R. v. Carosella." University of British Columbia Law Review. 32.1 (1998): 127-161.
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