The Power of Perspectives

The Canadian Bar Association

Kim Covert

Yes, but no: Well-intended Bill C-51 would not improve justice in sex assault cases

November 20 2017 20 November 2017

Changes to the Criminal Code’s sexual assault regime in Bill C-51 threaten to upset the ability of an accused to provide a full defence, suggests the CBA’s Criminal Justice Section.

The aim of the proposed bill is to remove unconstitutional or obsolete sections from the Criminal Code, a move that the Section supports. When it comes to other parts of the bill, those dealing with sexual assault cases in particular, “the CBA Section believes that much of what is proposed would fall short of improving justice for either complainants or accused,” it writes in a letter to the Chair of the House Committee on Justice and Human Rights.

For example, proposed amendments to sections 153.1(5) and 273.2 dealing with honest but mistaken belief, are not only unnecessary since they’re already covered under existing law, but the addition of the proposed subsection (c), which puts the burden on the accused to prove consent, “could be interpreted as reversing the burden of proof contrary to section 7 of the Charter,” the Section says. “What is required is a proportional response considering what the accused knew and steps taken to confirm consent.”

In addition, requiring the accused to provide evidence that the complainant’s conduct “actively” expressed consent “would create, rather than alleviate, uncertainty in the law.” If subsection (c) is to remain, the Section recommends removing the word “actively.”

Section 276(4) would expand the definition of sexual activity to include communications “for a sexual purpose or whose content is of a sexual nature.” Sexual talk and sexual activity are two fundamentally different things, the Section says.

Meanwhile, the proposed section 278.92 would attract constitutional scrutiny, as it limits the accused’s ability to rely on records such as email or other communications with the complainant.

“Under Bill C-51, an accused with records that could impeach complainants or witnesses may not use those records unless they first apply for permission of the court. This means that an accused with relevant and material evidence about the complainant’s credibility must disclose the particulars to the court, putting the Crown and complainant on notice about any inconsistencies in the evidence,” the Section notes, adding that this is inconsistent with the Supreme Court’s decision in R. v Mills and would not prevent the harmful fishing expeditions that were the chief concern in that case.

The Criminal Code protects the therapeutic records of sexual assault complainants by limiting access to prior statements in situations where privacy is expected or even vital to the therapeutic relationship, but Bill C-51 would expand those provisions to give ordinary statements the same protection. “The definition of ‘record’ is wide enough to include emails, text messages and the like from the complainant to the accused,” the Section notes. Statements made by the complainant to a third party would likewise be inadmissible without permission from the court.

“The advantage for Crown counsel and complainants to be alerted to such evidence in advance, by requiring an application by defence counsel, are clear. … The CBA Section questions the constitutionality of creating this disclosure obligation on an accused person, and its potential impact on the Charter-protected right of an accused to make full answer and defence.”

 “The fundamental understanding of a trial in a fair, free and democratic society includes the notion that the vast power of the state is counterbalanced by allowing the accused, with few exceptions, to keep their defence secret from the Crown until they choose to bring it to bear in the trial. Bill C-51 would upset this important balance.”

The proposed bill would also give complainants standing to make decisions about how the prosecution should proceed, contrary to the constitutionally entrenched independence of the Attorney General.

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