Supreme Court Upholds Rape-Shield Law

Judges unanimously back restrictionson evidence of accuser's sexual history

by Erin Anderssen 
The Globe and Mail, Ottawa 
October 13, 2000

In a unanimous decision vigorously applauded by women's rights groups, the Supreme Court of Canada upheld the country's rape-shield yesterday, further sofidifying a woman's right to keep her sexual history out of sexual-assault cases

In the first challenge to the 1992 legislation, which established strict guidelines for when and how previous sexual conduct could be used by an accused at trial, the court ruled 9-0 that all the rape-shield provisions in the Criminal Code are constitutional.

The case before the court involved former Ottawa resident Andrew Scott Darrach,who was convicted of sexually assaulting his ex-girlfriend. Mr. Darrach argued that he'd been denied a fair trial because he was unable to raise specific aspects of his prior sexual relationship with the complainant.

During the trial, the judge held a hearing with the jury absent to determine whether the evidence was relevant, but Mr. Darrach, who had signed an affidavit describing, the relationship, refused to testify or be cross-examined on the substance of the document. The judge tossed out the affidavit, and ruled the evidence inadmissible.

In his appeal, Mr. Darrach argued that the law unfairly required him to testify at his own trial and deprived him of access to a full defence – that is, given his past relationship with the complainant, he mistakenly thought the incident was consensual.

"It's the pendulum swung completely to the extreme," said Mr. Darrach's lawyer,Lawrence Greenspon, observing that no other circumstance requires the accused to testify. "It's wrong. We don't put accused people on the stand in order to get relevant information about the defence."

The court's decision states that the accused is not legally compelled to testify, and "the tactical pressure" he feels to do so does not violate his rights. It is up to the accused, the court says, to prove that the complainant's past is relevant, and in such in camera hearings the complainant cannot be required to testify. Until her sexual history is determined to be relevant, the ruling says, forcing her to give evidence about it invades her privacy and would "discourage the reporting of crimes of sexual violence."

Mr. Darrach was sentenced in 1994 to nine months in jail for the assault and has served his time.

Lee Lakeman, an advocate for the Criminal Code amendment eight years agoand a spokeswoman for the Canadian Association of Sexual Assault Centres, which intervened in the case, said, "The fact that the law has been shored up brings credit to the court."