R. v. Darrach

D was charged under s 271 of the Criminal Code with sexual assault. During the trial, D sought to introduce evidence of the complainant’s prior sexual activity pursuant to ss 276, 276.1 and 276.2 of the Criminal Code. Section 276 categorically prohibits evidence of a complainant’s sexual history when it is used to support one of two general inferences: that the complainant is more likely to have consented to the alleged assault or is less credible as a witness by virtue of their prior sexual experience. However, the evidence may be admissible to substantiate other inferences if the evidence is more probative than prejudicial. The judge will hold a voir dire to determine the evidence’s admissibility without the jury present.

In the case, D presented a detailed affidavit but refused to be cross-examined on it. The trial judge found that the information and affidavit were not enough at the stage of the voir dire, and therefore the evidence of the complainant’s prior sexual activity should be excluded. D was convicted and his appeal to the Ontario Court of Appeal dismissed. D appealed to the Supreme Court claiming that the exclusion of evidence violated his right under s 7 of the Canadian Charter of Rights and Freedoms (the Charter), which guarantees the right to make a full answer and defense, as well as his s 11(d) Charter right to a fair hearing and presumption of innocence. Secondly, D also challenged the procedural sections claiming they violated his right not to be compelled to be a witness in proceedings against him, as established by ss 7 and 11(c) of the Charter.

[Adapted from INTERIGHTS summary, with permission]

The Court dismissed the appealing holding that:

1. Section 276.1 does not create a blanket exclusion, but prohibits the use of evidence of past sexual activity when offered to support two specific illegitimate inferences. They are not probative of consent or credibility and can severely distort the trial process. Further, the exclusion is limited to irrelevant evidence adduced to make inferences by reason of the sexual nature of the activity and not for any separate non-sexual feature of the evidence such as to show a pattern of conduct.
2. Evidence of the complainant's prior sexual activity is of limited admissibility and it is the onus of the party applying for the evidence’s admissibility to prove to the court its relevance. It is the discretionary power of the trial judge to decide if the evidence is sufficiently relevant and to weigh its probative value against its prejudicial effect so as to be admissible.
3. The procedural safeguards in s 276 are principles of fundamental justice established to protect the integrity of the trial by excluding evidence that is misleading; to protect the rights of the accused, as well as to encourage the reporting of sexual violence and to protect the witnesses' security and privacy.
4. Sections 7 and 11(d) are not violated since the legislation protects the accused's right to adduce relevant evidence that meets certain criteria, as well as to make full answer and defence.
5. Sections 7 and 11(c) are also not violated considering that the accused participates voluntarily in order to exculpate himself. The tactical pressure on the accused to testify at the voir dire is neither a legal obligation nor an evidentiary burden on the accused and the mere tactical pressure to participate in the trial does not offend the principle against self-discrimination. Further, the tactical burden only relates to establishing relevance on a voir dire and does impose any burden on the accused at trial. Moreover, the burden of proof of the sexual offence remains with the Crown and thus the presumption of innocence is preserved.
6. Section 276 does not require the accused to make inappropriate or premature disclosure to the crown violating the right to silence under s 7. The accused is not forced to use s 276 and should, anyway, not be able to defend by ambush. By refusing to be cross examined D's affidavit was reduced in weight to an unsworn statement, which cannot be relied on because it is impossible to assess its probative value and prejudicial effect as the legislation requires.

 [Adapted from INTERIGHTS summary, with permission]

[56] “The defence must satisfy the trial judge that the evidence it seeks to adduce meets the statutory requirements for admissibility. To admit evidence of sexual activity at trial, the judge must provide written reasons about how the evidence “is expected to be relevant to an issue at trial” and the factors she considered in making this determination (as per ss. 276.2(3)(b) and (c)). It is perfectly appropriate that, to this end, the affidavit must disclose evidence that is “capable of being admissible under subsection 276(2)”. Among other things, the evidence must be adduced for a permissible and must be relevant to an issue at trial. The affidavit must therefore establish a connection between the complainant’s sexual history and the accused’s defence. As the trial judge put it, “there would have to be evidence to establish the link between the potential defences...and the prior sexual conduct”.

[58] “It is common for the defence in sexual offence cases to deny that the assault occurred, to challenge the identity of the assailant, to allege consent or to claim an honest but mistaken belief in consent. Evidence of prior sexual activity will rarely be relevant to support a denial that sexual activity took place or to establish consent (see Sopinka, Lederman and Bryant, supra, at para. 10.108). As the Court affirmed in R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 27, the determination of consent is “only concerned with the complainant’s perspective. The approach is purely subjective.” Actual consent must be given for each instance of sexual activity.

[68] “[T]he complainant’s non-compellability is based on sound legislative goals. To compel the complainant to be examined on her sexual history before the subject has been found to be relevant to the trial would two of the three purposes of the law, as articulated and upheld in Seaboyer(at p. 606). It is an invasion of the complainant’s privacy and discourages the reporting of crimes of sexual violence.”