What is the test for an exemption to a limitation on cross-examination of sexual assault complainants in s. 276 of the Criminal Code?
British Columbia, Canada
The following excerpt is from R v. Jaycox, 2011 BCSC 662 (CanLII):
The respondent relies on the observations of Lamer C.J. in Schachter, at para. 61, for the proposition that where “the choice of means is unequivocal, to further the objective of the legislative scheme through different means would constitute an unwarranted intrusion into the legislative domain”. As well, in Regina v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, 66 C.C.C. (3d) 321 (cited to S.C.R.), referred to in Schachter, McLachlin J. (as she then was), declined to read down or order a constitutional exemption to salvage an unconstitutional limitation on the cross-examination of sexual assault complainants in s. 276 of the Criminal Code, offering as the first reason,“[i]t would import into the provision an element which the legislature specifically chose to exclude”: at 627.
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