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

Canadian Criminal Law Review, Vol. 4, pp. 9-23, 1999

15 Pages Posted: 12 Jul 2010

See all articles by Hamish Stewart

Hamish Stewart

University of Toronto - Faculty of Law

Date Written: 1999

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.

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

Suggested Citation

Stewart, Hamish, R. v. Darrach: A Step Forward in the Constitutionalization of Fault? (1999). Canadian Criminal Law Review, Vol. 4, pp. 9-23, 1999, Available at SSRN: https://ssrn.com/abstract=1639149

Hamish Stewart (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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