As an Ontario Superior Court decides whether a judge erred in allowing evidence about the sexual history of former hostage Joshua Boyle’s estranged wife into his assault trial, groups representing women’s rights advocates and criminal lawyers are preparing to intervene.
Both the Women’s Legal Education and Action Fund (LEAF) and the Criminal Lawyers Association are applying for legal standing in Wednesday’s appeal before the Ontario Superior Court.
Boyle faces 19 charges, including assault with a weapon, sexual assault and forcible confinement. His case is on hiatus while the court decides whether it will allow his trial to hear about the couple’s sexual past.
Caitlan Coleman and her husband were held captive in Afghanistan for five years by Taliban-linked groups. After the couple and their children (born in captivity) were released in 2017 and settled in Ottawa, police arrested and charged Boyle with physical and sexual assault against his wife.
On April 17, Ontario Judge Peter Doody ruled that Boyle’s defence can introduce evidence that he and Coleman engaged in “prior acts of consensual anal intercourse, consensual vaginal intercourse from the rear, sexual acts involving ropes and consensual biting as acts of sexual play.”
Doody added the evidence would be general in nature and would not include significant details about any one act.
Coleman’s lawyer objected to the evidence and filed for a review of the judge’s decision.
Karen Segal, staff counsel at LEAF, said the organization will argue the judge blundered in allowing into the trial evidence of the couple’s sexual history — evidence that’s usually banned under Canada’s ‘rape shield’ laws.
If given intervener status, Segal said her organization will argue the trial judge has allowed “discriminatory myths and stereotypes” about women into the trial.
“Feminists have fought for regulations restricting sexual history evidence,” Segal said in an interview with CBC. “Because so often that evidence is admitted for the purpose of relying on putting in front of the court discriminatory myths and stereotypes about a woman’s sexuality.”
Segal said exposing a woman’s sexual history during a trial often strengthens the myth that women who have had a certain kind of sexual intercourse in the past have consented to future, similar acts.
Unlike LEAF, the Criminal Lawyers’ Association will not argue that the judge made a mistake in allowing the controversial evidence.
In a legal brief filed ahead of the appeal hearing, the association argues that counsel shouldn’t be allowed to launch in-trial appeals because it leads to bottlenecks in the legal system.
“Our system tolerates that unfortunate reality because no system is perfect, and if trials could be called to a halt every time someone disagreed with a judge’s ruling, trials would quickly become unmanageable,” the association said in its legal filing.
In addition to the intervening groups, Coleman’s lawyer, Boyle’s defence team and the Crown will present their own legal arguments at Wednesday’s appeal hearing.