That a Message be sent to the Senate to acquaint Their Honours that the House respectfully disagrees with amendments 1 and 2 made by the Senate to Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, as they are inconsistent with the Bill’s objective of codifying Supreme Court of Canada jurisprudence on a narrow aspect of the law on sexual assault and instead seek to legislate a different, much more complex legal issue, without the benefit of consistent guidance from appellate courts or a broad range of stakeholder perspectives.
Madam Speaker, I am pleased to stand to speak to Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act, and to respond to the amendments from the other place in this regard. It is a particular honour for me to stand to speak to the bill on white ribbon day, which, as we heard, commemorates the massacre that occurred in Montreal 29 years ago today.
As part of my mandate commitments I have been reviewing the criminal justice system with a view to ensuring that it is meeting its objectives and maintaining public safety. My review is also intended to ensure our criminal justice system is fair, relevant, efficient and accessible, that it meets the needs of its victims, respects an accused's right to a fair trial and is better able to respond to the causes and consequences of offending.
These are broad and important objectives, so our government has approached these tasks in phases. In Bill C-39, we removed passages and repealed provisions in the Criminal Code that had been ruled unconstitutional by the Supreme Court of Canada, so that the law as written reflected the law as applied.
In Bill C-46, we significantly modernized Canada's impaired driving laws in order to protect the health and safety of Canadians and to provide law enforcement with the resources they need to effectively detect and prosecute impaired driving.
In Bill C-75, we seek to tackle the delays that are encumbering our courts.
Today, with Bill C-51, we continue to build on our government's commitment to reviewing the criminal justice system and to making all aspects of the criminal law fairer, clearer and more accessible to Canadians. In particular, the bill seeks to modernize the Criminal Code by repealing or amending provisions that courts have found unconstitutional or that raise unavoidable charter risk.
The bill also aims to ensure that offences in the Criminal Code continue to reflect today's society and its values. To that end the bill removes a number of obsolete or redundant criminal offences that no longer have a place in our criminal law.
Further, the bill creates amendments to the Department of Justice Act. Pursuant to these amendments, the Minister of Justice would have a statutory duty for every government bill to table in Parliament a statement that sets out the bill's potential effects on the rights and freedoms guaranteed in the charter. For every one of the bills I have tabled, I have tabled charter statements. These amendments would provide greater openness and transparency about the effects of government legislation on charter rights.
Finally, the bill seeks to clarify and strengthen the law on sexual assault in order to prevent misapplication of the law and to help make the criminal justice system fairer and more compassionate toward complainants in sexual assault matters.
The importance of these reforms cannot be overstated, and I would like to recognize and acknowledge all those who have been subject to sexual assault and gender-based violence. Sexual assault is a serious problem in Canada. It affects communities across the country and across all social and economic barriers, and it remains a significant barrier to women's equality.
Addressing violence against women is an issue of the utmost importance to me and to our government as a whole. We remain deeply committed to ensuring that our criminal justice system is responsive to the needs of sexual assault victims. To that end, we have provided significant funding for judicial education relating to sexual assault law, so that judges are better educated on this crucial area of law.
We have also made millions of dollars available through the victims fund to enhance the criminal justice system's response to sexual violence. These resources support important work such as pilot projects in Ontario, Saskatchewan, Nova Scotia, and Newfoundland and Labrador to provide four free hours of independent legal advice to victims of sexual assault.
It is through efforts like these, as well as those contained in Bill C-51, that we are working to effect a culture shift in our criminal justice system and to foster an environment where sexual assault complainants feel empowered to come forward for justice and support.
We should be proud that Canadian laws around sexual assault are robust and comprehensive, even more so with the proposed steps set out in Bill C-51. However, we must also recognize that more work lies ahead, and we must continue to strive for further improvements. In short, we must continue to work to reduce the incidence of sexual assault in Canada and to ensure more victims feel encouraged to come forward and report their experiences to police.
To that end, Bill C-51 would make important changes to strengthen the law of sexual assault. These changes include creating a new regime governing the admissibility of evidence in the hands of an accused, where the evidence is a complainant's private record.
In addition to the strengthening the law of sexual assault, Bill C-51 would also clarify the law. It would do so by making clear that consent must be affirmatively expressed by words or actively expressed through conduct. This principle codifies the Supreme Court of Canada's 1999 Ewanchuk decision, and makes it explicit that there is no consent unless the complainant said “yes” through her words or her conduct. Passivity is not consent, and “no” does not mean “yes”.
Finally, as introduced, Bill C-51 proposes to clarify one aspect of the law pertaining to consent or capacity to consent to sexual activity by codifying the Supreme Court of Canada's 2011 decision in J.A. In J.A., the Supreme Court held that an unconscious person is not capable of providing consent to sexual activity. Therefore, the bill seeks to amend the Criminal Code to state explicitly that an unconscious person is incapable of consenting, but also to clarify that a person may be incapable of consenting for reasons other than unconsciousness.
To pause for a moment, I would like to express my sincere appreciation to the members of the other place for their very careful study of Bill C-51. While the other place supported most of the bill, it adopted amendments related to the determination of a complainant's incapacity to consent to sexual activity in the context of sexual assault.
By way of background, many stakeholders welcomed Bill C-51's proposed sexual assault reforms after its introduction. Some offered suggestions concerning the elaboration of the Criminal Code consent provisions to reflect J.A. In part, those witnesses argued that the J.A. decision stands for a broader proposition. They noted that the court held that our consent law requires ongoing conscious consent and that partners need to be capable of asking their partner to stop at any point.
In other words, they suggested that the bill should be amended to reflect an additional principle articulated by the Supreme Court in J.A. to the effect that consent must be contemporaneous with the sexual activity in question.
After hearing from a number of witnesses on the question, the Standing Committee on Justice and Human Rights agreed, and amended to clarify that consent must be present at the time the sexual activity in question takes place. Our government agreed with that point, and we were happy to see that the justice committee amended Bill C-51 at that time so it would codify this broader principle in J.A. Doing so was in keeping with the objectives of the bill, including to ensure that the criminal law is clear and reflects the law as applied.
However, some stakeholders offered additional suggestions concerning our proposed codification of the Supreme Court of Canada's decision in J.A. They suggested that the provision that would codify that no consent is obtained if a complainant is unconscious be entirely removed. While the House committee did not amend the legislation to this effect, the other place nonetheless proceeded to adopt amendments that would eliminate this provision.
In its stead, the other place proposed a list of factors to guide the court in determining when a complainant is incapable of consenting.
According to the proposed amendments, complainants are incapable of consenting if they are unable to: one, understand the nature, circumstances, risks and consequences of the sexual activity; two, understand they have the choice to engage in the sexual activity; or three, affirmatively express agreement to the sexual activity in words or active conduct.
I would like to be clear. I agree that courts could benefit from guidance in making determinations on a complainant's incapacity to consent when she or he is conscious. The proposed amendments underscore some very significant issues in the area of consent. I also agree that intoxication, short of unconsciousness, represents challenges in the adjudication of sexual assault cases.
For one, as Bill C-51 specifically recognizes, incapacity applies to a broad range of cases well beyond those in which intoxication is an issue. This is an important conversation that we must continue to have. It is for this reason that I plan to consult with a variety of stakeholders on this issue moving forward to determine whether further action is helpful with respect to our common goals and if so, how this might be effectively accomplished.
In taking the time we need to get this right, we recognize just how complex the law of consent is. There is no clear guidance from the Supreme Court or other appellate courts to which we can turn for an exhaustive definition of what incapacity means. In addition, because Bill C-51 proposes to legislate on a very narrow aspect of the law of consent, more detailed guidance and specific instructions on this further issue are needed from stakeholders, as well as those who would be impacted by the further changes in this area. Without this guidance, the risk of unintended consequences is very real.
Moreover, the amendments made in the other place on this issue, though very laudable in their aim, unfortunately do not assist courts in adjudicating incapacity cases. For one, the amendments focus on concerns that arise in cases where the complainant is conscious but intoxicated. As a result, our government has concerns about the potential impact of the amendments on the law governing incapacity to consent in other types of incapacity cases, including those where incapacity is due to a more stable state, such as individuals living with cognitive impairment.
I also wish to note a couple of points concerning the way the courts currently treat these issues.
First, appellate decisions show that a complainant's ability to understand that he or she has a choice to engage in sexual activity or not is determinative of incapacity. However, it is not clear from the existing case law whether the other elements proposed in the amendments are determinative of incapacity or merely factors to be taken into consideration, supported by circumstantial evidence in assessing capacity.
For example, in overturning the Al-Rawi trial decision earlier this year, the Nova Scotia Court of Appeal rejected incapacity to communicate as a determinative test for incapacity to consent. As a result, courts may well have difficulty interpreting the proposed provision.
Furthermore, the amendments' proposed factors focus solely on elements that are internal to the complainant and may lead some courts to overlook relevant circumstantial evidence in the determination of incapacity. Though the complainant's subjective state is important, there is a risk that the amendments will lead courts to overlook other evidence that bears on the complainant's capacity. This was also an error of the trial court in this case, as noted by the Nova Scotia Court of Appeal.
The amendments adopted in the other place would also prohibit drawing inferences about the complainant's capacity to consent to the sexual activity at issue from evidence of capacity to consent at the time of another sexual activity. These amendments simply restate a well-settled principle of law, which is already proposed for codification in Bill C-51. That principle is that consent must be contemporaneous with the sexual activity in question. This principle applies equally to capacity to consent. Each allegation of sexual assault must be considered on its own merits. The law is clear in this regard and the bill already proposes to codify it.
In short, the proposed changes are well-intentioned, but will not achieve their aim and, in fact, carry great risk of unintended consequences in what is a difficult yet critical area of law. Sexual assault law is too important to leave any room for error. If the definition of incapacity is to be provided, it is imperative we get it right.
If we are to alter this complex area of law in such a significant way, we must be informed by adequate analysis and debate in both chambers as well as by a broad range of stakeholder perspectives, including prosecutors from whom neither of the committees in this place or the other had the opportunity to hear. In addition, we need to consult with the defence bar, police associations and victims groups.
It is our obligation to ensure that the hundreds of sexual assault cases that are prosecuted every day in the country are not negatively affected by an amendment that has yet to be subject to full discussion and deliberation.
As I mentioned before, in order for these issues to receive the treatment they deserve and require, I will and have committed to study the issue of incapacity, with a view to striking the right balance on this important matter. I am grateful to the witnesses who appeared before the Senate committee for suggesting that this issue be the subject of further study. I look forward to consulting with them further as part of my future review.
Our government continues to work toward fostering an environment where survivors of sexual assault feel empowered to come forward and trust the system they turn to for justice and support. Consulting on and studying the issue of capacity to consent while conscious will form an integral part of that effort.
I am incredibly proud of our government's efforts to date within the area of sexual assault law. I am confident that our continued efforts will help to ensure that all victims are treated with compassion, dignity and the respect they deserve.
Bill C-51 is an important part of our work on this issue. It is also consistent with our broader efforts to ensure that our criminal law is responsible to the needs of all Canadians and that it reflects our values. Our government will continue to find ways to improve upon our criminal justice system so it keeps Canadians safe, respects victims, responds to the needs of vulnerable populations and addresses the underlying social causes of crime. I am proud of the role Bill C-51 will play in helping us to achieve these goals. I look forward to the bill's expeditious passage to ensure these important reforms are enacted without further delay.