This is huge, let's hope that this means we are on our way to dismantling the patriarchal and outdated judicial system that fails survivors constantly.
We continue to work with the government and other survivor led initiatives to hold them accountable to our communities and ensure our voices are at the forefront of change like this.
OTTAWA—The Liberal government will explicitly state in law that a sex assault complainant cannot consent to sex while unconscious and that sexual texts, photos or videos cannot be used to discredit a complainant.
It is part of the Liberals’ latest effort to clean up the Criminal Code and other laws to more accurately reflect developments in the common law — Canadian law as it is shaped on a case-by-case basis by judges.
Outdated criminal prohibitions against duelling or possessing “crime comics” and other archaic offences will be dropped.
The proposals do not change or set out to define “how drunk is too drunk” to consent to sex. Government officials say questions around intoxication and drug impairment are “subtle and sophisticated” issues that involve questions of “fact and law,” and are best left to individual judges to decide.
Advocates for sex assault victims welcomed Tuesday’s proposals, saying the fact the government needs to codify what judges should already understand highlights the challenges facing complainants in Canadian courts.
Ontario Coalition of Rape Crisis Centres co-ordinator Nicole Pietsah said the bill seems aimed at “operationalizing” the law for judges or defence lawyers who do not get it.
“In fact, a lot of our laws are actually really good on paper . . . but what actually happens is quite different” once cases get to court, said Pietsah.
She pointed to the case of the Halifax judge who acquitted a taxi driver of sexually assaulting a young woman found drunk and unconscious in his cab. In the much-criticized ruling now being appealed by the Crown, the judge wrote, “clearly, a drunk can consent.”
The notion that a woman who is falling down drunk or unconscious cannot consent to sex “seems like a no-brainer to the rest of us,” Pietsah added.
“I think it is promising that there’s political will to actually take charge of that culture” or “habit” of courts to get it wrong, said Amanda Dale, executive director of the Barbra Schlifer Clinic.
Ever since a 2011 Supreme Court of Canada decision that said an unconscious person is incapable of consenting to sex, the law should have been clear. In that case, the high court ruled the definition of consent requires the ongoing, conscious agreement of the complainant to participate in the sexual activity while it is occurring.
In some cases, surveillance video is key, as last year when a Toronto judge convicted Moazzam Tariq of sexually assaulting a woman who was falling-down drunk on hotel surveillance footage. The woman, the judge said, clearly had no capacity to consent.
Justice Minister Jody Wilson-Raybould said the package will boost protections for sex assault victims, and ensure trial fairness for all involved.
Justice officials said none of the changes had anything to do with the Jian Ghomeshi case or other high-profile cases where consent or the credibility of complainants were at issue.
The amendments would clarify that “sexting,” texts, emails, photos or videos “of a sexual nature or for a sexual purpose” from before or after an alleged assault could not be used against a complainant, and instead would be put to the same legal test known as the “rape shield” law.
Under rape shield provisions now, a complainant’s private medical records are not admissible in a trial unless the accused can prove they are key to disproving the allegations and vital to his constitutional right to a fair trial. Such material cannot, however, be used to support a defendant’s claim that the complainant is blameworthy — more likely to have consented to sexual activity or is less worthy of belief — the so-called “twin myths” in rape cases.
The proposed changes would add personal emails or communications as well as other kinds of personal records, like personal diaries or counselling advice, to the list of inadmissible records.
In addition, sex assault victims would clearly have a right to their own legal counsel in the legal proceedings where such “rape shield” questions are decided. Courts would inform them of that right and be required to hear their objections to having their private records or emails or photos dragged into court.
The changes would codify existing restrictions when a defendant may not use the defence of an “honest, but mistaken belief” that the other person consented to sex. For example, it is not legally possible to claim that a third party offered consent, or for an accused to say the complainant’s failure to resist or protest meant she consented to sex, or for an accused to claim ignorance of the law.
“Victims of sex assault and gender-based violence must be accorded the dignity they deserve,” Wilson-Raybould told reporters.
The changes do not address the misuse of existing laws like the case that surfaced in Alberta this week, where a judge ordered a sex assault complainant to be held in jail over the five days she was to testify against a man accused of savagely attacking and sexually assaulting her. But Wilson-Raybould didn’t rule out future alterations to the law.
The federal justice minister said she would work with the Alberta justice minister to address concerns such as those. She said she was proud of what the government has done to enhance the training of the judiciary, and to clarify laws around sex assault to “uphold the dignity of victims of sexual assault.”
The bill would repeal 20 criminal offences that are outdated or invalidated by court decisions, where criminal laws of general application, like fraud or assault, can cover crimes, including challenging someone to a duel or possessing “crime comics” such as Dick Tracy or The Watchmen, which were once thought to corrupt the morals of youth.
Other offences to be dropped:
- Advertising a reward for the return of stolen property “no questions asked”
- Blasphemous libel, an offence that has its origins in the 17th century when blasphemy was considered an offence against God. (Its repeal would enhance freedom of expression and religious belief.)
- Fraudulently pretending to practice witchcraft
- Issuing trading stamps, a provision that some thought could be applied to Air Miles or other corporate loyalty programs.
Bill C-51 would also create a new duty for the justice minister to publicly release a charter statement on every government bill that would outline its impact on the Charter of Rights and Freedoms and explicitly state whether a law might be inconsistent with the charter in any respect.