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October 13, 2000

Rape-shield law upheld by high court:

Unanimous decision

Luiza Chwialkowska
National Post

OTTAWA - The Supreme Court yesterday upheld unanimously a 1992 law that restricts the ability of defence lawyers to question alleged victims of sexual assault about their past sexual history.

A decade of legal and parliamentary wrangling over the constitutionality of the so-called "rape-shield" law ended with the court's emphatic declaration that, after two controversial efforts, lawmakers had arrived at a fair way to keep prejudicial "myths" about women out of the court-room, while preserving the right of an accused to a fair trial.

The rape-shield law was created to protect complainants from what are known as the "twin myths" of sexual assault: that unchaste women are more likely to consent to intercourse and they are less worthy of belief.

"These twin myths are simply not relevant at trial," wrote Justice Charles Gonthier. "They are not probative of consent or credibility and can severely distort the trial process."

Praising Section 276 of the Criminal Code as "carefully crafted" legislation that "essentially codifies" guidelines suggested by the court itself in a 1991 decision, nine judges upheld the conviction of Andrew Scott Darrach, an Ottawa man accused of sexually assaulting his neighbour and former girlfriend when she came to his home to repay a $20 loan.

Seeking to prove he had the "honest but mistaken belief" of consent by his former lover, Mr. Darrach asked to introduce evidence the alleged assault resembled their previous sexual activities. But he failed to convince the judge it was of "significant probative value," as required by the 1992 law, and he was convicted and sentenced to nine months of custody.

Mr. Darrach's right to make a full defence does not "include a right to all relevant evidence," nor is he "entitled to the most favourable procedures that could possibly be imagined," wrote Justice Charles Gonthier. "Still less is he entitled to procedures that would distort the truth-seeking function of a trial by permitting irrelevant and prejudicial material at trial."

Mr. Darrach, who has served his sentence and since left Ottawa, was not available for comment.

"I am disappointed but not surprised," Lawrence Greenspon, Mr. Darrach's lawyer, said yesterday. The pendulum "has swung too far" over the past 15 years from "vilifying" female victims to doing the same to accused men, he said. "There is great potential for, let's face it, mainly men to be wrongfully convicted under this law."

Women's groups intervening were relieved by the decision, though it endorsed a scheme they had originally criticized and stopped short of the blanket ban for which they had lobbied.

"For us it's the end of a very long fight," said Carissima Mathen, director of litigation at LEAF, the Legal Education and Action Fund. "The fact that the court is unanimous shows that there is little debate about the importance of this law and the fact that it doesn't impede a fair trial, it promotes one."

The 1992 law requires the accused to prove the complainant's past sexual history is of "significant probative value" before it can be allowed into open court.

Since no one witnessed their past sexual encounters and the complainant could not be made to testify about the relationship at the hearing, Mr. Darrach said the law forced him to testify. This violated his constitutional right to remain silent and his privilege against self-incrimination, he argued.

But the court ruled Mr. Darrach was not being deprived of his right to a fair trial because he was the one who wanted to introduce the evidence so it was up to him to show its significance.

The rape-shield law was modelled after guidelines set out by the Supreme Court in its 1991 Seaboyer decision. That ruling struck down as too strict Parliament's 1985 rape-shield law banning sexual history evidence outright because it could "potentially exclude evidence of critical relevance."

The evolution of the law is often cited as a prime example of the constitutional "dialogue" between the court and Parliament and as proof the court's freedom to strike down legislation can result in better laws. But critics of the dialogue theory have said the court has "monologued" and dictated the substance of the rape-shield law to Parliament.

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