Feds expand the rape shield protections

By Justin Ling June 7, 20177 June 2017

Feds expand the rape shield protections


It was 25 years ago that Canada saw the adoption of a rape shield law, designed to protect survivors of sexual assault from being cross-examined on their sexual history, unless it was directly pertinent to the facts of the case.

But now, under legislation tabled by Justice Minister Jody Wilson-Raybould on Tuesday, the shield law is getting an update. And with it, the statutes around consent will gain further clarity.

It’s all a part of a revamping of the Criminal Code, undertaken by Wilson-Raybould, which will see a host of antiquated laws deleted or modernized, as part of a bid to drag the Criminal Code into the 21st century. The bill is titled, perhaps unfortunately, C-51.

The crux of the changes to the rape shield law will clarify that no communications from the complainant’s past can be admitted into evidence if they are being used by defence counsel to do one of two things: Undercut the credibility of the witness, or establish a likelihood that the complainant would’ve consented. These are the so-called “twin myths.”

The updates further codify that a complainant’s past extends to all forms of communication. That includes e-mails, text messages, videos, and pictures. The complainant will also have the right to counsel during evidentiary hearings.

Christine Silverberg, a Calgary-based lawyer, applauds the efforts to “evolve” the rape shield provisions, which she expects will specifically benefit the most vulnerable victims added protections.

The need to transform the Code into something “modern,” by specifically excluding pictures, videos, and online messaging is a big step, she says — so long as it preserves the accused’s right to offer a full defence. “Technology is both more advanced and in greater use, and sexual offences have become more complex, occurring across a wide range of electronic devices and interfaces including email, social media, and dating websites,” she told CBA National.

She also noted that giving the complainant the right to counsel during those proceedings fits with the broader trend of extending that right to everyone with interest in the proceedings — especially, in sexual assault cases, those with privacy interests at play — as evidenced in the Victims’ Bill of Rights tabled by the Harper government.

“At the same time, granting victims the right to a lawyer during rape shield proceedings does not change the economic disparity that exists between victims and all Canadians,” Silverberg cautions. “If Ottawa is genuine about providing victims with this right, it must be accompanied by some kind of financial mechanism (such as an update to legal-aid funding services) that allows for all victims to exercise this right.”

Carissima Mathen, an associate professor of law at the University of Ottawa says that, overall, the bill is “important,” even if it’s more about clarity and consistency than it is tooled towards bringing in entirely new concepts and rights.

Bill C-51 brings into the fold principles set out in two Supreme Court of Canada decisions on consent from the past 20 years — R. v. J. A., from 2011; and R v Ewanchuk, from 1999.

In J.A., the court — in a 6-3 split — held that consent cannot take place when one party is not conscious. Therefore, advance consent cannot be given for sexual contact. It cannot be banked.

“It’s really important for Parliament to come and say, no, we agree with what the majority said in J. A.,” Mathen says, adding that the split is a clear indication that was dispute amongst the top bench of what the law really said.

The updates also clarify exactly where ignorance of consent can come into play in the court. In Ewanchuk, the court expressed that there is no implied consent, and ignorance of a lack of consent is not a defence.

Bill C-51 makes clear that, for an accused to claim a mistaken belief that consent occurred, the onus ought to be on them to prove it.

“Consent is a fact, but it’s also a legal concept, so it’s very easy for mistakes of both to be blurred together,” Mathen notes.

The legislation seeks to draw clear lines between the concepts by requiring that, for the defence to be used, there must be some evidence of vocal or clear consent. An accused cannot argue implied or understood consent, and they certainly won’t be able to claim that they believed the law to allow sexual contact with only that unspoken or unclear consent.

“Ambiguous consent cannot legally be taken from you for affirmative agreement,” Mathen says. “Passivity is not consent. Consent has to be communicated to you in some meaningful way, not from being quiet.”

Silverberg agrees that adding in the Supreme Court decisions into the law — or, at least, the government’s reasonable interpretations of them — “promotes better understanding of the law by both the public, as well as police officers who enforce it.” She would know, too, as she previously served as the chief of the Calgary Police.

While the government’s legal updates may be popular, there is some concern they are just window dressing, as the Canadian courts face growing delays and backlogs, with the Jordan ruling — a veritable sword of Damocles — hanging over prosecutors.

And their first stage in Criminal Code updates, which would normalize the age of consent for anal intercourse, has hardly budged through the House of Commons.

Nevertheless, Wilson-Raybould told reporters on Tuesday that further changes — from bail and sentencing reform, to looking at preliminary hearings — are coming.

 “There is still work to be done,” she said






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