Law Times

Law Times • June 12, 2017 Page 5 www.lawtimesnews.com Feds update sexual assault laws BY ALEX ROBINSON Law Times L awyers say the federal government's new legis- lation to purge the Crim- inal Code of obsolete provisions and enhance sexual assault law is not the compre- hensive reform they were hoping for, but it's a start. Minister of Justice Jody Wil- son-Raybould announced the proposed changes last week as part of an effort to modernize the country's criminal laws. Toronto criminal de- fence lawyer Jordan Gold, of Robichaud's Criminal Defence Litigation, says he is confident more substantive reforms are coming. He says the bill largely cleans up out-of-date provisions in the Criminal Code that no longer apply, which he hopes will lead to bail reform and addressing mandatory minimums. "There's a difference between the real substantial work that needs to be done, which the gov- ernment has said it intends to do, versus cleaning it up for the sake of not having things in there that we all know don't apply," he says. "Not to minimize the latter, but it can distract from the real work they say they intend to do." The legislation, bill C-51, builds on a bill introduced in March and looks to amend or repeal a number of provisions in the Criminal Code the govern- ment has determined are out of date or unconstitutional. The 26-page bill also looks to clarify sexual assault provisions as they relate to consent and the admissibility of evidence. "This proposed legislation is another milestone in our on- going efforts to make our crim- inal laws fairer, clearer, more relevant, accessible and compas- sionate," Wilson-Raybould said. The provisions that will be axed for being obsolete or re- dundant include sections con- cerning challenging someone to a duel, fraudulently pretending to practise witchcraft, possess- ing crime comics and publish- ing blasphemous libel. Stephen Coughlan, a pro- fessor with the Schulich School of Law at Dalhousie Univer- sity, says that people have been calling for such provisions to be removed from the Criminal Code since the 1970s, but such a "cleanup" of criminal laws has never been a priority for past governments. "It just never gets to the top of anyone's agenda," he says. "There are always hot-button issues that seem like they need to be dealt with right away and so the basic housekeeping cleanup type of stuff just doesn't hap- pen." The new bill also proposes to get rid of reverse onus provi- sions, which put the burden of proof on the accused to disprove an allegation. The government has said that getting rid of these provi- sions will not make prosecu- tions harder and would actually save the courts time and money from cutting down on expensive Charter challenges to such pro- visions. The amendments to sexual assault provisions will clarify that an unconscious person is incapable of consent. Under the proposed legis- lation, "rape shield" provisions that prohibit a complainant's past sexual history from being used to try to discredit them would also be expanded to in- clude communications of sexual nature or a sexual purpose. The changes would include the creation of a "regime" that would determine if an accused can introduce a complainant's private records at trial. It would also provide that complainants have the right to legal representation in rape shield proceedings. Gold says most of these chan- ges simply codify things that are already being applied by judges. "To codify every possible scenario is probably not pro- ductive," he says. "It's only if they feel that judg- es are misinterpreting or mis- applying the law or if the law needs to substantially change — those are reasons to change various laws." Wilson-Raybould said these reforms, if passed, would be the first major changes to sexual as- sault laws since rape shield pro- visions were introduced 25 years ago. "I am hopeful that the pro- posed changes to the sexual as- sault provisions will go a long way towards ensuring that complain- ants are treated with the com- passion, dignity and respect they deserve," Wilson-Raybould said. "Measures proposed in this legislation would also provide Canadians with greater assur- ances that their Charter rights are being respected and would promote greater understanding of how government legislation may engage our Charter rights and freedoms." The legislation would also re- quire the government to table a Charter statement for every new bill introduced in Parliament in an attempt to help the public understand how legislation may affect their rights. Coughlan says that many of the changes, including those that concern updating laws about sexual assault, merely codify Supreme Court of Can- ada decisions. The bill the government introduced in March, bill C-39, looks to take provisions out of the Criminal Code that have been struck down by the Su- preme Court of Canada. Coughlan says that the gov- ernment's first couple of kicks at reform have been modest, but he is hopeful more changes are coming. "They're still not engaged in really fundamental reform and a complete overhaul of the code and honestly we do need that, but this is a very hopeful step in the right direction," he says. 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