R. v. Darrach: A Step Forward in the Constitutionalization of Fault?

Abstract:     
In Darrach, the Ontario Court of Appeal considered a constitutional challenge to section 273.2(b) of the Criminal Code, which states that one accused of sexual assault cannot invoke the defence of mistaken belief in consent unless he took “reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.” The Court of Appeal upheld this provision because sexual assault was not a stigma offence or, in the alternative, that the fault element created by section 273.2(b) was sufficiently subjective. In this article, the author argues that while sexual assault must be considered a stigma offence, the new fault element for sexual assault is appropriate to the stigma because, even if it is considered to be a form of objective fault, it imposes a relatively light burden on people to ensure that they have permission to engage in intentional sexual contact with other people.

Number of Pages in PDF File: 15

Keywords: Darrach, Section 273.2(b), sexual assault, reasonable steps, stigma offence, objective fault

Accepted Paper Series