Madam Speaker, I will be splitting my time with the member for Yorkton—Melville.
I am pleased to speak in support of Bill C-51, and will focus my remarks on proposed amendments to the Criminal Code that pertain to sexual assault.
In light of testimony we heard at our status of women committee during our recent work on violence against women, this is extremely welcome legislation. I am pleased to see the work of our committee reflected in Bill C-51.
At the heart of the legislation, there is better protection for survivors of sexual assault. These proposed reforms flow from the complex legislative history in this area and must be understood in that context.
Major reform of the criminal law's approach to sexual violence began in 1983 and continued throughout the 1990s. These reforms were in response to concerns expressed by women and survivors groups, and to certain court decisions that were viewed as failing to adequately protect survivors of sexual assault, who were disproportionately women and girls. These legal reforms were intended to encourage reporting, improve the criminal justice system's response to reports, and change discriminatory views of complainants that resulted from myths and stereotypes about survivors of sexual violence and how a “true victim” was meant to behave.
The 1983 reforms introduced new gender-neutral sexual offences that captured a broader range of conduct, which focused on the level of violence used by the assailant, rather than the type of sexual act committed. Specifically, these reforms brought into force the three general sexual offences that we have in the Criminal Code today.
The 1983 legal reforms also brought into force Canada's first “rape shield” law that was designed to prevent the admission of evidence of a complainant's sexual history for an improper purpose.
Prior to 1983, evidence of the complainant's prior sexual activity was admissible in court to show that she was more likely to have consented to sexual activity or that she was less worthy of belief. Additionally, an accused was permitted to interpret a complainant's passivity as consent. These inferences, which were being applied in the courts, were based on harmful and discriminatory stereotypes about how women and survivors of sexual assault were meant to behave.
In 1991, the Supreme Court of Canada struck down the 1983 version of our rape shield law. In 1992, Parliament responded to the court by enacted the charter-compliant rape shield law that we have today. Specifically, then minister of justice, the Right Hon. Kim Campbell, amended the rape shield provisions to create two distinct rules. One categorically excluded evidence of a complainant's sexual history when it was introduced to infer one of the rape myths. The other presumptively excluded evidence of a complainant's sexual history when introduced for other purposes, unless specific criteria were met.
The 1992 amendments also included a clear and affirmative definition of consent as the “voluntary agreement of the complainant to engage in the sexual activity in question”, as well as the non-exhaustive list of circumstances in which no consent could be obtained in law, for example, where the complainant was incapable of consenting, or where she expressed a lack of agreement.
The 1992 amendments also limited the accused's ability to advance the defence known as “mistaken belief in consent”. The law is now clear that the defence is not available where the accused's belief in consent arose from self-induced intoxication, recklessness or wilful blindness. Nor is the defence available where the accused failed to take reasonable steps to ascertain that the complainant was consenting.
In 1997, the Criminal Code was again amended to prevent the accused from engaging in so-called fishing expeditions by seeking production of complainants' private records in order to undermine their credibility. The third party records regime was enacted as a specific response to the Supreme Court of Canada's 1995 O'Connor decision, which did not require consideration of sexual assault complainants' privacy rights in determining whether their private records that were in the possession of third parties should be produced in a sexual assault trial.
This “third party records regime” enacted by Parliament limits the accused's access to the complainant's private records. Consideration of the complainant's right to privacy must be considered when determining whether her private records should be produced to the accused, in addition to the accused's right to make full answer and defence.
Crucially, the Supreme Court upheld the third party records regime as constitutional in its 1999 Mills decision. The Supreme Court also clarified our existing sexual assault provisions in its 1999 Ewanchuk decision. In that case, the survivor was a 17-year-old woman who was sexually assaulted in a van by a man purporting to interview her for a job. The accused was acquitted at trial, and his acquittal was upheld by the Alberta Court of Appeal in an infamous decision involving a finding that consent was implied because the complainant failed to resist, she was sexually experienced, and she did not present herself to the accused, as one of the judges called it, in a bonnet and crinolines. Both the lower and upper courts acquitted the accused of sexual assault, despite the fact that the trial court found that the survivor clearly expressed her lack of consent a number of times.
The Supreme Court's decision in Ewanchuk overturned these findings and continues to state the law on sexual assault to this day. Specifically, the court held that there is no defence of implied consent to sexual assault. An accused is not entitled to interpret passivity as “yes”. Consent requires an affirmative communication of “yes” through either words or conduct, and “no” can never mean “yes”. The Ewanchuk standard of consent is often expressed as “only yes means yes”. In other words, there is no consent unless it is voluntary and clear and given without coercion, and it can be withdrawn at any time.
In clarifying the law in this regard, the Supreme Court found that the lower courts had improperly relied upon myths and stereotypes about sexual assault complainants that are not valid in Canadian law.
Finally, in the 2011 J.A. decision, the Supreme Court held that consent “requires the complainant to provide actual active consent through every phase of the sexual activity”, and that therefore it is not possible for an unconscious person to satisfy this requirement.
Unfortunately, we know that some of these myths and stereotypes have persisted despite these Supreme Court decisions. The proposed amendments in this bill are therefore aimed at clarifying the law to assist in avoiding its misapplication.
Consistent with previous Supreme Court decisions, they would clarify that no consent is obtained if the complainant is unconscious; that the accused cannot advance the defence of mistaken belief in consent where that belief is based on a mistake of law—for example, because the accused believed that valid consent can be obtained even when the complainant expresses lack of consent; that the rape shield provisions never allow an accused to adduce evidence of a complainant's prior sexual activity to support any of the rape myths; and that for the purposes of the rape shield provisions, prior sexual activity includes communications made for a sexual purpose or whose content is of a sexual nature, which would include emails or text messages that involve sexualized texts or images, often referred to as “sexting”.
The proposed amendments in this bill would also clarify that a complainant has a standing and a right to counsel in rape shield proceedings, just as the complainant already has a right in the context of third party records proceedings, and the amendments would create a new regime that would apply to the admissibility of the complainant's private records that are in the possession of the accused, just as the current rape shield provisions apply to the admissibility of evidence of the complainant's sexual history.
These proposed amendments strengthen our already robust sexual assault provisions by clarifying and bolstering the law and facilitating its proper application. This is just one response to a complex issue that has raised significant concern over the past decades. Complainants continue to lack confidence in the criminal justice system, as reflected in the fact that the vast majority of sexual assaults go unreported, and when they are reported to the police, the vast majority never make it to trial.
Recent media reports have brought this critical issue to the forefront, and I urge all members to join me in supporting this important step toward ensuring that the criminal justice system responds effectively and appropriately to this gendered crime by giving survivors of sexual assault the respect and dignity they deserve.
