By: Sarah Watson
The Liberal government proposed a bill on Tuesday to modernize sexual assault law, including clarifying consent, in the first update to the provisions in 25 years.
“I’m hopeful these proposed changes will go a long way towards ensuring that victims of sexual assault are treated with the compassion and with the respect that they deserve,” said Justice Minister Jody Wilson-Raybould at a press conference on Tuesday.
Bill C-51 will amend some sections of the criminal code to more clearly reflect Supreme Court decisions and prevent the laws from being “mis-applied,” as Wilson-Raybould put it.
The amendments say that an unconscious person cannot consent, and expand the “rape shield,” which protects sexual assault complainants from having their sexual history being used against them in court, to include communications of a sexual nature such as ‘sexts.’
“I certainly feel that [the amendments] are long overdue,” said Michelle Smith, the executive director of the Women’s Support Network of York Region, and who met with the minister in Ottawa last week.
“In terms of looking at an unconscious woman that can’t consent, I don’t understand how that’s even still up for discussion on any level,” said Smith.
Amendments will also clarify that the defence of mistakenly believing that the complainant consented is not viable if the mistake is based on a misinterpretation of a law. This comes from aspects of the Supreme Court decision in R v Ewanchuk, where the ruling was overturned because “implied consent” is not part of Canadian law.
Paul Calarco, a criminal defence lawyer based out of Toronto, does not see these changes as a step forward.
“This is very poorly thought out legislation,” said Calarco.
He contests amendments that will, “create a regime to determine whether an accused can introduce a complainant’s private records at trial that are in their possession,” according to Bill C-51. Currently this only applies to private records from a third party, such as from a therapist or physician.
“It may be conversations between an accused person and the complainant. So if a complainant says to the accused person, ‘I’m going to get you, and I don’t care what it takes to get you, I will find a way,’ that’s an extreme example but let’s say that happened. Under this new bill, the accused couldn’t use that unless they satisfied a judge of relevance. That is simply not appropriate,” said Calarco.
Calarco said that it is difficult for a judge to make that call, because they are not as informed of the defence’s case.
Calarco also said this would remove opportunities in cross-examination. “The complainant will have time to think of explanations for that.”
Calarco said the provisions will make sexual assault cases more complex and cause more delays.
Smith said she disagrees.
“I hope that it can change the future by having more women report,” said Smith.
Statistics Canada estimates 90 per cent of sexual assaults go unreported.