Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A Y 2 0 1 6 29 Sexual assault legislation in Canada 1892 Rape is defi ned in the Criminal Code as the carnal knowledge of a woman who is not his wife without her consent, by fraud, or with consent extorted by threats or by personating her husband. Carnal knowledge is complete upon penetration "even without the emission of seed." The maximum penalty is life in prison or death. 1919-1921 Whipping is added as a punishment (along with a prison sentence) to anyone convicted of rape or attempted rape. 1953 The wording of the relevant sections is changed slightly (carnal knowledge is changed to sexual intercourse) although the elements of the off ence are the same. Rape now carries a maximum penalty of life in prison, instead of the death penalty, as well as whipping. The maximum sentence for attempted rape is increased to 10 years from seven, as well as a whipping. 1982 Major changes were made to the sexual assault provisions in the Criminal Code. A man could now be prosecuted for the sexual assault of his wife. The maximum sentence for a sexual assault prosecuted by indictment was reduced to 10 years, or 14 years if a weapon was involved. Aggravated sexual assault carries a maximum of life in prison. Mistaken belief in consent can be put to a jury if a judge believes there is suffi cient evidence. A so-called "rape shield" provision is also enacted to say that evidence of a complainant's sexual reputation is not admissible. 1992 Changes are made to restrictions on admissibility of evidence of a complainant's sexual history, after the provisions enacted a decade earlier were struck down by the Supreme Court of Canada. 1995 If the Crown proceeds summarily in a sexual assault prosecution, the maximum sentence is 18 months in jail. 1997 Changes are made to the Criminal Code to deal with requests by the defence for third-party records of complainants. Sources: Criminal Code of Canada; Supreme Court of Canada; professor Constance Backhouse. more than 20 years ago by Ontario Court of Appeal Justice David Doherty, in a case called Morrissey, recounts Edelson. "Some things are so important that, if the witness lies at trial, that is the death knell of the Crown's case," he points out. As is common in sexual assault trials, much of the cross-exam- inations of the complainants was about actions or incidents not directly related to the allegations. "You may go around the edges or you may directly confront the complainant," says Edelson. "It's all about context. It is dominated by the context in which the events took place. There are many things that may seem peripheral to the observer sitting at home but are actually very relevant." In his assessment of the first complainant, Horkins also high- lighted the fact the woman testified that she thought Ghomeshi owned a Volkswagen Beetle, although the court heard it was not purchased until months after the alleged incident. "This demon- strably false memory weighs in the balance against the general reliability of L.R.'s evidence as a whole," wrote Horkins. The trial judge was entirely correct to make that finding, says Edelson. "She did not say, 'I am not sure.' She said she was 'positive,'" he notes. Throughout his ruling, the trial judge stated a number of times that he was guarding against being influenced by stereotypes of how sexual assault victims are supposed to react. These stereotypes do seep into many trials though, says an experienced Canadian pros- ecutor who has conducted a number of sexual assault prosecutions. "The laws are positive. The way they are applied in court is a dif- ferent story," says the Crown attorney, whom Canadian Lawyer has agreed not to identify. "We still believe victims are supposed to act a certain way. Women often minimize, ignore, or repress physical or sexual abuse. The denial story is the best way to get on with your life," the prosecutor explains. If a case does come to trial though, that could impact the memory of the witness about the incident. If a defence lawyer can show the witness has been contradicted on a "collateral matter," that suddenly becomes relevant. "But nobody listens to the explanations [for the contradiction]," says the Crown. Much was made in the media coverage of the Ghomeshi trial about the willingness of the complainants after the alleged assaults to meet with Ghomeshi, engage in romantic acts, and send flirta- tious communications. "That is not unusual," says the prosecutor. "You might try to pursue a relationship because you liked him, and if one ensues, that legitimizes what happened. He really liked me, he did not rape me." One of the other myths still put forward regularly is that if it was a "one-night stand," the woman went to police because she regretted what happened, says the Crown attorney. "We still believe she has ulterior motives. But if it was about regret, you wouldn't go to the police. You wouldn't want anyone to know." Despite the legislative protections, the average sexual assault trial remains "an all-out attack on the complainant," says the prosecutor. Not surprisingly, this is not a view shared by prominent defence lawyers such as Edelson or Peter Royal, who has also acted for clients in a number of sexual assault proceedings. "I can tell you, in my experience in Alberta, the application of [s. 276] is very strictly applied," says Royal, who heads Royal & Co. in Edmonton. "I think that courts are increasingly protective of complainants, especially if the complainant is a young person." The defence lawyer is no stranger to high-profile cases that attracted protests and opinion pieces about sexual assault law. "We THe Crown is not representing a complainant's interest. She needs independent legal advice. This will give women concrete advice about their options. AMANDA DALE, Barbra Schlifer Commemorative Clinic

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