Introduction

This brief was approved by the Association’s Board of Directors in April 1992 and conveyed to the then Minister of Justice, the Hon. Kim Campbell, in the form of a letter.
The brief is in three parts:

1. a statement of the principles which underlie Bill C-49 (see Appendix for the text of the Bill before amendments), which the Association supports without reservation;
2. suggestions for changes in s.276 of Bill C-49 which, in our judgment, would strengthen the proposed law; and
3. our reservations concerning the proposed definition of “consent” in ss.273.1 and 273.2.

As the Association’s President pointed out to the Minister:

the concerns expressed here are substantial, although once again we do not believe that they flow from fundamental disagreement on points of principle. Rather, we believe that they reflect serious doubts on our part as to how clearly the bill sets out the standards of conduct that the law expects of individuals, and as to what it is appropriate as a practical matter to try to achieve through the Criminal Code by way regulating the sexual behaviour of Canadian men and women.

Both the President of the Association, Phil Bryden, and our Executive Director, John Westwood, appeared before the Parliamentary Committee Studying Bill C-49 in Ottawa to present the Association’s brief. Subsequently, the Minister appeared before the same Committee and proposed changes to Bill C-49, several of which were very close to those suggested in the Association’s brief. The amended Bill received all party assent on June 15, 1992.

Statement of principles

The BCCLA agrees with the statements set out in the preamble to the bill. We would elaborate on these statements with the following observations that we believe reflect the spirit of the legislation.

First, the BCCLA agrees that statutory protection of the complainant in a sexual assault case from unwarranted questioning concerning her sexual conduct is desirable. We also recognize that if the law holds out what in lay persons’ terms would be described as a defence to a charge of sexual assault, an accused person must be entitled to adduce evidence to show that his conduct fell within the scope of the defence as defined by law. There has been considerable legal debate over the years as to what constitutes relevant evidence for these purposes.

The BCCLA believes that it is appropriate for Parliament to give guidance to the courts on the question of the relevance of the complainant’s sexual conduct in situations not related to the incident in question, and that it is appropriate for Parliament to take a narrower view of the relevance of this type of evidence than some courts have in the past.

The BCCLA also believes that it is appropriate for Parliament to consider in this connection whether the law has not at times provided excessively broad defences to accused persons in sexual assault cases. At the core of this issue is the question of what ought to be regarded in law as meaningful consent to sexual conduct. This issue presents difficulties that are both conceptual and practical.

At the conceptual level, the BCCLA agrees with the general criminal law principle that true criminal responsibility should only be attached to conduct where the accused person is subjectively culpable. In ordinary circumstances, this means that we look to the subjective intentions of the accused person in determining his guilt or innocence. We do this as part of our respect for the accused person as a moral being. In sexual assault cases, this reasoning is flawed, at least in part, because it gives insufficient consideration to the centrality of the issue of consent on the part of the complainant. If we are to respect the complainant as well as the accused as a moral being, we ought to consider the question of her consent in subjective terms. If we look at the question of consent solely from the subjective point of view of the accused, we fail to respect the subjective intentions of the complainant. The Bill attempts to address this problem by defining consent in a way that attempts to take into account the intentions of both the accused and the complainant, and the BCCLA believes that it is entirely appropriate that the law should do so.

While there is agreement at a conceptual level that the intentions of both parties count for purposes of our understanding of consent in sexual assault cases, we face a practical problem in defining which of these considerations should be dominant in any particular instance. One way of resolving this dilemma is to allow judges to sort it out on a case by case basis. This is unsatisfactory for a number of reasons. It is unfair to accused persons because they are left unsure about what standard they will be judged against; it is unfair to complainants, who are made vulnerable to the attitudes of judges who may be insufficiently sensitive to their perceptions of what has taken place; it is unfair to judges, since it leaves them open to accusations of insensitivity regardless of which way they decide cases; and finally it is an abdication of the responsibility of Parliamentarians as our elected representatives to take primary responsibility for law- making. There is, undoubtedly, an irreducible minimum of discretion that must be left to the courts in deciding how the law should be applied in the circumstances of individual cases. Some of the BCCLA’s concerns with Bill C-49 relate to our belief that there is not as much Parliamentary guidance being offered to the courts as is desirable under the circumstances.

Even if this difficulty is resolved, however, a second practical problem remains. The bill seeks to show greater respect for the subjective intentions of the complainant with respect to consent by imposing in a variety of different ways an obligation on those who initiate sexual conduct to ascertain the willingness of their prospective sexual partners to engage in such conduct and to respect signals from the prospective partner that such advances are not welcome. In principle, it is not objectionable that the law should do this, and in practice much of the conduct that the Bill captures is appropriately the subject of criminal sanction, even where it extends to conduct that some people might regard as “normal” behaviour between the sexes. Where prevailing social attitudes give rise to harm to individuals, Parliament is entitled to legislate standards of conduct that force change in order to protect the interests of those who are vulnerable. This is true in the area of human rights law, and it is no less true in principle in the criminal law domain. Nevertheless, there are practical limits to the use of the criminal law to alter patterns of social conduct that may be undesirable but are not broadly perceived as criminal.

The question here is clearly one of balance. We believe that the government, and Parliamentarians, should consider this issue carefully, particularly in light of the fact that ss. 271, 272 and 273 of the Criminal Code cover a range of sexual conduct that is far broader than the focus of the law of rape which concerned sexual intercourse involving vaginal penetration. Our specific concerns in this respect are taken up in the third part of this brief.

Section276

The Board supports almost all of the proposed amendments to the “rape shield” law. A question has been raised regarding the timing of the hearing in s. 276.2 to determine whether evidence of the complainant’s sexual history is admissible. It has been suggested that the hearing take place before the trial begins, so that if the prosecution wishes to appeal the ruling, it can do so before the evidence is admitted, and before irreparable harm is done to the complainant’s privacy. In principle the Board believes there is much merit in this suggestion, but is not completely confident of the practical feasibility of it. It suggests that the feasibility of this suggestion be fully considered, and if it is feasible, that the suggestion be incorporated in the bill.

The Board is not convinced that the ban on publication of all information about the hearing in s. 276.3 is warranted. So long as there is a ban on the publication of the complainant’s name and any identifying information about the complainant, and that ban applies to the hearing, the Board does not see the reason for a further ban on information about the hearing. And the Board sees very good reasons for the publication of this information. Perhaps the most important of these is the ability of citizens to assess how well the “rape shield” law is working—that is, how well the privacy of complainants is being protected. In particular, without access to the court’s reasons for admitting or not admitting evidence of the complainant’s sexual history, citizens have virtually no ability to raise concerns about the way the courts are interpreting s. 276.

It may be that a compelling rationale can be offered for extending the protection of the complainant’s privacy with respect to material brought up in the hearing, further than the protection we offer generally with respect to material brought up in the trial. If so, we are not aware of it, and would be pleased to consider whatever rationale could be brought to our attention.

Sections 273.1 and 273.2

The Board supports the attempt to clarify the concept of consent as it applies to ss. 271, 272 and 273, and in particular the attempt to supply an objective component to address the troublesome cases where the accused subjectively believed the complainant did consent, and the complainant subjectively believed she did not. It must be clear what behaviour constitutes consent. And it cannot be a sufficient defence to a charge of sexual assault that the accused possessed the subjective belief that the complainant was consenting, without reference to the reasonableness of that belief.

Nevertheless, the Board has serious and strongly felt concerns about the wording of several subsections of s. 273.1, and about the wording of s. 273.2(b). In what follows those concerns are expressed.

Section 273.1(2)(b):

The Board finds that this subsection is too broadly worded to give any meaningful direction to the courts as to when a person is so intoxicated, or so affected by some other condition, that they are unable to consent to sexual activity. The intent of the subsection is clear enough: people are sometimes so drunk (or stoned or ill) that they are virtually comatose, and for that reason are physically incapable of consenting. The alleged practice noted in a recent judgment in the Northwest Territories that a man “helps himself to the nearest available pair of hips” is a paradigm of the conduct that must be proscribed. However, it is not uncommon for persons to engage in consensual sexual activity while very drunk—the presumption being that both are capable of consenting while very drunk. If the drafters of the bill intended a “virtually comatose” criterion, then they should make that explicit in the bill, so as to give clear direction to the courts. If, on the other hand, the drafters intended that those who are merely very drunk are thereby incapable of consenting, then the Board strongly opposes the subsection.

Section 273.1(2)(c):

The Board is concerned that what will constitute “abuse” of a position of trust or authority is left open for the courts to decide. If by “abuse” is meant that the accused used their position of trust or authority to actively coerce or intimidate the complainant into agreeing to sexual activity (say, by threatening to withhold some benefit of that position), then the subsection should be drafted to reflect this. If, on the other hand, the mere possession of a position of trust or authority is sufficient to render any sexual activity with a client subject to criminal sanctions, then the Board opposes the subsection.

The Board is aware that some of those in a “client” position may feel they have no choice but to assent to sexual activity with a person in a position of trust or authority, or they may engage in the activity just because a person who occupies a position of trust or authority expressed a desire for sexual contact. It is, therefore, unacceptable conduct for any person in a position of trust or authority to engage in sexual relations with a “client”, and this issue needs to be addressed. However, the Board does not believe that the criminal courts are the appropriate place to address it.

It must be remembered that it is adult clients who are referred to here. Adults may be presumed to be capable of recognizing when a person in a position of trust or authority is attempting to manipulate them, and capable of rejecting unwanted sexual contact. If a person has sexual contact with a minor, whether or not they are in a position of trust or authority, there are already Criminal Code sanctions under which they can be prosecuted. The disciplinary bodies of many professions have addressed this issue in their codes of ethics, and such conduct is subject to disciplinary action, including suspension or revocation of the person’s license to practice. Where there is no active attempt to coerce or intimidate the client, the Board believes that disciplinary bodies are the appropriate ones to address such misconduct.

Section 273.1(2)(d):

The Board has worries about the wording of this subsection. There are those who would argue that where a person neither signals agreement nor disagreement to the sexual activity, they are presumed not to have consented. The Board does not agree with this view, and its objections will be discussed in the next section. The Board is concerned that the words “lack of agreement” may be able to be interpreted in accordance with the view expressed above. The Board suggests that in order to forestall the possibility of such an interpretation, the words “lack of agreement” be replaced by “disagreement or unwillingness”.

Section 273.2(b):

The Board fully supports the principle that where an accused raises the defence that they believed the complainant was consenting, there must be objective criteria which speak to the reasonableness of that belief, and where in the court’s view the belief was not reasonable, the defence is rejected. It must be remembered in addressing this issue that, where it arises at trial, there is no further question that the accused had sexual contact with the complainant, and no further question that the complainant was not in fact consenting to the contact. Therefore, where the accused did believe that consent was present, that belief is necessarily false. The question for the court is: was the belief reasonable, even though false?

Even the charging of a person with sexual assault, let alone a conviction, has the potential to ruin a career and seriously to affect their personal and social life. It is therefore important to draft this legislation carefully. The Board is concerned that the requirement for the accused to have taken all reasonable steps to determine ahead of time that the complainant consented to the sexual contact is too strong. Much of the activity in question may not be intercourse, but sexual touching. Especially where the two people have not previously had intercourse or other sexual contact (though this may be present even where they have), much of this sexual touching is of an explorative, tentative nature, where the couple may progress towards contact of a more and more intimate nature. Sometimes this is mutual, sometimes not. Seduction may be taking place where the touching is intended to create a desire for, and so consent for, the next stage, and not to discern whether it is already present. One touches, and where the response is positive, or not negative, one carries on. Where the response is negative, one backs off. These situations are often highly charged emotional ones, where it is important to both people that the sexual and romantic atmosphere not be broken, where there is some truth to the adage that “If you have to ask, the answer is no”. It is submitted that such scenarios occur frequently among consenting adults and the proposed wording could be interpreted in such a way as to make such innocent conduct subject to the Criminal Code.

Of course, where the answer is “No”—expressed either by words or by gestures—it is incumbent on the other person to stop, or withdraw the contact. The Board fully supports criminal sanctions against those who refuse to stop. This applies not just to touching, but as well to more intimate contact, including intercourse. The Board recommends that reference to “all reasonable steps” in that subsection be deleted.

The Board suggests that the criterion be simply that the belief was reasonable. At trial, where the accused’s defence is that they believed that consent was obtained, the onus is supposed to be on the Crown to prove that the belief was unreasonable. Yet if all the Crown needs to do is to find one reasonable step which the accused might have taken, but did not, in order to reject the defence, justice is not well served.

The highly charged nature of much sexual contact virtually precludes the taking of all reasonable steps. What does serve justice is the criterion whether a reasonable person should have realized, in the circumstances known to them at the time, that the complainant was not consenting. The Board recommends that 273.2(b) be amended to reflect this suggestion.

The Board is concerned about the serious problem of sexual assault against women in Canadian society, and encourages measures to address this problem. One of those measures is the encouragement of an increasing awareness among men and women that consent to sexual activity must be present. The Board believes that the Criminal Code is an appropriate tool to enforce that requirement. However, the Board does not believe that the Criminal Code should be used to try to change existing sexual signals, mores and practices where they do not, in and of themselves, lead directly to unwanted sexual contact. This is true even where changes to them might lead to better communication between persons engaged in sexual activity, and so eventually lessen the incidence of unwanted sexual contact—i.e., sexual assault.

Recommendations

1. That 273.1(2)(b) be amended to reflect the requirement that simply being intoxicated or under the influence of drugs does not render a person incapable of consenting.
2. That 273.1(2)(c) be amended to reflect the requirement that abuse occurs only where there is coercion, threat or intimidation.
3. That 273.1(2)(d) be amended to replace “lack of agreement” with “disagreement or unwillingness”.
4. That 273.2(b) be amended to read “the accused’s belief was unreasonable, in the circumstances known to the accused at the time”.
5. That consideration be given to amending 276.1 to require that the hearing take place before the trial, and that appeals be heard before the trial.
6. That, so long as the courts have a general power to ban publication of the complainant’s name or other identifying information, and it is clear that this power applies to the hearing, 276.3 should be deleted.

Appendix