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Bill C-51: Vancouver Rape Relief’s submission to the Senate Committee on Legal And Constitutional Affairs

By Hilla Kerner
June 14, 2018

Bill C-51: An Act to amend the Criminal Code and the Department of Justice Act 

Most of you know who we are and our work as the oldest rape crisis centre in Canada and a member of the Canadian Association of Sexual Assault Centres. From this front-line involvement in the women’s movement, I bring you my group’s position in relation to the bill.

I will start by saying that we are troubled that, even though we, other women’s groups and feminist legal scholars testified before the House of Commons Justice Committee and asked for amendments to the bill, they were not incorporated in the version that is being brought before you.

I caught the tail end of the conversation between Senator Pate and Elaine Craig, so I understand that at least Senator Pate is aware of the feminists’ request for amendments.

Sexual assault is a gendered crime. It’s now common knowledge. It is an act of violence that is committed almost always by men against women and children. The advancement of sexual assault laws shows Parliament’s growing understanding of sexual assault as a reflection and reinforcement of women’s equality. Our sexual assault laws aim to protect women’s bodily integrity.

We appreciate the Minister of Justice’s efforts to advance sexual assault provisions, but it would be unwise for Parliament to pass any amendments to sexual assault laws without thorough consultation with rape crisis centres and other women’s groups and feminist legal scholars.

In relation to this particular bill, I will reinforce the objection that my friend from LEAF just brought forward. We are objecting to the addition of “. . . no consent is obtained if the complainant is unconscious.” Of course, an unconscious woman cannot consent, but this is already captured under the existing law, which says that no consent is obtained if the complainant is incapable of consenting to the activity.

We are worried that the proposed addition could be misused by defence counsels to argue that unconsciousness is the threshold for incapability, and since we too often see cases where judges do not know sexual assault laws, the intent behind the laws, and the intent of Supreme Court judgments instructing the application of the law, there is a serious danger that the judges will accept the defence arguments in this matter.

We support the proposed articulation that no consent is obtained if there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

We also support the expansion of rape shield provisions to include communication of a sexual nature or communication for a sexual purpose. We support the right to legal representation for victims in rape shield proceedings, and we support the proposed amendments regarding women’s records in the possession of the accused. For the women we work with in our rape crisis centre, these will be useful and helpful provisions.

All in all, when it comes to violence against women, Canada has good laws on the books. The legislation on sexual assault, wife battering, incest, sexual harassment and the fairly new law on prostitution allow the criminal justice system to investigate, charge and convict men who assault women.

When women who are victims of male violence come forward and report to the police, they are doing so to protect themselves and their children, to protect other women and to call on the state to fulfill its obligation to women’s inherent right to safety, security and liberty.

Alas, it is common knowledge that the criminal justice system is utterly failing women and Canada’s commitment to women as it is stated in the Charter. Women in Canada do not have their rights to equal protection and equal benefit of the law realized.

Men can change. Men are not inherently violent, and they can choose to treat us better. They can choose to treat us as fully equal, with complete autonomy over our body and our sexuality. But men will not change unless they are pressed to, unless they are held accountable, and I would like to stress that we are not calling for harsh sentencing or even imprisonment. We are in support of the removal of the mandatory minimum sentencing. But we are demanding that men will be accountable and controlled.

Serious reforms are needed in all levels of the criminal justice system — police, Crown and judges — when it comes to male violence against women, and we hope to appear before you again in the upcoming discussion of this committee on Bill C-337, the judicial accountability through sexual assault law training act.

But today, while I have your ear, I would like to argue that any improvement, let alone transformation, of the criminal justice system must begin with transparency. The public must know how many reports each police detachment receives on sexual assault, wife battering, sex purchasing and pimping, how long the investigations have taken, and if cases weren’t passed to the Crown, the reasons for it. The public must know how many cases the Crown has received, how many did not result in charges and the reason for each decision.

Lastly, all provincial, Supreme Court and Court of Appeal judgments must be transcribed and posted on a website available for public scrutiny.

Exposing the criminal justice system data will reveal all the points of its failure when it comes to male violence against women. It’s a first cruel step that has to happen if we want to see any change, and we must see change.

Read the full evidence.

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We believe men can change, but not as long as they get permission and encouragement to violate our bodily integrity and autonomy. We need to shake the pillars of the rape structure and start by holding men who commit violence against women accountable. So far, the Canadian state and its criminal justice system has been failing to do so.

By Hilla Kerner
October 25, 2017

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