Lawyers call some proposed changes to sexual assault law 'inexplicable,' possibly 'unconstitutional'

Proposed legislation to expand "rape shield" laws and clarify that an unconscious person cannot consent to sex is coming under scrutiny from the legal community. There are concerns that the changes may be misinterpreted or unfairly disadvantage those accused of sexual assault.

Bill C-51 expands 'rape shield' laws, states an unconscious person cannot consent to sex

Justice Minister Jody Wilson-Raybould revealed details of the legislation on Tuesday. (CBC)

Lawyers and legal experts representing both complainants and those accused of sexual assault have significant concerns with Ottawa's proposed changes to sexual assault laws.

On Tuesday, Justice Minister Jody Wilson-Raybould announced Bill C-51, which includes amendments to Canada's Criminal Code designed to strengthen and broaden sexual assault and "rape shield" laws.

Among several changes, the legislation would clarify that an unconscious person cannot consent to sex. The federal government says the update reflects a Supreme Court of Canada decision in the case of R vs. J.A. in 2011. The complainant in that case said that while she consented to being choked, she did not consent to any sexual acts performed while she was unconscious.

"It's a very strange and bizarre amendment in my opinion," said Elizabeth Sheehy, a University of Ottawa law professor specializing in sexual violence against women.

Sheehy says the amendment does not actually reflect the Supreme Court's ruling in R vs J.A. She says the issue in that case was whether a person's consent can persist after they become unconscious, which the Supreme Court ruled against.

Law professor Elizabeth Sheehy said she generally favours the bill, but called one amendment 'inexplicable.' (University of Ottawa)

The law, she said, has never required a clarification about whether an unconscious person can give consent. Worse, it could misguide judges in nuanced cases like R vs J.A.

"I find this inexplicable and I'm a bit worried that it might be misinterpreted by judges in other cases," Sheehy said.

"It's never been acceptable to have sex with someone who's unconscious," said sexual assault defence lawyer Daniel Brown, who said that aspect of the legislation will not have an impact inside a courtroom.

"Adding that wording into the Criminal Code hasn't changed anything. It's only just codified what we already understood the law to be," he said.

New evidence laws

A second major amendment in Bill C-51 could limit the type of evidence that can be used in sexual assault trials. That evidence may now exclude "communications of a sexual nature or communications for a sexual purpose," including private records of a complainant held by the accused.

That type of evidence will now have to be disclosed before the trial, according to Brown's reading of the proposed amendments. It would be up to the judge to determine its permissibility.

Similar communication evidence was used to great effect in the Jian Ghomeshi sexual assault trial, where lawyer Marie Henein presented emails between Ghomeshi and his complainants that may have contradicted some statements made in court.

"It might be said that the complainants may not have given the evidence the way they did if they knew that Jian Ghomeshi still retained those private messages," Brown said.

Defence lawyer Daniel Brown says part of the bill may be unconstitutional. (CBC)

To his knowledge, Brown says the amendment would be the only instance in Canadian law where the accused would be forced to disclose evidence before a criminal trial. He worries that will put people standing trial for sexual assault at an unfair disadvantage and may even be unconstitutional.

"There's so many resources that the state has available to them, that the police have available to them that the accused doesn't have, and that's why there's never been a reciprocal disclosure obligation placed on the accused person," he said.

Sheehy does not share those concerns, and says the rigours of cross-examination can still expose inconsistencies, if they exist.

No consultation

Despite her concerns about the amendment on consent and consciousness, Sheehy says feminist activists and legal professionals have been "generally favourable" towards the proposed changes, with one major caveat.

She says the government's announcement came as a total surprise, since she and others in her field were not consulted before drafting the legislation. She called the lack of consultation "inexplicable."

"I think that those would have been really important constituencies to consult with before putting the bill out there," Sheehy said.

About the Author

Nick Boisvert

Reporter, CBC Toronto

Nick Boisvert is a reporter and one-man band video journalist based in Toronto. He previously worked for the CBC in Vancouver, Windsor and Kitchener-Waterloo. Outside work, Nick enjoys cooking, following the NBA and listing things in threes.