Canada is updating its laws to say that an unconscious person can’t consent

Tinkering with the language of Canada’s Criminal Code could have an important impact on how sexual assault cases are tried, in light of years of criticism that the law has fallen behind the times.

The new legislation, tabled Tuesday, would afford victims of sexual assault wider protection from having their past communications entered into evidence, and would place a more stringent written definition on what constitutes consent — and what does not.

These changes, titled bill C-51, amount to the largest update in sexual assault law in more than two decades.

In updating the law, Ottawa is narrowing the ability for those accused of sexual assault to claim that they believed — wrongly — they had obtained consent, even when they didn’t.

“I’m hopeful that these proposed changes will go a long way towards ensuring that victims of sexual assault are treated with compassion and with the respect that they deserve,” Justice Minister Jody Wilson-Raybould told reporters at a press conference to unveil the legal changes on Tuesday.

The first significant change in the legislation codifies consent.

In 2011, the Supreme Court ruled that prior consent cannot be used to, legally, have sex with an unconscious person — although that decision came down to a split six-three decision.

In C-51, the government is endorsing the majority decision by writing into a law that “no consent is obtained” where the victim “is unconscious.”

Beyond that, the changes also bolster the existing law around consent by adding that the accused can’t claim that they believed the victim consented to the activity if there is no evidence that they “affirmatively expressed by words or actively expressed by conduct” their consent.

Perhaps the widest change to the law, however, relates to how defence lawyers can introduce the victim’s communications at trial as a way to suggest that they did, in fact, consent. It is an expansion of what is referred to as the “rape shield law.”

The law refers to a set of statutes that protect victims of sexual assault from having their past dragged into the courtroom as evidence that they probably consented to the acts, or as a suggestion that they can’t be trusted to file an accurate statement of events. While it doesn’t ban the use of that history altogether, it does put hard limits on how, and when, it can be introduced.

The expanded rape shield law will clarify that the sexual history of someone claiming sexual assault can never be admitted to imply probable consent, or to undercut their reliability.

The law further clarifies that evidence of their sexual past, including text messages, emails, videos, and pictures, is not admissible in court in order to establish consent or discredit a victim.

“That’s important,” says Carissima Mathen, an Associate Professor of Law at the University of Ottawa

While she adds that the consent law has always worked pretty well, there has long been some “unexplored” or “ambiguous” sections that are greatly clarified by C-51.

“It’s really important for Parliament to come and say, no, we agree with what the majority [of the Supreme Court] said,” she told VICE News.

And to that end, Mathen says, it conveys to those accused of sexual assault that they cannot feign ignorance around consent.

Currently, in Canadian law, someone accused of sexual assault can argue in court that they believed they obtained consent, unless their argument centers around the idea that they were too drunk, or if they did not take reasonable steps to obtain consent.

C-51 expands the exceptions, requiring that if someone claims that they reasonably believed their accuser consented to the activity, the onus is on the accused to prove that the consent was “affirmatively expressed by words or actively expressed by conduct.”

Two recent cases have highlighted the frustration and ambiguity in the law around sexual assault: The case against radio personality Jian Ghomeshi; and the prosecution of a Nova Scotia cab driver accused of assaulting an intoxicated passenger.

In the case against Ghomeshi, his defence team repeatedly dredged up the accusers’ sexual history with Ghomeshi as evidence that they were willing participants — while C-51 may not have limited that evidence, it at least would have prompted arguments in court, says Mathen.

The minister didn’t pat herself on the back for too long, noting that there are still structural problems plaguing the justice system.

“Is there still work to be done? There is still work to be done.”