Justice Committee on Oct. 25th, 2017

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.

On the agenda

Bill C-51

MPs speaking

Also speaking

Laurelly Dale Barrister and Solicitor, Dale Legal Firm, As an Individual

Carissima Mathen Vice-Dean, Associate Professor of Law, Faculty of Law, Common Law Section, University of Ottawa , As an Individual

Elizabeth Sheehy Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual

Hilla Kerner Collective Member, Vancouver Rape Relief and Women's Shelter

Amanda Dale Executive Director, Barbra Schlifer Commemorative Clinic

Deepa Mattoo Director, Legal Services, Barbra Schlifer Commemorative Clinic

Jeremy Dias Executive Director, Canadian Centre for Gender and Sexual Diversity

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

Lise Gotell Chair, Women's Legal Education and Action Fund

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

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

8:10 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

If I can turn back to the codification of J.A., I take what you're saying, that it's, to your mind, unsatisfactory with regard to just having that the complainant is unconscious, but there is the (b) part of that as well, though, that the complainant is incapable of consenting to the activity for any other reason. That kind of puts in two parts to replace the paragraph (b) that's already there. Do you not feel that the (b) part, adding the words “for any other reason”, would mitigate what you're saying, that it would include where people are just short of unconsciousness or incapable for other reasons, and it wouldn't put a time period on it of how far back you'd have to go? It would kind of answer that question. Either you're unconscious or you're incapable for any other reason.

Don't you think that answers the question?

8:10 p.m.

Prof. Janine Benedet

I think it's better than just leaving it as incapable of consenting, because then I think it's open to confusion: “Wait a minute, isn't that just redundant, (a) and (b)?”

I take the point that the addition of the words “for any reason other than unconsciousness” is an attempt to say it's a broader category. I guess my question is why we are separating out unconsciousness as some kind of standard that's worthy of particular mention. If the idea is that we want to reflect something that was unclear about the law, and the court needed to clarify in J.A. at a time when we had paragraph (b), talking about incapacity to consent, what was unclear about the law at the time that J.A. was decided was not that unconsciousness is a form of incapacity; it was that the relevant time for determining consent is at the time the sexual activity takes place, and you can't give it in advance. That's what's not reflected in these amendments. To me, that would be a better addition, because it would actually speak to the legal issue that was debated in J.A.

8:10 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Okay, thanks very much.

8:10 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much.

Colleagues, does anybody else have a short question?

If not, ladies, I want to thank you so much for coming before us. You offered really clear and compelling testimony, and it was very helpful. Thank you again for setting out in writing the actual amendments you propose.

Have a wonderful evening, everyone.

The meeting is adjourned.