Cleaning the cobwebs – and some outdated presumptions – from the Criminal Code

The Criminal Code is a place where old, obsolete, or even unconstitutional laws languish in purgatory. Most governments have been content to simply ignore these outdated provisions, knowing that most would never actually be used. The result is a long, rambling and sometimes unnecessarily confusing statute.

Sometimes, the Code is sufficiently complicated to confuse even the judges.

When Justice Denny Thomas convicted Travis Vader of second-degree murder in 2016, he relied on section 230 of the Code for “culpable homicide,” which was first introduced in 1892.

Unfortunately, the Supreme Court of Canada had repealed a portion of this provision in its 1987 Vaillancourt decision; it had further ruled in its 1990 Martineau decision that the remainder violated sections 7 and 11 of the Charter and could not be saved under section 1. The provision allowed for a conviction of murder without the requirement for proof of subjective foresight of the mental element for moral blameworthiness. Despite this ruling, section 230 had remained as an unused part of the Code.

Changes to the Code under Bill C-51 include repealing provisions on witchcraft, prohibition on duels, pretending to practice witchcraft and trading stamps. While the archaic nature of these might raise an eyebrow, changes to other provisions are attracting greater scrutiny.

Bill C-51 will also reform the Code to make it “more compassionate toward complainants in sexual assault matters.” The changes would incorporate the court’s 2011 decision in R. v. J.A., that an unconscious person is unable to consent, as well as the court’s 1999 decision in R. v. Ewanchuk involving mistaken belief in consent.

They would also expand the Code’s rape shield provisions to expressly include communications for a sexual purpose or of a sexual nature. The rape shield provisions, introduced after the court’s 1991 Seaboyer decision, limit the types of questions that defence counsel can pose and evidence it can adduce concerning a complainant’s sexual history. This information was frequently used in our legal system to promote the stereotype that a complainant is more likely to have consented, or is less credible. In 2000, the court upheld the rape shield provisions as constitutional.

These new changes appear to stem from criticism arising from the Jian Ghomeshi case, which attracted significant media attention and broad-based societal discussions about the nature of sexual assault prosecutions in Canada. The case featured text messages and social media content by the complainants.

Some defence counsel are concerned this bill will limit the evidence they can use to offer a full and complete defence. Others believe the concerns are overrated.

Lise Gotell, national chair of the Women’s Legal Education and Action Fund (LEAF), stated that the amendments simply recognize more contemporary forms of sexual communication. If the evidence is used for the purpose of demonstrating inconsistencies, it can still be included. If it’s only used to perpetuate sexual stereotypes, it is rightly excluded.

“There is no implied consent in Canadian law,” said Gotell, “and so previous sexual activity should be irrelevant to a belief that someone is consenting to the sexual activity in question.”

More than 20 years ago, the SCC ruled in R. v. O'Connor that medical and counselling records in a sexual assault case could be disclosed by judicial order. The government limited these productions through amendments in Bill C-46, and was upheld

in 1999. The court stated in R. v. Mills that the judiciary had adequate discretion to preserve a complainant’s right to privacy, and also still allowed for a full and complete defence.

Although the nature of the electronic communications today might be different, the concepts are still the same. Sexual assault complainants, almost exclusively women, are still subject to widespread stereotypes and prejudice based on their sexual histories. Salacious texts and steamy graphics may be communicated differently today, but they are just as dangerous to the balance of justice.

Presumptions that such communications should not be subject to scrutiny are as old and outdated as the witchcraft and the duels that are soon to be excised from our legal system for good.