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Bill C-49: a Victory for Interest Group Politics

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Bill C-49: a Victory for Interest Group Politics BILL C-49: A VICTORY FOR INTEREST GROUP POLITICS Robert Martin* I intend, in this essay, to address the origins of Bill C-491 and then turn to an analysis of its adoption as an amendment to the Criminal Code.2 My aim is to show how both thë public debate about Bill C-49 and its enactment illustrate the power of interest group politics in Canada. I will also make some observations about the meaning of Bill C-49. My purpose in making these observations will be to demonstrate how Bill C-49 is an expression of the ideology of the interest group which created and supported it. I will conclude with some thoughts on whether this is a sound way to make criminal law. The Content of Bill C-49 Before looking in detail at where Bill C-49 came from, it is essential to have a clear idea of what it does. The legislation contains two types of provisions, which I differentiate simply as procedural and substantive. a. Procedural The purpose of the procedural elements of Bill C-49 is to establish a new “rape- shield” law to replace the one which was struck down by the Supreme Court of Canada in R. v. Seaboyer.3 Indeed, the language of the new provision is largely based on the Court’s judgments. There are flaws in these aspects of Bill C-49, but it is not within my purpose to comment on them. I would only note the apparent impossibility of inducing Canadian journalists to abandon convenient, but misleading, tags like “rape- shield.” The phrase “rape-shield” literally suggests that a law of this nature seeks to protect rapists. If we must have a bit of journalistic shorthand to describe this sort of law, it should be called a “rape victim shield” law. Of the Faculty of Law, University of Western Ontario. I wish to thank Rande Kostal and Julian Roberts for their criticisms. 1An Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38 [hereinafter Bill C-49]. 2R.S.C. 1985, c. C-46. 3[1991] 2 S.C.R. 577 [hereinafter Seaboyer]. The Court declared the existing s. 276 of the Criminal Code to be of no force or effect. Bill C-49 creates a fresh s. 276 as well as new sections 276.1, 276.2, 276.3, 276.4 and 276.5. b. Substantive Bill C-49 makes fundamental changes in the law with respect to the meaning and significance of consent in sexual assault prosecutions. The legislation creates two new Criminal Code sections: s. 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; (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 lack 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 continue to engage in the activity. (3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. s. 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. While the presence or absence of consent has always been a central, perhaps the central, issue in rape or sexual assault prosecutions, the Criminal Code had not previously defined its meaning or its scope. Why, in 1992, was it felt necessary to do this? It must be assumed that Parliament enacted these provisions because it believed there were reasons which required the addition of such a definition to the Criminal Code. More to the point, the approach in Bill C-49 is evidently one which seeks to narrow the effective ambit of consent. A “Background Information” paper prepared by the Justice Department to explain the Bill to reporters when it was given First Reading in December 1991 made this clear: An accused person will not be able to use the defence of mistaken belief in consent if the mistake resulted from his or her self-induced intoxication, recklessness, or wilful blindness or where the accused took no reasonable steps to ascertain the complainant’s consent. I will later offer some detailed criticism of Bill C-49’s approach to consent, but for now it must, once again, be assumed that Parliament believed these specific changes in the law governing consent to be necessary and desirable. That is, Parliament, or at least the Justice Department, must have believed that accused persons who were drunk, or reckless or wilfully blind, or who had not taken reasonable steps to ensure that the eventual complainant was consenting were relying on the existing law to avoid conviction. But was this in fact the case? Was the law about consent so loose that large numbers of sexual assaults were going unpunished? Did the urgent public interest in protecting women and children against sexual assault require these changes in the law? Another feature of the changes requires comment. Underlying the narrowing of the ambit of consent is a basic questioning of the legitimacy of what had hitherto appeared to be consensual sexual behaviour. Reading the new sections, one cannot avoid wondering whether the person who drafted them was fully convinced that most sexual, or at least, heterosexual, acts are indeed consensual. The impression is created that far more sexual behaviour than we might have been prepared to imagine is non-consensual. Once again it must be assumed that Parliament was moved by a belief that substantial numbers of non-consensual sexual acts were occurring and that this situation should be addressed by the criminal law. How did Parliament come to think these things? An analysis of the origins of Bill C-49 will address these questions. The Genesis of Bill C-49 I do not wish to write a history of sexual assault in Canada. Nonetheless, a useful starting point is Bill C-127,4 which became law on 4 January 1983. The result of Bill C-127 was that the crimes of rape, attempted rape and indecent assault against a male or a female were replaced with the new offences of sexual assault and aggravated sexual assault. It must be stressed that there is a fundamental difference between the prohibited conduct involved in rape and in sexual assault. Rape meant forced, that is, non-consensual intercourse; sexual assault includes what would have amounted to rape, but also extends to other assaults of a sexual nature. Changes in the procedure to be followed in trying sexual assault charges were also made. The import of the 1983 reforms is well-known and does not require further 4An Act to amend the Criminal Code in Relation to Sexual Offences and Other Offences Against the Person, S.C. 1980-81-82-83, c. 125. discussion here.5 Still, two of the underlying policy goals which motivated the 1983 amendments must be noted. First, the amendments were designed to achieve the “degenderization” of sexual assault.6 The old offence of rape could only be committed by a man against a women; the new offence of sexual assault could, in theory, be committed by a person of either sex against a person of either sex. Second, a clear purpose of the amendments was to proscribe sexual assaults because they were seen to be acts of violence, not merely because they were sexual acts.7 To put the matter slightly differently and more directly, the new offence sought to punish violence, not sexuality. Were the 1983 reforms successful? Were major problems left unaddressed? The Department of Justice began a national research programme in 1985 to evaluate the effect of the 1983 reforms. The programme was completed in 1991. An “Overview” report described it thus: “... the Canadian evaluation initiative was substantial.”8 The broad conclusion of this study was that the 1983 reforms had at least been successful in achieving an increase in reporting rates. This was a central aim of the reforms. As the “Overview” noted, “... national data confirm that there has been a general trend to higher rates of reporting sexual crimes since the introduction of Bill C-127.”9 Another aim was to bring about improvements in the way victims of sexual assault were treated by persons in the criminal justice system. The Justice Department’s Report is more equivocal on this point, but there is a sense that, while more remained to be done, positive change had occurred.10 The multi-volume Justice Department Report also sought to lay to rest a number of persistent myths. The myths about sexual assault arose largely from an absence of information. One of them was that sexual assaults, once there has been a conviction, result in light or inconsequential punishments.
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