Evidence of meeting #72 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was complainant.
A recording is available from Parliament.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
I'm now intrigued by the notion of involuntary consent. Can you have involuntary consent?
Prof. Janine Benedet
For a very long time, the law considered consent in terms of a failure to resist, so a submission could be equated with a consent. Our definition in the Criminal Code says that not only does there need to be consent, that the complainant has to want in her own mind the sexual touching to take place, but any agreement that's given has to be a voluntary one. For example, we have had cases where that agreement was extorted by a threat to expose nude pictures to family and friends, and the court has said, “Well, you said 'yes'”, but that's not a voluntary yes; it's a yes that was extorted through some kind of pressure.
I've done quite a lot of work with my colleague Isabel Grant on the sexual abuse of persons with intellectual disabilities. We see cases in which there's a kind of conditioned compliance, and in which complainants will say “yes”, and they will get in the van and they will take off their pants, but they may not have the ability to really understand what they're being asked to do. Often those cases are dealt with under the concept of incapacity to consent, and we don't have a very clear legal standard for when that exists.
Any clarification we can give will be beneficial. It doesn't have to be an exhaustive list, but there has to be the idea that consent has to be informed, that you have to have the ability to understand that you can refuse—because some individuals with intellectual disabilities do not know they can say no to sexual activity—and that it has to be your actual agreement. Those are all things that can be read into the code as it's currently written, but sometimes are not fully realized in the cases we see.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
As I understand it, you seem to be saying to me that this sort of determination and those sorts of criteria are already there, so they don't need to be codified.
Prof. Janine Benedet
Maybe those are two different things. They're already there, but unfortunately courts don't always see that they're already there.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Let's imagine we codify them as consent requiring that these three conditions be met. Then we could say something like, “For greater certainty, this includes but is not limited to unconsciousness”, and so on. Would that be a beneficial kind of amendment? Would that be more trouble than it's worth? Is that something the law could support and the legal system could deal with?
Prof. Janine Benedet
I'm not sure if it's a separate, free-standing provision or just more circumstances in the current list we see in 273.1(2) regarding where no consent is obtained. You could do that by simply defining incapacity a bit more broadly and including some of those other factors in the same list. Yes, I think that would be beneficial.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
I'm going to move on.
There is provision for counsel for the complainant in the process of admissibility hearings. It has been suggested that this is a slippery slope, that we don't do this for any other kind of complainant, and that it might become overly cumbersome for the process of trial itself in terms of scheduling, because now you have an extra party to schedule, extra lawyers, and extra expense.
Professor Cunliffe, could you weigh in on this?
Associate Professor, Peter A. Allard School of Law, University of British Columbia, As an Individual
A couple of things need to be said. The first is that if we are to make constitutional guarantees, as we have, then we also need to provide some means by which those constitutional guarantees can be met. The simplest and most straightforward way to do that is to allow complainants to have their constitutional rights protected by virtue of legal representation. The idea of separating a constitutional guarantee from standing to enforce that constitutional guarantee worries me quite considerably, for reasons I articulated in the general article I mentioned.
In respect of scheduling and whether this makes things even more cumbersome and raises concerns about, for example, Jordan's principle with respect to the right to a trial within a fair period, there is no question that courts are currently wrestling with the Jordan paradigm. There are a number of things that can be done in respect of that in terms of providing better resourcing, appointing more judges, ensuring that crown counsel are properly resourced, and at the provincial level ensuring that legal aid is properly funded. I would suggest that to deprive the complainants of their charter rights, including their right to legal representation, as a fix to the problems of Jordan would be a very poor fix indeed.
Liberal
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
In terms of depriving the complainants of their legal rights, they're not on trial in this case, hopefully. That's part of the goal here, that they're not on trial. It's the accused whose legal rights I think that would engage, not the complainant.
Associate Professor, Peter A. Allard School of Law, University of British Columbia, As an Individual
This is where the charter jurisprudence is complex relative to other forms of criminal law. You're quite right to say that it's the accused who faces a deprivation of their liberty as a result of the trial.
What the court has said repeatedly in many cases is that the accused's right to full answer in defence and the other charter rights that are associated with their particular position of vulnerability are partly delineated and delimited by the charter rights of the complainant in a sexual assault trial, specifically because of the equality concerns that arise, the history of the operation of myths and stereotypes, and the concerns about the accuracy of truth seeking in a system that has developed over time, unfortunately, through the perpetuation of myths and stereotypes. It's a recognition that these cases are different, which has been a very clear and consistent thread in the Supreme Court of Canada's jurisprudence.
I think it is crucial to emphasize and indeed to hold both Parliament and courts to account to the proposition that the Supreme Court of Canada has been clear on this. Yes, the accused have fair trial rights and they absolutely need to be respected. But part of respecting those is about thinking very carefully about the charter rights of complainants and about how those two things can be maximized ideally, or when they come into conflict, how that conflict can be resolved in the best possible fashion, thinking about other social objectives such as truth seeking and such as the public interest in the prosecution of crime.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
Thank you very much.
Thank you both for being here tonight and for your remarks.
One of the aspects of Bill C-51 is to introduce a new procedure to govern the use of trial records relating to the complainant that are already in the hands of the defence. We touched on that a little bit already.
On Monday the committee heard from the Criminal Lawyers' Association, who were saying there's some clarification needed in the bill around the type of use of the records that would trigger this new mechanism. Professor Cunliffe, you were speaking to this before, so I'm wondering if you could elaborate a little on that theme.
Associate Professor, Peter A. Allard School of Law, University of British Columbia, As an Individual
Thank you for inviting me to do so.
I agree with the Criminal Lawyers' Association that there is space for clarification. If we return to the case that's the genesis for this change, the case of Shearing, the facts in that case were that the complainant's diary had been stolen by the accused person, and the court held that the means by which the accused person came into possession of it were not relevant to the admissibility of the diary at trial. That's being addressed by a provision such as this.
If we think about the possibility, as exists in some case law, of an accused person improperly obtaining access, for example, to Facebook profiles or confidential email records, there's a significant public policy interest in ensuring that there are procedural safeguards before those kinds of materials can be aired in court.
The value of this provision, if it's targeted only to those records in which the complainant has a privacy interest, is that it allows the trial judge to run those records through that same decision-making process and those principles I elaborated. So does it just rely on and perpetuate myths and stereotypes? Is it relevant to a material issue at trial? Would the probative value substantially outweigh the prejudicial effect of introducing this information?
The trouble that I see and which I think the Criminal Lawyers' Association's submission points to is that the way in which the provisions have been drafted, that link between the complainant's privacy interests and the recording question is not apparent on the face of it. I think it's very clear in the intention but not on the face of it.
That's the reason for my recommendation. Where the existing text for proposed new subsection 278.92(1) reads, “Except in accordance with this section, no record relating to a complainant or a witness that is in the possession or control of the accused”, that's where the problem arises, the breadth of that language of “relating to”. It would be clearer and would more perfectly capture the intention to say, “Except in accordance with this section, no record in which a complainant or witness has a privacy interest and that is in the possession or control of the accused”. That link between the privacy interest of the complainant and the accused's possession becomes much clearer on that rewording.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
Thank you very much for that very specific recommendation.
I have a more general question. While Bill C-51 would create a better legal regime around issues of sexual assault, I wonder what the concerns are in terms of women being able to make use of that improved legal regime in a context where legal aid isn't sufficiently available. What are your thoughts on what government ought to be doing in order to make sure that we don't just improve the law on the books and then find we have situations in which women aren't able to make use of those laws?
Prof. Janine Benedet
I could probably say a couple of things in relation to that. You're quite right that simply some kind of notional right to counsel, if it's not funded, is illusory for most women.
I think it's also important to recognize that the level of documentation for complainants does not fall equally across society. Even if you look at the patterns with regard to sexual offences, the absolutely highest rates are for teenage girls aged 13 to 15. That's from Stats Canada statistics.
You have young victims, often young women or girls, certainly where records applications are being brought, who have lived very heavily documented lives, who have child welfare records, school records, medical or therapeutic records, possibly records from some kind of rape crisis centre, etc. Many of those records the young women had no part in creating and have never even seen, but they carry a lot of judgments about who these women are. These are also young people who live their whole lives online and who have all kinds of material in that sphere.
I think it is important to recognize that this doesn't fall equally. In terms of what else we could be doing, certainly funding the opportunities for counsel, as is being proposed here, is very important.
I think that in terms of our most vulnerable witnesses in sexual assault trials, Canada is way behind other jurisdictions. I was very pleased to welcome a delegation from Scotland a couple of years ago that was coming to learn from other jurisdictions about the approach to accommodating vulnerable witnesses in court and in sexual assault trials in particular. It became quite apparent that we had much more to learn from them than they did from us. Certainly the reports that they've been putting out are proposing quite dramatic changes to the way we take evidence from vulnerable witnesses.
I think that there's a lot to be learned from what is happening elsewhere and that none of those things have to detract from the right of every accused to a fair trial. They're just a recognition that often it's very vulnerable women and girls who are coming before the courts in these cases.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you, Mr. Chair.
Thank you, both, very much for your excellent presentations and recommendations. It's helpful for the committee to have actual, tangible recommendations that we can think about.
Professor Benedet, you talked about codifying J.A. and also codifying Ewanchuk. Do you think that currently the bill properly codifies Ewanchuk? You talked about the honest but mistaken belief in consent and the fact that it eliminates that defence as per law but obviously leaves it in there for an honest but mistaken belief as far as it deals with the facts. I appreciate that and I recognize that it's a narrow defence, but do you believe that the proper balance is struck and it actually codifies Ewanchuk appropriately?
Prof. Janine Benedet
On the issue of mistaken belief in consent, yes, I think the proposed revisions are entirely accurate and a fair codification of what the Supreme Court of Canada said in that case.
The piece that's missing is that the court in Ewanchuk also defined for the purposes of the actus reus and not the mental element that's at issue in mistaken belief in consent, that idea that non-consent means that the complainant in her own mind did not want the sexual touching to take place. That's what the crown has to prove beyond a reasonable doubt and that's where most sexual assault prosecutions of adults, in relation to adult complainants, fail because there are concerns about the credibility of the complainant and that assertion about her state of mind at the time.
It's interesting to me that while the code defines consent, it doesn't define non-consent. We've never codified that statement in Ewanchuk that non-consent for the purposes of sections 271, 272, 273 means that the complainant in her own mind did not want the sexual touching to take place. It's there in the case law; judges are applying that standard. Some of the issues simply relate to the way that we allow complainants to be cross-examined on what I think are lingering myths and stereotypes about what non-consent actually looks like. I just noted that that actually isn't reflected in the Criminal Code. Interestingly, it's the one part of Ewanchuk and arguably the most commonly applied, and it's not reflected.
Liberal
Colin Fraser Liberal West Nova, NS
I'll just stay on the honest but mistaken belief in consent part, though, just for a minute, so we understand how that would work in practice.
As I understand it, the crown would obviously have to present their evidence with regard to there being an absence of consent. That's part of the case they would have to make, and it would be up to the defence to call evidence and raise the defence of honest but mistaken belief in a factual circumstance.
Is that how that would work in a trial? Can you help me understand exactly what kind of evidence the defence could call to raise that factual circumstance?
Prof. Janine Benedet
You're right. Even though it's negating the mental element, we treat it like a defence. The crown would put in their case. The defence, in order to have that defence left with the jury, would have to give an air of reality to the defence, which means they would have to point to some evidence on the record that's capable of raising a reasonable doubt on the issue of the accused's belief. That evidence could come from the crown's own case if the complainant's evidence on cross-examination indicates that there was some misunderstanding or some potential for misunderstanding. I suppose it would be enough simply based on the crown's own evidence, so it's not necessary that the accused testify in order to raise the defence. Practically, as a tactical matter, it often takes the form of the accused testifying and giving a different version of events.
The reason the defence is so rare is that, generally speaking, when the accused does testify, the accused testifies to a version of events that are wholly different and involve enthusiastic and voluntary consent. Generally speaking, courts say that if the complainant's version is, “I absolutely did not consent, and that was clear to anybody and there was no mistaking it,” and the accused's version of events is, “She was a willing and enthusiastic participant and has only made this up after the fact,” there's really not much room for a third version of events, some kind of middle ground.
That mere fact, regardless of what we're putting into the Criminal Code, means that the defence is not one that should be arising very often. It would have to be an unusual set of facts where there is some version of the evidence in which we could imagine that the complainant did not want the sexual touching to take place, but the accused believed that he had a “yes” from the complainant. That's true regardless of these amendments or anything else.
The threshold is not huge at the initial stage. It's the air of reality threshold. Is there evidence which, if believed, is capable of raising a reasonable doubt? Of course, there's the question of the accused's belief in the circumstances known to him at the time. Did he believe he had a “yes” by words or by conduct, and is there some evidence that the accused took reasonable steps in those circumstances to ascertain the presence of consent? That's an important part of the defence as well that's been part of the law since the 1992 reforms.
