Bill C-51 (Historical)

An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act

This enactment amends the Criminal Code to amend, remove or repeal passages and provisions that have been ruled unconstitutional or that raise risks with regard to the Canadian Charter of Rights and Freedoms, as well as passages and provisions that are obsolete, redundant or that no longer have a place in criminal law. It also modifies certain provisions of the Code relating to sexual assault in order to clarify their application and to provide a procedure applicable to the admissibility and use of a complainant’s record when in the possession of the accused.
This enactment also amends the Department of Justice Act to require that the Minister of Justice cause to be tabled, for every government Bill introduced in either House of Parliament, a statement of the Bill’s potential effects on the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms.
Finally, it makes consequential amendments to the Criminal Records Act.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you for that clarification.

There is one other area on which I wish to seek clarification. You made reference to the defence of mistaken belief. It was suggested yesterday by one of the witnesses—I believe it was Ms. Lee—that based upon the current wording in Bill C-51, that defence would effectively be eliminated both in terms of mistaken belief on the basis of fact and the law. I believe that the issue comes with subparagraph 273.2(3)(a)(iii), “any circumstance in which no consent is obtained including those referred to”, etc.

Do you agree with her analysis, that unless that wording is changed, there would be the risk of at least creating a lot of confusion about whether that defence in the context of mistaken belief would be an available defence?

[Dr. Emma Cunliffe, Associate Professor, Peter A. Allard School of Law, University of British Columbia, As an Individual]

Thank you for inviting me to speak to this honourable committee today and particularly for returning at the end of a long day to hear us speak.

It may provide a little context for my remarks if I begin by explaining that my academic research focuses on factual reasoning and the evidentiary rules in criminal trials, so I have a particular interest in factual reasoning in sexual assault cases. For that reason, I'll focus on the procedural dimensions of the proposed changes in Bill C-51, in particular the proposed changes to sections 276 and 278.

The three specific features of the bill that I will address are the clarification in respect of sexual activity that Professor Benedet touched on; the proposal to give sexual assault complainants standing in respect of procedural applications that bear upon their charter rights under section 278; and the imposition of procedural safeguards before an accused person may introduce records in which the complainant has a privacy interest under section 278.

While preparing for today, I reviewed the submission prepared by the Women's Legal Education and Action Fund and that prepared by the Criminal Lawyers' Association. I endorse the submission made by LEAF and the recommendations made within that submission, including in respect of the well-intended, but as Professor Benedet has explained, mis-drafted codification of principles regarding capacity to consent, intoxication, and unconsciousness. I would agree with Professor Benedet in that respect. I won't expand further on these matters at this time, but would be pleased to speak further to them in question time if the honourable members of this committee wish me to do so.

I'll now turn to those amendments that relate more to evidence and procedure. In order to clarify the purpose and the likely operation of these amendments, I'd like to begin by providing you with a brief review of the constitutional principles that have been laid out by the Supreme Court of Canada in respect to sexual assault trials.

The right of an accused person to make full answer in defence is fundamental to Canadian constitutionalism and the rule of law. Like all rights and freedoms, this right has limits. Some of these limits are inherent to the nature of the trial process. For example, defence counsel must have a good faith basis for questions asked on cross-examination. Other limits arise from the relationship between the right to make full answer in defence and other constitutional guarantees, such as the right to equality, privacy, dignity, and security of the person.

In the 1999 Supreme Court decision in R. v. Mills, Chief Justice McLachlin and Justice Iacobucci held on behalf of the majority that a quality consent inform the contextual circumstances in which the rights of full answer in defence and privacy will come into play. A direct quote from the judgment is “the right to make full answer and defence does not include the right to information that would only distort the truth-seeking goal of the trial process.”

In these reasons, the court drew an explicit link between a complainant's charter rights and the truth-seeking function that is the ultimate purpose of a criminal trial. Similarly, the Supreme Court has emphasized that the sexual assault trial should not be permitted to become an ordeal for the complainant. For example, in R. v. Osolin, Justice Cory held on behalf on the majority of the court that a complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system.

The challenge that is therefore presented to both Parliament and the courts is how to fully respect the importance of both the accused person's rights and those of the complainant in a sexual assault trial. A proper delineation of the boundaries of both sets of rights is an integral step towards meeting this challenge. The submission prepared by the Criminal Lawyers' Association states that sexual assault complainants should be protected against disrespect, unfair treatment, myth-based interrogation, and poorly founded, overly intrusive production orders. I agree.

However, the Criminal Lawyers' Association does not acknowledge that sexual assault complainants hold constitutional rights that are potentially impacted by the manner in which sexual assault trials are conducted. It also fails to consider the Supreme Court of Canada's explicit recognition that these rights help to define the proper scope of an accused's rights within the sexual assault trial and vice versa.

Existing statutory rules, including section 276 regarding sexual history evidence, and section 278 regarding third party records, strike a constitutional balance using three principles that have received constitutional endorsement from the Supreme Court of Canada.

The first of these principles is that some forms of reasoning, often referred to as the twin myths, have been characterized by the Supreme Court as simply impermissible. Section 276.1 in its present form, and as it will remain in Bill C-51, absolutely prohibits the admission of sexual history evidence to support that kind of reasoning.

Second, all evidence is subject to a basic requirement of relevance. This principle is reflected in existing paragraph 276(2)(b), which will remain unchanged, and in subsection 278.3(3) which is also unchanged by Bill C-51. I endorse LEAF's recommendation that Bill C-51 be amended to adopt the judicial definition of “likely relevant” provided by the Ontario Court of Appeal in Regina v. Batte. More information on this point is provided at pages 12 to 13 of LEAF's submission.

Third, in order to be admissible, an accused person's evidence must have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This principle is set out, for example, in paragraph 276(2)(c) of the present code. While the numbering will change slightly as a result of Bill C-51, the principle will not. A similar weighing exercise is required in respect of the disclosure of third party records.

Let's turn, then, to Bill C-51. The first of the things it will do with respect to this balancing between the complainant's rights and the accused's rights is to clarify the definition of sexual activity as extending to communications. In circumstances in which an accused person wishes to introduce evidence of sexual communications by the complainant, the trial judge will consider the same three principles as already exist and are already constitutional. Is the evidence introduced solely to perpetuate prohibited myths and stereotypes? If so, it's inadmissible. Is the evidence relevant to the material questions of whether the complainant subjectively consented to the sexual activity that took place at the time of the occurrence of the activity and whether the accused person believed that the complainant was consenting? Does the evidence have significant probative value that's not substantially outweighed by the danger of prejudice to the administration of justice?

In considering these questions, a judge would address the accused person's charter rights and those of the complainant, as well as the extent to which the evidence would advance the truth-seeking function of the trial and other important social purposes. It bears noting that in 1992 when section 276 was first drafted, social media was basically non-existent. The text messages and emails, including picture messages which are widely used today essentially didn't exist in their present form. The cultural embrace of digital technologies for personal communication has opened new doors to the operations of myths and stereotypes that courts and Parliament have tried valiantly to exclude from the justice system. The proposed amendment to section 276 represents a sensible and incremental response to these social changes, and a clarification in a divided body of case law. It will not result in the exclusion of valuable evidence, but it will ensure that judges are attentive to the risks of impermissible reasoning.

I'll now turn briefly to proposed subsections 278.94(2) and (3), which provide complainants the right to legal representation at admissibility hearings regarding her sexual history or records. In an article that I published in the Supreme Court Law Review in 2016, I documented some of the difficulties presently experienced by complainants who seek to assert their charter rights without standing or legal representation. Complainants' charter rights are pivotal to these admissibility hearings. Indeed, these are the very reason why the hearings are being held. Giving them standing and ensuring proper funding to ensure that they have legal representation is the single most effective way to ensure that sexual assault complainants are accorded the equal benefit and protection of the law at this important trial stage.

Finally, I would like to touch on the extension of section 278 records to records that are in the possession of the accused. The Department of Justice backgrounder to Bill C-51 states that proposed subsection 278.92(1) is intended to apply to the—quote—“complainant's private records” that are in the accused person's possession. The language actually used in subsection 278.92(1) as proposed is that a record includes, relevantly, “any form of record that contains personal information for which there is a reasonable expectation of privacy”. The Criminal Lawyers' Association raises the concern that the obligation is overbroad, and provides examples, at page 4 of its submission, of circumstances in which the plain language of the provision as drafted would appear to apply to records that do not engage the concern about a complainant's records.

Based on the Department of Justice backgrounder, I believe the intention is to engage the section 278 process when the accused has possession of records in which the complainant or witness has a privacy interest, but not otherwise. For this reason, I would recommend that this honourable committee consider an amendment to proposed subsection 278.92(1) to read “except in accordance with this section, no record in which a complainant or a witness that is in the possession or control of the accused”, etc.

To clarify that, the salient link to engaging the process is the link between the record and the complainant's privacy interests. This would sidestep the concern about overbreadth that the Criminal Lawyers' Association has raised, while securing the goal the Department of Justice has laid out.

Thank you for your attention.

[Professor Janine Benedet, Professor of Law, Peter A. Allard School of Law, University of British Columbia, As an Individual]

Thank you very much.

As the chair indicated, I am a law professor at UBC. My research and my teaching focus on legal responses to sexual violence against women, including sexual assault, sexual harassment, prostitution, and pornography.

I'm here today testifying in general support of the provisions of Bill C-51 as they relate to amendments to the Criminal Code in the area of sexual assault while recognizing that the barriers women face in the area of sexual assault are much deeper and more systemic than what this suite of amendments touches.

In the few minutes I have for opening remarks, I'm going to focus in particular on the proposed amendments that relate to the definition of consent, and the defence of mistaken belief in consent, and then just conclude with a couple of words in support of the proposed changes to the definition of sexual activity for the purpose of section 276 of the Criminal Code.

I'll start with proposed paragraph 273.1(2)(a.1). I would just recognize that I think we're 17 years overdue for renumbering of the Criminal Code, and these amendments remind me of that.

This is the proposed change to the Criminal Code that would add as an item on the list of factors in which no consent is obtained the fact that the complainant is unconscious.

This is the one proposed change that raises concerns for me. I understand it as an attempt to codify the Supreme Court of Canada's decision in J.A. I think that's an important decision and worth reflecting in the Criminal Code, but I am worried that the proposed amendment reduces that decision to being about whether you can consent in advance to sexual activity when you are unconscious, a term that in and of itself is perhaps contested and not entirely settled in its meaning.

The decision in J.A. actually goes further than that. What it says is that you cannot give advance consent to sexual activity that takes place when you are incapable of consenting, and that's a broader term than just unconsciousness.

Now, I recognize that you might say that incapacity is still there, but I actually think it would be better, rather than inserting paragraph 273.1(2)(a.1) into that list, to simply amend paragraph 273.1(2)(b) to say no consent is obtained for the purposes of sections 271, 272, and 273, where the complainant at the time the sexual activity takes place is incapable of consenting.

That actually gets at the crux of J.A., the point that there can be no advance consent to sexual activity that takes place when an individual is incapable. What matters is their capacity at the time of the sexual touching. That would codify J.A., and it would also benefit perhaps a broader range of sexual assault complainants than what's being contemplated by the existing amendment.

In particular, with regard to individuals with dementia, we've seen some interest in the concept of advanced directives vis-à-vis the idea that there could be advance consent by someone in the early stages of Alzheimer's disease to continue to have sexual contact with a spouse even when they no longer recognize them. That's not someone who's unconscious, but it is someone who's very vulnerable and clearly incapable of consenting to sexual activity.

It would also benefit women with intellectual disabilities more generally by making it easier to think about incapacity in a situational way. Where we are now is that judges are very reluctant to find complainants with intellectual disabilities incapable of consenting, because they believe doing so disqualifies them from all sexual activity for all time. Again, focusing the incapacity inquiry on the time that the sexual activity takes place benefits not only those women who are unconscious or otherwise incapacitated from domestic violence or from drugs and alcohol but also women with intellectual disabilities.

It seems to me there might be a clearer and better way to reflect the very important decision of the Supreme Court of Canada in J.A.

The bill also proposes some changes to the definition of mistaken belief in consent, and in particular some clarification that the accused cannot rely on any of the factors that would vitiate consent to found a mistaken belief. That again is codification of the case law, a useful clarification that makes it clear that there is a difference between a mistake of law, which does not exonerate—if you believe that consent is something other than what the law requires, you can't rely on the defence—and the defence of mistake of fact, which is much narrower and requires an honest belief, in the circumstances known to you at the time—not the result of recklessness, not the result of wilful blindness, and not the result of intoxication—that the complainant was consenting and, of course, that you took reasonable steps to ascertain her consent.

Having said that, I think it is worth pointing out that in contemporary sexual assault trials it is rare to even get to this defence. We are still in a situation in which the Criminal Code does not define non-consent, and that's actually what the crown has to prove. Most often, cases fail because the credibility of the complainant's claim as to her state of mind—that she did not want the sexual touching to take place—is undermined, and it is most often undermined by long lists of missed opportunities or what the complainant ought to have done or should have done and didn't do.

That remains a significant barrier for sexual assault complainants, which isn't addressed by Bill C-51. This means that we rarely get to the question of the accused's belief in consent, but I think that, when we do get there, these amendments would certainly be a valuable addition to the Criminal Code.

The last point I want to mention relates to the amendments that touch on the issue of sexual history evidence. In particular, I want to express my strong support for expanding or clarifying the definition of sexual activity to include communications, photographs, and other kinds of evidence that may not relate to actual physical sexual contact between the complainant and the accused or third parties.

That's particularly important because the case law in that area is currently divided, with some judges treating that kind of evidence as falling under section 276, and others thinking that it falls wholly outside, and is therefore simply inadmissible. That would actually be an important and useful clarification, as is the following proviso, which is that, if the evidence is being adduced to support one of the twin myths, it is simply not admissible and we don't go on to a balancing exercise. Those are both areas in which I see courts struggling to apply these provisions as consistent with their original intent, and they remain important clarifications and additions to the sexual history provisions in that area.

That's what I would like to draw to the committee's attention at the outset. I welcome your questions.

[The Chair, Liberal, Anthony Housefather]

It is my pleasure to call this meeting of the Standing Committee on Justice and Human Rights back to order for our third panel of the day dealing with Bill C-51.

It is a pleasure to welcome from the University of British Columbia both Ms. Janine Benedet, who is a professor of law, and Ms. Emma Cunliffe, who is an associate professor.

Welcome, Ms. Benedet and Ms. Cunliffe. It's a pleasure to have you both here with us. Thank you for coming from so far away.

We will start with Ms. Benedet.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I want to thank this panel for helping us go forward with our study of Bill C-51. I wish you all a great rest of the day.

We are recessed until after the votes, when we'll resume with our third panel.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Chair.

Thank you to those witnesses I've seen at status of women. We actually studied violence against young women and girls as well as the private member's bill on judicial training. Sadly, much of the testimony we've had today hasn't been to do with Bill C-51; it's actually been on the same issues we heard about.

One of the challenges, of course, is that we have federal and provincial judiciary courts, so where is the money coming from? Is it the provincial or the federal government? I hear what you're saying. One of the most compelling witnesses we had represented crown attorneys, who said that when survivors of gender-based violence come forward, they think the crown attorney is representing them and not the state, so they feel they have a representative in court, but then when they get there, they're let down when they find that that's not their representative.

When you were talking about the need for someone to be with them, I completely agree with you. I don't think that's something covered in this bill, though.

Do you think the right to legal representation during the rape shield provisions, that part of it, is a good thing?

[Karen Segal, Staff Lawyer, Women's Legal Education and Action Fund]

My name's Karen Segal. I'm counsel at LEAF, the Women's Legal Education and Action Fund. LEAF is an equality rights organization that, since 1985, has been involved in advancing women's substantive equality rights. We do that particularly through legal advocacy and litigation. In particular, we have played a significant role in law reform initiatives relevant to sexual assault, and have participated in nearly all significant changes in this area.

Broadly speaking, LEAF is supportive of the changes proposed in Bill C-51. However, we have serious concerns about the additions of proposed paragraphs 153.1(3)(a.1) and 273.1(2)(a.1). I'll first review our concerns about those provisions, and then briefly identify the reforms that we support.

Our fundamental concern with Bill C-51 is the proposed codification of unconsciousness as a bright line defending when someone is not capable of providing consent to sexual contact. The provision adds nothing new to the law of sexual assault, which has long held that unconscious women cannot consent to sexual contact, and risks opening the law of incapacity to being defined by unconsciousness as opposed to by an individual's ability to provide informed and voluntary consent.

As I said, courts have had no difficulty dealing with the long-standing rule that unconscious people cannot consent, and we're not finding that courts find that unconscious women have been capable of providing consent. Where courts have real difficulty is in dealing with complainants who are conscious but whose ability to give meaningful consent is severely impaired by alcohol or drugs.

The law on incapacity requires women to be capable of providing informed consent, which has been defined to mean understanding the sexual nature of the act, and of realizing that he or she may choose to decline participation. However, in practice, courts have struggled with giving meaning to this threshold. Judges have routinely required external indication of unconsciousness or sleep in order to conclude that the complainant was not capable of consenting. We've also seen judges rely on a complainant's ability to perform basic tasks, such as remembering the password to his or her cellphone, as evidence of the capability of providing informed consent to sexual contact. We are not seeing courts engage in a nuanced analysis of the complainant's ability to provide informed consent.

Further, courts have a tendency, because of this focus on unconsciousness, to conflate capacity to consent with consent itself. A glaring example of this is the Nova Scotia case R. v. Al-Rawi, which is currently under appeal, in which the accused taxi driver was acquitted despite the fact that the complainant was found unconscious in the back of the accused's taxi cab in a remote area of town, partially naked, with the accused crouched between her legs, holding the complainant's soaked underwear in his hands. The judge found that he could not conclusively say that the complainant was unconscious at the time the sexual assault began, and therefore, he had reasonable doubt as to her capacity to consent, and whether or not she in fact consented. In other words, she may have been conscious; therefore, she may have been capable; therefore, she may have consented. LEAF is very concerned about this trend in the case law, as it emphatically fails to protect women who are sexually assaulted while conscious but otherwise intoxicated and incapable of providing consent.

Our view is that the courts' excessive focus on unconsciousness as the defining point at which someone becomes unable to consent improperly distorts the analysis, and it focuses judges on consciousness versus unconsciousness as opposed to whether the complainant was able to and in fact did give voluntary, ongoing consent to sexual contact. Our fear is that these changes perpetuate this problem.

First, on the codification of unconsciousness, we believe defence counsel will rely on that to argue that unconsciousness is now the legal standard at which a woman becomes unable to provide consent. Given that codifying unconsciousness adds nothing new to the law, we fear that this amendment will be interpreted as clarifying the existing uncertainty in the law of incapacity that I've just identified. At the very least we anticipate these arguments will be made, which means the crown will have to re-litigate capacity to consent, at the expense of the lives of individual complainants whose lives are affected by these arguments and by these trials.

Second, even if unconsciousness is not officially interpreted as the legal bright line at which a person becomes incapable of consenting, we fear that this provision will perpetuate the excessive focus on consciousness as the point of incapacity, as opposed to encouraging judges to engage in a nuanced assessment of capacity versus incapacity, informed by the principles of understanding the nature of the act, understanding the risks associated with the act, and understanding the right to decline participation.

We recognize that the paragraph (b) provisions of these two subsections keep open the possibility that incapacity will be found for reasons other than unconsciousness, but this doesn't allay our concern. The new provisions will still direct judicial attention to unconsciousness as at least a bright line at which a person becomes incapable of consenting, and they do nothing to assist judges or decision-makers in assessing incapacity short of unconsciousness.

We propose that, rather than codifying and potentially restricting the definition of incapacity to consent, Parliament use this opportunity to address the problem that actually exists in the case law and to clarify in what circumstances a person is able to provide consent. We suggest codifying a standard that clearly articulates that a person cannot consent unless he or she is capable of understanding the sexual nature of the act and risks associated with the act, capable of realizing that he or she may choose to decline participation, and capable of communicating voluntary consent to the act. This analysis will go much farther to protect women from sexual assault than will an amendment that focuses on unconsciousness as a legal test for incapacity.

That being said, we do support many of the changes that are being made. For more detail on that, we direct you to our submissions which flesh out our arguments on that point. I'll note specifically that we support limiting the admissibility of records in which the complainant has a reasonable interest of privacy, regardless of who possesses those records. The purpose of the third party records provisions is to advance women's equality and right to privacy in the course of a sexual assault trial and to provide greater fairness to the complainant, which in turn encourages the reporting of sexual offences. We submit to you that those goals apply with equal urgency to any records in which the complainant has an expectation of privacy.

We also support codifying the law, which we would say already exists, that sexual communications are sexual history evidence. Sexual communication is just as susceptible to discriminatory logic, myths, and stereotypes as is sexual behaviour. An example is the fact of someone sending a sexual text message. We fear that it will be argued that it means that woman is the kind of person who would consent to sex, which is exactly the kind of logic that the rape shield laws were created to prevent. So, we support Parliament's movement to bolster the rape shield provisions and protect women from discriminatory myths and stereotypes.

We also agree with the provision providing complainants with right to standing in these hearings. Our experience with third party records hearings is that complainants with legal representation have a much more empowered experience, and it increases fairness to the complainant to have representation. We agree that complainants facing disclosure of their sexual history should be entitled to the same protection.

To summarize, we broadly support the changes. We encourage you to remove the codification of unconsciousness as a standard at which someone becomes unable to consent, and to properly clarify what is required for someone to have capacity to consent.

For a more detailed analysis of these provisions, we direct you to our submissions.

Thank you.

[Amanda Dale]

We mentioned accountability mechanisms at the beginning. We believe that in order to realize the potential of Bill C-51, the government must put in place some regularized provisions to ensure that the amendments have their intended effect. The clinic recommends that the government establish a community consultation process with front-line agencies and survivors to monitor the rollout. The clinic suggests looking to the Philadelphia model which was used in policing for an example of this kind of engagement. The original model took place only in police departments. However, as there are many other actors beyond the judiciary and the police who will be part of the process of this being successful, we believe it should be rolled out more broadly.

In addition to sustainable funding for counsel, the clinic also proposes to look at the program Deepa mentioned, independent legal advice for sexual assault complainants, which the clinic currently runs. Additionally, we have an example in the family courts of a family court support worker. This is a program that we run also with the support of the provincial Ministry of the Attorney General. It's a non-lawyer advocate who assists a woman in navigating the system.

Our experience in the last five years has demonstrated that the court accompaniment and participation of advocates for women through the justice system increases their knowledge of the justice system, enhances their participation and decision-making through the process, assists them in realistic goal-setting, and moreover, changes their overall experience of the justice system as well as that of the other justice players who experience the expertise of a non-legal representative in the court system.

[Deepa Mattoo, Director, Legal Services, Barbra Schlifer Commemorative Clinic]

The first point, as Amanda said, is the trauma-informed law and education. We hear constantly from sexual assault complainants who interact with the justice system that they are re-traumatized throughout the process. When speaking with the police, they are not taken seriously, or police questioning insinuates or blatantly blames the victims. If their cases make it to trial, they do not have their own counsel. They are met with a hostile cross-examination by the defence counsel, and in some recent horrific examples, they are stereotyped and misunderstood by the judges.

The clinic submits that Bill C-51 should establish trauma-informed education around sexual assault at all levels of the justice system, trauma-informed education that instructs actors in the justice system to recognize and be sensitive to the impacts of violence and the symptoms of trauma. This is required for them to understand common manifestations of trauma and the emotional response of survivors to people in positions of power, authority figures, and others, moreover to recognize their own expectations with respect to the functioning of the legal clients, and how to problem solve when a client cannot engage with the system as they wish or expect. This is even more important in the wake of the fact that Canadian law has already recognized this education is crucial to the justice system.

The second point is access to counsel and the need for funding and resources. It is worth noting that sexual assault is still widely under-reported across Canada. The 2004 general social survey on victimization concluded that only 8% of sexual assaults were reported to the police. Some of the factors listed in our previous submission of course contribute to this.

Another experience we hear about from sexual assault complainants is that once they have come forward and disclosed their story to the police, they are left alone to navigate the complexities of the legal system on their own. They're not updated regularly on their case. They're not provided with information on their case, or if information is provided, it's too little. There is limited opportunity for them to participate meaningfully in the process, and when they do, they are not provided with any direction or advice.

The clinic submits that government-funded legal representation should be provided to the complainants throughout the justice system process, and not only, as suggested, for the rape shield proceedings. The clinic is the only community agency site for independent legal advice for sexual assault survivors. It's a pilot project from the Ministry of the Attorney General in Ontario. The clinic has seen a 40% increase in the overall support costs since the beginning of the project last year. We have in total served over 200 clients through this project in the last 15 months, with the possibility of only one full-time equivalent position.

[Amanda Dale, Executive Director, Barbra Schlifer Commemorative Clinic]

Wonderful. Thank you.

Deepa and I are going to divide up our comments, so bear with us.

Honourable chair and committee members, we're very honoured to be able to speak with you today about the proposed legislation dealing with sexual assault law, specifically clause 10 and clauses 19 to 25 of Bill C-51.

The clinic's submission will focus on three broad areas.

First, it will focus on the need for the implementation of trauma-informed training for all actors in the justice system who interact with sexual assault complainants.

Second, based on our experience of delivering such a program in Ontario, we recommend that sexual assault complainants be provided with government-funded legal representation. This will especially be true for the new sexual history applications that are contemplated in the legislation, but also from the time of first disclosure. Federal funding for non-compellable community support from the federal government means better support for provincial legal aid programs and community-based centres.

Finally, the clinic asserts that there must be some form of accountability for the new mechanisms proposed that is based on the expertise of the community advocates who work with the women who we are hoping will come forward.

As a brief background to the clinic, for those of you who don't know, the Barbra Schlifer Commemorative Clinic was named for a promising young lawyer who lost her life to sexual violence the night of her call to the bar in 1980. It's the only clinic of its kind in Canada. We are independent of the provincial legal aid systems.

Since 1985 the clinic has provided legal representation, counselling, and language interpretation to over 60,000 women who have experienced all forms of violence. Currently we assist more than 4,000 women a year, and we work in over 200 languages. We provide a variety of innovative counselling services and public legal education as well as legal representation. We are also engaged in law reform.

The clinic consults broadly with all levels of government on policy or legislative initiatives, and we are a public voice on the experiences of women engaging with the law when they have been sexually assaulted. We are also part of landmark cases regarding sexual assault law.

We are in broad support of the changes to sexual assault law that are proposed in this bill. Specifically, we believe the expanded rape shield provisions provide for judicial screening of communications between the accused and the complainant, and this is consistent with the truth-seeking function of the court. However, while these changes will further clarify the law, they do not change the attitude of the justice system actors.

Unfortunately, the clinic's experience over the last 30 years tells us that the proposed legislation needs broader support in place in community to operationalize these changes to make a difference in the lives of women so that those who we would like to bring into the fold of reporting to the law will actually feel the trust to be able to do so.

Deepa.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

Ms. Sheehy, I'm going to come back to you. Ms. Dale had outlined reasons as to how the accused would be put in a more unfair situation should Bill C-51 become law, with respect to presumption of innocence, interjecting the complainant into the hearing and the evidentiary reasons for that, and the delays to trial as well. Can you comment? What is your opinion? Do you think there is validity to those concerns? What is the flip side of that coin?

I know it's a very delicate balance between an accused and a complainant, especially in areas of sexual assault. As you said, it's a very different type of crime. Are Ms. Dale's concerns valid? Also, do you think that Bill C-51 tries to level the playing field for victims of sexual assault?

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

Thank you, witnesses, for your very interesting testimony.

Ms. Kerner, you were speaking about somebody who was sexually assaulted and her experience in the justice system with respect to delays. I found it to be very interesting and contrary to what Ms. Dale was saying from the opposite end of that spectrum with respect to the accused.

I would Ms. Sheehy and Ms. Mathen to also comment. Do you think that Bill C-51 would create further delays in the justice system with respect to hearings to the point that it's unconstitutional?

[Elizabeth Sheehy]

Honourable members, I am testifying on this bill as an individual with expertise in sexual assault law. I was just asked this morning as a representative of the Ottawa Rape Crisis Centre. Our executive director was unable to be here. She is travelling across Ontario working with 11 police forces, trying to persuade them of the benefits of what's called the Philadelphia model in terms of policing. She asked me, as secretary of the board, to speak on their behalf. I am a law professor and an expert in the area of sexual assault law, with over 30 years of experience teaching, researching, and advocating for the rights of women who have experienced sexual violence.

The Ottawa Rape Crisis Centre is the third-oldest rape crisis centre in Canada. It was established in 1974. For 43 years, they have been providing crisis line support, face-to-face counselling, and group counselling to thousands of survivors annually. In the current climate, those numbers are increasing exponentially. It's a feminist organization that has fought tirelessly for legal and policy change at the local, provincial, and national level to secure women's rights to report sexual assault, and for these crimes against women to be investigated, prosecuted, and adjudicated with professionalism and attention to women's equality rights.

The Ottawa Rape Crisis Centre has challenged police practices of unfounding of women's sexual assault reports and documented police failures as early as 1975. Currently, our executive director, Sunny Marriner, has led the country in successfully advocating for the Philadelphia model, a model that requires review of police files on sexual assault investigations by independent violence against women advocates.

To speak for myself and the Ottawa Rape Crisis Centre, we support the bill overall. We read it as a significant effort by government to remedy discriminatory practices in the criminal justice system and to inspire trust on the part of women to report sexual violence. There is some urgency to this reform, as women flood traditional and social media with their disclosures of perpetration, yet the reporting rate by women has plummeted from one in 10 to one in 20 in the last several years. We are therefore at a crisis point in terms of the credibility of the criminal justice system for crimes of sexual violence.

I start by noting that we support the provision requiring that all bills include a charter statement assessing compliance with the Constitution of Canada. We trust that this compliance review will include an assessment of each bill's impact on women's equality rights protected by section 15, and women's section 7 rights to security of the person and to trial fairness. When assessing criminal laws that will impact an accused person's rights, the charter requires us to also consider the countervailing charter-protected interests of complainants.

We see the bill as modernizing the criminal law in keeping with current social realities in terms of the role that social media plays in both sexual activity and sexual violence by men against women. We thus support the provision that characterizes communications that are sexual in content or purpose as sexual activity for the purposes of the rules governing the admissibility of sexual history evidence. Moreover, this provision is consistent with legal decisions from some courts in advance of the bill that have interpreted sexualized text messages as sexual activity for the purposes of the rape shield provision, so in some ways this is not a major change in law.

We also support the provisions that provide legal standing and access to legal representation for complainants who face defence applications to introduce their prior sexual activity as evidence into the trial. The provision mirrors the provisions regarding complainants' rights to standing and representation to respond to defence applications to admit their private records. It was previously inexplicable to us why women had standing to defend the privacy of their confidential records but not their private sexual activities.

We think that the bill's extension of the records regime to private records in the hands of the accused, even those without sexual content or purpose, is also an important advance in terms of protecting women's privacy. Although we recognize that the provision has a broader reach, it means that no advantage can be gained by extrajudicial interception of private diaries or other such records. It's true that the defence will lose the element of surprise when required to have such records vetted for admissibility, but it must also be recognized that complainants in sexual assault trials themselves experience forms of jeopardy that require recognition and accommodation.

Bill C-51 also serves to codify some aspects of sexual assault law already established by the Supreme Court of Canada in interpreting the statutory regime. While strictly unnecessary, we support the amendments that do not add confusion to the already exceedingly complex law of sexual assault.

For example, the Ottawa Rape Crisis Centre supports the provision requiring evidence that a complainant expressed her voluntary agreement to sexual contact in order for an accused to rely on the defence of mistaken belief in consent, even though this is not a legal change, but simply a reiteration of the law interpreted by the Supreme Court of Canada almost 20 years ago in Ewanchuk.

We do have serious concerns, however, that the provision purporting to codify the J.A. decision misses the mark. It introduces the potential for confusion and may inadvertently limit legal interpretations on the meaning of incapacity. We say this because the introductory notes to the bill describe this provision as a codification of J.A. However, long before J.A., courts had ruled that unconscious people cannot consent—how could it possibly be otherwise—and, in fact, J.A. stands for a much more significant principle: that you cannot consent in advance of a sexual activity during which you are unconscious.

It would be wonderful if the bill actually codified J.A. and put that principle into law, particularly because, as Professor Mathen noted, it was a majority decision, not a unanimous decision. I think it would be wonderful if, in fact, this law codified J.A. It does not at the current moment.

The other problem that we worry about.... It's true that the bill does not foreclose the possibility that incapacity can include states approaching, but not reaching, unconsciousness. I think the bill ought to go further and explicitly state that proposition. It does not at the current moment. It simply leaves open the possibility that there are other ways in which one could be incapable. In fact, we think it ought to go further and begin to map out the considerations that judges should look at in determining incapacity short of complete unconsciousness.

Those are my submissions. Thank you.

[Prof. Carissima Mathen]

Thank you.

In recent months, there has been a great deal of debate over Canada's sexual assault laws. Dramatic events have provoked calls for the law to be completely overhauled. While understandable, such calls are overstated. In fact, Canada has one of the most progressive sexual assault frameworks in the world. Nonetheless, there are some changes that would ensure greater consistency between the Criminal Code and Supreme Court jurisprudence, better reflect parliamentary intent, and promote optimal responses to sexualized violence.

Bill C-51 contains a number of such changes, which I am pleased to support. I will focus on the proposed changes to the law of consent in section 273, and to the impermissible uses of past sexual history in section 276. These changes are contained in clause 19, clause 20, and the first part of clause 21.

Clause 19 clarifies the conditions, already set out in section 273.1, under which no consent to sexual touching is legally possible. I agree with the proposal to include a specific reference to unconsciousness and to make clear that other forms of incapacity, short of that state, can impair a person's legal ability to consent.

Some have argued that, given Supreme Court case law, this change is redundant. I disagree. It is always appropriate—indeed, it is laudatory and even essential—for Parliament to confirm common-law rulings with which it agrees. This is especially true in criminal law. Such clear expression of legislative intent protects important principles from later judicial change. I would remind the committee that the court's important decision in Regina v. J.A., in which it rejected the idea of advance consent to unconscious sex, was a majority ruling that was attended by a vigorous, three-judge dissent.

Some have also argued that this change could lead trial judges to insisting on complete unconsciousness before the rule against consent is operative. To the extent that there is such a risk, a proposition I do not necessarily accept, I think that the new subparagraph (b) addresses it.

Let me move now to clause 20 and its proposed change to section 273.2. One of the most important and distinctive aspects of Canada's sexual assault law is that it narrows the accused's ability to argue an honest but mistaken belief in consent, a defence that negatives mens rea.

In its unanimous decision in Regina v. Ewanchuk, the Supreme Court stated that an accused may not rely on mistakes of law about consent as a basis for honest but mistaken belief. The court gave a number of examples, such as the belief that consent is demonstrated by passive or ambiguous conduct.

In my opinion, the limitations on the definition of consent set out in section 273.1 are properly regarded as mistakes of law. I therefore support the move in clause 20 to specify those limitations as ineligible for the defence of honest but mistaken belief. I am, though, concerned that the current wording of proposed subparagraph 273.2(a)(iii), which refers to “any circumstance in which no consent is obtained,” could confuse the distinction between fact and law in relation to consent.

Assuming that the intent is to remove the accused's ability to rely on legal as opposed to factual mistakes, I would recommend either inserting into this new clause some reference to the term “mistake of law”, or making it clear that these are circumstances where consent is deemed not to obtain. Using the word “deemed” would clarify that the intent here is to prohibit the accused from relying on legally impermissible understandings of consent. It would also be a very powerful message from Parliament about the nature of the limitations on consent in section 273.1.

I also agree with the proposal in subclause 20(3) to ensure that an honest but mistaken belief in consent must rest in some way on evidence that consent was communicated. This change is consistent with the Supreme Court's reasoning in R. v. Ewanchuk. Such evidentiary thresholds are not uncommon. I think it is appropriate to ensure that the defence is based on evidence that relates in some way to how Parliament has defined consent for the purposes of sexual touching.

Finally, let me move to one change contained in clause 21 that relates to sexual history, or what is colloquially known as the “rape shield” provision.

The treatment of the complainant's prior sexual history has been a persistent challenge for the criminal justice system. Current section 276 of the code was part of a groundbreaking law reform effort in 1992. Subsection 276(1) states that sexual activity evidence is inadmissible to support an inference that, by virtue of her past sexual conduct, a complainant is more likely to have consented to the alleged assault or that she is less credible as a witness. These are called the twin myths of sexual assault. It is important to understand that the use of such evidence for such purposes is prohibited.

Under subsections 276(2) and 276(3), there is a separate process for considering the admissibility of past sexual activity that is offered to support different inferences. Unfortunately, the distinction between subsection 276(1) and the rest of section 276 has become blurred. Some judges have applied the framework outlined in the later subsections, subsections 276(2) and 276(3), to inferences that are clearly prohibited by subsection 276(1).

There is no balancing process capable of supporting the admission of evidence intended to advance the twin myths. By clarifying that subsections 276(1) and 276(2) cover distinct uses of sexual history evidence, the proposed change addresses this problem. It is consistent with the specific, unanimous, and complete rejection of the twin myths in R. v. Seaboyer, later affirmed in R. v. Darrach, and with the original animating intent of Parliament.

That concludes my prepared remarks. Thank you.

[Soudeh Ghasemi, Vice-President, Iranian Canadian Congress]

Thank you, Pouyan.

First, we believe that a systematic review of our Criminal Code legislation in regard to hate crimes and hate speech is long overdue. Numerous sources have reported that a significant part of the problem in prosecuting hate crimes is that the Criminal Code limits what can be done and does not allow speedy and efficient prosecution.

Second, we recommend that a racism and discrimination hotline be set up to allow victims of discrimination access to counsel and allow government to collect information on these incidents.

Third, current government Bill C-51 is removing parts of the Criminal Code that provide protection to places of worship, religious ceremonies, and faith communities. At this time, when hate crime against people from specific religious backgrounds is rising, we believe these protections are necessary. We recommend this committee to propose in its study for the government and Parliament to amend this part of Bill C-51.

Fourth, we recommend that the federal government increase the budget of Canadian Heritage programs that support the initiatives of diverse community organizations dedicated to improving interfaith and intercultural understanding, and target these programs at impacted groups.

Because of the sizable population of Iranian Canadians and the significant number of new immigrants arriving from Iran, we also recommend that Statistics Canada add an Iranian category in their visible minority section for accurate hate crime data.

Finally, and most importantly, we believe Canada should, in all foreign policy decisions and statements concerning a country, explicitly take into account the effect that such decisions will have on all Canadian individuals who come from or have ties with that country. The present lack of this awareness in our foreign policy circles has caused great harm to our community.

As shown by both our examples and our survey findings, Iranian Canadians suffer from sanctions and banking discrimination, the lack of an embassy through which they can access consular services, and the constant singling out of Iran in the rhetoric and policy of countries such as Canada. They must recognize that in an increasingly globalized world, Canada's actions and words on the world stage are not limited to international relations but also affect its citizens here at home.

In fact, this is something we already recognize in regard to the treatment of certain countries on the world stage. We cannot single out a country for special negative treatment and expect that such singling out will not have negative repercussions for those who are connected or perceived as connected to that country.

What we have shown in our presentation is that Iranian Canadians face serious discrimination. This situation must be addressed by our government. It is our hope that the recommendations we presented will not only allow our community to live peacefully and as equals in Canada, but help other communities do so as well.