Many survivors of sexual assault who engage with the criminal system feel like they have entered a maze from which they may never emerge.
On June 6th, Justice Minister Jody Wilson-Raybould introduced Bill C-51, which will update a number of important sexual assault provisions in the Criminal Code. These changes, once passed, will amount to the first significant changes to Canada’s sexual assault laws in more than 20 years.
Minister Wilson-Raybould said that she hopes the changes “will go a long way towards ensuring that complainants are treated with the compassion, dignity and respect they deserve.”
Survivors of sexual violence and women’s advocates support the Justice Minister’s aspirations for this legislation, but we also fear that the maze that is criminal sexual assault law in Canada may only become more murky.
Unconscious people cannot consent
Among other things, the Bill would amend section 273.1 of the Criminal Code to explicitly state that a person cannot consent to sexual activity while unconscious. This provision seems to arise from a 2011 Supreme Court of Canada decision R. v J.A., in which the court found that a woman could not consent in advance to sexual activity in the future when she was unconscious.
The law will be explicit that consent requires ongoing, conscious agreement of the complainant to participate in the sexual activity while it is happening.
“Clearly, a drunk can consent”
It is unfortunate that this legislation does not address the issue of a person’s ability to consent when intoxicated. This topic has received considerable attention in recent months because of a Halifax judge’s inappropriate comment in a March sexual assault trial.
But I thought she consented!
Section 273.2 would clarify that the defence of mistaken belief in consent is not available if the mistake is based on a mistake of law; a codification of the decision in a well-known 1999 case, R v Ewanchuk.
Increased privacy for complainants
The rape shield provisions of the Code will be expanded to prohibit the use of communications of a sexual nature or communication for a sexual purpose, if such use could discredit the complainant. In any hearing to determine the admissibility of such material, the complainant will have the right to legal representation and must be informed by the judge of this right.
Provisions in the Code dealing with production of a complainant’s third party records are to be expanded to include personal records of the complainant – letters, journals, diaries and so on – that are in the possession of the accused. If the accused wishes to introduce such material as evidence, he will have to bring an application, as is now the case with other third party records.
Areas of concern
There is no doubt that there are some positive possibilities offered by Bill C-51. However, those of us working with survivors of sexual violence have some concerns.
The government did not consult with violence against women experts as it developed these provisions. As Ottawa University law professor Elizabeth Sheehy, an expert on sexual assault law, noted: “I think those would have been really important constituencies to consult with before putting the bill out there.”
Telling complainants they have a right to legal representation is a hollow offering unless the legal aid plans in the provinces and territories ensure that financial support is available for those who need it. With Legal Aid Ontario facing a massive deficit, this seems less than certain, at least in this province.
Changes to the law are fine and good, but unless there is an explicit plan to ensure that lawyers (Crown Attorneys and defence lawyers) and judges (at all levels of court) are educated in the new provisions, those changes will be meaningless to those who want to rely on them.
Perhaps even more important, there must be accountability measures for all those involved, from the police to the judiciary, to ensure that the new provisions are being used.
In Ontario, we have seen what happens when this education and accountability are missing. In 2006, the best interests of the child provisions in the Children’s Law Reform Act were changed to require courts to consider family violence when determining custody and access. It is now 2017, and too many decisions still do not reflect this change.
Let’s just say that the jury is still out on Bill C-51.