Modernizing Sexual Assault Laws – A Student Perspective

On June 6th of 2017, the Canadian Federal Justice Minister introduced legislation to attempt to update the current Criminal Code of Canada. You can read more about that in Melanie Murchison’s Robson Crim Blog Post. I wish to focus in and touch on one point in particular, and that is in relation to what the changes will do to allegations of sexual assault in the courtroom.

Bill C-51 takes a direct aim at consent, and what is considered consent when a person is unconscious. The Supreme Court of Canada effectively made a ruling to this effect in the case of R v J.A. in 2011: an unconscious person is unable to consent to sex because advance consent is unknown to law of sexual assault in Canada. Bill C-51 will bring this directly into the Criminal Code. They will also codify R v Ewanchuk, a SCC decision in 1999, that stated the defence of mistaken belief in consent is not available if the mistake is based on a mistake of law. In other words, if a complainant didn’t resist or protest and the accused took that as consent, this is not a viable defence. The other major change is in regards to “rape shield” provisions, which will disallow the use of evidence of a complainant’s prior sexual history in the context of digital communications inferring that they were more likely to consent.

So why is this important when there are already Supreme Court rulings in place to use as precedent? The answer to that is simple: these issues are still, somehow, being disputed in courts across the country. R v J.A. does not deal directly with cases of alcohol and intoxication, therefore, legally intoxication does not negate consent. In R v Al-Rawi, a case out of Halifax, a woman who was highly intoxicated to the point of no memory, got into a taxi and was found by a police officer eleven minutes later partly naked and unconscious, in the back of the cab, with the driver nearby in a state of undress. In this case, the judge ruled that it could not be determined when the woman fell out of consciousness (which prevented a guilty verdict), and that “clearly a drunk can consent”.

Also consider the highly publicized sexual assault case against Jian Ghomeshi, former CBC radio host. Messages exchanged between the accused and the three complainants following the alleged sexual assaults were allowed into evidence. These messages involved sexualized photos or intimate descriptions of what sexual events they wished to do with the accused. Here I think it is important to consider our current “rape shield” laws and what impact something like this evidence has on them. Although, courts are not allowed to considered a complainant’s sexual history, should they be allowed to consider a complainant’s communications with the accused following the event? Bill C-51 aims to expand the rape shield laws to include these digital communications of a sexual nature, such as the ones from the Jian Ghomeshi case, or communications for a sexual purpose.

While the statistics relating to sexual assault in Canada are staggering, with only 6 out of every 100 sexual assaults reported to the police, we should be doing our best to instill trust in the justice system in those who will face sexual assault in their lifetime. The changes Bill C-51 intends to bring are small in the grander scale of things, but they are incremental changes in the right direction.