Sex assault law change to clarify consent
OTTAWA • In the first significant reform to Canada’s sexual assault laws since 1992, the federal government is clarifying and expanding sexual assault provisions in the criminal code to make it clear that an unconscious person cannot consent.
The legislation, Bill C-51, introduced Tuesday by Justice Minister Jody Wilson-Raybould, also expands the limitations on the use of a complainant’s sexual history at trial. “I’m hopeful that these proposed changes will go a long way towards ensuring that victims of sexual assault are treated with compassion and with the respect that they deserve,” Wilson-Raybould said.
Around issues of consent, the legislation is largely codifying previous court decisions to ensure consistency across trial courts. It clarifies that a person is incapable of consenting while unconscious (so that ongoing, conscious consent is required while the sexual activity is occurring). However, the legislation does not address whether someone who is intoxicated, impaired or has a mental disability can give consent, leaving it to trial judges to decide.
The bill does make clear that the defence of mistakenly believing one had consent is not available if it’s a case of simply not knowing the law.
The legislation follows a 2011 decision by the Supreme Court of Canada, which involved the case of a couple that engaged in erotic asphyxiation. The ruling, known as R. v. J.A., restored the conviction of a man who had performed sexual acts upon his longtime girlfriend after she became unconscious. She had consented to being choked by him, but the high court ruled that consent did not apply after she had lost consciousness.
Bill C-51 also expands what’s known as “rape shield” provisions so that they specifically prevent a complainant’s past sexual history from being used in a trial to suggest the complainant was either more likely to have consented, or is less believable. The expanded provisions will include communications of a sexual nature, such as text messages.
A complainant must also now be informed they have a right to legal representation during rape shield proceedings.
The legislation creates a special procedure that will set out rules for when private records (such as personal journals or medical records) of a complainant that are already in the possession of a defendant can be introduced as evidence. This would go along with the rules already in place around how those records can be obtained from a third party.
Wilson-Raybould described the proposed reforms as the first major changes to sexual assault law since 1982, when former prime minister Kim Campbell, who was then justice minister, brought in the rape shield provisions.
Wilson-Raybould, who already has responsibility for eight bills moving through the Parliament, including two related to legalizing pot, still has a lot of work on the horizon. In particular, the government has promised action to address court delays and overcrowding, possibly involving changes to preliminary inquiries and mandatory minimum sentences.
“There is still work to be done, and I’m committed to ensuring that we do our part as a federal government,” she said. “I’m also working with advocates and the provinces and territories across the country to see what further we can do and what more appropriate measures we can do to protect victims of sexual assault.”