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Sexual assault: public debate and criminal law reform Horner, Jessie J. 1993

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SEXUAL ASSAULT: PUBLIC DEBATE AND CRIMINAL LAW REFORMbyJESSIE JOYCE HORNERB.Sc., The University of Saskatchewan, 1972LL.B., The University of Saskatchewan, 1981A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF LAWSinTHE FACULTY OF GRADUATE STUDIESFaculty of LawWe accept this thesis as conformingTHE UNIVERSITY OF BRITISH COLUMBIAApril 1993© Jessie J. Horner, 1993In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signatures)Department of The University of British ColumbiaVancouver, CanadaDate 9/ 3DE-6 (2/88)SEXUAL ASSAULT: PUBLIC DEBATE AND CRIMINAL LAW REFORMABSTRACTCanada's most recent amendments to the criminal law onsexual assault were developed in consultation with women'sgroups in response to the decision of the Supreme Court ofCanada that existing restrictions on the admission ofevidence of the sexual pasts of complainants in sexualoffences is unconstitutional. The amendments dealt with theevidentiary issues, and, as well, the definition of consent,and the availability of the defence of mistaken belief inconsent in sexual offences.Each of the three major political parties supported thenew law. However, the women's groups that had originally beeninvolved in its development sought to have severalsubstantial changes made to it, and opposition to the Billfrom defence lawyers, civil liberties associations and lawprofessors was strong.In this thesis, I review the substantive law relating tothe amendments, and the arguments in the House of Commons, inParliamentary committee,'and in the media, all of whichformed the public debate on the Bill. Key issues were whethercriminal law should be used to advance social justice forwomen, and whether the new law contradicts the "naturalorder". A major argument against the Bill was that itcontravened the fundamental principles of criminal law. Itwas argued that the fundamental principles should takepriority over the Bill.Each of the issues is considered in this work. The majorthrust, however, is on the normative value of the so-calledprinciples of criminal law, which I argue are variouslyindeterminate and abstract, controversial and leading tounduly legalistic arguments. I consider some sources of thesearguments and compare the approach taken in relation to thesexual assault amendments with that taken in another majorlaw reform project, that of the recodification of thecriminal law. It is my thesis that primacy should not beafforded the principles. At issue is the ability ofParliament to reform criminal law to meet emerging socialissues. Against Parliament's competence to enact usefullegislation is pitted the reified ways and means of doingcriminal law in the past.iiTABLE OF CONTENTSAbstract^ iiTable of Contents^ iiiAcknowledgementINTRODUCTION^ 1CHAPTER ONE BACKGROUND TO THE DEBATE^ 6A. Sexual Assault in Canadian Law 61. R. v. Seaboyer^ 92. The aftermath of Seaboyer:the consultation process^133. Consent cases 14B. The First Draft of Bill C-49 171. The preamble^ 182. The consent provisions^ 193. The evidentiary provisions 214. The amendments 24CHAPTER TWO SUMMARY OF THE ARGUMENTS^25A. The Arguments in Parliament 25B. The Arguments in the Committee Hearings^301. The committee^ 302. The women's groups who generallysupported the Bill 313. The Canadian Bar Association^454. Opponents of the Bill^ 47C. The Debate in the Media 53CHAPTER THREE ANALYSIS OF THE OPPOSITION ARGUMENTS 62A. Contrary to Nature^ 62B. The Need for Restraint 63C. Purpose of the Bill^ 65D. Process of Development of the Bill^71iiiivE. Principles of Criminal Law^ 751. Relation to the Charter guarantees^752. The presumption of innocence^773. The meaning of the presumptionof innocence^ 854. Every criminal act must be comprisedof an actus reus and a mens rea^905. The principle of harm^ 1006. The principle of legality 104CHAPTER FOUR THE BASIS FOR THE PRIMACY ARGUMENTS 105A. The Paramountcy of Basic Principlesof Criminal Law^ 1051. Common law methodology^ 1072. Naturalizing law^ 1093. Recodification 111B. The Roles of Consensus and Purpose^114CONCLUSION^AN ALTERNATIVE VIEW OF PRINCIPLES^118Bibliography 158Table of Cases^ 165Table of Statutes 167Chronological Table of Popular Articles^168Appendix 1^Bill C-49: First Draft. 170Appendix 2^Bill C-49: As Passed.^174Biographical FormAcknowledgementI wish to thank Christine Boyle for her advice andencouragement throughout this project, John and Ira for theirconcern and patience, and Jim for his unflagging support andhelp.INTRODUCTIONThe subject of this thesis is the public debate on BillC-49, 1 Canada's most recent "rape-shield" law. The Bill wasintroduced into Parliament on December 12, 1991, went tocommittee on April 8, 1992, and with some amendment 2 waseventually proclaimed on August 15, 1992. Despite unanimoussupport in Parliament, the Bill was nevertheless highlycontroversial. It was vigorously debated in the press and inthe briefs submitted to the parliamentary committee thatstudied it. 3Although the Bill is now law, the different views thatemerged during its debate and, as well, the unique processwhich preceded its drafting, continue to be important forseveral reasons. First, it is almost certain 4 that the Billwill be challenged in court for contravening the Charter ofRights and Freedoms. 5 Many of the arguments raised againstthe Bill will likely form the basis of this court challenge.Second, the drafting of the Bill exemplified a newapproach to criminal law reform that some contributors laudedand others denounced. 6 The participants included legalexperts but also lay people with considerable experience inthe social reality of sexual assault. The formerly exclusivedomain of lawyers was, in some measure, challenged by thosewho face and deal with sexual assault. Given that majorreform of Canadian criminal law is presently beingcontemplated, 8 attention to the process leading to Bill C-4 9is timely and relevant.Third, the debate has drawn attention to criminal law asa method of achieving social justice for women. Although mostamendments to criminal law incorporate ideas about the natureand role of criminal law and the criminal justice system,these ideas are most often implicit in the reform process. Inthe debate on Bill C-49, however, explicit consideration wasgiven not only to the specific purposes of the Bill but alsoto those of criminal law as a whole. The debate revealeddisagreements about its role in theory and in practice. Thequestions and conclusions about criminal law that weregenerated during the the rape-shield debate hold valuablelessons for broader criminal law reform. It is a premise ofthis paper that an examination of what might be called theideology of criminal law should be a pre-condition in anyreform project.Finally, the debate is important for its revelation ofcriminal law as a model of consensus or of conflict.9 It wassuggested during the debate that criminal laws against sexualassault have only applied to certain women, and then forreasons not to do with their individual rights to sexualautonomy, but to further the interests of men. 10 Althoughsuch an analysis has long been part of feministscholarship, 11 it has not been generally acknowledged. 12 TheBill is unique and provocative if, as is contended by some, 13it recognizes the existence of a power differential betweenthe group of people who are men and the group of people whoare women which is played out in encounters betweenindividual men and women in sexual and legal situations. The2Bill thus implicitly accepts the existence of a hierarchy infact and in law based on gender. Traditional criminal law anda steadfast belief in the rule of law would preclude any suchanalysis, as equality of treatment is fundamental to both. 14The Bill raises questions as to the degree to whichmainstream political thought acknowledges inequality andhierarchy within criminal law, not simply in respect to"women" but also to particular groups of women who experienceadditional or compounded inequality, and even to other groupsof people whose disadvantage in criminal law may not yet beunder discussion. Legislators did not accept the challenge toconsider the complexity of women. 15 Whether or not judgeswill remains to be seen.In this paper I do not attempt to examine all of theseissues directly. Nor do I attempt to explicate every argumentthat was raised. I will focus instead on the debate itself asit occurred in the hearings and briefs submitted to thelegislative committee and in the popular press, drawingattention to the style and sources of arguments and theframework within which they were developed. I will emphasizethe process that went into the drafting of the Bill and thedifferent perspectives and justifications that were offeredin respect of the Bill and criminal law. A major focus willbe to consider the arguments raised against the Bill,particularly those that were claimed a basis in "fundamentalprinciples" of criminal law.An underlying purpose of the paper will be to considerhow the particular law reform project of Bill C-49 has been3carried out in comparison with the law reform project ofrecodification, 16 and to consider what of value might becarried over from Bill C-49 to the recodification project.Conversely, the contribution of the recodification project tothe arguments mounted against Bill C-49 is considered. BillC-49 is concerned with specific problems occurring inrelation to a particular kind of criminal harm.Recodification, on the other hand, is concerned with thedevelopment of an expanded general part to the Criminal Code,which would provide a framework for all criminal law andinclude all principles of general application, including ananalysis and rationalization of the conditions for liabilityand all existing defences. The present proposals contemplatean entrenchment of interpretative guidelines. Thepracticality of the common law would be replaced by theprinciple of a code.With regard to this, it will be argued in this paperthat neither rules nor principles have intrinsic value. Moreoften than not, they are a result of choices about where andhow to make classifications. Although some principles mightbe said to capture values and thus serve as useful remindersof those values, they should not be confused with the valuesthemselves.At issue is the ability of Parliament to reform criminallaw to meet emerging social issues. Pitted againstParliament's competence are the ways and means of doingcriminal law in the past. It is my thesis that further4entrenchment through re-codification of "criminal lawprinciples," whether substantive or procedural, would, atthis point, be a mistake for two reasons: One, because therehas been no adequate explanation or discussion of either thetheoretical or practical implications of such recodification,and secondly, there neither is nor can there be consensus onthe direction to be taken as long as the reform is narrowlyconceived within the existing confines of criminal law as itis today. The debate on Bill C-49 provides a context in whichthis argument can be made.The paper is organized into four parts. The first partprovides a background of the legislation and jurisprudencewhich preceded Bill C-49, as these in great measure createdthe need for Bill C-49 and defined the issues that were to beargued. The second part is a review of the arguments made inParliament, before the legislative committee that studied theBill, and in the press. It includes an analysis of thediffering points of view of those who supported the Bill, andsome thoughts on what each was trying to achieve. The thirdpart focusses on particular arguments raised against theBill: that it was contrary to nature, that its purpose wasimproper, that it represented an extension of criminal law,that its development process was improper, and that itbreached the principles of criminal law. It is thesearguments that are most directly related to therecodification arguments. The final part considers thesources of the arguments based on principles, and questionsthe advisability of incorporating even greater levels oftheorizing into criminal law. My purpose is not to subjectthe Bill to strict legal or constitutional analysis but todevelop a broader perspective that can be used to re-unitethe internal workings of the criminal law with its socialpurposes.Some of the methods employed in this paper mightaccurately be described as feminist, particularly thosedescribed by Katherine Bartlett: asking the "woman question"and endeavouring to consider all points of view. 17 I havealso tried to use theory as a consciousness-raising device,and hence transform theoretical analysis into a feministmethod. The point of theorizing here is not to rationalize,but to explore. In addition, I have borrowed from criticalmethod and critiqued the arguments relating to principlesfrom within their own framework.The paper is also a study of feminist legal method, inso far as feminist legal methods were utilized in the Billand its development. "Asking the woman question," or, better,"asking the women question," and consciousness-raisingsessions provided the impetus to Bill C-49 and were basic tothe arguments of many of its supporters. The debate revealsthat "the woman" in the woman question needs consideration,too, and that substituting a one-dimensional female standardwhere once was a male standard does not serve all women well.CHAPTER ONE BACKGROUND TO THE DEBATEA. Sexual Assault in Canadian LawThe roots of the debate on Bill C-49 extend back into67English common law. 18 While some forms of sexual assault havebeen offences since the earliest of times, others have not.Whether or not a sanction existed varied according to whocommitted precisely what act against whom. For instance,husbands traditionally enjoyed complete immunity fromprosecution for rape of their wives, as first common law andthen statute stipulated that the victim could not be the wife ofthe accused for an act to be classified in law as rape. 19 Ifthe female person was under a specified age or of aparticular character, sexual acts might again be defined ascriminal by operation of law. 2° If the "nature and quality ofthe act" were fraudulently misrepresented to the woman,sexual intercourse was defined to be rape. 21 Conditions ofwar nullified, in practice at least, the law against rape, 22and women's legal lack of capacity and credibility ensuredthat rape prosecutions were rare, and those, rarelysuccessful. 23 So while laws against sexual aggression haveexisted for a long time, many forms of coercive sexualactivity were not illegal.Similarly, many legal practices pertaining to sexualassault were simply encoded in everyday life as normalreflections of the relative natures of men and women. 24 Theyrequired no justification, though rationales did appearperiodically in cases and legal treatises. 25 Even the lastdecade has been rife with judicial comments that appear toexcuse or exonerate men from criminal or moral liability forsexual and physical aggression directed at women. 26 Thefoundation for such practices is said by some to lie innotions of the very nature of women as vindictive, mendaciousand morally responsible for whatever happened to them, or asa result of a view of women as "other," or, most often, aslittle more than chatte1. 27Challenges to such concepts began as early as thefourteenth century, when Christine de Pisan argued that"women do not enjoy being raped." 28 According to ConstanceBackhouse, the limited legislative efforts in the nineteenthcentury to recognize women's rights to be free from sexualaggression were largely defeated by judicial decisions. 29These rights did not again achieve any great measure ofpolitical support until the second half of this century. Atthat time, with anecdotal studies documenting the harm ofsexual assault and empirical studies its incidence and lowfounding rates, 3° Parliament responded with legislativereform.The success of attempts to change legal practicesthrough legislative law reform has been mixed, however. InCanada, the first criminal law reform relating to sexualoffences occurred in 1976. 31 This amendment was aimed atprotecting the complainant in respect of the use of evidenceof her past sexual conduct. However, it has been documented 32that the amendments had the opposite effect from thatintended: the woman testifying as to the allegation of rapebecame compellable as to questions of past sexual conduct,albeit in a private inquiry, and the issue was no longerconsidered a collateral matter, but was now material so thatindependent witnesses could be called for the sole purpose of8testifying as to the past sexual conduct of the victim.In 1983, several changes were made to the evidentiaryrequirements, the definitions and the penalty structure ofsexual offences. 33 These changes are fully discussed in theliterature. 34 Germane to Bill C-49 was the near blanketproscription of the use of evidence of past sexual conduct ofthe complainant in s. 276 of the Criminal Code. This was thesection found to be unconstitutional in R. v. Seaboyer35and that has now been rewritten in Bill C-49. Also relevantto the debate was the combination of the legal categories ofrape and indecent assault into a new offence of sexualassault, and the recasting of nearly all sexual offences ingender neutral language.Bill C-49, discussed in detail below, addresses onlysome of the problems that have been identified in the law ofsexual assault in Canada. For example, it does not attemptany definition of the harm in sexual assault, or threat ofsexual assault raised in R. v. McCraw. 36 Similarly, it doesnot consider from whose perspective an assault will beconsidered to be sexual, or the effect of the three tiers ofseriousness in charging practices. 37In the following passage, I will review the case lawwhich contributed to the provisions of Bill C-49.1. R. v. Seaboyer38Section 276 was struck down as unconstitutional in R. v.Seaboyer for infringing the rights guaranteed accused persons9by s. 7 of the Charter. It did not comport with theprinciples of fundamental justice, in the view of McLachlinJ. speaking for the majority, that a trial judge should beprevented from determining the relevance of evidence soughtto be introduced in the trial: sexual assault trials were nodifferent than any other in that regard. 39She considered the purpose and effect of the section,and defined the purpose of the section as threefold:1. to preserve the integrity of the trial by eliminatingevidence which has little or no probative value.2. to encourage the reporting of sexual assaults byproviding safeguards to complainants in the trials.3. to protect the witness's privacy. 40Although she found no fault with the purpose of thelegislation, she held that it breached s. 7 of the Charter inits effect. To paraphrase her judgment, she said that it is afundamental principle of justice that the innocent not bepunished. Innocence can only be protected through a fairtrial, which in turn requires that the accused have the rightto present full answer and defence, which includes the rightto call relevant evidence. Relevance cannot be determined ina vacuum. Categorical exclusion of possibly relevant evidencecould occur under s. 276, and the section therefore breacheds. 7. Section 1 of the Charter could not save the provisionbecause it failed the proportionality test, given theinterest of the accused. 41The dissent characterized the purpose of s. 276 somewhatdifferently. L'Heureux-Dube J. noted that the purpose wasalso to eliminate sex discrimination caused by the special10rules of evidence that had been developed by the courts incases of sexual offences. 42The key difference in the two judgments lay in howeach judge saw the problem of sexual assault and thetreatment of sexual assault survivors: L'Heureux-Dub6 J.viewed the problem as sex discrimination, bad thingshappening to women because they were women, whereas McLachlinJ. saw the problem as bad things happening to people, period.If one views the problem of sexual assault and poor treatmentof witnesses as occurring broadly against a whole group ofpeople on the basis of their sex, as did L'Heureux-Dub6 J., awhole new reason for seeking to end it emerges and the needto deal with it becomes that much more compelling. 43 Thislack of agreement on how the problem should be characterizedhas been carried throughout the debate, largely unresolved.However, although s. 276 was struck down, McLachlin J.said that the effect of this was not to return the law to itsstate prior to the enactment of s. 276. She laid down newcommon law rules for the admissibility of sexual conductevidence:1. On a trial for a sexual offence, evidence that thecomplainant has engaged in consensual sexual conduct onother occasions (including past sexual conduct with theaccused) is not admissible solely to support theinference that the complainant is by reason of suchconduct:(a) more likely to have consented to the sexual conductat issue in the trial;(b) less worthy of belief as a witness.2. Evidence of consensual sexual conduct on the part ofthe complainant may be admissible for purposes other1 1than an inference relating to the consent or credibilityof the complainant where it possesses probative value onan issue in the trial and where that probative value isnot substantially outweighed by the danger of unfairprejudice flowing from the evidence.3. Before evidence of consensual sexual conduct on thepart of a victim is received, it must be established ona voir dire (which may be held in camera) by affidavitor the testimony of the accused or third parties, thatthe proposed use of the evidence of other sexual conductis legitimate.4. Where evidence that the complainant has engaged insexual conduct on other occasions is admitted in a jurytrial, the judge should warn the jury against inferringfrom the evidence of the conduct itself, either that thecomplainant might have consented to the act alleged, orthat the complainant is less worthy of credit. 44McLachlin J. suggested several scenarios where sexualconduct evidence would be admissible. She went further thanhad s. 276, however, in asserting that past sexual conduct,even with the accused himself, could not be held probative ofconsent, in and of itself. 45 Her framework linkedadmissibility of sexual conduct evidence to an issue otherthan consent or credibility; despite her claim that relevancecould not be determined in a vacuum, she did agree that pastsexual conduct could not be relevant to consent. AsL'Heureux-Dub6 J. put it, consent in matters of sex is to aperson, not to an activity. 46 McLachlin J. said that thetrier of fact was to be instructed that even though evidenceof past sexual conduct was admissible, such evidence was notto be used to advance an argument that the complainant wasless likely to be telling the truth or more likely to haveconsented to the sexual activity giving rise to the charge.In fact, there was no fundamental disagreement betweenthe opinions of the majority and the dissent on whether past12sexual conduct could be relevant to the issue of consent. Thedifference lay in whether evidence of past sexual conductcould be relevant in a legal sense to anything else.2. The aftermath of Seaboyer: the consultation processThere was a strong response to the decision by severalwomen's groups, many of whom had been involved in the legalarguments supporting the constitutionality of s. 276 inSeaboyer. Aspects of both the decision and the response to itwere well-reported by the press, though somewhat unevenly. 47Many women's groups warned that witnesses would beunlikely to report rapes once again. 48 The Minister ofJustice at the time, the Honourable Kim Campbell, initiated aprocess of consultation with women's groups in order toprepare and present to Parliament a bill to replace s. 276.Meetings were held with women's groups over the fall."Responding to the sense of urgency that had developed, shepromised quick action. 5°Within three months of Seaboyer and before theconsultation process had been completed, Bill C-49 was tabledin the House of Commons. Campbell said that womenparticipating in the initial meetings were in agreement thata new sexual assault law had to do more than "fix" theevidentiary rule on admissibility of the sexual past of theprimary witness, it must also address the issue of consent. 51Thus the Bill addressed not only the admissibility ofevidence of the primary witness's sexual past but also themistake of fact defence as it related to consent, and the13definition of consent.A consultation with 60 women's groups resumed inJanuary, 1992, for three days, during which time the groupsdrafted and agreed unanimously to recommend amendments to theBill. Of the proposed amendments, only a few were eventuallyincorporated into the Bill. 523. Consent casesPrior to Bill C-49, s. 265 of the Code defined assaultinter alia as the intentional application of force, direct orindirect, to a person, without the consent of that person.Section 265(3) set out instances where "no consent isobtained where the complainant submits or does not resist byreason of (a) the application of force to the complainant or[another person]; (b) threats or fear of [force]; (c) fraud;or (d) the exercise of authority. (An unanswered questionwas whether this list of circumstances was exhaustive ofthose where a lack of resistance on the part of thecomplainant would nevertheless negate a finding of consent.)In everyday as well as legal parlance, consent wasconsidered a question of fact. 53 Because it was a question offact, the so-called defence of mistake of fact was thenavailable to an accused. Even if it were held that there hadbeen no consent to the sexual force the accused would beentitled to an acquittal if a reasonable doubt existed as towhether the accused honestly believed consent had been given.The leading case in which this was established was R. v.Pappajohn. 54 Dickson J. (as he then was) said that themistake could be unreasonable as long as there was an "air of14reality" about it. Section 265(4) (enacted followingPappajohn) directed the judge to instruct the jury toconsider "the presence or absence of reasonable grounds forthe belief in the determination of whether the belief washonestly held."However, the provision of s. 265(3) was not interpretedas changing the nature of consent obtained as per thatsection from being a question of fact to a question of law,and thus the defence of mistake of fact was still availableto an accused notwithstanding that he had obtained consent byuse or threat of use of force. 55The law in Pappajohn was criticized by authors whoargued that the subjective test was not appropriate insituations where a moral duty arises to take care. It wasargued that where a person engages in an activity where arisk exists, that person must be judged in terms of what isreasonable. 56 Otherwise, men who were completely oblivious tothe wishes of a complainant could be acquitted. On the otherhand, it has been raised that Pappajohn imports an objectivetest into the determination of intent by allowing a judge toconsider whether the air of reality existed. 57 In terms ofthe conduct of the trial, although it was not impossible thatthe air of reality could be determined through the evidenceof others, it appeared that in most cases an accused whoraised an honest belief defence would have to testify.In a second case, R. v. Letendre, 58 however, an accusedperson was not required to testify as to a mistaken belief15because the trial judge decided that the circumstances weresuch that the accused's mistaken belief in consent (and evenconsent) could be inferred directly from the testimony of thecomplainant. In her testimony, the complainant testified thatshe had said "no" to the accused, had repeatedly asked him,"Why are you doing this?" and said to him, "Friends don't dothings like this to each other." However, she had not yelledor struggled. She said she was afraid and that for thatreason alone she had co-operated with the accused.In his decision the trial judge said he could find noreasonable basis for her fear. 59 He said that an inference ofconsent could be drawn based on the complainant's owntestimony. He put the onus on her to vigorously rejectadvances and appeared to fault her for her failure to do so.His words are now infamous in many circles:The mating practise, if I may call it that, is aless than precise relationship. At times no maymean maybe, or wait awhile, the acts of one of theparticipants may be easily misinterpreted, aparticipant may change his or her mind, one way oranother, part way through it, and cooperation aswell as enjoyment may be faked for a number ofreasons. In my opinion, in the interests of bothparticipants, it is one which demands clear andunequivocal communication between the parties,particularly if one of them does not want toparticipate in lt. 5°Thus, in effect, the judge decided, on a criminalstandard, that the accused was justified in believing he hadconsent and ignoring the victim's ambiguous protests. 61 Thiscase was illustrative of the way in which consent wasinterpreted in criminal cases: it was not a question ofaffirmative conduct constituting consent, but of the16sufficiency of the denial of consent.This particular case drew strong criticism from manywomen's groups, who went so far as to picket the court housein response to the decision. The reaction was well-reportedand "no means no" became a popular slogan. 62A third case, R. v. Weaver, 63 was no less sobering,though it did not receive the same press coverage. In thiscase a man had sexual intercourse with a woman who had beendrinking and vomiting, and was in no condition to speak orcommunicate her non-consent. The judge who tried the case,however, determined, as a matter of fact, that the accusedheld an honest belief that she had consented. The case wasappealed, and an apparently reluctant court of appeal agreedthat if the accused held an honest belief, he had to beacquitted.The cases act as a useful illustration of problems withthe law of consent in matters of sexual assault andunderwrote some of the needs expressed by women for reform.B. The First Draft of Bill C-49The initial Bill consisted of a preamble and two majorsections. The first section was an addition to the CriminalCode. It defined the meaning of consent in matters of sexualassault, providing greater examples of instances where it didnot exist, and restricted the defence of mistaken belief inconsent. The second addressed the use of a complainant'sprior sexual activity as evidence in a sexual assault trial17and the procedural rules for its admission.1. The preambleThe preamble set out the purpose and justification forthe Bill. It would not become part of the Criminal Code butwould nevertheless be part of the amending legislation andthus be available to judges interpreting the provisions ofthe Bill, particularly when engaged on the task of decidinglegislative intent. Although courts have quite freelyreferred to legislative debates for the intent of Parliamentwhen interpreting ambiguous provisions, placing the purposein a preamble would make it more likely that it could receiveattention."The preamble stated that the Bill was a responseto:1. the striking down of s. 276 by the Supreme Court ofCanada;2. the incidence of sexual violence and abuse in Canada;3. a recognition of the "unique character" of sexualassault and "how sexual assault and more particularly thefear of sexual assault affects the lives of the people ofCanada;" and4. the belief that evidence of a complainant's sexualhistory is rarely relevant and should be scrutinizedcarefully before admission because of its inherentlyprejudicial character.and that it was Parliament's intention to:1. encourage the reporting of sexual assault;2. do so within a framework consistent with fundamentaljustice;3. be fair to complainants as well as accused persons;and4. promote rights under s. 7 and s. 15 of the Charter.The framers of the Bill had walked a careful line. They18did not wish to fall afoul of the analysis in Seaboyer withthe new law. Therefore the preamble also contained referenceto the "full protection of rights" under s. 7 and the need tobe "consistent with the principles of fundamental justice."The drafters set these rights, however, in juxtaposition torights of complainants to fairness, and by reference to s. 15of the Charter, to equality."As will be discussed later, the main purpose of thepreamble may not have been necessarily directed at thecourts' interpretation of the Bill itself, but to the way inwhich the issues would be characterized publicly and in aCharter challenge; it was not a question of the Charterrights of accused persons being pitted against sensitivityor niceness to complainants, but of two different kinds ofCharter rights being balanced with one another.A surprising aspect of the preamble was that it did notrefer to the consent provisions of the Bill, which were feltby many to be the most important part of the Bill as well asthe most controversial."2. The consent provisionsSection 273.1(1) of the Bill defined consent in sexualassault offences:..."consent" means, for the purposes of sections 271,272 and 273, the voluntary agreement of the complainantto engage in the sexual activity in question.It was arguable whether this new definition amounted toa change in the law or not. The Concise Oxford Dictionarydefines the noun "consent" as "voluntary agreement,19compliance, permission." 67 The Collins English Dictionarydefines it as:acquiescence to or acceptance of something done orplanned by another; permission 4. accordance or harmonyin opinion; agreement. 68However, cases such as Letendre had interpreted consent insexual cases as not requiring voluntary agreement, only noexpress refusal. The absence of non-consent was equivalent toconsent, though not in cases of drunkenness of thecomplainant. 69 The difference between the notion of voluntaryagreement and passive acquiescence may seem minor in theabstract but in the realm of sexual activity between peoplewith different power it becomes very important.Section 273.1(2) set out circumstances in which noconsent would be found. These were where:(a) the agreement is expressed by the words of conductof a person other than the complainant;(b) the complainant is incapable of consenting to theactivity by reason of intoxication or other condition(c) the complainant engages in the activity by reason ofthe accused's abuse of a position of trust or authority;(d) the complainant expresses, by words or conduct, alack of agreement to engage in the activity; or(e) the complainant expresses by words or conduct, arevocation of agreement to engage in the activity.Section 273.1(3) provided that the prOvisions of 273.1(2)were not limiting of the circumstances in which no consent isobtained.In the circumstances listed in s. 273.1, an accused whowas mistaken about the existence of the facts negatingconsent would still have the benefit of the mistake of fact20defence.The ability to claim this defence was further limited bys. 273.2, which sets out restrictions on when the defence ofmistake of fact in consent can be raised. These were where:(a) the accused's belief arose from the accused's(i) self-induced intoxication, or(ii) recklessness or willful blindness; or(b) the accused did not take all reasonable steps at thetime to ascertain that the complainant was consenting.These provisions appeared to go significantly furtherand were much clearer than the limitations on consentcontained in s. 265(3) and s. 265(4) in actually disallowingthe defence of mistaken belief in consent in certaincircumstances. Section 273.1(1) should cover the Weaversituation because there were no actions in that case by thecomplainant that could have been construed as voluntaryconsent. Similarly, ss. 273.1(1) and 273.1(2)(d) should covera Letendre situation as, again, in Letendre, there was no"voluntary agreement" by the complainant, and there was evenan expression of a "lack of agreement." The test in bothwould then be whether the accused took all reasonable stepsin the circumstances known to him at the time to ascertainthat the complainant was consenting.3. The evidentiary provisionsThe new section 276(1) contained in Bill C-49 providedthat in all charges relating to sexual matters evidence ofpast sexual conduct was not admissible to support inferencesrelating either to the likelihood of consent or thecomplainant's credibility. This was in line with the21decisions of both McLachlin J. and L'Heureux-Dube J. inSeaboyer. Section 276(2) and (3) specified criteria and theprocedure through which evidence of past sexual conduct wouldbe vetted for admissibility relating to another issue in thetrial. Section 276(4) required the judge to instruct the juryon what use could be made of evidence of past sexual conductwhere it was admitted.Section 276(2) and (3) set out the factors the judge wasrequired to consider in ruling whether evidence of pastsexual conduct was admissible. Section 276(2) set out thefactors which must be satisfied before evidence of pastsexual conduct with anyone by the complainant be adduced:[If the evidence](a) is of specific instances of sexual activity;(b) is relevant to an issue to be proved at trial; and(c) has significant probative value that is notsubstantially outweighed by the danger of prejudice tothe proper administration of justice.The decision in 276(2) was to be determined in accordancewith the following factors from 276(3) taken into account:(a) the interests of justice, including the rightof the accused to make a full answer and defence;(b) society's interest in encouraging the reportingof sexual assault offences;(c) whether the evidence will reasonably assist inarriving at a just determination in the case;(d) the need to remove from the fact-findingprocess any discriminatory belief or bias;(e) the risk that the evidence may unduly arousesentiments of prejudice, sympathy or hostility inthe jury;(f)the potential prejudice to the complainant'spersonal dignity and right of privacy;22(g) the right of the complainant and of everyindividual to personal security and to the fullprotection and benefit of the law; and(h) any other factor that the judge, provincialcourt judge or justice considers relevant.Sections 276(2) and (3) provided specificity to the word"legitimate" used by McLachlin J. and, by and large, summedup or extrapolated further what she had said in Seaboyer. Thedifference between the guidelines proposed by McLachlin J.and those of the Bill are in the degree to which the problemsof prejudice are spelled out. While Parliament itemizes someof the ways in which prejudice can occur, McLachlin J.subsumed them under the rubric of "the danger of unfairprejudice flowing from the evidence." One could characterizethe evidentiary provisions as a codification, although thefactors do not represent rules so much as considerations."Section 276.2 set out the procedure for thedetermination, specifying that the hearing was to be incamera, the complainant was not compellable, the judge was toprovide written reasons for any evidence to be admitted,specifying the evidence and the reasons why it was expectedto be relevant, and the written reasons would be entered aspart of the record.Section 276.3 provided that no person should publish orbroadcast an application for admissibility or any part of thehearing, the results of it or the reasons for it.Section 276.5 specified that for purposes of determininga right of appeal of either prosecutor or accused, the23determination under s. 276.2 was to be deemed a question oflaw, thus ensuring that a decision on admissibility would beappealable.4. The amendmentsThe amendments adopted by the committee were thoserecommended or moved on behalf of the Minister. They were notunanimously adopted. Several others were proposed by membersof the committee and were not adopted. 71The order of the preamble was changed, and theprevalence of sexual violence and abuse against women andchildren was noted in the first clause, which also indicatedParliament's grave concern for the incidence of theseoffences. The second clause retained the language of the"unique character" of sexual assault. The promotion ofCharter rights was moved up to the third clause. That theBill was a response to Seaboyer was moved from the firstclause to the fifth. 72In the consent provisions, the reference to intoxicationin s. 273.1(2)(b) was removed; the section thus providedsimply that no consent is obtained where the complainant isincapable of consenting. The vitiation of consent by an abuseof a position of trust and authority was extended to includepositions of power, and the necessity that it be an abuse ofthe position that induces the sexual activity was madeclearer. The amended s. 273.1(2)(c) reads: no consent isobtained where the accused induces the complainant to engagein the activity by abusing a position of trust, power or24authority. The word "all" was removed from the reasonablesteps requirement so that where an accused relies on amistaken belief in consent, the issue will be whether or notthe accused has taken "reasonable steps" to ascertain whetheror not the accused was consenting. Revocation of consent wasclarified so as to remove an inference of revocation havingretrospective effect.Minor changes in wording were made to the evidentiaryprovisions.The Bill was changed to allow publication of the judge'sdecision and reasons, if ordered by the judge. 73 He or shewas to take into account the complainant's right of privacyand the interests of justice in coming to a decision onpublication.CHAPTER TWO SUMMARY OF THE ARGUMENTSA. The Arguments in Parliament 74According to the government's rationale for Bill C-49,the purpose of Bill C-49, while multi-faceted, was primarilyto protect sexual assault victims from the criminal justicesystem. 75 When she introduced it in December, the Minister ofJustice, Kim Campbell, said of it:Canada needs a law that will protect victims ofsexual assault from the unnecessary revelation ofpast sexual history while ensuring that the rightsof the accused to a fair trial are upheld. 76She went on to say that the Bill was sending a "clear messagethat [violence against women] is not tolerated in oursociety."25In moving the Bill to second reading, and after makingthe argument that the reform was to provide all Canadianswith access to criminal law, she said:Also forming a basis for this Bill is a broaderprinciple, one that was emphasized during theconsultation process. It is simply this. All men, womenand children must have autonomy over their own lives andmore specifically, their bodies. 77She continued:This fundamental principle goes to the heart of what itmeans for anyone to live in a democratic country such asCanada. It must inform every aspect of our laws andindeed it is an integral part of the provisions of theBill. 78Thus, she deals with two kinds of protection: "the rightof the victim of a sexual assault to the full protection ofthe criminal justice system," 79 and protection from sexualassault. 9°Her concluding remarks underscore this relationshipbetween criminal law and personal freedom and autonomy. Shesays:...the Government of Canada will not tolerate violenceof any kind against any person or group of persons inCanada, nor do we condone the view that a certain levelof violence is somehow acceptable or inevitable. 81As to the reason why the Bill was unique, she referred tothe devastating effects of sexual assault on the lives of themen, women and children who suffer it and to the fear ofvictimization that marks women's lives. 82Thus, while confining the specific purpose of the Billto repair of the criminal law, her remarks indicate thepurpose of the criminal law as the definition of that26behavior which is not tolerated in society, and theprotection of those who have been victimized by criminalbehavior.Subsequently, Campbell was quoted by the media as sayingthat the Bill did not represent a new moral code. 83Russell MacLellan, Member of Parliament for CapeBreton-Sydney, gave strong support to the Bill at secondreading on behalf of the Liberal Party. 84 He made severalinteresting points and used some popular rhetoric that relatesto the purpose of the criminal law. First, he referred to R. v.Butler85 as an example of "honing justice" in Canada. The case,in deciding that obscenity provisions of the Criminal Code areconstitutional, stands, he said, for the proposition that thepurpose of the obscenity law has not to do with enforcementof moral standards, but the "protection of our women andchildren." 86 Thus, he too made the distinction that thepurpose of the criminal law is to protect people from harm,rather than to enforce a moral code.He also spoke of the trial and conviction of an accusedas bringing the "justice she deserved to a complainant." 87Dealing with the provisions on consent, he spokeprimarily of "protection" for complainants. "We want toprotect women in situations where otherwise they would haveno protection whatsoever." 88 This concern appears again, butthis time reflecting, additionally, a political need forsocial consensus on the value of protecting women:We need to protect women in our society. If we do not,27the society that we value will crumble. If it crumbles,then what we have in this country, what we have prizedin our justice system, and our sense of fairness will begone. 89MacLellan thus put the purpose of the Bill, theprotection of women, and criminal law, in the larger contextof social survival. The use of state power to criminalizecertain behaviors through law and enforce criminal powers wasnecessary for the sake of fairness and justice, which in turnare necessary for social cohesion.Dawn Black, Member of Parliament for New Westminister-Burnaby, spoke in support of the Bill on behalf of the NewDemocratic Party. 90 She, too, noted that the Bill wasintended to "encourage the reporting of sexual assault...toprovide fairness to victims as well as the accused," but shealso noted that the Bill was necessary to guarantee women andchildren equality of rights under the Charter. 91 She notedthat the Bill was unique because it was founded on theexperiences of women. She distinguished the victimization ofwomen and children from others. 92Although each speaker agreed with the purpose of Bill C-49, each cast its primary justification in a slightlydifferent way, revealing different political biases.Borrowing from Chaim Perelman's 93 analysis of basicassumptions, it can be seen that they portrayed a liberal,conservative, and socialist stance respectively. In an oddtwist, Campbell revealed a liberal stance, allowing that itwas right for the state to interfere because the basic rightsof individuals to sexual autonomy were being denied. Although28she referred to women and children, she carefully includedmen as victims of sexual assault.MacLellan made the classic conservative statement:without this reform, much more drastic changes could bepredicted. The measure was required in order to preservesociety. He was also far more willing to accept thehistorical bias of the law against women, and, in ratherchivalrous language, called for its reform in order toprotect them.The primary justification for Black was that the changepromoted equality for women and children; as Isiah Berlin 94has pointed out, for a socialist, equality needs no furtherjustification.Although the language of equality may have played a partin the speeches of all three, each illustrated a differentunderstanding of the concept. Campbell concerned herself withequality between the complainant and the accused; MacLellanwith equality of protection; and Black with equality instatus.Basic to each, however, was the view that the criminallaw provides bottom-line protection to people, whetherthrough deterrence, denunciation or some other means, and inthis sense each adopted or portrayed a utilitarian philosophyfor criminal law. Given that all three shared this basicposition, it is not surprising that the accuracy and validityof the assumption received little or no attention.29B. The Arguments in the Committee Hearings 951. The committeeThe legislative committee on Bill C-49 served as animportant platform for the debate. Because the Bill had beenendorsed by all parties and the committee was into clause-by-clause study, it was the committee's apparent intention tolimit the debate in front of them to specific items in theBill that could be corrected before third reading. It wasannounced, at least within the committee, that it was notseeking input on the social policy behind the Bill. 96 •Nonetheless, social policy was high on the agenda of many ofthe contributors. Criticisms of the Bill were vehement, andthose who supported it in principle obviously wanted toensure that the political will to pass the Bill did not flag.They were further concerned that the issues be properlyprepared for the inevitable Charter challenge.It should be remembered that those who appeared in frontof the committee presented their opinions for the benefit ofthat committee, and no doubt with the needs of that committeein mind. While many may have had other agendas as well, suchas publicity for a group, an opportunity to affect thebroader public debate on this issue, or as a step in a largerplan, 97 each participant was constrained by the requirementsof the committee and the possibilities that were before thecommittee, that is, to approve, amend or defeat the variousprovisions of the Bill. It may not be entirely fair torepresent what went on at committee as the sum total of anygroup's ideas on the Bill. Similarly, neither would it be30fair to assume that the reforms presented in Bill C-49 werethe top priority for any groups that appeared. 98The question of who would be invited to speak to thecommittee was an important one." An invitation to appearmeant that a group would be heard, and have a brief appendedto the minutes of the hearings. Dawn Black requested, forinstance, that METRAC, a Toronto based group against violenceagainst women, and the Canadian Labour Congress be allowed toaddress the committee. 100 The Chair, however, citedinsufficient time and resources to hear from all interestedparties. 101 Had the hearings continued longer, he suggested,the Bill might not be read a third time before Parliament wasprorogued, in which case the Bill's passage became veryunlikely. 102 The committee agreed.Fifteen groups and one individual spoke and submittedbriefs to the committee on the substantive portions of theBill. Eleven of these 15 were women's organizations.2. The women's groups who generally supported the billTen of the 60 women's groups 103 who had participated inthe consultations with the Minister in the fall and Januaryappeared before the committee. Of these, all indicated atleast qualified support for the framework and import of theBill but many would not give it full backing unless certainamendments were made. The women's groups were: Women's LegalEducation and Action Fund (LEAF), the National ActionCommittee on the Status of Women (NAC), National Associationof Women and the Law (NAWL), Native Women's Association of31Canada (NWAC), Disabled Women's Network Canada (DAWN),National Organization of Immigrant and Visible Minority Womenof Canada (NOIVMWC), Canadian Association of Sexual AssaultCentres (CASAC), and Prostitutes and Other Women for EqualRights (POWER), regroupement quêbêcois des centres d'aide etde lutte contre les agressions a caractere sexuel (CALACS),and the Canadian Advisory Council on the Status of Women(CACSW).The women's groups had achieved a great measure ofunanimity among themselves during the consultativeprocess. 104 They had also been demonstrably successful in thefall at persuading the minister to amend the definition ofconsent and the mistake of fact defence. Amongst themselvesthey had, in a very short time, achieved consensus, and theyappeared to effectively bridge the gap between the "insiders"and "outsiders" characterized by Martha Minow. 1°5 Severalgroups, including LEAF, NAWL and CACSW supplied legalexperts, the "insiders" of law reform. Meanwhile, concretedetails of women's lives came from all, including women whorepresented specific communities and who were active in thefront lines of the problem of sexual assault, often the"outsiders" in law reform. The legal and the social knowledgeappeared to inform and complement the position of each group,precisely the dialectic advocated by Canadian legal scholarR. A. Samek. 106Notwithstanding their consensus on the amendments, thegroups did reveal subtle differences in their thoughts on32criminal law. I will first deal with the proposals of thewomen's groups as put forward by LEAF and then highlightthose areas in which contrasting views were presented.LEAF, a national organization of women dedicated to theachievement of equality rights for women through litigationand public education, occupied a central role in the debateand among the women's groups. LEAF supported the tenor of theBill as being a Charter-inspired move to secure rights forgroups of women under ss. 7, 15 and 28. 107 Section 7 untilthen had only been used in the context of an accused's rightto life, liberty and the security of person. However, LEAFargued the guarantees contained in s. 15 were "principles offundamental justice" no less than fair trial rights. 108 Ifthe aim of criminal law was to protect one's life and person,the failure of the law to do so in respect of particulargroups was clearly offensive to the principles of fundamentaljustice. LEAF argued that positive benefits must flow from s.7. 109Key to this argument was an understanding of sexualassault as occurring against members of distinct groups, notrandomly, but because of their membership in these groups. 110Women and children were not merely victims, but members ofoppressed groups, and herein lay the difference in theanalyses of L Heureux-Dub6 J. and McLachlin J. Sexual assaultwas caused by and, in turn, caused sex inequality. Hence,sex discrimination in sexual assault occurred on two levelsthat contributed inseparably to each other: in the failure33of the criminal system to provide equal protection to membersof these groups, and in the reality of sexual assaultsthemselves. In order to emphasize that the Bill was premisedon equality, the women's proposals recommended that thepreamble specifically mention women and children and the needto protect their constitutional rights. This would underlineand show that Parliament recognized the disparate impact ofsexual assault on women and children and that therefore,courts should consider the equality implications. 111Parallel reasoning was used in closer examination of theconcept "women and children." To counter the increasedvulnerability of diversely situated women (women who differfrom the standard of white, able-bodied, heterosexual,middle-class woman) to sexual assault, as well as theirunequal treatment in the system, LEAF proposed that thesewomen be named specifically. 112 LEAF argued that specificdamaging and stereotypical views of different women had to beexposed. It pointed out that evidentiary changes alone wouldonly affect those women who reported sexual assault and whosecomplaints were held to be founded by police and prosecutors.LEAF pointed out that women who were, for example,unemployed, "on welfare", aboriginal, black, sex tradeworkers, in a relationship with the attacker, promiscuous,disabled or "bad," were far less likely to be believed attrial or at any other juncture in the system because of mythsand stereotypes about such women. It was proposed that astatement recognizing these compounded inequalities wasnecessary in the preamble. 11334Also recommended were two similar amendments to tieproblems of stereotyping to inferences of consent. 114 It wasargued that consent should not be presumed on the basis ofthe complainant having consumed alcohol or drugs prior to thesexual activity, nor on the basis of the complainant'smembership in any historically disadvantaged group,employment or immigration status, or because the complainantis a sex trade worker or a lesbian.POWER, DAWN, NWAC AND NOIVMWC all represented specificconstituencies of women subject to higher incidence of sexualassault and compounded inequality. Each underlined the needto have their unique experiences named and recognized in theBill.Speaking to the issue of inclusion, POWER emphasized howsexual and related violence to prostitutes is rarelyprocessed through the criminal justice system. 115 Rather, itis considered by police and others in the system to be apart of the job. POWER pointed out that the men who rapeprostitutes act on the knowledge that prostitutes are notprotected by the law. 116DAWN made a similar point in relation to disabled women.They, like prostitutes, are the targets of more aggressionthan many other women, and, when they are assaulted, the menwho commit the assaults do so with the knowledge that nothingwill happen to them. 117 DAWN said that disabled women are notbelieved by people in the criminal justice system, not so35much because they are women but because of theirdisabilities. 118 Hence, they argued, their naming wasnecessary in order to keep the system from merely discountingtheir experiences.NOIVMWC said that the system operated only for thebenefit of the dominant culture. Everyone else is invisibleand unacknowledged. 119 While NWAC supported the inclusionclauses, it argued that even with them the Bill did not doenough to challenge sexist and racist attitudes. 12°With respect to the substantive consent provisions, theproposal put forward was that consent be defined asunequivocal voluntary agreement, in order to establish as amatter of law that consent must be affirmatively given, that"no" means "no," "maybe" does not mean "yes," and silence doesnot mean "yes.tan LEAF argued that this was necessary inorder to combat myths about women and the acceptability of malesexual aggression. Obviously, the women's grous wereconcerned that the langauage of s. 273.1(2) was not strongenough to overcome present practices.Also included was the proposal to add "abuse of power"to those circumstances that would vitiate consent extractedthrough it, 122 and the suggestion that publication of ajudge's reasons might be advisable in the interests ofmonitoring how the legislation was interpreted and applied.LEAF argued that the criminal law had developed uniquerules to deal with sexual assault that were heavily weightedin favour of the accused, not as compared to the complainant,36but as compared with persons accused of other crimes. 123LEAF stressed the equality aspect of Bill C-49throughout. It did not emphasize the physical, pyschologicalor emotional harms of sexual assault. It considered theincidence of sexual assault, not as a means of quantifyingthe harms of sexual assault, but in order to establish sexualassault as a form of sex discrimination affecting thosepeople who are vulnerable to sexual assault: women and,particularly, specific groups of women. LEAF's linkage ofsexual assault vulnerability with social inequality drew outwhat Regina Greycar and Jenny Morgan have called the genderednature of the harm of sexual assault. 124By proposing that criminal law can intervene in thisvicious circle, LEAF (and other groups) ascribed to criminallaw the ability and purpose of enforcing constitutionalrights as between people. LEAF made one other point thatrelates to the purpose of criminal law. Failure to recognizeand name the harm, both personal and gendered, was important,LEAF argued, for if the harm is not named and sanctioned, itis countenanced. 125 In so far as what is sought isdenunciation of the crime, this argument reflects autilitarian view. However, this argument is also saying thatwrong things ought to be punished, simply because they arewrong; to this extent, a retributive rationale. 126Neither LEAF nor NAC specifically put forth a view onthe purpose of the criminal law. Judy Rebick, speaking to thecommittee on behalf of NAC, suggested a limited purpose to37the Bill. She stated that the Bill would not prevent sexualassault, 127 and thus, by implication, would not protectwomen. When faced with the suggestion that the Bill wouldprevent sexual assault, 128 Rebick firmly rejected the notion,insisting that it was merely to get women to come forward toreport sexual offences against them. 129 Instead of seeing theBill as focussing on the actions of men in sexual activities,she saw it impacting on the people in the justice system, 13°particularly the police and the judges, and on womenthemselves. 131Rebick spoke of the great distrust felt by many womenfor criminal process. Naming those women in the Bill who aresubjected to compounded inequalities would do much, NACargued, to persuade these women that the justice system wasindeed interested in them, too, as many evinced little hopefor the system and little desire to be involved with it. 132NAC thus argued that the Bill and the amendment proposed toit were necessary in order to legitimate the criminal law inthe eyes of women.She did not entirely discount the idea that criminal lawmight have a broader educational effect, however. Althoughshe emphasized that the target was initially the criminaljustice system rather than society as a whole, 133 she alsospoke of the possibility of cultural and attitudinal changeas a result of the Bill. 134 The NAC brief noted the apparentsuccess of amendments to criminal law relating to drinkingand driving in changing people's behavior and attitudes about38drinking and driving. 135 Mobina Jaffer of NOIVMWC also heldout the hope that the Bill could have a positive educativeaffect on men. 136Consistent with the target of the legislation from NAC'spoint of view was the line adopted on "women's rights". Itwas not women's rights to sexual and bodily integrity thatwere directly in issue, but rather rights to equality, in thenarrow sense of equality of treatment under the law, or"access" to criminal law. 137 Rebick stated that equality forwomen would not be achieved through criminal law; 138 Bill C-49 would only remove certain disadvantages.She commented at one point that many women do notbelieve they will get "justice" when they are sexuallyassaulted. 139 However, in NAC's brief such rhetoric does notappear. In fact, NAC went some distance to ensure that itsposition was not presented as the criminal law bringing"justice" to women. Rebick noted that NAC was not advocatinglonger sentences for those who sexually assault as a means ofgaining equality for women. 14° NAC thus rejected bothutilitarian and retributive analyses of criminal law.NAC along with many groups spoke to the need forsweeping changes in judicial education and social programs ifthere was to be any decline in sexual violence against womenand children. 141Nicole Tellier, speaking on behalf of NAWL, alsoemphasized the equality aspect of the reform. 142 She notedthat it was the Charter, although invoked against the Bill,39which provided the impetus behind the Bill and the politicalwill to recognize the experience of women. Although she alsonoted that NAWL had made a very similar presentation some 10years earlier when the former amendments had been enacted,her enthusiasm for the promise of the Bill was evident. 143Shirley Masuda, speaking on DAWN's behalf at thehearings, made the point, poignant to some, incomprehensibleto others, that it was also for women's own benefit that theybe named specifically. Sometimes, she said, it is hard for awoman to understand herself that she has been assaultedbecause the system seems to say it's okay and her attackersays it's okay. 144DAWN argued that the defence of "honest belief" covereda "million sins" and asserted categorically there is nomistaken belief in consent. 145 Similarly, CASAC argued that"honest belief" was a pretense by men who assault, and yet amajor reason why women don't report being assaulted. 146CASAC, while supporting the Bill and LEAF's amendments,revealed strong doubt about the process of law reform. 147They said they could not support the Bill without theamendments. Like NAC they saw the Bill directed at women andthe system, rather than at men. 148 They argued that Parliamentcould not put reins on the activities of men; only men coulddo that. 149 CASAC argued that inclusive language would make anenormous difference to the bill's effect on women. It wouldmore than educate them, it would invest them with power. 15040The representative for CASAC was asked about possiblebacklash resulting from the Bill. She responded that therewould be backlash if the Bill went ahead, and that therewould be backlash if the Bill did not go ahead. On balance,therefore, she said it should go ahead. 151Although NWAC supported the Bill, their representative,Virginia Meness, expressed strong doubts about itsusefulness. While she saw the Bill as attempting to promoterespect and protection of women within the system, shequestioned whether aboriginal women could ever put much faithin the criminal justice system. She cited the 15 years ittook to obtain a conviction of one of four men involved inthe murder and sexual assault of Helen Betty Osborne and thetreatment of Kitty Nowdluk, whose rape had resulted in herbeing arrested (because she had not attended court totestify), held in custody for almost a week and eventuallytransported to court along with her attacker. 152 Sheexpressed another overriding concern with the system in thatmost aboriginal men pleaded guilty to charges, often forcultural reasons. 153 She allowed that the Bill, with LEAF'samendments, might assist only where an attacker was non-aboriginal. 154 She said that the beliefs police, prosecutorsand judges hold cast aboriginal female victims as "bad" ordrunk and to blame for attacks on them. 155 As Meness put it:"Aboriginal women are doubly damned by stereotypes." Shedistanced native women from the incapacitation qualificationto consent, suggesting that it was not merely native womenwho would benefit by the section. 15641Dianne Lemieux, speaking on behalf of CALACS, addressedthe role of criminal law in shaping peoples' lives andideology. She pointed out that, whether accurate or not,people's beliefs about criminal law shaped their ideas aboutmorality and permissible conduct. 157Lemieux here expressed the point that Nicola Lacey,Celia Wells and Dirk Meure make in Reconstructing CriminalLaw, 158 that what is true about criminal law is inevitablycomplicated by what we believe to be true about criminal law.While utilitarian and retributive analyses have their place,it is nevertheless true that their proofs, or, in most cases,their failures of proof, do not provide a complete answer toan understanding of either the role of criminal law or of anyspecific law reform.It would appear that an appreciation for the ideologicalrole of law was a driving force behind the women's groups'submissions. Most of the groups questioned whether the Billwould protect women from sexual assault, but mostnevertheless supported it saying that it would help dispelmyths, and these are, after all, the flesh and blood ofideology. It was also pointed out that no one group has amonopoly on the myths, it was not only men, but women whowould benefit from ideological recognition of what happens insexual assault. 155However, the role accorded to criminal law even withinideological change was not always seen to be the same by thewomen's groups. CASAC, for instance, made an impassioned42argument that the ideological change in law would empowerwomen, and that law would play a secondary, merely supportiverole in ending their oppression from sexual assault. 16° NAC,on the other hand, recognized the existence of a powerstructure, which, if not changed, would perpetuatestereotypical ideas about women. The reform was notcontemplated as a boon, but the alleviation of a burden. 161It is probably for this latter reason that only one 162of the women's groups addressed the issue of women usingcriminal law in order to achieve social justice. Those whomight have seen a contradiction in such a strategy,nevertheless had to accept that criminal law influences ourideology and that, in so far as the law was sexist, so toowould be the ideology. To not promote the reform would be toallow the bias in criminal law to continue to permeate ourthinking. That the groups were cognizant of this was clear,as at the same time that they were seeking the reforms ofBill C-49, they announced other initiatives, both in law andoutside of law, to address the problems of sexualviolence. 163A related problem is alluded to by Nicole Tellier: itwas the Charter that brought down the former rape-shield lawand yet it is the Charter that underwrites the new reforms.This point brings up the problem of hierarchy of rights andthe wisdom of social activists relying on "rights claims" toadvance their cause, documented by Judy Fudge 164 and discussedby several authors. 165 A thorough analysis of this problem43goes beyond the scope of this paper. However, if, as SamuelStoljar suggests, "rights" are merely a rhetorical way ofmaking a moral claim, 166 there can be little theoreticaldifficulty with the concept, unless one does not wish toground the claim in morality but politics. The strategicalquestion is far more difficult. "Rights" sends people in thedirection of the courts as the venue for enforcing rightsand there are certainly drawbacks to such a strategy, not theleast of which is the definitional power courts have overrelevance and relations, which may reduce the problem or offeronly a partial solution while giving the impression of realimprovement. The critical question must be whether theapparent improvement is real. While any reform might be seenby some as counterproductive in that it merely softens thebasic unsolved contradictions, others may accept anevolutionary rather than a revolutionary process. A majorcriticism of legal activism is that the benefits of anyreform may only accrue to some of those supporting thechanges, generally only to those who differ in one respectfrom the dominant group. Clearly, the women's groups wereconcerned that this might be the case with Bill C-49, too.Suffice it to say that there are both strategic andtheoretical problems with a rights approach tied to theimportance accorded to law, and particularly to criminal law.As long as hope is held out that criminal law hasutilitarian, retributive or ideological power of socialcontrol, it may be inevitable that social activists will seekto employ it.44Not all of the women's groups were asked whether theywould endorse the Bill without the proposed amendments. Ofthose that were, LEAF indicated that it would still supportthe general structure. 167 CALACS indicated some support butsaid that without the amendments it would not claim that theBill offered adequate protection for women in the mosteffective possible way. NAC spoke simply against a weakeningof the Bill, for that would make it useless to women.'" CALACSargued that at least one third of the groups who hadparticipated in the consultations would withdraw theirsupport unless the provisions addressing inclusion were addedto the Bill. Similarly, Mobina Jaffer said that without thenaming of vulnerable groups NOIVMWC would likewise withdrawits support for the amendment.'"3. The Canadian Bar AssociationThe Canadian Bar Association (CBA) stands on its own forseveral reasons. It was the only group with a predominantlymale membership that, in the end, supported the Bill. Itemphasized three points in its oral submission upon which itsought amendment. All three were incorporated by thegovernment and the CBA's initially-guarded support of theBill became firm.'" Additionally, it experienced rightwithin its organization a disagreement between what womenwanted to see in the Bill, and those who saw its provisionsundermining the rationality of the law.The three amendments proposed at the hearing 171 were theneed to name women and children in the preamble as45particularly affected by sexual assault, to clarify andinclude abuse of power in the section dealing with thevitiation of consent, and to remove "all" from the reasonablesteps requirement.The disagreement was noted in the brief, where itoutlined the difference of opinion between the CBA's TaskForce on Recodification and the Association as a whole. TheTask Force (and the National Criminal Justice Section),consistent with its proposals on recodification, said thatonly subjective intent should be punishable at criminallaw, 172 while the Association said that the mental element insexual assault is not so easily categorized. The Associationsaid that, as a matter of policy, an accused who is awarethere is a risk that the complainant may not be consentingcannot claim to hold a truly honest belief that thecomplainant is consenting. Such a belief in consent amountedto "attitudinal blindness." 173 In the Association's opinion,such recklessness constituted a sufficient degree ofsubjective culpability. 174 The Task Force disagreed, holdingthat such a view imposed an objective test on the accused.The Task Force was overruled, and did not pursue the argumentfurther.A similar problem existed in relation to the requirementthat "all reasonable steps" to ensure consent be taken beforean accused could rely on a mistaken belief in consent.Richard Peck, who headed the Task Force, allowed that while theTask Force maintained that criminal liability could only bedetermined by a subjective test of intention, the test of46"reasonable steps in the circumstances known to the accusedat the time" was a tolerable mixture of subjective-objectiveelements that would be acceptable if it were modified toremove "all," which was not only too objective but alsovague. 175 While it would appear that his position isinconsistent with that taken by the Task Force, who quiterigidly recommended that only subjective fault be punishable,as will be discussed again below, 176 the dispute illustratesthe inherent problems of precision in terms and, too, thedifficulties associated with dogmatic approach to rules andanalysis.The CBA also confronted the characterization of thedebate as one of opposing rights, arguing that there shouldnot be an inevitable conflict between the rights of sexualassault victims and the rights of accused. It said, "Rather,the social and legal policies motivating such rights shouldbe clearly articulated and the possibility of findingcompatible principles explored. Bill C-49 embodies thisapproach." 1774. Opponents of the BillThe opposition to the Bill ranged from reasoned tofrantic. It was argued that the Bill was feminist fascism,that it was "political," that it was an unwarranted extensionof criminal law, that its goal was an improper one and thatit denied the natural ways of men and women. Slightly moreprosaic perhaps, were the arguments that the Bill wasunconstitutional and contrary to the principles of criminal47law.The other participants were REAL Women of Canada, twocivil liberties organizations, the Canadian Civil LibertiesAsociation (CCLA) and the British Columbia Civil LibertiesAssociation (BCCLA), and the Criminal Lawyers Association ofOntario (CLAD). The only individual who appeared was DonStuart, a professor of law at Queen's University.In its opposition, 178 REAL Women raised nature,backlash, consensus and related legitimacy of law as problemswith the new Bill. While it called sexual assault adespicable offence, it appeared to hold women responsible forit. It suggested a range of more appropriate means ofcombatting assault, including sex education programs, a banon all forms of pornography, and teaching women "to displaycommon sense behavior and precautions in order to preventsexual assault." 178Although it acknowledged that there should be somecontrol on the use of past sexual history of the complainant,REAL Women argued that prior sexual activity with the accusedshould be admissible as to consent, stating: "Legislationthat diverges too far from the real world experiences ofwomen and men tends to diminish respect for the lawitself. ,,180They expressed a concern that spontaneity in sexualmatters would be lost. 181 In addition, they said that thetime at which a right to revoke consent should be effectivemust be at a "point that takes into account biological48reality. 1,182 Gwen Landolt, speaking for the organization,said that "every man in Canada, especially if he respectswomen, is going to have trouble, because any woman under thislegislation can say it was assault and I gave no consent, wayafter the fact. " 183 Although she allowed that not all womenwould do this, she said, speaking from experience as alawyer, that many would. 184REAL Women allowed that in cases of mistaken belief inconsent, "reasonable steps" should be taken by the aggressorto ensure he has consent. 185 However, with respect to themeaning of consent, they said that the traditional principlesof criminal law and common law were unacceptably underminedby the provisions. 186They also saw the Bill as having a different effect onstereotyping than that envisaged by the other women's groups.They argued that the Bill as drafted would promotestereotyping of women as victims. 187 They argued similarly thatsexual history should not be considered prejudicial becausethe effect would be to perpetuate a "blame the victim"stereotype. 188Finally, REAL women argued that the Bill should becalled the "detest men" amendment, and hinted at a backlashfrom Men. 188Both civil liberties groups gave the Bill qualifiedsupport.'" While articulating concerns for the treatmentof complainants in the past, they expressed the worry that49the consent provisions went too far. The CCLA supported theevidentiary part of the Bill, and proposed that it be splitfrom the consent portion, so that it could be passedimmediately. 191 The consent provisions, it argued, raisedserious questions of consensus and legitimacy, however. TheCCLA questioned whether these provisions represented thenorms of society in general. The organization suggested that"significant numbers of people believe it is okay not to haveexplicit consent for initial overtures, " 192 and yet, byimplication, in such instances these "initial overtures"would be criminalized. It proposed cross-country meetings toconsider the issue. The CCLA suggested the Bill was overlyvague, particularly in relation to the incapacity of a womanto consent. 193The BCCLA was similarly concerned with the consentprovisions. While it agreed "no" should mean "no," itdisagreed that silence should not mean "yes." Itcharacterized the sexual encounter as one where in the faceof silence the other person "keeps going. " 194 It said thatthere must be a balance between the complainant's view ofconsent and the accused's view of consent, which the Bill hadnot achieved. 195 It also argued that criminal law should bereserved for those with subjective intent, and expressed aneed for caution in its use. 196 It took issue with theintoxication of complainant vitiating consent, and theproblem of a threshold in the abuse of a positionprovisions. 19750The CLAO strongly opposed the Bill. It argued that thepurpose of the Bill was "social engineering" and education,and that both were illegitimate uses of criminal law. 198 Itargued that criminal law should not be used to raisestandards of behavior by, for instance, requiring consent tobe expressed or men to take "all reasonable steps" to ensureconsent. It argued that the only legitimate role of criminallaw was to reflect minimum social norms. 199 It raised thespectre of "slow learners in jail" 200 and said that thebill's requirement that consent be express disregardedcenturies-old behavior and denied the "biological imperativeof males," 201 presumably, again, the right to "keep going."At the hearings, Marlys Edwardh for the CLAO said thatthe unfair treatment of women in the criminal system was athing of the past. 202 Robert Wakefield, who also spoke onbehalf of the CLAO, argued that unfair treatment of women inthe criminal system had merely been an unfortunate historicalaccident which arose because of the the accused's incapacityto testify on his own behalf. 203The CLAO argued that the Bill breached severalprinciples of criminal law including the principle oflegality, 204 the principle that the mens rea of an act mustcoincide with its actus reus, 205 and the principle that onlysubjective intent can constitute an act as a criminaloffence. 206 It was also argued that the Bill breached thepresumption of innocence. 207 Further, the problem ofintoxication within the criminal law was characterized as aconstitutional issue: intoxication must be treated the same51way in all offences. 208 The categorical exclusion of adefence of mistaken belief in consent where the belief aroseas a result of the accused's extreme drunkenness wasinconsistent with the availability of the defence in otheroffences .209The CLAO revealed a very narrow view of the competenceof Parliament to legislate. While it allowed that Parliamentcould pass laws, it said that Parliament should not "pre-judge litigious issues, 11210 that it was "impermissible" forParliament to make "self-serving" evidence for use in a s. 1argument, 211 and that Parliament's interpretation of themeaning of fundamental justice was irrelevant. 212The CLAO brief was critical of the evidentiaryprovisions as well, arguing that evidence of past sexualhistory should sometimes be relevant to issues of consent andcredibility, as well as other issues. 213 It suggested thatthe factors a judge is to consider were vague, irrelevant,and illogically derived. 214Don Stuart was also highly critical of the Bill. He madetwo major points: one, that rape was trivialized by inclusionin the broad category of sexual assault, 215 and that itshould therefore be separated out from other forms of sexualassault, and secondly, that what he termed "negligent" sexualassault should be separated from intentional sexualassault. 216 While he conceded that a subjective test forintent should not always be necessary to found criminalliability, he argued that where an objective test was52imposed, that the offence definition should be different, andaccorded less stigma and penalty. He argued that failure todo either would result in a finding of unconstitutionalityfor breach of a principle of proportionality, 217 although healso stated his position would be the same irrespective ofthe Charter. 218. He suggested that women would be advantagedby the re-creation of a specific charge of rape in that itwould increase founding rates by making it clearer to justicepersonnel that sexual assault need not approximate rape. Inaddition, the existence of a lesser charge would increaseplea bargaining, thereby securing more convictions andrequiring fewer victims to testify. 219Stuart also agreed with the CLAO that categorical denialof the defence of mistake of fact to someone who wasextremely drunk would breach the obiter dicta in Bernard, 220and create an offence of absolute liability. 221 He posited itas a contradiction that the aggressor's drunkenness could beirrelevant while the victim's drunkenness would bedeterminative that a sexual assault had taken place. 222Both the CLAO and Stuart referred to the bluntinstrument of criminal law as reason not to extend the lawas, they suggested, was being done here. 223 Stuart cited theinadequate treatment of sexual offenders as a basis forthis. 224 Both Stuart and the CLAO ascribed utiltarian purposesto the criminal law. 225C. The debate in the mediaThe debate on Bill C-49 was covered by the media, andits reporting and contributions formed an important component53of the debate as, for the most part, it was through the pressthat people were informed about the Bill and the issues itraised. This might raise questions about the bias of themedia and its ability to digest and report complex legalanalyses and challenging political ideas. It also raisesquestions as to how well various groups were able to involvethe media in their views of the problem. The media, ofnecessity, chooses what is news and presents it according toits own vision of who its audience is. It has its ownrhetorical context.While it would be a fascinating and worthwhile study toconcentrate on the difference between what was said and whatwas reported and the role of the media in fashioning thedebate, this aspect will, of necessity, be relegated to aminor role in this paper. However, in order to draw someattention to the possibility of media reconstruction ofarguments and to take advantage of the significanceattributed to arguments by the media, I will summarize howthe issues were covered and include mention of some specificcontributions made only in the media.Even before the law had been introduced, arguments basedon principles of criminal law had begun to appear in thepress. On December 5, 1992, the Montreal Gazette publishedthe headline "Rape law to require defence to reveal casebefore trial "226 In an article the day the Bill was tabled,Jeff Sallot erroneously reported in the Globe and Mail onchanges in the law pertaining to when mistaken belief in54rational and reasonable third person considering all thecircumstances would conclude that consent had been given. 227In the same article, the Bill was reported to have asits aim the protection of women from men who have difficultyunderstanding "no" as an answer. As the communique from theMinister's office that likely inspired the article wasentitled "New Criminal Code Provisions to Protect SexualAssault Victims," this is not altogether surprising. However,the Minister's message went on to say that the protection tobe afforded to victims was from the unnecessary revelation ofpast sexual history, not men. 228Sallot reported that women's groups were concerned aboutjudicial interpretations of implied consent and myths thatmen rely on when committing sexual assaults. At the end ofthe article, the Minister of Justice was quoted as pointingout that present laws had evolved from notions of a woman'schastity being the property of her father or husband, andthat a strong male bias continues to exist in the law. Itconcluded with her comments that men do not understand thefear of sexual assault with which women live. 229The next day, again in the Globe, Sallot predictedthat a "political battle loomed" over the Bill. 230 In hisreport, women's groups were pitted against defence lawyersand women's groups warned that right-wing conservatives wouldcome out against the Bill. Sallot described women's groups andopposition parties as "warmly applauding" the Bill. JudyRebick for NAC was quoted as saying it was a historic day for55women. LEAF appeared less enthusiastic because the Billrepresented only "part of the answer to a much larger problemof how the law is permeated with bias against women." NAWL'sspokesperson noted women's lack of confidence in the legalsystem because sexual assault cases do not get to court andinadequate sentences are handed out. The positive reactionsto the Bill resulted from it providing a means by whichsexual violence and abuse might be prevented.On the other side, the article referred to theimposition of "strict legal standards" on consent andfocussed on how sexual encounters might be affected by theBill's provisions. Defence lawyers were reported as sayingthat the Bill was probably unconstitutional. Brian Greenspanwas quoted for the Criminal Lawyers Association introducingthe idea of ambiguity on the part of women responding tosexual overtures:He said defence lawyers have no trouble with theidea that when a woman says no, she means it andthat is the end of the matter. "That's the lawnow." But he wondered about more ambiguous replies,such as "I have a boyfriend." 231Sallot did not qualify the previous day's report thatthe honest but mistaken belief in consent had been taken awayand had been replaced by a rational and reasonable test.Most newspapers picked up the issue of legal principlesbeing breached by the Bill. 232 All considered the prospect ofthe Bill having a universal effect on sexual relations.Sexual activity which may have been considered consensual inthe past, presumably by all involved, was now suspect. "There56the past, presumably by all involved, was now suspect. "Therewill have to be a new sense of caution... Some very directquestions will have to be asked and you will have to get verydirect answers," Sallot quoted Brian Greenspan of theCLA0. 233 "Beware mixing drink, sex, top defence lawyer says"announced the Toronto Star. 234 Sheila McIntyre of LEAF waswidely reported as saying that what the Bill requires issimply communication. 235In January, after the second set of consultations, the60 women's groups announced they would be proposingamendments. 236 Although these proposals were reported, theirjustification was confined to the need to combat myths andsterotypes. The underlying need for equality was notmentioned. The linkage between sexual assault and socialinequality did not form part of the press coverage. In fact,the women's proposals were generally characterized as a"toughening" of the law, 237 in this way imputing a strongdesire for "crime control" to the women's groups.The appearance of REAL Women at the committee was widelycovered, 238 especially the allegation that the Bill was a"feminist attack on males." Gwen Landolt was quoted as sayingthat the Bill should be called the "detest men" amendment.Alan Borovoy for CCLA made headlines 239 with theassertion that the Bill would put men in jail for "stealing agood night kiss," as did defence lawyers for their statementsthat the Bill would put "slow learners in jail" and that the"biological imperative" of male-initiated sexual aggression57Gallup polls revealing strong public support for the Billappear to have been reported only in the Toronto Star andMontreal Gazette. 241Before and during the committee hearings, the Globe andMail printed several essays that canvassed different aspectsof the Bill. LEAF's contribution appeared in December. 242 InJanuary, under a heading "Legal principles" was an essay byAlan Brudner, "'I thought she meant yes' isn't goodenough." 243 The essay presented the Bill as likely to be foundunconstitutional because it would impose equal criminalliability for both negligent and intentional acts. In May, anessay by well-known lawyer Clayton Ruby in the Globe and Mailtook a shotgun approach: "What's wrong with the new Bill?Plenty. " 244 In his essay, Ruby criticized the Bill'sevidentiary rules, arguing that the judge would beconsidering irrelevant factors in the decision onadmissibility of the complainant's sexual past. As well, hesuggested the changes to the mistake of fact defence wouldput innocent people in jail. He agreed that women should notbe subject to the kind and degree of sexual aggression thatthey are today but that more worthwhile attempts to affectattitudes could be made by other means.The Globe stated its position the same day that Ruby'sessay appeared in an editorial that took strong exception tothe Bill, arguing that it removed the presumption ofinnocence by placing the burden of proof in the criminaltrial on the accused. "Assault on the law, not to say common58sense" read the headline. 245The Vancouver Sun, on the other hand, took a postivestand: we have a good law; let's make it work. 246The Lawyers' Weekly contribution to the debate occurredthrough one of its regular columnists and a letter to theeditor, both of which were picked up on and referred to by REALWomen in the hearings. 247 Law professor Rob Martin in hisregular column, "Counterpoint," argued under the title"Proposed sex assault Bill an expression of feminist hatred"that seduction had become a crime and the Bill completelydistorted relations between men and women according to therepressive ideas of "bourgeois feminists," who he argued werecompletely opposed to sex of any kind, and who not only hatedmen's sexuality but also that of women. 248The letter to the editor was a "model form for consentto sexual intercourse" drafted in legal jargon borrowed fromcontract law, 249 which, on its own, might have been intendedto be tongue-in-cheek and humorous, but which appeared to betaken quite seriously by REAL Women. 25°Maclean's magazine treatment of the Bill was within thebroad context of male-female relations raised by threeAmerican cases that had received international attention:the Anita Hill-Clarence Thomas Senate hearings, the WilliamKennedy Smith trial and the Mike Tyson tria1. 251 It raisedthe spectre of false accusations and quoted a Toronto lawyerwho reported having defended 13 date rape cases in the last59year, and having lost only one. Extensive reference was madeto the ill effects of an accusation, let alone a conviction.The implication of the article was that if the men wereacquitted, they were innocent. It also quoted a men's rightsgroup, In Search of Justice, which said that the Bill wasunfair in its different treatment of men and women who drink.Time magazine, in a short news item titled, "Only a Yeswill do" reported that Canada's new rape-shield legislationwas accused by some of being guilty of abrogating thepresumption of innocence but that nevertheless the CBA hadsupported it. 252In summary, the press warmed to five aspects of thearguments:1) the crime control-due process angle which sawincreased protection for victims at the expense ofthe rights of the accused;2) the notion of myths permeating judicialdecisions in a way that ensured accused personswere acquitted;3) the "principles of criminal law" were beingbreached by the Bill,4) the message of "no means no," and5) how the Bill might affect sexual relationsbetween women and men who don't wish to be guiltyof assault.In addition, slurs on feminism and outrageouspredictions were reported and made. Colourful and concretelanguage tended to be reported. Messages that received littleattention were that more than victims' rights were involved.The reform was not generally presented as a measure to60establish or promote equality, although bias in the systemwas reported. Where increased vulnerability to stereotypingand sexual assault was noted, it was not from a point of viewof a group-based equality, but an individual-based equality.An almost unavoidable piece of rhetoric crept into thedebate, despite some apparent efforts to keep it out. 253 Thiswas the language of the "protection of women through thecriminal law." Properly speaking, the major parts of the Billdid not concern the crime of sexual assault, but the way inwhich it was processed through the courts. Even the changesin consent could be characterized as merely fixing someinappropriate interpretations by judges. However, althoughmost of the supporters of the Bill carefully specified itsimpact as first on the system, secondly on women themselvesand almost incidentally, on men who assault, it became animportant part of the rhetoric that the Bill actuallyprotected women from sexual assault, and thischaracterization strengthened perceptions of the Bill asbeing primarily concerned with reduction in the crime ofsexual assault.Obviously, control of crime was an important aspect ofthe Bill if it resulted in convictions being obtained whereacquittals once were granted. However, focussing on this once-removed goal rather than that of removing bias from thesystem ensured that crime control versus due process wasrepresented as the essential conflict in the debate, ratherthan the contradiction between two or more levels in ahierarchy.61CHAPTER THREE ANALYSIS OF THE OPPOSITION ARGUMENTSA. Contrary to NatureThe argument relating to the biological nature of menand women has seen its predecessors in every argument raisedagainst innovation in the law relating to sexual assault. 254It has often been the case that arguments relating to sexualassault have found support in what appears to be nature. Thiscan be seen in the idea that women do not tell the truth insexual matters, and therefore their testimony must becorroborated; in the idea that sexually promiscuous womenlie, and therefore they should not be believed; and even nodoubt, in the argument still raging in England and many partsof the United States, that it is a natural right of a husbandto demand sexual relations of his wife, hence it should notbe illega1. 255 Our tendency to re-create in a notion of naturethat which we have culturally and legally developed has beenfully explicated by several authors. 256 Nigel Walker calls itlegal naturalism. 257Thus, we cannot simply defer to that which appears tosome as natural. If, as well, for instance, as suggested bythe BCCLA, there are two different points of view on what isnatural and what is not natural, 258 why should law strike abalance between them? If it does, it would appear that lawfavours those who want to engage in sexual activities overthose who don't. It would seem preferable that the person whodoes not want sexual contact has his or her autonomypreserved. Clearly, where people are involved in a sexualrelationship, whether for years or minutes, this basic issue62can be worked out to the satisfaction of each, and the lawwill not be called upon to reinterpret what occurred betweenthem. Where consent is genuine it should endure.B. The Need for RestraintA need for restraint has been well-discussed in Canadianlaw reform efforts. It has been recommended as a principle bythe Ouimet Committee on Corrections, the Law ReformCommission of Canada, the Canadian Government, the DaubneyCommittee, and, as well, in relation to the use ofimprisonment, the Canadian Sentencing Commission. 259 Restraintis required to reserve the criminal law for serious harm, andto avoid undue stigmatization through a brush with criminallaw. However, efforts to keep people from contact with thecriminal justice system by decriminalization or diversionprograms have met with only qualified success. For example,Baranek and Ericson document that the net of social controlhas widened rather than contracted as a result of thesemeasures. 260However, in relation to this, two points must be made.First, fundamentally there has been no change in the law as aresult of the Bill. The offence of sexual assault has alwaysbeen, and remains, the application of force in a sexual waywithout the consent of the complainant. Although the degreeof definition of consent has increased, and, arguably, thelegal definition has changed slightly, consent either existsin the sexual encounter or it doesn't. This was the casebefore Bill C-49, and it will continue to be. 261 Section273.1(1) requiring voluntary agreement for consent does not63represent a change in the meaning of the word, as discussedearlier, 262 but, arguably, removes an ambiguity. Section273.1(2), providing instances where no consent is obtained,does not expand the application of the law. It merely setsout what should be common sense. Section 273.2, which narrowsthe mistake of fact defence, arguably does extend the lawthrough the requirement that before an accused can rely onhis belief in consent he will have had to take reasonablesteps to ascertain the complainant is consenting. He will notbe able to rely on a mistake which is a result of self-induced intoxication, recklessness or wilful blindness. 263What has changed is that more people may be convicted ofthe offence, 264 which raises the second point. Is harm towomen by sexual assault not properly among those offenceswhich should clearly fall within the criminal law? If adoctrine of restraint was to be imposed intelligibly, surelyit would require that offences which cause little or no harmshould be taken out of the scope of criminal law. These mightinclude the Criminal Code offences of interference withproperty where no damage is caused, nor person put out (s.430), causing a disturbance by singing or swearing, (s. 175),temporary deprivations of property now considered theft (s.322), communicating for the purposes of prostitution, (s.213) immoral theatre presentation(s, 167), possession anddealing with crime comics (s. 163), and possession ofmarihuana (s. 3 Narcotic Control Act.)64Those who argue for restraint in this way elevateintention as the criterion upon which to determinecriminality above that of harm, and, as will be discussedbelow, 265 surely such a priority should be determined in apolitical rather than a legal arena.A final, rather pessimistic note must be made about theneed for restraint. If a major purpose of the criminal law isto protect the public from harm, it seems self-defeating toemploy a policy that would see serious avoidable harm gounsanctioned in order to further the goal of restraint.Clearly, the law is supposed to persuade or deter people fromcommitting offences, and thus restraint might be achieved ifpeople obeyed the law. Should the law's failure to detercontrol the definition of harm? 266C. Purpose of the BillA major argument raised against Bill C-49 was that itsaim was not a valid purpose of the criminal law. The CLAOposited the historical purpose of criminal law as thereflection of the minimum standards of behavior of thecommunity and argued that it should not be used to raise thestandards of the community, or similarly as a tool foreducation. 267 This contention transcends the questions oflegal wording and structuring of law for more basicphilosophical and political questions. It disputes the notionof the supremacy of Parliament to enact criminal law inCanada, not on the basis of the Charter, but on distinctlymoral and distinctly political grounds.65There were two parts to this argument: one that thepurpose of the Bill was to educate the public about what isnot acceptable behavior in the sexual context. Against thisaim, the CLAO argued that the criminal law should not be usedto advance a social policy or lead social change. The otherline of argument saw the mens rea issue raised again,substituting purpose for principle: The real purpose ofcriminal law is only to punish blameworthy behavior. Behaviorcan only be blameworthy if it is the product of intention. Inso far as the Bill would make conduct criminal which was notintentional it exceeded the bounds of criminal law. Thesearguments are tied together because it was the change in themens rea requirements - the imposition of the reasonablesteps requirement and the vitiation of consent - thatamounted to the "lesson" provided in the amendment.The political ground related to the question ofconsensus. Although the CLAO, rather surprisingly, 268 statedinitially in its brief that one of the three broad aims ofcriminal law was to achieve "social justice through norms ofcriminal liability that sufficiently sanction impermissibleconduct and that provide redress and protection for victimsof criminal conduct, " 269 the CLAO complained that Bill C-49was seeking a higher measure of social justice than should beavailable through the criminal law. The social justiceenvisioned by CLAO must be limited to that contemplated bythe existing consensus. If enlightenment comes to part of thecommunity about a particular practice, it is not acceptablefor that part of the community to impose its belief on therest through this medium, even if all of the community is66affected by the actions of the unenlightened.The argument depends on a view of criminal law asrepresenting a consensus of values, rather than a tool forsocial control by some segments of society. The two conceptsare mutually exclusive. In fact, Robert Wakeman, inaddressing the committee, went to some length to deny that thelaw had ever repressed women as a distinct group. 270 Arguably,if criminal law had been a tool in, say, the hands of menused to further their interests against women, it would beperfectly consistent with past practices to hand control overto a new group, in this case, women. Perhaps this fear isbehind his reluctance to acknowledge the bias in the law.While the defence lawyers admitted of a "shiftingconsensus, 1,271 they saw no evidence of a broad agreement onwhat constitutes permissible sexual aggression and what doesnot. If, for example, it was clear that the public did nottolerate anyone interpreting "no" to mean "maybe" and "maybe"to mean "yes," only then would the law be within the properambit of the criminal law, in a political sense.The lawyers did not, but might have, looked to theempirical evidence supplied by women's groups to prove that,as of yet, there was no consensus. While many people,including the defence lawyers, might agree that "no" means"no," women's groups have frequently had to argue thatalthough it should, it doesn't. The high incidence of daterape, where "no" or nothing was interpreted as "maybe," and"maybe" as "yes," would indicate that many men would see67acceptable standards as much lower. In fact, some of thedefence lawyers indicated that they would not be apt toaccept anything but a very firm not as "no. " 272Feminist Catharine MacKinnon might be said to provide abasis for this argument. She says:In the criminal law we can't put everybody in jailwho does an ordinary act, right? Crime is supposedto be deviant, not normal... We also get many womenwho believe they have never been raped, although alot of force was involved. They mean that they werenot raped in a way that is legally provable. Inother words, in all these situation, there was notenough violence against them to take it beyond thecategory of "sex"; they were not coerced enough. 273In other words, drawing attention to the point made byDAWN, 274 if women don't know they have been sexuallyassaulted, how can men possibly be expected to know, and howcan we assert a consensus if the determination of consent isso difficult?That the argument was poorly received by the committeewas not surprising, given that the three parties allsupported the basic tenor of the Bill. Nevertheless, somemembers of the committee evinced concern for this accusation,and properly so, as, were it true, even if it did not renderthe Bill unconstitutional or illegal, it could contribute toan undermining of faith in the criminal justice system. Ifthe dominant ideology is that the criminal law system isbased on consensus (whether in fact it is) a situation wherethat consensus was violated might result in a weakening ofpower of criminal law. The lawyers made this point.68On the other hand, although no one totally agreed onwhat the precise purpose of the Bill was, whether equality,crime control, the preservation of society or the protectionof individual freedoms, it was probably the politicians whowere best able to judge the political support for the Bill,and thus, the political argument was unsuccessful.In the moral claim, the defence lawyers made two relatedpoints. They first argued that using criminal law to teach anew lesson was tantamount to making an example of those whohad not learned the lesson contained in the reform, for thebenefit of the rest of society, in essence, sacrificingcertain individuals for a social good. 275 They thus rejecteda utilitarian justification of criminal law that testslegitimacy by whether it maximizes happiness (or socialwelfare.) Their point is that the educational function ofcriminal law does not merely occur in the enactment oflegislation but at the point of sentencing. When consequencesare visited on a convicted person, it is then that thecriminal justice system makes its loudest claims, and this iswhere their second point came in. They used a metaphor toconvey it: Criminal law is too much a "blunt instrument" tobe used for education. 276The metaphor returns us to the utilitarian function ofcriminal law, but questions its effect. Criminal law iseither too imprecise--people who should not be brought withinits ambit, in fact, are--or it has needlessly heavyconsequences: It is better to be beheaded by a sharpinstrument than a blunt one. Whichever it is, however, themetaphor is intended to and should remind us that all that is69said about ideology and communication of messages must remainof secondary importance because the method of criminal law isundeniably, at least for now, punishment of uncertaineffectiveness. If this moral argument were successful, itwould be immoral to change the law, or to derive educationalvalue from it. However, that notwithstanding, are we stillready to use such uncertain means to make a new point aboutwhat is wrong and right?The answer, it is suggested, first has to do withwhether or not the point is new. Ralph Lindgren, 277 who arguesfor what he terms an objective theory of criminal liability,points out that traditional notions of voluntariness are notthe only viable criteria for determining blame. He says thatnot only should traditional notions be suspect for want ofproof, but the very idea of free will imported intovoluntariness is questionable. He advocates that a far fairertest is whether or not the behavior could have been avoidedby the person. In this, he challenges traditional liberalassumptions, that tend to privilege action and give it thebenefit of the doubt. By his analysis, blame can be imputedwhere an action was avoidable, and thus, the law still onlypunishes immoral behavior and the law is therefore justified.The question, then, becomes not whether it is immoral tosexually assault someone, but whether it is immoral to engagein sexual activity without ensuring that one has the consentof the other party.70It is tempting to note that the defence lawyers arecaught on the horns of a utilitarian dilemma: On the onehand, they reject utilitarianism as an acceptablejustification for criminal law, while, on the other, theyrely on it to dispute the efficacy of the measure.A curious thing about the debate, is that no one canascribe a purely utilitarian, ideological, egalitarian orretributive function to the Bill. Rather it has aspects ofall four, and thus is a political compromise between thosewho would have it perform particular functions. As NigelWalker278 and Jeanne Marsh 279 separately point out, this isan inescapable feature of the art of criminal law-making.Some would argue that it is the best approach to take todefinition of criminal law. For example, the authors ofCriminal Law in Canadian Society280 point out theimpossibility of a resolution of these diverse purposes andargue that by retaining multiple purposes we ensureflexibility which can meet the exigencies of real-lifeproblems. As Chaim Perelman points out, words with their manymeanings allow us the luxury of imperfection and fuzzy logicand the ability to adapt them as we see fit.281D. The process of development of the BillA point frequently made during the committee hearingswas that Bill C-49 had been developed in a unique way. Aspreviously detailed, women's groups had been involved inconsultations during which the initial parameters of the Billwere set. 282 It had been women's groups who had insisted thatthe Bill deal not only with evidence of past sexual conduct,but also consent and mistaken belief in consent, and who had71thus set the parameters of the reform. 283 In practical terms,the women had insisted that women's perspectives on sexualassault should be paramount in understanding and definingsexual assault and determining how it will be treated. Theyalso insisted that women's perspectives were not encompassedwithin either definition or treatment. They thus challengedthe basis upon which the Taw was founded.In more theoretical terms, the women's groups attackedthe abstract formulation of the offence of sexual assault andshowed that it contained a bias, which was reflected in thetreatment of sexual assault throughout the criminal justicesystem. That bias, they subsequently argued, existed not onlyin relation to gender but also in relation to culture andrace, ability, occupation, status and sexual preference. Thewomen's groups, with their diversity of members with first-hand experiences of sexual assault and of vulnerability toit, sought to invert the order of theory and practice and putthe practice first. 284The process was unique, then, in that the facts uponwhich the reform was based were drawn from women'sexperiences of sexual assault and their experiences with theprocessing of complaints. 285 Thus, while the reform did notmove the law from its existing framework, and the ways inwhich law generally reconstructs events and phenomena, itdid acknowledge the existence and importance of otherperspectives, and to some extent incorporate them. The resultwould be a more accurate naming of the problem.72That epistemology was a contentious issue in the debatewas clear: women's groups repeatedly referred back to therealities of women's lives. They referred to the prevalenceof sexual assault, the different ways it happens, and themanifold treatments received by diverse women in theprocessing of sexual assault complaints. 286 Equally importantwas how this knowledge was derived: from grass rootsconsensus building and through the group interactions ofthose affected. Thus, the explanation and meaning of thewomen's experiences was different, depending on whointerpreted it. In contrast, several groups offered theiraccount of how sexual activity occurs, as male-initiated; asrequiring "certain liberties" to create conditions forconsent. 287 Quite properly, 288 several groups raised therealities of prison for those convicted of sexual assault. 289However, as the exercise was directed not at actuallyreducing violence against women and children but at definingit, the latter was not accorded any great relevance.It was suggested, vehemently by some and more quietly byothers, that the degree of importance attached to thesubmissions and empirical data offered by women's groups wasimproper. 280 This should not be surprising, as many people arereluctant to acknowledge the existence of bias in eithersocial or legal structures. In addition, some who argued thatwomen's experiences should not be central to the issue wereevincing a preference for theory over practice, implying thattheory was devoid of such content. 29173Another important process question, referred to earlier,relates to the wisdom of women's groups seeking to lead thisreform, in that the reform occurs in law, and moreparticularly in criminal law. Several criticisms have beenmade against what might be called "legal activism" in lieu ofsocial activism. 292 It has been argued that the basicpolitical struggle is subverted through recourse to law andchannelled into legal discourse, which in effect reconstructsthe problem from a point of view already deeply embedded inthe law. The result may be only an illusion of progress.Legal scholar Judy Fudge is concerned that the apparentconsensus building and organizing benefits that can accruefrom legal activism, and apparently did here, aremisleading. 293However, an awareness of such possibilities wasreflected in the submissions to the committee and pressreporting. 294 Several groups were careful to ensure thattheir entire strategy did not depend on law reform and tomake it very clear that they had limited expectations of thelaw reform. 295 For instance, some indicated that reform inthe area of law needs also to include judicial education, andthat law reform was but one component of a multi-facetedapproach. 296The second concern relates specifically to the use ofcriminal law as a tool for social reform. Dutch legalscholars Chrisje Brants and Erna Kok point out that the useof criminal law by women seeking equality appearsparadoxical, in that criminal law represents one of the74strongest bastions of a sexist society. 297 A second concernarises about the failure of the criminal law to fulfill itsutilitarian goals. On the other hand, they point out theimmense ideological power of the system, and ask whether ornot it should be written off as unchangeable. In this debate,however, the question as far as the women's groups wereconcerned was not the improvement of the utilitarian value ofthe law, but more its symbolic implications. Given that thecriminal justice system exists, it seems worthwhile to ensurethat it reflects equality within its structure. Also, ifcriminal law dictates what is right and wrong in society, thefailure of the law to do so in regard to sexual assault wouldappear to discount sexual assault as a serious wrong.E. The Principles of Criminal Law1. Relation to the Charter guaranteesIn this part, I will consider more closely argumentsmade during the debate that Bill C-49 contravened the basicprinciples of criminal law. Generally derived from historicaland traditional notions of criminal law, these arguments weresometimes imported into the discussion on their own merit andsometimes through the avenues of s. 7 and 11 of the Charter.However, they all placed criminal law principles ahead ofother objectives or policies. Any new law would have toconform to the existing framework and criteria said tocomprise the principles of criminal law. The obvious effectof these arguments, if successful, would be to constrainParliament's ability to pass criminal laws. I will refer tothese arguments as the primacy arguments.75Before setting out the primacy arguments, it isnecessary to say something of their relationship withCharter-based arguments, for they are very similar, and oftenidentical. My approach to the primacy arguments will be todiscuss them as containing normative principles in their ownright, not as dependent upon the Charter, though to asignificant degree they influence and are influenced byinterpretations of Charter rights. My analysis, then, willnot be of constitutional or criminal legal reasoning, but ofthe arguments themselves. I suggest that such an approach isjustified and even valuable because of the contribution thatcan thus be made to Charter interpretations. Although it hasbeen cogently argued that the general principles of criminallaw have been, or are being, "constitutionalized, "298 I willtake it as my starting point that neither the process ofconstitutionalization or the extent to which existingprinciples appear as entrenched are fixed or inevitable. 299Setting the stage for them, the CLAO took issue with theuse in the preamble of Bill C-49 of the word "unique" todescribe the offence of sexual assault. 3m It argued that theword was used improperly in order to justify thecircumvention of the principles of criminal law. If it couldbe established that sexual assault was in fact different fromother crimes, the principles of criminal law might besuspended in so far as sexual assault was concerned.Two major principles of criminal law were said to bebreached by Bill C-49:76a) The accused is presumed innocent until proven guiltybeyond a reasonable doubt.b) Every criminal act must be comprised of an actus reusaccompanied by a mens rea.Each was formulated in several different ways.2. The presumption of innocence.The presumption of innocence underlies present-daycriminal procedure at common law and is enshrined in s. 11(d)of the Charter. As a presumption, it provides the basis forcriminal process and sets out the requirements forconviction. By common law, the onus is on the Crown toremove the presumption by adducing proof of guilt beyond areasonable doubt. Related, but not equivalent to thepresumption, is the value of fairness: it is not fair toconvict or punish the innocent. The presumption is the meansby which the value is given force and effect.However, as will be argued below, the presumption ofinnocence as presented in the primacy argument wasconsidered not as a means to an end, but was reified into aprinciple of law and fact, in and of itself, and has come tosubstitute for the value of fairness which it represents.Arguments based on this principle were made in severaldifferent ways:a. The presumption of innocence is negated if trials arenot fair. A trial is fair only when all the evidencewhich relates to the matter is placed before the trierof fact. With the enactment of Bill C-49, evidence whichis probative to the issues in the trial could beexcluded by the evidentiary restrictions. Thus, trialsmay no longer be fair and the presumption that anaccused is innocent is, in effect, negated. Thepossibility then arises that innocent people will be77convicted.b. The presumption of innocence is negated if innocentpeople are convicted. Conduct which is not blameworthyis innocent. A person is not blameworthy if he engagesin sexual activity believing that despite someexpression, by words or conduct, of a lack of agreementon the part of the complainant to engage in theactivity," there is consent when her conduct isconsidered overall. However, courts will be required tofind that there was no consent in cases where thecomplainant "expresses, by words or conduct, a lack ofagreement to engage in the activity." Thus, despitebeing innocent, a person may be convicted.c. The presumption of innocence is negated if theburden of proof shifts to the accused. Under the Bill,it will be up to an accused to prove his innocence if heis relying on a mistaken belief in consent. The shift inthe burden of proof means that the Crown is not requiredto prove guilt to the requisite criminal law standard.The first claim was made by well-known lawyer and authorClayton Ruby in an essay in the Globe and Mai/. 3°1 Hesuggested that the new evidentiary provisions would work tokeep evidence out of a trial that could legitimately resultin an acquittal of the accused. This would mean that innocentpeople could nevertheless be convicted. While he agreed thatevidence of past sexual conduct should not be consideredrelevant to issues of consent or credibility, he said thatthe decision whether such evidence should be admissible onanother point was required to be made in a "biased way." Hesaid, "The new proposals require the decision to be made uponsome factors that are totally irrelevant." 302The factors Ruby refers to are the policy objectives ofthe legislation that the judge is obliged to take intoaccount: the encouragement of reporting of sexual assault,and the protection of the privacy and dignity ofcomplainants. He suggests that such objectives do not belong78in an assessment of whether or not evidence should beadmitted. He notes that reporting of sexual assault, privacyand dignity will always be at issue when the admission ofpast sexual conduct evidence is sought. "How then," he asks,"can they be used to exclude otherwise relevant evidence?" 303Ruby's approach is categorical: he suggests thatevidence is either plainly relevant or not. "But evidence iseither important to show innocence or it is not." He does notdeal with evidence of "tenuous weight" and appears to implythat there is no such thing. A sliding scale of probativevalue is not part of his conception of evidence.A second problem is his conclusion that judges willnever exercise their discretion to admit evidence as a resultof the reporting, privacy and dignity concerns. In the past,judges have shown little reluctance to exercise discretion infavour of accused persons in matters of sexual assault. 304The most critical problem, however, arises from his useof the word "innocence." It is rare that evidence would be soclear as to actually show something more than not guilty.However, Ruby takes advantage of the presumption of innocenceto convert not guilty to innocent and thus increase theappeal of his argument.One might suggest that Ruby has taken his argument toits most extreme application on all three points: 1) theevidence is indisputably relevant, 2) the evidenceestablishes innocence, (Ruby's word: "shows" innocence) and793) it is automatically excluded on account of reporting,privacy and dignity concerns. Only by taking all three totheir limit does the law requiring a judge to consider policyobjectives appear to allow for a wrongful conviction. It isonly at the extremes on all three points that his argumentmight have any appeal or persuasive power. 305The second way in which the presumption of innocence wasraised appeared in the same article by Ruby. In this case, heargued that men who were nevertheless innocent would be foundguilty by virtue of s. 273.1(2)(d) which states:No consent is obtained for the purposes of sections 271,272 and 273, where(d) the complainant expresses, by words or conduct,a lack of agreement to engage in the activity.In his argument, however, Ruby rewrote the law in what mayappear to be minor measure. He quoted it as "any expressionof a lack of agreement" several times and the substitution isnecessary for his argument. He suggested that the jury wouldbe absolutely precluded from considering whether there wasconsent or not where there is an iota of evidence thatactually said "no." Presumably, he was suggesting a situationwhere a woman sends mixed signals for reasons other than fearor inordinate pressure.On the one hand, one might be tempted to argue thatthere in nothing in the Bill that precludes the jury or judgefrom looking at all the evidence when determining if thecomplainant expressed "a lack of agreement to engage in theactivity." If this is the case, his premise is faulty.80However, this answer is far from satisfactory as itleads to the suggestion that the trier of fact is allowed tolook past "no" for other evidence of consent. For instance,if that were the interpretation of s. 273.1(2)(d), were theLetendre case to be decided under Bill C-49, the trial judgemight well say that despite the words "no," there was enoughconduct on the part of the complainant from which the accusedor even the trial judge could infer consent. Not only did shenot resist, she assisted the accused in removing herclothing. 306A better explanation, and one that conforms with thepolicy objectives of the legislation, is that the Bill hasredefined a "mistake of fact" to be something closer to amistake of law. 307 The man, in either Ruby's case or aLetendre case, needs to know two things: one, that where a"lack of agreement is expressed" that the law will considerthat no consent was given, and secondly, that if henevertheless believes he may have consent, he must take"reasonable steps" to be sure that he does. If he knowsneither and does neither, he is convicted, not because hemade a mistake but because he did not know the law (andbecause he sexually assaulted someone.)A premise of Ruby's argument must be, of course, that aperson who did not intend to break the law is innocent, andhere Ruby depends on quite a different notion of innocencefrom the first formulation. In the first argument, the man isinnocent because the proof against him is faulty. In otherwords, it is a legal conception. In the second, the man is81innocent because he did not mean to break the law. Here,innocence is a factual conception. This establishes theflexibility of the concept of innocence. One might wish toargue that a truly innocent man is hardly likely to have sexwith someone against their will, and would endeavour toensure that there was consent. The Bill requires much less,only that reasonable steps be taken.Given the flexibility of the notion of innocence, itwould appear paradoxical, at the very least, to rigidly applythe principle. This shows that in espousing the generalprinciple that a person is innocent until proven guilty, onecan take advantage of the commonplace "innocent" and use theprinciple to sidestep the real questions. In this case, theseare whether it is fair to ever suppress evidence, 308 andwhether a person who ignores a refusal by a person with whomhe wants to engage in sexual activity should always beconvicted.Before leaving Ruby's essay, it is worth noting somefeatures of the style of his argument. His article startedwith the candid admission that in "the bad old days, when[he] began practicing law" it was hard for a lawyer to lose arape case. The necessary technique for "winning," was simplyto attack the complainant on her past sexual conduct. Sexualpromiscuity meant jury disapproval of her, which in turnmeant an aquittal. By stating his disapproval of oldpractices, Ruby asserts common values with the legislation,and narrows the purpose of the Bill to concerns about theimpact of sexual promiscuity, when, in fact, it attacks a82good many more assumptions than simply that. Because heapparently shares the values of the legislation, through hisdeclaration and implied confession that he, too, tookadvantage of sexist stereotypes as a young lawyer, he isfreer to attack the proposal because no one can distrust hismotives. 309 Similarly, with a much narrower conception ofwhat the Bill is trying to achieve, his conclusion that meansother than the criminal law should be used to reach the sameend seems more reasonable.In sum, Ruby's technique was to take advantage of theapparent value in "innocence" and to use it to re-argue thebasic questions that had either been canvassed in Seaboyer orin the debate. However, here they were clothed with theauthority of being fundamental and therefore primary. Shadesof grey were converted into black and white, as "proof" wasaccorded only qualitative content rather than quantitative.He reasoned by extreme example, though not quite reductio adabsurdem, and removed the discussion of values from theargument.The "shifting burden of proof" argument was raised by aneditor in the Globe and Mail on the same day that Ruby'sessay appeared, May 19, 1992. 310 Under the headline, "Anassault on the law, not to say common sense," the editorargued that the Bill contravened the "foundation stone" ofcriminal law. Addressing s. 273.1 and s. 273.2, he or shecited the stipulation that "it is no defence 'that theaccused believed the complainant consented where...the8384accused did not take all reasonable steps, in thecircumstances known to the accused at the time, to ascertainthat the complainant was consenting.'" This means, the editorargued, that the law says: "no means no, maybe might mean no,and failure on the part of the women[sic] to say anything, orthe man to ask, could well mean no." This, the editor complains,would "leave little room for that most ambiguous of humanacts: seduction. Not to mention such procedural niceties asthe presumption of innocence."The "foundation stone," asserted the editor, is that theCrown must "prove that the accused had a `guilty mind' -that he knew what he was doing was wrong." (While it is notentirely clear whether the Globe is touting the burden ofproof or the quality of the mental element as the "foundationstone," it would appear that it is a shifting burden of proofthat is under attack.) The editorial stated that it is a"reverse onus" requirement and that it may well violatesections 7 and 11 of the Charter.This argument did not form part of any submissions tothe committee, nor did it appear elsewhere in print. It waseffectively rebutted in a letter from the Minister thefollowing week. Most commentators acknowledged that the"reasonable steps" requirement, whatever else it did, did notalter the procedural requirements that the Crown prove thecase . 311Although the editor may be forgiven for confusing anonus to act (i.e. ask if he has consent) with an onus toprove, the editor's apparent dislike for the provisions isremarkable in and of itself and provides an example of thepersuasive power of the primacy arguments. The editorial isalso interesting for its striking use of a metaphor commonlyused in criminal law. The author personifies criminal law:its "body" is "assaulted" by the Bill. As a rhetorical andideological device, it has a strong conceptual effect on theway in which criminal law is conceived, intensified by theaddition of a human element. It is quite literally fleshedout. By employing this technique, the author takes advantageof several unproven assumptions, which, it will be arguedlater, should have been considered: first, the author posits,without having to argue it or even admit of itscontentiousness, that criminal law is concrete; therefore itmust have finite dimensions and boundaries; if it is a body,it must be internally unified; and finally, because it ishuman, it matters what happens to it, independent of our usefor it. Its autonomous existence separates it from itsfunction, whether instrumental or ideological, and requiresfor it unmitigated consideration. Criminal law becomes apriori society's need for it.3. The meaning of the presumption of innocenceNot only are the words in this maxim indeterminate, sotoo is the phrase itself. As the presumption of innocence hasbeen enshrined as a legal right in s. 11(d) of the Charter,there is little point in arguing it does not exist. However,its meaning is not so uncontroverted as one might think, itspedigree as ancient, nor its status as secure.85C. K. Allen pointed out in 1931 that the presumption ofinnocence was a relatively recent addition to criminallaw. 312 It did not appear as a principle of any sort beforethe 19th century. When it was declared in R. v. Hobson, 313 itwas more of a platitude than a presumption: "It is a maxim ofEnglish law that ten guilty men should escape rather thanthat one innocent man should suffer." And this came at a timewhen accused persons were at a tremendous disadvantage inmatters of evidence and procedure and very likely to be foundguilty. It was not until the end of the 19th century thataccused persons could testify on their own behalf, callwitnesses to be sworn, or be represented by counsel in felonycases. 314 Thus, the backdrop against which the presumptionemerged was of innocent persons having no opportunitywhatsoever to challenge the prosecutors' case or present acase. Without a presumption of innocence, an accusation alonecould suffice to establish guilt, and frequently did.Allan suggests that there exists a notion that thepresumption of innocence was one of the remarkable featuresof English criminal procedure that distinguished it fromFrench procedure, 315 and thus one might suspect thatpatriotism or chauvinism played some role in the elevation ofthis rule of procedure to the rarefied heights of a principleof law. He points out, however, that neither the Englishaccusatory system nor the French inquisitorial systemcontains any actual presumption of guilt. 316 According toAllen, the difference between the systems, as far as itrelates to the presumption of innocence, is that in the86English system, there must be a prima facie case for theprosecution to proceed, whereas in the French system, thereneed be only a suspicion of guilt. 317 The presumption thusstood for the threshold for prosecution, rather than even aprocedural rule. Nevertheless, if English judges pridedthemselves on the fairness and justice of their systemcompared to the French system, they may have developed therhetoric of the presumption of innocence as a way in which todescribe what they saw as the difference in fairness andjustice between the two.Viscount Sankey in the seminal case, Woolmington v.D.P.P. 318 developed the jurisprudence in relation to thepresumption further. He held that the purpose of the ruleconcerned the proper relationship of the judge to the jury ina criminal trial:If at any period of a trial it was permissible for thejudge to rule that the prosecution had established itscase and that the onus was shifted on the prisoner toprove that he was not guilty and that unless hedischarged that onus the prosecution was entitled tosucceed, it would be enabling the judge in such a caseto say that the jury must in law find the prisonerguilty and so make the judge decide the case and not thejury, which is not the common law. 319Thus, the presumption existed to prevent judges from usurpingthe role of the jury. It finally became a rule of procedurethat required the Crown to prove the case. Herbert Packer 32°gives the example of a person who in front of many witnessesshoots and kills another. Notwithstanding a straightforwardcase in which one may fairly safely predict that the shooterwill be found guilty, she will have the benefit of the87presumption of innocence at her trial: the onus will still beon the prosecution to prove the case beyond a reasonabledoubt. Packer thus says that the presumption of innocence isa procedural rule which directs officials as to how they mustproceed against an accused and is not at all a statementabout the de facto guilt or innocence of the accused. 321It is worth noting that notwithstanding the developmentof the presumption of innocence, it was not incumbent on theprosecution at English common law to disprove any statutoryexceptions or exemptions that might apply in the accused'sfavour in trial by indictment. 322 Despite the obvious problemsof distinguishing between what is an ingredient of an offenceand what is an exception, a similar provision was held not toviolate the Charter guarantee to the presumption of innocenceas recently as 1985 in Canada. 323However, in more recent times, the presumption appearsto have been accorded more substantive content. No longermerely a direction to officials as to how to proceed, thepresumption has acquired a connotation of factual innocencefor the accused in R. v. Oakes. 324 In that case, Chief JusticeDickson said:[The presumption of innocence] ensures that until thestate proves an accused's guilt beyond all reasonabledoubt, he or she is innocent. The presumption ofinnocence confirms our faith in humankind; it reflectsour belief that individuals are decent and law-abidingmembers of the community until proven otherwise. 325Thus, until the determination of guilt is made, thepresumption of innocence is not only a proceduralrequirement, but a substantive evaluation on the innocence of88the accused. This, I would suggest, goes far beyond theordinary understanding of the point and meaning of thepresumption of innocence. It transforms the jury's choice ofverdict from a finding of guilty or not guilty, to a findingof guilty or innocent, regardless of the reason for theacquittal.This interpretation, arguably, presents us with anunnecessary dichotomization of the result of a trial, whichremoves the trial process yet another step from the realworld. While there may be cases wherein a jury believes anaccused to be innocent, and hence finds him or her notguilty, there are probably just as many in which the jurysimply is not sure whether the accused is innocent or guilty,and the doubt is resolved in favour of the accused.However, whether or not one agrees with theinterpretation 326 of Dickson J., this establishes that themeaning of the presumption of innocence is not fixed butevolving, and is best described as indeterminate.Returning to the value of fairness represented by themaxim is more productive. The question remains simply whetheror not the Bill will allow for a fair trial. Against thefirst formulation, the question becomes whether anysuppression of evidence can be fair, and against the second,whether a person should be entitled to ignore a refusal, oralternatively, whether a defence based on mistake of lawshould be allowed. With respect to the first, it is preciselythis question that led to the decision in Seaboyer, and hence89to the Bill. With respect to the second, the question mustobviously be answered by reference to policy rather thanlegal considerations.4. Every criminal act must be comprised of an actus reus andaccompanied by a mens rea.A second fundamental principle of criminal law said tobe breached by the provisions of the Bill states that everycriminal act must usually be comprised of an actus reusaccompanied by a mens rea. 327 It is standard criminal lawtheory that in order to impose criminal liability on aperson, the court must find that the requisite mens reaaccompanied the actus reus of the offence. However, themeanings of each of the components of this maxim,particularly mens rea, are very controversia1, 328 and thedispute over its meaning was played out in the debate.The argument relating to the existence of mens rea wasformulated in two distinct ways, each with a variation. Theywere:1. No one should be liable for conduct that was notblameworthy, or for which a person was not at fault. Tobe blameworthy, an act must be committed voluntarily.The test for voluntariness must be subjective: did theaccused intend to do what he did? The requirement thatan accused take "reasonable steps" to ensure he hasconsent imports an objective test into a determinationof mens rea because what is reasonable will bedetermined not from the accused's point of view, butfrom that of a third person, although it will be limitedby reference to the "circumstances known to the accusedat the time." Thus, the Bill may result in people whoare merely negligent being convicted of criminaloffences.2. A variation of the first formulation is thatnegligence can constitute the mens rea of an offence,but where such a mens rea is contemplated, the offenceis not a "true crime" and should be accorded less90stigma and penalty by separate offence definition, inaccordance with its lesser culpability.3. Criminal liability must not be imposed for offenceswhich require no mens rea, or absolute liability. If aperson is so drunk as to be unable to form the intent tocommit sexual assault, or the acts comprising sexualassault, then he cannot be said to have the mens rea ofthe offence. Removing the defence of mistake of factwhen it is caused by extreme drunkenness imposes absoluteliability on people who are very drunk.4. A variation on the third formulation was that if themens rea of the offence is found in the intention todrink, then the mens rea does not accompany or actuatethe actus reus.The first claim was made by several groups. Speaking forthe CLAO, Marlys Edwardh, appearing in front of thecommittee, said:All criminal conduct today focusses on the question ofwhat the mens rea of the crime is. True crimes requirea subjective understanding of ones' conduct and thecircumstances.[Emphasis added.] 329The CLAO thus argued that the mens rea for an act to becriminal must be subjective. She argued that the Bill "bringsnegligence into criminal law" and, in so doing, shows a"marked departure from fundamental and traditionalprinciples." 330 She was joined in this by the CCLA and DonStuart. 331 Stuart, although adopting the second variant ofthis argument, agreed, along with the CCLA, that it would bean "extension of criminal law." 332 The new definition ofconsent, or better, non-consent, and the restriction on theuse of the defence of mistaken belief in consent wouldrequire people to conduct themselves in accordance withobjectively determined standards. Thus, people who may nothave been subjectively aware of the actions or circumstanceswhich rendered them criminal could nevertheless be convicted91of criminal offences and punished. These people, because theywere not subjectively aware, according to the CLAO, would notbe at fault or blameworthy.A first objection to this argument must be based on theimprecision in meaning of "fault" and "blameworthiness." Likeinnocence, 333 these words are commonplaces; they can also beeither factual or legal constructs. Even though an accusedmay assert, "It is not my fault," his opinion is rarelydeterminative of the matter. It will be a judge who decidesas a matter of law, not fact, whether there is fault or not.The legal notions of general and specific intent haveassisted the judge in the past in deciding whether or notthere was fault. Although there may have been a time when thebasic issue of judgment was whether or not a person couldhave avoided the criminal conduct, the present level ofinquiry is once removed. More often than not, the judge doesnot address herself to "was there fault?" but rather, "wasthere the requisite intent?" "Blame" and "fault", then, canbe said to be a matter of law, not fact.The basis of the rule requiring subjective mens rea,fault or blameworthiness is said to lie in the constitutionof our system as one which is morally based. 334 Thus, blame isposited as a matter of the morality of the subject, which canonly be determined by looking at what the person actuallyknew or intended, or was reckless about. Many currenttheories insist that one is only to blame for actions thatone intended to do, was reckless about, or at most, wilfullyblind. 335 Similarly, they insist that simply failing to take92care is not immoral, if one did not appreciate or foresee therisk. To hold a person responsible in such circumstances isto punish the innocent. However, this relationship betweensubjectivity, morality and blame is not obvious orcompelling.In contrast, it has been argued that where a risk ofgreat harm exists, there is a moral duty to pay attention tothe risk. For example, Ralph Lindgren 336 argues that there isa positive duty to avoid questionable conduct, and as long asthis duty is adhered to, there will be no liability. Assuggested earlier, the law on sexual assault which forbidssexual force without consent would be more accuratelydescribed as forbidding sexual contact without consent orwithout taking reasonable steps to ensure consent. Lindgrenreplaces the problematic subjective-objective dichotomy witha question that cuts to the heart of the matter: could thebehavior have been avoided? Whether this should be the testis not a legal question, but a political one: to what extentshould the state impose duties to take care? Those who wishto maximize freedom may believe that reasonable steps are anunacceptable requirement, or, if they value the freedom ofwomen and children and others affected by sexual assault,they may decide that it is not too big a price to pay.This raises the question of whether blameworthinessshould or can be characterized the same in all offences, andwhether the distinction between subjective and objectivestandards assists in a determination of blameworthiness.93Instructive on the point is the response of the CBA to therequirement of having to take "reasonable steps." 337 Althoughthe word reasonable imports by definition an objectivestandard and requires an accused to be able to discern whatis reasonable, it retains a strong subjective element in thatreference must be had to the circumstances known to theaccused at the time. The test is neither completelyobjective, nor completely subjective. 338The significance of the notion of blame fades furtherwhen one considers what is entailed in the reasonable stepsrequirement. Women's groups argued that it was not verycomplicated. As Sheila McIntyre of LEAF put it, "if you'renot sure, ask; if you're still not sure, don't." Against thissimple requirement, it seems that failing to take such a stepcould indeed be blameworthy. On the other hand, if a personbelieved he had consent, when in fact he did not, andtherefore takes no steps, he too would be found guilty. Hisblame in fact, as opposed to law, must then lie in what gaverise to his belief. 339The second formulation of the principle was no lesscategorical, but allowed a place for negligence in criminallaw. In an essay34° appearing in the Globe and Mail after theBill passed first reading, law professor Alan Brudner arguedthat the requirement that an accused must have taken "allreasonable steps, in the circumstances known to the accusedat the time, to ascertain that the complainant wasconsenting" probably violated the Charter. Brudner arguedthat where an offence could be committed with a mental state94characterized as negligent, that that offence should bedistinguished from one of intention by separately definedoffences for which there would be different maximumpenalties. Adopting the language of Dickson J. in R. v. SaultSte. Marie, 341 he asserted that only intentional acts were"true crimes" whereas negligent offences were "public welfareoffences." Negligent sexual assault should have asignificantly lower penalty and less stigma attached to it.Although a judge might well take the degree of intent intoconsideration on sentencing, Brudner warned, "we cannotleave something demanded by a principle of justice to thediscretion of a judge. " 342A similar argument was made by law professor Don Stuartto the committee. 343 Unlike Brudner, Stuart did not arguethat "negligent" sexual assault is not a real crime, onlythat it is less culpable.The rationale for the rule, according to Brudner andStuart, was subsumed in yet another principle of criminallaw, that of proportionality, which requires a properrelation between the degree of blameworthiness and the stigmaand penalty associated with the offence. Committing sexualassault on purpose was far more culpable than committing itthrough carelessness. Both therefore argued for thebifurcation of sexual assault.The argument is based on decisions of the Supreme Courtof Canada dealing with various Criminal Code offences inwhich homicide was deemed to be murder even though there was95no intention to cause death. 344 In each of these decisions,the Code provision was held to be unconstitutional on thebasis of s. 7 of the Charter. The ratio for each decision wassimilar: the principles of fundamental justice require thatunintentional homicide be treated differently thanintentional homicide because of the great stigma and penaltyattached to intentional homicide. Brudner quoted fromMartineau:"[it is] a fundamental principle of a morally basedsystem of law that those causing harm intentionally bepunished more severely than those causing harmunintentionally." 345The first response to the argument is similar to the oneagainst the preceding formulation, although here it is aquestion of degree of culpability. While the characterizationof sexual assault as being committed negligently as opposedto intentionally is one that is familiar in law, is itreflective of the harm and reality of sexual assault? 346If our theory of criminal liability rests on blamerather than harm, we arrive at a situation where a trivialharm produced intentionally should be treated as more seriousthan a momentous harm produced "carelessly," and this mayhave concerned at least two of the debate participants, DonStuart and the CCLA. Both argued that sexual assault whichincludes intercourse, formerly rape, 347 should be defined andtreated separately than other sexual assaults, and thus,perhaps, they hope that degree of harm will not be completelyleft out of the equation. What both have failed to consideris that from the perspectives of victims this may be a96distinction not worth making. 348Secondly, one might distinguish the constructive murdercases from constructive sexual assault on the basis that inthe former there is a minimum penalty. 349 Assuming differentdegrees of legally determined fault or blame can be attachedto the same conduct, while it may follow that they should bepunished differently, it does not follow that each level ofblame should constitute its own offence with its own distinctmaximum sentence. 35° To argue otherwise is to confusemaximums with minimums.Somewhat less obvious is the complaint about stigma.Stuart emphasized that it was not fair to have the samestigma apply to "negligent sexual assault" as to "intentionalsexual assault." Stigma, which is extremely strong in casesof sexual assault, flows as much from the offence definitionas the penalty. Without doubt there is a great deal of truthin his contention. Although a heavier penalty may well beintended to attach a greater stigma in one instance overanother, in matters of sexual assault rarely does one get toconsiderations of penalty. The offence stands on its own asheinous. Nevertheless, there are several reasons why the samestigma should attach to both intentional and negligent sexualassault.First, one might argue that if there is such a thing asnegligent sexual assault, it contains its own peculiar harm:that is, the social injury of being so careless of one'ssexual partners that one could negligently assault them. 35197Second, there may be a value in retaining one blanketoffence, in which case the basis for the negligence would bebrought out in the sentencing hearing. In order to obtain alower penalty the accused may have to explain hisstereotypical attitudes about women: "I assumed that sheconsented because she went up to my hotel room with me," or"We had a drink together," as opposed to being allowed toplead guilty to an offence of negligent sexual assault andnot have to deal with the source of his "negligence." Third,by retaining a similar stigma for both, the message of onebeing as serious as the other as far as the victim isconcerned is retained. Fourth, it would prevent "negligent"sexual assault from acquiring a status rather than a stigma.One can imagine that a completely different kind of reactionmight accrue to those who commit sexual assault negligently.Underlying this is the question of the purpose of thelegislation: if it is to get the justice system to takewomen's complaints more seriously, one must ask whether thatpurpose would be furthered by creation of an offence ofnegligent sexual assault. Similarly, if the purpose is toaffect our ideology in relation to women's sexual autonomyand even equality, how are they furthered by this argument?On the contrary, an offence of negligent sexual assault wouldlikely severely damage both.The third formulation relates primarily to the issue ofthe drunkenness of the accused. Section 273.2(a)(i) statesthat where mistaken belief in consent is raised as a defence,98it will not be allowed where the mistake arose as a result ofthe accused's self-induced intoxication. Stuart argued thatthis provision created, in effect, an offence of absoluteliability in cases where the accused is extremely drunk. 353Relying on obiter in Bernard, 354 Stuart argued that a personshould not be held responsible for his actions when he was sodrunk as to not have the capacity to appreciate his ownactions. To hold him responsible in such conditions wouldhold him responsible regardless of the voluntariness of hisactions and create an absolute liability offence.The CLAO argued this slightly differently, reflectingthe decisions wherein courts have found the requisite mensrea for drunk driving offences in the intention to drink. TheCLAO argued that the requisite nexus between mens rea andactus reus, is not then present. 355Both arguments assume certain temporal limits withinwhich a judge should be allowed to look at an accusedperson's conduct. The question is, why should it be confinedto the precise moment in which the assault occurs? Whicheverway this argument is put leads to the anomolous result that aperson who drinks so as to reach the extreme state ofdrunkenness contemplated in the Bernard obiter and thesearguments is protected from criminal liability whereas amildly drunk person is not. Surely the problem of drunkennessas a social problem, whether leading to deaths on the highwayor sexual assaults is a matter requiring careful.consideration. Surely it should not be a principle ofcriminal law, constitutionally or otherwise, that extremely99drunk people are free to break the law.5. The principle of harmMany authors suggest that it is a principle of criminallaw that it only sanction harmful or seriously harmfulbehavior. 356 The purpose of the criminal law to protectsociety, means, by implication, to protect it from harm.However, this has not always been a truth about criminal law.On the contrary, over the course of its evolution, one findsmany other justifications for it, ranging from revenuegeneration to keeping the peace. 357 However, the idea of harmprevention is now central in discussions about the purpose ofcriminal law, whether as motivating force, or after-the-factjustification. It is not universally accepted as a usefulconcept. 358The concept of harm did not form a significant part ofthe opposition arguments. One reference to it was in AlanBorovoy's comment that the Bill would criminalize the "stolenkiss." 359 This claim is obviously intended to beuncontroversial: only very odd people would complain aboutsuch a kiss. However, he is wrong to think he would findagreement necessarily. Some may see considerable harm in thisact: from the complainant's point of view, an unwelcome kissmay be a very unpleasant experience, depending on who theassailant is, the relationship she has with him, and the wayin which it is done. Not only is it a harm in itself, it mayhave harmful effects on her sense of personal safety andself-esteem. Who has the right to second guess her right topersonal and sexual autonomy? Secondly, a kiss may be100delivered in a threatening manner or in a context whichtogether with the kiss produces a threat, and may indicatemore to come. The kiss could be a message that her will andwishes are not important, and that disregard for her may notstop there.If however, no harm was caused by such a hypotheticalkiss, Borovoy's complaint is that it would nevertheless becriminal. 360 His criticism is true of many criminal offences.Although most discussions of criminal law in the last 20years provide that only "serious harm" should be consideredcriminal, no satisfactory theoretical methods have beendeveloped to determine its threshold. The only proposed meansshort of an argument of de minimus non curat lex 361 isthrough regard to the intention of the accused. 362 Thus, ifan accused intended to cause harm, causing the harm isserious and punishable, whereas if an accused did not sointend, then causing the harm is somehow less serious andeither not punished or less deserving of punishment. Thus, ifone intentionally commits a criminal offence, one isconvicted and punished regardless of the harm caused. If onemurdered a person who, dying and in great pain, requesteddeath, one would nevertheless be guilty of first degreemurder and be sentenced to life imprisonment withouteligibility for parole for 25 years. Similarly, if onetouches a person on the arm to advert them to a space in aline-up, one commits assault for which one may be heldcriminally liable. In short, we have no way in theory to dealwith the question of harm.101In fact, the answer has lain not in theory but inpractice. Selective enforcement, police and prosecutorialdiscretion and the non-reporting of offences are ways oflimiting prosecutions for non-serious harm. The way in whichsuch administrative decisions have determined harm in thepast has, of course, been criticized, especially in relationto sexual assault. 363The other side of the harm question was seen in thearguments put forth by several women's groups who argued the"gendered nature of harm" and those other participants whoargued the harm of fear of sexual assault. 364 Both of thesearguments extend the injury past the individual victim to thecollectivity who would identify with that victim. This raisesquestions about an upper limit of harm for which one may beheld responsible. If sexual assault is motivated by misogyny,does that not increase the harm intended?The third question about harm was raised by Don Stuartand the CCLA who, as noted above, 365 sought to have anoffence of rape separate from sexual assault so as not to"trivialize rape." This argument was not based on a principleof criminal law, so much as policy. It raises the issue ofwhose perspective should be used to define and determineharm, which relates to the issue of who is writing the lawreform. 366Many authors make the point that the concept of rape hasalways been considered from a man's point of view. 67 The102historic focus on penetration is considered by many to provethis. While it is true that penetration has its exacerbatingfeatures such as the possibility of pregnancy, and the riskof acquiring AIDS or other sexually transmitted diseases,some argue that from a woman's point of view it is notmeaningful to separate it from other forms of sexualassault. 368 The problem is not penetration per se, but thesimple fact of sexual aggression that denies women the rightto autonomy. In terms of the injury itself, it is quitepossible that a sexual assault will involve acts even moreinjurious, psychologically or physically, than vaginalpenetration.One might concede that historically, in English law, theconsequences of penetration have been far more serious thanthey are today. If the outcome of a sexual assault waspregnancy and an illegitimate child, the consequences forboth the woman and the child were very serious. The child wascalled a "bastard" and, even before its birth, was confinedto an inferior social and legal status. For the woman, socialcensure was far more likely to cling to her as to the manresponsible, and, in fact, would probably adhere to her longafter it faded from him. 369However, although it is generally women who haveexperienced the harm of sexual assault, it has not been womenwho have necessarily defined the harm. It has been men. Menhave said: there has been no injury, only a rape, 370 or theyhave said the harm lies in the danger of pregnancy ordisease, 371 not in her feeling of violation and the denial of103her autonomy. Consequently the legal categories which drawlines around different behaviors have reflected men's ideasabout what the harms have been.6. The principle of legalityThe principle of legality 372 stands for the propositionthat a person may not be convicted of conduct which did notcomprise an offence at law at the time it was committed. Acorollary is that a person should not be convicted of aprovision which is so vague or imprecise that it isimpossible to know what is forbidden by it. Both were arguedin the debate against the Bill. 373The CLAO relied on the principle to argue that the Billcould result in convictions of people for sexual actions evenwhere there was no question in fact but that consent had beengiven. This, it argued, could occur as a result of thedecision of the Supreme Court of Canada in R. v.Jobidon. 374 Inthat case, a death had been caused as a result of theapplication of force by the accused. The trial judge hadfound the facts to be that the deceased had consented to theapplication of force in a fight. The issue was whether onecould consent in law to force causing bodily harm. The Courtheld, notwithstanding s. 9 of the Code, 375 that at commonlaw, one could not consent to such force.The CLAO suggested that Jobidon would be incorporatedinto the interpretation of consent in matters of sexualassault. Because consent to sexual activity which results inbodily harm is not specifically abrogated in the Bill, the104CLAO argued that such an occurrence could be found criminaleven though not an offence proscribed by law. 376 However,clearly the problem lies not with the Bill, but in the use ofthe common law in Jobidon which, it has been argued, createsan offence at common law. 377The CLAO, CBA and CCLA378 relied on the corollary toargue that more precision was required in relation to themeaning of "all reasonable steps," and, as well, the level ofintoxication required to vitiate the consent of thevictim. 379 However, although the amendments to the Billremoved both references, and appeared to thereby solve theproblem, the interesting point is that it was not the offenceitself that was vague, but those provisions which controlthe use of defences. One is tempted to ask whether theprinciple was not being used in an overly legalistic way, toproduce greater latitude to those who have a tendency to havesexual relations with women who have not consented, or whoseek the outermost limits of legal behavior. It is one thingto clearly formulate an offence, and it is quite another torequire the same of defences.CHAPTER FOUR THE BASIS FOR THE PRIMACY ARGUMENTSA. The Paramountcy of Basic Principles of Criminal LawTo summarize, the arguments based on the principles ofcriminal law suggest their application either on their ownmerit, as moral requirements, or as legal requirementsthrough their constitutionalization in the Charter. However,as has been illustrated, the so-called general principles105appear fraught with ambiguity, as in the presumption ofinnocence, highly controversial, as in the interpretation ofmens rea, or lacking a means to become operational, as in theconcept of harm. Even the principle of legality createsconcern through its highly legalistic approach to exceptionsand excuse.This leads to the question of whether, indeed, it isappropriate to attribute to such maxims, adages, aphorismsand even truisms the dignity and power implicit in the word"principles." Is it accurate to call them principles and whatdoes that import?It has long been debated whether there is a deepstructure to criminal law which unifies it and provides itwith logic and rationality, hence principles. 380 Consideringthe growth and development of criminal law, the influence ofdifferent cultures on it, and the various politicalcompromises going into it, it would take an almost religiousbelief in law to expect one.However, several factors contribute to such a notion.Among them are, briefly, common law methodology, the tendencyto impose meaning on the world and to attribute to culturaland social developments the quality of being natural, and,finally, the parallel development of the project ofrecodification. In the following passage, I will consider howeach of these sources has contributed to the notion ofprinciples underlying criminal law, and pose some questionsas to the wisdom of accepting their tenets.1061. Common law methodologyThe critical features of common law legal method are thedoctrine of stare decisis and the use of inductive reasoning.Stare decisis has provided judges a time-efficientmethodology for solving problems in a relatively consistentand predictable manner through the development andapplication of "rules" distilled from previous decisions andapplied in present decisions.However, notwithstanding the conservatism of thedoctrine, courts have found ways to either avoid pastdecisions or advance new doctrines through the abstraction ofthe inductive reasoning process. Through abstraction,similarities are identified and differences removed, ormarginalized. 381 As similarities develop in this way, the lawis said to be revealed or glimpsed, and thus the perceptionof an underlying structure develops. The rhetoric ofprinciples and foundations furthers the effect. It is not abig step to transfer the methodology employed in theevolution of common law doctrines to the more immediateprocess of law-making through legislation.However, algorithms, or short-hand rules for determiningresults, should not be imbued with connotations of a deepstructure. Generalizations are not the equivalent ofessentializations, although they may be confused with oneanother. 382107That the method of common law reasoning is notapplicable to the development of legislation should appearobvious. The same requirement for predictability andconsistency is not necessary from legislation as from casedecisions. Legislation, by virtue of its entrenchment instatute form, is predictable and consistent. And, presumably,legislation does not need to rely on the notion of"uncovering" law for its legitimacy.In addition, there is no reason to assume that themethodolgy of generalization and abstraction is going toprovide anything of use in legislative form. On the contrary,it is important to recognize that the abstraction rendersdifferences invisible and unimportant. For instance, legalscholar Kathleen Lahey383 has analyzed how theoreticalabstraction in criminal law has allowed for the developmentof a dichotomy between actions occurring in the public andprivate spheres, with the result that violence within thehome was tolerated. And, as argued in the debate, theabstraction of gender neutral language in the definition ofsexual assault has allowed stereotypes and myths about womento subvert the purposes of laws on sexual assault. A majorthrust of the women's arguments was to make concrete theapplications of the provisions.Not only did there appear to be a major confusion in therespective law-making roles of the judiciary and thelegislature for some participants in the debate, there wasalso confusion about the difference between the role of crowncounsel in a criminal case and Parliament. 3841082. Naturalizing lawThe existential issue is whether or not there areprinciples of criminal law. This issue is more often than notneatly avoided by asking the descriptive question: what arethe principles of criminal law? 385 By searching for them,whether in past law or legal analysis, one's thinking isfirst of all organized to expect and anticipate not only theanswer but the form of the answer. Already, one has assumed aunifying basic structure common to the diverse offences,defences and procedures of criminal law, sometimes termed a"deep structure," and the question merely calls for theidentification of the rules or principles. 386 The "body" ofcriminal law appears before us, and we are inclined to searchwithin it for rationality. 387 Abstracting sufficiently allowsus to succeed. By taking a cosmological approach we have pre-determined that there is an answer. Arguably, this is thedirection in which the Charter's reference to principlessends us.Related to the tendency to expect rationality is thetendency to attribute to social customs and institutions thequality of being natura1. 388 As individuals join in thecultural evolution of their society at birth, socialstructures appear as inevitable and necessary. 389 They are notthe result of choice or accident, but part of a grand design.Law is no exception to this tendency. As we have soughtexplanations of nature, so too do we seek explanations oflaw.109Although divine plans are rarely offered now asexplanations of law, according to English scholar Lord Lloydof Hampstead, beliefs in natural law or, at the very least,natural law look-alikes are still strong. He says:Yet the idea of an overriding law expressing a highertruth and a higher justice than that embodied in man-made law is not easily extinguished. On the one handsome detect signs of this doctrine even among those whoreject it, as for instance, in the principle of utilityof Bentham. Lundstedt asserts that all schools ofjurisprudence (except his own) adopt the natural lawapproach, by admitting what he terms the "method ofjustice," whereby the law is developed according towhat is deemed objectively just in accordance with animaginary "material" law underlying the positive legalrules. 39uHe thus suggests that substituted for the idea that law isderived from god or nature is the idea that it has a sourcein an imaginary but nevertheless material framework. Crucialto the philosophy, is that this framework, whatever itssource, lies beyond the reach of positive legal rules, andhence supercedes the dictates of ordinary legislation. 391A comprehensive critique of the idealism inherent insuch a philosophy is beyond the scope of this paper. However,two things must be noted: one, to the extent that presentarrangements are idealized as natural or beyond our grasp,they are by this philosophy unchangeable, and, two, that thephilosophy is characterized by high levels of abstractionnecessary to formulate its absolutes, and thus contains theconditions for bias.Whether one espouses a view of criminal law as areflection of natural law or not, it is clear that embeddedwithin existing law are pre-emptive views on what is naturaland what is not. 392 For instance, it was argued against the110Bill that it is in the "nature" of men to be sexuallyaggressive, and the Bill would be interfering with the men's"biological imperative.". But apart from politicalimplications, which will be discussed below, can there be anyreason why law must necessarily correspond with prevalentviews of what is natural? 393 It might be said then that abasic thrust of the law reform in Bill C-49 was to declarenature irrelevant. Even if it were true that it were naturalfor men to assault women, the point of the law is to say theycan't do it anymore. 3945. RecodificationA related contribution to these arguments, and one whichdraws on many of these same sources is the particular legaldiscourse of recodification, which has been ongoing for wellover 100 years, not only in Canada, but in much of thewestern world. Recodification presents a vision of law ascoherent, rational and internally consistent. The thrust ofthe project is to provide a rationalized body of principlesthat control the interpretation and constitution of alloffences and defences. It creates a second level of theorythat controls how criminal law is done.The Canadian project, led by the Law Reform Commissionof Canada, was initially intended to do two things: torationalize criminal law and also to inquire into the socialand political goals and consequences of criminal law as itexisted. 395 Despite some initial efforts to draw the publicinto consultation, the Law Reform Commission of Canada111112eventually narrowed its consultation to those within thelegal, scholarly and justice community. 396 Ultimately too,despite some early recognition of problems in social valuesand the hierarchy of values reflected in the criminal law,the LRCC's work focussed only on the internal goals ofachieving clarity, consistency and rationality in the law. 397The combined effect of redefinition of goals and thelegal expertise of those involved in the project has been tomake the raw material of the work existing criminal law. Inthis respect, the Canadian experience has not been unusual.As American legal scholar George Fletcher has put it, thoughnot as a criticism, the tendency of most legal work towardscodification in the last 100 years has been a search forprinciples for the general part of the criminal law fromexisting law. 398 In other words, the normative aspects ofcriminal law theory are sought to be derived from itsdescriptive aspects. 399 Thus, the parameters for the inquirywere limited to problems that existed in the law and lawenforcement.In the quest for simplicity and rationality, the variousCanadian proposals have relied on broadly worded theoreticalprinciples to provide the basic structure according to whichlaw shall be done. Although there is some disagreement amongthe legal and scholarly communities on precisely what shouldbe entailed in codification, the notion that the rules of thegeneral part should be applied across the board to alloffences as principles seems to have been accepted. 400 Notableexceptions are Kathleen Lahey, J.W. Mohr, de Burca and Gardnerin England, and possibly Peter Low in the United States. 401Thus the existential issue has disappeared, and the only oneremaining is of appropriate description.Recodification is problematic, however, because eventhough it need not depend on the past, the divine or nature,the organizational matrix which it creates in turn demandsthat any addition or change to criminal law should furtherthe internal consistency 402 of it rather than destroy it. Itis the organizational structure that provides the externalframework and against which new law must be compared. Thatthere may have been a choice in how classifications wereinitially drawn is ignored in favour of categories already inplace, these, more often than not, derived historically.It is not merely that different groups of people mayexperience life in different ways and that their experiencesare no less valid and thus should be recognized in law,particularities of offences might call for differenttreatments, depending on whether the offence depends on anact, an omission, a circumstance or a result. To characterizea sexual assault as occurring "negligently, " 403 for example,does not comport with reality, but arises from the separationof the offence into discrete elements: an act and anomission. That we have only begun to canvas genderdifferences, let alone other differences, has been made clear.Conformity to a set of principles derived withoutconsideration of specifics may ultimately defeat theseprinciples. Although the argument that codification allows113for better critique of principles may be true in an academicsense, it hardly holds in a political or legislative sensebecause the categories of the matrix are already set. 4"It is instructive to note that in the recodificationproposals of the LRCC to date, sexual assault has not beendealt with. Because of its "special nature," it has been leftfor consideration "at a later date." 405 In other words, it hasalready been contemplated by the LRCC that sexual assault maynot fit the standard, though little has been made of itsomission. In fact, as stated earlier, the entire tenor of theprimacy arguments is that sexual assault must conform togeneral rules. The question then, is why should sexualassault be considered the exception? What is it about theoffence that precludes it from setting the example? 406B. The Roles of Consensus and PurposeThere are several political reasons why existingprinciples are an appropriate criterion upon which todetermine what new law should be: they should protect us fromtyranny, promote legitimacy and consistency of law, andprevent unexpected consequences. 407The basic opposition argument is an obvious one, butbears mention: it lies in the present systemic contradictionof crime control and due process. Suggested by HerbertPacker 408 these two concepts represent competing valuesystems that co-exist within criminal law. Criticized forrepresenting too narrow a conception of criminal law, 409 theynevertheless accurately reflect many people's ideas about it,114as was witnessed in the press reporting of the debate, andprobably also the success of Bill C-49 among conservatives.Efforts to move the debate out of a model of crime control-due process met with negligible success in the drafting ofthe legislation (that success being the reference to s. 15 ofthe Charter in the preamble) and also in the press, whoappeared to completely miss the point about equality. 410Not surprisingly, given the crime control mandate of thelegal system, due process arguments based on beliefs aboutthe claims of the state to impose penal sanctions figuredstrongly.It is agreed that to the extent that basic principlesaddress tyranny - and it is clear from history that theyhave411 - we should be reluctant to abandon them. Althoughprinciples do not "protect" us and can be abrogated, thatabrogation would signal sufficient political change thatpeople would at least be warned of the advance of tyranny. Itis all too easy for a government to pass "bad" laws. 412Placing external constraints on government by putting somethings beyond the competence of Parliament may assist inpreventing legislative abuses. This is clearly the aim of theCharter. However, an external framework by itself does notanswer the question of its control or content. Does it liewith the judges in the Supreme Court of Canada, or must theydefer, yet further, to our legacy of criminal law principles?Further, we cannot assume that we live without tyrannynow, that all are equally free and enjoy the same advantages115116under the law. Women's groups have demonstrated that women'sbodily integrity and sexual autonomy have not been treated asimportant by the system. There is no reason to assume thatwomen's sexual autonomy is an exceptional or isolatedcase. 413 Thus, the fear of tyranny must be accepted with caution.A second political justification for reliance on generalprinciples lies in the patina of legitimacy the criminaljustice system acquires through its mission of crime control,and which is extended to criminal law. Although some publicdissatisfaction may exist with the system, 414 it is our onlyacceptable means of contending with crises caused by certainharmful acts. Thus, it acquires legitimacy. To the extentthat general principles are identifiable with the institutionof criminal law they acquire a similar legitimacy. In fact,the arguments against the primacy arguments do not, for themost part, attack the notion that existing law is a relevantcriterion, only that the amendments do not comply with it.After all, if may well be that it is the legitimacy ofthe law, rather than actual law enforcement, 415 thatultimately commands obedience to law. However, legitimacy ischallenged by amendment, unless some social change requiresit. To amend law when there has been no social changeundermines the basis upon which the law was first founded.Similarly, if law reform is perceived as not legitimate,belief in the entire system may be undermined.However, "legitimacy" is a broad political concept, muchlike consensus. It is not generalized but specific. As peopleare affected differently by the criminal law system, theywill have differing views about the legitimacy of thecriminal law. It is just such a difference that has lead tothis debate. Much of the work of feminist authors and many ofthe outcomes of women's conferences on criminal law expresscomplete dissatisfaction with present arrangements. 416 If alaw is legitimate among only some groups who are affected byit, is it legitimate at all? The appeal to law, as it standsavoids these disquieting questions of criminal law.A practical but very important reason, finally, is thatcriminal law is but one piece in a "complex web ofbureaucratic structures. ,,417 Significant departures fromexisting norms may have unintended consequences on otherparts of the system. Several authorities cite the uncertaintyproduced by change as a reason to have new provisions comportwith old. Important as this may be, surely it is no more thana caution to proceed with care and in a considered fashion.These concerns are subsumed within the problem of havingthe present framework control reform. If existing law setsthe parameters of law reform, underlying issues of moralityand politics are not examined, and thus traditional valuesare carried forward. The primacy arguments implicitly claimthat the question of whether or not the Bill complies withcriminal law has no normative content and thus it ensuresthat traditional values, beliefs and norms are not subject todebate, or only marginally. The issue is identified as beingin the relation between the Bill and an abstract idea of whatcriminal law is, i.e. pure and unbiased. If existing law is117the only legitimate criterion upon which to assess anamendment, it is unlikely that double standards that haveapplied to women, especially in sexual matters, will ever beeradicated from the law.CONCLUSION AN ALTERNATIVE VIEW OF PRINCIPLESThe point has been made that rules or principles oftenstand for values. As illustrated in the arguments againstBill C-49, it is possible to prefer the rule to the value bytaking advantage of the indeterminacy and the multiplemeanings that a rule and its component words may have. Thevalue may be defeated by the rule that was meant to representit. Unduly legalistic interpretations of rules do just thatby removing the point of inquiry from the value to therule. 418Principles also pose a problem in that if they areindeed principles we expect that they should be generalizedto all offences. However, their source controls theirusefulness. If they have been developed in relation to onekind of offence, they may not apply to others for reasonsparticular to the way in which an offence is committed or forsocial policies that may call for different treatment.Attempts to find a fit may lead to distortion.The myriad of purposes and justifications that are partof our ideology of criminal law might suggest to us that adeep structure is unlikely to be found, 419 and efforts toimpose one may frustrate attempts to modify criminal law by118locking us into the present paradigm of crime control and dueprocess.The arguments based on the general principles ofcriminal law are closely related to recodification proposals:they share a common philosophy and are fueled by many of thesame theoretical arguments. The success or failure of theprimacy arguments may thus have an effect on therecodification process. If they are decided not to bedeterminative of the issues raised in Bill C-49, then thewisdom of entrenching similar rules in a general part to theCode must be called into question.The arguments used in the debate illustrate thepersuasive power of the invocation, not only to history andnature, but also to the very notion of principles. In thisthey share a common rhetorical appeal with recodification.They exploit our tendency to defer to authority and power.However, Bill C-49 has three lessons for law reformincluding recodification. Assuming the Bill attains amoderate success in achieving its results, its success maywell be attributable to the facts that the reformcomprehended in some measure the perspectives of women in thedefinition and prosecution of sexual assault cases, and thattheir perspective was only available through theirinvolvement and consultation. Only by moving the legalexperts to the side could the basic parameters of the law beaffected.119Secondly, the arguments mounted by the women's groupsrevealed the fundamental problem of abstraction withincriminal law. The arguments showed, and the Bill reflected,for instance, how it was necessary to combat the theoreticalconstruct of who might be the victim of an assault throughconcrete example, with the naming of women and children asparticular victims. It revealed that the generalized notionof who that might be was subject to stereotyping and myths,and that to the extent it was even based on a woman'sexperience, it did not reflect the broad spectrum ofdifferent women. It thus should cause considerable concernthat a major part of recodification is the entrenchment ofyet another level of theory, one that would contain nearimmutable categories and classifications of how criminalbehavior can occur.Thirdly, the Bill raises serious questions about ourbelief in the rule of law, and the equality that we aretaught to believe is implicit in it. Although the equalityargument met with mixed success the very fact that it wasraised so powerfully should require that equality be aconsideration of the recodification project. It suggests thatif generalization is necessary, its basis should perhaps bethe most vulnerable among us, the one who is least powerfulin society.In conclusion, the point must be made that there may benothing inherently wrong in postulating principles or astructure to criminal law, but that the purpose for doing itis crucial. If it provides us with a vocabulary with which to120communicate various ideas more easily, or provides a guide tohelp us comprehend a large body of rules, or if it is to helpus understand the rules themselves, then it may be useful. If,on the other hand, it is to accord an "essence" to somethingthat has no essence, then it is ill-conceived and counter-productive because it fools us about the nature of law itselfand creates unnecessary constraints on the use of criminallaw. Immunizing criminal law from change can hardly producejustice or fairness.Thus, it is worth considering that even if we do notaccord to the notion of "principles of fundamental justice"absolute authority (by divine inspiration or naturalexistence) the concept is still valuable as a goal. If weadopt a perspective that has been judicially sanctioned inReference Re: Section 94(2) of the Motor Vehicle Act420 thatthe "principles of fundamental justice" are neither carved instone nor awaiting revelation but are contingent uponcontext, we can retain "principles of fundamental justice" asreminders to care about notions of justice and fairness. Inthis way, the concept remains useful and responsive toevolving notions of justice and fairness.Using the law as a criterion upon which to evaluate theamendments may, however, have the opposite effect to the oneintended. Rather than exposing the weaknesses in theamendments, it expose the weaknesses in criminal law. We maydecide that the existing framework of criminal law requireschange. New moral, ethical, and political frameworks maysupply the answer not only to the problem of this Bill, but121also to an improved understanding or development of theframework of criminal law. For instance, if it is postulatedthat general principles of criminal law can defeat a measuresuch as Bill C-49, which promises only a very modestimprovement for women, then does it not also become a generalprinciple that criminal law cannot be used to protectanything but the status quo?122123FOOTNOTES1. An Act to amend the Criminal Code (sexual assault), S.C.1992, c. 38.2. Minutes of Proceedings and Evidence of the LegislativeCommittee on Bill C-49, Issue 7 (Ottawa: Queen's Printer,June 4, 1992.)3. Minutes of Proceedings and Evidence of the LegislativeCommittee on Bill C-49, Issues 1-7 (Ottawa: Queen's Printer,April 27, 1992 to June 4, 1992) (hereinafter, Minutes).4. The first implicit challenge appeared in the Globe andMail the day after the Bill was tabled. Brian Greenspan saidthe Bill would not withstand a challenge in the Supreme Court ofCanada: "I hope it never goes that far and that it nevergets out of committee." ("Political battle looms over sex-assault Bill" Globe and Mail, Dec. 13, 1991, p. A6.5. Constitution Act, 1982, Pt. 1, enacted by Canada Act, 1982(U.K.), c. 11 (hereinafter the Charter).6. One group of legal experts were the lawyers within theDepartment of Justice who had drafted the Bill, and who hadparticipated in the consultations with the women's groups.The women's groups with experience in the social reality ofsexual assault were notably the Canadian Association ofSexual Assault Centres (CASAC) and regroupement qudbOcois descentres d'aide et de lutte contre les agressions a caractaresexuel (CALACS). In addition, many of the other women'sgroups had consulted directly with a broad base of women andfront-line workers.7. That indeed there was a challenge to the legal expertiseof those who drafted the Bill is indicated in SheilaMcIntyre's recounting of the preliminary process: SheilaMcIntyre "Redefining Reformism: The Consultations that ShapedBill C-49" Sexual Assault in Canada, Julian Roberts andRenate Mohr, eds. (University of Toronto Press, forthcomingin 1993). The challenge continued into the committee stage aswell.8. The federal government embarked on a project in 1972 withthe formation of the Law Reform Commission of Canada topropose substantial reform of Canadian criminal law. TheCommission's recent demise in 1992 as a result of budgetaryrestraint, however, has not seen the Commission's taskcompleted. Although two drafts of a revamped code of criminallaw were presented to Parliament in 1986 and 1987, theCommission itself viewed both as drafts, and spoke to theneed for wide consultation on the reform of the criminal law.The project of reform of the criminal law however, has notbeen abandoned but has been taken over by a Parliamentarysub-committee as an exercise to recodify the criminal law, in124quite a different process than was utilized in thedevelopment of Bill C-49.9. Consensus in criminal law is more often assumed thanexamined. An early example of such an assumption is OurCriminal Law, (1976) the first Report to Parliament by theLaw Reform Commission of Canada (LRCC). Similar viewsunderlay their subsequent work, as well as that of nearlyevery study commissioned or published by the federalgovernment on the criminal justice system. TakingResponsibility, The Report of the Standing Committee onJustice and the Solicitor-General (David Daubney, Chair)(1987) and Creating Choices, The Report of the Task Force onFemale Offenders (1990) are notable exceptions. Althoughmany reports mention problems experienced by women offendersand native peoples, these have not been seen as fundamentalproblems. Examples of such treatment are included in theReport of the Canadian Sentencing Commission (1986) and inThe Criminal Law in Canadian Society (Ottawa: Government ofCanada, 1982).Conflict perspectives on the criminal law suggest thatthe criminal law is used to protect the interests of someover the interests of others. Such analyses can be found inR.S. Ratner and John L. McMullan, State Control (Vancouver:UBC Press, 1987) and in Christine Boyle, Marie-AndrbeBertrand, Celine Lacerte-Lamontagne and Rebecca Shamai, AFeminist Review of Criminal Law (Ottawa: Minister of Supplyand Services, 1985).10. Historical analyses of the role of criminal law as ameans of furthering the interests of men were found, forexample, in the briefs of Women's Legal Education and ActionFund (LEAF) in Minutes, above, fn.3, p. 2A:8; CanadianAdvisory Council on the Status of Women (CACSW), ibid, p. 7A:11.11. The diagnosis of criminal law as patriarchal structureplays an important role in many feminist analyses, notably,Carol Smart, Feminism and the Power of Law (London:Routledge, 1989).12. Other academic writing tends to reinforce or ignore theexistence of fundamental bias. Most texts on criminal law,for example, do not examine questions raised either by"different" offenders or "different" victims. In fact,particular vulnerabilities of victims may be cited asaggravating factors in sentencing although some particularvulnerabilities of victims result in acquittals. See below,text accompanying fns. 116-118.13. This was implicit in the support given the Bill by manyof the women's groups. However, the alternative view which isdiscussed is that it was merely a crime control initiative,or another popular view, that it was a result of "changingvalues." See for instance, the Law Reform Commission ofCanada's Working Paper #22, Sexual Assault, (1978) whichascribed the need for changes to sexual assault law arisingsimply from "evolving values" at p. 3.14. See generally, Katherine O'Donovan, "Engendering Justice:Women's Perspectives and the Rule of Law" (1989), 39 U. ofT.L.J. 127.15. The preamble that would have emphasized the equalityaspect of the Bill was moved by Dawn Black at committee, butdefeated by a vote of 5 to 3. Russell MacLellan moved theamendment relating to an implication of consent arising fromparticular vulnerabilities, and it was also defeated by avote of 5-3. It would appear, but is not part of the recordthat Barbara Greene also supported these amendments as shemoved a friendly amendment to the latter. See Minutes, fn. 3,pp. 7:3- 7:11.16. The law reform project may be found in several documentswhich were arrived at through several different processes.Chief among them are the LRCC Reports referred to above infn. 8, the Canadian Bar Association Task Force Report,Principles of Criminal Liability: Proposals for a New GeneralPart of the Criminal Code (1992). A model which does notappear to have received a great deal of attention is TadeuzGrygoir, Social Protection Code: A New Model of CriminalJustice (London: Sweet and Maxwell, 1971). Major scholarlyattention is contained in the entire volumes of 14 Queen'sLaw Journal (Summer, 1989) and 19 Rutgers Law Journal (Spring,1988.)17. Katherine Bartlett "Feminist Legal Methods" (1990), 103Harvard Law Review 1.18. See generally, Christine Boyle, Sexual Assault (Toronto:Carswell, 1984) pp. 1-30; Isabel Drummond, The Sex Paradox(New York: Putnam's Sons, 1953); Marilyn G. Stanley "TheExperience of the Rape Victim with the Criminal JusticeSystem Prior to Bill C-127" Sexual Assault Legislation inCanada, An Evaluation (Ottawa: Minister of Supply andServices Canada, 1987) pp. 1-7.19. In Canada, Criminal Code, R.S.C. 1970, c. C-34, s.143.The immunity was abolished in 1983 by the Criminal LawAmendment Act, S.C. 1980-81-82, c. 125.20. An absolute prohibition existed against sexualintercourse with a female under the age of 14 (s. 146).Prohibitions existed against sexual intercourse with chastefemales up to the age of 18. Similarly a male under the ageof 14 was deemed not to commit rape, or similar offences (s.147).21. From the definition of rape, Criminal Code, R.S.C. 1970c. C-34, s.143, illustrated in R. v. Bolduc and Bird, [1967]S.C.R. 677.22. Susan Brownmiller, Against Our Will Men, Women and Rape(New York: Simon & Schuster, 1975).12523. The first major Canadian study was contained in LorenneClark and Debra Lewis, Rape: the Price of Coercive Sexuality(Toronto: Women's Educational Press, 1977). Founding ratesfor rape were found to be significantly lower than for othercrimes.24. A fascinating account of Christine de Pisan's struggleand near capitulation to the prevalance of the view of womenas full of vice is recounted in Bonnie S. Anderson and JudithP. Zinsser, A History of Their Own, Vol. 2 (New York: Harper &Row, 1988) pp. 341-343. For a general discussion, seeLorraine Code "Femininst Theory" Changing Patterns Women inCanada, Sandra Burt, Lorraine Code, Lindsay Dorney,eds.(Toronto: McClelland and Stewart, 1988) pp. 21, 22.25. Peter McWilliams quotes Glanville Williams: "There issound reason for this [the common law rule requiringcorroboration of victim's testimony] because sexual chargesare particularly subject to the danger of deliberately falsecharges, resulting from sexual neurosis, fantasy, 'jealousy,spite, or simply a girl's refusal to admit that she consentedto an act of which she is now ashamed." In Canadian CriminalEvidence (Agincourt, Ont.: Canada Law Book, 1974) p. 421.26. Some blatant examples are cited in Patricia Marshall,"Sexual Assault, the Charter and Sentencing Reform" (1988),63 C.R. (3d) 216. The news media picked up on several casesthat appeared to follow suit: for example, the case of the"sexually-aggressive three-year-old" in which an extremelyyoung girl appeared to be blamed for a sexual offenceinvolving herself, discussed in R. v. Lesson B.C.J.833, Jan.12, 1990 (B.C.C.A.), and remarks attributed to a judge of theNorth West Territories that rape in the north was different:in the north, a man saw a "pair of hips," and he helpedhimself. It is not known whether, in that particularinstance, the judge saw this as mitigating or aggravating. Aperusual of sexual assault cases from the North WestTerritories indicates the judge's comments may be accurate.See for example: R. v. Onalikeal N.W.T.J. No. 895, Sept. 19,1990. But note text and fn. 152.27. Suggested in the consideration of Michigan's developmentof rape shield legislation: Jeanne C. Marsh, Alison Geist,and Nathan Caplan, Rape and the Limits of Law Reform (Boston:Auburn House Publ. Co., 1982) p. 15; women as the "means ofreproduction" is in Shulamith Firestone, The Dialectic of Sex(New York: Bantam Books, 1970); woman as "other," Simone deBeauvoir, The Second Sex, (New York: Alfred A. Knopf, 1953.).28. Cited in Anderson and Zinsser, fn. 24, p. 343.29. Constance Backhouse "Nineteenth Century JudicialAttitudes Toward Child Custody, Rape and Prostitution,"Equality and Judicial Neutrality, Sheilah Martin and KathleenMahoney, eds. (Vancouver: Carswell, 1987) p. 275.12630. An outline of studies is contained in Stanley, above fn.18, pp. 9-12.31. Criminal Law Amendment Act, 1975, S.C. 1974-75-76, c. 93,s. 8.32. See Boyle, above fn. 18, at p. 135.33. The Criminal Law Amendment Act, S.C. 1980-81-82, c. 125.34. See Boyle, above fn. 18; also David Watt, The NewOffences Against the Person: The Provisions of Bill C-127(Toronto: Butterworths, 1984).35. R. v. Seaboyer (1991), 83 D.L.R.(4th) 193, 66 C.C.C(3d)321, 7 C.R.(4th) 117 (S.C.C.).36. R. v. McCraw (1991), 7 C.R.(4th) 314 (S.C.C.).37. The Supreme Court of Canada has considered the meaning of"sexual" in R. v. Chase (1987), 59 C.R.(3d) 193. See Marshall,above, fn. 26 with respect to sentencing of offenders andthe lack of understanding courts have shown of the violenceand harm in sexual assault.38. Seaboyer, above, fn. 35.39. Ibid, p. 390 of C.C.C. report.40. Ibid, p. 386, 387.41. Ibid, p. 402, 403.42. Ibid, p. 345, et seq.43. Key to her argument, too, was the importance of seeing inthe "principles of fundamental justice" an understanding thatit should not be construed narrowly.44. Ibid, p. 409-410.45. Ibid, p. 406.46. Ibid, p. 360.47. Sample headlines included "Women express anger oversexual assault ruling" Vancouver Sun, Aug. 23, 1991, p.B4;"Court ruling chilling outraged feminists say" Toronto Star,Aug. 23, 1991, p. Al. LEAF reported on the decision asdevastating to women's rights: "Rape shield law struck down"LEAF Lines Jan. 92, p. 3.48. Ibid.49. "Women's groups meet with Justice Minister" LEAF LinesJan. 1992, pp. 4. Also, McIntyre, fn. 7.12750. Justice Communiqué "Kim Campbell promises legislation toprotect sexual assault complainants" Sept. 13, 1991.51. "New Sexual Assault Legislation a Step Forward" and"Women's groups meet with Justice Minister" LEAF Lines Jan.1992, pp. 1 and 4 respectively; "Bill C-49 - the New RapeLaw" Jurisfemme, Vol. 12, No. 2, Mar. 1992, p. 1.52. See text below, accompanying fn. 71 et seq. Theamendments accepted were the change in the ordering of thepreamble, the specification of women and children in thepreamble and the expansion of the abuse of trust provision toinclude those who abuse a position of power and therebyinduce someone to consent to sexual conduct, and also theallowance for publication of reasons arising from the voirdire into the admissibility of past sexual conduct of thecomplainant, if a judge so orders.53. That a better view would be to consider it as a matter oflaw was suggested by Lucinda Vandervort in "Mistake of Lawand Sexual Assault: Consent and Mens Rea" (1987-1988), 2C.J.W.L. 233.54. R. v. Pappajohn, [1980] 2 S.C.R. 120, 52 C.C.C.(2d) 481,32 N.R. 104.55. For example, in the case of R. v. Sansregret (1983), 31C.R.N.S. 220 (S.C.C.) the accused had had sexual intercoursewith his estranged partner following a bout of terrorizingher. In order to avoid further terror, she had convinced himthat she would take him back and have sex with him. Herconsenting to have sex with him, however, was a charade onher part. On a charge of sexual assault, he relied on hishonest belief in her consent. Although the Court might haveinterpreted this as irrelevant, if the matter of her consentwas a question of law, not fact, it did not. Instead itextended the concept of wilful blindness to find that he hadthe necessary mens rea despite his honest mistake of fact.56. Toni Pickard "Culpable Mistakes in Rape: Harsh Words onPappajohn" (1980), 30 U.T.L.J. 415, and "Relating Mens Rea tothe Crime" (1980), 30 U.T.L.J. 75, and Christine Boyle,Sexual Assault (Vancouver:Carswell, 1984) p. 86.57. Don Stuart in his brief to the committee characterizedthe "air of reality" test as a necessity for corroborationwhich existed in relation to no other offence. He says it isthe most important aspect of Pappajohn: "The evidentiaryruling in Pappajohn seems pragmatically designed to restrictthe ambit of the mistaken belief defence. It places acorroboration requirement on the accused which is required inno other type of case. This has lead to criticism andunsuccessful Charter challenge." He refers to the cases R. v.Bulmer (1987), 58 C.R. (3d) 48 and R. v. Reddick (1991), 5C.R. (4th) 389 (S.C.C.) Minutes, fn. 3, p. 6A:16. Theconstitutionality of the test is also challenged in R. v.Osolin (1992), 10 C.R. (4th) 159, (B.C.C.A.) on appeal to128S. C. C.58. R. v. Letendre (1991), 5 C.R.(4th) 159 (B.C. Sup. Ct.).59. One might have thought that any doubt about whether theaccused believed the victim was consenting should have beenallayed by the victim's uncontradicted testimony as to whatthe accused said to her repeatedly as he was raping her:"Don't worry, I won't hurt you." Had the judge ever feltvulnerable to sexual assault himself, he might haveunderstood the meaning of this phrase: "It doesn't matterwhether you want this or not, in my opinion it won't hurtyou" or "co-operate and I won't hurt you." On the contrary,however, he saw this as an expression of concern for thevictim.60. Ibid, fn. 58.61. It may be said that the trial judge equated the existenceof grounds for a belief in consent with an honest belief inconsent, and thereby spared the accused the need to testifythat he, in fact, had an honest belief. While it is possiblethat the accused's testimony would not have made a differenceto the outcome of the case, he was protected from having tojustify what he did and the case was not decided on whetherthe accused believed she had consented. Thus, an accused wasentitled to a complete defence if he held a subjective beliefin consent, and also if objective grounds for such a beliefexisted.62. See, for example, the speech of Darlene Marzari, MLA,Legislative Assembly Debates, 5th Session, 34th Parliament,Province of British Columbia, June 7, 1991, "Women and theCourts: A Search for Fairness."63. R. v. Weaver (1990), 80 C.R.(3d) 396 (Alta. C.A.).64. Section 13 of the Interpretation Act, R.S.C. 1985, c. I-21 provides: The preamble of an enactment shall be read as apart thereof intended to assist in explaining its purport andobject.65. As will be discussed again later, below at textaccompanying fns. 210-212, the preamble was criticized by theCriminal Lawyers' Association of Ontario for improperlyputting in "self-serving" evidence relevant to a s. 1 Charterdetermination. Conversely, it was criticized by women'sgroups for only alluding to equality, rather than affirmingits importance.66. Both the National Action Committee on the Status of Women(NAC) and LEAF referred to this rather compromised position.67. Concise Oxford Dictionary (6th ed.) 1976, p. 215.68. Collins English Dictionary (2d ed.) 1986, p. 334.12913069. In cases where a woman has been unconscious, consent hasnot been presumed. See generally, LEAF's brief, Minutes,above, fn. 3, p. 2A:32.Consent in sexual assault has appeared to be treateddifferently than consent in simple assault. The cases dealingwith consent and mistaken belief in consent in the latter aregenerally dealing with implied consent arising from rules ofacceptable behavior, often in sporting activities. Certain formsof assault are considered acceptable. When they go beyond thenorms of the game, they may become criminal. See for example, R.v. Maki, [1971] 1 C.C.C. 333, 10 C.R.N.S. 268, 14 D.L.R.(3d) 164(Ont. Prov. Ct.).In sexual assault, however, consent is often said to bepresumed, unless the circumstances are such that it isclearly non-consensual behavior, that is performed by acomplete stranger in an extremely violent manner. This arisespartly from the burden on the prosecution to prove beyond areasonable doubt that there was no consent. A presumption ofconsent comports with the presumption of innocence. However,quaere, does the prosecution not have a higher burden insexual assault than in simple assault? It is as if the normsof the particular "game" of sexual activity allow foruntrammelled sexual aggression.70. NAC suggested it as a codification: Minutes, above, fn.3, p. 1:34.71. See Minutes, above, fn. 3, pp. 7:5-7:10.72. This amendment was one urged by the women's groups.73. Section 276.3(1)(c).74. The members who addressed the bill on April 8, 1992 wereKim Campbell, Russell MacLellan, Dawn Black, Mary Collins,Derek Lee, Ian Waddell, Howard Crosby, George Rideout andMarlene Catterall. I will deal only with the first three asthey were the most involved in the legislation.75. "Background Information" Justice Information, Minister ofJustice and Attorney-General of Canada, December, 1991; "NewCriminal Code Provisions to Protect Sexual Assault Victims"Justice Communiqué, Minister of Justice and Attorney-Generalof Canada, Dec. 12, 1991.76. "New Criminal Code Provisions to Protect Sexual AssaultVictims" Justice Communiqué, Minister of Justice andAttorney-General of Canada, Dec. 12, 1991.77. Commons Debates, April 8, 1992, p. 9505.78. Ibid.79. Ibid, p. 9509.80. Ibid, p. 9508.81. Ibid.82. Ibid, p. 9504.83. Quoted in Geoffrey York and Jeff Sallot "Campbell agreesto amend bill- Changes ease fear that proposed law wouldviolate rights of accused" Globe and Mail, June 3, 1992, p.A4.84. Commons Debates, fn. 77, p. 9508.85. R. v.Butler (1992), 11 C.R.(4th) 137 (S.C.C.).86. Commons Debates, fn. 77, p. 9509.87. Ibid.88. Ibid, p. 9511.89. Ibid, p. 9513. Also, p. 9510: "It is fundamental thatwe not allow an abuse of our law to continue to exist in thiscountry because once it exists it can exist more easily asecond time and before we know it we have the erosion offundamental rights and justice in Canada."90. Commons Debates, fn. 77, p. 9513.91. Ibid, p. 9514.92. Ibid.93. Chaim Perelman "Formal Logic and Informal Logic" FromMetaphysics to Rhetoric Michael Meyer, ed. (London: KluwerAcademic Press, 1989) p. 13.94. Referred to in Perelman, ibid.95. The proceedings and briefs presented in the committeehearings comprised 7 volumes and covered 966 pages (includingFrench translation). Thus, the synopsis in this section isnot exhaustive of every argument made by every witness. Forinstance, most witnesses agreed that the decision in the voirdire should, in some circumstances at least, be publishable,and thus that issue is not discussed here. Recommendations inregard to wordings are not discussed unless they raise a moresubstantive issue. Similarly, while some effort was made tocanvas the proponents of each argument, where severaladvanced the same or similar argument credit is not alwaysgiven. As well, it should be noted that the CanadianAssociation of Journalists presented a brief and appeared. Astheir argument was strictly confined to the issue ofpublication of proceedings and reasons I do not include it.96. Minutes, above, fn. 3, p. 1:17.97. LEAF, for example, is dedicated to the achievement ofequality for women through litigation and education.131132Participation in this debate would be a necessary step inthat larger plan. Similarly, the Canadian Civil LibertiesAssociation (CCLA) claims a constituency of principles whichit is dedicated to upholding: "Male bias cited in fight forrights" Vancouver Sun, Sept. 11, 1992, p. A10.98. For example, NAC emphasized that sexual assault reformand inclusion of specific groups of women was necessary inorder to legitimate the law in the eyes of women. Clearly,the legitimation of law would not be a top priority of NAC,but was raised by NAC because it would be of considerableimportance to legislators.99. The committee decided to hear from umbrella groups,preferably national groups, though they were willing toreceive a brief from anyone. Minutes, above, fn. 3, p.1:15-16.100. Ibid, p. 4:5.101. Ibid, p. 4:8.102. Ibid.103. I refer to these 10 as the "women's groups".104. That the process had been an involved and challenging one isdiscussed in McIntyre, above, fn. 7.105. See Martha Minow "Partial Justice: Law and Minorities"The Fate of Law, Austin Serat and Thomas R. Kerans, eds.(Ann Arbour: University of Michigan Press, 1991) p. 15.106. R.A. Samek "A Case for Social Law Reform" (1977), 45 CanB. Rev. 409. Samek argues at p. 412 that a "programme of lawreform which is cast in the image of the law that is to bereformed can only add another distortion, another wrinkle.."107.108.109.110.111.112.113.114.115.116.Minutes,Ibid.Ibid, p.Ibid, pp.Ibid, pp.Ibid, p.Ibid.Ibid, p.Ibid, p.Ibid, pp.above,^fn.^3,2A:5.2A:6,^2A:7.2A:20,^2A:21.2A:22.2A:29.6:6.6:5-6:7.p. 2A:4.117. Ibid, p. 3:5.118. Ibid, p. 3:6119. Ibid, p. 3:33.120. Ibid, p. 4:5.121. Ibid, p. 2A:26.122. Ibid, p. 2A:27.123. Ibid, p. 2A:8.124. Regina Graycar & Jenny Morgan, The Hidden Gender of Law(Leichhardt, NSW, Austr.: The Federation Press, 1990) p. 272.125. For example, LEAF spoke of the need to vindicate thosewho are violated by sexual assault. Minutes, above, fn. 3,p. 2A:48.126. See further, the discussion in Nigel Walker Why Punish(New York: Oxford University Press, 1991) pp. 72-80 andC.L. Ten Crime, Guilt and Punishment (Oxford: ClarendonPress,^1987)^pp.^38-52.127. Minutes,^above,^fn.^3, p.^1:23.128. Ibid,^p.^1:36.129. Ibid.130. Ibid,^pp.^1:24,^1:25.131. Ibid,^p.^1:23.132. Ibid,^pp.^1:24,1:26,1:32.133. Ibid,^pp.^1:38,^1A:3.134. Ibid,^pp.^1:23,^1:38,^1A:4.135. Ibid,^p.^1A:3.136. Ibid,^p.^3:37.137. Ibid,^p.^1:26.138. Ibid,^p.^1:25.139. Ibid,^p.^1:26.140. Ibid,^p.^1:25.141. Ibid,^p.^1:38.133142. Ibid, p. 4:24.143. Ibid.144. Ibid, p. 3:6, Also below, fn. 159.145. Ibid, p. 3:12. Also, NAC, p. 1:27.146. Ibid, p. 3:17, 3:28.147. Ibid, p. 3:17.148. Ibid, pp. 3:30, 3:35.149. Ibid, p. 3:27.150. Ibid, p. 3:19.151. Ibid, pp. 3:15, 3:26.152. Ibid, p. 4:14.153. Ibid, p. 4:16.154. Ibid.155. Ibid.156. Ibid, p. 4:15.157. Ibid, pp. 2:20, 2:21.158. Nicola Lacey, Celia Wells and Dirk Meure, ReconstructingCriminal Law (London: Weidenfeld and Nicolson, 1990) pp. 5-7.159. See above, fn. 144, and below, at text accompanying fn.273, for the remarks of Catharine MacKinnon to the effectthat women look to law to decide when they have beenassaulted. In our unequal society, a certain amount ofviolence is considered okay and natural.160. Minutes, above, fn. 3, p. 3:19.161. Ibid, p. 1:24.162. The notable exception was NWAC's Virginia Meness whobriefly adverted to the broader problem of the system.Although Meness mentioned problems in sentencing offenderswho were aboriginal men, she did not spell out her views,though she referred to the historic distrust that aboriginalpeople feel toward the system. Ibid, pp. 4:16, 4:17.163. For example, NAC, ibid, p. 1:38.164. Judy Fudge "Effect of Entrenching a Bill of Rights uponPolitical Discourse, Feminist Discourse and Sexual Violence134in Canada" (1989), 17 Inter. J. of Sociology of Law 310.165. Carol Smart, Feminism and the Power of Law (London:Routledge, 1991); Andrew Petter "Legitimizing SexualInequality: Three Early Charter Cases" (1989), 34 McGill L.J.262. Joel Bakan "Constitutional Interpretation and SocialChange" Canadian Perspectives on Legal Theory, RichardDevlin, ed. (Emond Montgomery, 1991); but see Anne Kingdom,What's Wrong with Rights (Edinburgh University Press, 1991).166. Samuel Stoljar, An Analysis of Rights (London:MacMillanPress, 1984) p. 3.167. Minutes, above, fn. 3, p. 2:12.168. Ibid, p. 1:27.169. Ibid, p. 3:39.170. J.J. Camp, president of the CBA quoted in "Campbellagrees to amend bill" Globe and Mail, June 3, 1992, p. A4.171. Minutes, above, fn. 3, pp. 5:10-5:14.172. Ibid, p. 5A:44.173. Ibid, p. 5A:41. The Association cited Pappajohn asauthority that prior to Bill C-49 a recklessly but honestlyheld belief in consent could be a defence. The Task Forceevidently thought so too, and that the law should remain assuch.174. Ibid, p. 5A:44.175. Ibid, p. 5:12.176. See Chapter III, E(4).177. Minutes, above, fn. 3, p.^5A:21.178. Minutes, above, fn. 3, pp.^2:32-2:50 and 2A:66-2A:82.179. Ibid, p. 2A:80.180. Ibid, p. 2A:79.181. Ibid, p. 2A:73.182. Ibid, p. 2A:79.183. Ibid, p. 2:41.184. Ibid.185. Ibid.186. Ibid, p. 2A:72.135187.188.189.190.191.192.193.194.195.196.197.198.199.200.201.202.203.204.205.206.207.208.209.210.211.212.213.214.Ibid.Ibid,Ibid,Ibid,Ibid,Ibid,Ibid,Ibid,Ibid,Ibid,Ibid,Ibid,Ibid,Ibid,Ibid,Ibid,Ibid,Ibid,Ibid,Ibid,Ibid,Ibid.Ibid.Ibid,Ibid,Ibid,Ibid,Ibid,p.^2A:78."detest Men", p.^2A:33; backlash, p.^2A:76.the CCLA, p.^5A:1; BCCLA, p.^4:46.p.^5A:7.p.^5A:2.p.^5A:5.p.^4:51.p.^4:54.p.^4:47.p.^4:50.p.^1A:2.pp.^1:41,^1:42.p.^1:45.p.^1:44.p.^1:40.p.^1:46.p.^1A:18.p.^1A:20.p.^1A:19.p.^1A:20.p.^1A:15.p.^1A:16.p.^1A:17.p.^1A:22.p.^1A:23.136215. Ibid, pp. 6:25 et seq. and pp. 6A:20, 6A:26.216. Ibid, pp. 6:26, 6A:27 et seq.217. Ibid, p. 6A:25.218. Ibid, p. 6:34.219. Ibid, pp. 6:33, 6:26.220. R. v. Bernard, [ 1988] 2 S.C.R. 833, 67 C.R.(3d) 113, 45C.C.C.(3d) 1.221. Minutes, above, fn. 3, p. 6A:23.222. Ibid, pp. 6:29, 6A:22, 6A:23.223. Ibid, Stuart, p. 6A:14, CLAO, p. 1:45. Although,within two paragraphs, Wakefield goes on to describe thesystem as sensitive, thoughtful, time consuming.224. Ibid, p. 6:26.225. Ibid, CLAO, 1A:26. It asserted a utilitarian purpose tothe bill. Stuart appeared to imply that failure of treatmentshould affect the legal definition.226. Montreal Gazette, December 5, 1991, p. B2.227. "Sexual Assault Law will define consent" Globe and Mail,Dec. 12, 1992, p. Al.228. Justice Communiqué, above, fn. 2.229. Globe, above, fn. 227.230. "Political battle looms over sex-assault bill" Globe andMail, Dec. 13, 1992, pA4.231. Ibid.232. For example: "Legal experts critical of new rape-shieldlaw" Winnipeg Free Press, December 13, 1991, p. B20.233. Above, fn. 230.234. Dec. 13, 1991, p. A15.235. "If you're confused, don't. If in doubt, don't." Globeand Mail, May 20, 1992.236. For example, Globe and Mail, January 29, 1992, p. A8.237. Ibid.238. "Real Women call proposed rape bill a feminist attack onmales" Vancouver Sun, May 20, 1992, p. A4. "Sexual assault137138legislation attacked-Bill unfair to men, REAL women say"Globe and Mail, May 20, 1992.239. "A kiss stolen on first date a possible crime, MPs,told"Vancouver Sun, May 22, 1992, p. A4.240. "Lawyers wary of proposed rape law-Commons committeetold new standards are contrary to 'centuries of acceptedbehavior "'Globe and Mail, May 15, 1992, p A3; "Slow learnerscould face jail" Vancouver Sun, May 15, 1992, p. A4.241. Montreal Gazette, Jan. 13, 1992, p. A6 and the TorontoStar, January 13, 1992, p. All.242. P. Breck "LEAF replies" Globe and Mail, Dec. 21, 1991,p. D7.243. Globe and Mail, Jan. 27, 1992, p. A13.244. Globe and Mail, May 19, 1992, p. A16.245. Globe and Mail, May 19, 1992, p. A14.246. June 4, 1992, p. A22.247. Jan. 31, 1992, column, p. 9 and letter, p. 5.248. Ibid.249. Ibid.250. Minutes, above, fn. 3, p. 2:43.251. Mary Nemeth "Chilling the sexes" Maclean's, Feb. 17,1992, p. 45.252. June 29, 1992, p. 14.253. Above, fns. 127, 128.254. Above, fns. 24-28.255. With respect to England, see Lacey, above, fn. 158pp. 330-335; with respect to the U.S., note that even with thereforms in Michigan in the early 1980s, the law only changedto allow rape charges to be brought against husbands who werelegally separated from their wives (Marsh, above, fn. 27,p. 22).256. For example, J.C. Smith, The Neurotic Foundations of theSocial Order (New York: New York University Press, 1990) p.50 etseq. Also J.C. Smith "Gender & the Construction of Reality" TheArcheology of Gender, Proceedings of the 22nd Annual ChacmoolConference, 1991 pp. 84-95.257. Nigel Walker, Sentencing in a Rational Society (London:Allan Lane, The Penguin Press, 1969). Walker emphasizes this139tendency in relation to accepting the categories of law, anda tendency on the part of the public to think that alloffences in a particular category should be treated the same.258. Above, fn. 194.259. The Criminal Law in Canadian Society (Ottawa: Governmentof Canada, 1982); Taking Responsibility, Report of theStanding Committee on Justice and the Solicitor-General,(David Daubney, chair) Ottawa, 1988. Sentencing Reform,Report of the Canadian Sentencing Commission (Ottawa:Supply and Services, 1987).260. Richard Ericson and Patricia Baranek "Criminal LawReform and Two Realities of the Criminal Process" CriticalPerspectives in Law, Anthony Doob and Edward Greenspan, eds.(Aurora, Ont.: Canada Law Book, 1985) p. 255.261. While it would be possible to extend our understanding ofconsent as enduring or non-enduring, the bill does not go sofar as to make criminal sexual activities which wereconsented to at the time, but for which consent was seenafterwards as not voluntarily given, but obtained through suchdevices as a fraudulent promise of affection or marriage orinordinate whining or pressure.262. Above, fns. 67-69.263. Self-induced intoxication contributing to a mistakenbelief in consent has not been a defence to sexualassault (R. v. Leary, [1978) 1 S.C.R. 29). Similarly, arecklessly held belief is, by definition, not an honestlyheld belief, and thus, is not a defence. Wilful blindness tothe risk of non-consent has also been held to be no defence(R. v. Sansregret, [1985) 1 S.C.R. 570.) Nevertheless, DonStuart argued that the "proposed exclusion of reckless[sic]and wilful blindness is unnecessarily harsh and divertsattention from the true inquiry into whether the accused wasaware of the risk." (Minutes, above, fn. 3, p. 6A:19.)264. It was argued by Don Stuart that mistaken belief inconsent was not often at issue in sexual assault cases. Herelied on a consideration of cases reported to make thisempirical assertion. This should be contrasted with theanecdotal information provided particularly by CASACS thatthe defence of mistaken belief in consent was a major reasonwhy women did not report sexual offences. They don't reportbecause they know that if they did anything that would allowan inference of consent to be drawn, whether logically orbased on stereotypes and myths, the assaulter would notlikely be convicted. Letendre is a clear example of the futilityin reporting. It should be noted that there are no empiricalstudies on the incidence of this problem. However, the highincidence of date rape in self-reporting studies would suggestthat CASAC's report is true, as on a "date" a woman is likely tohave engaged in some such behavior.265. See below, text accompanying fn. 352 et seq.266. The failure of the system to rehabilitate is also offeredby Stuart as a reason to use criminal law with restraint. Amajor problem with this kind of analysis is that it fails todistinguish different kinds of offenders. As long as researchis predicated on offence variety, we will no doubt continueto make broad generalizations about effectiveness even thoughwe should be able to easily contrast the case of the repeatchild sex offender with the more socially-tolerated daterapist, who is not likely in jail at all at this point, andwho may need nothing more than a clear message about what isacceptable and what is not from the law.267. Minutes, above, fn. 3, pp. 1:40, 1:41. In fact, the LRCCadopted the view, in 1976 in the Report to Parliament, OurCriminal Law, that law's only justifiable purpose waseducation, as it could not be proved to either deter orrehabilitate. The Criminal Lawyers were joined in thisargument of inappropriate purpose by Richard Peck of thecriminal law section of the Canadian Bar Association, who,arguably, went even further when he said that the Bill wascontrary to the purpose of criminal law because "to someextent it is an attempt to legislate in the area of humanrelations." Vancouver Sun, Jan. 29, 1992, p. A5. He wouldappear to want to reinstate the public/private dichotomy thateffectively kept criminal law out of domestic violence,marital rape and sexual abuse of children. However, it shouldbe noted that neither the brief nor the submissions of theCanadian Bar Association contained this argument.268. I say it is curious that the CLAO should accept that abroad aim of criminal law is the achievement of socialjustice because if any group were to have questions about thesocial justice of criminal law one might think it would bedefence lawyers, who, generally speaking, might see thecriminal law as impacting unequally on particular ethnicminorities and on lower socio-economic groups. It would beless surprising to hear them speak of social ordering ratherthan social justice. One might also think that they wouldwant to underline the fact that the purpose of criminal lawis fundamentally different than civil law, and it is only thelatter that has traditionally dealt with redress for victims.Another anomaly is that they adopt a model of criminallaw quite different than one of crime control and yet pose adue process argument against it.Although they countenance the criminal law as"protecting" victims they point out, but make little of, thegap between the rhetoric of "protection" and the"instrumental or utilitarian value" of criminal law toachieve this, and yet it is really the failure of thecriminal law to be effective which they surely must bereferring to.269. Minutes, above, fn. 3, p. 1A:15.270. Above, fn. 203.140141271. Minutes, above, fn. 3, p. 1A:16. The CCLA also madethe argument, questioning the existence of the consensus,above, fn. 192.272. However, had they taken such a line, their argumentwould have been that much easier to dismiss. It is surprisinghow little reaction there was to the implication that it maybe all right to proceed sexually against someone who simplyreplies, "but I have a boyfriend."273. Catharine MacKinnon, Feminism Unmodified (Cambridge:Harvard University Press, 1987) p. 88.274. Above, fn. 144.275. Minutes, above, fn. 3, pp. 1:42, 1:43.276. Ibid, p. 1:45.277. Ralph Lindgren "Criminal Responsibility Reconsidered"(1987), 6 Law and Philosophy 89.278. Walker, above, fn. 126.279. Jeanne C. March, Alison Geist and Nathan Caplan, Rapeand the Limits of Law Reform (Boston: Auburn House Publ.Co., 1982) p. 5.280. Criminal Law in Canadian Society, fn. 259, p. 38.281. Perelman, above, fn. 93, pp. 10-12.282. Whether the Minister or the Department of Justice werecommitted to this process is not so clear. Sheila McIntyre,who was involved in the consultation, suggests that they wereat the very least reluctant to fully use the consultationprocess. See McIntyre, above, fn. 7.283. Law professionals have generally taken the leading role,but as pointed out by Samek, above, fn. 106, the resultinglaw reform rarely can adequately address the targeted socialproblems. Lawyers tend to conceive of solutions to problemswithin existing parameters of the law and rely on their ownintuitions and common sense about what will work when their"common sense" may often not be common at all. ChristineBoyle and Susannah Worth Rowley "Sexual Assault and FamilyViolence: Reflections on Bias" Equality and JudicialNeutrality, Sheilah Martin and Kathleen Mahoney, eds. (Vancouver:Carswell, 1987) p. 324. See generally Patrick Fitzgerald"Criminal Law Rationality and Justice" Crime Justice andCodification (Vancouver: Carswell, 1986) pp. 5,6; Mohr,above, fn. 256, pp. 37-39; Brian Hogan "Some Reservations onLaw Reform" Crime Justice and Codification (Vancouver:Carswell, 1986) pp. 67, 68.Legal expertise did not receive a great deal of weightfrom the politicians either in committee or in Parliament.While none wanted a bill that would be held to beunconstitutional, the arguments relating to time-honouredtraditions and theoretical principles were largely ignored.This disregard for those who see criminal law reform as theirown bailiwick did not go unnoticed.284. Although it might be suggested that this has the effectof "privileging" women's experience, it is the only way tohave theory informed by practice, and not the other wayaround. When men, who are not particularly vulnerable tosexual attack, decide the harm of sexual assault, they are ofnecessity extrapolating, inferring, interpreting, orperceiving sexual assault second-hand. They have littlechoice but to theorize first. This should also not be takenas a preference of practice over theory as each has a role toplay. See Sheila Tarrant "Something is pushing them to thesides of their own lives" (1990), 20 West. Aust. L.R. 573.Also Zillah Eisenstein, The Female Body and the Law (Berkeley:Univ. of Calif. Press, 1988) p. 2.285. Although, arguably, the reform did not comprehend theexperience of all women in that the naming of specific groupsof women in the bill did not succeed, the argument havingbeen made may assist those who interpret and apply the law tounderstand that women are different and that they should notbe compared to a single standard.286. For example, Minutes, above, fn. 3, LEAF's brief,2A:3, and NAC's brief, 1A:2 and presentation, 1:21.287. Above, fns. 192, 194, 184. An exception was the CBA whoappeared to recognize that it was time for legal expertise totake a back seat to the experiences and proposals of women.This was reflected by two of their three most importantrecommendations also being important parts of the women'sgroups' proposals, and in how they were able to agree thatthe objective requirement of "reasonable steps" was reallynot all that objective after all. J.J. Camp, the seniorlawyer who orchestrated the oral submission of the CBA tookcare to make the point that the CBA's brief had been vettednot only by women, but also by women of the "feministpersuasion" (at p. 5:15, Minutes, above, fn. 3).288. Although it is not only women who are affected by theprovisions of the bill, some may argue that it is only thereality of women's experience that should be considered. Thelesson on relevance should not be lost, however. As KatherineBartlett has argued in her approach to feminist legalmethods, all perspectives should be considered.289. Stuart raised the argument in terms of treatment, aboveat fn. 224 and the CLAO raised it in terms of the pains ofimprisonment and the spectre of wrong convictions, p. 1:40,Minutes, above, fn. 3.290. Among the vehement were Rob Martin, above, fn. 248,and REAL Women, a "total reflection of feminist views" at p.1421432:38, Minutes, above, fn. 3. More subtle was the CCLA whocalled for cross-country meetings and a much widerconsultation at p. 5A:6. Clayton Ruby was careful to avoidblaming feminism for the bill, and he argued that while thebill was bad on all counts, it was the Minister of Justicethat was to blame, rather than feminism, above, fn. 244.291. This would include those who argued general principlesand constitutionality. The law as neutral and unbiased hasbeen well discussed and documented. See generally, Ratner andMcMullan; Boyle et al, above, fn. 9; O'Donovan, above, fn.14; all references, fns. 18, 22, 23.292. Above, fn. 165. In "R. v. Seaboyer: A Lost Cause?"(1992), 7 C.R,(4th) 225, authors Christine Boyle and MarilynMacCrimmon express near despair at the usefulness of lawreform to advance women's interests. The CLAO argued thistoo, but from the point of view of the offender.293. Above, fn. 164.294. NAWL pointed out that they were making the same argumentsthat had been made 10 years previously in respect of Bill C-127. Nevertheless they evinced confidence and enthusiasm thatthis time it would be successful.295. As emphasized by NAC, Minutes, above, fn. 3, p. 1:38; alsowell reported by the media that this was only a partialsolution: "Feminists seek more sensitivity" Vancouver Sun,June 2, 1992, p. Al.296. Ibid.297. Chrisje Brants and Erna Kok "Penal Sanctions as aFeminist Strategy: a Contradiction in Terms? Pornography andCriminal Law in the Netherlands" (1986), 14 Inter. J.Sociology of L. 269. Although the women's groups were contentwith the proper legal naming of the harm of sexual assault,there were concerns about the use of criminal law. NAC, forinstance, made the point that they were not seeking longer prisonsentences for those convicted of sexual assault.298. Bruce Archibald "The Constitutionalization of CriminalLaw" (1988), 67 Can. B. Rev. 403; Bruce Archibald "TheConstitutional Requirements for Sentencing Reform in Canada"(1988), 2 Revue Juridique Thgmis 307.299. The Supreme Court of Canada has, in several decisions,evinced a preference for context, in order to determine thecontent of principles. A notable example is Reference Re:Section 94(2) of the Motor Vehicles Act (1985), 24D.L.R.(4th) 536.300. Minutes, above, fn. 3, p. 1A:16.301. Above, fn. 244; also argued by the CLAO; Minutes, above,fn. 3, p. 1:43.144302. Ruby's complaint about judges having to take seeminglyirrelevant considerations into decisions on the admissibilityof evidence is not well founded in the law of evidence. Thereare several examples of where policy reasons, unrelated tothe matters of issue, exclude evidence which might well beprobative, such as the rule against the admission of non-voluntary statements to persons in authority, the "bestevidence rule," and, more recently, the exclusion of evidenceobtained as a result of an infringement of a Charter rightunder s. 24(2) of the Charter.303. The more fundamental question, however, is whether a judgehaving to take policy issues into consideration will resultor can possibly result in the conviction of innocentpeople. If evidence which is capable of raising a reasonabledoubt about the guilt of the accused is suppressed then, byvirtue of the meaning of innocence in Oakes, below, fn. 324one must conclude an innocent person is convicted. To sayotherwise is to breach the presumption. Leaving aside thequestion of "innocence" the argument then hinges on anassessment of whether particular evidence is "capable" ofraising a reasonable doubt.Capability can be determined either according to whetherit works or whether it should work. Clearly, the legislationis aimed at ensuring that evidence of past sexual behavior isnot used to draw inferences of consent or dishonesty. Equallyclearly, however, the legislation contemplates that judgeswill allow the evidence in sometimes. One can't help butthink that Ruby is really arguing that in some instances pastsexual conduct is relevant to consent or credibility.304. See Backhouse, above, fn. 29, and the judgment ofL'Heureux-Dub6 J. in Seaboyer, above, fn. 35.305. It is worth noting that the instances cited by McLachlinJ. in Seaboyer where evidence of past sexual history were fewin number. Thus, the determination of relevance will notarise frequently, and, it is suggested, those instances wherea judge will fail to properly consider the probative value ofevidence will be few. The decision is appealable, as a matterof right, thus, arguably, reducing the chance of an erroneousdecision. Of course, the rule in criminal law has been, letten guilty men go free that one innocent man should not beconvicted. The number used in this maxim has been reporteddifferently, but it appears not to have exceeded twenty. Oneis tempted to ask, how far is Ruby prepared to extend it?Given the relatively high risk of inappropriate use ofevidence of past sexual conduct, one wonders how else itcould be limited: if not through a structuring of discretion,then only through hard and fast rules as in the former s. 276struck down in Seaboyer. Ruby is clearly not arguing forthat.306. Letendre, above, fn. 58, p. 46.307. Mistakes as to law have long been excluded as defences145for strong policy reasons. People were presumed and expectedto know the law. Characterizing the mistake as one of law,which is generally not a defence, puts both its proponent andme in a dangerous situation. On the one hand, Ruby's argumentis based on consistency with principles of criminal law, butif he wants to succeed, he must argue for inconsistency withthe principles of criminal law which say that mistake of lawis no excuse. Similarly, I am put in the position ofsupporting the provision by reference to a traditionalprinciple of criminal law! However, my purpose is simply toshow the flexibility of the concept and therefore theinadvisability of applying it too rigidly or taking tooliteral an interpretation of it. The common law has taken arather flexible approach even to the mistake of law, somehave argued: see for example Don Stuart, Canadian CriminalLaw (Toronto:Carswell, 1982) pp. 273-279.308. Contrasting approaches are represented by David Paciocco,who would prefer to see all evidence go in and T. BrettelDawson who argues that abstract, decontextualized rules ofevidence are biased in the determination of relevance. (T.Brettel Dawson "Sexual Assault Law and Past Sexual Conduct ofthe Primary Witness: The Construction of Relevance" (1987-88), 2C.J.W.L. p. 310). Contrast too, Anthony Shepherd, whofavours a fairly rigid approach to the rules of evidence.("The Supreme Court of Canada and Criminal Evidence Reform:Recent Cases on Sexual Abuse of Children and Spousal Murder:(1991), 9 C.J.F.L. 11.) R.J. Delisle argues that presentlyadmissibility is determined by the kind of offence that isinvolved and who seeks it. ("Potential Charter Challenges tothe New Rape Shield Law" (1992), 13 C.R.(4th) p. 390.)309. Most opponents of the Bill, (including the CCLA, the BCCLA,Don Stuart and even the CLAO), evinced support for notsubjecting women to revictimization on the witness stand.310. Globe, above, f. 245. This article also containsthe use of another legal term of art: the guilty mind. Forthe general reader, this brings up the notion of guilt onlyattaching to those who not only intended to do the actscomprising the offence, but that they did them in the fullknowledge that it was wrong, while lawyers may be comfortablewith "guilty mind" as not going quite so far. Quaere those prankcases where no intention to steal resulted in an acquittaldespite all the elements being present, mental and physical. SeeStuart, above, fn. 307, p. 453-4.311. These included Stuart, Minutes, above, fn. 3, p. 6:22.312. C.K. Allen, Legal Duties and Other Essays in Jurisprudence(Oxford Univ. Press, 1931) p. 253, collected in Lacey et al,above, fn. 158, p. 155.313. 1 Lew C.C.(1823) per Holroyd J.314. Allen, above, fn. 312, pp. 157, 158. For a discussionof English criminal law without due process rights, see L.A.Parry, The History of Torture in England (Montclair, N.J.:Patterson Smith, 1975, originally published 1934).315. Allen, above, fn. 312, p. 156.316. Ibid.317. Ibid.318. Woolmington v. D.P.P., [1935] A.C. 462.319. Ibid.320. Herbert Packer, The Limits of the Criminal Sanction(Stanford University Press, 1968).321. Ibid.322. Woolmington, above, fn. 318. A Canadian example isR. v. Appleby (1972), 16 C.R.N.S. 35 (S.C.C.). Lacey pointsout several other ways in which the criminal law systemimplicitly incorporates the notion that the presumption ofinnocence says nothing about a person's guilt or innocencebut is a rule of procedure. For example, people charged butnot convicted of offences may still be detained before trial.Similarly, people who are merely charged with offences haveno right to privacy, and their names can be freely publicized(above, fn. 158, p. 174).323. A similar statute exists in Canada in matters of summaryprocedure in s. 794 of the Criminal Code. In R. v. Lee'sPoultry Ltd. (1985), 17 C.C.C.(3d) 539; 43 C.R.(3d) 289, theOntario Court of Appeal held that the provincial equivalentof this subsection does not offend the Charter guarantee tothe presumption of innocence.324. R. v. Oakes (1986), 50 C.R.(3d) 1 (S.C.C.)325. Ibid, p. 15.326. It is worth noting that from the first appearance of thepresumption of innocence its expanding protection to theaccused has been developed judicially. Even though it appearsin the Charter, it is once again the judiciary and not thelegislature which has given it its substantive role. This ismentioned in light of Brudner's curious remark, below, textaccompanying fn. 342, that when it comes to principles offundamental justice, important matters cannot be left to thediscretion of judges, but presumably must be legislativelyspelled out.327. See, for example the discussion in Eric Colvin,Principles of Criminal Law (Vancouver: Carswell, 1986) pp.38, 41. Actus reus represents the physical element of anoffence and may consist of an act, an omission, orpossession, sometimes in particular circumstances, andsometimes with particular results. Mens rea is the state of146mind that accompanies the act, omission or possession.Different offences prescribe different mental states, andvary as to whether a person's mind must be directed towardthe results of particular actions or omissions. Differentmens rea have been categorized as, for example, requiringspecific intent, in which case the person performs the actionwith the result in mind, or general intent, in which theperson merely performs the act intending to perform it, butnot necessarily cognizant of what the results will be. Amajor question has been whether there must be an awareness ormental element of every facet or element in the actus reusfor a conviction. It has been answered in the negative, butagain, it depends on the offence.328. The controversial question is whether mens rea should bedetermined by looking at what was in the mind of the personperforming the act, or whether it should be judged by astandard of what is reasonable, i.e. objectively. The sourceof this controversy lies in the response of the LRCC and thejudiciary to the burgeoning use of penal statutes to regulatematters of public welfare. In 1974, the LRCC examined the useof the penal sanction in such matters in Working Paper #22,Strict Liability. The LRCC posited that under ordinarycriminal law a person would not be found guilty of an offenceunless he had criminal knowledge or intention, (quaere theaccuracy of this claim) and then considered the varioustrading and health regulations for which a person could befound guilty without knowledge that one was committing anoffence, or even that one was committing the actions thatcomprised the offence. The LRCC investigated the use of penalsanctions in the areas of misleading advertising law, weightsand measures law and food and drug laws and found thatprosecutions were "hardly ever launched against people who[were] not at fault." However, the LRCC said that there was atheoretical problem with having "no fault" offences. Itposited the person guilty of a strict liability offence asnot proven to be at fault and that it was unfair to exposesuch people to penal consequences. It suggested that "strictliability" offences should be clearly indicated as such, that"real crimes" must always require a subjective mens rea andthat in any case a defence of due diligence which might be amix of subjective and objective tests be used for strictliability offences, public welfare offences. The LRCCrepeated its concerns in its Report to Parliament, OurCriminal Law, in 1976. In 1978, the distinction made by theLRCC was adopted by Dickson J. (as he then was) in theSupreme Court of Canada's decision in R. v. Sault Ste. Marie[1978] 2 S.C.R. 1299, in a case involving a breach ofpollution regulations. He is often quoted as saying: "Withinthe context of a criminal prosecution a person who fails tomake such inquiries as a reasonable and prudent person wouldmake, or who fails to know facts he should have known, isinnocent in the eyes of the law" and that negligence has noplace in the criminal law. This case has been cited asauthority for the proposition that only a subjective testwill suffice for a real crime. See below for this particularargument at fn. 88. The subjective-objective debate was147148rekindled in the case of a "real crime", rape, in R. v.Pappajohn, above, fn. 54, with the subjective testsucceeding again in that case. The proponents of thesubjective test were further encouraged by what originallyappeared to some as a constitutionalization of a subjectivetest in the dismantling of the constructive murder offencesby the Supreme Court of Canada. However, several cases sincehave shown that the Court is not prepared to extend therequirement of a subjective test. For a discussion of thecases involved, see Don Stuart "The Supreme Court DrasticallyReduces the Constitutional Requirement of Fault: A Triumph ofPragmatism and Law Enforcement Expediency" (1992), 15C.R.(4th) 88. However, it is submitted that Prof. Stuart'slament is not justified for it fails to place the recentdevelopments in their proper historical or legal context.The point was made by LEAF in its brief that the view,first, that mens rea was a necessary ingredient in alloffences was not accurate, and, second, that even where it wasrequired, it need not always be subjective. LEAF pointed tothe recent line of cases which provide that the minimumrequirement of mens rea is an objectively determined failureto exercise due diligence.(Minutes, above, fn. 3, pp. 37-42.)Further, there are, and have always been, many offenceswhich do not require subjective intent. Obvious examples arethe drinking and driving offences which date back to theearly 1900s, criminal negligence offences and manslaughter.It is suggested that prior to the 1970s the distinctionbetween the subjective and objective tests was not nearly soimportant. It is also worth noting that in practice thedistinction may be extremely difficult if not impossible tomake. See, for instance, the remarks of women who have sufferedassaults who suggest that the so-called mistaken belief inconsent is simply nonsense, above, at fns. 145, 146, and alsocomments of Barbara Greene of the committee, Minutes, above,fn. 3, at p. 6:34. However, there are those who have faith intheoretical abstraction over practical application.A final point in relation to this principle is whetherthe standard legal method of separating offences first intoactus reus and mens rea and then into elements is appropriatein applying the offence to the facts in sexual assault. Acommon method of analysis is to consider that it is not theapplication of force which is problematic, only the failureto have consent. Thus it is not the act which is problematic,it is only the omission to obtain consent, hence a "failureto take care" is characterized as negligence. The mens reaassociated with obtaining consent is elevated in importanceover the mens rea associated with the sexual act, and theoffence is rationalized as less serious, and by some, non-culpable.329. Minutes, above, fn. 3, p. 1-41.330. Ibid, p. 6A:20.331. Ibid, Stuart, p. 6A:20 and the CCLA, p. 5:8.332. Ibid, Stuart.333. See above, text preceding fn. 308.334. The reference to a morally based system is found in R. v.Martineau, [1990] 2 S.C.R. 633, 79 C.R.(3d) 129, 58C.C.C.(3d) 353 at p. 138 of the C.R. report. However, theunderlying morality of our criminal law system is not at allclear. Steven Wexler points out "In modern societies, a greatdeal of the criminal and quasi-criminal law has nothing to dowith moral values; many acts are illegal which are notbad...A great many immoral acts which even Mill would saythat the law could prohibit are not illegal. Our criminal lawignores a great many acts which obviously cause harm topeople... Finally, the private morality which the law doesembody is often not the morality of the society...[thus] inthe face of serious social evil the law seems either to beimpotent or to be allied with what is wrong rather than whatis right." Steven Wexler "The Intersection of Laws andMorals" (1976), 54 Can. B. Rev. 351, at pp. 356-359, quotedin R.P. Saunders and C.N. Mitchell, An Introduction toCriminal Law in Context (Vancouver: Carswell, 1990) p.11.Therefore one cannot say that a legal determination alsodecides the moral issue. The morality argument as descriptiveof our criminal law breaks down when one confronts the policythat mistake of law is not generally a defence to a charge. Adistinction that people might be prepared to make is betweenthose who knew something was against the law, and those whodidn't. Eric Colvin cites the interesting case of R. v. Baileywhere a sailor was convicted of an offence which was createdwhile he was at sea and which he committed before his return.No reasons were given for the decision. Colvin, above, fn. 327,p. 210. Colvin suggests the decision may be justified as theoffence involved an act which was immoral, i.e. shooting atanother person.335. The "subjectivists" argue this. See the discussion inPeter MacKinnon's Case Comment "Criminal Negligence andRecklessness and Criminal Law Reform, The Queen v. Tutton;Waite v. The Queen (1990), 69 Can. B. Rev. 177, and Colvin,above, fn. 327, p.81.336. Ralph Lindgren "Criminal Responsibility Reconsidered"(1987), 6 Law and Philosophy 89, at pp. 105-113. Others whohave no problem with a so-called objective test are BarbaraWootton, Crime and Criminal Law (London: Stevens and Sons,1963), Tadeuz Grygior, Social Protection Code: A New Model ofCriminal Justice (London: Sweet and Maxwell, 1971), and PeterLow "The Model Penal Code, The Common Law, and Mistakes ofFact: Recklessness, Negligence, or Strict Liability" (1988),19 Rutgers L.J. 539. At p. 564, Low says: "The criminal lawalways uses a combination of subjective and objectivestandards of liability and it is not intuitively clear, atleast to me, that the line between them can be categoricallydrawn for circumstance elements in advance of the specificcontext likely to be posed by a specific offence."337. See above, text at fn. 172 et seq. It is curious because149unless the test can be characterized as being essentiallysubjective, the CBA submission of Bill C-49 will have beenfundamentally at odds with its recodification proposal whichsays no liability without subjective fault. Principles ofCriminal Liability, Proposals for a New General Part of theCriminal Code, above, fn. 16, p. 11.338. See above, fns. 145, 146 for the comments of women inregard to the existence of mistaken beliefs in consent. Thewomen did not classify the tests as being objective orsubjective, but they strongly suggested that culpabilityattached equally.339. See below, text at fn. 352. One could argue that if aperson is caught twice committing the same criminal offencethrough negligence, that a higher level of blame must attach,not only because it confirms an inference of bad character,but because it precludes the accused from arguing that hedidn't know any better. This would equate with "blame infact" as well as "blame in law."340. Alan Brudner "'I thought she meant yes' just isn't goodenough" above, fn. 243.341. Above, fn. 328.342. His statement that a judge should not be left to decidethat which is required by a "principle of justice" issurprising as the entire concept of mens rea has beenjudicially developed, as has the "principle ofproportionality."343. Above, text at fns. 216, 217.344. R. v. Vaillancourt, [1987] 2 S.C.R. 636, 60 C.R.(3d) 289,39 C.C.C.(3d) 118; R. v. Martineau, [1990] 2 S.C.R. 633, 79C.R.(3d) 129, 58 C.C.C.(3d) 353. As pointed out above, in fn.328, these decisions, along with Pappajohn represent a markeddeparture from traditional criminal law.345. At p. 138 of the C.R. report.346. Stuart will find some support in Christine Boyle's bookSexual Assault, published in 1984, above, fn. 18. Consideringwhether or not the test for mistaken belief should besubjective or objective, Boyle argues the latter andacknowleges that where an accused passes the subjective testbut fails the objective test, a different treatment isjustified. In the context of endeavouring to get away fromthe subjective test of Pappajohn, because it enables anaccused to rely on the most sexist of myths and assumptions,her argument was practical. She compares sexual activity todriving: significant benefits can accrue from both if engagedin carefully, but considerable harm can result if engaged incarelessly.(p. 86) However, there is a significantdifference. As Lindgren points out, there is no need toengage in sexual behavior, whereas there may sometimes be in150driving, and in our culture, there probably is. Nevertheless,we have seen fit to proscribe driving while over .08. In somecases of driving drunk accused persons have argued thedefence of necessity, and in a rare case it has beenaccepted. One would think that courts should be even lesslikely to accept necessity as a defence to sexual assault,and yet, is there not a myth of male sexual need as intenseand uncontrollable if incited, which does seem to operate asan excuse? Perhaps the argument should be made explicit.347. Above, fn. 219.348. See Barbara Greene's attempt to persuade Stuart that thetrauma resulting from sexual assault which is not rape can beevery bit as great as that resulting from rape. Minutes,above, fn. 3, p. 6:34. Contrast that with the view ofcommittee member, Coline Campbell, who agreed with Stuart,p. 6:36.349. The minimum penalty that may be ordered in cases of bothfirst and second degree murder is life imprisonment. A personconvicted of first degree murder will generally not beeligible for parole until after the expiration of 25 years; aperson convicted of second degree will not be eligible forparole for at least 10 years.350. There are other Code offences which might also then besplit into two offences. For instance, there is a differencein culpability between the person who knowingly drives in adrunken condition and the person who carefully measures herdrinking and believes erroneously that she is not "over thelimit" or impaired and yet is.351. By this I do not mean to imply that there is no socialinjury in intentional sexual assault, but that it may bedifferent.352. Comparison with the change in attitudes achieved bydrinking and driving legislation is Mobina Jaffer's comment:"Twenty years ago we would giggle if somebody drank anddrove. Today that is not socially acceptable behavior. Butlegislation had to change that. That's when the message gotthrough." Minutes, above, fn. 3, p. 3:37.353. Above, fn. 221.354. Above, fn. 220.355. Minutes, fn. 3, p. 1A:20.356. For example, in the work of the Law Reform Commission,particularly, Our Criminal Law, (1986).357. See J.H.Baker, An Introduction to English Legal History,2nd ed. (London:Butterworths, 1979) pp. 411-414.358. Lacey has observed the evolution of the concept and, as151well, its inherent flexibility. She asks whether criminal lawcan effectively address harm or reduce it. (Lacey et al,above, fn. 158, p. 3.) Similarly, Hastings and Saunders arecritical of the lack of content in the concept as used by theLRCC in Our Criminal Law, in "Social Control, State Autonomyand Law Reform: The Law Reform Commission of Canada" StateControl, above, fn. 9, at p. 133. David Dyzenhaus argues onthe other hand, that the harm concept could be used tosatisfy feminist demands for stricter rules on pornography in"Liberalism, Pornography and the Rule of Law" CanadianPerspectives on Legal Theory Richard Devlin, ed. (EmondMontgomery, 1991) p. 13. A broad notion of harm could alsobe used to extend the offence of sexual assault even wherethere was consent. If a woman feels violated after the factof sexual activity, does she not experience harm, and if shedoes, is the person who for example, may have persuaded heragainst her better judgment or under false claims of love,not responsible for causing it?359. Above, fn. 192.360. He fails to note that the kiss would have been illegalas an assault, whether sexual or not, prior to Bill C-49. SeeBoyle, Sexual Assault, above, fn. 18, pp. 55-58.361. De minimus non curat lex is rarely successful. It hardlylies in one's mouth to suggest to a judge that even thoughthe law was broken, no harm was done. The major goal ofsentencing is seen by many, including the Canadian SentencingCommission, not to be the reduction of harm in society, butthe preservation of respect for law. Another way of sayingthis, is that breaking the law is harmful, in it and ofitself.362. The usual way of stating this has to do with how onekicks a dog. It has been suggested that a dog knows whetherit is kicked intentionally or accidentally. Can we be surethat the analogy holds true for other offences?363. For example see Clark and Lewis, above, fn. 23.364. Note that fear of sexual assault was a motivating factorbehind Bill C-49, as indicated in the preamble. However, mostof the changes that were made to the law address the problem,not of sexual assault by strangers, but by acquaintances.365. Above, fn. 215.366. See above, fn. 348.367. It has also been argued that it has been usedhistorically to further policies of control of women. See,for example, Charlene L. Muehlenhard "Definitions of Rape andTheir Implications" (1992), 48 Journal of Social Issues 23,at p. 40; also Steven Box, Power Crime and Mystification(Tavistock, 1983) p. 121. Carol Smart, above, fn. 165, pp.27-49.152153368. Ibid.369. See generally, Anderson and Zinsser, above, fn. 24,p. 243-247.370. This was the approach taken at the District Court levelin R. v. McCraw (1989), 21(1) Ottawa L. R. 201.371. These were the primary justifications offered indeterminations of the constitutionality of the genderspecific statutory rape provisions, post Charter. Theprovisions, it was argued, existed to prevent young girlsfrom becoming pregnant.372. For a general discussion see Colvin, above, fn. 327,p. 212. He notes that vagueness has previously only been adefence to a breach of a by-law, and not a penal statute. Seefurther its limited application under the Charter: DonStuart, Charter Justice in Canadian Criminal Law (Carswell,1991) pp. 78-87.373. Above, fn. 204.374. R. v. Jobidon (1991), 7 C.R.(4th) 233.(S.C.C.)375. Section 9 of the Criminal Code provides that no one maybe convicted of offences at common law.376. The legal answer to this complaint is first that theprinciple has never required the law to be contained in astatute. It may just as easily be found in case law. SeeColvin above, fn. 327, p. 212. Thus any question that aperson may have now about the legality of consent to assaultcausing bodily harm has been determined.377. The dissent given by Sopinka J. was to this effect.378. Above, fns. 193, 204.379. A lot of fun was had in respect of this provision andmany predicted the development of the bedroom breathalyzer,as per the Lawyers' Weekly, though none advanced sharecapital.380. According to Lord Devlin, if our law weren't logical atthe root, it would not endure. (Quoted in Fitzgerald, above,fn. 283, p. 6) On the other hand, Lord Salisbury argued in1889, in the context of whether or not people should beflogged for certain crimes, that English criminal law wasbasically irrational (Leon Radzinowicz and Roger Hood, AHistory of English Criminal Law, Vol. 5, (London: Stevens & Sons,1986) p. 702. See also Mohr, above, fn. 283, p.35 on the searchfor logic.381. Edward Levi, An Introduction to Legal Reasoning (Univ. ofChicago Press, 1949).382. On essentialism, see Anne Kingdom, What's Wrong withRights? (Edinburgh Univ. Press, 1991).383. Kathleen Lahey, Implications of Feminist Theory for theDirection of Reform of the Criminal Code (Queen's Univ.,unpublished, 1984)384. Above, fns. 210-211. The CLAO took the position thatit was improper for Parliament to explain its intent orcontribute its understanding of what living in a free anddemocratic country means. The CLAO treated the legislativeprocess as a pre-trial proceeding, in which each side, thedefence and Parliament, had to follow the rules required inan adversarial system. The lawyers were truly in the throesof the power of law, and the power of the trial determinationitself. See Smart, above, fn. 165, pp. 2-25.385. See, for example, the argument of Douglas Husak on thispoint in Philosophy of Criminal Law (Totowa,N.J.: Rowman andLittlefield, 1987) pp. 20-25.386. See generally, Fitzgerald, above, fn. 283. Are we nothowever, merely engaged in a process of reification, asdiscussed by Peter Gabel in "Reification in Legal Reasoning"(1980), 3 Research in Law and Sociology 25.387. Contrast this with the metaphor used in the Globeeditorial, above, fn. 310.388. Above, fn. 256. It is not surprising that most ofthe arguments which invoke "fundamental principles" areproduced by lawyers, who, as a result of their education andoccupation, are trained to interpret social problems as legalproblems. As Patrick Fitzgerald observes, the "average lawyerturned law reformer" looks only to the law, rather than tomorality and "social convenience," to determine how the lawshould be reformed. Fitzgerald, above, fn. 283, p. 6.389. Tadeusz Grygier, above, fn. 336, p. xvii.390. Lord Lloyd of Hampstead, Introduction to Jurisprudence(Toronto: Carswell, 1979) p. 86.391. Sanford Kadish, a criminal law historian, also notes the"marriage" in codification of natural lawyers and rationalutilitarians in "The Model Penal Code's HistoricalAntecedents" (1988), 19 Rutgers L.J. 521. In the samevolume, Frank Remington provides insight into exactly howclose the union is when he declares. (uncritically) thatbelief in codification is a matter of faith (in "The Futureof the Substantive Criminal Law Codification Movement-Theoretical and Practical Concerns", p. 867.)392. See above, fns. 24, 254-258.393. Much of the debate took place within the the framework of154155nature as relevant criterion. For instance, the submission byLEAF to the legislative committee sought to establish thatthe "nature" ascribed to women by law in the past isproblematic, to put it mildly. The same point has beenmade in relation to reform of another jurisdiction's rapelaw: "The traditional view of the crime of rape has expressedthe degrading notion that women would consent to a brutal,violent assault, or that their essentially vindictive naturewould lead them to fantasize about and fabricate theoccurrence of the crime." (Marsh, above, fn. 279, p.3) Atelling problem quickly appears in the counter arguments: ifwe address the "nature of women" by simply changing thecontent of the category, we are just as open to attack asthose who argued for ancient views of women, for any view onthe "nature of women" is as intuitive and lacking in basis asany other and, just as before, the broad masses of women arepigeon-holed, type-set, and put up in distinction to men.Only the characteristics differ. The women's groups addressedthis, but quaere whether the framework is not the problem.394. See above, fns. 8, 16.395. Hastings and Saunders, above, fn. 358.396. Ibid.397. For instance, in Our Criminal Law (1976) the LRCC raisedthe issues of unequal impact of criminal law on rich and poorand questioned the priority accorded to property offences.pp. 11-12.398. George Fletcher, Rethinking Criminal Law (Toronto: Little,Brown & Co., 1978) pp. 393-401.399. Also see Husak, above, fn. 381.400. See, for example, the remarks of Richard G. Singer thatcodification allows one to critique the law and examine moraland philosophical underpinnings. He suggests that prior tocodification, "we were illiterate in the concepts of the criminallaw." "Foreword" (1988), 19 Rutgers L.J. 519. Is this notpre-determining the moral and philosophical framework? Also seeJ.C. Smith "Codification of the Criminal Law" (1987), DenningL.J. 137 at p. 140, and Don Stuart's brief in Minutes ofProceedings and Evidence of the Sub-committee on theRecodification of the General Part of the Criminal Code, House ofCommons, Issue No. 9, Nov. 26, 1992, p. 9A:38, to the effect thatalthough there may be disagreements as to the substantive contentof recodification, the project should nevertheless proceed.401. Lahey, above, fn. 379; Mohr, above, fn. 283; Grainne deBurca and Simon Gardner "The Codification of the CriminalLaw" (1990), 10 Oxford J. of Legal Studies 559.402. On consistency, see de Burca and Gardner, ibid, pp.562-567, and the author, Minutes, above, fn. 398, pp. 9A:24-25.403. See above, final point in fn. 328.404. The contrasting method is to take specifics and startwith them, advocated in de Burca and Gardner, above fn. 397.Also Tove Stang Dahl "Taking women as a starting point,Building Women's Law" (1986), 14 Intern. J. of the Sociologyof L. 239.405. In its first Report on Recodification, #30, the LRCC didnot deal with sexual offences, although it did have a titleon crimes against the person. It oulined the parts to come ina second volume, and although not specified, sexual assaultcould only come under the title, "Crimes against Marriage andthe Family." In the second report, #31, the LRCC said at p. 3that sexual offenecs would be dealt with later, along withabortion, prostitution and pornography.406. Contrast the method of Zillah Eisenstein who takes thepregnant body as her standard. Above, fn. 284.407. See for instance the LRCC, Our Criminal Law, p. 3.Also Carol Smart, fn. 165, p.45 where she shows how lawreform did not achieve the results hoped for by women.408. Packer, above, fn. 320.409. John Griffiths "Ideology in Criminal Procedure, or aThird 'Model' of the Criminal Process" (1970), 79 Yale.L.J.353. Marguerite Russell "A Feminist Analysis of the CriminalTrial Process" (1989/90), 3 C.J.W.L. 552. Also Ericson andBaranek, above, fn. 260 who argue that due process reallyserves the crime control function.410. Above, text following fn. 253.411. But, is it the principles themselves, or the powerexerted by those who put them into place?412. See, for example, Walter Tarnopolsky, Discrimination andthe Law in Canada (Don Mills, Ont.: Richard DeBoo, 1982) pp.1-24.413. See, for example, the Report of the Manitoba AboriginalJustice Inquiry (Winnipeg: Queen's Printer, 1991).414. Canadian Centre for Justice Statistics "PublicPerceptions of Crime and the Criminal Justice System"Juristat, Vol. 11, No. 1, 1991.415. A second related point is obvious: if an amendment isnot seen as warranted, will it be obeyed? And if oneprovision is ignored, the whole of criminal law ischallenged. For instance, if men generally believe that thebill's requirement to take reasonable steps to assure theyhave consent to sexual intercourse is unreasonable, thentheir faith in criminal law will be diminished and its156157legitimacy, in their eyes, will be weakened. Their onlyreason then to obey the law would be fear of apprehension andpunishment. Similarly, if police, judges, and prosecutors donot support the changes the objective of the law may bethwarted, and the response of the public and the personnelwithin the system may be generalized to other parts of thelaw.416. For example, see Lorenne Clark "Feminist perspective onviolence against women and children: psychological socialservice and criminal justice concerns" (1989-90), 3 C.J.W.L.420; Women and Criminal Justice Issues: Workshop Proceedings,Pat File, ed. (Ottawa: NAWL, 1987); R.M. Mohr "Sentencing as aGendered Process" (1990), 32 Can. J. Crim. 479.417. Cited in Curt T. 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(Vancouver:Carswell, 1986) p. 65.Husak, Douglas, Philosophy of Criminal Law (Totowa,N.J.:Rowman and Littlefield, 1987).Justice Communiqué "Kim Campbell promises legislation toprotect sexual assault complainants" (Minister of Justice andAttorney-General of Canada, Sept. 13, 1991).Justice Communiqué "New Criminal Code Provisions to ProtectSexual Assault Victims" (Minister of Justice and Attorney-General of Canada, Dec. 12, 1991).160Justice Information "Background Information" (Minister ofJustice and Attorney-General of Canada, December, 1991).Kadish, Sanford "The Model Penal Code's HistoricalAntecedents" (1988), 19 Rutgers L.J. 521.Kingdom, Anne, What's Wrong with Rights (Edinburgh UniversityPress, 1991).Lacey, Nicola, Celia Wells and Dirk Meure, ReconstructingCriminal Law (London: Weidenfeld and Nicolson, 1990).Lahey, Kathleen, Implications of Feminist Theory for theDirection of Reform of the Criminal Code (Queen's Univ.,unpublished, 1984).Law Reform Commission of Canada, The Meaning of Guilt: StrictLiability. 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Appleby, [1972] S.C.R. 303, 21 D.L.R.(3d) 325, 16C.R.N.S. 35, 3 C.C.C.(2d) 354.R. v. Bailey (1800), Russ & Ry. 1, 168 E.R. 651 (C.C.R.).R. v. Bernard, [1988] 2 S.C.R. 833, 67 C.R.(3d) 113, 45C.C.C.(3d) 1.R. v. Bolduc and Bird, [1967] S.C.R. 677 (Ont. Prov. Ct.).R. v. Bulmer (1987), 58 C.R. (3d) 48 (S.C.C.).R. v.Butler (1992), 11 C.R.(4th) 137 (S.C.C.).R. v. Chase (1987), 59 C.R. (3d) 193 (S.C.C.).R. v. Hobson (1823), Lew C.C.R. v. Jobidon (1991), 7 C.R.(4th) 233.(S.C.C.).R. v. Leary, [1978] 1 S.C.R. 29, 37 C.R.N.S. 60, 33 C.C.C.(2d)473, 74 D.L.R.(3d) 103.R. v. Lee's Poultry Ltd. (1985), 17 C.C.C.(3d) 539; 43C.R.(3d) 289 (Ont. C.A.).R. v. Lesson, (B.C.J.833, Jan. 12, 1990, B.C.C.A.).R. v. Letendre (1991), 5 C.R.(4th) 159 (B.C.S.C.).R. v. Maki, [1971] 1 C.C.C. 333, 10 C.R.N.S. 268, 14D.L.R.(3d) 164 (Ont. Prov. Ct.).R. v. Martineau, [1990] 2 S.C.R. 633, 79 C.R.(3d) 129, 58C.C.C.(3d) 353.R. v. McCraw (1989), 21(1) Ottawa L. R. 201.R. v. McCraw (1991), 7 C.R.(4th) 314 (S.C.C.).R. v. Oakes, [1986] 1 S.C.R. 103, 50 C.R.(3d) 1, 24 C.C.C.(3d)321 (S.C.C.).R. v. Onalikeal, (N.W.T.J. No. 895, Sept. 19, 1990.).R. v. Osolin (1992), 10 C.R. (4th) 159, (B.C.C.A.) on appealto S.C.C.R. v. Pappajohn, [1980] 2 S.C.R. 120, 14 C.R.(3d) 243, 52C.C.C.(2d) 481, 111 D.L.R.(3d)1, 32 N.R. 104.165R. v. Reddick (1991), 5 C.R. (4th) 389 (S.C.C.).R. v. Sansregret, [1985] 1 S.C.R. 570, 45 C.R.(3d) 193, 17D.L.R. (4th) 577, 18 C.C.C.(3d) 223.R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, 3 C.R. (3d) 30,40 C.C.C.(2d) 353, 85 D.L.R. (3d) 161.R. v. Seaboyer (1991), 83 D.L.R.(4th) 193, 66 C.C.C(3d)321, 7 C.R.(4th) 117 (S.C.C.).R. v. Vaillancourt, [1987] 2 S.C.R. 636, 60 C.R.(3d) 289, 39C.C.C.(3d) 118.R. v. Weaver (1990), 80 C.R.(3d) 396 (Alta. C.A.).Woolmington v. D.P.P., [1935] A.C. 462.166TABLE OF STATUTESAn Act to amend the Criminal Code (sexual assault), S.C.1992, c. 38.Constitution Act, 1982, Pt. 1, enacted by Canada Act, 1982(U.K.), c. 11, (hereinafter the Charter).Criminal Code, R.S.C. 1970, c. C-34.Criminal Law Amendment Act, 1975, S.C. 1974-75-76, c. 93.Criminal Law Amendment Act, S.C. 1980-81-82, c. 125.Interpretation Act, R.S.C. 1985, c. 1-21.167CHRONOLOGICAL TABLE OF POPULAR ARTICLES"Court ruling chilling outraged feminists say" Toronto Star,Aug. 23, 1991."Women express anger over sexual assault ruling" VancouverSun, Aug. 23, 1991."Rape law to require defence to reveal case before trial"Montreal Gazette, Dec. 5, 1991,"Sexual Assault Law will define consent" Globe and Mail,Dec. 12, 1992."Political battle looms over sex-assault Bill" (Jeff Sallot)Globe and Mail, Dec. 13."Legal experts critical of new rape-shield law" Winnipeg FreePress, Dec. 13, 1991."Beware mixing drink, sex, top defence lawyer says" TorontoStar, Dec. 13, 1991."LEAF replies" (P.Breck) Globe and Mail, Dec. 21, 1991."New Sexual Assault Legislation a Step Forward" LEAF Lines,Jan. 1992."Rape shield law struck down" LEAF Lines, Jan. 92."Women's groups meet with Justice Minister" LEAF Lines, Jan.1992."Most back rape-shield law (Gallup)" Montreal Gazette, Jan.13, 1992."Sex history irrelevant, most say (Gallup poll)" TorontoStar, Jan. 13, 1992."'I thought she meant yes' isn't good enough" (Alan Brudner)Globe and Mail, Jan. 27, 1992."Groups want new law toughened: protection needed in sexualassaults" Globe and Mail, Jan. 29, 1992."New rape-shield law inadequate, critics say" Vancouver Sun,Jan. 29, 1992."Proposed sex assault Bill an expression of feminist hatred"(Rob Martin) Lawyers' Weekly, Jan. 31, 1992."Chilling the sexes" (Mary Nemeth) Maclean's, Feb. 17, 1992.Bill C-49 - the New Rape Law" Jurisfemme, Vol. 12, No. 2,Mar. 1992.168"Lawyers wary of proposed rape law-Commons committeetold new standards are contrary to 'centuries of acceptedbehavior "'Globe and Mail, May 15, 1992."Slow learners could face jail" Vancouver Sun, May 15, 1992."Assault on the law, not to say common sense" Globe and Mail,May 19, 1992."What's wrong with the new bill? Plenty." (Clayton Ruby)Globe and Mail, May 19, 1992."Real Women call proposed rape bill a feminist attack onmales" Vancouver Sun, May 20, 1992."Sexual assault legislation attacked-Bill unfair to men, REALwomen say" Globe and Mail, May 20, 1992."If you're confused, don't. If in doubt, don't." Globeand Mail, May 20, 1992."A kiss stolen on first date a possible crime, MPs told"Vancouver Sun, May 22, 1992."Feminists seek more sensitivity" Vancouver Sun, June 2,1992."Campbell agrees to amend bill- Changes ease fear thatproposed law would violate rights of accused" (Geoffrey Yorkand Jeff Sallot) Globe and Mail, June 3, 1992."An improved rape law" Vancouver Sun, June 4, 1992."Only a Yes will do" Time, June 29, 1992."Male bias cited in fight for rights" Vancouver Sun, Sept.11, 1992.169170APPENDIX 1APPENDIX 1: BILL C-49FIRST DRAFTBILL C-49An Act to amend the Criminal Code (sexual assault)WHEREAS the Supreme Court of Canada hasdeclared the existing section 276 of the Criminal Code to be of no forceand effect;WHEREAS the Parliament of Canada is gravely concerned about theincidence of sexual violence and abuse in Canadian society;WHEREAS the Parliament of Canada recognizes the unique character ofthe offence of sexual assault and how sexual assault and, moreparticularly, the fear of sexual assault affect the lives of the people ofCanada;WHEREAS the Parliament of Canada wishes to encourage the reportingof incidents of sexual violence or abuse, and to provide for theprosecution of offenders within a framework of laws that are consistentwith the principles of fundamental justice and that are fair tocomplainants as well as to accused persons;WHEREAS the Parliament of Canada wishes to promote the fullprotection of the rights guaranteed under sections 7 and 15 of theCanadian Charter of Rights and Freedoms;AND WHEREAS the Parliament of Canada believes that at trials ofsexual offences, evidence of the complainant's sexual history is rarelyrelevant and that its admission should be subject to particular scrutiny,bearing in mind the inherently prejudicial character of such evidence;NOW THEREFORE, Her Majesty, by and with the advice and consentof the Senate and House of Commons of Canada, enacts as follows:1. The Criminal Code is amended by adding thereto,immediately after section 273 thereof, the following sections:273.1 (1) Subject to subsection (2) and subsection 265(3), "consent"means, for the purposes of sections 271, 272 and 273, the voluntaryagreement of the complainant to engage in the sexual activity inquestion.(2) No consent is obtained, for the purposes of sections 271, 272 and273, where(a) the agreement is expressed by the words or conduct of a person otherthan the complainant;(b) the complainant is incapable of consenting to the activity;171(c) the accused induces the complainant to engage in the activity byabusing a position of trust, power or authority;(d) the complainant expresses, by words or conduct, a revocation ofagreement to engage in the activity; or(e) the complainant, having consented to engage in sexual activity,expresses, by words or conduct, a lack of agreement to engage in theactivity.(3) Nothing in subsection (2) shall be construed as limiting thecircumstances in which no consent is obtained.273.2 It is not a defence to a charge under section 271, 272 or 273that the accused believed that the complainant consented to the activitythat forms the subject-matter of the charge, where(a) the accused's belief arose from the accused's(i) self-induced intoxication, or(ii) recklessness or wilful blindness; or(b) the accused did not take reasonable steps, in the circumstancesknown to the accused at the time ; to ascertain that the complainant wasconsenting.2. Section 276 of the said Act is repealed and the followingsubstituted therefor:276. (1) In proceedings in respect of an offence under section 151,152, 153, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172,173, 271, 272 or 273, evidence that the complainant has engaged insexual activity, whether with the accused or with any other person, is notadmissible to support an inference that, by reason of the sexual nature ofthat activity, the complainant(a) is more likely to have consented to the sexual activity that forms thesubject-matter of the charge; or(b) is less worthy of belief.(2) In proceedings in respect of an offence referred to in subsection (1),no evidence shall be adduced by or on behalf of the accused that thecomplainant has engaged in sexual activity other than the sexual activitythat forms the subject-matter of the charge, whether with the accused orwith any other person, unless the judge, provincial court judge or justicedetermines, in accordance with the procedures set out in sections 276.1and 276.2, that the evidence(a) is of specific instances of sexual activity;(b) is relevant to an issue at trial; and(c) whether there is a reasonable prospect that the evidence will assist inarriving at a just determination in the case.(3) In determining whether evidence is admissible under subsection (2),the judge, provincial court judge or justice shall take into account(a) the interests of justice, including the right of the accused to make afull answer and defence;(b) society's interest in encouraging the reporting of sexual assaultoffences;(c) whether the evidence will reasonably assist in arriving at a justdetermination in the case;(d) the need to remove from the fact-finding process any discriminatorybelief or bias;172(e) the risk that the evidence may unduly arouse sentiments ofprejudice, sympathy or hostility in the jury;(1) the potential prejudice to the complainant's personal dignity and rightof privacy;(g) the right of the complainant and of every individual to personalsecurity and to the full protection and benefit of the law; and(h) any other factor that the judge, provincial court judge or justiceconsiders relevant.276.1 (1) Application may be made to the judge, provincial court judgeor justice by or on behalf of the accused for a hearing under section276.2 to determine whether evidence is admissible under subsection276(2).(2) An application referred to in subsection (1) must be made in writingand set out(a) detailed particulars of the evidence that the accused seeks to adduce,and(b) the relevance of that evidence to an issue to be proved at trial,and a copy of the application must be given to the prosecutor and to theclerk of the court.(3) The judge, provincial court judge or justice shall consider theapplication with the jury and the public excluded.(4) Where the judge, provincial court judge or justice is satisfied(a) that the application was made in accordance with subsection (2),(b) that a copy of the application was given to the prosecutor and to theclerk of the court at least seven days previously, or such shorter intervalas the judge, provincial court judge or justice may allow where theinterests of justice so require, and(c) that the evidence sought to be adduced is capable of being admissibleunder subsection 276(2),the judge, provincial court judge or justice shall grant the application andhold a hearing under section 276.2 to determine whether the evidence isadmissible under subsection 276(2).276.2 (1) At a hearing to determine whether evidence is admissibleunder subsection 276(2), the jury and the public shall be excluded.(2) The complainant is not a compellable witness at the hearing.(3) At the conclusion of the hearing, the judge, provincial court judgeor justice shall determine whether the evidence, or any part thereof, isadmissible under subsection 276(2) and shall provide reasons for thatdetermination, and(a) where not all of the evidence is to be admitted, the reasons must statethe part of the evidence that is to be admitted;(b) the reasons must state the factors referred to in subsection 276(3) thataffected the determination; and(c) where all or any part of the evidence is to be admitted, the reasonsmust state the manner in which that evidence is expect to be relevant toan issue at trial.(4) The reasons provided under subsection (3) shall be entered in therecord of the proceedings or, where the proceedings are not recorded,shall be provided in writing.173276.3 (1) No person shall publish in a newspaper, as defined in section297, or in a broadcast, any of the following:(a) the contents of an application made under section 276.1;(b) any evidence taken, the information given and the representationsmade at an application under section 276.1 or at a hearing under section276.2; and(c) the determination made and the reasons provided under section276.2,(i) that determination is that evidence is admissible, or(ii) the judge, provincial court judge or justice, after taking into accountthe complainant's right of privacy and the interests of justice, orders thatthe determination and reasons may be published.(2) Every person who contravenes subsection (1) is guilty of an offencepunishable on summary conviction.276.4 Where evidence is admitted at trial pursuant to a determinationmade under section 276.2, the judge shall instruct the jury as to the usesthat the jury may and may not make of that evidence.276.5 For the purposes of sections 675 and 676, a determination madeunder section 276.2 shall be deemed to be a question of law.3. This Act or any provision thereof, or any provision of theCriminal Code as enacted by this Act, shall come into force on a dayor days to be fixed by order of the Governor in Council.174APPENDIX 2APPENDIX 2: BILL C-49AS PASSEDBILL C-49An Act to amend the Criminal Code (sexual assault)WHEREAS the Parliament of Canada is gravely concerned about theincidence of sexual violence and abuse in Canadian society and, inparticular, the prevalence of sexual assault against women and children;WHEREAS the Parliament of Canada recognizes the unique character ofthe offence of sexual assault and how sexual assault and, moreparticularly, the fear of sexual assault affects the lives of the people ofCanada;WHEREAS the Parliament of Canada intends to promote and help toensure the full protection of the rights guaranteed under sections 7 and15 of the Canadian Charter of Rights and Freedoms;WHEREAS the Parliament of Canada wishes to encourage the reportingof incidents of sexual violence or abuse, and to provide for theprosecution of offences within a framework of laws that are consistentwith the principles of fundamental justice and that are fair tocomplainants as well as to accused persons;WHEREAS the Supreme Court of Canada has declared the existingsection 276 of the Criminal Code to be of no force and effect;AND WHEREAS the Parliament of Canada believes that at trials ofsexual offences, evidence of the complainant's sexual history is rarelyrelevant and that its admission should be subject to particular scrutiny,bearing in mind the inherently prejudicial character of such evidence;NOW THEREFORE, Her Majesty, by and with the advice and consentof the Senate and House of Commons of Canada, enacts as follows:1. The Criminal Code is amended by adding thereto,immediately after section 273 thereof, the following sections:273.1 (1) Subject to subsection (2) and subsection 265(3), "consent"means, for the purposes of sections 271, 272 and 273, the voluntaryagreement of the complainant to engage in the sexual activity inquestion.(2) No consent is obtained, for the purposes of sections 271, 272 and273, where(a) the agreement is expressed by the words or conduct of a person otherthan the complainant;(b) the complainant is incapable of consenting to the activity;175(c) the accused induces the complainant to engage, in the activity byabusing a position of trust, power or authority;(d) the complainant expresses, by words or conduct, a revocation ofagreement to engage in the activity; or(e) the complainant, having consented to engage in sexual activity,expresses, by words or conduct, a lack of agreement to engage in theactivity.(3) Nothing in subsection (2) shall be construed as limiting thecircumstances in which no consent is obtained.273.2 It is not a defence to a charge under section 271, 272 or 273that the accused believed that the complainant consented to the activitythat forms the subject-matter of the charge, where(a) the accused's belief arose from the accused's(i) self-induced intoxication, or(ii) recklessness or wilful blindness; or(b) the accused did not take reasonable steps, in the circumstancesknown to the accused at the time, to ascertain that the complainant wasconsenting.2. Section 276 of the said Act is repealed and the followingsubstituted therefor:276. (1) In proceedings in respect of an offence under section 151,152, 153, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172,173, 271, 272 or 273, evidence, that the complainant has engaged insexual activity, whether with the accused or with any other person, is notadmissible to support an inference that, by reason of the sexual nature ofthat activity, the complainant(a) is more likely to have consented to the sexual activity that forms thesubject-matter of the charge; or(b) is less worthy of belief.(2) In proceedings in respect of an offence referred to in subsection (1),no evidence shall be adduced by or on behalf of the accused that thecomplainant has engaged in sexual activity other than the sexual activitythat forms the subject-matter of the charge, whether with the accused orwith any other person, unless the judge, provincial court judge or justicedetermines, in accordance with the procedures set out in sections 276.1and 276.2, that the evidence(a) is of specific instances of sexual activity;(b) is relevant to an issue at trial; and(c) has significant probative value that is not substantially outweighed bythe danger of prejudice to the proper administration of justice.(3) In determining whether evidence is admissible under subsection (2),the judge, provincial court judge or justice shall take into account(a) the interests of justice, including the right of the accused to make afull answer and defence;(b) society's interest in encouraging the reporting of sexual assaultoffences;(c) whether the evidence will reasonably assist in arriving at a justdetermination in the case;(d) the need to remove from the fact-finding process any discriminatorybelief or bias;176(e) the risk that the evidence may unduly arouse sentiments ofprejudice, sympathy or hostility in the jury;(r) the potential prejudice to the complainant's personal dignity and rightof privacy;(g) the right of the complainant and of every individual to personalsecurity and to the full protection and benefit of the law; and(h) any other factor that the judge, provincial court judge or justiceconsiders relevant.276.1 (1) Application may be made to the judge, provincial court judgeor justice by or on behalf of the accused for a hearing under section276.2 to determine whether evidence is admissible under subsection276(2).(2) An application referred to in subsection (1) must be made in writingand set out(a) detailed particulars of the evidence that the accused seeks to adduce,and(b) the relevance of that evidence to an issue to be proved at trial,and a copy of the application must be given to the prosecutor and to theclerk of the court.(3) The judge, provincial court judge or justice shall consider theapplication with the jury and the public excluded.(4) Where the judge, provincial court judge or justice is satisfied(a) that the application was made in accordance with subsection (2),(b) that a copy of the application was given to the prosecutor and to theclerk of the court at least seven days previously, or such shorter intervalas the judge, provincial court judge or justice may allow where theinterests of justice so require, and(c) that the evidence sought to be adduced is capable of being admissibleunder subsection 276(2),the judge, provincial court judge or justice shall grant the application andhold a hearing under section 276.2 to determine whether the evidence isadmissible under subsection 276(2).276.2 (1) At a hearing to determine whether evidence is admissibleunder subsection 276(2), the jury and the public shall be excluded.(2) The complainant is not a compellable witness at the hearing.(3) At the conclusion of the hearing, the judge, provincial court judgeor justice shall determine whether the evidence, or any part thereof, isadmissible under subsection 276(2) and shall provide reasons for thatdetermination, and(a) where not all of the evidence is to be admitted, the reasons must statethe part of the evidence that is to be admitted;(b) the reasons must state the factors referred to in subsection 276(3) thataffected the determination; and(c) where all or any part of the evidence is to be admitted, the reasonsmust state the manner in which that evidence is expect to be relevant toan issue at trial.(4) The reasons provided under subsection (3) shall be entered in therecord of the proceedings or, where the proceedings are not recorded,shall be provided in writing.177276.3 (1) No person shall publish in a newspaper, as defined in section297, or in a broadcast, any of the following:(a) the contents of an application made under section 276.1;(b) any evidence taken, the information given and the representationsmade at an application under section 276.1 or at a hearing under section276.2; and(c) the determination made and the reasons provided under section276.2,(i) that determination is that evidence is admissible, or(ii) the judge, provincial court judge or justice, after taking intoaccount the complainant's right of privacy and the interests of justice,orders that the determination and reasons may be published.(2) Every person who contravenes subsection (1) is guilty of an offencepunishable on summary conviction.276.4 Where evidence is admitted at trial pursuant to a determinationmade under section 276.2, the judge shall instruct the jury as to the usesthat the jury may and may not make of that evidence.276.5 For the purposes of sections 675 and 676, a determination madeunder section 276.2 shall be deemed to be a question of law.3. This Act or any provision thereof, or any provision of theCriminal Code as enacted by this Act, shall come into force on a dayor days to be fixed by order of the Governor in Council.

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