Rape Shield Law - in Canada

In Canada

In 1992 legislation amended the Criminal Code of Canada to re-establish a rape shield law with strict guidelines for when and how previous sexual conduct could be used by a defendant at trial. The reform came in the Parliament after the 1991 ruling, R. v. Seaboyer had struck down the previously existing rape shield law (enacted in 1982) as unconstitutional. Bill C-49 amended the Criminal Code provisions that govern the admissibility of evidence of sexual activity; refined the definition of consent to a sexual act; and restricted the defense that an accused had an honest but mistaken belief that the accuser had consented. The 1995 Supreme Court judgment in the case of British Columbia Bishop Hubert O'Connor (R. v. O'Connor) led to Bill C-46, which limited the production of a complainant's personal counselling records to the defense in sexual offence cases. Bill C-46 was tested in R. v. Mills, and upheld by the Supreme Court in 1999.

In the 2000 decision of R. v. Darrach, the Supreme Court of Canada upheld the law in a case involving former Ottawa resident Andrew Scott Darrach, who was convicted of sexually assaulting his ex-girlfriend. Darrach was sentenced in 1994 to nine months in jail for the assault. By a 9-0 the court found that all the rape shield provisions in the Criminal Code are constitutional. The ruling says, forcing accuser to give evidence would invade her privacy and would "discourage the reporting of crimes of sexual violence." In his appeal, Darrach had argued that he had been denied a fair trial because he was unable to raise the fact that he mistakenly thought the incident was consensual. Additionally, Darrach argued that the law unfairly required him to testify at his own trial. During the trial, Darrach refused to testify at an evidentiary hearing and the evidence was ruled inadmissible.