The Constitutionality of Bill C-49: Analyzing Sexual Assault as if Equality Really Mattered

Christine Lesley Boyle, Marilyn MacCrimmon

Research output: Article

Abstract

Canada's criminal law of sexual assault has been the subject of several attempts at partial codification and legislative reform over the last two decades. Bill C-49, 'An Act to amend the Criminal Code (sexual assault)' was passed in response to public concern about the decision of the Supreme Court of Canada in R. v. Seaboyer, a case in which the former s. 276 of the Criminal Code, restricting the admissibility of evidence of the sexual history of complainants, was struck down as unconstitutional.

Bill C-49 is a substantive, procedural and evidentiary package which affects the law in three interconnected areas: (i) the meaning of consent; (ii) the mistaken belief in consent "defense", and (iii) the use that can be made of the sexual history of complainants. The three areas are interconnected since the legal meaning of consent will inevitably affect what it is an accused can be mistaken about, and the substantive issues in a trial will inevitably determine the scope of material and relevant evidence. The focus of this article is on the constitutionality of this package of changes in general. However, reference will be made to the constitutional challenge to many of them in R. v. Darrach in which significant parts of the bill were upheld by the Ontario Court of Appeal in 1998.

Original languageEnglish
Pages (from-to)198-237
JournalCriminal Law Quarterly
Volume41
Publication statusPublished - 1998

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