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Minister of Public Safety Vic Toews, outside a Conservative Party caucus meeting on Parliament Hill, June 16, 2010.

Adrian Wyld/The Canadian Press

A senior cabinet minister's suggestion to restore 'rape' as a distinct and separate crime in Canada's Criminal Code appears to have been abandoned.

Public Safety Minister Vic Toews said earlier this year that the 1983 replacement of 'rape' in the code with the broader term 'sexual assault' created a "general basket description that causes all kinds of problems."

Mr. Toews told a Senate committee that the change was "perhaps the biggest mistake in criminal law that the Parliament of Canada has ever made."

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But documents obtained by The Canadian Press under the Access to Information Act indicate the minister's suggestion died a quick death in the corridors of government.

The idea went no further at Public Safety, but was punted to Justice Canada, the lead department for proposed changes to the Criminal Code.

And Catherine Kane, who's in charge of the criminal law policy section at Justice, jumped to the defence of the current law, internal documents show.

"We have several offences that cover the conduct previously captured by the very narrow and impossible to convict on charge of rape," she wrote in a late-night email on May 11, the same day Toews made controversial public comments on the issue.

"And we have several offences to cover the equally harmful sexual offences that fell short of the offence of rape."

Ms. Kane, senior general counsel, co-authored briefing material for Justice Minister Rob Nicholson two days later that referred derisively to the "old, antiquated and narrow offence of rape."

"The replacement of the antiquated rape offence by the current sexual assault offences reflects the reality that the sexual integrity of any and every victim can be violated by any form of non-consensual sexual activity."

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Ms. Kane noted that among other problems with the old law, a man could never be convicted of rape against his wife.

"Prior to January 1983, the old offence of 'rape' could only be committed by a man upon a woman who was not his wife and required sexual intercourse and penetration."

The revised sexual assault law applies equally to men and women, and recognizes gradations of severity.

"The repeal of the rape offence was also accompanied by significant criminal law reforms to do away with outdated rules, myths and stereotypes," Ms. Kane wrote in her advice to the justice minister.

A spokeswoman for Mr. Nicholson confirmed in an email that Toews' proposal has gone no further.

"The minister (of justice) is always open to hearing suggestions on ways to improve the justice system," Pamela Stephens said.

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"The government currently has an ambitious justice agenda and we are committed to pursuing it. However, in regards to your question (about rape), there is nothing currently in the works."

Mr. Toews' comments were sparked by concerns about the Sexual Offender Information Registration Act, a registry of convicted pedophiles and others, and restrictions on the availability of pardons. The minister said he was concerned that minor sexual offences were being improperly lumped in with serious sexual assaults.

For example, the Tory government decided its proposed legislation to ban sex offenders from applying for pardons was too broad because some convictions for lesser offences, such as sexual touching, might be deserving of a pardon.

Accordingly, the proposed amendments were narrowed to apply only to those who commit sex crimes against children.

Mr. Toews' recent musings raised alarms among women's groups, who had fought hard in the early 1980s to substitute the legally unworkable 'rape' offence, which attached stigma to victims, with the more flexible 'sexual assault' offences.

The revised law sorts sexual assault into three tiers, with tougher penalties for the more serious offences.

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The changes were intended to encourage more victims of sexual violence to come forward, but women's advocates say the legal system is still stacked against them, with only about six per cent of sexual assaults even reported to police.

"Distinguishing rape from other forms of sexual assault erroneously suggests that some forms of sexual assault are violent while some forms of sexual assault are 'minor' and non-violent," Nicole Pietsch, head of the Ontario Coalition of Rape Crisis Centres, wrote to Mr. Toews on May 18, denouncing the proposal.

In an interview, Ms. Pietsch welcomed word that Mr. Toews' suggestion is getting no support inside the Justice Department.

"There would be a lot of backlash if this, in fact, started to move forward," she said.

The 'rape' trial balloon is not the first time Mr. Toews has proposed a controversial legal measure that was quickly abandoned by government.

Critics charged his proposal would have meant jail time for those between 10 and 12-years-old, but a spokesman for Mr. Toews insisted Sunday that was never the intent and the minister was interested in seeing measures such as mandatory counselling.

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The Justice Department later said there were no such plans for a Criminal Code amendment.

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