R. v. Darrach (A.S.), 2000 SCC 46

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 12, 2000
• Jurisdiction: Canada (Federal)
• Citations: 2000 SCC 46;(2000), 137 O.A.C. 91 (SCC)

R. v. Darrach (A.S.) (2000), 137 O.A.C. 91 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2000] O.A.C. TBEd. OC.098

Andrew Scott Darrach (appellant) v. Her Majesty The Queen (respondent) and The Attorney General of Canada, The Attorney General of Quebec, The Attorney General of Manitoba, The Attorney General of British Columbia, The Women's Legal Education and Action Fund, The Canadian Association of Sexual Assault Centres, The Disabled Women's Network of Canada and The National Action Committee on the Status of Women (intervenors)

(26564; 2000 SCC 46)

Indexed As: R. v. Darrach (A.S.)

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

October 12, 2000.

Summary:

The accused was convicted of sexual assault. The accused, relying on the alter­native defences of consent or honest belief in consent, challenged the constitutionality of the "rape shield" provisions of s. 276 of the Criminal Code (admissibility of evidence of complainant's previous sexual activity with accused and others), as well as ss. 273.1(2)(d) (statement of a condition rele­vant to the existence of consent), 273.2(b) (statement of a condition relevant to the defence of belief that complainant con­sented), 276.1(2)(a) (contents of application for a hearing to determine admissibility of evidence of previous sexual activity) and 276.2(2) (complainant not a compellable witness at the admissibility hearing). The trial judge held that the challenged sections did not violate the accused's Charter rights. The accused appealed.

The Ontario Court of Appeal, in a judg­ment reported 107 O.A.C. 81, dismissed the appeal. The accused appealed.

The Supreme Court of Canada dismissed the appeal. The substantive provisions of s. 276 that excluded evidence did not violate the accused's right to make full answer and defence (Charter, s. 7), his right to a fair trial (s. 11(d)) or the presumption of inno­cence. The procedural provisions also did not violate the accused's right against self-in­crimination (ss. 7 and 11(c)). The court stated that "the balance struck in Seaboyer among the interests of justice, the accused and the complainant is preserved in the current legislation".

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See first and second Criminal Law - Topic 689 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See first Criminal Law - Topic 689 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent (Charter, s. 7) - [See first Criminal Law - Topic 692 ].

Civil Rights - Topic 4304

Protection against self-incrimination - Compellability defined - [See third Crimi­nal Law - Topic 689 and both Criminal Law - Topic 692 ].

Civil Rights - Topic 4435

Protection against self-incrimination - Proceedings to which protection applies - Voir dire - At issue was whether the Char­ter right respecting self-incrimination applied to a voir dire under the "rape shield" provisions of s. 276 of the Criminal Code - The Supreme Court of Canada stated that the "privilege against self-in­crimination applied because a voir dire is an 'other proceeding' within the meaning of s. 13" - See paragraph 66.

Civil Rights - Topic 4909

Presumption of innocence - General prin­ciples - Circumstances not infringing pre­sumption - [See third Criminal Law - Topic 689 ].

Criminal Law - Topic 689

Sexual offences - Evidence - Sexual con­duct or character of complainant - Section 276(1) of the Criminal Code provided that "evidence that the complainant has engaged in sexual activity, whether with the accused or any other person, is not admis­sible to support an inference that, by rea­son of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject matter of the charge; or (b) is less worthy of belief" - The Supreme Court of Canada affirmed that s. 276 did not violate s. 7 of the Charter (principles of fundamental justice) or s. 11(d) (right to fair trial) - Section 276 excluded only evidence of past sexual activity offered to support two illegitimate inferences (i.e., complainant less credible or more likely to have consented because of her past sexual activity) - The court stated that "the legis­lation enhances the fairness of the hearing by excluding misleading evidence from trials of sexual offences. It preserves the accused's right to adduce relevant evidence that meets certain criteria and so to make full answer and defence" - See paragraphs 32 to 37.

Criminal Law - Topic 689

Sexual offences - Evidence - Sexual con­duct or character of complainant - Section 276(2)(c) of the Criminal Code provided that the accused could not adduce evidence of the complainant's sexual activity other than the sexual activity forming the subject matter of the charge, unless in accordance with the procedures set out in ss. 276.1 and 276.2 the evidence "(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice" - The Supreme Court of Canada held that s. 276(2)(c), particularly the threshold criteria that evidence be of "significant probative value", did not prevent the accused from making full answer and defence (Charter, ss. 7 and 11(d)) - See paragraphs 38 to 43.

Criminal Law - Topic 689

Sexual offences - Evidence - Sexual con­duct or character of complainant - Section 276(2)(a) of the Criminal Code provided that the accused could not adduce evidence of the complainant's sexual activity other than the sexual activity forming the subject matter of the charge, unless in accordance with the procedures set out in ss. 276.1 and 276.2 the evidence "(a) is of specific instances of sexual activity" - The accused was required to produce an affidavit with "detailed particulars" of the evidence he sought to adduce - The accused submitted that providing the affidavit compelled him to reveal his defence, violating his right to silence (Charter, s. 7) - The Supreme Court of Canada held that s. 276 did not require the accused to make premature or inappropriate disclosure to the Crown - Neither the s. 11(c) right not to be com­pelled to testify against himself nor the s. 11(d) right to presumption of innocence were violated by the affidavit requirement - If a voir dire was subsequently held to determine the admissibility of evidence of past sexual activity, the accused's right not to be compelled to testify against himself was not violated by the requirement that he submit to cross-examination on his affi­davit - Absent cross-examination, the affi­davit would be an inadmissible unsworn statement - See paragraphs 53 to 67.

Criminal Law - Topic 692

Sexual offences - Evidence - Admissibility hearing - Evidence of complainant's sexual activity - Section 276.1(1) of the Criminal Code provided for an application for a hearing to determine whether evidence was admissible under s. 276(2) - Section 276.1(2)(a) provided that the application was to be in writing and must set out "(a) detailed particulars of the evidence that the accused seeks to adduce" - The Ontario Court of Appeal held that s. 276.1(2)(a) did not violate the accused's right to remain silent (Charter, s. 7) or his right not to be compelled to be a witness in pro­ceedings against him (s. 11(c)) - While the provision may cause an accused to furnish to the Crown particulars which relate to his defence, the accused's constitutional rights were not infringed - The purpose of the provision was not self-incriminatory, but merely to frame the evidentiary inquiry and avoid an inquiry which would defeat the very purpose of s. 276 - The require­ment of a statement of particulars did not constitute a compulsion on the accused to testify - The Supreme Court of Canada affirmed that the accused's rights were not violated - See paragraphs 53 to 59.

Criminal Law - Topic 692

Sexual offences - Evidence - Admissibility hearing - Evidence of complainant's sexual activity - Section 276.2(2) of the Criminal Code provided that at a hearing to deter­mine the admissibility of evidence under s. 276(2) "the complainant is not a com­pellable witness at the hearing" - The ac­cused submitted that if the complainant could not be compelled to testify, he had to testify in violation of s. 11(c) of the Charter (self-incrimination) - Further, his right to make full answer and defence was violated - The Supreme Court of Canada held that the non-compellability of the complainant at an admissibility hearing did not violate the accused's Charter rights - The court agreed with the Court of Ap­peal's statement that "the accused himself must know what evidence he wishes to put before the court and he can do this without the need to call the complainant - unless his real purpose is to conduct a 'fishing expedition'. ... If the accused chooses to testify at the s. 276.2 hearing he does so, not under a legal compulsion contrary to s. 11(c) but, rather, a tactical one" - See paragraphs 68 to 70.

Cases Noticed:

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321, folld. [para. 1].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 23].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 23].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 24].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 26].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81, refd to. [para. 26].

R. v. Crosby (W.S.), [1995] 2 S.C.R. 912; 183 N.R. 22; 143 N.S.R.(2d) 57; 411 A.P.R. 57, refd to. [para. 33].

R. v. Santocono (V.J.) (1996), 91 O.A.C. 26 (C.A.), refd to. [para. 39].

R. v. Stoddard (1987), 20 O.A.C. 365; 37 C.C.C.(3d) 351 (C.A.), refd to. [para. 42].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 46].

R. v. Boss (1988), 30 O.A.C. 184 (C.A.), refd to. [para. 47].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161, refd to. [para. 48].

R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241, refd to. [para. 49].

R. v. Erven, [1979] 1 S.C.R. 926; 25 N.R. 49; 30 N.S.R.(2d) 89; 49 A.P.R. 89, refd to. [para. 51].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 52].

R. v. Whyte, [1988] 2 S.C.R. 3; 86 N.R. 328, refd to. [para. 52].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 54].

R. v. Dickson (A.L.), [1994] 1 S.C.R. 153; 163 N.R. 58, refd to. [para. 57].

R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1, refd to. [para. 58].

R. v. Fredrick (1931), 57 C.C.C. 340 (B.C.C.A.), refd to. [para. 62].

R. v. Underwood (G.R.), [1998] 1 S.C.R. 77; 221 N.R. 161; 209 A.R. 276; 160 W.A.C. 276, refd to. [para. 65].

R. v. Tarafa, [1990] R.J.Q. 427 (S.C.), refd to. [para. 66].

R. v. Dubois, [1985] 2 S.C.R. 350; 62 N.R. 50; 66 A.R. 202, refd to. [para. 66].

R. v. Kuldip, [1990] 3 S.C.R. 618; 114 N.R. 284; 43 O.A.C. 340, refd to. [para. 66].

R. v. Cook, [1997] 1 S.C.R. 1113; 210 N.R. 197; 188 N.B.R.(2d) 161; 480 A.P.R. 161, refd to. [para. 69].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(c), sect. 11(d), sect. 13 [para. 17].

Criminal Code, R.S.C. 1985, c. C-46, sect. 276, sect. 276.1, sect. 276.2 [para. 17].

Authors and Works Noticed:

Kelly, K., You must be crazy if you think you were raped: Reflections on the Use of Complainants' Personal and Therapy Records in Sexual Assault Trials (1997), 9 C.J.W.L. 178, p. 181 [para. 26].

McCrimmon, M., The Constitutionality of Bill C-49; Analyzing Sexual Assault As If Equality Really Mattered (1998), 41 Crim. L.Q. 198, pp. 231, 232 [para. 33].

Schwartz, H., Sex with the accused on other occasions: The Evisceration of Rape Shield Protection (1994), 31 C.R.(4th) 232, p. 250 [para. 64].

Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), para. 13.46 [para. 48].

Counsel:

Lawrence Greenspon and Blair Crew, for the appellant;

Rosella Cornaviera and Karen Shai, for the respondent;

Graham R. Garton, Q.C. and Robin Parker, for the intervenor, Attorney General of Canada;

Joanne Marceau and Marie-Claude Gilbert, for the intervenor, Attorney General of Quebec;

Cynthia Devine, for the intervenor, At­torney General of Manitoba;

Alexander Budlovsky and Marian K. Brown, for the intervenor, Attorney General of British Columbia;

Elizabeth Thomas and Carissima Mathen, for the intervenors, Women's Legal Education and Action Fund et al.

Solicitors of Record:

Karam, Greenspon, Ottawa, Ontario, for the appellant;

Attorney General for Ontario, Toronto, Ontario, for the respondent;

Department of Justice, Ottawa, Ontario, for the intervenor, Attorney General of Canada;

Department of Justice, Sainte-Foy, Quebec, for the intervenor, Attorney General of Quebec;

Department of Justice, Winnipeg, Mani­toba, for the intervenor, Attorney Gen­eral of Manitoba;

Ministry of the Attorney General, Vancouver, B.C., for the intervenor, Attorney General of British Columbia;

Women's Legal Education and Action Fund, Toronto, Ontario, for the intervenors, Women's Legal Education and Action Fund, Canadian Association of Sexual Assault Centres, Disabled Women's Network of Canada and the National Action Committee on the Status of Women.

This appeal was heard on February 23, 2000, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

On October 12, 2000, the judgment of the Supreme Court of Canada was delivered in both official languages by Gonthier, J.