(This article has been translated into French.)

Sexualized violence continues to be a widespread, costly, harmful, and discriminatory social problem. Canadian women are more likely to be sexually assaulted than to obtain a university degree or to be paid the same as our male counterparts, as I have noted elsewhere. For Indigenous women, the rate of sexual assault is triple that of non-Indigenous women.

Spurred by the #MeToo movement, our legal and social responses to sexualized violence have received enormous, and novel, public attention in the past five years. Canadians are increasingly frustrated with how our legal systems and social institutions respond to harmful sexual behavior.

During its first mandate, the Trudeau government took some steps that responded to this public dissatisfaction. Those steps should be applauded. For the first time in over 25 years, significant, substantive changes to the law of sexual assault were adopted through amendments to the Criminal Code. These include clarifying that intimate sexual communications between a complainant and her alleged abuser should be protected by our rape shield provisions; creating a process to determine whether private records in the accused’s possession, such as texts or Facebook messages between him and the complainant, are legitimately necessary for the defence (rather than introduced solely to humiliate, or discriminate against, the complainant); and permitting complainants or their lawyers to have a say on whether evidence of their other sexual activities, unrelated to the alleged sexual assault, should be introduced at trial.

These provisions are being challenged under the Charter. Some trial judges have upheld their constitutionality. Others have struck them down, despite the Supreme Court of Canada having already ruled on the constitutionality of laws of this nature.

The previous government also supported several promising policy initiatives aimed at improving our response to sexual violence. For example, the government funded the development of pilot projects to provide state-funded independent legal advice for sexual assault survivors in several provinces. Similarly, as part of its Strategy to Prevent Gender Based Violence, the federal government provided the National Judicial Institute (which trains judges) with money to develop judicial training that focuses on gender-based violence including sexual assault.

Despite these positive changes, there have been missed opportunities. For instance, when given the chance to clarify and improve the legal definition of capacity to consent to sexual touching through a proposed Senate amendment to Bill C-51, the Minister of Justice refused. At what point of intoxication is someone too drunk to consent? This is a frequent, inconsistently answered question in sexual assault trials. Instead of resolving the matter, Bill C-51 added an unnecessary and potentially problematic provision reiterating that unconscious people cannot consent to sex – a point about which judges were not confused.

Our new minority government has an opportunity to bring together all parties to work collaboratively on this social problem. What are some of the legislative steps and policy initiatives addressing sexualized violence that the government should pursue to meet its commitment to reduce violence against women articulated in its recent Speech from the Throne?

Provinces bear responsibility for delivering services to survivors of sexual violence and administering justice. Nevertheless, there is a great deal that could be achieved at the federal level. This piece and the feature series in Policy Options offer only a few.

Most obviously, additional revisions to the Criminal Code should be introduced. Courts require guidance in adjudicating sexual assault cases involving severely intoxicated complainants. The previous government committed to working on this issue. In many cases, women who are too intoxicated to walk, speak, or dress themselves properly are not found to be too drunk to consent. The Criminal Code should include a definition of capacity to consent that requires more than the bare consciousness or “minimal capacity” currently required by many courts.

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The previous government eliminated preliminary inquiries in many sexual assault cases. Bill C-75 restricted the availability of preliminary inquiries to those offences liable to a maximum sentence of 14 years or more. This is a positive development for sexual assault law in part because it means that most sexual assault complainants over the age of 16 will not have to undergo the ordeal of testifying and being cross-examined twice.

But, because sexual assaults involving complainants under the age of 16 expose an accused to a sentence of up to 14 years, preliminary inquiries are still available in cases involving children. The new government should amend the Criminal Code so that children – some of our most vulnerable sexual assault complainants – are not forced to go through a process we now protect most adult complainants from enduring.

There are also, of course, countless steps beyond revisions to the Criminal Code that the federal government should take. To name a few, many of which will be examined more closely by the authors in this series:

  • Federal funding for independent legal aid programs should be made permanent.
  • A strategy for prevention and provision of services and dedicated funding for responding to sexualized violence in Canada’s north, where rates of sexualized violence are more than seven times higher than in the south, should be implemented.
  • The Canadian military, which, given the Supreme Court of Canada’s decision in R v Stillman, will continue to run its own sexual assault trials, should be required to respond to the failings within its legal system identified by the auditor-general and others.
  • The Missing and Murdered Indigenous Women and Girls’ Calls for Justice should be answered with money and action.
  • The funding commitments related to the Strategy to Prevent and Address Gender Based Violence should be revisited and renewed.
  • Resources should be devoted to supporting better research on the vital gaps in our justice system that lead to costly harms, often borne by those who are most vulnerable.

Key to the success of any of these efforts will be the government’s willingness to consult and work with sexual assault experts – front-line workers, academics and practitioners. Initiatives like the Department of Justice’s 2017 Knowledge Exchange (in which sexual assault experts and law- and policy-makers were brought together to examine how sexual assaults are reported, charged and prosecuted in Canada) should be undertaken throughout the government’s term including in these early days in office, when mandates are developed and directions chosen.

Effective response to sexualized violence is a non-partisan issue. It is also a prolific and intransigent social problem with devastating effects – the bulk of which are borne by women and girls. This series highlights the many opportunities for Canada’s new minority government to improve our social and legal responses to this problem.

This article is part of the Improving Canada’s response to sexualized violence special feature.

Photo: Ottawa, Canada – September 22, 2019: Rows of traditional green leather seats and desks fill the new House of Commons of the Parliament of Canada. Shutterstock.com by WorldStock

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Elaine Craig
Elaine Craig is the author of Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession. She is professor of law at the Schulich School of Law at Dalhousie University. Many of her publications are available at: https://works.bepress.com/elaine_craig/

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