Thank you.
On my behalf and that of my colleague, Ms. Leamon, I'd like to thank the committee for having us here today.
I'm going to deal with the provisions of Bill C-51 that address the sexual assault changes to the law. In particular, one of the elements that concern us is the change to the “mistaken belief in consent” defence that effectively eliminates that defence by adding a provision to the legislation that requires an individual to have actual consent, either through actions or words. It has the effect of eliminating the defence of mistaken belief in consent and a significant problem in our criminal justice system of essentially eliminating the mens rea component from any sexual assault case, as long as it is proven that somebody was essentially engaged in sex that they then say was non-consensual.
The burden shifts to the defence to show that there was actual consent, and they can't say they thought she was consenting unless they have proof that he or she was consenting to the act. That's significantly concerning because it either eliminates the ability of individuals who are innocent to raise their innocence or to raise that issue. It's also completely out of step with the realities of human sexual interaction, which are dynamic, which are not normal.... Most people when they are engaging in sexual situations are not asking if you would like to do this, with the response being, yes, they would, and then creating a record of that, so it's going to create practical hurdles for the defence that are going to be impossible to meet in the trial process.
My other main concern with this legislation is the manner in which it's going to enhance trial delays. In particular, this is going to disproportionately affect small communities and circuit courts where these cases are often more troubling because they affect the community at large.
Because of the way the applications to introduce the records that the defence intends to rely upon have to be made, it requires the seizing of a judge, who then has to come back and hear the subsequent application after deciding the written application, and then because they hear factual issues, may well become seized on the trial itself. That's going to lead to extreme problems for courthouses across this country, but most particularly in rural communities, which are understaffed, have fewer judicial resources, and have fewer judges, or sometimes only one judge. It's going to make it practically impossible for those cases to proceed in a timely fashion. It's also going to detract from other cases taking place in those courthouses, whatever they may be, and it's going to lead to delays in those cases because the judicial resources are going to be taken up dealing with all these pretrial applications with a seized judge who's now required to decide this particular issue.
One amendment I would suggest if this portion of the bill is passed is to allow those applications to be made before any judge. The judge who decides the written application shouldn't necessarily have to be the judge who then decides the in-person hearing, and shouldn't necessarily have to be the trial judge. That will allow for easier scheduling, particularly for communities affected by circuit courts where you might not have the judge returning for another six or eight months, and it then might not be the same judge.
I'll turn it over to my colleague, Ms. Leamon, to add her comments.