Globe and Mail

Rape-shield protections upheld

Canadian Press
Globe and Mail
Friday, October 13, 2000

Ottawa — A man convicted of sexually assaulting his former girlfriend has lost his challenge of rape-shield laws that excluded evidence of her sexual past at his trial.

The Supreme Court of Canada ruled 9-0 Thursday that all the rape-shield provisions in the Criminal Code are constitutional.

Andrew Scott Darrach, formerly of Ottawa, argued his rights were violated by legal provisions setting strict guidelines for when a complainant's sexual past is admissible in court.

He contended Criminal Code changes made in 1992 denied him a fair trial. He was convicted in 1994 and sentenced to nine months in jail.

It's the first time the high court has considered a challenge of the 1992 changes made after it struck down a former rape-shield law, saying it excessively limited the ability to launch a defence.

That move drew fire from women's groups, who also intervened in this case.

Darrach said the current legal test for admitting a complainant's sexual past in sexual-assault cases is too strict and places too heavy a burden on the defendant.

Under the revised law, such evidence is only allowed if a judge rules its worth outweighs any danger that it could prejudice proceedings against the complainant.

Darrach also challenged provisions which require, during a special trial hearing, "detailed particulars" of such evidence to determine its admissibility.

Defendants are unjustly compelled to testify because the law also states that a complainant can't be called as a witness during such hearings, he argued.

Darrach contended this violates his rights under the Charter of Rights and Freedoms to remain silent and to not be compelled as a witness in proceedings against himself.

He was charged in November 1992, months after a sexual relationship with the complainant ended.

They both lived and worked in Ottawa at the time, and lived on the same street.

She said the alleged assault occurred one night after she entered his apartment to use the phone.

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