The law of sexual assault has undergone enormous change in the 30 years since the Charter came into effect. In this paper, I examine the extent to which the Charter is responsible for this dramatic transformation. I argue that the Charter has been instrumental in modernizing the law of sexual assault, in part through legal challenges brought by men accused of sexual offences and in part through its use by equality-seeking groups as a tool in law reform efforts that took place during the 1990s. These two mechanisms have brought about changes to the Criminal Code provisions dealing with sexual assault which have created a framework for prosecuting sexual offences that has the potential to vindicate women’s rights to sexual autonomy, dignity, equality and privacy. I also argue, however, that the potential of this Charter-influenced sexual assault legislation is not being realized. My argument is that the promise of the law is being thwarted through the operation of deeply engrained assumptions and belief structures about women and about sexual assault. These belief structures inform the application of the sexual assault provisions the mselves, but they also inform evidentiary rulings that are made even before the court gets to the application of the sexual assault provisions. These evidentiary rulings have a profound impact on the success of sexual assault prosecutions, since they control the material the trier of fact is entitled to consider in determining whether a sexual assault occurred. Using examples of evidentiary rulings made in two Supreme Court of Canada sexual assault cases, I attempt to show how these deeply embedded assumptions erode the promise of the Charter-influenced law reforms by injecting problematic views into the reasoning process.
"The Impact of the Charter on the Law of Sexual Assault: Plus Ça Change, Plus C’est La Même Chose."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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