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The Supreme Court of Canada upheld the rape shield provisions of the Criminal Code (s. 276, 276.1and 276.2) in R. v. Darrach, 2000 SCC 46, released October 12. Except in one respect, the decision does not extend protections to women; its importance lies in the fact that it entrenches and mainstreams protections we already fought for and won. The decision in Darrach was unanimous and was written by Justice Gonthier. It appears that the era has passed in which women’s point of view concerning sexual assault could be found only in the dissenting judgments of the Supreme Court of Canada.
The rape shield provisions protect women from routinely being cross-examined on the witness stand about their past sexual histories. The practice of this type of cross-examination did not depend on the bloody-mindedness of defence lawyers as a group or the meanness of particular defence lawyers. It was part of Canada’s evidentiary and procedural law adopted from Britain and firmly based on rape myths as old as the crime of rape itself. The twin myths underlying the old law, and now prohibited by rape shield, imply that women who had sexual intercourse on other occasions, firstly, always consented to sex, and secondly, were more likely to lie. This meant that every sexual assault complainant who had ever had sex (either consensually or against her will) could expect to be cross-examined about her past sexual history if she reported the crime. Men who sexually assaulted women could rely on their victims’ fear of getting “whacked” a second time in court. In the case discussed here, Andrew Darrach told the complainant, “Are you thinking of accusing me of rape, because if you are, I’ll see you in court.”
In 1991, Parliament’s earlier rape shield provisions had been struck down by the Supreme Court inR. v. Seaboyer,  2 S.C.R. 577. Immediately following that decision, NAWL and other women’s groups lobbied the then Justice Minister Kim Campbell to introduce a new rape shield. Within four months the Minister introduced Bill C-49 and by early 1992 the House of Commons and the Senate unanimously passed the new bill into law.
Both the substantive and procedural provisions of the 1992 rape shield law were challenged by the Ontario accused, Andrew Darrach, and both were upheld by the Supreme Court. The following summarizes the substance and procedure for s. 276:
1. The accused may not adduce evidence of the complainant’s other sexual activity to show that by virtue of that activity being sexual in nature: i) that she is more likely to have consented, or ii) that she is less credible;
2. Specific evidence of other sexual activity may be adduced if it is relevant and if it has significant probative value. If the relevance of the other sexual activity is trifling, it is not admissible.
3. The accused makes an application in writing particularizing the evidence he intends to adduce and how it is connected to the defence he is raising;
4. The judge will review the written application to see if the evidence is capable of being admissible – i.e. the accused is not trying to adduce the evidence for the twin myths noted above, is adducing evidence of specific instances of sexual activity, and is relevant to the defence the accused is relying on and has significant probative value;
5. If the evidence passes this threshold stage, then the judge must hold a voir dire to determine admissibility. The judge must consider 8 factors listed in s. 276(3), which involve a balancing of the rights of the accused to a fair trial, the purposes of the section to protect the privacy and dignity of sexual assault complainants and to encourage the reporting of sexual offences, and society’s interest in fair trials.
In Darrach, the Supreme Court clarified one issue over which there had been conflicting judgments by trial and appellate courts and which represents one victory for women. The decision is clear that rape shield applies not only to consensual, but also to non-consensual sexual activity. The Legal Education Action Fund(LEAF) in their intervention advocated strongly for this interpretation.
It seems there has also been a larger victory. The feminist viewpoint which NAWL, LEAF and other women’s groups have long advocated in the criminal law, particularly with respect to sexual offences, seems now to be accepted as part of standard evidentiary law and common sense procedure.
We’re finally getting to the nitty gritty of what a rape shield law really is. The court now states that the accused can never raise irrelevant evidence. If an accused wants to cross-examine a woman about her past sexual history, he must first file an affidavit stating the connection between that evidence and his defence, and hahas to be prepared to be cross-examined on that affidavit by the Crown. The Court also stated that evidence of past sexual history would rarely be relevant to a defence of consent, because the determination of consent”is only concerned with the complainant’s perspective. The approach is purely subjective.” (citing R. v.Ewanchuk,  1 S.C.R. 330). Gonthier J. observed that s. 276 applications will most often arise in cases where the defence is ‘honest but mistaken belief’ in consent. In such a case, the accused must provide some evidence of what he believed at the time of the alleged assault.
What feminists may find heartening in Darrach is that Gonthier J’s reasons aren’t yet another tome in feminism101. It was neither necessary to detail yet again the inequality faced by sexual assault victims, particularly women and children, in the criminal justice system; nor that rape, the fear of rape, and the double jeopardy faced by women who report rape to the police, serve to keep women oppressed; nor that reliance on the rape myths results in a miscarriage of justice and pillory individual women on the witness stand. This time the Court felt no compulsion to restate that the Charter protects not only the rights of those accused of sexual assault, but also the rights of the complainants. It seems like we’ve gone past that. I hope.
Cynthia Devine is a National Steering Committee Member with NAWL and is the editor of Jurisfemme. She represented the Manitoba Attorney General who was one of the interveners in R. v. Darrach. (The views expressed here are her own and not necessarily those of the Manitoba government.)