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ISSUE

What does sexual assault entail?

HELD

Crown’s appeal allowed. Original sexual assault conviction restored.

RATIO

The test for the recognition of sexual assault does not depend solely on contact with specific areas of the human anatomy. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: “Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?”

R. v. Darrach [2000] 2 S.C.R. 443

FACTS

The accused wanted to bring evidence of the victim’s past sexual behaviour. There are provisions in the Code (“rape shield” provisions at s. 276) stating that that is not allowed. Accused challenged the constitutionality of that provision, saying it prevented him from mounting a full defence.

ISSUE

Do the impugned provisions violate principles of fundamental justice?

HELD

No. Appeal dismissed.

RATIO

The procedure does not violate the accused’s right to make full answer and defence. It does not violate the accused’s s.7 Charter right to a fair trial nor his s.11(c) right not to testify against himself or his s.11(d) right to a fair hearing.

NOTES

From Mills: the scope of the right to make full answer and defence must be determined in light of privacy and equality rights of complainants and witnesses.

Section 276 is not a blanket exclusion, it only prohibits use of evidence of past sexual activity when offered to support either that a complainant is more likely to have consented or that she is less worthy of belief by reason of the sexual nature of the activity she once engaged in.

o

This is in order to protect against sexist beliefs about women that could potentially distort the trial process

Because s.276 only excludes material that is not relevant, it cannot infringe the accused’s right to make full answer and defence.

S.276(2) – judge must weigh the probative value of the evidence against its prejudicial effect to determine its admissibility – use of word “significant” outweighed by use of word “substantial” so OK.

R. v. Ewanchuk [1999] 1 S.C.R. 330

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