Foreign Affairs committee  Thank you. That's an excellent question. I think what you're pointing to is a conceptual problem, in that you don't understand how someone can purchase something with the intent to exploit. Essentially, “obtained for consideration” is another way—a technical legal way in contract law—of saying “purchase”.

Foreign Affairs committee  I'm not sure if it's better. Defining informed consent in the Criminal Code for the purposes of one set of provisions and not defining it for others could also create statutory interpretation problems. That's one thing we want to avoid. There were numerous reasons informed consent wasn't defined for the purposes of the medical assistance in dying provisions.

Foreign Affairs committee  Those are excellent questions. When you define the same term in one place and for one purpose and not for another, and then the courts interpret that, they may assume that Parliament intended it to mean two different things in two different contexts. They may be confused as to what Parliament intended, and it can create some interpretation problems.

Justice committee  I have to agree that it does say something very different from what section 278.1, which defines “record”, does. That section refers to a reasonable expectation of privacy and to privacy statutes as well, so you're looking at a very particular type of information. I also agree that it might be quite difficult to ascertain what the complainant's subjective perspective is, particularly since she or he would not be a compellable witness at the voir dire.

Justice committee  I want to say that I speak French but I'm not francophone, so I'm not an authority on the intricacies of the French language. When we sit in a drafting room and we draft, we try to achieve the clearest way of expressing the same thing in both languages. Sometimes that means using different words in each language because of what the words mean, respectively.

Justice committee  Regarding your second point, I agree with you. I'm concerned that this doesn't necessarily speak to the capacity issue that proposed paragraph 153.1(3)(b) speaks to. That raises a number of different points about your first question, which is that the law on when a person is so incapacitated that no consent is obtained in law is complex.

Justice committee  This amendment codifies the legal principle that the defence of honest but mistaken belief in consent is not available if there is no evidence that a complainant has positively expressed agreement to the sexual activity, which can be done through words or conduct. The principle is clearly articulated in Supreme Court of Canada jurisprudence, which informed the drafting of this amendment.

Status of Women committee  We can follow up with Statistics Canada.

Status of Women committee  There's no doubt that the attrition rate is significant for sexual assault cases, and I assume that is what you're getting at, but I would prefer to defer to Statistics Canada, because they're the people we turn to when we look at conviction rates. I imagine that my colleague has their deck here and is looking for what they provided to you last week.

Status of Women committee  Thank you for that question. As my colleague has indicated, we are responsible for the criminal law and we know what the platform commitments have been in terms of this government wanting to ensure that the criminal law framework is robust when it comes to dealing with domestic violence and sexual assaults.

Status of Women committee  I'll make just a quick comment on the new offence that my colleague referenced, section 162.1, the non-consensual distribution of intimate images offence. That is a very useful tool in the sexting context in particular. We heard from prosecutors and investigators that the only tool they had to address that kind of behaviour was the child pornography offences related to images of youth under the age of 18.

Justice committee  There is the personal use exception that exists as a result of Sharpe. That's there to protect young people or anyone who takes photos or videos of consensually engaged in and legal sexual activity. There's that—

Justice committee  —protection there as well.

Justice committee  Mr. Chair, just to point it out initially, an offender who is under the age of 18 would be covered by the YCJA, so the mandatory minimum penalties wouldn't apply to—

Justice committee  —such an offender. You mentioned “21”, so I understand that. There are other ways of addressing it through prosecutorial discretion. I would turn the committee's attention to the new offence of non-consensual distribution of intimate images, which will come into force in March of this year.