This week, my colleagues at Acumen Law have been writing extensively about the changes to the impaired driving laws in Canada. You should definitely take the time to learn about those if you haven’t yet. Today, however, I am going to be writing about some sweeping changes to sexual assault law that have just passed through their final vote in Parliament.
The changes I am referring to arise in Bill C-51, which has just received Royal Assent. At first glance, many of the changes to sexual assault law seem to fit with common sense and our society’s evolving concept of the nature of consent as it pertains to sexual activity. For example, you may find it surprising that the question of whether an unconscious person can consent to sexual activity or not was something that had to go all the way to the Supreme Court of Canada, and is only now being written into our criminal legislation. However, the reality of that section is even more complex than it appears.
Disclosure of communications of a sexual nature
The question before the Supreme Court of Canada was whether or not someone can consent in advance to sexual activity that then takes place while they are unconscious. The issue of bodily autonomy becomes multidimensional when we ask a question like that. Don’t I have the right to make these kinds of decisions about what happens to my body? But at the same time, if I am unconscious, is there an unacceptable risk that what I consented and didn’t consent to might be confused with one another, and I will be unable to do anything about it? Then again, there is the pragmatic approach, which is that if I was really OK with what was done to me while unconscious, I would have no reason to call the police, so no one has to worry about it. But none of these approaches satisfactorily answer the question, which I don’t think will ever be fully resolved as a philosophical or ethical issue. However, in law, we can’t really leave these things unresolved. The Court took the approach that consent that cannot be revoked is not really consent. Fair enough.
What gets a lot stickier with Bill C-51 is when we get to the sections regarding evidence that can be brought by the Defence in sexual assault trials. First, there is the new addition to the rape shield laws preventing Defence from putting forth evidence of “any communication made for a sexual purpose or whose content is of a sexual nature” without first making an application to do so, with the idea being that such material would be prejudicial to the complainant. We shouldn’t slut-shame sexual assault complainants. Doing so is wrong, unethical and frankly has nothing to do with the proper adjudication of a sexual assault accusation. I am firmly in agreement. However, here’s the issue that I, and many Defence counsel, have with this legislation. What happens when the complainant starts texting our clients about the alleged sexual assault but describes it as if it were a consensual sexual encounter? Or tells the police and, later, the Court, that she stopped talking to our client last year, but has actually sent him nudes and explicit messages once a week since making the police report?
Further limits on the admissibility of personal records
In this case, the sexual messages aren’t going to be used by me or any ethical Defence counsel to make the complainant look like they lack some sort of sexual virtue. They’re going to be used to show that she is being dishonest, either with the police, with the Court or both.
Bill C-51 also changes the law regarding admitting therapeutic records into court (which is already limited) to add restrictions on the admissibility of any record:
“that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.”
This includes records that the accused person already has in their possession.
There are two things happening here of concern. The first is that the definition of “records” is incredibly broad and could include some fairly banal documents like a termination letter from an employer or records that may relate to both the accused and the complainant, such as letters from the Ministry of Children and Family Development. The second problem is that the accused person will have to make an application to court before introducing into evidence the documents that they have in their possession, essentially creating a reverse-disclosure rule for sexual assault charges that does not exist for any other charge and is very likely to be unconstitutional. Again, I am not suggesting Defence should have free reign to use personal documents to attack the complainant’s morality or tarnish her reputation generally. But these documents can reveal serious contradictions and help illuminate the entire context of the allegations, and in many cases, this is necessary in order to show the Court that there is, in fact, reasonable doubt about whether the offence occurred or not.
Wider societal issues
Okay, I am going to take a step back for a moment to say two things before moving on.
- The fact that the complainant in a sexual assault case later lied to the police or lied to the Court doesn’t mean the sexual assault didn’t happen. I am not interested in perpetuating rape myths or giving an out to people who sexually abuse people with mental illnesses or people who don’t understand how the court system works and think they need to exaggerate or hide things in order to be taken seriously. However…
- In criminal court, the Crown needs to prove the elements of the offence beyond a reasonable doubt. It doesn’t matter if the accused person probably committed the offence, or if they hurt the complainant in other ways that aren’t technically criminal offences. The state needs to prove the offence using the evidence it has. When the only evidence the state has is the testimony of the alleged victim, then that evidence has to be strong enough that the Court can say with near certainty that yes, this happened. When someone is dishonest with the police or in court, and has no corroborating evidence, then that leaves room for reasonable doubt.
Essentially, this is a case where both things can be true. You can have a situation where someone probably did sexually assault the complainant but at the same time, the evidence isn’t solid enough to convict them. This isn’t the complainant’s fault. This is how the criminal justice system works. So, wait, what was my problem with making changes to the criminal justice system again? Why not relax the standards to help get more rapists convicted?
The answer to that question is that the criminal justice system is a punitive system that metes out punishment by restricting offenders’ liberties. In the case of sexual assault, it means putting people in jail for years at a time and putting them on a sex offender registry for several years afterwards. Whenever there is a risk that someone will go to jail, their right under Section 7 of the Charter to life, liberty and security of the person is put at stake. Our job as criminal defence lawyers is to make sure that the state cannot restrict our clients’ liberties without proving beyond a reasonable doubt that this is necessary. And on a personal note, I don’t believe that putting sex offenders in jail is necessarily going to solve the problem of rape culture. Sexual assault is rampant in Canadian correctional institutions. Just because the victim of a sexual assault is incarcerated doesn’t make the sexual assault any less damaging. We need to think beyond prison as a solution to a systemic social problem.
For troublesome historical reasons, we live in a society where sexual assault and abuse has been a tolerated part of everyday life and where sexual predators are celebrated without recourse (until they’re not). We make rape jokes, and jokes about the murder of vulnerable women. We teach young boys that aggression, including sexual aggression, is a normal part of being male. In short, we live in a rape culture in which the importance of consent and respect for women are not taught and sexual assault is normalized.
And then, we think that we will solve this problem by throwing a few high-profile offenders and miseducated men into prison. I don’t agree with this approach and I think that we do a disservice to accused people, victims and society at large by relying on prison as the solution to rape culture. In coming blog posts, I will discuss sexual assault law in Canada and how it works as well as explaining what I think would be helpful alternatives.