This case concerned the constitutionality of Canada’s “rape shield” provisions.
LEAF intervened before the Ontario Court of Appeal and the Supreme Court of Canada, in coalition with:
- Canadian Association of Sexual Assault Centres
- DisAbled Women’s Network Canada (DAWN)
- National Action Committee on the Status of Women
Andrew Darrach was charged with sexual assault. At his trial, he attempted to introduce evidence about the complainant’s sexual history. He challenged the constitutionality of the “rape shield” provisions under the Criminal Code, which:
- Required that the defendant provide “detailed particulars” about the sexual history evidence being introduced
- Outlined the admissibility of sexual conduct evidence generally
- Did not allow the defendant to make the complainant testify at the hearing to decide the admissibility of past sexual history evidence
The trial judge rejected Mr. Darrach’s arguments, and he was convicted of sexual assault. The Court of Appeal dismissed his appeal. Mr. Darrach appealed to the Supreme Court of Canada, arguing that the provisions violated his right to make full answer and defence, his right not to be required to testify against himself, and his right to a fair trial under ss. 7, 11(c) and 11(d) of the Charter.
The Coalition argued that the provisions did not violate Mr. Darrach’s ss. 7, 11(c) or 11(d) rights. In addition, the provisions were required under ss. 15 and 28 of the Charter to promote equality and give effect to complainants’ rights not to be abused in sexual assault trials. The Coalition emphasized that sexual assault was a practice of inequality, and that whether a woman consented to sexual activity in the past had no relevance to whether she consented to the activity in question at a trial.
The Supreme Court held that the “rape shield” provisions were constitutional. They protected the integrity of the trial process and respected the rights of all persons involved. The Court emphasized that the “twin myths” – that prior sexual experience means a complainant was more likely to have consented, and that she was less credible as a witness – had no place in the courtroom.
Although this ended the battle over the constitutionality of Canada’s “rape shield” provisions, the struggle continues to ensure that these provisions are appropriately applied by trial judges to keep the twin myths out of the courtroom.
LEAF is grateful to Susan Vella and Christine Boyle, counsel before the Ontario Court of Appeal on this case. LEAF is also grateful to Elizabeth Thomas and Carissima Mathen, counsel before the Supreme Court in this case, as well as Carole Brown, Ottawa agent for the Coalition.
Download the Ontario Court of Appeal factum here.
Download the Supreme Court of Canada factum here.
Read the Ontario Court of Appeal’s decision here.
Read the Supreme Court of Canada’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].