Sexual assault: public debate and criminal law reform


University of British Columbia

Date Issued


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Master of Laws - LLM




Canada's most recent amendments to the criminal law on sexual assault were developed in consultation with women's groups in response to the decision of the Supreme Court of Canada that existing restrictions on the admission of evidence of the sexual pasts of complainants in sexual offences is unconstitutional. The amendments dealt with the evidentiary issues, and, as well, the definition of consent, and the availability of the defence of mistaken belief in consent in sexual offences. Each of the three major political parties supported the new law. However, the women's groups that had originally been involved in its development sought to have several substantial changes made to it, and opposition to the Bill from defence lawyers, civil liberties associations and law professors was strong. In this thesis, I review the substantive law relating to the amendments, and the arguments in the House of Commons, in Parliamentary committee, and in the media, all of which formed the public debate on the Bill. Key issues were whether criminal law should be used to advance social justice for women, and whether the new law contradicts the "natural order". A major argument against the Bill was that it contravened the fundamental principles of criminal law. It was argued that the fundamental principles should take priority over the Bill. Each of the issues is considered in this work. The major thrust, however, is on the normative value of the so-called principles of criminal law, which I argue are variously indeterminate and abstract, controversial and leading to unduly legalistic arguments. I consider some sources of these arguments and compare the approach taken in relation to the sexual assault amendments with that taken in another major law reform project, that of the recodification of the criminal law. It is my thesis that primacy should not be afforded the principles. At issue is the ability of Parliament to reform criminal law to meet emerging socialissues. Against Parliament's competence to enact useful legislation is pitted the reified ways and means of doing criminal law in the past.

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