Darrach was charged with sexually assaulting his ex-girlfriend. At trial he attempted to introduce evidence of his ex-girlfriend's sexual history. After a voir dire, required under the rape shield law in s.276 of the Criminal Code to consider whether the evidence is admissible, the judge refused to admit it. Darrach was sentenced to nine months in jail. Darrach appealed on the basis that he was denied a fair trial as he was unable to present evidence that he mistakenly believed that the ex-girlfriend had consented. He also argued that it violated his right against self-incrimination by requiring him to testify under s.11(c) of the Charter.
- Are the sexual assault provisions of the Criminal Code constitutional?
Morden, writing for the majority, analysed the various sections of the Code in light of the appropriate Charter provisions. Darrach argued that s.273.1(2)(d) was void for vagueness. Morden rejected this, holding that when read in light of the whole section there was no real debate on its meaning.
It was also argued that s.273.2(b) was in violation of s.7 of the Charter as it created an objective standard to judge the accused's conduct and was additionally in violation of s.11(c) as it required the accused to testify to demonstrate they took reasonable steps in the circumstances. Citing R v Vaillancourt Morden held that sexual assault was not a crime which attracted a stigma sufficient to require a subjective mens rea. On s.11(c) Morden held that there was no compulsion to testify, but rather a defence which was open to the accused.