Justice L’Heureux-Dubé and Canadian Sexual Assault Law: Resisting the Privatization of Rape

Abstract

Justice Claire L’Heureux-Dubé’s sexual assault judgments make a remarkable contribution to the reform of Canadian rape law. Her analyses, even when written in dissent, have ultimately reshaped the common law and instigated new legislation. L’Heureux-Dubé J.’s judgments sustain the feminist project of realizing women’s equality by resisting the privatization of sexual assault through her linguistic choices, legal methodology, fact determinations, and doctrinal shifts.

Sexual assault is privatized when it is governed by legal doctrines that decriminalize predatory and injurious male sexual behaviour, treat the crime as an individual and gender-neutral deviation that carries no social consequences for the structuring of our society, and impose unconscionable burdens upon women who report male sexual violence to the criminal justice system. In contrast, Justice L’Heureux-Dubé’s judgments recognize that, while sexual assault is perpetrated by individual men, it is carried out by men as a group, against women as a group, with our permission as a society, signaled in part through legal rules that define the range of behaviours labeled as criminal. Her decisions frame women who report rape as citizens assuming a grave and onerous public responsibility as witnesses to violent crime, and not as vindictive females with an axe to grind. Her opinions recognize the gross under-reporting of rape and its implications for the full public participation of women.

The legal regime proposed through L’Heureux-Dubé J.’s judgments treats women who report sexual assault as members of society whose health, well-being, and survival have been compromised by a brutalizing experience. She endorses legal definitions and rules of culpability for sexual assault that do not force women to abandon the public sphere or active social and sexual lives and to assume responsibility for their own safety as against predatory men. Furthermore, Justice L’Heureux-Dubé’s legal understanding of sexual assault would not leave individual women to bear alone the social and economic costs of their rapes, unassisted even by the knowledge that the crime against them was condemned.

L’Heureux-Dubé J.’s dissent in R v Seaboyer perhaps best illustrates how her decisions provide a blueprint for resisting the privatization of sexual assault. The scope of the mistake of fact defence was at issue in that case, and in particular, the use of a woman’s sexual history to give an “air of reality” to an accused’s alleged mistaken belief in consent. The defence challenged the Criminal Code’s strict rules around the use of women’s past sexual history as evidence on the basis of s.7 of the Charter. First, L’Heureux-Dubé J.’s judgment recognized that language matters. She thus began by defining her linguistic terrain in a manner respectful of women and attentive to the public nature of the wrong committed. Her dissent eschewed the use of the term “prosecutrix” because sexual assault is no longer a private matter but is rather a crime against the public order that is prosecuted by the Crown. L’Heureux-Dubé J. also rejected the term “alleged victim” because it is over-inclusive and presumes that the woman has nothing to complain of. She settled for the term “complainant” because it was the least infirm term available, but acknowledged that it is also a harsh term.

Justice L’Heureux-Dubé recognized that a woman who has been sexually assaulted but whose assailant has been acquitted by virtue of the honest mistake defence nonetheless has been injured. She refused to adopt the phrase “rape shield law” a short form often used to describe legislation that limits the cross-examination of women as to their sexual histories, on the basis that the term “rape shield” suggests that the sole or primary purpose of such legislation is to protect women from the rigours of cross-examination. Instead, she argued, several equally significant societal interests are served by the exclusion of such evidence, including truth-seeking and public confidence in the criminal justice system.

Second, L’Heureux-Dubé J.’s methodology in her Seaboyer dissent is characterized by attention to the rights of the collectivity, including the rights of women, children, the broader society and of men accused of the crime. She consistently relied upon equality rights as an implicit if not explicit interpretive framework informing the law of sexual assault. Her approach was definitively contextual: her analysis of the constitutional challenge was grounded in the legal history of the provision in question, the social science evidence situating sexual assault as a gendered crime that is rarely reported and whose legal treatment has been rife with discriminatory practices and doctrines, and the distorting effects that sexual history evidence has upon the trial process and a principled search for truth. This judgment thus reflects a move away from reliance upon abstract doctrine, unstated and untested assumptions and beliefs, and “common sense” reasoning in support of the status quo; it towards a broader public law approach that situates law’s response to sexual assault as significant for women’s status in society and holds law accountable for its impact upon the social practice of rape.

We do not argue that all of L’Heureux-Dubé J.’s sexual assault judgments can be forced into a public law, equality-enhancing paradigm; instead we examine those opinions that contribute significantly to resisting the privatization of sexual assault. Such resistance depends on egalitarian fact-finding – the determination and application of the relevant facts- and legal doctrine, both informed by substantive equality. In the first part of this chapter, we examine Justice L’Heureux-Dubé’s influence on the elements of the crime, focusing on the concepts of mens rea and non-consent in the actus reus. In the second part, we examine how her judgments rise to the challenges posed by the constitutional requirement that sexual assaults trials be conducted in a fair and egalitarian manner.

Keywords: Justice Claire L'Heureux Dube, sexual assault judgements, Canadian rape law, reforms, womens equality, common law, new legislation, crime, gender-neutral, witnesses to violent crime, underreporting of rape, sexual assault, R v Seaboyer, section 7 of the Charter