If newly proposed changes to Canada’s sexual assault laws are passed, complainants in sexual assault cases will be slightly more protected from the kind of character assassination that can make navigating the criminal justice system so traumatic—and they’ll also be able to participate more fully in the legal process.
Announced by Justice Minister Jody Wilson-Raybould on June 6, Bill C-51’s most significant changes involve expanding existing rape shield provisions to prohibit the use of sexually-charged communications at trial solely to support the idea that the complainant is less worthy of belief, or that he or she was generally consenting, says UBC law professor Isabel Grant.
That would mean that photos, emails and texts like the ones that rocked the Jian Ghomeshi trial won’t make it into sexual assault trials, says Grant. Instead, this kind of evidence will first have to be scrutinized by a judge, who will determine whether or not it can be used in court. Even more significantly, Bill C-51 will allow complainants to attend this judicial hearing and to do so with their own lawyer. Previously, complainants were excluded from the process, which meant that a complainant could not defend, interpret or weigh in on how her own sexual history is represented to a judge.
“[It’s important] that there is someone there to represent her interests. Now she can participate in the process and make her own representations on it,” says University of Ottawa law professor Blair Crew. Under the proposed changes, a complainant’s lawyer can vigorously defend and challenge the interpretation of his or her client’s sexual history. (Unfortunately, says Crew, the changes do not grant complainants a right of appeal. This means they’d have to petition the Supreme Court to challenge a judge’s ruling on what evidence can be included at trial.)
While there’s no indication as to who will pay for that legal counsel, Crew sees this inclusion as a “good step forward” in creating a more equitable and inclusive process for alleged victims. (Remember: complainants in sexual assault cases do not have their own lawyers. Instead, they’re simply witnesses in the Crown’s case against the accused. The Crown prosecutor doesn’t serve the interests of the complainant—the case can be dropped without consultation— and is prohibited from offering private legal advice.)
But while amendments to rape shield provisions represent a step forward, Grant and Crew are concerned that Bill C-51’s amendment to the law of consent will cause more confusion then clarity.
The proposed law will include the clarification that an unconscious person is incapable of offering consent. But as critics point out, this isn’t so much changing the law as drawing a line under the obvious. There’s also some concern that it may further confuse the already tricky issue of capacity, i.e., someone’s ability to consent to sexual activity.
As Grant points out, Canadian courts have never disputed the fact that unconsciousness precludes consent. They have, however, shown significant difficulty deciding the point at which someone, especially under the influence of alcohol or drugs, has reached the limits of their ability to consent. Grant worries that judges and defence counsel will assume that unconsciousness is being put forward as the overarching standard for determining a complainant’s capacity to consent, a solid line that could overshadow other evidence of impairment or vulnerability.
Concern over questions surrounding the capacity to consent is borne out by recent controversial rulings that reflected judicial confusion about this very issue, specifically the March acquittal of Halifax cab driver Bassam Al-Rawi for the alleged sexual assault of an unconscious female passenger (the ruling has been appealed).
“As we’ve just seen in that case, judges do tend to equate incapacity with unconsciousness,” says Grant. In the Halifax case, Judge Gregory Lenehan appeared to focus on figuring out the point at which the highly-intoxicated complainant became unconscious, i.e, when—in his view anyway—she lost the capacity to consent. That consideration seemed to outweigh other important considerations, including whether or not the woman, who passed out within minutes of entering the cab, could have been in any state to give “meaningful consent, or to assess the risks and consequences of sexual activity,” at the point when she got in the car, says Grant. (When delivering his ruling, Lenehan said that that “a lack of memory does not equate to a lack of consent” and “clearly, a drunk can consent.”)
Grant is also perplexed by the proposed amendment’s simplistic understanding of the Supreme Court of Canada ruling, R v JA (2011). R v JA wasn’t concerned with establishing unconsciousness as the legal standard for incapacity, says Grant. Instead, R v JA turned on the issue of whether or not consent could be given in advance for acts that take place when a person is unconscious.
“JA established there can be no ‘prior agreement’ to engage in sexual activity if you are unconscious when the sexual activity takes place,” says Grant.
Crew, who is generally favourable about the proposed changes, doesn’t think the intoxication amendment intended to create confusion, but rather was meant to underline what was already known, i.e., you can’t have sex or pursue sexual activity with an unconscious person and claim consent. But like Grant, he worries it may be misinterpreted by judges and defence counsel. To reduce that risk, he’d like to see the bill refine its language.
“They could easily put in language that says, ‘evidence of intoxication to the point of unconsciousness shall be presumed to be evidence of unconsciousness,”says Crew.
That more nuanced tweak, however, requires political courage. “I think they stayed away from [this specific language] because it’s a hard standard to define,” says Crew.
Deciding how drunk is too drunk to consent, or at what point before unconsciousness an individual is too impaired to say yes to sex, is tricky. (Unlike with impaired driving, there is no official blood alcohol level that makes someone incapable of having consensual sex.)
The Canadian government is also reluctant to establish a boundary between drunk sex and sexual assault. For now, judges are tasked with making that determination, which as the Halifax case suggests, can be a risky proposition.