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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 REFORM  by JESSIE JOYCE HORNER B.Sc., The University of Saskatchewan, 1972 LL.B., The University of Saskatchewan, 1981  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES Faculty of Law We accept this thesis as conforming  THE UNIVERSITY OF BRITISH COLUMBIA April 1993 © Jessie J. Horner, 1993  In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission.  (Signatures)  Department of The University of British Columbia Vancouver, Canada  Date  DE-6 (2/88)  9/ 3  SEXUAL ASSAULT: PUBLIC DEBATE AND CRIMINAL LAW REFORM ABSTRACT  Canada's most recent amendments to the criminal law on sexual assault were developed in consultation with women's groups in response to the decision of the Supreme Court of Canada that existing restrictions on the admission of evidence of the sexual pasts of complainants in sexual offences is unconstitutional. The amendments dealt with the evidentiary issues, and, as well, the definition of consent, and the availability of the defence of mistaken belief in consent in sexual offences. Each of the three major political parties supported the new law. However, the women's groups that had originally been involved in its development sought to have several substantial changes made to it, and opposition to the Bill from defence lawyers, civil liberties associations and law professors was strong. In this thesis, I review the substantive law relating to the amendments, and the arguments in the House of Commons, in Parliamentary committee,'and in the media, all of which formed the public debate on the Bill. Key issues were whether criminal law should be used to advance social justice for women, and whether the new law contradicts the "natural order". A major argument against the Bill was that it contravened the fundamental principles of criminal law. It was argued that the fundamental principles should take priority over the Bill. Each of the issues is considered in this work. The major thrust, however, is on the normative value of the so-called principles of criminal law, which I argue are variously indeterminate and abstract, controversial and leading to unduly legalistic arguments. I consider some sources of these arguments and compare the approach taken in relation to the sexual assault amendments with that taken in another major law reform project, that of the recodification of the criminal law. It is my thesis that primacy should not be afforded the principles. At issue is the ability of Parliament to reform criminal law to meet emerging social issues. Against Parliament's competence to enact useful legislation is pitted the reified ways and means of doing criminal law in the past.  ii  iii TABLE OF CONTENTS  Abstract^ Table of Contents^  ii iii  Acknowledgement INTRODUCTION^  1  CHAPTER ONE BACKGROUND TO THE DEBATE ^ 6 A. Sexual Assault in Canadian Law ^6 1. R. v. Seaboyer^ 9 2. The aftermath of Seaboyer: the consultation process^13 3. Consent cases^ 14 B. The First Draft of Bill C-49^ 17 1. The preamble^ 18 2. The consent provisions ^ 19 3. The evidentiary provisions^21 4. The amendments^ 24 CHAPTER TWO SUMMARY OF THE ARGUMENTS ^25 A. The Arguments in Parliament^  25  B. The Arguments in the Committee Hearings^30 1. The committee^ 30 2. The women's groups who generally supported the Bill^ 31 3. The Canadian Bar Association^45 4. Opponents of the Bill ^ 47 C. The Debate in the Media^  53  CHAPTER THREE ANALYSIS OF THE OPPOSITION ARGUMENTS 62 A. Contrary to Nature^  62  B. The Need for Restraint^  63  C. Purpose of the Bill^  65  D. Process of Development of the Bill^71  E. Principles of Criminal Law^ 75 1. Relation to the Charter guarantees^75 2. The presumption of innocence^77 3. The meaning of the presumption of innocence^ 85 4. Every criminal act must be comprised of an actus reus and a mens rea^90 5. The principle of harm^ 100 6. The principle of legality^104 CHAPTER FOUR THE BASIS FOR THE PRIMACY ARGUMENTS 105 A. The Paramountcy of Basic Principles of Criminal Law^ 1. Common law methodology ^ 2. Naturalizing law^ 3. Recodification^  105 107 109  111  B. The Roles of Consensus and Purpose^114 CONCLUSION^AN ALTERNATIVE VIEW OF PRINCIPLES^118 Bibliography^  158  Table of Cases^  165  Table of Statutes^  167  Chronological Table of Popular Articles^168 Appendix 1^Bill C-49: First Draft.^170 Appendix 2^Bill C-49: As Passed.^174 Biographical Form  iv  Acknowledgement  I wish to thank Christine Boyle for her advice and encouragement throughout this project, John and Ira for their concern and patience, and Jim for his unflagging support and help.  INTRODUCTION  The subject of this thesis is the public debate on Bill C-49,  1  Canada's most recent "rape-shield" law. The Bill was  introduced into Parliament on December 12, 1991, went to committee on April 8, 1992, and with some amendment 2 was eventually proclaimed on August 15, 1992. Despite unanimous support in Parliament, the Bill was nevertheless highly controversial. It was vigorously debated in the press and in the briefs submitted to the parliamentary committee that studied it. 3 Although the Bill is now law, the different views that emerged during its debate and, as well, the unique process which preceded its drafting, continue to be important for several reasons. First, it is almost certain 4 that the Bill will be challenged in court for contravening the Charter of Rights and Freedoms. 5 Many of the arguments raised against the Bill will likely form the basis of this court challenge. Second, the drafting of the Bill exemplified a new approach to criminal law reform that some contributors lauded and others denounced.  6  The participants included legal  experts but also lay people with considerable experience in the social reality of sexual assault. The formerly exclusive domain of lawyers was, in some measure, challenged by those who face and deal with sexual assault. Given that major reform of Canadian criminal law is presently being contemplated,  8  attention to the process leading to Bill C-4 9  is timely and relevant.  2  Third, the debate has drawn attention to criminal law as a method of achieving social justice for women. Although most amendments to criminal law incorporate ideas about the nature and role of criminal law and the criminal justice system, these ideas are most often implicit in the reform process. In the debate on Bill C-49, however, explicit consideration was given not only to the specific purposes of the Bill but also to those of criminal law as a whole. The debate revealed disagreements about its role in theory and in practice. The questions and conclusions about criminal law that were generated during the the rape-shield debate hold valuable lessons for broader criminal law reform. It is a premise of this paper that an examination of what might be called the ideology of criminal law should be a pre-condition in any reform project. Finally, the debate is important for its revelation of criminal law as a model of consensus or of conflict.9 It was suggested during the debate that criminal laws against sexual assault have only applied to certain women, and then for reasons not to do with their individual rights to sexual autonomy, but to further the interests of men.  10  Although  such an analysis has long been part of feminist scholarship, 11 it has not been generally acknowledged.  12  The  Bill is unique and provocative if, as is contended by some,  13  it recognizes the existence of a power differential between the group of people who are men and the group of people who are women which is played out in encounters between individual men and women in sexual and legal situations. The  3  Bill thus implicitly accepts the existence of a hierarchy in  fact and in law based on gender. Traditional criminal law and a steadfast belief in the rule of law would preclude any such analysis, as equality of treatment is fundamental to both. 14 The Bill raises questions as to the degree to which mainstream political thought acknowledges inequality and hierarchy within criminal law, not simply in respect to "women" but also to particular groups of women who experience additional or compounded inequality, and even to other groups of people whose disadvantage in criminal law may not yet be under discussion. Legislators did not accept the challenge to consider the complexity of women.  15  Whether or not judges  will remains to be seen. In this paper I do not attempt to examine all of these issues directly. Nor do I attempt to explicate every argument that was raised. I will focus instead on the debate itself as it occurred in the hearings and briefs submitted to the legislative committee and in the popular press, drawing attention to the style and sources of arguments and the framework within which they were developed. I will emphasize the process that went into the drafting of the Bill and the different perspectives and justifications that were offered in respect of the Bill and criminal law. A major focus will be to consider the arguments raised against the Bill, particularly those that were claimed a basis in "fundamental principles" of criminal law. An underlying purpose of the paper will be to consider how the particular law reform project of Bill C-49 has been  4  carried out in comparison with the law reform project of recodification,  16  and to consider what of value might be  carried over from Bill C-49 to the recodification project. Conversely, the contribution of the recodification project to the arguments mounted against Bill C-49 is considered. Bill C-49 is concerned with specific problems occurring in relation to a particular kind of criminal harm. Recodification, on the other hand, is concerned with the development of an expanded general part to the Criminal Code, which would provide a framework for all criminal law and include all principles of general application, including an analysis and rationalization of the conditions for liability and all existing defences. The present proposals contemplate an entrenchment of interpretative guidelines. The practicality of the common law would be replaced by the principle of a code. With regard to this, it will be argued in this paper that neither rules nor principles have intrinsic value. More often than not, they are a result of choices about where and how to make classifications. Although some principles might be said to capture values and thus serve as useful reminders of those values, they should not be confused with the values themselves. At issue is the ability of Parliament to reform criminal law to meet emerging social issues. Pitted against Parliament's competence are the ways and means of doing criminal law in the past. It is my thesis that further  entrenchment through re-codification of "criminal law principles," whether substantive or procedural, would, at this point, be a mistake for two reasons: One, because there has been no adequate explanation or discussion of either the theoretical or practical implications of such recodification, and secondly, there neither is nor can there be consensus on the direction to be taken as long as the reform is narrowly conceived within the existing confines of criminal law as it is today. The debate on Bill C-49 provides a context in which this argument can be made. The paper is organized into four parts. The first part provides a background of the legislation and jurisprudence which preceded Bill C-49, as these in great measure created the need for Bill C-49 and defined the issues that were to be argued. The second part is a review of the arguments made in Parliament, before the legislative committee that studied the Bill, and in the press. It includes an analysis of the  differing points of view of those who supported the Bill, and some thoughts on what each was trying to achieve. The third part focusses on particular arguments raised against the Bill: that it was contrary to nature, that its purpose was improper, that it represented an extension of criminal law, that its development process was improper, and that it breached the principles of criminal law. It is these arguments that are most directly related to the recodification arguments. The final part considers the sources of the arguments based on principles, and questions the advisability of incorporating even greater levels of  6  theorizing into criminal law. My purpose is not to subject the Bill to strict legal or constitutional analysis but to develop a broader perspective that can be used to re-unite the internal workings of the criminal law with its social purposes. Some of the methods employed in this paper might accurately be described as feminist, particularly those described by Katherine Bartlett: asking the "woman question" and endeavouring to consider all points of view.  17  I have  also tried to use theory as a consciousness-raising device, and hence transform theoretical analysis into a feminist method. The point of theorizing here is not to rationalize, but to explore. In addition, I have borrowed from critical method and critiqued the arguments relating to principles from within their own framework. The paper is also a study of feminist legal method, in so far as feminist legal methods were utilized in the Bill and its development. "Asking the woman question," or, better, "asking the women question," and consciousness-raising sessions provided the impetus to Bill C-49 and were basic to the arguments of many of its supporters. The debate reveals that "the woman" in the woman question needs consideration, too, and that substituting a one-dimensional female standard where once was a male standard does not serve all women well. CHAPTER ONE BACKGROUND TO THE DEBATE A. Sexual Assault in Canadian Law  The roots of the debate on Bill C-49 extend back into  7  English common law. 18 While some forms of sexual assault have been offences since the earliest of times, others have not. Whether or not a sanction existed varied according to who committed precisely what act against whom. For instance, husbands traditionally enjoyed complete immunity from prosecution for rape of their wives, as first common law and then statute stipulated that the victim could not be the wife of the accused for an act to be classified in law as rape. 19 If the female person was under a specified age or of a particular character, sexual acts might again be defined as criminal by operation of law. 2° If the "nature and quality of the act" were fraudulently misrepresented to the woman, sexual intercourse was defined to be rape. 21 Conditions of war nullified, in practice at least, the law against rape, 22 and women's legal lack of capacity and credibility ensured that rape prosecutions were rare, and those, rarely successful. 23 So while laws against sexual aggression have existed for a long time, many forms of coercive sexual activity were not illegal. Similarly, many legal practices pertaining to sexual assault were simply encoded in everyday life as normal reflections of the relative natures of men and women. 24 They required no justification, though rationales did appear periodically in cases and legal treatises. 25 Even the last decade has been rife with judicial comments that appear to excuse or exonerate men from criminal or moral liability for sexual and physical aggression directed at women. 26 The foundation for such practices is said by some to lie in  8  notions of the very nature of women as vindictive, mendacious and morally responsible for whatever happened to them, or as a result of a view of women as "other," or, most often, as little more than chatte1. 27 Challenges to such concepts began as early as the fourteenth century, when Christine de Pisan argued that "women do not enjoy being raped." 28 According to Constance Backhouse, the limited legislative efforts in the nineteenth century to recognize women's rights to be free from sexual aggression were largely defeated by judicial decisions. 29 These rights did not again achieve any great measure of political support until the second half of this century. At that time, with anecdotal studies documenting the harm of sexual assault and empirical studies its incidence and low founding rates, 3° Parliament responded with legislative reform. The success of attempts to change legal practices through legislative law reform has been mixed, however. In Canada, the first criminal law reform relating to sexual offences occurred in 1976. 31 This amendment was aimed at protecting the complainant in respect of the use of evidence of her past sexual conduct. However, it has been documented 32 that the amendments had the opposite effect from that intended: the woman testifying as to the allegation of rape became compellable as to questions of past sexual conduct, albeit in a private inquiry, and the issue was no longer considered a collateral matter, but was now material so that independent witnesses could be called for the sole purpose of  9  testifying as to the past sexual conduct of the victim. In 1983, several changes were made to the evidentiary requirements, the definitions and the penalty structure of sexual offences. 33 These changes are fully discussed in the literature. 34 Germane to Bill C-49 was the near blanket proscription of the use of evidence of past sexual conduct of the complainant in s. 276 of the Criminal Code. This was the section found to be unconstitutional in R. v. Seaboyer 35 and that has now been rewritten in Bill C-49. Also relevant to the debate was the combination of the legal categories of rape and indecent assault into a new offence of sexual assault, and the recasting of nearly all sexual offences in gender neutral language. Bill C-49, discussed in detail below, addresses only some of the problems that have been identified in the law of sexual assault in Canada. For example, it does not attempt any definition of the harm in sexual assault, or threat of sexual assault raised in R. v. McCraw. 36 Similarly, it does not consider from whose perspective an assault will be considered to be sexual, or the effect of the three tiers of seriousness in charging practices.  37  In the following passage, I will review the case law which contributed to the provisions of Bill C-49. 1. R. v. Seaboyer 38 Section 276 was struck down as unconstitutional in R. v. Seaboyer for infringing the rights guaranteed accused persons  10  by s. 7 of the Charter. It did not comport with the principles of fundamental justice, in the view of McLachlin J. speaking for the majority, that a trial judge should be  prevented from determining the relevance of evidence sought to be introduced in the trial: sexual assault trials were no different than any other in that regard.  39  She 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 eliminating evidence which has little or no probative value. 2. to encourage the reporting of sexual assaults by providing safeguards to complainants in the trials. 3. to protect the witness's privacy.  40  Although she found no fault with the purpose of the legislation, she held that it breached s. 7 of the Charter in its effect. To paraphrase her judgment, she said that it is a fundamental principle of justice that the innocent not be punished. Innocence can only be protected through a fair trial, which in turn requires that the accused have the right to present full answer and defence, which includes the right to call relevant evidence. Relevance cannot be determined in a vacuum. Categorical exclusion of possibly relevant evidence could occur under s. 276, and the section therefore breached s. 7. Section 1 of the Charter could not save the provision because it failed the proportionality test, given the interest of the accused.  41  The dissent characterized the purpose of s. 276 somewhat differently. L'Heureux-Dube J. noted that the purpose was also to eliminate sex discrimination caused by the special  11  rules of evidence that had been developed by the courts in cases of sexual offences.  42  The key difference in the two judgments lay in how each judge saw the problem of sexual assault and the treatment of sexual assault survivors: L'Heureux-Dub6 J. viewed the problem as sex discrimination, bad things happening to women because they were women, whereas McLachlin J. saw the problem as bad things happening to people, period. If one views the problem of sexual assault and poor treatment of witnesses as occurring broadly against a whole group of people on the basis of their sex, as did L'Heureux-Dub6 J., a whole new reason for seeking to end it emerges and the need to deal with it becomes that much more compelling.  43  This  lack of agreement on how the problem should be characterized has 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 its state prior to the enactment of s. 276. She laid down new common law rules for the admissibility of sexual conduct evidence: 1. On a trial for a sexual offence, evidence that the complainant has engaged in consensual sexual conduct on other occasions (including past sexual conduct with the accused) is not admissible solely to support the inference that the complainant is by reason of such conduct: (a) more likely to have consented to the sexual conduct at issue in the trial; (b) less worthy of belief as a witness. 2. Evidence of consensual sexual conduct on the part of the complainant may be admissible for purposes other  12  than an inference relating to the consent or credibility of the complainant where it possesses probative value on an issue in the trial and where that probative value is not substantially outweighed by the danger of unfair prejudice flowing from the evidence. 3. Before evidence of consensual sexual conduct on the part of a victim is received, it must be established on a voir dire (which may be held in camera) by affidavit or the testimony of the accused or third parties, that the proposed use of the evidence of other sexual conduct is legitimate. 4. Where evidence that the complainant has engaged in sexual conduct on other occasions is admitted in a jury trial, the judge should warn the jury against inferring from the evidence of the conduct itself, either that the complainant might have consented to the act alleged, or that the complainant is less worthy of credit. 44 McLachlin J. suggested several scenarios where sexual conduct evidence would be admissible. She went further than had s. 276, however, in asserting that past sexual conduct, even with the accused himself, could not be held probative of consent, in and of itself. 45 Her framework linked admissibility of sexual conduct evidence to an issue other than consent or credibility; despite her claim that relevance could not be determined in a vacuum, she did agree that past sexual conduct could not be relevant to consent. As L'Heureux-Dub6 J. put it, consent in matters of sex is to a person, not to an activity.  46  McLachlin J. said that the  trier of fact was to be instructed that even though evidence of past sexual conduct was admissible, such evidence was not to be used to advance an argument that the complainant was less likely to be telling the truth or more likely to have consented to the sexual activity giving rise to the charge. In fact, there was no fundamental disagreement between the opinions of the majority and the dissent on whether past  13  sexual conduct could be relevant to the issue of consent. The difference lay in whether evidence of past sexual conduct could be relevant in a legal sense to anything else. 2. The aftermath of Seaboyer: the consultation process  There was a strong response to the decision by several women's groups, many of whom had been involved in the legal arguments supporting the constitutionality of s. 276 in Seaboyer. Aspects of both the decision and the response to it were well-reported by the press, though somewhat unevenly. 47 Many women's groups warned that witnesses would be unlikely to report rapes once again. 48 The Minister of Justice at the time, the Honourable Kim Campbell, initiated a process of consultation with women's groups in order to prepare 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, she promised quick action. 5° Within three months of Seaboyer and before the consultation process had been completed, Bill C-49 was tabled in the House of Commons. Campbell said that women participating in the initial meetings were in agreement that a new sexual assault law had to do more than "fix" the evidentiary rule on admissibility of the sexual past of the primary witness, it must also address the issue of consent. 51 Thus the Bill addressed not only the admissibility of evidence of the primary witness's sexual past but also the mistake of fact defence as it related to consent, and the  14  definition of consent. A consultation with 60 women's groups resumed in January, 1992, for three days, during which time the groups drafted and agreed unanimously to recommend amendments to the Bill. Of the proposed amendments, only a few were eventually incorporated into the Bill. 52 3. Consent cases  Prior to Bill C-49, s. 265 of the Code defined assault  inter alia as the intentional application of force, direct or indirect, to a person, without the consent of that person. Section 265(3) set out instances where "no consent is obtained where the complainant submits or does not resist by reason 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 question was whether this list of circumstances was exhaustive of those where a lack of resistance on the part of the complainant would nevertheless negate a finding of consent.) In everyday as well as legal parlance, consent was considered a question of fact.  53  Because it was a question of  fact, the so-called defence of mistake of fact was then available to an accused. Even if it were held that there had been no consent to the sexual force the accused would be entitled to an acquittal if a reasonable doubt existed as to whether 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 the mistake could be unreasonable as long as there was an "air of  15  reality" about it. Section 265(4) (enacted following Pappajohn) directed the judge to instruct the jury to  consider "the presence or absence of reasonable grounds for the belief in the determination of whether the belief was honestly held." However, the provision of s. 265(3) was not interpreted as changing the nature of consent obtained as per that section from being a question of fact to a question of law, and thus the defence of mistake of fact was still available to an accused notwithstanding that he had obtained consent by use or threat of use of force.  55  The law in Pappajohn was criticized by authors who argued that the subjective test was not appropriate in situations where a moral duty arises to take care. It was argued that where a person engages in an activity where a risk exists, that person must be judged in terms of what is reasonable. 56 Otherwise, men who were completely oblivious to the wishes of a complainant could be acquitted. On the other hand, it has been raised that Pappajohn imports an objective test into the determination of intent by allowing a judge to consider whether the air of reality existed.  57  In terms of  the conduct of the trial, although it was not impossible that the air of reality could be determined through the evidence of others, it appeared that in most cases an accused who raised an honest belief defence would have to testify. In a second case, R. v. Letendre,  58  however, an accused  person was not required to testify as to a mistaken belief  16  because the trial judge decided that the circumstances were such that the accused's mistaken belief in consent (and even consent) could be inferred directly from the testimony of the complainant. In her testimony, the complainant testified that she had said "no" to the accused, had repeatedly asked him, "Why are you doing this?" and said to him, "Friends don't do things like this to each other." However, she had not yelled or struggled. She said she was afraid and that for that reason alone she had co-operated with the accused. In his decision the trial judge said he could find no reasonable basis for her fear. 59 He said that an inference of consent could be drawn based on the complainant's own testimony. He put the onus on her to vigorously reject advances 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 a less than precise relationship. At times no may mean maybe, or wait awhile, the acts of one of the participants may be easily misinterpreted, a participant may change his or her mind, one way or another, part way through it, and cooperation as well as enjoyment may be faked for a number of reasons. In my opinion, in the interests of both participants, it is one which demands clear and unequivocal communication between the parties, particularly if one of them does not want to participate in lt. 5° Thus, in effect, the judge decided, on a criminal standard, that the accused was justified in believing he had consent and ignoring the victim's ambiguous protests. 61 This case was illustrative of the way in which consent was interpreted in criminal cases: it was not a question of affirmative conduct constituting consent, but of the  17  sufficiency of the denial of consent. This particular case drew strong criticism from many women's groups, who went so far as to picket the court house in response to the decision. The reaction was well-reported and "no means no" became a popular slogan. A third case, R. v. Weaver,  63  62  was no less sobering,  though it did not receive the same press coverage. In this case a man had sexual intercourse with a woman who had been drinking and vomiting, and was in no condition to speak or communicate her non-consent. The judge who tried the case, however, determined, as a matter of fact, that the accused held an honest belief that she had consented. The case was appealed, and an apparently reluctant court of appeal agreed that if the accused held an honest belief, he had to be acquitted. The cases act as a useful illustration of problems with the law of consent in matters of sexual assault and underwrote some of the needs expressed by women for reform. B. The First Draft of Bill C-49  The initial Bill consisted of a preamble and two major sections. The first section was an addition to the Criminal Code. It defined the meaning of consent in matters of sexual assault, providing greater examples of instances where it did not exist, and restricted the defence of mistaken belief in consent. The second addressed the use of a complainant's prior sexual activity as evidence in a sexual assault trial  18  and the procedural rules for its admission. 1. The preamble  The preamble set out the purpose and justification for the Bill. It would not become part of the Criminal Code but would nevertheless be part of the amending legislation and thus be available to judges interpreting the provisions of the Bill, particularly when engaged on the task of deciding legislative intent. Although courts have quite freely referred to legislative debates for the intent of Parliament when interpreting ambiguous provisions, placing the purpose in a preamble would make it more likely that it could receive attention." to:  The preamble stated that the Bill was a response 1. the striking down of s. 276 by the Supreme Court of Canada; 2.  the incidence of sexual violence and abuse in Canada;  3. a recognition of the "unique character" of sexual assault and "how sexual assault and more particularly the fear of sexual assault affects the lives of the people of Canada;" and 4. the belief that evidence of a complainant's sexual history is rarely relevant and should be scrutinized carefully before admission because of its inherently prejudicial character. and that it was Parliament's intention to: 1. encourage the reporting of sexual assault; 2. do so within a framework consistent with fundamental justice; 3. be fair to complainants as well as accused persons; and 4. promote rights under s. 7 and s. 15 of the Charter. The framers of the Bill had walked a careful line. They  19  did not wish to fall afoul of the analysis in Seaboyer with the new law. Therefore the preamble also contained reference to the "full protection of rights" under s. 7 and the need to be "consistent with the principles of fundamental justice." The drafters set these rights, however, in juxtaposition to rights of complainants to fairness, and by reference to s. 15 of the Charter, to equality." As will be discussed later, the main purpose of the preamble may not have been necessarily directed at the courts' interpretation of the Bill itself, but to the way in which the issues would be characterized publicly and in a Charter challenge; it was not a question of the Charter rights of accused persons being pitted against sensitivity or niceness to complainants, but of two different kinds of Charter rights being balanced with one another. A surprising aspect of the preamble was that it did not refer to the consent provisions of the Bill, which were felt by many to be the most important part of the Bill as well as the most controversial." 2. The consent provisions Section 273.1(1) of the Bill defined consent in sexual assault offences: ..."consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. It was arguable whether this new definition amounted to a change in the law or not. The Concise Oxford Dictionary defines the noun "consent" as "voluntary agreement,  20  compliance, permission." 67 The Collins English Dictionary defines it as: acquiescence to or acceptance of something done or planned by another; permission 4. accordance or harmony in opinion; agreement. 68 However, cases such as Letendre had interpreted consent in sexual cases as not requiring voluntary agreement, only no express refusal. The absence of non-consent was equivalent to consent, though not in cases of drunkenness of the complainant. 69 The difference between the notion of voluntary agreement and passive acquiescence may seem minor in the abstract but in the realm of sexual activity between people with different power it becomes very important. Section 273.1(2) set out circumstances in which no consent would be found. These were where: (a) the agreement is expressed by the words of conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity by reason of intoxication or other condition (c) the complainant engages in the activity by reason of the accused's abuse of a position of trust or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant expresses by words or conduct, a revocation 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 is obtained. In the circumstances listed in s. 273.1, an accused who was mistaken about the existence of the facts negating consent would still have the benefit of the mistake of fact  21  defence. The ability to claim this defence was further limited by s. 273.2, which sets out restrictions on when the defence of mistake 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 the time to ascertain that the complainant was consenting. These provisions appeared to go significantly further and were much clearer than the limitations on consent contained in s. 265(3) and s. 265(4) in actually disallowing the defence of mistaken belief in consent in certain circumstances. Section 273.1(1) should cover the Weaver situation because there were no actions in that case by the complainant that could have been construed as voluntary consent. Similarly, ss. 273.1(1) and 273.1(2)(d) should cover a Letendre situation as, again, in Letendre, there was no "voluntary agreement" by the complainant, and there was even an expression of a "lack of agreement." The test in both would then be whether the accused took all reasonable steps in the circumstances known to him at the time to ascertain that the complainant was consenting. 3. The evidentiary provisions The new section 276(1) contained in Bill C-49 provided that in all charges relating to sexual matters evidence of past sexual conduct was not admissible to support inferences relating either to the likelihood of consent or the complainant's credibility. This was in line with the  22  decisions of both McLachlin J. and L'Heureux-Dube J. in Seaboyer. Section 276(2) and (3) specified criteria and the  procedure through which evidence of past sexual conduct would be vetted for admissibility relating to another issue in the trial. Section 276(4) required the judge to instruct the jury on what use could be made of evidence of past sexual conduct where it was admitted. Section 276(2) and (3) set out the factors the judge was required to consider in ruling whether evidence of past sexual conduct was admissible. Section 276(2) set out the factors which must be satisfied before evidence of past sexual 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 not substantially outweighed by the danger of prejudice to the proper administration of justice. The decision in 276(2) was to be determined in accordance with the following factors from 276(3) taken into account: (a) the interests of justice, including the right of the accused to make a full answer and defence; (b) society's interest in encouraging the reporting of sexual assault offences; (c) whether the evidence will reasonably assist in arriving at a just determination in the case; (d) the need to remove from the fact-finding process any discriminatory belief or bias; (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (f)the potential prejudice to the complainant's personal dignity and right of privacy;  23  (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (h) any other factor that the judge, provincial court judge or justice considers relevant. Sections 276(2) and (3) provided specificity to the word "legitimate" used by McLachlin J. and, by and large, summed up or extrapolated further what she had said in Seaboyer. The difference between the guidelines proposed by McLachlin J. and those of the Bill are in the degree to which the problems of prejudice are spelled out. While Parliament itemizes some of the ways in which prejudice can occur, McLachlin J. subsumed them under the rubric of "the danger of unfair prejudice flowing from the evidence." One could characterize the evidentiary provisions as a codification, although the factors do not represent rules so much as considerations." Section 276.2 set out the procedure for the determination, specifying that the hearing was to be in camera, the complainant was not compellable, the judge was to provide written reasons for any evidence to be admitted, specifying the evidence and the reasons why it was expected to be relevant, and the written reasons would be entered as part of the record. Section 276.3 provided that no person should publish or broadcast an application for admissibility or any part of the hearing, the results of it or the reasons for it. Section 276.5 specified that for purposes of determining a right of appeal of either prosecutor or accused, the  24  determination under s. 276.2 was to be deemed a question of law, thus ensuring that a decision on admissibility would be appealable. 4. The amendments  The amendments adopted by the committee were those recommended or moved on behalf of the Minister. They were not unanimously adopted. Several others were proposed by members of the committee and were not adopted.  71  The order of the preamble was changed, and the prevalence of sexual violence and abuse against women and children was noted in the first clause, which also indicated Parliament's grave concern for the incidence of these offences. The second clause retained the language of the "unique character" of sexual assault. The promotion of Charter rights was moved up to the third clause. That the Bill was a response to Seaboyer was moved from the first clause to the fifth.  72  In the consent provisions, the reference to intoxication in s. 273.1(2)(b) was removed; the section thus provided simply that no consent is obtained where the complainant is incapable of consenting. The vitiation of consent by an abuse of a position of trust and authority was extended to include positions of power, and the necessity that it be an abuse of the position that induces the sexual activity was made clearer. The amended s. 273.1(2)(c) reads: no consent is obtained where the accused induces the complainant to engage in the activity by abusing a position of trust, power or  25  authority. The word "all" was removed from the reasonable steps requirement so that where an accused relies on a mistaken belief in consent, the issue will be whether or not the accused has taken "reasonable steps" to ascertain whether or not the accused was consenting. Revocation of consent was clarified so as to remove an inference of revocation having retrospective effect. Minor changes in wording were made to the evidentiary provisions. The Bill was changed to allow publication of the judge's decision and reasons, if ordered by the judge.  73  He or she  was to take into account the complainant's right of privacy and the interests of justice in coming to a decision on publication.  CHAPTER TWO SUMMARY OF THE ARGUMENTS A. The Arguments in Parliament 74  According to the government's rationale for Bill C-49, the purpose of Bill C-49, while multi-faceted, was primarily to protect sexual assault victims from the criminal justice system.  75  When she introduced it in December, the Minister of  Justice, Kim Campbell, said of it: Canada needs a law that will protect victims of sexual assault from the unnecessary revelation of past sexual history while ensuring that the rights of the accused to a fair trial are upheld. 76 She went on to say that the Bill was sending a "clear message that [violence against women] is not tolerated in our society."  26  In moving the Bill to second reading, and after making the argument that the reform was to provide all Canadians with access to criminal law, she said: Also forming a basis for this Bill is a broader principle, one that was emphasized during the consultation process. It is simply this. All men, women and children must have autonomy over their own lives and more specifically, their bodies. 77 She continued: This fundamental principle goes to the heart of what it means for anyone to live in a democratic country such as Canada. It must inform every aspect of our laws and indeed it is an integral part of the provisions of the Bill. 78 Thus, she deals with two kinds of protection: "the right of the victim of a sexual assault to the full protection of the criminal justice system," 79 and protection from sexual assault. 9° Her concluding remarks underscore this relationship between criminal law and personal freedom and autonomy. She says: ...the Government of Canada will not tolerate violence of any kind against any person or group of persons in Canada, nor do we condone the view that a certain level of violence is somehow acceptable or inevitable. 81 As to the reason why the Bill was unique, she referred to the devastating effects of sexual assault on the lives of the men, women and children who suffer it and to the fear of victimization that marks women's lives. 82 Thus, while confining the specific purpose of the Bill to repair of the criminal law, her remarks indicate the purpose of the criminal law as the definition of that  27  behavior which is not tolerated in society, and the protection of those who have been victimized by criminal behavior. Subsequently, Campbell was quoted by the media as saying that the Bill did not represent a new moral code.  83  Russell MacLellan, Member of Parliament for Cape Breton-Sydney, gave strong support to the Bill at second reading on behalf of the Liberal Party.  84  He made several  interesting points and used some popular rhetoric that relates to the purpose of the criminal law. First, he referred to R. v.  Butler 85 as an example of "honing justice" in Canada. The case, in deciding that obscenity provisions of the Criminal Code are constitutional, stands, he said, for the proposition that the purpose of the obscenity law has not to do with enforcement of moral standards, but the "protection of our women and children." 86 Thus, he too made the distinction that the purpose 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 accused as bringing the "justice she deserved to a complainant." 87 Dealing with the provisions on consent, he spoke primarily of "protection" for complainants. "We want to protect women in situations where otherwise they would have no protection whatsoever." 88 This concern appears again, but this time reflecting, additionally, a political need for social consensus on the value of protecting women: We need to protect women in our society. If we do not,  28  the society that we value will crumble. If it crumbles, then what we have in this country, what we have prized in our justice system, and our sense of fairness will be gone. 89 MacLellan thus put the purpose of the Bill, the protection of women, and criminal law, in the larger context of social survival. The use of state power to criminalize certain behaviors through law and enforce criminal powers was necessary for the sake of fairness and justice, which in turn are necessary for social cohesion. Dawn Black, Member of Parliament for New WestministerBurnaby, spoke in support of the Bill on behalf of the New Democratic Party.  90  She, too, noted that the Bill was  intended to "encourage the reporting of sexual assault...to provide fairness to victims as well as the accused," but she also noted that the Bill was necessary to guarantee women and children equality of rights under the Charter.  91  She noted  that the Bill was unique because it was founded on the experiences of women. She distinguished the victimization of women and children from others.  92  Although each speaker agreed with the purpose of Bill C49, each cast its primary justification in a slightly different way, revealing different political biases. Borrowing from Chaim Perelman's 93 analysis of basic assumptions, it can be seen that they portrayed a liberal, conservative, and socialist stance respectively. In an odd twist, Campbell revealed a liberal stance, allowing that it was right for the state to interfere because the basic rights of individuals to sexual autonomy were being denied. Although  29  she referred to women and children, she carefully included men as victims of sexual assault. MacLellan made the classic conservative statement: without this reform, much more drastic changes could be predicted. The measure was required in order to preserve society. He was also far more willing to accept the historical bias of the law against women, and, in rather chivalrous language, called for its reform in order to protect them. The primary justification for Black was that the change promoted equality for women and children; as Isiah Berlin 94 has pointed out, for a socialist, equality needs no further justification. Although the language of equality may have played a part in the speeches of all three, each illustrated a different understanding of the concept. Campbell concerned herself with equality between the complainant and the accused; MacLellan with equality of protection; and Black with equality in status. Basic to each, however, was the view that the criminal law provides bottom-line protection to people, whether through deterrence, denunciation or some other means, and in this sense each adopted or portrayed a utilitarian philosophy for criminal law. Given that all three shared this basic position, it is not surprising that the accuracy and validity of the assumption received little or no attention.  30  B. The Arguments in the Committee Hearings 95 1. The committee  The legislative committee on Bill C-49 served as an important platform for the debate. Because the Bill had been endorsed by all parties and the committee was into clause-byclause study, it was the committee's apparent intention to limit the debate in front of them to specific items in the Bill that could be corrected before third reading. It was announced, at least within the committee, that it was not seeking input on the social policy behind the Bill.  96  •  Nonetheless, social policy was high on the agenda of many of the contributors. Criticisms of the Bill were vehement, and those who supported it in principle obviously wanted to ensure that the political will to pass the Bill did not flag. They were further concerned that the issues be properly prepared for the inevitable Charter challenge. It should be remembered that those who appeared in front of the committee presented their opinions for the benefit of that committee, and no doubt with the needs of that committee in mind. While many may have had other agendas as well, such as publicity for a group, an opportunity to affect the broader public debate on this issue, or as a step in a larger plan, 97 each participant was constrained by the requirements of the committee and the possibilities that were before the committee, that is, to approve, amend or defeat the various provisions of the Bill. It may not be entirely fair to represent what went on at committee as the sum total of any group's ideas on the Bill. Similarly, neither would it be  31  fair to assume that the reforms presented in Bill C-49 were the top priority for any groups that appeared.  98  The question of who would be invited to speak to the committee was an important one." An invitation to appear meant that a group would be heard, and have a brief appended to the minutes of the hearings. Dawn Black requested, for instance, that METRAC, a Toronto based group against violence against women, and the Canadian Labour Congress be allowed to address the committee. 100 The Chair, however, cited insufficient time and resources to hear from all interested parties.  101  Had the hearings continued longer, he suggested,  the Bill might not be read a third time before Parliament was prorogued, in which case the Bill's passage became very unlikely. 102 The committee agreed. Fifteen groups and one individual spoke and submitted briefs to the committee on the substantive portions of the Bill. Eleven of these  15  were women's organizations.  2. The women's groups who generally supported the bill  Ten of the 60 women's groups 103 who had participated in the consultations with the Minister in the fall and January appeared before the committee. Of these, all indicated at least qualified support for the framework and import of the Bill but many would not give it full backing unless certain amendments were made. The women's groups were: Women's Legal Education and Action Fund (LEAF), the National Action Committee on the Status of Women (NAC), National Association of Women and the Law (NAWL), Native Women's Association of  32  Canada (NWAC), Disabled Women's Network Canada (DAWN), National Organization of Immigrant and Visible Minority Women of Canada (NOIVMWC), Canadian Association of Sexual Assault Centres (CASAC), and Prostitutes and Other Women for Equal Rights (POWER), regroupement quêbêcois des centres d'aide et de 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 of unanimity among themselves during the consultative process. 104 They had also been demonstrably successful in the fall at persuading the minister to amend the definition of consent and the mistake of fact defence. Amongst themselves they had, in a very short time, achieved consensus, and they appeared to effectively bridge the gap between the "insiders" and "outsiders" characterized by Martha Minow. 1°5 Several groups, including LEAF, NAWL and CACSW supplied legal experts, the "insiders" of law reform. Meanwhile, concrete details of women's lives came from all, including women who represented specific communities and who were active in the front lines of the problem of sexual assault, often the "outsiders" in law reform. The legal and the social knowledge appeared to inform and complement the position of each group, precisely the dialectic advocated by Canadian legal scholar R. A. Samek.  106  Notwithstanding their consensus on the amendments, the groups did reveal subtle differences in their thoughts on  33  criminal law. I will first deal with the proposals of the women's groups as put forward by LEAF and then highlight those areas in which contrasting views were presented. LEAF, a national organization of women dedicated to the  achievement of equality rights for women through litigation and public education, occupied a central role in the debate and among the women's groups. LEAF supported the tenor of the Bill as being a Charter-inspired move to secure rights for groups of women under ss. 7, 15 and 28.  107  Section 7 until  then had only been used in the context of an accused's right to life, liberty and the security of person. However, LEAF argued the guarantees contained in s. 15 were "principles of fundamental justice" no less than fair trial rights.  108  If  the aim of criminal law was to protect one's life and person, the failure of the law to do so in respect of particular groups was clearly offensive to the principles of fundamental justice. LEAF argued that positive benefits must flow from s. 7. 109 Key to this argument was an understanding of sexual assault as occurring against members of distinct groups, not randomly, but because of their membership in these groups. 110 Women and children were not merely victims, but members of oppressed groups, and herein lay the difference in the analyses of L Heureux-Dub6 J. and McLachlin J. Sexual assault was caused by and, in turn, caused sex inequality. Hence, sex discrimination in sexual assault occurred on two levels that contributed inseparably to each other: in the failure  34  of the criminal system to provide equal protection to members of these groups, and in the reality of sexual assaults themselves. In order to emphasize that the Bill was premised on equality, the women's proposals recommended that the preamble specifically mention women and children and the need to protect their constitutional rights. This would underline and show that Parliament recognized the disparate impact of sexual assault on women and children and that therefore, courts should consider the equality implications.  111  Parallel reasoning was used in closer examination of the concept "women and children." To counter the increased vulnerability of diversely situated women (women who differ from the standard of white, able-bodied, heterosexual, middle-class woman) to sexual assault, as well as their unequal treatment in the system, LEAF proposed that these women be named specifically.  112  LEAF argued that specific  damaging and stereotypical views of different women had to be exposed. It pointed out that evidentiary changes alone would only affect those women who reported sexual assault and whose complaints were held to be founded by police and prosecutors. LEAF pointed out that women who were, for example, unemployed, "on welfare", aboriginal, black, sex trade workers, in a relationship with the attacker, promiscuous, disabled or "bad," were far less likely to be believed at trial or at any other juncture in the system because of myths and stereotypes about such women. It was proposed that a statement recognizing these compounded inequalities was necessary in the preamble.  113  35  Also recommended were two similar amendments to tie problems of stereotyping to inferences of consent. 114 It was argued that consent should not be presumed on the basis of the complainant having consumed alcohol or drugs prior to the sexual activity, nor on the basis of the complainant's membership in any historically disadvantaged group, employment or immigration status, or because the complainant is a sex trade worker or a lesbian. POWER, DAWN, NWAC AND NOIVMWC all represented specific constituencies of women subject to higher incidence of sexual assault and compounded inequality. Each underlined the need to have their unique experiences named and recognized in the Bill. Speaking to the issue of inclusion, POWER emphasized how sexual and related violence to prostitutes is rarely processed through the criminal justice system.  115  Rather, it  is considered by police and others in the system to be a part of the job. POWER pointed out that the men who rape prostitutes act on the knowledge that prostitutes are not protected by the law.  116  DAWN made a similar point in relation to disabled women. They, like prostitutes, are the targets of more aggression than many other women, and, when they are assaulted, the men who commit the assaults do so with the knowledge that nothing will happen to them.  117  DAWN said that disabled women are not  believed by people in the criminal justice system, not so  36  much because they are women but because of their disabilities. 118 Hence, they argued, their naming was necessary in order to keep the system from merely discounting their experiences. NOIVMWC said that the system operated only for the benefit of the dominant culture. Everyone else is invisible and unacknowledged. 119 While NWAC supported the inclusion clauses, it argued that even with them the Bill did not do enough to challenge sexist and racist attitudes. 12° With respect to the substantive consent provisions, the proposal put forward was that consent be defined as unequivocal voluntary agreement, in order to establish as a matter of law that consent must be affirmatively given, that "no" means "no," "maybe" does not mean "yes," and silence does not mean "yes.ta n LEAF argued that this was necessary in order to combat myths about women and the acceptability of male sexual aggression. Obviously, the women's grous were concerned that the langauage of s. 273.1(2) was not strong enough to overcome present practices. Also included was the proposal to add "abuse of power" to those circumstances that would vitiate consent extracted through it,  122  and the suggestion that publication of a  judge's reasons might be advisable in the interests of monitoring how the legislation was interpreted and applied. LEAF argued that the criminal law had developed unique rules to deal with sexual assault that were heavily weighted in favour of the accused, not as compared to the complainant,  37  but as compared with persons accused of other crimes. 123 LEAF stressed the equality aspect of Bill C-49 throughout. It did not emphasize the physical, pyschological or emotional harms of sexual assault. It considered the incidence of sexual assault, not as a means of quantifying the harms of sexual assault, but in order to establish sexual assault as a form of sex discrimination affecting those people who are vulnerable to sexual assault: women and, particularly, specific groups of women. LEAF's linkage of sexual assault vulnerability with social inequality drew out what Regina Greycar and Jenny Morgan have called the gendered nature of the harm of sexual assault.  124  By proposing that criminal law can intervene in this vicious circle, LEAF (and other groups) ascribed to criminal law the ability and purpose of enforcing constitutional rights as between people. LEAF made one other point that relates to the purpose of criminal law. Failure to recognize and name the harm, both personal and gendered, was important, LEAF argued, for if the harm is not named and sanctioned, it is countenanced.  125  In so far as what is sought is  denunciation of the crime, this argument reflects a utilitarian view. However, this argument is also saying that wrong things ought to be punished, simply because they are wrong; to this extent, a retributive rationale.  126  Neither LEAF nor NAC specifically put forth a view on the purpose of the criminal law. Judy Rebick, speaking to the committee on behalf of NAC, suggested a limited purpose to  38  the Bill. She stated that the Bill would not prevent sexual assault, 127 and thus, by implication, would not protect women. When faced with the suggestion that the Bill would prevent sexual assault, 128 Rebick firmly rejected the notion, insisting that it was merely to get women to come forward to report sexual offences against them.  129  Instead of seeing the  Bill 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 women themselves. 131 Rebick spoke of the great distrust felt by many women for criminal process. Naming those women in the Bill who are subjected to compounded inequalities would do much, NAC argued, to persuade these women that the justice system was indeed interested in them, too, as many evinced little hope for the system and little desire to be involved with it. 132 NAC thus argued that the Bill and the amendment proposed to it were necessary in order to legitimate the criminal law in the eyes of women. She did not entirely discount the idea that criminal law might have a broader educational effect, however. Although she emphasized that the target was initially the criminal justice system rather than society as a whole,  133  she also  spoke of the possibility of cultural and attitudinal change as a result of the Bill.  134  The NAC brief noted the apparent  success of amendments to criminal law relating to drinking and driving in changing people's behavior and attitudes about  39  drinking and driving. 135 Mobina Jaffer of NOIVMWC also held out the hope that the Bill could have a positive educative affect on men.  136  Consistent with the target of the legislation from NAC's point of view was the line adopted on "women's rights". It was not women's rights to sexual and bodily integrity that were directly in issue, but rather rights to equality, in the narrow sense of equality of treatment under the law, or "access" to criminal law.  137  Rebick stated that equality for  women 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 not believe they will get "justice" when they are sexually assaulted. 139 However, in NAC's brief such rhetoric does not appear. In fact, NAC went some distance to ensure that its position was not presented as the criminal law bringing "justice" to women. Rebick noted that NAC was not advocating longer sentences for those who sexually assault as a means of gaining equality for women.  14°  NAC thus rejected both  utilitarian and retributive analyses of criminal law. NAC along with many groups spoke to the need for sweeping changes in judicial education and social programs if there was to be any decline in sexual violence against women and children. 141 Nicole Tellier, speaking on behalf of NAWL, also emphasized the equality aspect of the reform. 142 She noted that it was the Charter, although invoked against the Bill,  40  which provided the impetus behind the Bill and the political will to recognize the experience of women. Although she also noted that NAWL had made a very similar presentation some 10 years earlier when the former amendments had been enacted, her enthusiasm for the promise of the Bill was evident.  143  Shirley Masuda, speaking on DAWN's behalf at the hearings, made the point, poignant to some, incomprehensible to others, that it was also for women's own benefit that they be named specifically. Sometimes, she said, it is hard for a woman to understand herself that she has been assaulted because the system seems to say it's okay and her attacker says it's okay.  144  DAWN argued that the defence of "honest belief" covered a "million sins" and asserted categorically there is no mistaken belief in consent.  145  Similarly, CASAC argued that  "honest belief" was a pretense by men who assault, and yet a major reason why women don't report being assaulted.  146  CASAC, while supporting the Bill and LEAF's amendments, revealed strong doubt about the process of law reform.  147  They said they could not support the Bill without the amendments. Like NAC they saw the Bill directed at women and the system, rather than at men.  148  They argued that Parliament  could not put reins on the activities of men; only men could do that.  149  CASAC argued that inclusive language would make an  enormous difference to the bill's effect on women. It would more than educate them, it would invest them with power.  150  41  The representative for CASAC was asked about possible backlash resulting from the Bill. She responded that there would be backlash if the Bill went ahead, and that there would be backlash if the Bill did not go ahead. On balance, therefore, she said it should go ahead.  151  Although NWAC supported the Bill, their representative, Virginia Meness, expressed strong doubts about its usefulness. While she saw the Bill as attempting to promote respect and protection of women within the system, she questioned whether aboriginal women could ever put much faith in the criminal justice system. She cited the 15 years it took to obtain a conviction of one of four men involved in the murder and sexual assault of Helen Betty Osborne and the treatment of Kitty Nowdluk, whose rape had resulted in her being arrested (because she had not attended court to testify), held in custody for almost a week and eventually transported to court along with her attacker.  152  She  expressed another overriding concern with the system in that most aboriginal men pleaded guilty to charges, often for cultural reasons.  153  She allowed that the Bill, with LEAF's  amendments, might assist only where an attacker was nonaboriginal.  154  She said that the beliefs police, prosecutors  and judges hold cast aboriginal female victims as "bad" or drunk and to blame for attacks on them.  155  As Meness put it:  "Aboriginal women are doubly damned by stereotypes." She distanced native women from the incapacitation qualification to consent, suggesting that it was not merely native women who would benefit by the section.  156  42  Dianne Lemieux, speaking on behalf of CALACS, addressed the role of criminal law in shaping peoples' lives and ideology. She pointed out that, whether accurate or not, people's beliefs about criminal law shaped their ideas about morality and permissible conduct.  157  Lemieux here expressed the point that Nicola Lacey, Celia Wells and Dirk Meure make in Reconstructing Criminal Law, 158 that what is true about criminal law is inevitably complicated 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 to an understanding of either the role of criminal law or of any specific law reform. It would appear that an appreciation for the ideological role of law was a driving force behind the women's groups' submissions. Most of the groups questioned whether the Bill would protect women from sexual assault, but most nevertheless supported it saying that it would help dispel myths, and these are, after all, the flesh and blood of ideology. It was also pointed out that no one group has a monopoly on the myths, it was not only men, but women who would benefit from ideological recognition of what happens in sexual assault.  155  However, the role accorded to criminal law even within ideological change was not always seen to be the same by the women's groups. CASAC, for instance, made an impassioned  43  argument that the ideological change in law would empower women, and that law would play a secondary, merely supportive role in ending their oppression from sexual assault.  16°  NAC,  on the other hand, recognized the existence of a power structure, which, if not changed, would perpetuate stereotypical ideas about women. The reform was not contemplated as a boon, but the alleviation of a burden.  161  It is probably for this latter reason that only one 162 of the women's groups addressed the issue of women using criminal law in order to achieve social justice. Those who might have seen a contradiction in such a strategy, nevertheless had to accept that criminal law influences our ideology and that, in so far as the law was sexist, so too would be the ideology. To not promote the reform would be to allow the bias in criminal law to continue to permeate our thinking. That the groups were cognizant of this was clear, as at the same time that they were seeking the reforms of Bill C-49, they announced other initiatives, both in law and outside of law, to address the problems of sexual violence. 163 A related problem is alluded to by Nicole Tellier: it was the Charter that brought down the former rape-shield law and yet it is the Charter that underwrites the new reforms. This point brings up the problem of hierarchy of rights and the wisdom of social activists relying on "rights claims" to advance their cause, documented by Judy Fudge 164 and discussed by several authors.  165  A thorough analysis of this problem  44  goes beyond the scope of this paper. However, if, as Samuel Stoljar suggests, "rights" are merely a rhetorical way of making a moral claim,  166  there can be little theoretical  difficulty with the concept, unless one does not wish to ground the claim in morality but politics. The strategical question is far more difficult. "Rights" sends people in the direction of the courts as the venue for enforcing rights and there are certainly drawbacks to such a strategy, not the least of which is the definitional power courts have over relevance and relations, which may reduce the problem or offer only a partial solution while giving the impression of real improvement. The critical question must be whether the apparent improvement is real. While any reform might be seen by some as counterproductive in that it merely softens the basic unsolved contradictions, others may accept an evolutionary rather than a revolutionary process. A major criticism of legal activism is that the benefits of any reform may only accrue to some of those supporting the changes, generally only to those who differ in one respect from the dominant group. Clearly, the women's groups were concerned that this might be the case with Bill C-49, too. Suffice it to say that there are both strategic and theoretical problems with a rights approach tied to the importance accorded to law, and particularly to criminal law. As long as hope is held out that criminal law has utilitarian, retributive or ideological power of social control, it may be inevitable that social activists will seek to employ it.  45  Not all of the women's groups were asked whether they would endorse the Bill without the proposed amendments. Of those that were, LEAF indicated that it would still support the general structure. 167 CALACS indicated some support but said that without the amendments it would not claim that the Bill offered adequate protection for women in the most effective possible way. NAC spoke simply against a weakening of the Bill, for that would make it useless to women.'" CALACS argued that at least one third of the groups who had participated in the consultations would withdraw their support unless the provisions addressing inclusion were added to the Bill. Similarly, Mobina Jaffer said that without the naming of vulnerable groups NOIVMWC would likewise withdraw its support for the amendment.'" 3. The Canadian Bar Association  The Canadian Bar Association (CBA) stands on its own for several reasons. It was the only group with a predominantly male membership that, in the end, supported the Bill. It emphasized three points in its oral submission upon which it sought amendment. All three were incorporated by the government and the CBA's initially-guarded support of the Bill became firm.'" Additionally, it experienced right within its organization a disagreement between what women wanted to see in the Bill, and those who saw its provisions undermining the rationality of the law. The three amendments proposed at the hearing 171 were the need to name women and children in the preamble as  46  particularly affected by sexual assault, to clarify and include abuse of power in the section dealing with the vitiation of consent, and to remove "all" from the reasonable steps requirement. The disagreement was noted in the brief, where it outlined the difference of opinion between the CBA's Task Force on Recodification and the Association as a whole. The Task Force (and the National Criminal Justice Section), consistent with its proposals on recodification, said that only subjective intent should be punishable at criminal law, 172 while the Association said that the mental element in sexual assault is not so easily categorized. The Association said that, as a matter of policy, an accused who is aware there is a risk that the complainant may not be consenting cannot claim to hold a truly honest belief that the complainant is consenting. Such a belief in consent amounted to "attitudinal blindness." 173 In the Association's opinion, such recklessness constituted a sufficient degree of subjective culpability.  174  The Task Force disagreed, holding  that such a view imposed an objective test on the accused. The Task Force was overruled, and did not pursue the argument further. A similar problem existed in relation to the requirement that "all reasonable steps" to ensure consent be taken before an accused could rely on a mistaken belief in consent. Richard Peck, who headed the Task Force, allowed that while the Task Force maintained that criminal liability could only be determined by a subjective test of intention, the test of  47  "reasonable steps in the circumstances known to the accused at the time" was a tolerable mixture of subjective-objective elements that would be acceptable if it were modified to remove "all," which was not only too objective but also vague. 175 While it would appear that his position is inconsistent with that taken by the Task Force, who quite rigidly recommended that only subjective fault be punishable, as will be discussed again below,  176  the dispute illustrates  the inherent problems of precision in terms and, too, the difficulties associated with dogmatic approach to rules and analysis. The CBA also confronted the characterization of the debate as one of opposing rights, arguing that there should not be an inevitable conflict between the rights of sexual assault victims and the rights of accused. It said, "Rather, the social and legal policies motivating such rights should be clearly articulated and the possibility of finding compatible principles explored. Bill C-49 embodies this approach." 177 4. Opponents of the Bill  The opposition to the Bill ranged from reasoned to frantic. It was argued that the Bill was feminist fascism, that it was "political," that it was an unwarranted extension of criminal law, that its goal was an improper one and that it denied the natural ways of men and women. Slightly more prosaic perhaps, were the arguments that the Bill was unconstitutional and contrary to the principles of criminal  48  law. The other participants were REAL Women of Canada, two civil liberties organizations, the Canadian Civil Liberties Asociation (CCLA) and the British Columbia Civil Liberties Association (BCCLA), and the Criminal Lawyers Association of Ontario (CLAD). The only individual who appeared was Don Stuart, a professor of law at Queen's University. In its opposition, 178 REAL Women raised nature, backlash, consensus and related legitimacy of law as problems with the new Bill. While it called sexual assault a despicable offence, it appeared to hold women responsible for it. It suggested a range of more appropriate means of combatting assault, including sex education programs, a ban on all forms of pornography, and teaching women "to display common sense behavior and precautions in order to prevent sexual assault." 178 Although it acknowledged that there should be some control on the use of past sexual history of the complainant, REAL Women argued that prior sexual activity with the accused should be admissible as to consent, stating: "Legislation that diverges too far from the real world experiences of women and men tends to diminish respect for the law itself.  ,,180  They expressed a concern that spontaneity in sexual matters would be lost.  181  In addition, they said that the  time at which a right to revoke consent should be effective must be at a "point that takes into account biological  49  reality.  1,182  Gwen Landolt, speaking for the organization,  said that "every man in Canada, especially if he respects women, is going to have trouble, because any woman under this legislation can say it was assault and I gave no consent, way after the fact.  " 183  Although she allowed that not all women  would do this, she said, speaking from experience as a lawyer, that many would.  184  REAL Women allowed that in cases of mistaken belief in consent, "reasonable steps" should be taken by the aggressor to ensure he has consent.  185  However, with respect to the  meaning of consent, they said that the traditional principles of criminal law and common law were unacceptably undermined by the provisions.  186  They also saw the Bill as having a different effect on stereotyping than that envisaged by the other women's groups. They argued that the Bill as drafted would promote stereotyping of women as victims.  187  They argued similarly that  sexual history should not be considered prejudicial because the effect would be to perpetuate a "blame the victim" stereotype.  188  Finally, REAL women argued that the Bill should be called the "detest men" amendment, and hinted at a backlash from  Men. 188  Both civil liberties groups gave the Bill qualified support.'" While articulating concerns for the treatment of complainants in the past, they expressed the worry that  50  the consent provisions went too far. The evidentiary part of the  Bill,  CCLA  supported the  and proposed that it be split  from the consent portion, so that it could be passed immediately.  191  The consent provisions, it argued, raised  serious questions of consensus and legitimacy, however. The CCLA  questioned whether these provisions represented the  norms of society in general. The organization suggested that "significant numbers of people believe it is okay not to have explicit consent for initial overtures,  " 192  and yet, by  implication, in such instances these "initial overtures" would be criminalized. It proposed cross-country meetings to consider the issue. The  CCLA  suggested the  Bill  was overly  vague, particularly in relation to the incapacity of a woman to consent. The  193  BCCLA  was similarly concerned with the consent  provisions. While it agreed "no" should mean "no," it disagreed that silence should not mean "yes." It characterized the sexual encounter as one where in the face of silence the other person "keeps going.  " 194  It said that  there must be a balance between the complainant's view of consent and the accused's view of consent, which the Bill had not achieved. 195 It also argued that criminal law should be reserved for those with subjective intent, and expressed a need for caution in its use.  196  It took issue with the  intoxication of complainant vitiating consent, and the problem of a threshold in the abuse of a position provisions. The  197  CLAO  strongly opposed the Bill. It argued that the  51  purpose of the Bill was "social engineering" and education, and that both were illegitimate uses of criminal law.  198  It  argued that criminal law should not be used to raise standards of behavior by, for instance, requiring consent to be expressed or men to take "all reasonable steps" to ensure consent. It argued that the only legitimate role of criminal law was to reflect minimum social norms. spectre of "slow learners in jail"  200  199  It raised the  and said that the  bill's requirement that consent be express disregarded centuries-old behavior and denied the "biological imperative of males," 201 presumably, again, the right to "keep going." At the hearings, Marlys Edwardh for the CLAO said that the unfair treatment of women in the criminal system was a thing of the past.  202  Robert Wakefield, who also spoke on  behalf of the CLAO, argued that unfair treatment of women in the criminal system had merely been an unfortunate historical accident which arose because of the the accused's incapacity to testify on his own behalf.  203  The CLAO argued that the Bill breached several principles of criminal law including the principle of legality, 204 the principle that the mens rea of an act must coincide with its actus reus,  205  and the principle that only  subjective intent can constitute an act as a criminal offence. 206 It was also argued that the Bill breached the presumption of innocence.  207  Further, the problem of  intoxication within the criminal law was characterized as a constitutional issue: intoxication must be treated the same  52 way in all offences.  208  The categorical exclusion of a  defence of mistaken belief in consent where the belief arose as a result of the accused's extreme drunkenness was inconsistent with the availability of the defence in other offences .209 The CLAO revealed a very narrow view of the competence of Parliament to legislate. While it allowed that Parliament could pass laws, it said that Parliament should not "prejudge litigious issues,  11210  that it was "impermissible" for  Parliament to make "self-serving" evidence for use in a s. 1 argument, 21 1 and that Parliament's interpretation of the meaning of fundamental justice was irrelevant.  212  The CLAO brief was critical of the evidentiary provisions as well, arguing that evidence of past sexual history should sometimes be relevant to issues of consent and credibility, as well as other issues.  213  It suggested that  the factors a judge is to consider were vague, irrelevant, and illogically derived. 214 Don Stuart was also highly critical of the Bill. He made two major points: one, that rape was trivialized by inclusion in the broad category of sexual assault,  215  and that it  should therefore be separated out from other forms of sexual assault, and secondly, that what he termed "negligent" sexual assault should be separated from intentional sexual assault. 216 While he conceded that a subjective test for intent should not always be necessary to found criminal liability, he argued that where an objective test was  53  imposed, that the offence definition should be different, and accorded less stigma and penalty. He argued that failure to do either would result in a finding of unconstitutionality for breach of a principle of proportionality,  217  although he  also stated his position would be the same irrespective of the Charter. 218. He suggested that women would be advantaged by the re-creation of a specific charge of rape in that it would increase founding rates by making it clearer to justice personnel that sexual assault need not approximate rape. In addition, the existence of a lesser charge would increase plea bargaining, thereby securing more convictions and requiring fewer victims to testify.  219  Stuart also agreed with the CLAO that categorical denial of the defence of mistake of fact to someone who was extremely drunk would breach the obiter dicta in Bernard, 220 and create an offence of absolute liability.  221  He posited it  as a contradiction that the aggressor's drunkenness could be irrelevant while the victim's drunkenness would be determinative that a sexual assault had taken place.  222  Both the CLAO and Stuart referred to the blunt instrument of criminal law as reason not to extend the law as, they suggested, was being done here.  223  Stuart cited the  inadequate treatment of sexual offenders as a basis for this. 224 Both Stuart and the CLAO ascribed utiltarian purposes to the criminal law. 225 C. The debate in the media  The debate on Bill C-49 was covered by the media, and its reporting and contributions formed an important component  54  of the debate as, for the most part, it was through the press that people were informed about the Bill and the issues it raised. This might raise questions about the bias of the media and its ability to digest and report complex legal analyses and challenging political ideas. It also raises questions as to how well various groups were able to involve the media in their views of the problem. The media, of necessity, chooses what is news and presents it according to its own vision of who its audience is. It has its own rhetorical context. While it would be a fascinating and worthwhile study to concentrate on the difference between what was said and what was reported and the role of the media in fashioning the debate, this aspect will, of necessity, be relegated to a minor role in this paper. However, in order to draw some attention to the possibility of media reconstruction of arguments and to take advantage of the significance attributed to arguments by the media, I will summarize how the issues were covered and include mention of some specific contributions made only in the media. Even before the law had been introduced, arguments based on principles of criminal law had begun to appear in the press. On December 5, 1992, the Montreal Gazette published the headline "Rape law to require defence to reveal case before trial "226 In an article the day the Bill was tabled, Jeff Sallot erroneously reported in the Globe and Mail on changes in the law pertaining to when mistaken belief in  55  rational and reasonable third person considering all the circumstances would conclude that consent had been given.  227  In the same article, the Bill was reported to have as its aim the protection of women from men who have difficulty understanding "no" as an answer. As the communique from the Minister's office that likely inspired the article was entitled "New Criminal Code Provisions to Protect Sexual Assault Victims," this is not altogether surprising. However, the Minister's message went on to say that the protection to be afforded to victims was from the unnecessary revelation of past sexual history, not men.  228  Sallot reported that women's groups were concerned about judicial interpretations of implied consent and myths that men rely on when committing sexual assaults. At the end of the article, the Minister of Justice was quoted as pointing out that present laws had evolved from notions of a woman's chastity being the property of her father or husband, and that a strong male bias continues to exist in the law. It concluded with her comments that men do not understand the fear of sexual assault with which women live.  229  The next day, again in the Globe, Sallot predicted that a "political battle loomed" over the Bill.  230  In his  report, women's groups were pitted against defence lawyers and women's groups warned that right-wing conservatives would come out against the Bill. Sallot described women's groups and opposition parties as "warmly applauding" the Bill. Judy Rebick for NAC was quoted as saying it was a historic day for  56  women. LEAF appeared less enthusiastic because the Bill represented only "part of the answer to a much larger problem of how the law is permeated with bias against women." NAWL's spokesperson noted women's lack of confidence in the legal system because sexual assault cases do not get to court and inadequate sentences are handed out. The positive reactions to the Bill resulted from it providing a means by which sexual violence and abuse might be prevented. On the other side, the article referred to the imposition of "strict legal standards" on consent and focussed on how sexual encounters might be affected by the Bill's provisions. Defence lawyers were reported as saying that the Bill was probably unconstitutional. Brian Greenspan was quoted for the Criminal Lawyers Association introducing the idea of ambiguity on the part of women responding to sexual overtures: He said defence lawyers have no trouble with the idea that when a woman says no, she means it and that is the end of the matter. "That's the law now." But he wondered about more ambiguous replies, such as "I have a boyfriend." 231 Sallot did not qualify the previous day's report that the honest but mistaken belief in consent had been taken away and had been replaced by a rational and reasonable test. Most newspapers picked up the issue of legal principles being breached by the Bill.  232  All considered the prospect of  the Bill having a universal effect on sexual relations. Sexual activity which may have been considered consensual in the past, presumably by all involved, was now suspect. "There  57  the past, presumably by all involved, was now suspect. "There will have to be a new sense of caution... Some very direct questions will have to be asked and you will have to get very direct answers," Sallot quoted Brian Greenspan of the CLA0. 233 "Beware mixing drink, sex, top defence lawyer says" announced the Toronto Star. 234 Sheila McIntyre of LEAF was widely reported as saying that what the Bill requires is simply communication.  235  In January, after the second set of consultations, the 60 women's groups announced they would be proposing amendments. 236 Although these proposals were reported, their justification was confined to the need to combat myths and sterotypes. The underlying need for equality was not mentioned. The linkage between sexual assault and social inequality 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 strong  desire for "crime control" to the women's groups. The appearance of REAL Women at the committee was widely covered,  238  especially the allegation that the Bill was a  "feminist attack on males." Gwen Landolt was quoted as saying that the Bill should be called the "detest men" amendment. Alan Borovoy for CCLA made headlines 239 with the assertion that the Bill would put men in jail for "stealing a good night kiss," as did defence lawyers for their statements that the Bill would put "slow learners in jail" and that the "biological imperative" of male-initiated sexual aggression  58  Gallup polls revealing strong public support for the Bill appear to have been reported only in the Toronto Star and  Montreal Gazette. 241 Before and during the committee hearings, the Globe and  Mail printed several essays that canvassed different aspects of the Bill. LEAF's contribution appeared in December.  242  In  January, under a heading "Legal principles" was an essay by Alan Brudner, "'I thought she meant yes' isn't good enough." 243 The essay presented the Bill as likely to be found unconstitutional because it would impose equal criminal liability for both negligent and intentional acts. In May, an essay by well-known lawyer Clayton Ruby in the Globe and Mail took a shotgun approach: "What's wrong with the new Bill? Plenty.  " 244  In his essay, Ruby criticized the Bill's  evidentiary rules, arguing that the judge would be considering irrelevant factors in the decision on admissibility of the complainant's sexual past. As well, he suggested the changes to the mistake of fact defence would put innocent people in jail. He agreed that women should not be subject to the kind and degree of sexual aggression that they are today but that more worthwhile attempts to affect attitudes could be made by other means. The Globe stated its position the same day that Ruby's essay appeared in an editorial that took strong exception to the Bill, arguing that it removed the presumption of innocence by placing the burden of proof in the criminal trial on the accused. "Assault on the law, not to say common  59  sense" read the headline.  245  The Vancouver Sun, on the other hand, took a postive stand: we have a good law; let's make it work.  246  The Lawyers' Weekly contribution to the debate occurred through one of its regular columnists and a letter to the editor, both of which were picked up on and referred to by REAL Women in the hearings. 247 Law professor Rob Martin in his regular column, "Counterpoint," argued under the title "Proposed sex assault Bill an expression of feminist hatred" that seduction had become a crime and the Bill completely distorted relations between men and women according to the repressive ideas of "bourgeois feminists," who he argued were completely opposed to sex of any kind, and who not only hated men's sexuality but also that of women.  248  The letter to the editor was a "model form for consent to sexual intercourse" drafted in legal jargon borrowed from contract law,  249  which, on its own, might have been intended  to be tongue-in-cheek and humorous, but which appeared to be taken quite seriously by REAL Women.  25°  Maclean's magazine treatment of the Bill was within the broad context of male-female relations raised by three American cases that had received international attention: the Anita Hill-Clarence Thomas Senate hearings, the William Kennedy Smith trial and the Mike Tyson tria1.  251  It raised  the spectre of false accusations and quoted a Toronto lawyer who reported having defended 13 date rape cases in the last  60  year, and having lost only one. Extensive reference was made to the ill effects of an accusation, let alone a conviction. The implication of the article was that if the men were acquitted, they were innocent. It also quoted a men's rights group, In Search of Justice, which said that the Bill was unfair in its different treatment of men and women who drink. Time magazine, in a short news item titled, "Only a Yes will do" reported that Canada's new rape-shield legislation was accused by some of being guilty of abrogating the presumption of innocence but that nevertheless the CBA had supported it. 252 In summary, the press warmed to five aspects of the arguments: 1) the crime control-due process angle which saw increased protection for victims at the expense of the rights of the accused; 2) the notion of myths permeating judicial decisions in a way that ensured accused persons were acquitted; 3) the "principles of criminal law" were being breached by the Bill, 4) the message of "no means no," and 5) how the Bill might affect sexual relations between women and men who don't wish to be guilty of assault. In addition, slurs on feminism and outrageous predictions were reported and made. Colourful and concrete language tended to be reported. Messages that received little attention were that more than victims' rights were involved. The reform was not generally presented as a measure to  61  establish or promote equality, although bias in the system was reported. Where increased vulnerability to stereotyping and sexual assault was noted, it was not from a point of view of a group-based equality, but an individual-based equality. An almost unavoidable piece of rhetoric crept into the debate, despite some apparent efforts to keep it out. 253 This was the language of the "protection of women through the criminal law." Properly speaking, the major parts of the Bill did not concern the crime of sexual assault, but the way in which it was processed through the courts. Even the changes in consent could be characterized as merely fixing some inappropriate interpretations by judges. However, although most of the supporters of the Bill carefully specified its impact as first on the system, secondly on women themselves and almost incidentally, on men who assault, it became an important part of the rhetoric that the Bill actually protected women from sexual assault, and this characterization strengthened perceptions of the Bill as being primarily concerned with reduction in the crime of sexual assault. Obviously, control of crime was an important aspect of the Bill if it resulted in convictions being obtained where acquittals once were granted. However, focussing on this onceremoved goal rather than that of removing bias from the system ensured that crime control versus due process was represented as the essential conflict in the debate, rather than the contradiction between two or more levels in a hierarchy.  62  CHAPTER THREE ANALYSIS OF THE OPPOSITION ARGUMENTS A. Contrary to Nature  The argument relating to the biological nature of men and women has seen its predecessors in every argument raised against innovation in the law relating to sexual assault. 254 It has often been the case that arguments relating to sexual assault have found support in what appears to be nature. This can be seen in the idea that women do not tell the truth in sexual matters, and therefore their testimony must be corroborated; in the idea that sexually promiscuous women lie, and therefore they should not be believed; and even no doubt, in the argument still raging in England and many parts of the United States, that it is a natural right of a husband to demand sexual relations of his wife, hence it should not be illega1. 255 Our tendency to re-create in a notion of nature that which we have culturally and legally developed has been fully explicated by several authors. legal naturalism.  256  Nigel Walker calls it  257  Thus, we cannot simply defer to that which appears to some as natural. If, as well, for instance, as suggested by the BCCLA, there are two different points of view on what is natural and what is not natural,  258  why should law strike a  balance between them? If it does, it would appear that law favours those who want to engage in sexual activities over those who don't. It would seem preferable that the person who does not want sexual contact has his or her autonomy preserved. Clearly, where people are involved in a sexual relationship, whether for years or minutes, this basic issue  63  can be worked out to the satisfaction of each, and the law will not be called upon to reinterpret what occurred between them. Where consent is genuine it should endure. B. The Need for Restraint  A need for restraint has been well-discussed in Canadian law reform efforts. It has been recommended as a principle by the Ouimet Committee on Corrections, the Law Reform Commission of Canada, the Canadian Government, the Daubney Committee, and, as well, in relation to the use of imprisonment, the Canadian Sentencing Commission.  259  Restraint  is required to reserve the criminal law for serious harm, and to avoid undue stigmatization through a brush with criminal law. However, efforts to keep people from contact with the criminal justice system by decriminalization or diversion programs have met with only qualified success. For example, Baranek and Ericson document that the net of social control has widened rather than contracted as a result of these measures.  260  However, in relation to this, two points must be made. First, fundamentally there has been no change in the law as a result of the Bill. The offence of sexual assault has always been, and remains, the application of force in a sexual way without the consent of the complainant. Although the degree of definition of consent has increased, and, arguably, the legal definition has changed slightly, consent either exists in the sexual encounter or it doesn't. This was the case before Bill C-49, and it will continue to be.  261  Section  273.1(1) requiring voluntary agreement for consent does not  64  represent a change in the meaning of the word, as discussed earlier, 262 but, arguably, removes an ambiguity. Section 273.1(2), providing instances where no consent is obtained, does not expand the application of the law. It merely sets out what should be common sense. Section 273.2, which narrows the mistake of fact defence, arguably does extend the law through the requirement that before an accused can rely on his belief in consent he will have had to take reasonable steps to ascertain the complainant is consenting. He will not be able to rely on a mistake which is a result of selfinduced intoxication, recklessness or wilful blindness.  263  What has changed is that more people may be convicted of the offence,  264  which raises the second point. Is harm to  women by sexual assault not properly among those offences which should clearly fall within the criminal law? If a doctrine of restraint was to be imposed intelligibly, surely it would require that offences which cause little or no harm should be taken out of the scope of criminal law. These might include the Criminal Code offences of interference with property 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 and dealing with crime comics (s. 163), and possession of marihuana (s. 3 Narcotic Control Act.) Those who argue for restraint in this way elevate  65  intention as the criterion upon which to determine criminality above that of harm, and, as will be discussed below, 265 surely such a priority should be determined in a political rather than a legal arena. A final, rather pessimistic note must be made about the need for restraint. If a major purpose of the criminal law is to protect the public from harm, it seems self-defeating to employ a policy that would see serious avoidable harm go unsanctioned in order to further the goal of restraint. Clearly, the law is supposed to persuade or deter people from committing offences, and thus restraint might be achieved if people obeyed the law. Should the law's failure to deter control the definition of harm? 266 C. Purpose of the Bill  A major argument raised against Bill C-49 was that its aim was not a valid purpose of the criminal law. The CLAO posited the historical purpose of criminal law as the reflection of the minimum standards of behavior of the community and argued that it should not be used to raise the standards of the community, or similarly as a tool for education. 267 This contention transcends the questions of legal wording and structuring of law for more basic philosophical and political questions. It disputes the notion of the supremacy of Parliament to enact criminal law in Canada, not on the basis of the Charter, but on distinctly moral and distinctly political grounds. There were two parts to this argument: one that the  66  purpose of the Bill was to educate the public about what is not acceptable behavior in the sexual context. Against this aim, the CLAO argued that the criminal law should not be used to advance a social policy or lead social change. The other line of argument saw the mens rea issue raised again, substituting purpose for principle: The real purpose of criminal law is only to punish blameworthy behavior. Behavior can only be blameworthy if it is the product of intention. In so far as the Bill would make conduct criminal which was not intentional it exceeded the bounds of criminal law. These arguments are tied together because it was the change in the  mens rea requirements - the imposition of the reasonable steps requirement and the vitiation of consent - that amounted to the "lesson" provided in the amendment. The political ground related to the question of consensus. Although the CLAO, rather surprisingly,  268  stated  initially in its brief that one of the three broad aims of criminal law was to achieve "social justice through norms of criminal liability that sufficiently sanction impermissible conduct and that provide redress and protection for victims of criminal conduct,  " 269  the CLAO complained that Bill C-49  was seeking a higher measure of social justice than should be available through the criminal law. The social justice envisioned by CLAO must be limited to that contemplated by the existing consensus. If enlightenment comes to part of the community about a particular practice, it is not acceptable for that part of the community to impose its belief on the rest through this medium, even if all of the community is  67  affected by the actions of the unenlightened. The argument depends on a view of criminal law as representing a consensus of values, rather than a tool for social control by some segments of society. The two concepts are mutually exclusive. In fact, Robert Wakeman, in addressing the committee, went to some length to deny that the law had ever repressed women as a distinct group.  270  Arguably,  if criminal law had been a tool in, say, the hands of men used to further their interests against women, it would be perfectly consistent with past practices to hand control over to a new group, in this case, women. Perhaps this fear is behind his reluctance to acknowledge the bias in the law. While the defence lawyers admitted of a "shifting consensus,  1,271  they saw no evidence of a broad agreement on  what constitutes permissible sexual aggression and what does not. If, for example, it was clear that the public did not tolerate anyone interpreting "no" to mean "maybe" and "maybe" to mean "yes," only then would the law be within the proper ambit of the criminal law, in a political sense. The lawyers did not, but might have, looked to the empirical 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 that although it should, it doesn't. The high incidence of date rape, where "no" or nothing was interpreted as "maybe," and "maybe" as "yes," would indicate that many men would see  68  acceptable standards as much lower. In fact, some of the defence lawyers indicated that they would not be apt to accept anything but a very firm not as "no.  " 272  Feminist Catharine MacKinnon might be said to provide a basis for this argument. She says: In the criminal law we can't put everybody in jail who does an ordinary act, right? Crime is supposed to be deviant, not normal... We also get many women who believe they have never been raped, although a lot of force was involved. They mean that they were not raped in a way that is legally provable. In other words, in all these situation, there was not enough violence against them to take it beyond the category of "sex"; they were not coerced enough. 273 In other words, drawing attention to the point made by DAWN, 274 if women don't know they have been sexually assaulted, how can men possibly be expected to know, and how can we assert a consensus if the determination of consent is so difficult? That the argument was poorly received by the committee was not surprising, given that the three parties all supported the basic tenor of the Bill. Nevertheless, some members of the committee evinced concern for this accusation, and properly so, as, were it true, even if it did not render the Bill unconstitutional or illegal, it could contribute to an undermining of faith in the criminal justice system. If the dominant ideology is that the criminal law system is based on consensus (whether in fact it is) a situation where that consensus was violated might result in a weakening of power of criminal law. The lawyers made this point. On the other hand, although no one totally agreed on  69  what the precise purpose of the Bill was, whether equality, crime control, the preservation of society or the protection of individual freedoms, it was probably the politicians who were 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 related points. They first argued that using criminal law to teach a new lesson was tantamount to making an example of those who had not learned the lesson contained in the reform, for the benefit of the rest of society, in essence, sacrificing certain individuals for a social good.  275  They thus rejected  a utilitarian justification of criminal law that tests legitimacy by whether it maximizes happiness (or social welfare.) Their point is that the educational function of criminal law does not merely occur in the enactment of legislation but at the point of sentencing. When consequences are visited on a convicted person, it is then that the criminal justice system makes its loudest claims, and this is where their second point came in. They used a metaphor to convey it: Criminal law is too much a "blunt instrument" to be used for education. 276 The metaphor returns us to the utilitarian function of criminal law, but questions its effect. Criminal law is either too imprecise--people who should not be brought within its ambit, in fact, are--or it has needlessly heavy consequences: It is better to be beheaded by a sharp instrument than a blunt one. Whichever it is, however, the metaphor is intended to and should remind us that all that is  70  said about ideology and communication of messages must remain of secondary importance because the method of criminal law is undeniably, at least for now, punishment of uncertain effectiveness. If this moral argument were successful, it would be immoral to change the law, or to derive educational value from it. However, that notwithstanding, are we still ready to use such uncertain means to make a new point about what is wrong and right? The answer, it is suggested, first has to do with whether or not the point is new. Ralph Lindgren, 277 who argues for what he terms an objective theory of criminal liability, points out that traditional notions of voluntariness are not the only viable criteria for determining blame. He says that not only should traditional notions be suspect for want of proof, but the very idea of free will imported into voluntariness is questionable. He advocates that a far fairer test is whether or not the behavior could have been avoided by the person. In this, he challenges traditional liberal assumptions, that tend to privilege action and give it the benefit of the doubt. By his analysis, blame can be imputed where an action was avoidable, and thus, the law still only punishes immoral behavior and the law is therefore justified. The question, then, becomes not whether it is immoral to sexually assault someone, but whether it is immoral to engage in sexual activity without ensuring that one has the consent of the other party. It is tempting to note that the defence lawyers are  71  caught on the horns of a utilitarian dilemma: On the one hand, they reject utilitarianism as an acceptable justification for criminal law, while, on the other, they rely on it to dispute the efficacy of the measure. A curious thing about the debate, is that no one can ascribe a purely utilitarian, ideological, egalitarian or retributive function to the Bill. Rather it has aspects of all four, and thus is a political compromise between those who would have it perform particular functions. As Nigel Walker 278 and Jeanne Marsh 279 separately point out, this is an inescapable feature of the art of criminal law-making. Some would argue that it is the best approach to take to definition of criminal law. For example, the authors of Criminal Law in Canadian Society 280 point out the impossibility of a resolution of these diverse purposes and argue that by retaining multiple purposes we ensure flexibility which can meet the exigencies of real-life problems. As Chaim Perelman points out, words with their many meanings allow us the luxury of imperfection and fuzzy logic and the ability to adapt them as we see fit.281 D. The process of development of the Bill  A point frequently made during the committee hearings was that Bill C-49 had been developed in a unique way. As previously detailed, women's groups had been involved in consultations during which the initial parameters of the Bill were set. 282 It had been women's groups who had insisted that the Bill deal not only with evidence of past sexual conduct, but also consent and mistaken belief in consent, and who had  72  thus set the parameters of the reform.  283  In practical terms,  the women had insisted that women's perspectives on sexual assault should be paramount in understanding and defining sexual assault and determining how it will be treated. They also insisted that women's perspectives were not encompassed within either definition or treatment. They thus challenged the basis upon which the Taw was founded. In more theoretical terms, the women's groups attacked the abstract formulation of the offence of sexual assault and showed that it contained a bias, which was reflected in the treatment of sexual assault throughout the criminal justice system. That bias, they subsequently argued, existed not only in relation to gender but also in relation to culture and race, ability, occupation, status and sexual preference. The women's groups, with their diversity of members with firsthand experiences of sexual assault and of vulnerability to it, sought to invert the order of theory and practice and put the practice first.  284  The process was unique, then, in that the facts upon which the reform was based were drawn from women's experiences of sexual assault and their experiences with the processing of complaints.  285  Thus, while the reform did not  move the law from its existing framework, and the ways in which law generally reconstructs events and phenomena, it did acknowledge the existence and importance of other perspectives, and to some extent incorporate them. The result would be a more accurate naming of the problem.  73  That epistemology was a contentious issue in the debate was clear: women's groups repeatedly referred back to the realities of women's lives. They referred to the prevalence of sexual assault, the different ways it happens, and the manifold treatments received by diverse women in the processing of sexual assault complaints.  286  Equally important  was how this knowledge was derived: from grass roots consensus building and through the group interactions of those affected. Thus, the explanation and meaning of the women's experiences was different, depending on who interpreted it. In contrast, several groups offered their account of how sexual activity occurs, as male-initiated; as requiring "certain liberties" to create conditions for consent. 287 Quite properly, 288 several groups raised the realities of prison for those convicted of sexual assault.  289  However, as the exercise was directed not at actually reducing violence against women and children but at defining it, the latter was not accorded any great relevance. It was suggested, vehemently by some and more quietly by others, that the degree of importance attached to the submissions and empirical data offered by women's groups was improper. 280 This should not be surprising, as many people are reluctant to acknowledge the existence of bias in either social or legal structures. In addition, some who argued that women's experiences should not be central to the issue were evincing a preference for theory over practice, implying that theory was devoid of such content.  291  74  Another important process question, referred to earlier, relates to the wisdom of women's groups seeking to lead this reform, in that the reform occurs in law, and more particularly in criminal law. Several criticisms have been made against what might be called "legal activism" in lieu of social activism. 292 It has been argued that the basic political struggle is subverted through recourse to law and channelled into legal discourse, which in effect reconstructs the problem from a point of view already deeply embedded in the law. The result may be only an illusion of progress. Legal scholar Judy Fudge is concerned that the apparent consensus building and organizing benefits that can accrue from legal activism, and apparently did here, are misleading.  293  However, an awareness of such possibilities was reflected in the submissions to the committee and press reporting.  294  Several groups were careful to ensure that  their entire strategy did not depend on law reform and to make it very clear that they had limited expectations of the law reform. 295 For instance, some indicated that reform in the area of law needs also to include judicial education, and that law reform was but one component of a multi-faceted approach. 296 The second concern relates specifically to the use of criminal law as a tool for social reform. Dutch legal scholars Chrisje Brants and Erna Kok point out that the use of criminal law by women seeking equality appears paradoxical, in that criminal law represents one of the  75  strongest bastions of a sexist society.  297  A second concern  arises about the failure of the criminal law to fulfill its utilitarian goals. On the other hand, they point out the immense ideological power of the system, and ask whether or not it should be written off as unchangeable. In this debate, however, the question as far as the women's groups were concerned was not the improvement of the utilitarian value of the law, but more its symbolic implications. Given that the criminal justice system exists, it seems worthwhile to ensure that it reflects equality within its structure. Also, if criminal law dictates what is right and wrong in society, the failure of the law to do so in regard to sexual assault would appear to discount sexual assault as a serious wrong. E. The Principles of Criminal Law 1. Relation to the Charter guarantees  In this part, I will consider more closely arguments made during the debate that Bill C-49 contravened the basic principles of criminal law. Generally derived from historical and traditional notions of criminal law, these arguments were sometimes imported into the discussion on their own merit and sometimes through the avenues of s. 7 and 11 of the Charter. However, they all placed criminal law principles ahead of other objectives or policies. Any new law would have to conform to the existing framework and criteria said to comprise the principles of criminal law. The obvious effect of these arguments, if successful, would be to constrain Parliament's ability to pass criminal laws. I will refer to these arguments as the primacy arguments.  76  Before setting out the primacy arguments, it is necessary to say something of their relationship with Charter-based arguments, for they are very similar, and often identical. My approach to the primacy arguments will be to discuss them as containing normative principles in their own right, not as dependent upon the Charter, though to a significant degree they influence and are influenced by interpretations of Charter rights. My analysis, then, will not be of constitutional or criminal legal reasoning, but of the arguments themselves. I suggest that such an approach is justified and even valuable because of the contribution that can thus be made to Charter interpretations. Although it has been cogently argued that the general principles of criminal law have been, or are being, "constitutionalized,  "298 I will  take it as my starting point that neither the process of constitutionalization or the extent to which existing principles appear as entrenched are fixed or inevitable. 299 Setting the stage for them, the CLAO took issue with the use in the preamble of Bill C-49 of the word "unique" to describe the offence of sexual assault. 3m It argued that the word was used improperly in order to justify the circumvention of the principles of criminal law. If it could be established that sexual assault was in fact different from other crimes, the principles of criminal law might be suspended in so far as sexual assault was concerned. Two major principles of criminal law were said to be breached by Bill C-49:  77  a) The accused is presumed innocent until proven guilty beyond a reasonable doubt. b) Every criminal act must be comprised of an actus reus accompanied by a mens rea. Each was formulated in several different ways. 2. The presumption of innocence.  The presumption of innocence underlies present-day criminal procedure at common law and is enshrined in s. 11(d) of the Charter. As a presumption, it provides the basis for criminal process and sets out the requirements for conviction. By common law, the onus is on the Crown to remove the presumption by adducing proof of guilt beyond a reasonable doubt. Related, but not equivalent to the presumption, is the value of fairness: it is not fair to convict or punish the innocent. The presumption is the means by which the value is given force and effect. However, as will be argued below, the presumption of innocence as presented in the primacy argument was considered not as a means to an end, but was reified into a principle of law and fact, in and of itself, and has come to substitute for the value of fairness which it represents. Arguments based on this principle were made in several different ways: a. The presumption of innocence is negated if trials are not fair. A trial is fair only when all the evidence which relates to the matter is placed before the trier of fact. With the enactment of Bill C-49, evidence which is probative to the issues in the trial could be excluded by the evidentiary restrictions. Thus, trials may no longer be fair and the presumption that an accused is innocent is, in effect, negated. The possibility then arises that innocent people will be  78  convicted. b. The presumption of innocence is negated if innocent people are convicted. Conduct which is not blameworthy is innocent. A person is not blameworthy if he engages in sexual activity believing that despite some expression, by words or conduct, of a lack of agreement on the part of the complainant to engage in the activity," there is consent when her conduct is considered overall. However, courts will be required to find that there was no consent in cases where the complainant "expresses, by words or conduct, a lack of agreement to engage in the activity." Thus, despite being innocent, a person may be convicted. c. The presumption of innocence is negated if the burden of proof shifts to the accused. Under the Bill, it will be up to an accused to prove his innocence if he is relying on a mistaken belief in consent. The shift in the burden of proof means that the Crown is not required to prove guilt to the requisite criminal law standard. The first claim was made by well-known lawyer and author Clayton Ruby in an essay in the Globe and Mai/. 3°1 He suggested that the new evidentiary provisions would work to keep evidence out of a trial that could legitimately result in an acquittal of the accused. This would mean that innocent people could nevertheless be convicted. While he agreed that evidence of past sexual conduct should not be considered relevant to issues of consent or credibility, he said that the decision whether such evidence should be admissible on another point was required to be made in a "biased way." He said, "The new proposals require the decision to be made upon some factors that are totally irrelevant." 302 The factors Ruby refers to are the policy objectives of the legislation that the judge is obliged to take into account: the encouragement of reporting of sexual assault, and the protection of the privacy and dignity of complainants. He suggests that such objectives do not belong  79  in an assessment of whether or not evidence should be admitted. He notes that reporting of sexual assault, privacy and dignity will always be at issue when the admission of past sexual conduct evidence is sought. "How then," he asks, "can they be used to exclude otherwise relevant evidence?" 303 Ruby's approach is categorical: he suggests that evidence is either plainly relevant or not. "But evidence is either important to show innocence or it is not." He does not deal with evidence of "tenuous weight" and appears to imply that there is no such thing. A sliding scale of probative value is not part of his conception of evidence. A second problem is his conclusion that judges will never exercise their discretion to admit evidence as a result of the reporting, privacy and dignity concerns. In the past, judges have shown little reluctance to exercise discretion in favour of accused persons in matters of sexual assault. 304 The most critical problem, however, arises from his use of the word "innocence." It is rare that evidence would be so clear as to actually show something more than not guilty. However, Ruby takes advantage of the presumption of innocence to convert not guilty to innocent and thus increase the appeal of his argument. One might suggest that Ruby has taken his argument to its most extreme application on all three points: 1) the evidence is indisputably relevant, 2) the evidence establishes innocence, (Ruby's word: "shows" innocence) and  80  3) it is automatically excluded on account of reporting, privacy and dignity concerns. Only by taking all three to their limit does the law requiring a judge to consider policy objectives appear to allow for a wrongful conviction. It is only at the extremes on all three points that his argument might have any appeal or persuasive power.  305  The second way in which the presumption of innocence was raised appeared in the same article by Ruby. In this case, he argued that men who were nevertheless innocent would be found guilty 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 may appear to be minor measure. He quoted it as "any expression of a lack of agreement" several times and the substitution is necessary for his argument. He suggested that the jury would be absolutely precluded from considering whether there was consent or not where there is an iota of evidence that actually said "no." Presumably, he was suggesting a situation where a woman sends mixed signals for reasons other than fear or inordinate pressure. On the one hand, one might be tempted to argue that there in nothing in the Bill that precludes the jury or judge from looking at all the evidence when determining if the complainant expressed "a lack of agreement to engage in the activity." If this is the case, his premise is faulty. However, this answer is far from satisfactory as it  81  leads to the suggestion that the trier of fact is allowed to look past "no" for other evidence of consent. For instance, if that were the interpretation of s. 273.1(2)(d), were the Letendre case to be decided under Bill C-49, the trial judge might well say that despite the words "no," there was enough conduct on the part of the complainant from which the accused or even the trial judge could infer consent. Not only did she not resist, she assisted the accused in removing her clothing. 306 A better explanation, and one that conforms with the policy objectives of the legislation, is that the Bill has redefined a "mistake of fact" to be something closer to a mistake of law.  307  The man, in either Ruby's case or a  Letendre case, needs to know two things: one, that where a "lack of agreement is expressed" that the law will consider that no consent was given, and secondly, that if he nevertheless believes he may have consent, he must take "reasonable steps" to be sure that he does. If he knows neither and does neither, he is convicted, not because he made a mistake but because he did not know the law (and because he sexually assaulted someone.) A premise of Ruby's argument must be, of course, that a person who did not intend to break the law is innocent, and here Ruby depends on quite a different notion of innocence from the first formulation. In the first argument, the man is innocent because the proof against him is faulty. In other words, it is a legal conception. In the second, the man is  82  innocent because he did not mean to break the law. Here, innocence is a factual conception. This establishes the flexibility of the concept of innocence. One might wish to argue that a truly innocent man is hardly likely to have sex with someone against their will, and would endeavour to ensure that there was consent. The Bill requires much less, only that reasonable steps be taken. Given the flexibility of the notion of innocence, it would appear paradoxical, at the very least, to rigidly apply the principle. This shows that in espousing the general principle that a person is innocent until proven guilty, one can take advantage of the commonplace "innocent" and use the principle to sidestep the real questions. In this case, these are whether it is fair to ever suppress evidence, 308 and whether a person who ignores a refusal by a person with whom he wants to engage in sexual activity should always be convicted. Before leaving Ruby's essay, it is worth noting some features of the style of his argument. His article started with the candid admission that in "the bad old days, when [he] began practicing law" it was hard for a lawyer to lose a rape case. The necessary technique for "winning," was simply to attack the complainant on her past sexual conduct. Sexual promiscuity meant jury disapproval of her, which in turn meant an aquittal. By stating his disapproval of old practices, Ruby asserts common values with the legislation, and narrows the purpose of the Bill to concerns about the impact of sexual promiscuity, when, in fact, it attacks a  83  good many more assumptions than simply that. Because he apparently shares the values of the legislation, through his declaration and implied confession that he, too, took advantage of sexist stereotypes as a young lawyer, he is freer to attack the proposal because no one can distrust his motives. 309 Similarly, with a much narrower conception of what the Bill is trying to achieve, his conclusion that means other than the criminal law should be used to reach the same end seems more reasonable. In sum, Ruby's technique was to take advantage of the apparent value in "innocence" and to use it to re-argue the basic questions that had either been canvassed in Seaboyer or in the debate. However, here they were clothed with the authority of being fundamental and therefore primary. Shades of grey were converted into black and white, as "proof" was accorded only qualitative content rather than quantitative. He reasoned by extreme example, though not quite reductio ad absurdem, and removed the discussion of values from the argument. The "shifting burden of proof" argument was raised by an editor in the Globe and Mail on the same day that Ruby's essay appeared, May 19, 1992.  310  Under the headline, "An  assault on the law, not to say common sense," the editor argued that the Bill contravened the "foundation stone" of criminal law. Addressing s. 273.1 and s. 273.2, he or she cited the stipulation that "it is no defence 'that the accused believed the complainant consented where...the  84  accused did not take all reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.'" This means, the editor argued, that the law says: "no means no, maybe might mean no, and failure on the part of the women[sic] to say anything, or the man to ask, could well mean no." This, the editor complains, would "leave little room for that most ambiguous of human acts: seduction. Not to mention such procedural niceties as the presumption of innocence." The "foundation stone," asserted the editor, is that the Crown must "prove that the accused had a `guilty mind' that he knew what he was doing was wrong." (While it is not entirely clear whether the Globe is touting the burden of proof or the quality of the mental element as the "foundation stone," it would appear that it is a shifting burden of proof that is under attack.) The editorial stated that it is a "reverse onus" requirement and that it may well violate sections 7 and 11 of the Charter. This argument did not form part of any submissions to the committee, nor did it appear elsewhere in print. It was effectively rebutted in a letter from the Minister the following week. Most commentators acknowledged that the "reasonable steps" requirement, whatever else it did, did not alter the procedural requirements that the Crown prove the case  . 311  Although the editor may be forgiven for confusing an onus to act (i.e. ask if he has consent) with an onus to  85  prove, the editor's apparent dislike for the provisions is remarkable in and of itself and provides an example of the persuasive power of the primacy arguments. The editorial is also interesting for its striking use of a metaphor commonly used in criminal law. The author personifies criminal law: its "body" is "assaulted" by the Bill. As a rhetorical and ideological device, it has a strong conceptual effect on the way in which criminal law is conceived, intensified by the addition of a human element. It is quite literally fleshed out. By employing this technique, the author takes advantage of several unproven assumptions, which, it will be argued later, should have been considered: first, the author posits, without having to argue it or even admit of its contentiousness, that criminal law is concrete; therefore it must have finite dimensions and boundaries; if it is a body, it must be internally unified; and finally, because it is human, it matters what happens to it, independent of our use for it. Its autonomous existence separates it from its function, whether instrumental or ideological, and requires for it unmitigated consideration. Criminal law becomes a  priori society's need for it. 3. The meaning of the presumption of innocence Not only are the words in this maxim indeterminate, so too is the phrase itself. As the presumption of innocence has been 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, its pedigree as ancient, nor its status as secure.  86  C. K. Allen pointed out in 1931 that the presumption of innocence was a relatively recent addition to criminal law. 312 It did not appear as a principle of any sort before the 19th century. When it was declared in R. v. Hobson, 313 it was more of a platitude than a presumption: "It is a maxim of English law that ten guilty men should escape rather than that one innocent man should suffer." And this came at a time when accused persons were at a tremendous disadvantage in matters of evidence and procedure and very likely to be found guilty. It was not until the end of the 19th century that accused persons could testify on their own behalf, call witnesses to be sworn, or be represented by counsel in felony cases. 314 Thus, the backdrop against which the presumption emerged was of innocent persons having no opportunity whatsoever to challenge the prosecutors' case or present a case. Without a presumption of innocence, an accusation alone could suffice to establish guilt, and frequently did. Allan suggests that there exists a notion that the presumption of innocence was one of the remarkable features of English criminal procedure that distinguished it from French procedure, 315 and thus one might suspect that patriotism or chauvinism played some role in the elevation of this rule of procedure to the rarefied heights of a principle of law. He points out, however, that neither the English accusatory system nor the French inquisitorial system contains any actual presumption of guilt.  316  According to  Allen, the difference between the systems, as far as it relates to the presumption of innocence, is that in the  87  English system, there must be a prima facie case for the prosecution to proceed, whereas in the French system, there need be only a suspicion of guilt.  317  The presumption thus  stood for the threshold for prosecution, rather than even a procedural rule. Nevertheless, if English judges prided themselves on the fairness and justice of their system compared to the French system, they may have developed the rhetoric of the presumption of innocence as a way in which to describe what they saw as the difference in fairness and justice between the two. Viscount Sankey in the seminal case, Woolmington v. D.P.P. 318 developed the jurisprudence in relation to the presumption further. He held that the purpose of the rule concerned the proper relationship of the judge to the jury in a criminal trial: If at any period of a trial it was permissible for the judge to rule that the prosecution had established its case and that the onus was shifted on the prisoner to prove that he was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it would be enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so make the judge decide the case and not the jury, which is not the common law. 319 Thus, the presumption existed to prevent judges from usurping the role of the jury. It finally became a rule of procedure that required the Crown to prove the case. Herbert Packer  32°  gives the example of a person who in front of many witnesses shoots and kills another. Notwithstanding a straightforward case in which one may fairly safely predict that the shooter will be found guilty, she will have the benefit of the  88  presumption of innocence at her trial: the onus will still be on the prosecution to prove the case beyond a reasonable doubt. Packer thus says that the presumption of innocence is a procedural rule which directs officials as to how they must proceed against an accused and is not at all a statement about the de facto guilt or innocence of the accused.  321  It is worth noting that notwithstanding the development of the presumption of innocence, it was not incumbent on the prosecution at English common law to disprove any statutory exceptions or exemptions that might apply in the accused's favour in trial by indictment.  322  Despite the obvious problems  of distinguishing between what is an ingredient of an offence and what is an exception, a similar provision was held not to violate the Charter guarantee to the presumption of innocence as recently as 1985 in Canada.  323  However, in more recent times, the presumption appears to have been accorded more substantive content. No longer merely a direction to officials as to how to proceed, the presumption has acquired a connotation of factual innocence for the accused in R. v. Oakes.  324  In that case, Chief Justice  Dickson said: [The presumption of innocence] ensures that until the state proves an accused's guilt beyond all reasonable doubt, he or she is innocent. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise. 325 Thus, until the determination of guilt is made, the presumption of innocence is not only a procedural requirement, but a substantive evaluation on the innocence of  89  the accused. This, I would suggest, goes far beyond the ordinary understanding of the point and meaning of the presumption of innocence. It transforms the jury's choice of verdict from a finding of guilty or not guilty, to a finding of guilty or innocent, regardless of the reason for the acquittal. This interpretation, arguably, presents us with an unnecessary dichotomization of the result of a trial, which removes the trial process yet another step from the real world. While there may be cases wherein a jury believes an accused to be innocent, and hence finds him or her not guilty, there are probably just as many in which the jury simply 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 the interpretation 326 of Dickson J., this establishes that the meaning of the presumption of innocence is not fixed but evolving, and is best described as indeterminate. Returning to the value of fairness represented by the maxim is more productive. The question remains simply whether or not the Bill will allow for a fair trial. Against the first formulation, the question becomes whether any suppression of evidence can be fair, and against the second, whether a person should be entitled to ignore a refusal, or alternatively, whether a defence based on mistake of law should be allowed. With respect to the first, it is precisely this question that led to the decision in Seaboyer, and hence  90  to the Bill. With respect to the second, the question must obviously be answered by reference to policy rather than legal considerations. 4. Every criminal act must be comprised of an actus reus and  accompanied by a mens rea.  A second fundamental principle of criminal law said to be breached by the provisions of the Bill states that every criminal act must usually be comprised of an actus reus accompanied by a mens rea. 327 It is standard criminal law theory that in order to impose criminal liability on a person, the court must find that the requisite mens rea accompanied the actus reus of the offence. However, the meanings of each of the components of this maxim, particularly mens rea, are very controversia1,  328  and the  dispute over its meaning was played out in the debate. The argument relating to the existence of mens rea was formulated in two distinct ways, each with a variation. They were: 1. No one should be liable for conduct that was not blameworthy, or for which a person was not at fault. To be blameworthy, an act must be committed voluntarily. The test for voluntariness must be subjective: did the accused intend to do what he did? The requirement that an accused take "reasonable steps" to ensure he has consent imports an objective test into a determination of mens rea because what is reasonable will be determined not from the accused's point of view, but from that of a third person, although it will be limited by reference to the "circumstances known to the accused at the time." Thus, the Bill may result in people who are merely negligent being convicted of criminal offences. 2. A variation negligence can but where such is not a "true  of the first formulation is that constitute the mens rea of an offence, a mens rea is contemplated, the offence crime" and should be accorded less  91  stigma and penalty by separate offence definition, in accordance with its lesser culpability. 3. Criminal liability must not be imposed for offences which require no mens rea, or absolute liability. If a person is so drunk as to be unable to form the intent to commit sexual assault, or the acts comprising sexual assault, then he cannot be said to have the mens rea of the offence. Removing the defence of mistake of fact when it is caused by extreme drunkenness imposes absolute liability on people who are very drunk. 4. A variation on the third formulation was that if the mens rea of the offence is found in the intention to drink, then the mens rea does not accompany or actuate the actus reus. The first claim was made by several groups. Speaking for the CLAO, Marlys Edwardh, appearing in front of the committee, said: All criminal conduct today focusses on the question of what the mens rea of the crime is. True crimes require a subjective understanding of ones' conduct and the circumstances.[Emphasis added.] 329 The CLAO thus argued that the mens rea for an act to be criminal must be subjective. She argued that the Bill "brings negligence into criminal law" and, in so doing, shows a "marked departure from fundamental and traditional principles." 330 She was joined in this by the CCLA and Don Stuart. 331 Stuart, although adopting the second variant of this argument, agreed, along with the CCLA, that it would be an "extension of criminal law." 332 The new definition of consent, or better, non-consent, and the restriction on the use of the defence of mistaken belief in consent would require people to conduct themselves in accordance with objectively determined standards. Thus, people who may not have been subjectively aware of the actions or circumstances which rendered them criminal could nevertheless be convicted  92  of criminal offences and punished. These people, because they were not subjectively aware, according to the CLAO, would not be at fault or blameworthy. A first objection to this argument must be based on the imprecision in meaning of "fault" and "blameworthiness." Like innocence,  333  these words are commonplaces; they can also be  either factual or legal constructs. Even though an accused may assert, "It is not my fault," his opinion is rarely determinative of the matter. It will be a judge who decides as a matter of law, not fact, whether there is fault or not. The legal notions of general and specific intent have assisted the judge in the past in deciding whether or not there was fault. Although there may have been a time when the basic issue of judgment was whether or not a person could have avoided the criminal conduct, the present level of inquiry is once removed. More often than not, the judge does not address herself to "was there fault?" but rather, "was there the requisite intent?" "Blame" and "fault", then, can be 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 constitution of our system as one which is morally based.  334  Thus, blame is  posited as a matter of the morality of the subject, which can only be determined by looking at what the person actually knew or intended, or was reckless about. Many current theories insist that one is only to blame for actions that one intended to do, was reckless about, or at most, wilfully blind. 335 Similarly, they insist that simply failing to take  93  care is not immoral, if one did not appreciate or foresee the risk. To hold a person responsible in such circumstances is to punish the innocent. However, this relationship between subjectivity, morality and blame is not obvious or compelling. In contrast, it has been argued that where a risk of great harm exists, there is a moral duty to pay attention to the risk. For example, Ralph Lindgren 336 argues that there is a positive duty to avoid questionable conduct, and as long as this duty is adhered to, there will be no liability. As suggested earlier, the law on sexual assault which forbids sexual force without consent would be more accurately described as forbidding sexual contact without consent or without taking reasonable steps to ensure consent. Lindgren replaces the problematic subjective-objective dichotomy with a question that cuts to the heart of the matter: could the behavior have been avoided? Whether this should be the test is not a legal question, but a political one: to what extent should the state impose duties to take care? Those who wish to maximize freedom may believe that reasonable steps are an unacceptable requirement, or, if they value the freedom of women 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 blameworthiness should or can be characterized the same in all offences, and whether the distinction between subjective and objective standards assists in a determination of blameworthiness.  94  Instructive on the point is the response of the CBA to the requirement of having to take "reasonable steps." 337 Although the word reasonable imports by definition an objective standard and requires an accused to be able to discern what is reasonable, it retains a strong subjective element in that reference must be had to the circumstances known to the accused at the time. The test is neither completely objective, nor completely subjective.  338  The significance of the notion of blame fades further when one considers what is entailed in the reasonable steps requirement. Women's groups argued that it was not very complicated. As Sheila McIntyre of LEAF put it, "if you're not sure, ask; if you're still not sure, don't." Against this simple requirement, it seems that failing to take such a step could indeed be blameworthy. On the other hand, if a person believed he had consent, when in fact he did not, and therefore takes no steps, he too would be found guilty. His blame in fact, as opposed to law, must then lie in what gave rise to his belief.  339  The second formulation of the principle was no less categorical, but allowed a place for negligence in criminal law. In an essay 34° appearing in the Globe and Mail after the Bill passed first reading, law professor Alan Brudner argued that the requirement that an accused must have taken "all reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting" probably violated the Charter. Brudner argued that where an offence could be committed with a mental state  95  characterized as negligent, that that offence should be distinguished from one of intention by separately defined offences for which there would be different maximum penalties. Adopting the language of Dickson J. in R. v. Sault Ste. Marie, 341 he asserted that only intentional acts were "true crimes" whereas negligent offences were "public welfare offences." Negligent sexual assault should have a significantly lower penalty and less stigma attached to it. Although a judge might well take the degree of intent into consideration on sentencing, Brudner warned, "we cannot leave something demanded by a principle of justice to the discretion of a judge.  " 342  A similar argument was made by law professor Don Stuart to the committee.  343  Unlike Brudner, Stuart did not argue  that "negligent" sexual assault is not a real crime, only that it is less culpable. The rationale for the rule, according to Brudner and Stuart, was subsumed in yet another principle of criminal law, that of proportionality, which requires a proper relation between the degree of blameworthiness and the stigma and penalty associated with the offence. Committing sexual assault on purpose was far more culpable than committing it through carelessness. Both therefore argued for the bifurcation of sexual assault. The argument is based on decisions of the Supreme Court of Canada dealing with various Criminal Code offences in which homicide was deemed to be murder even though there was  96  no intention to cause death.  344  In each of these decisions,  the Code provision was held to be unconstitutional on the basis of s. 7 of the Charter. The ratio for each decision was similar: the principles of fundamental justice require that unintentional homicide be treated differently than intentional homicide because of the great stigma and penalty attached to intentional homicide. Brudner quoted from Martineau: "[it is] a fundamental principle of a morally based system of law that those causing harm intentionally be punished more severely than those causing harm unintentionally." 345 The first response to the argument is similar to the one against the preceding formulation, although here it is a question of degree of culpability. While the characterization of sexual assault as being committed negligently as opposed to intentionally is one that is familiar in law, is it reflective of the harm and reality of sexual assault? 346 If our theory of criminal liability rests on blame rather than harm, we arrive at a situation where a trivial harm produced intentionally should be treated as more serious than a momentous harm produced "carelessly," and this may have concerned at least two of the debate participants, Don Stuart and the CCLA. Both argued that sexual assault which includes intercourse, formerly rape, 347 should be defined and treated separately than other sexual assaults, and thus, perhaps, they hope that degree of harm will not be completely left out of the equation. What both have failed to consider is that from the perspectives of victims this may be a  97  distinction not worth making.  348  Secondly, one might distinguish the constructive murder cases from constructive sexual assault on the basis that in the former there is a minimum penalty.  349  Assuming different  degrees of legally determined fault or blame can be attached to the same conduct, while it may follow that they should be punished differently, it does not follow that each level of blame should constitute its own offence with its own distinct maximum sentence. 35° To argue otherwise is to confuse maximums with minimums. Somewhat less obvious is the complaint about stigma. Stuart emphasized that it was not fair to have the same stigma apply to "negligent sexual assault" as to "intentional sexual assault." Stigma, which is extremely strong in cases of sexual assault, flows as much from the offence definition as the penalty. Without doubt there is a great deal of truth in his contention. Although a heavier penalty may well be intended to attach a greater stigma in one instance over another, in matters of sexual assault rarely does one get to considerations of penalty. The offence stands on its own as heinous. Nevertheless, there are several reasons why the same stigma should attach to both intentional and negligent sexual assault. First, one might argue that if there is such a thing as negligent sexual assault, it contains its own peculiar harm: that is, the social injury of being so careless of one's sexual partners that one could negligently assault them. 351  98  Second, there may be a value in retaining one blanket offence, in which case the basis for the negligence would be brought out in the sentencing hearing. In order to obtain a lower penalty the accused may have to explain his stereotypical attitudes about women: "I assumed that she consented because she went up to my hotel room with me," or "We had a drink together," as opposed to being allowed to plead guilty to an offence of negligent sexual assault and not have to deal with the source of his "negligence." Third, by retaining a similar stigma for both, the message of one being as serious as the other as far as the victim is concerned 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 reaction might accrue to those who commit sexual assault negligently. Underlying this is the question of the purpose of the legislation: if it is to get the justice system to take women's complaints more seriously, one must ask whether that purpose would be furthered by creation of an offence of negligent sexual assault. Similarly, if the purpose is to affect our ideology in relation to women's sexual autonomy and even equality, how are they furthered by this argument? On the contrary, an offence of negligent sexual assault would likely severely damage both. The third formulation relates primarily to the issue of the drunkenness of the accused. Section 273.2(a)(i) states that where mistaken belief in consent is raised as a defence,  99  it will not be allowed where the mistake arose as a result of the accused's self-induced intoxication. Stuart argued that this provision created, in effect, an offence of absolute liability in cases where the accused is extremely drunk.  353  Relying on obiter in Bernard, 354 Stuart argued that a person should not be held responsible for his actions when he was so drunk as to not have the capacity to appreciate his own actions. To hold him responsible in such conditions would hold him responsible regardless of the voluntariness of his actions and create an absolute liability offence. The CLAO argued this slightly differently, reflecting the decisions wherein courts have found the requisite mens rea for drunk driving offences in the intention to drink. The CLAO argued that the requisite nexus between mens rea and actus reus, is not then present.  355  Both arguments assume certain temporal limits within which a judge should be allowed to look at an accused person's conduct. The question is, why should it be confined to the precise moment in which the assault occurs? Whichever way this argument is put leads to the anomolous result that a person who drinks so as to reach the extreme state of drunkenness contemplated in the Bernard obiter and these arguments is protected from criminal liability whereas a mildly drunk person is not. Surely the problem of drunkenness as a social problem, whether leading to deaths on the highway or sexual assaults is a matter requiring careful. consideration. Surely it should not be a principle of criminal law, constitutionally or otherwise, that extremely  100  drunk people are free to break the law. 5. The principle of harm Many authors suggest that it is a principle of criminal law that it only sanction harmful or seriously harmful behavior.  356  The purpose of the criminal law to protect  society, 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 finds many other justifications for it, ranging from revenue generation to keeping the peace.  357  However, the idea of harm  prevention is now central in discussions about the purpose of criminal law, whether as motivating force, or after-the-fact justification. It is not universally accepted as a useful concept. 358 The concept of harm did not form a significant part of the opposition arguments. One reference to it was in Alan Borovoy's comment that the Bill would criminalize the "stolen kiss." 359 This claim is obviously intended to be uncontroversial: only very odd people would complain about such a kiss. However, he is wrong to think he would find agreement necessarily. Some may see considerable harm in this act: from the complainant's point of view, an unwelcome kiss may be a very unpleasant experience, depending on who the assailant is, the relationship she has with him, and the way in which it is done. Not only is it a harm in itself, it may have harmful effects on her sense of personal safety and self-esteem. Who has the right to second guess her right to personal and sexual autonomy? Secondly, a kiss may be  101  delivered in a threatening manner or in a context which together with the kiss produces a threat, and may indicate more to come. The kiss could be a message that her will and wishes are not important, and that disregard for her may not stop there. If however, no harm was caused by such a hypothetical kiss, Borovoy's complaint is that it would nevertheless be criminal. 360 His criticism is true of many criminal offences. Although most discussions of criminal law in the last 20 years provide that only "serious harm" should be considered criminal, no satisfactory theoretical methods have been developed to determine its threshold. The only proposed means short of an argument of de minimus non curat lex 361 is through regard to the intention of the accused.  362  Thus, if  an accused intended to cause harm, causing the harm is serious and punishable, whereas if an accused did not so intend, then causing the harm is somehow less serious and either not punished or less deserving of punishment. Thus, if one intentionally commits a criminal offence, one is convicted and punished regardless of the harm caused. If one murdered a person who, dying and in great pain, requested death, one would nevertheless be guilty of first degree murder and be sentenced to life imprisonment without eligibility for parole for 25 years. Similarly, if one touches a person on the arm to advert them to a space in a line-up, one commits assault for which one may be held criminally liable. In short, we have no way in theory to deal with the question of harm.  102  In fact, the answer has lain not in theory but in practice. Selective enforcement, police and prosecutorial discretion and the non-reporting of offences are ways of limiting prosecutions for non-serious harm. The way in which such administrative decisions have determined harm in the past has, of course, been criticized, especially in relation to sexual assault.  363  The other side of the harm question was seen in the arguments put forth by several women's groups who argued the "gendered nature of harm" and those other participants who argued the harm of  fear  of sexual assault. 364 Both of these  arguments extend the injury past the individual victim to the collectivity who would identify with that victim. This raises questions about an upper limit of harm for which one may be held responsible. If sexual assault is motivated by misogyny, does that not increase the harm intended? The third question about harm was raised by Don Stuart and the CCLA who, as noted above,  365  sought to have an  offence of rape separate from sexual assault so as not to "trivialize rape." This argument was not based on a principle of criminal law, so much as policy. It raises the issue of whose perspective should be used to define and determine harm, which relates to the issue of who is writing the law reform. 366 Many authors make the point that the concept of rape has always been considered from a man's point of view.  67  The  103  historic focus on penetration is considered by many to prove this. While it is true that penetration has its exacerbating features such as the possibility of pregnancy, and the risk of acquiring AIDS or other sexually transmitted diseases, some argue that from a woman's point of view it is not meaningful to separate it from other forms of sexual assault. 368 The problem is not penetration per se, but the simple fact of sexual aggression that denies women the right to autonomy. In terms of the injury itself, it is quite possible that a sexual assault will involve acts even more injurious, psychologically or physically, than vaginal penetration. One might concede that historically, in English law, the consequences of penetration have been far more serious than they are today. If the outcome of a sexual assault was pregnancy and an illegitimate child, the consequences for both the woman and the child were very serious. The child was called a "bastard" and, even before its birth, was confined to an inferior social and legal status. For the woman, social censure was far more likely to cling to her as to the man responsible, and, in fact, would probably adhere to her long after it faded from him. 369 However, although it is generally women who have experienced the harm of sexual assault, it has not been women who have necessarily defined the harm. It has been men. Men have said: there has been no injury, only a rape, 370 or they have said the harm lies in the danger of pregnancy or disease, 371 not in her feeling of violation and the denial of  104  her autonomy. Consequently the legal categories which draw lines around different behaviors have reflected men's ideas about what the harms have been. 6. The principle of legality  The principle of legality 372 stands for the proposition that a person may not be convicted of conduct which did not comprise an offence at law at the time it was committed. A corollary is that a person should not be convicted of a provision which is so vague or imprecise that it is impossible to know what is forbidden by it. Both were argued in the debate against the Bill. 373 The CLAO relied on the principle to argue that the Bill could result in convictions of people for sexual actions even where there was no question in fact but that consent had been given. This, it argued, could occur as a result of the decision of the Supreme Court of Canada in R. v.Jobidon. 374 In that case, a death had been caused as a result of the application of force by the accused. The trial judge had found the facts to be that the deceased had consented to the application of force in a fight. The issue was whether one could consent in law to force causing bodily harm. The Court held, notwithstanding s. 9 of the Code, 375 that at common law, one could not consent to such force. The CLAO suggested that Jobidon would be incorporated into the interpretation of consent in matters of sexual assault. Because consent to sexual activity which results in bodily harm is not specifically abrogated in the Bill, the  105  CLAO argued that such an occurrence could be found criminal even though not an offence proscribed by law.  376  However,  clearly the problem lies not with the Bill, but in the use of the common law in Jobidon which, it has been argued, creates an offence at common  law. 377  The CLAO, CBA and CCLA 378 relied on the corollary to argue that more precision was required in relation to the meaning of "all reasonable steps," and, as well, the level of intoxication required to vitiate the consent of the victim. 379 However, although the amendments to the Bill removed both references, and appeared to thereby solve the problem, the interesting point is that it was not the offence itself that was vague, but those provisions which control the use of defences. One is tempted to ask whether the principle was not being used in an overly legalistic way, to produce greater latitude to those who have a tendency to have sexual relations with women who have not consented, or who seek the outermost limits of legal behavior. It is one thing to clearly formulate an offence, and it is quite another to require the same of defences.  CHAPTER FOUR THE BASIS FOR THE PRIMACY ARGUMENTS A. The Paramountcy of Basic Principles of Criminal Law  To summarize, the arguments based on the principles of criminal law suggest their application either on their own merit, as moral requirements, or as legal requirements through their constitutionalization in the Charter. However, as has been illustrated, the so-called general principles  106  appear fraught with ambiguity, as in the presumption of innocence, highly controversial, as in the interpretation of mens rea, or lacking a means to become operational, as in the concept of harm. Even the principle of legality creates concern through its highly legalistic approach to exceptions and excuse. This leads to the question of whether, indeed, it is appropriate to attribute to such maxims, adages, aphorisms and even truisms the dignity and power implicit in the word "principles." Is it accurate to call them principles and what does that import? It has long been debated whether there is a deep structure to criminal law which unifies it and provides it with logic and rationality, hence principles. 380 Considering the growth and development of criminal law, the influence of different cultures on it, and the various political compromises going into it, it would take an almost religious belief in law to expect one. However, several factors contribute to such a notion. Among them are, briefly, common law methodology, the tendency to impose meaning on the world and to attribute to cultural and social developments the quality of being natural, and, finally, the parallel development of the project of recodification. In the following passage, I will consider how each of these sources has contributed to the notion of principles underlying criminal law, and pose some questions as to the wisdom of accepting their tenets.  107  1. Common law methodology  The critical features of common law legal method are the doctrine of stare decisis and the use of inductive reasoning. Stare decisis has provided judges a time-efficient  methodology for solving problems in a relatively consistent and predictable manner through the development and application of "rules" distilled from previous decisions and applied in present decisions. However, notwithstanding the conservatism of the doctrine, courts have found ways to either avoid past decisions or advance new doctrines through the abstraction of the inductive reasoning process. Through abstraction, similarities are identified and differences removed, or marginalized. 381 As similarities develop in this way, the law is said to be revealed or glimpsed, and thus the perception of an underlying structure develops. The rhetoric of principles and foundations furthers the effect. It is not a big step to transfer the methodology employed in the evolution of common law doctrines to the more immediate process of law-making through legislation. However, algorithms, or short-hand rules for determining results, should not be imbued with connotations of a deep structure. Generalizations are not the equivalent of essentializations, although they may be confused with one another.  382  That the method of common law reasoning is not  108  applicable to the development of legislation should appear obvious. The same requirement for predictability and consistency is not necessary from legislation as from case decisions. Legislation, by virtue of its entrenchment in statute 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 the methodolgy of generalization and abstraction is going to provide anything of use in legislative form. On the contrary, it is important to recognize that the abstraction renders differences invisible and unimportant. For instance, legal scholar Kathleen Lahey 383 has analyzed how theoretical abstraction in criminal law has allowed for the development of a dichotomy between actions occurring in the public and private spheres, with the result that violence within the home was tolerated. And, as argued in the debate, the abstraction of gender neutral language in the definition of sexual assault has allowed stereotypes and myths about women to subvert the purposes of laws on sexual assault. A major thrust of the women's arguments was to make concrete the applications of the provisions. Not only did there appear to be a major confusion in the respective law-making roles of the judiciary and the legislature for some participants in the debate, there was also confusion about the difference between the role of crown counsel in a criminal case and Parliament.  384  109  2. Naturalizing law  The existential issue is whether or not there are principles of criminal law. This issue is more often than not neatly avoided by asking the descriptive question: what are the principles of criminal law? 385 By searching for them, whether in past law or legal analysis, one's thinking is first of all organized to expect and anticipate not only the answer but the form of the answer. Already, one has assumed a unifying basic structure common to the diverse offences, defences and procedures of criminal law, sometimes termed a "deep structure," and the question merely calls for the identification of the rules or principles.  386  The "body" of  criminal law appears before us, and we are inclined to search within it for rationality.  387  Abstracting sufficiently allows  us to succeed. By taking a cosmological approach we have predetermined that there is an answer. Arguably, this is the direction in which the Charter's reference to principles sends us. Related to the tendency to expect rationality is the tendency to attribute to social customs and institutions the quality of being natura1.  388  As individuals join in the  cultural evolution of their society at birth, social structures appear as inevitable and necessary.  389  They are not  the result of choice or accident, but part of a grand design. Law is no exception to this tendency. As we have sought explanations of nature, so too do we seek explanations of law. Although divine plans are rarely offered now as  110  explanations of law, according to English scholar Lord Lloyd of 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 higher truth and a higher justice than that embodied in manmade law is not easily extinguished. On the one hand some detect signs of this doctrine even among those who reject it, as for instance, in the principle of utility of Bentham. Lundstedt asserts that all schools of jurisprudence (except his own) adopt the natural law approach, by admitting what he terms the "method of justice," whereby the law is developed according to what is deemed objectively just in accordance with an imaginary "material" law underlying the positive legal rules. 39u He thus suggests that substituted for the idea that law is derived from god or nature is the idea that it has a source in an imaginary but nevertheless material framework. Crucial to the philosophy, is that this framework, whatever its source, lies beyond the reach of positive legal rules, and hence supercedes the dictates of ordinary legislation. 391 A comprehensive critique of the idealism inherent in such a philosophy is beyond the scope of this paper. However, two things must be noted: one, to the extent that present arrangements are idealized as natural or beyond our grasp, they are by this philosophy unchangeable, and, two, that the philosophy is characterized by high levels of abstraction necessary to formulate its absolutes, and thus contains the conditions for bias. Whether one espouses a view of criminal law as a reflection of natural law or not, it is clear that embedded within existing law are pre-emptive views on what is natural and what is not.  392  For instance, it was argued against the  111  Bill that it is in the "nature" of men to be sexually aggressive, and the Bill would be interfering with the men's "biological imperative.". But apart from political implications, which will be discussed below, can there be any reason why law must necessarily correspond with prevalent views of what is natural? 393 It might be said then that a basic thrust of the law reform in Bill C-49 was to declare nature irrelevant. Even if it were true that it were natural for men to assault women, the point of the law is to say they can't do it anymore.  394  5. Recodification A related contribution to these arguments, and one which draws on many of these same sources is the particular legal discourse of recodification, which has been ongoing for well over 100 years, not only in Canada, but in much of the western world. Recodification presents a vision of law as coherent, rational and internally consistent. The thrust of the project is to provide a rationalized body of principles that control the interpretation and constitution of all offences and defences. It creates a second level of theory that controls how criminal law is done. The Canadian project, led by the Law Reform Commission of Canada, was initially intended to do two things: to rationalize criminal law and also to inquire into the social and political goals and consequences of criminal law as it existed. 395 Despite some initial efforts to draw the public into consultation, the Law Reform Commission of Canada  112  eventually narrowed its consultation to those within the legal, scholarly and justice community.  396  Ultimately too,  despite some early recognition of problems in social values and the hierarchy of values reflected in the criminal law, the LRCC's work focussed only on the internal goals of achieving clarity, consistency and rationality in the law. 397 The combined effect of redefinition of goals and the legal expertise of those involved in the project has been to make the raw material of the work existing criminal law. In this respect, the Canadian experience has not been unusual. As American legal scholar George Fletcher has put it, though not as a criticism, the tendency of most legal work towards codification in the last 100 years has been a search for principles for the general part of the criminal law from existing law. 398 In other words, the normative aspects of criminal law theory are sought to be derived from its descriptive aspects.  399  Thus, the parameters for the inquiry  were limited to problems that existed in the law and law enforcement. In the quest for simplicity and rationality, the various Canadian proposals have relied on broadly worded theoretical principles to provide the basic structure according to which law shall be done. Although there is some disagreement among the legal and scholarly communities on precisely what should be entailed in codification, the notion that the rules of the general part should be applied across the board to all offences as principles seems to have been accepted. 400 Notable exceptions are Kathleen Lahey, J.W. Mohr, de Burca and Gardner  113  in England, and possibly Peter Low in the United States.  401  Thus the existential issue has disappeared, and the only one remaining is of appropriate description. Recodification is problematic, however, because even though it need not depend on the past, the divine or nature, the organizational matrix which it creates in turn demands that any addition or change to criminal law should further the internal consistency 402 of it rather than destroy it. It is the organizational structure that provides the external framework and against which new law must be compared. That there may have been a choice in how classifications were initially drawn is ignored in favour of categories already in place, these, more often than not, derived historically. It is not merely that different groups of people may experience life in different ways and that their experiences are no less valid and thus should be recognized in law, particularities of offences might call for different treatments, depending on whether the offence depends on an act, an omission, a circumstance or a result. To characterize a sexual assault as occurring "negligently,  " 403  for example,  does not comport with reality, but arises from the separation of the offence into discrete elements: an act and an omission. That we have only begun to canvas gender differences, let alone other differences, has been made clear. Conformity to a set of principles derived without consideration of specifics may ultimately defeat these principles. Although the argument that codification allows  114  for better critique of principles may be true in an academic sense, it hardly holds in a political or legislative sense because the categories of the matrix are already set.  4"  It is instructive to note that in the recodification proposals of the LRCC to date, sexual assault has not been dealt with. Because of its "special nature," it has been left for consideration "at a later date."  405  In other words, it has  already been contemplated by the LRCC that sexual assault may not fit the standard, though little has been made of its omission. In fact, as stated earlier, the entire tenor of the primacy arguments is that sexual assault must conform to general rules. The question then, is why should sexual assault be considered the exception? What is it about the offence that precludes it from setting the example? 406 B. The Roles of Consensus and Purpose  There are several political reasons why existing principles are an appropriate criterion upon which to determine what new law should be: they should protect us from tyranny, promote legitimacy and consistency of law, and prevent unexpected consequences.  407  The basic opposition argument is an obvious one, but bears mention: it lies in the present systemic contradiction of crime control and due process. Suggested by Herbert Packer  408  these two concepts represent competing value  systems that co-exist within criminal law. Criticized for representing too narrow a conception of criminal law, 409 they nevertheless accurately reflect many people's ideas about it,  115  as was witnessed in the press reporting of the debate, and probably also the success of Bill C-49 among conservatives. Efforts to move the debate out of a model of crime controldue process met with negligible success in the drafting of the legislation (that success being the reference to s. 15 of the Charter in the preamble) and also in the press, who appeared to completely miss the point about equality.  410  Not surprisingly, given the crime control mandate of the legal system, due process arguments based on beliefs about the claims of the state to impose penal sanctions figured strongly. It is agreed that to the extent that basic principles address tyranny - and it is clear from history that they have 411 - we should be reluctant to abandon them. Although principles do not "protect" us and can be abrogated, that abrogation would signal sufficient political change that people would at least be warned of the advance of tyranny. It is all too easy for a government to pass "bad" laws.  412  Placing external constraints on government by putting some things beyond the competence of Parliament may assist in preventing legislative abuses. This is clearly the aim of the Charter. However, an external framework by itself does not answer the question of its control or content. Does it lie with the judges in the Supreme Court of Canada, or must they defer, yet further, to our legacy of criminal law principles? Further, we cannot assume that we live without tyranny now, that all are equally free and enjoy the same advantages  116  under the law. Women's groups have demonstrated that women's bodily integrity and sexual autonomy have not been treated as important by the system. There is no reason to assume that women's sexual autonomy is an exceptional or isolated case. 413 Thus, the fear of tyranny must be accepted with caution. A second political justification for reliance on general principles lies in the patina of legitimacy the criminal justice system acquires through its mission of crime control, and which is extended to criminal law. Although some public dissatisfaction may exist with the system, 414 it is our only acceptable means of contending with crises caused by certain harmful acts. Thus, it acquires legitimacy. To the extent that general principles are identifiable with the institution of criminal law they acquire a similar legitimacy. In fact, the arguments against the primacy arguments do not, for the most part, attack the notion that existing law is a relevant criterion, only that the amendments do not comply with it. After all, if may well be that it is the legitimacy of the law, rather than actual law enforcement,  415  that  ultimately commands obedience to law. However, legitimacy is challenged by amendment, unless some social change requires it. To amend law when there has been no social change undermines 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, much like consensus. It is not generalized but specific. As people  117  are affected differently by the criminal law system, they will have differing views about the legitimacy of the criminal law. It is just such a difference that has lead to this debate. Much of the work of feminist authors and many of the outcomes of women's conferences on criminal law express complete dissatisfaction with present arrangements.  416  If a  law is legitimate among only some groups who are affected by it, is it legitimate at all? The appeal to law, as it stands avoids these disquieting questions of criminal law. A practical but very important reason, finally, is that criminal law is but one piece in a "complex web of bureaucratic structures.  ,,417  Significant departures from  existing norms may have unintended consequences on other parts of the system. Several authorities cite the uncertainty produced by change as a reason to have new provisions comport with old. Important as this may be, surely it is no more than a caution to proceed with care and in a considered fashion. These concerns are subsumed within the problem of having the present framework control reform. If existing law sets the parameters of law reform, underlying issues of morality and politics are not examined, and thus traditional values are carried forward. The primacy arguments implicitly claim that the question of whether or not the Bill complies with criminal law has no normative content and thus it ensures that traditional values, beliefs and norms are not subject to debate, or only marginally. The issue is identified as being in the relation between the Bill and an abstract idea of what criminal law is, i.e. pure and unbiased. If existing law is  118  the only legitimate criterion upon which to assess an amendment, it is unlikely that double standards that have applied to women, especially in sexual matters, will ever be eradicated from the law. CONCLUSION AN ALTERNATIVE VIEW OF PRINCIPLES  The point has been made that rules or principles often stand for values. As illustrated in the arguments against Bill C-49, it is possible to prefer the rule to the value by taking advantage of the indeterminacy and the multiple meanings that a rule and its component words may have. The value may be defeated by the rule that was meant to represent it. Unduly legalistic interpretations of rules do just that by removing the point of inquiry from the value to the rule. 418 Principles also pose a problem in that if they are indeed principles we expect that they should be generalized to all offences. However, their source controls their usefulness. If they have been developed in relation to one kind of offence, they may not apply to others for reasons particular to the way in which an offence is committed or for social policies that may call for different treatment. Attempts to find a fit may lead to distortion. The myriad of purposes and justifications that are part of our ideology of criminal law might suggest to us that a deep structure is unlikely to be found,  419  and efforts to  impose one may frustrate attempts to modify criminal law by  119  locking us into the present paradigm of crime control and due process. The arguments based on the general principles of criminal law are closely related to recodification proposals: they share a common philosophy and are fueled by many of the same theoretical arguments. The success or failure of the primacy arguments may thus have an effect on the recodification process. If they are decided not to be determinative of the issues raised in Bill C-49, then the wisdom of entrenching similar rules in a general part to the Code must be called into question.  The arguments used in the debate illustrate the persuasive power of the invocation, not only to history and nature, but also to the very notion of principles. In this they 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 reform including recodification. Assuming the Bill attains a moderate success in achieving its results, its success may well be attributable to the facts that the reform comprehended in some measure the perspectives of women in the definition and prosecution of sexual assault cases, and that their perspective was only available through their involvement and consultation. Only by moving the legal experts to the side could the basic parameters of the law be affected. Secondly, the arguments mounted by the women's groups  120  revealed the fundamental problem of abstraction within criminal law. The arguments showed, and the Bill reflected, for instance, how it was necessary to combat the theoretical construct of who might be the victim of an assault through concrete example, with the naming of women and children as particular victims. It revealed that the generalized notion of who that might be was subject to stereotyping and myths, and that to the extent it was even based on a woman's experience, it did not reflect the broad spectrum of different women. It thus should cause considerable concern that a major part of recodification is the entrenchment of yet another level of theory, one that would contain near immutable categories and classifications of how criminal behavior can occur. Thirdly, the Bill raises serious questions about our belief in the rule of law, and the equality that we are taught to believe is implicit in it. Although the equality argument met with mixed success the very fact that it was raised so powerfully should require that equality be a consideration of the recodification project. It suggests that if generalization is necessary, its basis should perhaps be the most vulnerable among us, the one who is least powerful in society. In conclusion, the point must be made that there may be nothing inherently wrong in postulating principles or a structure to criminal law, but that the purpose for doing it is crucial. If it provides us with a vocabulary with which to  121  communicate various ideas more easily, or provides a guide to help us comprehend a large body of rules, or if it is to help us understand the rules themselves, then it may be useful. If, on the other hand, it is to accord an "essence" to something that has no essence, then it is ill-conceived and counterproductive because it fools us about the nature of law itself and creates unnecessary constraints on the use of criminal law. Immunizing criminal law from change can hardly produce justice or fairness. Thus, it is worth considering that even if we do not accord to the notion of "principles of fundamental justice" absolute authority (by divine inspiration or natural existence) the concept is still valuable as a goal. If we adopt a perspective that has been judicially sanctioned in Reference Re: Section 94(2) of the Motor Vehicle  Act 420 that  the "principles of fundamental justice" are neither carved in stone nor awaiting revelation but are contingent upon context, we can retain "principles of fundamental justice" as reminders to care about notions of justice and fairness. In this way, the concept remains useful and responsive to evolving notions of justice and fairness. Using the law as a criterion upon which to evaluate the amendments may, however, have the opposite effect to the one intended. Rather than exposing the weaknesses in the amendments, it expose the weaknesses in criminal law. We may decide that the existing framework of criminal law requires change. New moral, ethical, and political frameworks may supply the answer not only to the problem of this Bill, but  122  also to an improved understanding or development of the framework of criminal law. For instance, if it is postulated that general principles of criminal law can defeat a measure such as Bill C-49, which promises only a very modest improvement for women, then does it not also become a general principle that criminal law cannot be used to protect anything but the status quo?  123  FOOTNOTES  1. An Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38. 2. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-49, Issue 7 (Ottawa: Queen's Printer, June 4, 1992.) 3. Minutes of Proceedings and Evidence of the Legislative Committee 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 and Mail the day after the Bill was tabled. Brian Greenspan said the Bill would not withstand a challenge in the Supreme Court of Canada: "I hope it never goes that far and that it never gets out of committee." ("Political battle looms over sexassault 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 the Department of Justice who had drafted the Bill, and who had participated in the consultations with the women's groups. The women's groups with experience in the social reality of sexual assault were notably the Canadian Association of Sexual Assault Centres (CASAC) and regroupement qudbOcois des centres d'aide et de lutte contre les agressions a caractare sexuel (CALACS). In addition, many of the other women's groups had consulted directly with a broad base of women and front-line workers. 7. That indeed there was a challenge to the legal expertise of those who drafted the Bill is indicated in Sheila McIntyre's recounting of the preliminary process: Sheila McIntyre "Redefining Reformism: The Consultations that Shaped Bill C-49" Sexual Assault in Canada, Julian Roberts and Renate Mohr, eds. (University of Toronto Press, forthcoming in 1993). The challenge continued into the committee stage as well. 8. The federal government embarked on a project in 1972 with the formation of the Law Reform Commission of Canada to propose substantial reform of Canadian criminal law. The Commission's recent demise in 1992 as a result of budgetary restraint, however, has not seen the Commission's task completed. Although two drafts of a revamped code of criminal law were presented to Parliament in 1986 and 1987, the Commission itself viewed both as drafts, and spoke to the need for wide consultation on the reform of the criminal law. The project of reform of the criminal law however, has not been abandoned but has been taken over by a Parliamentary sub-committee as an exercise to recodify the criminal law, in  124  quite a different process than was utilized in the development of Bill C-49. 9. Consensus in criminal law is more often assumed than examined. An early example of such an assumption is Our Criminal Law, (1976) the first Report to Parliament by the Law Reform Commission of Canada (LRCC). Similar views underlay their subsequent work, as well as that of nearly every study commissioned or published by the federal government on the criminal justice system. Taking Responsibility, The Report of the Standing Committee on Justice and the Solicitor-General (David Daubney, Chair) (1987) and Creating Choices, The Report of the Task Force on Female Offenders (1990) are notable exceptions. Although many reports mention problems experienced by women offenders and native peoples, these have not been seen as fundamental problems. Examples of such treatment are included in the Report of the Canadian Sentencing Commission (1986) and in The Criminal Law in Canadian Society (Ottawa: Government of Canada, 1982). Conflict perspectives on the criminal law suggest that the criminal law is used to protect the interests of some over the interests of others. Such analyses can be found in R.S. Ratner and John L. McMullan, State Control (Vancouver: UBC Press, 1987) and in Christine Boyle, Marie-Andrbe Bertrand, Celine Lacerte-Lamontagne and Rebecca Shamai, A Feminist Review of Criminal Law (Ottawa: Minister of Supply and Services, 1985). 10. Historical analyses of the role of criminal law as a means of furthering the interests of men were found, for example, in the briefs of Women's Legal Education and Action Fund (LEAF) in Minutes, above, fn.3, p. 2A:8; Canadian Advisory Council on the Status of Women (CACSW), ibid, p. 7A:11. 11. The diagnosis of criminal law as patriarchal structure plays 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 the existence 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 as aggravating factors in sentencing although some particular vulnerabilities of victims result in acquittals. See below, text accompanying fns. 116-118. 13. This was implicit in the support given the Bill by many of the women's groups. However, the alternative view which is discussed is that it was merely a crime control initiative, or another popular view, that it was a result of "changing values." See for instance, the Law Reform Commission of Canada's Working Paper #22, Sexual Assault, (1978) which ascribed the need for changes to sexual assault law arising simply from "evolving values" at p. 3.  125  14. See generally, Katherine O'Donovan, "Engendering Justice: Women's Perspectives and the Rule of Law" (1989), 39 U. of T.L.J. 127. 15. The preamble that would have emphasized the equality aspect of the Bill was moved by Dawn Black at committee, but defeated by a vote of 5 to 3. Russell MacLellan moved the amendment relating to an implication of consent arising from particular vulnerabilities, and it was also defeated by a vote of 5-3. It would appear, but is not part of the record that Barbara Greene also supported these amendments as she moved 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 documents which were arrived at through several different processes. Chief among them are the LRCC Reports referred to above in fn. 8, the Canadian Bar Association Task Force Report, Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code (1992). A model which does not appear to have received a great deal of attention is Tadeuz Grygoir, Social Protection Code: A New Model of Criminal Justice (London: Sweet and Maxwell, 1971). Major scholarly attention is contained in the entire volumes of 14 Queen's Law Journal (Summer, 1989) and 19 Rutgers Law Journal (Spring, 1988.) 17. Katherine Bartlett "Feminist Legal Methods" (1990), 103 Harvard 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 "The Experience of the Rape Victim with the Criminal Justice System Prior to Bill C-127" Sexual Assault Legislation in Canada, An Evaluation (Ottawa: Minister of Supply and Services 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 Law Amendment Act, S.C. 1980-81-82, c. 125. 20. An absolute prohibition existed against sexual intercourse with a female under the age of 14 (s. 146). Prohibitions existed against sexual intercourse with chaste females up to the age of 18. Similarly a male under the age of 14 was deemed not to commit rape, or similar offences (s. 147). 21. From the definition of rape, Criminal Code, R.S.C. 1970 c. 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).  126  23. The first major Canadian study was contained in Lorenne Clark and Debra Lewis, Rape: the Price of Coercive Sexuality (Toronto: Women's Educational Press, 1977). Founding rates for rape were found to be significantly lower than for other crimes. 24. A fascinating account of Christine de Pisan's struggle and near capitulation to the prevalance of the view of women as full of vice is recounted in Bonnie S. Anderson and Judith P. Zinsser, A History of Their Own, Vol. 2 (New York: Harper & Row, 1988) pp. 341-343. For a general discussion, see Lorraine Code "Femininst Theory" Changing Patterns Women in Canada, Sandra Burt, Lorraine Code, Lindsay Dorney, eds.(Toronto: McClelland and Stewart, 1988) pp. 21, 22. 25. Peter McWilliams quotes Glanville Williams: "There is sound reason for this [the common law rule requiring corroboration of victim's testimony] because sexual charges are particularly subject to the danger of deliberately false charges, resulting from sexual neurosis, fantasy, 'jealousy, spite, or simply a girl's refusal to admit that she consented to an act of which she is now ashamed." In Canadian Criminal Evidence (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 cases that appeared to follow suit: for example, the case of the "sexually-aggressive three-year-old" in which an extremely young girl appeared to be blamed for a sexual offence involving herself, discussed in R. v. Lesson B.C.J.833, Jan. 12, 1990 (B.C.C.A.), and remarks attributed to a judge of the North West Territories that rape in the north was different: in the north, a man saw a "pair of hips," and he helped himself. It is not known whether, in that particular instance, the judge saw this as mitigating or aggravating. A perusual of sexual assault cases from the North West Territories 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 development of 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 of reproduction" is in Shulamith Firestone, The Dialectic of Sex (New York: Bantam Books, 1970); woman as "other," Simone de Beauvoir, The Second Sex, (New York: Alfred A. Knopf, 1953.). 28. Cited in Anderson and Zinsser, fn. 24, p. 343. 29. Constance Backhouse "Nineteenth Century Judicial Attitudes Toward Child Custody, Rape and Prostitution," Equality and Judicial Neutrality, Sheilah Martin and Kathleen Mahoney, eds. (Vancouver: Carswell, 1987) p. 275.  127  30. 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 New Offences 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 and the lack of understanding courts have shown of the violence and 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 in the "principles of fundamental justice" an understanding that it 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 over sexual 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 as devastating 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 Lines Jan. 1992, pp. 4. Also, McIntyre, fn. 7.  128  50. Justice Communiqué "Kim Campbell promises legislation to protect 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 Rape Law" Jurisfemme, Vol. 12, No. 2, Mar. 1992, p. 1. 52. See text below, accompanying fn. 71 et seq. The amendments accepted were the change in the ordering of the preamble, the specification of women and children in the preamble and the expansion of the abuse of trust provision to include those who abuse a position of power and thereby induce someone to consent to sexual conduct, and also the allowance for publication of reasons arising from the voir dire into the admissibility of past sexual conduct of the complainant, if a judge so orders. 53. That a better view would be to consider it as a matter of law was suggested by Lucinda Vandervort in "Mistake of Law and Sexual Assault: Consent and Mens Rea" (1987-1988), 2 C.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), 31 C.R.N.S. 220 (S.C.C.) the accused had had sexual intercourse with his estranged partner following a bout of terrorizing her. In order to avoid further terror, she had convinced him that she would take him back and have sex with him. Her consenting to have sex with him, however, was a charade on her part. On a charge of sexual assault, he relied on his honest belief in her consent. Although the Court might have interpreted this as irrelevant, if the matter of her consent was a question of law, not fact, it did not. Instead it extended the concept of wilful blindness to find that he had the necessary mens rea despite his honest mistake of fact. 56. Toni Pickard "Culpable Mistakes in Rape: Harsh Words on Pappajohn" (1980), 30 U.T.L.J. 415, and "Relating Mens Rea to the 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 characterized the "air of reality" test as a necessity for corroboration which existed in relation to no other offence. He says it is the most important aspect of Pappajohn: "The evidentiary ruling in Pappajohn seems pragmatically designed to restrict the ambit of the mistaken belief defence. It places a corroboration requirement on the accused which is required in no other type of case. This has lead to criticism and unsuccessful Charter challenge." He refers to the cases R. v. Bulmer (1987), 58 C.R. (3d) 48 and R. v. Reddick (1991), 5 C.R. (4th) 389 (S.C.C.) Minutes, fn. 3, p. 6A:16. The constitutionality of the test is also challenged in R. v. Osolin (1992), 10 C.R. (4th) 159, (B.C.C.A.) on appeal to  129  S. 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 the accused believed the victim was consenting should have been allayed by the victim's uncontradicted testimony as to what the accused said to her repeatedly as he was raping her: "Don't worry, I won't hurt you." Had the judge ever felt vulnerable to sexual assault himself, he might have understood the meaning of this phrase: "It doesn't matter whether you want this or not, in my opinion it won't hurt you" or "co-operate and I won't hurt you." On the contrary, however, he saw this as an expression of concern for the victim.  60.  Ibid, fn. 58.  61. It may be said that the trial judge equated the existence of grounds for a belief in consent with an honest belief in consent, and thereby spared the accused the need to testify that he, in fact, had an honest belief. While it is possible that the accused's testimony would not have made a difference to the outcome of the case, he was protected from having to justify what he did and the case was not decided on whether the accused believed she had consented. Thus, an accused was entitled to a complete defence if he held a subjective belief in consent, and also if objective grounds for such a belief existed. 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 the Courts: 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. I21 provides: The preamble of an enactment shall be read as a part thereof intended to assist in explaining its purport and object. 65. As will be discussed again later, below at text accompanying fns. 210-212, the preamble was criticized by the Criminal Lawyers' Association of Ontario for improperly putting in "self-serving" evidence relevant to a s. 1 Charter determination. Conversely, it was criticized by women's groups for only alluding to equality, rather than affirming its 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.  130  69. In cases where a woman has been unconscious, consent has not been presumed. See generally, LEAF's brief, Minutes, above, fn. 3, p. 2A:32. Consent in sexual assault has appeared to be treated differently than consent in simple assault. The cases dealing with consent and mistaken belief in consent in the latter are generally dealing with implied consent arising from rules of acceptable behavior, often in sporting activities. Certain forms of assault are considered acceptable. When they go beyond the norms 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 be presumed, unless the circumstances are such that it is clearly non-consensual behavior, that is performed by a complete stranger in an extremely violent manner. This arises partly from the burden on the prosecution to prove beyond a reasonable doubt that there was no consent. A presumption of consent comports with the presumption of innocence. However, quaere, does the prosecution not have a higher burden in sexual assault than in simple assault? It is as if the norms of the particular "game" of sexual activity allow for untrammelled 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 were Kim Campbell, Russell MacLellan, Dawn Black, Mary Collins, Derek Lee, Ian Waddell, Howard Crosby, George Rideout and Marlene Catterall. I will deal only with the first three as they were the most involved in the legislation. 75. "Background Information" Justice Information, Minister of Justice and Attorney-General of Canada, December, 1991; "New Criminal Code Provisions to Protect Sexual Assault Victims" Justice Communiqué, Minister of Justice and Attorney-General of Canada, Dec. 12, 1991. 76. "New Criminal Code Provisions to Protect Sexual Assault Victims" Justice Communiqué, Minister of Justice and Attorney-General of Canada, Dec. 12, 1991. 77. Commons Debates, April 8, 1992, p. 9505. 78. Ibid. 79. Ibid, p. 9509. 80. Ibid, p. 9508.  131  81. Ibid. 82. Ibid, p. 9504. 83. Quoted in Geoffrey York and Jeff Sallot "Campbell agrees to amend bill- Changes ease fear that proposed law would violate 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 that we not allow an abuse of our law to continue to exist in this country because once it exists it can exist more easily a second time and before we know it we have the erosion of fundamental 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" From Metaphysics to Rhetoric Michael Meyer, ed. (London: Kluwer Academic Press, 1989) p. 13. 94. Referred to in Perelman, ibid. 95. The proceedings and briefs presented in the committee hearings comprised 7 volumes and covered 966 pages (including French translation). Thus, the synopsis in this section is not exhaustive of every argument made by every witness. For instance, most witnesses agreed that the decision in the voir dire should, in some circumstances at least, be publishable, and thus that issue is not discussed here. Recommendations in regard to wordings are not discussed unless they raise a more substantive issue. Similarly, while some effort was made to canvas the proponents of each argument, where several advanced the same or similar argument credit is not always given. As well, it should be noted that the Canadian Association of Journalists presented a brief and appeared. As their argument was strictly confined to the issue of publication 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 of equality for women through litigation and education.  132  Participation in this debate would be a necessary step in that larger plan. Similarly, the Canadian Civil Liberties Association (CCLA) claims a constituency of principles which it is dedicated to upholding: "Male bias cited in fight for rights" Vancouver Sun, Sept. 11, 1992, p. A10. 98. For example, NAC emphasized that sexual assault reform and inclusion of specific groups of women was necessary in order 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 considerable importance to legislators. 99. The committee decided to hear from umbrella groups, preferably national groups, though they were willing to receive 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 is discussed 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 Can B. Rev. 409. Samek argues at p. 412 that a "programme of law reform which is cast in the image of the law that is to be reformed can only add another distortion, another wrinkle.." 107. Minutes, above,^fn.^3, p. 2A:4. 108. Ibid. 109. Ibid, p. 2A:5. 110. Ibid, pp. 2A:6,^2A:7. 111. Ibid, pp. 2A:20,^2A:21. 112. Ibid, p. 2A:22. 113. Ibid. 114. Ibid, p. 2A:29. 115. Ibid, p. 6:6. 116. Ibid, pp. 6:5-6:7.  133  117. Ibid, p. 3:5. 118. Ibid, p. 3:6 119. 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 those who 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 and C.L. Ten Crime, Guilt and Punishment (Oxford: Clarendon Press,^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.  134  142.  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, Reconstructing Criminal Law (London: Weidenfeld and Nicolson, 1990) pp. 5-7. 159. See above, fn. 144, and below, at text accompanying fn. for the remarks of Catharine MacKinnon to the effect that women look to law to decide when they have been assaulted. In our unequal society, a certain amount of violence is considered okay and natural. 273,  160. 161.  Minutes, above, fn.  3, p. 3:19.  Ibid, p. 1:24.  162. The notable exception was NWAC's Virginia Meness who briefly adverted to the broader problem of the system. Although Meness mentioned problems in sentencing offenders who were aboriginal men, she did not spell out her views, though she referred to the historic distrust that aboriginal people 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 upon Political Discourse, Feminist Discourse and Sexual Violence  135  in 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 Sexual Inequality: Three Early Charter Cases" (1989), 34 McGill L.J. 262. Joel Bakan "Constitutional Interpretation and Social Change" Canadian Perspectives on Legal Theory, Richard Devlin, 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:MacMillan Press, 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 "Campbell agrees 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 as authority that prior to Bill C-49 a recklessly but honestly held belief in consent could be a defence. The Task Force evidently thought so too, and that the law should remain as such. 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.  136  187. Ibid. 188. Ibid, p.^2A:78. 189. Ibid,  "detest Men", p.^2A:33; backlash, p.^2A:76.  190. Ibid, the CCLA, p.^5A:1; BCCLA, p.^4:46. 191. Ibid, p.^5A:7. 192. Ibid, p.^5A:2. 193. Ibid, p.^5A:5. 194. Ibid, p.^4:51. 195. Ibid, p.^4:54. 196. Ibid, p.^4:47. 197. Ibid, p.^4:50. 198. Ibid, p.^1A:2. 199. Ibid, pp.^1:41,^1:42. 200. Ibid, p.^1:45. 201. Ibid, p.^1:44. 202. Ibid, p.^1:40. 203. Ibid, p.^1:46. 204. Ibid, p.^1A:18. 205. Ibid, p.^1A:20. 206. Ibid, p.^1A:19. 207. Ibid, p.^1A:20. 208. Ibid. 209. Ibid. 210. Ibid, p.^1A:15. 211. Ibid, p.^1A:16. 212. Ibid, p.^1A:17. 213. Ibid, p.^1A:22. 214. Ibid, p.^1A:23.  137  215.  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, 45 C.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 the system as sensitive, thoughtful, time consuming. 224.  Ibid, p. 6:26.  225. Ibid, CLAO, 1A:26. It asserted a utilitarian purpose to the bill. Stuart appeared to imply that failure of treatment should 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 and Mail, Dec. 13, 1992, pA4. 231.  Ibid.  232. For example: "Legal experts critical of new rape-shield law" 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." Globe and 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 on males" Vancouver Sun, May 20, 1992, p. A4. "Sexual assault  138  legislation 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 committee told new standards are contrary to 'centuries of accepted behavior "'Globe and Mail, May 15, 1992, p A3; "Slow learners could face jail" Vancouver Sun, May 15, 1992, p. A4.  241. Montreal Gazette, Jan. 13, 1992, p. A6 and the Toronto Star, 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. 158 pp. 330-335; with respect to the U.S., note that even with the reforms in Michigan in the early 1980s, the law only changed to allow rape charges to be brought against husbands who were legally separated from their wives (Marsh, above, fn. 27, p. 22). 256. For example, J.C. Smith, The Neurotic Foundations of the Social Order (New York: New York University Press, 1990) p.50 et seq. Also J.C. Smith "Gender & the Construction of Reality" The Archeology of Gender, Proceedings of the 22nd Annual Chacmool Conference, 1991 pp. 84-95. 257. Nigel Walker, Sentencing in a Rational Society (London: Allan Lane, The Penguin Press, 1969). Walker emphasizes this  139  tendency in relation to accepting the categories of law, and a tendency on the part of the public to think that all offences in a particular category should be treated the same. 258. Above, fn. 194. 259. The Criminal Law in Canadian Society (Ottawa: Government of Canada, 1982); Taking Responsibility, Report of the Standing 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 Law Reform and Two Realities of the Criminal Process" Critical Perspectives 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 of consent as enduring or non-enduring, the bill does not go so far as to make criminal sexual activities which were consented to at the time, but for which consent was seen afterwards as not voluntarily given, but obtained through such devices as a fraudulent promise of affection or marriage or inordinate whining or pressure. 262. Above, fns. 67-69. 263. Self-induced intoxication contributing to a mistaken belief in consent has not been a defence to sexual assault (R. v. Leary, [1978) 1 S.C.R. 29). Similarly, a recklessly held belief is, by definition, not an honestly held belief, and thus, is not a defence. Wilful blindness to the risk of non-consent has also been held to be no defence (R. v. Sansregret, [1985) 1 S.C.R. 570.) Nevertheless, Don Stuart argued that the "proposed exclusion of reckless[sic] and wilful blindness is unnecessarily harsh and diverts attention from the true inquiry into whether the accused was aware of the risk." (Minutes, above, fn. 3, p. 6A:19.) 264. It was argued by Don Stuart that mistaken belief in consent was not often at issue in sexual assault cases. He relied on a consideration of cases reported to make this empirical assertion. This should be contrasted with the anecdotal information provided particularly by CASACS that the defence of mistaken belief in consent was a major reason why women did not report sexual offences. They don't report because they know that if they did anything that would allow an inference of consent to be drawn, whether logically or based on stereotypes and myths, the assaulter would not likely be convicted. Letendre is a clear example of the futility in reporting. It should be noted that there are no empirical studies on the incidence of this problem. However, the high incidence of date rape in self-reporting studies would suggest that CASAC's report is true, as on a "date" a woman is likely to have engaged in some such behavior.  140  265. See below, text accompanying fn. 352 et seq. 266. The failure of the system to rehabilitate is also offered by Stuart as a reason to use criminal law with restraint. A major problem with this kind of analysis is that it fails to distinguish different kinds of offenders. As long as research is predicated on offence variety, we will no doubt continue to make broad generalizations about effectiveness even though we should be able to easily contrast the case of the repeat child sex offender with the more socially-tolerated date rapist, who is not likely in jail at all at this point, and who may need nothing more than a clear message about what is acceptable and what is not from the law. 267. Minutes, above, fn. 3, pp. 1:40, 1:41. In fact, the LRCC adopted the view, in 1976 in the Report to Parliament, Our Criminal Law, that law's only justifiable purpose was education, as it could not be proved to either deter or rehabilitate. The Criminal Lawyers were joined in this argument of inappropriate purpose by Richard Peck of the criminal law section of the Canadian Bar Association, who, arguably, went even further when he said that the Bill was contrary to the purpose of criminal law because "to some extent it is an attempt to legislate in the area of human relations." Vancouver Sun, Jan. 29, 1992, p. A5. He would appear to want to reinstate the public/private dichotomy that effectively kept criminal law out of domestic violence, marital rape and sexual abuse of children. However, it should be noted that neither the brief nor the submissions of the Canadian Bar Association contained this argument. 268. I say it is curious that the CLAO should accept that a broad aim of criminal law is the achievement of social justice because if any group were to have questions about the social justice of criminal law one might think it would be defence lawyers, who, generally speaking, might see the criminal law as impacting unequally on particular ethnic minorities and on lower socio-economic groups. It would be less surprising to hear them speak of social ordering rather than social justice. One might also think that they would want to underline the fact that the purpose of criminal law is fundamentally different than civil law, and it is only the latter that has traditionally dealt with redress for victims. Another anomaly is that they adopt a model of criminal law quite different than one of crime control and yet pose a due process argument against it. Although they countenance the criminal law as "protecting" victims they point out, but make little of, the gap between the rhetoric of "protection" and the "instrumental or utilitarian value" of criminal law to achieve this, and yet it is really the failure of the criminal law to be effective which they surely must be referring to. 269. Minutes, above, fn. 3, p. 1A:15. 270. Above, fn. 203.  141  271. Minutes, above, fn. 3, p. 1A:16. The CCLA also made the argument, questioning the existence of the consensus, above, fn. 192. 272. However, had they taken such a line, their argument would have been that much easier to dismiss. It is surprising how little reaction there was to the implication that it may be all right to proceed sexually against someone who simply replies, "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, Rape and 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 were committed to this process is not so clear. Sheila McIntyre, who was involved in the consultation, suggests that they were at the very least reluctant to fully use the consultation process. See McIntyre, above, fn. 7. 283. Law professionals have generally taken the leading role, but as pointed out by Samek, above, fn. 106, the resulting law reform rarely can adequately address the targeted social problems. Lawyers tend to conceive of solutions to problems within existing parameters of the law and rely on their own intuitions and common sense about what will work when their "common sense" may often not be common at all. Christine Boyle and Susannah Worth Rowley "Sexual Assault and Family Violence: Reflections on Bias" Equality and Judicial Neutrality, Sheilah Martin and Kathleen Mahoney, eds. (Vancouver: Carswell, 1987) p. 324. See generally Patrick Fitzgerald "Criminal Law Rationality and Justice" Crime Justice and Codification (Vancouver: Carswell, 1986) pp. 5,6; Mohr, above, fn. 256, pp. 37-39; Brian Hogan "Some Reservations on Law Reform" Crime Justice and Codification (Vancouver: Carswell, 1986) pp. 67, 68. Legal expertise did not receive a great deal of weight from the politicians either in committee or in Parliament.  142  While none wanted a bill that would be held to be unconstitutional, the arguments relating to time-honoured traditions and theoretical principles were largely ignored. This disregard for those who see criminal law reform as their own bailiwick did not go unnoticed. 284. Although it might be suggested that this has the effect of "privileging" women's experience, it is the only way to have theory informed by practice, and not the other way around. When men, who are not particularly vulnerable to sexual attack, decide the harm of sexual assault, they are of necessity extrapolating, inferring, interpreting, or perceiving sexual assault second-hand. They have little choice but to theorize first. This should also not be taken as a preference of practice over theory as each has a role to play. See Sheila Tarrant "Something is pushing them to the sides 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 the experience of all women in that the naming of specific groups of women in the bill did not succeed, the argument having been made may assist those who interpret and apply the law to understand that women are different and that they should not be 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 who appeared to recognize that it was time for legal expertise to take a back seat to the experiences and proposals of women. This was reflected by two of their three most important recommendations also being important parts of the women's groups' proposals, and in how they were able to agree that the objective requirement of "reasonable steps" was really not all that objective after all. J.J. Camp, the senior lawyer who orchestrated the oral submission of the CBA took care to make the point that the CBA's brief had been vetted not only by women, but also by women of the "feminist persuasion" (at p. 5:15, Minutes, above, fn. 3). 288. Although it is not only women who are affected by the provisions of the bill, some may argue that it is only the reality of women's experience that should be considered. The lesson on relevance should not be lost, however. As Katherine Bartlett has argued in her approach to feminist legal methods, all perspectives should be considered. 289. Stuart raised the argument in terms of treatment, above at fn. 224 and the CLAO raised it in terms of the pains of imprisonment 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.  143  2:38, Minutes, above, fn. 3. More subtle was the CCLA who called for cross-country meetings and a much wider consultation at p. 5A:6. Clayton Ruby was careful to avoid blaming feminism for the bill, and he argued that while the bill was bad on all counts, it was the Minister of Justice that was to blame, rather than feminism, above, fn. 244. 291. This would include those who argued general principles and constitutionality. The law as neutral and unbiased has been well discussed and documented. See generally, Ratner and McMullan; 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 Marilyn MacCrimmon express near despair at the usefulness of law reform to advance women's interests. The CLAO argued this too, but from the point of view of the offender. 293. Above, fn. 164. 294. that 127. this  NAWL pointed out that they were making the same arguments had been made 10 years previously in respect of Bill CNevertheless they evinced confidence and enthusiasm that time it would be successful.  295. As emphasized by NAC, Minutes, above, fn. 3, p. 1:38; also well reported by the media that this was only a partial solution: "Feminists seek more sensitivity" Vancouver Sun, June 2, 1992, p. Al. 296. Ibid. 297. Chrisje Brants and Erna Kok "Penal Sanctions as a Feminist Strategy: a Contradiction in Terms? Pornography and Criminal Law in the Netherlands" (1986), 14 Inter. J. Sociology of L. 269. Although the women's groups were content with the proper legal naming of the harm of sexual assault, there were concerns about the use of criminal law. NAC, for instance, made the point that they were not seeking longer prison sentences for those convicted of sexual assault. 298. Bruce Archibald "The Constitutionalization of Criminal Law" (1988), 67 Can. B. Rev. 403; Bruce Archibald "The Constitutional 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 the content of principles. A notable example is Reference Re: Section 94(2) of the Motor Vehicles Act (1985), 24 D.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.  144  302. Ruby's complaint about judges having to take seemingly irrelevant considerations into decisions on the admissibility of evidence is not well founded in the law of evidence. There are several examples of where policy reasons, unrelated to the matters of issue, exclude evidence which might well be probative, such as the rule against the admission of nonvoluntary statements to persons in authority, the "best evidence rule," and, more recently, the exclusion of evidence obtained as a result of an infringement of a Charter right under s. 24(2) of the Charter. 303. The more fundamental question, however, is whether a judge having to take policy issues into consideration will result or can possibly result in the conviction of innocent people. If evidence which is capable of raising a reasonable doubt about the guilt of the accused is suppressed then, by virtue of the meaning of innocence in Oakes, below, fn. 324 one must conclude an innocent person is convicted. To say otherwise is to breach the presumption. Leaving aside the question of "innocence" the argument then hinges on an assessment of whether particular evidence is "capable" of raising a reasonable doubt. Capability can be determined either according to whether it works or whether it should work. Clearly, the legislation is aimed at ensuring that evidence of past sexual behavior is not used to draw inferences of consent or dishonesty. Equally clearly, however, the legislation contemplates that judges will allow the evidence in sometimes. One can't help but think that Ruby is really arguing that in some instances past sexual conduct is relevant to consent or credibility. 304. See Backhouse, above, fn. 29, and the judgment of L'Heureux-Dub6 J. in Seaboyer, above, fn. 35. 305. It is worth noting that the instances cited by McLachlin J. in Seaboyer where evidence of past sexual history were few in number. Thus, the determination of relevance will not arise frequently, and, it is suggested, those instances where a judge will fail to properly consider the probative value of evidence will be few. The decision is appealable, as a matter of right, thus, arguably, reducing the chance of an erroneous decision. Of course, the rule in criminal law has been, let ten guilty men go free that one innocent man should not be convicted. The number used in this maxim has been reported differently, but it appears not to have exceeded twenty. One is tempted to ask, how far is Ruby prepared to extend it? Given the relatively high risk of inappropriate use of evidence of past sexual conduct, one wonders how else it could be limited: if not through a structuring of discretion, then only through hard and fast rules as in the former s. 276 struck down in Seaboyer. Ruby is clearly not arguing for that.  306. Letendre, above, fn. 58, p. 46. 307. Mistakes as to law have long been excluded as defences  145  for strong policy reasons. People were presumed and expected to know the law. Characterizing the mistake as one of law, which is generally not a defence, puts both its proponent and me in a dangerous situation. On the one hand, Ruby's argument is based on consistency with principles of criminal law, but if he wants to succeed, he must argue for inconsistency with the principles of criminal law which say that mistake of law is no excuse. Similarly, I am put in the position of supporting the provision by reference to a traditional principle of criminal law! However, my purpose is simply to show the flexibility of the concept and therefore the inadvisability of applying it too rigidly or taking too literal an interpretation of it. The common law has taken a rather flexible approach even to the mistake of law, some have argued: see for example Don Stuart, Canadian Criminal Law (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. Brettel Dawson who argues that abstract, decontextualized rules of evidence are biased in the determination of relevance. (T. Brettel Dawson "Sexual Assault Law and Past Sexual Conduct of the Primary Witness: The Construction of Relevance" (1987-88), 2 C.J.W.L. p. 310). Contrast too, Anthony Shepherd, who favours 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 presently admissibility is determined by the kind of offence that is involved and who seeks it. ("Potential Charter Challenges to the 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 not subjecting women to revictimization on the witness stand. 310. Globe, above, f. 245. This article also contains the use of another legal term of art: the guilty mind. For the general reader, this brings up the notion of guilt only attaching to those who not only intended to do the acts comprising the offence, but that they did them in the full knowledge that it was wrong, while lawyers may be comfortable with "guilty mind" as not going quite so far. Quaere those prank cases where no intention to steal resulted in an acquittal despite all the elements being present, mental and physical. See Stuart, 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 discussion of English criminal law without due process rights, see L.A.  146  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 is R. v. Appleby (1972), 16 C.R.N.S. 35 (S.C.C.). Lacey points out several other ways in which the criminal law system implicitly incorporates the notion that the presumption of innocence says nothing about a person's guilt or innocence but is a rule of procedure. For example, people charged but not convicted of offences may still be detained before trial. Similarly, people who are merely charged with offences have no 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 summary procedure in s. 794 of the Criminal Code. In R. v. Lee's Poultry Ltd. (1985), 17 C.C.C.(3d) 539; 43 C.R.(3d) 289, the Ontario Court of Appeal held that the provincial equivalent of this subsection does not offend the Charter guarantee to the 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 the presumption of innocence its expanding protection to the accused has been developed judicially. Even though it appears in the Charter, it is once again the judiciary and not the legislature which has given it its substantive role. This is mentioned in light of Brudner's curious remark, below, text accompanying fn. 342, that when it comes to principles of fundamental justice, important matters cannot be left to the discretion of judges, but presumably must be legislatively spelled 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 an offence and may consist of an act, an omission, or possession, sometimes in particular circumstances, and sometimes with particular results. Mens rea is the state of  147  mind that accompanies the act, omission or possession. Different offences prescribe different mental states, and vary as to whether a person's mind must be directed toward the results of particular actions or omissions. Different mens rea have been categorized as, for example, requiring specific intent, in which case the person performs the action with the result in mind, or general intent, in which the person merely performs the act intending to perform it, but not necessarily cognizant of what the results will be. A major question has been whether there must be an awareness or mental element of every facet or element in the actus reus for a conviction. It has been answered in the negative, but again, it depends on the offence. 328. The controversial question is whether mens rea should be determined by looking at what was in the mind of the person performing the act, or whether it should be judged by a standard of what is reasonable, i.e. objectively. The source of this controversy lies in the response of the LRCC and the judiciary to the burgeoning use of penal statutes to regulate matters of public welfare. In 1974, the LRCC examined the use of the penal sanction in such matters in Working Paper #22, Strict Liability. The LRCC posited that under ordinary criminal law a person would not be found guilty of an offence unless he had criminal knowledge or intention, (quaere the accuracy of this claim) and then considered the various trading and health regulations for which a person could be found guilty without knowledge that one was committing an offence, or even that one was committing the actions that comprised the offence. The LRCC investigated the use of penal sanctions in the areas of misleading advertising law, weights and measures law and food and drug laws and found that prosecutions were "hardly ever launched against people who [were] not at fault." However, the LRCC said that there was a theoretical problem with having "no fault" offences. It posited the person guilty of a strict liability offence as not proven to be at fault and that it was unfair to expose such people to penal consequences. It suggested that "strict liability" offences should be clearly indicated as such, that "real crimes" must always require a subjective mens rea and that in any case a defence of due diligence which might be a mix of subjective and objective tests be used for strict liability offences, public welfare offences. The LRCC repeated its concerns in its Report to Parliament, Our Criminal Law, in 1976. In 1978, the distinction made by the LRCC was adopted by Dickson J. (as he then was) in the Supreme Court of Canada's decision in R. v. Sault Ste. Marie [1978] 2 S.C.R. 1299, in a case involving a breach of pollution regulations. He is often quoted as saying: "Within the context of a criminal prosecution a person who fails to make such inquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law" and that negligence has no place in the criminal law. This case has been cited as authority for the proposition that only a subjective test will suffice for a real crime. See below for this particular argument at fn. 88. The subjective-objective debate was  148  rekindled in the case of a "real crime", rape, in R. v. Pappajohn, above, fn. 54, with the subjective test succeeding again in that case. The proponents of the subjective test were further encouraged by what originally appeared to some as a constitutionalization of a subjective test in the dismantling of the constructive murder offences by the Supreme Court of Canada. However, several cases since have shown that the Court is not prepared to extend the requirement of a subjective test. For a discussion of the cases involved, see Don Stuart "The Supreme Court Drastically Reduces the Constitutional Requirement of Fault: A Triumph of Pragmatism and Law Enforcement Expediency" (1992), 15 C.R.(4th) 88. However, it is submitted that Prof. Stuart's lament is not justified for it fails to place the recent developments 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 all offences was not accurate, and, second, that even where it was required, it need not always be subjective. LEAF pointed to the recent line of cases which provide that the minimum requirement of mens rea is an objectively determined failure to exercise due diligence.(Minutes, above, fn. 3, pp. 37-42.) Further, there are, and have always been, many offences which do not require subjective intent. Obvious examples are the drinking and driving offences which date back to the early 1900s, criminal negligence offences and manslaughter. It is suggested that prior to the 1970s the distinction between the subjective and objective tests was not nearly so important. It is also worth noting that in practice the distinction may be extremely difficult if not impossible to make. See, for instance, the remarks of women who have suffered assaults who suggest that the so-called mistaken belief in consent is simply nonsense, above, at fns. 145, 146, and also comments of Barbara Greene of the committee, Minutes, above, fn. 3, at p. 6:34. However, there are those who have faith in theoretical abstraction over practical application. A final point in relation to this principle is whether the standard legal method of separating offences first into actus reus and mens rea and then into elements is appropriate in applying the offence to the facts in sexual assault. A common method of analysis is to consider that it is not the application of force which is problematic, only the failure to have consent. Thus it is not the act which is problematic, it is only the omission to obtain consent, hence a "failure to take care" is characterized as negligence. The mens rea associated with obtaining consent is elevated in importance over the mens rea associated with the sexual act, and the offence is rationalized as less serious, and by some, nonculpable. 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.  149  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, 58 C.C.C.(3d) 353 at p. 138 of the C.R. report. However, the underlying morality of our criminal law system is not at all clear. Steven Wexler points out "In modern societies, a great deal of the criminal and quasi-criminal law has nothing to do with moral values; many acts are illegal which are not bad...A great many immoral acts which even Mill would say that the law could prohibit are not illegal. Our criminal law ignores a great many acts which obviously cause harm to people... Finally, the private morality which the law does embody is often not the morality of the society...[thus] in the face of serious social evil the law seems either to be impotent or to be allied with what is wrong rather than what is right." Steven Wexler "The Intersection of Laws and Morals" (1976), 54 Can. B. Rev. 351, at pp. 356-359, quoted in R.P. Saunders and C.N. Mitchell, An Introduction to Criminal Law in Context (Vancouver: Carswell, 1990) p.11. Therefore one cannot say that a legal determination also decides the moral issue. The morality argument as descriptive of our criminal law breaks down when one confronts the policy that mistake of law is not generally a defence to a charge. A distinction that people might be prepared to make is between those who knew something was against the law, and those who didn't. Eric Colvin cites the interesting case of R. v. Bailey where a sailor was convicted of an offence which was created while 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 the offence involved an act which was immoral, i.e. shooting at another person. 335. The "subjectivists" argue this. See the discussion in Peter MacKinnon's Case Comment "Criminal Negligence and Recklessness 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 who have no problem with a so-called objective test are Barbara Wootton, Crime and Criminal Law (London: Stevens and Sons, 1963), Tadeuz Grygior, Social Protection Code: A New Model of Criminal Justice (London: Sweet and Maxwell, 1971), and Peter Low "The Model Penal Code, The Common Law, and Mistakes of Fact: Recklessness, Negligence, or Strict Liability" (1988), 19 Rutgers L.J. 539. At p. 564, Low says: "The criminal law always uses a combination of subjective and objective standards of liability and it is not intuitively clear, at least to me, that the line between them can be categorically drawn for circumstance elements in advance of the specific context likely to be posed by a specific offence." 337. See above, text at fn. 172 et seq. It is curious because  150  unless the test can be characterized as being essentially subjective, the CBA submission of Bill C-49 will have been fundamentally at odds with its recodification proposal which says no liability without subjective fault. Principles of Criminal Liability, Proposals for a New General Part of the Criminal Code, above, fn. 16, p. 11. 338. See above, fns. 145, 146 for the comments of women in regard to the existence of mistaken beliefs in consent. The women did not classify the tests as being objective or subjective, but they strongly suggested that culpability attached equally. 339. See below, text at fn. 352. One could argue that if a person is caught twice committing the same criminal offence through 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 he didn't know any better. This would equate with "blame in fact" as well as "blame in law." 340. Alan Brudner "'I thought she meant yes' just isn't good enough" above, fn. 243. 341. Above, fn. 328. 342. His statement that a judge should not be left to decide that which is required by a "principle of justice" is surprising as the entire concept of mens rea has been judicially developed, as has the "principle of proportionality." 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, 79 C.R.(3d) 129, 58 C.C.C.(3d) 353. As pointed out above, in fn. 328, these decisions, along with Pappajohn represent a marked departure from traditional criminal law. 345. At p. 138 of the C.R. report. 346. Stuart will find some support in Christine Boyle's book Sexual Assault, published in 1984, above, fn. 18. Considering whether or not the test for mistaken belief should be subjective or objective, Boyle argues the latter and acknowleges that where an accused passes the subjective test but fails the objective test, a different treatment is justified. In the context of endeavouring to get away from the subjective test of Pappajohn, because it enables an accused to rely on the most sexist of myths and assumptions, her argument was practical. She compares sexual activity to driving: significant benefits can accrue from both if engaged in carefully, but considerable harm can result if engaged in carelessly.(p. 86) However, there is a significant difference. As Lindgren points out, there is no need to engage in sexual behavior, whereas there may sometimes be in  151  driving, and in our culture, there probably is. Nevertheless, we have seen fit to proscribe driving while over .08. In some cases of driving drunk accused persons have argued the defence of necessity, and in a rare case it has been accepted. One would think that courts should be even less likely to accept necessity as a defence to sexual assault, and yet, is there not a myth of male sexual need as intense and uncontrollable if incited, which does seem to operate as an excuse? Perhaps the argument should be made explicit. 347. Above, fn. 219. 348. See Barbara Greene's attempt to persuade Stuart that the trauma resulting from sexual assault which is not rape can be every bit as great as that resulting from rape. Minutes, above, fn. 3, p. 6:34. Contrast that with the view of committee member, Coline Campbell, who agreed with Stuart, p. 6:36. 349. The minimum penalty that may be ordered in cases of both first and second degree murder is life imprisonment. A person convicted of first degree murder will generally not be eligible for parole until after the expiration of 25 years; a person convicted of second degree will not be eligible for parole for at least 10 years. 350. There are other Code offences which might also then be split into two offences. For instance, there is a difference in culpability between the person who knowingly drives in a drunken condition and the person who carefully measures her drinking and believes erroneously that she is not "over the limit" or impaired and yet is. 351. By this I do not mean to imply that there is no social injury in intentional sexual assault, but that it may be different. 352. Comparison with the change in attitudes achieved by drinking and driving legislation is Mobina Jaffer's comment: "Twenty years ago we would giggle if somebody drank and drove. Today that is not socially acceptable behavior. But legislation had to change that. That's when the message got through." 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, as  152  well, its inherent flexibility. She asks whether criminal law can effectively address harm or reduce it. (Lacey et al, above, fn. 158, p. 3.) Similarly, Hastings and Saunders are critical of the lack of content in the concept as used by the LRCC in Our Criminal Law, in "Social Control, State Autonomy and Law Reform: The Law Reform Commission of Canada" State Control, above, fn. 9, at p. 133. David Dyzenhaus argues on the other hand, that the harm concept could be used to satisfy feminist demands for stricter rules on pornography in "Liberalism, Pornography and the Rule of Law" Canadian Perspectives on Legal Theory Richard Devlin, ed. (Emond Montgomery, 1991) p. 13. A broad notion of harm could also be used to extend the offence of sexual assault even where there was consent. If a woman feels violated after the fact of sexual activity, does she not experience harm, and if she does, is the person who for example, may have persuaded her against 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 illegal as an assault, whether sexual or not, prior to Bill C-49. See Boyle, Sexual Assault, above, fn. 18, pp. 55-58. 361. De minimus non curat lex is rarely successful. It hardly lies in one's mouth to suggest to a judge that even though the law was broken, no harm was done. The major goal of sentencing is seen by many, including the Canadian Sentencing Commission, not to be the reduction of harm in society, but the preservation of respect for law. Another way of saying this, is that breaking the law is harmful, in it and of itself. 362. The usual way of stating this has to do with how one kicks a dog. It has been suggested that a dog knows whether it is kicked intentionally or accidentally. Can we be sure that 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 factor behind Bill C-49, as indicated in the preamble. However, most of 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 used historically to further policies of control of women. See, for example, Charlene L. Muehlenhard "Definitions of Rape and Their 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.  153  368. Ibid. 369. See generally, Anderson and Zinsser, above, fn. 24, p. 243-247. 370. This was the approach taken at the District Court level in R. v. McCraw (1989), 21(1) Ottawa L. R. 201. 371. These were the primary justifications offered in determinations of the constitutionality of the gender specific statutory rape provisions, post Charter. The provisions, it was argued, existed to prevent young girls from becoming pregnant. 372. For a general discussion see Colvin, above, fn. 327, p. 212. He notes that vagueness has previously only been a defence to a breach of a by-law, and not a penal statute. See further its limited application under the Charter: Don Stuart, 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 may be convicted of offences at common law. 376. The legal answer to this complaint is first that the principle has never required the law to be contained in a statute. It may just as easily be found in case law. See Colvin above, fn. 327, p. 212. Thus any question that a person may have now about the legality of consent to assault causing 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 and many predicted the development of the bedroom breathalyzer, as per the Lawyers' Weekly, though none advanced share capital. 380. According to Lord Devlin, if our law weren't logical at the root, it would not endure. (Quoted in Fitzgerald, above, fn. 283, p. 6) On the other hand, Lord Salisbury argued in 1889, in the context of whether or not people should be flogged for certain crimes, that English criminal law was basically irrational (Leon Radzinowicz and Roger Hood, A History of English Criminal Law, Vol. 5, (London: Stevens & Sons, 1986) p. 702. See also Mohr, above, fn. 283, p.35 on the search for logic. 381. Edward Levi, An Introduction to Legal Reasoning (Univ. of Chicago Press, 1949).  154  382. On essentialism, see Anne Kingdom, What's Wrong with Rights? (Edinburgh Univ. Press, 1991). 383. Kathleen Lahey, Implications of Feminist Theory for the Direction of Reform of the Criminal Code (Queen's Univ., unpublished, 1984) 384. Above, fns. 210-211. The CLAO took the position that it was improper for Parliament to explain its intent or contribute its understanding of what living in a free and democratic country means. The CLAO treated the legislative process as a pre-trial proceeding, in which each side, the defence and Parliament, had to follow the rules required in an adversarial system. The lawyers were truly in the throes of the power of law, and the power of the trial determination itself. See Smart, above, fn. 165, pp. 2-25. 385. See, for example, the argument of Douglas Husak on this point in Philosophy of Criminal Law (Totowa,N.J.: Rowman and Littlefield, 1987) pp. 20-25. 386. See generally, Fitzgerald, above, fn. 283. Are we not however, merely engaged in a process of reification, as discussed 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 Globe editorial, above, fn. 310. 388. Above, fn. 256. It is not surprising that most of the arguments which invoke "fundamental principles" are produced by lawyers, who, as a result of their education and occupation, are trained to interpret social problems as legal problems. As Patrick Fitzgerald observes, the "average lawyer turned law reformer" looks only to the law, rather than to morality and "social convenience," to determine how the law should 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 rational utilitarians in "The Model Penal Code's Historical Antecedents" (1988), 19 Rutgers L.J. 521. In the same volume, Frank Remington provides insight into exactly how close the union is when he declares. (uncritically) that belief in codification is a matter of faith (in "The Future of the Substantive Criminal Law Codification MovementTheoretical and Practical Concerns", p. 867.) 392. See above, fns. 24, 254-258. 393. Much of the debate took place within the the framework of  155  nature as relevant criterion. For instance, the submission by LEAF to the legislative committee sought to establish that the "nature" ascribed to women by law in the past is problematic, to put it mildly. The same point has been made in relation to reform of another jurisdiction's rape law: "The traditional view of the crime of rape has expressed the degrading notion that women would consent to a brutal, violent assault, or that their essentially vindictive nature would lead them to fantasize about and fabricate the occurrence of the crime." (Marsh, above, fn. 279, p.3) A telling problem quickly appears in the counter arguments: if we address the "nature of women" by simply changing the content of the category, we are just as open to attack as those who argued for ancient views of women, for any view on the "nature of women" is as intuitive and lacking in basis as any other and, just as before, the broad masses of women are pigeon-holed, type-set, and put up in distinction to men. Only the characteristics differ. The women's groups addressed this, 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 raised the issues of unequal impact of criminal law on rich and poor and 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 that codification allows one to critique the law and examine moral and philosophical underpinnings. He suggests that prior to codification, "we were illiterate in the concepts of the criminal law." "Foreword" (1988), 19 Rutgers L.J. 519. Is this not pre-determining the moral and philosophical framework? Also see J.C. Smith "Codification of the Criminal Law" (1987), Denning L.J. 137 at p. 140, and Don Stuart's brief in Minutes of Proceedings and Evidence of the Sub-committee on the Recodification of the General Part of the Criminal Code, House of Commons, Issue No. 9, Nov. 26, 1992, p. 9A:38, to the effect that although there may be disagreements as to the substantive content of recodification, the project should nevertheless proceed. 401. Lahey, above, fn. 379; Mohr, above, fn. 283; Grainne de Burca and Simon Gardner "The Codification of the Criminal Law" (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:2425.  156  403. See above, final point in fn. 328. 404. The contrasting method is to take specifics and start with 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 Sociology of L. 239. 405. In its first Report on Recodification, #30, the LRCC did not deal with sexual offences, although it did have a title on crimes against the person. It oulined the parts to come in a second volume, and although not specified, sexual assault could only come under the title, "Crimes against Marriage and the Family." In the second report, #31, the LRCC said at p. 3 that sexual offenecs would be dealt with later, along with abortion, prostitution and pornography. 406. Contrast the method of Zillah Eisenstein who takes the pregnant 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 law reform did not achieve the results hoped for by women. 408. Packer, above, fn. 320. 409. John Griffiths "Ideology in Criminal Procedure, or a Third 'Model' of the Criminal Process" (1970), 79 Yale.L.J. 353. Marguerite Russell "A Feminist Analysis of the Criminal Trial Process" (1989/90), 3 C.J.W.L. 552. Also Ericson and Baranek, above, fn. 260 who argue that due process really serves the crime control function. 410. Above, text following fn. 253. 411. But, is it the principles themselves, or the power exerted by those who put them into place? 412. See, for example, Walter Tarnopolsky, Discrimination and the Law in Canada (Don Mills, Ont.: Richard DeBoo, 1982) pp. 1-24. 413. See, for example, the Report of the Manitoba Aboriginal Justice Inquiry (Winnipeg: Queen's Printer, 1991). 414. Canadian Centre for Justice Statistics "Public Perceptions of Crime and the Criminal Justice System" Juristat, Vol. 11, No. 1, 1991. 415. A second related point is obvious: if an amendment is not seen as warranted, will it be obeyed? And if one provision is ignored, the whole of criminal law is challenged. For instance, if men generally believe that the bill's requirement to take reasonable steps to assure they have consent to sexual intercourse is unreasonable, then their faith in criminal law will be diminished and its  157  legitimacy, in their eyes, will be weakened. Their only reason then to obey the law would be fear of apprehension and punishment. Similarly, if police, judges, and prosecutors do not support the changes the objective of the law may be thwarted, and the response of the public and the personnel within the system may be generalized to other parts of the law. 416. For example, see Lorenne Clark "Feminist perspective on violence against women and children: psychological social service 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 a Gendered Process" (1990), 32 Can. J. Crim. 479. 417. Cited in Curt T. Griffiths and Simon Verdun-Jones, Canadian Criminal Justice (Toronto:Butterworths, 1989) p. 9. 418. See William Twinings and David Miers, How to do Things with Rules A Primer of Interpretation (3rd ed.) (London:Weidenfeld and Nicolson, 1991) pp. 125 et seq. 419. Mohr, above, fn. 256. 420. Reference Re: Section 94(2) of the Motor Vehicles Act (1985), 24 D.L.R.(4th) 536, 48 C.R.(3d) 289 (S.C.C.).  158  BIBLIOGRAPHY  Allen, C.K., Legal Duties and Other Essays in Jurisprudence (Oxford Univ. Press, 1931). Anderson, Bonnie S. and Judith P. Zinsser, A History of Their Own Vol. 2 (New York: Harper & Row, 1988). 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Grygior, Tadeuz, Social Protection Code: A New Model of Criminal Justice (London: Sweet and Maxwell, 1971). Hastings, Ross and R.P. Saunders "Social Control, State Autonomy and Law Reform: The Law Reform Commission of Canada" State Control, R.S. Ratner and John L. McMullan, eds. (Vancouver: UBC Press, 1987). Hogan, Brian "Some Reservations on Law Reform" Crime Justice and Codification, Patrick Fitzgerald, ed. (Vancouver: Carswell, 1986) p. 65. Husak, Douglas, Philosophy of Criminal Law (Totowa,N.J.: Rowman and Littlefield, 1987). Justice Communiqué "Kim Campbell promises legislation to protect sexual assault complainants" (Minister of Justice and Attorney-General of Canada, Sept. 13, 1991). Justice Communiqué "New Criminal Code Provisions to Protect Sexual Assault Victims" (Minister of Justice and AttorneyGeneral of Canada, Dec. 12, 1991).  161  Justice Information "Background Information" (Minister of Justice and Attorney-General of Canada, December, 1991). Kadish, Sanford "The Model Penal Code's Historical Antecedents" (1988), 19 Rutgers L.J. 521. Kingdom, Anne, What's Wrong with Rights (Edinburgh University Press, 1991). Lacey, Nicola, Celia Wells and Dirk Meure, Reconstructing Criminal Law (London: Weidenfeld and Nicolson, 1990). Lahey, Kathleen, Implications of Feminist Theory for the Direction of Reform of the Criminal Code (Queen's Univ., unpublished, 1984). Law Reform Commission of Canada, The Meaning of Guilt: Strict Liability. Working Paper #22, (Ottawa, 1974). Law Reform Commission of Canada, Our Criminal Law, Report to Parliament, (Ottawa, 1976). Law Reform Commission of Canada, Sexual Assault, Working Paper #22, (Ottawa, 1978). Law Reform Commission of Canada, Recodifying Criminal Law Report #30, Vol. 1 (Ottawa, 1986). Law Reform Commission of Canada, Recodifying Criminal Law Report #31, Revised and Enlarged Edition (Ottawa, 1987). Levi, Edward, An Introduction to Legal Reasoning (Univ. of Chicago Press, 1949). 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Stuart, Don "The Supreme Court Drastically Reduces the Constitutional Requirement of Fault: A Triumph of Pragmatism and Law Enforcement Expediency" (1992), 15 C.R.(4th) 88. Taking Responsibility, The Report of the Standing Committee on Justice and the Solicitor-General (Ottawa, 1987). Tarnopolsky, Walter, Discrimination and the Law in Canada (Don Mills, Ont.: Richard DeBoo, 1982). Tarrant, Sheila "Something is pushing them to the sides of their own lives" (1990), 20 West. Aust. L.R. 573. Ten, C.L., Crime, Guilt and Punishment (Oxford: Clarendon Press, 1987). Twinings, William and David Miers, How to do Things with Rules A Primer of Interpretation,3rd ed. (London: Weidenfeld and Nicolson, 1991). Vandervort, Lucinda "Mistake of Law and Sexual Assault: Consent and Mens Rea" (1987-1988), 2 C.J.W.L. 233. Walker, Nigel, Sentencing in a Rational Society (London: Allan Lane, the Penguin Press, 1969). Walker, Nigel, Why Punish (New York: Oxford University Press, 1991). Watt, David, The New Offences Against the Person: The Provisions of Bill C-127 (Toronto: Butterworths, 1984). Wexler, Steven "The Intersection of Laws and Morals" (1976), 54 Can. B. Rev. 351. Women and Criminal Justice Issues: Workshop Proceedings, Pat File, ed.(Ottawa: National Association of Women and the Law, 1987). Wootton, Barbara, Crime and Criminal Law (London: Stevens and Sons, 1963).  165  TABLE OF CASES  Reference Re: Section 94(2) of the Motor Vehicle Act (1985), 24 D.L.R.(4th) 536, 48 C.R.(3d) 289 (S.C.C.).  R. v. Appleby, [1972] S.C.R. 303, 21 D.L.R.(3d) 325, 16 C.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, 45 C.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; 43 C.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, 14 D.L.R.(3d) 164 (Ont. Prov. Ct.).  R. v. Martineau, [1990] 2 S.C.R. 633, 79 C.R.(3d) 129, 58 C.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 appeal to S.C.C.  R. v. Pappajohn, [1980] 2 S.C.R. 120, 14 C.R.(3d) 243, 52 C.C.C.(2d) 481, 111 D.L.R.(3d)1, 32 N.R. 104.  166  R. 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, 17 D.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, 39 C.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.  167  TABLE OF STATUTES  An 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.  168  CHRONOLOGICAL TABLE OF POPULAR ARTICLES "Court ruling chilling outraged feminists say" Toronto Star, Aug. 23, 1991. "Women express anger over sexual assault ruling" Vancouver Sun, 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 Free Press, Dec. 13, 1991. "Beware mixing drink, sex, top defence lawyer says" Toronto Star, 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)" Toronto Star, 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 sexual assaults" 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.  169  "Lawyers wary of proposed rape law-Commons committee told new standards are contrary to 'centuries of accepted behavior "'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 on males" Vancouver Sun, May 20, 1992. "Sexual assault legislation attacked-Bill unfair to men, REAL women say" Globe and Mail, May 20, 1992. "If you're confused, don't. If in doubt, don't." Globe and 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 that proposed law would violate rights of accused" (Geoffrey York and 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.  170  APPENDIX 1: BILL C-49  APPENDIX 1  FIRST DRAFT  BILL C-49 An Act to amend the Criminal Code (sexual assault) WHEREAS the Supreme Court of Canada has declared the existing section 276 of the Criminal Code to be of no force and effect; WHEREAS the Parliament of Canada is gravely concerned about the incidence of sexual violence and abuse in Canadian society; WHEREAS the Parliament of Canada recognizes the unique character of the offence of sexual assault and how sexual assault and, more particularly, the fear of sexual assault affect the lives of the people of Canada; WHEREAS the Parliament of Canada wishes to encourage the reporting of incidents of sexual violence or abuse, and to provide for the prosecution of offenders within a framework of laws that are consistent with the principles of fundamental justice and that are fair to complainants as well as to accused persons; WHEREAS the Parliament of Canada wishes to promote the full protection of the rights guaranteed under sections 7 and 15 of the Canadian Charter of Rights and Freedoms; AND WHEREAS the Parliament of Canada believes that at trials of sexual offences, evidence of the complainant's sexual history is rarely relevant 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 consent of 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 voluntary agreement of the complainant to engage in the sexual activity in question. (2) No consent is obtained, for the purposes of sections 271, 272 and 273, where (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity;  171  (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a revocation of agreement 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 the activity. (3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. 273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that 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 circumstances known to the accused at the time to ascertain that the complainant was consenting. ;  2. Section 276 of the said Act is repealed and the following substituted 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 in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject-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 the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 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 in arriving 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 a full answer and defence; (b) society's interest in encouraging the reporting of sexual assault offences; (c) whether the evidence will reasonably assist in arriving at a just determination in the case; (d) the need to remove from the fact-finding process any discriminatory belief or bias;  172  (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (1) the potential prejudice to the complainant's personal dignity and right of privacy; (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (h) any other factor that the judge, provincial court judge or justice considers relevant. 276.1 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 276.2 to determine whether evidence is admissible under subsection 276(2). (2) An application referred to in subsection (1) must be made in writing and 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 the clerk of the court. (3) The judge, provincial court judge or justice shall consider the application 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 the clerk of the court at least seven days previously, or such shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and (c) that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 276.2 to determine whether the evidence is admissible under subsection 276(2). 276.2 (1) At a hearing to determine whether evidence is admissible under 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 judge or justice shall determine whether the evidence, or any part thereof, is admissible under subsection 276(2) and shall provide reasons for that determination, and (a) where not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted; (b) the reasons must state the factors referred to in subsection 276(3) that affected the determination; and (c) where all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expect to be relevant to an issue at trial. (4) The reasons provided under subsection (3) shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing.  173  276.3 (1) No person shall publish in a newspaper, as defined in section 297, 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 representations made at an application under section 276.1 or at a hearing under section 276.2; and (c) the determination made and the reasons provided under section 276.2, (i) that determination is that evidence is admissible, or (ii) the judge, provincial court judge or justice, after taking into account 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 offence punishable on summary conviction. 276.4 Where evidence is admitted at trial pursuant to a determination made under section 276.2, the judge shall instruct the jury as to the uses that the jury may and may not make of that evidence. 276.5 For the purposes of sections 675 and 676, a determination made under section 276.2 shall be deemed to be a question of law. 3. This Act or any provision thereof, or any provision of the  Criminal Code as enacted by this Act, shall come into force on a day  or days to be fixed by order of the Governor in Council.  174  APPENDIX 2: BILL C-49  APPENDIX  2  AS PASSED  BILL C-49 An Act to amend the Criminal Code (sexual assault) WHEREAS the Parliament of Canada is gravely concerned about the incidence of sexual violence and abuse in Canadian society and, in particular, the prevalence of sexual assault against women and children; WHEREAS the Parliament of Canada recognizes the unique character of the offence of sexual assault and how sexual assault and, more particularly, the fear of sexual assault affects the lives of the people of Canada; WHEREAS the Parliament of Canada intends to promote and help to ensure the full protection of the rights guaranteed under sections 7 and 15 of the Canadian Charter of Rights and Freedoms; WHEREAS the Parliament of Canada wishes to encourage the reporting of incidents of sexual violence or abuse, and to provide for the prosecution of offences within a framework of laws that are consistent with the principles of fundamental justice and that are fair to complainants as well as to accused persons; WHEREAS the Supreme Court of Canada has declared the existing section 276 of the Criminal Code to be of no force and effect; AND WHEREAS the Parliament of Canada believes that at trials of sexual offences, evidence of the complainant's sexual history is rarely relevant 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 consent of 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 voluntary agreement of the complainant to engage in the sexual activity in question. (2) No consent is obtained, for the purposes of sections 271, 272 and 273, where (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity;  175  (c) the accused induces the complainant to engage, in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a revocation of agreement 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 the activity. (3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. 273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that 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 circumstances known to the accused at the time, to ascertain that the complainant was consenting. 2. Section 276 of the said Act is repealed and the following substituted 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 in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject-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 the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 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 by the 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 a full answer and defence; (b) society's interest in encouraging the reporting of sexual assault offences; (c) whether the evidence will reasonably assist in arriving at a just determination in the case; (d) the need to remove from the fact-finding process any discriminatory belief or bias;  176  (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (r) the potential prejudice to the complainant's personal dignity and right of privacy; (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (h) any other factor that the judge, provincial court judge or justice considers relevant. 276.1 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 276.2 to determine whether evidence is admissible under subsection 276(2). (2) An application referred to in subsection (1) must be made in writing and 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 the clerk of the court. (3) The judge, provincial court judge or justice shall consider the application 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 the clerk of the court at least seven days previously, or such shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and (c) that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 276.2 to determine whether the evidence is admissible under subsection 276(2). 276.2 (1) At a hearing to determine whether evidence is admissible under 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 judge or justice shall determine whether the evidence, or any part thereof, is admissible under subsection 276(2) and shall provide reasons for that determination, and (a) where not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted; (b) the reasons must state the factors referred to in subsection 276(3) that affected the determination; and (c) where all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expect to be relevant to an issue at trial. (4) The reasons provided under subsection (3) shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing.  177  276.3 (1) No person shall publish in a newspaper, as defined in section 297, 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 representations made at an application under section 276.1 or at a hearing under section 276.2; and (c) the determination made and the reasons provided under section 276.2, (i) that determination is that evidence is admissible, or (ii) the judge, provincial court judge or justice, after taking into account 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 offence punishable on summary conviction. 276.4 Where evidence is admitted at trial pursuant to a determination made under section 276.2, the judge shall instruct the jury as to the uses that the jury may and may not make of that evidence. 276.5 For the purposes of sections 675 and 676, a determination made under section 276.2 shall be deemed to be a question of law. 3. This Act or any provision thereof, or any provision of the Criminal Code as enacted by this Act, shall come into force on a day or days to be fixed by order of the Governor in Council.  

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