R v Darrach

In 1994, Andrew Darrach, an Ottawa resident, was charged with sexually assaulting his ex-girlfriend. At trial, he attempted to introduce evidence of his ex-girlfriend's sexual history. A voir dire, required under the rape shield law in section 276 of the Criminal Code to consider whether the evidence is admissible, was carried out. The judge refused to admit the evidence after Darrach refused to be cross-examined on his affidavit. Darrach was sentenced to nine months in jail. An initial appeal was dismissed by the Court of Appeal for Ontario.[2] The case was then appealed to the Supreme Court.

Darrach argued he was denied a fair trial because he was unable to present evidence that he mistakenly believed that the ex-girlfriend had consented. He also argued that his right to silence and right against self-incrimination were violated by the requirement to testify at the voir dire.[3]

Gonthier J, writing for a unanimous Court, upheld the Criminal Code provisions. He found that requiring the complainant to testify would be unnecessarily invasive and would discourage victims from reporting such incidents.

Gonthier also found that Darrach's right to avoid self-incrimination was not infringed by the requirement for him to testify regarding his voir dire affidavit, because the accused made the voluntary decision to have the voir dire carried out. The decision to have the voir dire, and by extension the requirement to submit an affidavit and accept cross-examination, was voluntarily made by Darrach. Any testimony at the voir dire would have solely been to determine the admissibility of the evidence Darrach wished to submit, and would have been unusable in the trial itself.[3]

• Full text of Supreme Court of Canada decision available at LexUM and CanLII