Cleaning up the Criminal Code, Clarifying and Strengthening Sexual Assault Law, and Respecting the Charter

From: Department of Justice Canada

Backgrounder

Legislation introduced by the Minister of Justice and Attorney General of Canada on June 6, 2017, demonstrates the Government’s commitment to respecting the Canadian Charter of Rights and Freedoms, modernizing the Criminal Code, and ensuring justice for complainants in sexual assault matters. It would create a new duty on the Minister of Justice to be more open and transparent about the potential effects of government legislation on Charter rights and freedoms It would clarify and enhance Criminal Code provisions related to sexual assault in order to prevent misapplications of the law and to promote justice for complainants. It would also repeal or amend unconstitutional or outdated provisions in the Criminal Code. The Bill reflects the Government of Canada’s ongoing commitment to ensure that Canada’s criminal justice system protects Canadians, holds offenders to account, shows compassion to victims, and upholds the Canadian Charter of Rights and Freedoms.

Scope of the Proposed Legislation

The proposed legislation would:

  • Clarify and strengthen certain aspects of sexual assault law relating to consent, admissibility of evidence and legal representation for the complainant;
  • Repeal or amend a number of provisions in the Criminal Code that have been found unconstitutional by appellate courts and other provisions that are similar to ones found unconstitutional; and
  • Repeal several obsolete or redundant criminal offences.
  • Require that the Minister of Justice table a Charter Statement in Parliament for every new government bill, setting out the bill’s potential effects on Charter rights and freedoms;

Criminal Code Amendments

Sexual Assault Provisions

In keeping with the Government’s commitment to ensure that victims of sexual assault and gender-based violence are treated with the utmost compassion and respect, this legislation would make several amendments to clarify and strengthen the sexual assault provisions in the Criminal Code. Some of these proposed amendments reflect Supreme Court of Canada decisions and address some misapplications of the current law. More specifically, the legislation would:

  • Amend section 273.1 to clarify that an unconscious person is incapable of consenting, which reflects the Supreme Court of Canada’s decision in R v J.A. (2011).
  • Amend section 273.2 to clarify that the defence of mistaken belief in consent is not available if the mistake is based on a mistake of law – for example, if the accused believed that the complainant’s failure to resist or protest meant that the complainant consented. This would codify aspects of the Supreme Court of Canada’s decision in R v Ewanchuk (1999).
  • Expand the “rape shield” provisions to include communications of a sexual nature or communications for a sexual purpose. These Criminal Code provisions provide that evidence of a complainant’s past sexual history cannot be used to support an inference that the complainant was more likely to have consented to the sexual activity at issue, or that the complainant is less worthy of belief (referred to as the “twin myths”).
  • Provide that a complainant has a right to legal representation in rape shield proceedings.
  • Create a regime to determine whether an accused can introduce a complainant’s private records at trial that are in their possession. This would complement the existing regime governing an accused’s ability to obtain a complainant’s private records when those records are in the hands of a third party.

Provisions that have been found unconstitutional, or are similar to those found unconstitutional

Provisions that have been found to be unconstitutional by the courts should no longer be enforced. However, they remain in the Criminal Code until Parliament amends or repeals them. This legislation promotes clarity in the law and would help to avoid confusion and errors by ensuring that the laws on paper reflect the laws in force.

Repealing provisions that are very similar to those found unconstitutional by the courts would help to avoid expensive, time-consuming litigation to achieve the same result and may prevent court delays. It recognizes the Government’s responsibility for aligning the law with the requirements of the Charter.

The following are examples of provisions that would be repealed or amended because they have been found to be unconstitutional by the courts or are similar to those found unconstitutional:

  • Defamatory libel: The Bill would amend the definition of “publishing” used in offences addressing defamatory libel, which is a permanent or semi-permanent attack on a person’s reputation. Part of the definition (subsection 299(c)) was found unconstitutional by the Supreme Court of Canada (R v. Lucas, 1998) because it was too broad and violated freedom of expression.  
  • Evidentiary presumptions: Evidentiary presumptions are legal short-cuts that enable prosecutors to prove an element of an offence through proof of some other fact that is not an element of the offence. This Bill would remove problematic evidentiary presumptions related to gambling offences, theft and the possession of property obtained by crime because they could lead to convictions even if a reasonable doubt has been raised as to an accused’s guilt.
  • Reverse onus provisions: “Reverse onus” provisions require an accused to prove or disprove something. In some cases, they can result in convictions where a reasonable doubt exists as to the accused’s guilt and thus infringe an accused’s Charter right to be presumed innocent until proven guilty beyond a reasonable doubt. For this reason, the proposed legislation would remove a number of problematic reverse onuses from the Criminal Code. These changes would not make it harder to charge or prosecute cases and are expected to spare the justice system time-consuming and costly Charter challenges.
  • Credit for time served: Subsection 719(3.1) was enacted in 2009 to limit the amount of credit that a sentencing court can give for the amount of time an offender spent in custody prior to conviction and sentencing. As a general rule, it set the amount of credit at a rate of one day for every day spent in pre-sentence custody. Judges could provide up to 1.5 days of enhanced credit where circumstances justified doing so, except in cases where an accused is detained primarily because of a previous conviction or because they breached a condition of bail. The exception for a previous conviction was found unconstitutional by the Supreme Court of Canada in R v Safarzadeh-Markhali in 2016 and would be removed from the Criminal Code through the enactment of Bill C-39. The bail breach exception would be removed through this legislation.

Obsolete and/or redundant provisions

The proposed legislation would repeal several Criminal Code offences that were enacted many years ago, but that are no longer relevant or required today, including:

  • Challenging someone to a duel (section 71);
  • Advertising a reward for the return of stolen property “no questions asked” (section 143);
  • Possessing, printing, distributing or publishing crime comics (paragraph 163(1)(b));
  • Publishing blasphemous libel (section 296);
  • Fraudulently pretending to practise witchcraft (section 365); and,
  • Issuing trading stamps (section 427).

The proposed legislation would also repeal other offences that are needlessly specific and deal with conduct that, if necessary, could be addressed effectively by other Criminal Code provisions. For example, the following offences would be repealed because the conduct they target could be addressed using other fraud provisions:

  • Impersonating someone during a university exam (section 404); and,
  • Falsely representing goods as having been made by a person holding a royal warrant (section 413).

Charter Statements

Respect for the Charter is a critical aspect of governing and legislating in Canada. Requiring the introduction of a Charter Statement for every new Government bill represents a new, more open and more transparent way of demonstrating respect for the Charter. The Minister of Justice has already tabled eight Charter Statements in Parliament for her own bills since the beginning of her mandate. The proposed legislation would make the Minister’s existing practice a legal duty. This duty would extend to all government legislation. 

A Charter Statement identifies potential effects that a bill may have on rights and freedoms guaranteed by the Charter. Though it is not legal advice, a Charter Statement further explains considerations that support the constitutionality of the Bill where relevant. The purpose of Charter Statements is to be more open and transparent and to inform the parliamentary and public debates on a bill.

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