In a unanimous decision vigorously applauded by women's rights groups, the Supreme Court of Canada upheld the country's rape-shield yesterday, further sofidifying a woman's right to keep her sexual history out of sexual-assault cases.
In the first challenge to the 1992 legislation, which established strict guidelines for when and how previous sexual conduct could be used by an accused at trial, the court ruled 9-0 that all the rape-shield provisions in the Criminal Code are constitutional.
The case before the court involved former Ottawa resident Andrew Scott Darrach, who was convicted of sexually assaulting his ex-girlfriend. Mr. Darrach argued that he'd been denied a fair trial because he was unable to raise specific aspects of his prior sexual relationship with the complainant.
During the trial, the judge held a hearing with the jury absent to determine whether the evidence was relevant, but Mr. Darrach, who had signed an affidavit describing the relationship, refused to testify or be cross-examined on the substance of the document. The judge tossed out the affidavit, and ruled the evidence inadmissible.
In his appeal, Mr. Darrach argued that the law unfairly required him to testify at his own trial and deprived him of access to a full defence - that is, given his past relationship with the complainant, he mistakenly thought the incident was consensual.
"It's the pendulum swung completely to the extreme," said Mr. Darrach's lawyer, Lawrence Greenspon, observing that no other circumstance requires the accused to testify. "It's wrong. We don't put accused people on the stand in order to get relevant information about the defence."
The court's decision states that the accused is not legally compelled to testify, and "the tactical pressure" he feels to do so does not violate his rights. It is up to the accused, the court says, to prove that the complainant's past is relevant, and in such in camera hearings the complainant cannot be required to testify. Until her sexual history is determined to be relevant, the ruling says, forcing her to give evidence about it invades her privacy and would "discourage the reporting of crimes of sexual violence."
Mr. Darrach was sentenced in 1994 to nine months in jail for the assault and has served his time.
Lee Lakeman, an advocate for the Criminal Code amendment eight years ago and a spokeswoman for the Canadian Association of Sexual Assault Centres, which intervened in the case, said, "The fact that the law has been shored up brings credit to the court."
Every week, inJusticebusters hears from at least two people, usually men, who have dreadful stories to tell about victimization by women who told lies -- and which lies were acted upon by police and prosecutors. (Almost as many as we receive about Children's Aid Societies removing children from homes without proper investigation) Often this is in the course of divorce or custody proceedings. Usually the story is linked to having spent tens of thousands of dollars on lawyers who gave them terrible advice.
Each case is its own nightmare and each shred of justice which is torn from the justice system is done at great personal cost -- hours and hours of pouring over their disclosure, if they are able to get it -- and the humiliation of trying to get the case before a judge.
Many men who express righteous anger turn it against women in general while the more sensitive ones often prefer to join support groups and tell their sad stories to one another. We have a few stories posted of men who are fighting back with grace and intelligence. We hope to have more.