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Senate debates bill to clarify sexual assault laws

A main plank of Bill C-51 proposes to clarify and strengthen sexual assault laws.

Myths and stereotypes used to defend against sexual assault complaints will no longer be applicable, under a bill proposing to modernize the Criminal Code with clearer and fairer laws, says the Senate sponsor of the bill.

A main plank of Bill C-51 proposes to clarify and strengthen sexual assault law, Senator Murray Sinclair explained during his second reading speech on Feb. 15, 2018.

“It is generally agreed that the Canadian laws around sexual assault are robust and comprehensive. Yet, sometimes the courts have improperly relied upon myths and stereotypes about sexual assault complainants that are not valid in Canadian law,” Sen. Sinclair told the Red Chamber.

“The proposed amendments are therefore aimed at clarifying the law to assist in avoiding this misapplication.”

The bill clarifies that an unconscious person is incapable of consenting and that the defence of mistaken belief in consent cannot be used if the accused believed that a person’s failure to resist in such a case meant that the person consented.

The bill also expands rape shield provisions regarding a complainant’s prior sexual history to cover communications of a sexual nature and provides complainants with a right to counsel during rape shield proceedings.

The bill is “part of the Minister of Justice’s ongoing criminal justice system review,” Sen. Sinclair said. It would also require the minister to table a statement with every government bill on the potential effects the legislation could have in relation to the Charter of Rights and Freedoms.

The bill further proposes to repeal parts of the Criminal Code that have been ruled unconstitutional by the courts, including removing certain evidentiary presumptions.

Sen. Sinclair explained that prosecutors use evidentiary presumptions as part of the proof of an offence, essentially establishing a critical fact by using a different but related fact.

“Provisions of this nature are problematic when they can lead to convictions in cases where a reasonable doubt as to the guilt of an accused exists but is overcome by the presumption. Such a result is antithetical to the principles upon which our criminal justice system is based and which are reflected in our Charter of Rights and Freedoms,” he said.

The legislation would also remove offences that are now obsolete or outdated, including:

Bill to clarify sexual assault laws under review in Senate