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New bill strengthens rights of alleged sexual assault victims

Bill C-51 also adds a Charter test for all government legislation and strikes outdated crimes from the books.

Bill C-51 is the ninth piece of legislation that Justice Minister Jody Wilson-Raybould has introduced this Parliament, and the second attempt to cull multiple zombie laws within the Criminal Code. The Hill Times photograph by Jake Wright

PUBLISHED :Tuesday, June 6, 2017 3:35 PM

Justice Minister Jody Wilson-Raybould has introduced new legislation that strengthens the rights of alleged sexual assault victims, makes all government legislation subject to an expressed assessment of how its coexists with the Charter of Rights and Freedoms, and strikes down a bunch of crimes seen as obsolete.

Tabled on Tuesday, June 6, Bill C-51 is the ninth piece of legislation introduced by Ms. Wilson-Raybould (Vancouver-Granville, B.C.). She said the bill is the second piece of a “long-term plan” to “make our criminal laws fairer, clearer, and more relevant, accessible, and compassionate.”

The bill also removed some outdated and redundant sections of the criminal code.

Speaking to reporters in the House of Commons foyer, she said the new legislation demonstrates “an unwavering commitment to ensuring that complainants of sexual assault matters are treated with the utmost dignity and respect,” and provides “greater openness and transparency about Charter implications of all government bills that go through Parliament.”

  

The sexual assault changes would codify that a person is incapable of consenting to sexual activity while unconscious, clarify the current restrictions on using mistaken belief as a defence, and set up parameters on a complainant’s private records that can be brought into a trial.

It builds on the current “rape shield” provisions that state that prior sexual history is inadmissible to support the argument that a complainant is more likely to have consented to sexual activity or is less credible. It expands the concept to include any communications for a sexual purpose or of a sexual nature, like sexting or sending naked photographs, before or after an alleged assault.

It also sets out that complainants have a right to access legal representation in rape shield proceedings.

Justice officials said codifying these clarifications in the law is a reflection of the evolution of technology and society’s current conversations around sexual assault. While some jurisdictions have been applying the law in this way, it’s not consistent, and this would prevent further incorrect application of the law, officials said.

  

The new legislation amends the Department of Justice Act to make it a responsibility of the Justice minister to table a Charter statement with every new piece of government legislation. A Charter statement outlines a bill’s potential Charter implications. This section of the new law would come into force one year after the legislation receives royal assent.

Justice officials said requiring a Charter statement is a “natural outcome” of the work the Justice Department already does to ensure all laws are in line with the Charter before being tabled.

There is no enforcement mechanism to this requirement, and officials said it’ll largely be a “political obligation” to follow through.

So far this Parliament, Ms. Wilson-Raybould has tabled Charter statements for all nine pieces of legislation she’s introduced, including this latest one—Bill C-51.

  

The latest batch of “zombie laws” to be struck from the criminal code are: challenging someone to a duel; advertising a reward for the return of stolen property “no questions asked”; possessing “crime comics”; blasphemous libel; fraudulently pretending to practice witchcraft; and issuing trading stamps.

Removing them is aimed at preventing someone from being charged and convicted under laws are no longer enforceable.

“These proposed amendments won’t have a negative impact on public safety or security. To the extent that there are aspects of those offences that continue to be deserving of criminal sanction or criminal response, we continue to have offences of general application that can address that conduct,” a Justice official noted, giving the example that while fraudulent witchcraft is no longer an offence, fraud still is.

As well, the bill removes other provisions that have been found unconstitutional, around the definition of “publishing” regarding libel, and presumptions used to prosecute gambling.

This is technically the third bill that Ms. Wilson-Raybould has tabled that cleans up sections of the Criminal Code.

Initially she introduced—in November 2016 with much fanfare from the LGTBQ community—Bill C-32, which removes Section 159 of the Criminal Code that criminalizes anal intercourse.

Then on March 8, Ms. Wilson-Raybould folded that provision—after it had yet to been debated once in the House— into Bill C-39, An Act to Amend the Criminal Code (unconstitutional provisions). It seeks to remove seven provisions of the Criminal Code that have either been declared unconstitutional by the Supreme Court of Canada or appellate courts but have yet to be struck from the text of the law.

Since then, Bill C-39 has not moved past introduction and first reading.

Asked why she chose to introduce the Criminal Code cleanups in separate bills, Ms. Wilson-Raybould said she’s “pleased” to have a number of pieces of legislation before the House that contribute to her fulfilling mandate commitments.

“And a priority within that mandate letter is ensuring that our laws are effective and reflective and respect the Charter,” she said.

Responding to the new Liberal legislation, Conservative MP Rob Nicholson (Niagara Falls, Ont.), his party’s former justice critic and the previous Conservative government’s Justice minister, told reporters that while further reading into the bill needs to be done, his party is likely to support the sexual assault law changes, but he thinks the requirement for a Charter statement on all bills is unnecessary, and that generally there are more important Justice files that the government should be concerned with.

“I hope, and I trust, that this will not be a distraction from the things this government has to keep on doing,” said Mr. Nicholson, citing the backlog in judicial appointments and the ongoing debate on the marijuana legislation.

NDP justice critic Alistair MacGregor said he views Bill C-51 as a step in the right direction.

“While it’s important to examine the legislation closely, at first glance I’m pleased to see measures that could have significant benefits for survivors of sexual assault and strengthen laws to prevent sexual assault,” he said in an email. “Additionally, the proposal to remove outdated sections of the Criminal Code, including provision around witchcraft, is long overdue. I’m also encouraged that the government will provide Canadians with assurances that the legislation that they table will not contravene Canada’s Charter of Rights and Freedoms.”

So far, Bill C-14, the physician-assisted dying bill, is the only legislation Ms. Wilson-Raybould has introduced that is now in effect.

Other bills that she’s introduced, which are at various stages in the legislative process, include: Bill C-16, the Trans Rights Bill; Bill C-28, An Act to Amend the Criminal Code (victim surcharge); Bill C-32, repealing Section 159 of the Criminal Code, which is being folded into Bill C-39; Bill C-39, An Act to Amend the Criminal Code (unconstitutional provisions); Bill C-38, which just puts into force certain aspects of former Bloc-turned-Independent MP Maria Mourani’s Bill C-452, An Act to Amend the Criminal Code (exploitation and trafficking in persons); Bill C-45, the Cannabis Act; Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances); and now Bill C-51.