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

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

4:05 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

Do you have any comment on that, Ms. Dale, with respect to the codification of the different judicial decisions in this, and whether this bill captures those decisions?

4:05 p.m.

Barrister and Solicitor, Dale Legal Firm, As an Individual

Laurelly Dale

I don't have anything to add. My comments are limited to clause 25.

4:10 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

That's fair enough.

Those are my comments, Mr. Chair. Thank you very much.

4:10 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much, Mr. Nicholson.

Mr. Fraser.

4:10 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Thank you, Mr. Chair.

Thank you all very much for your presence today and for your interesting presentations.

Ms. Mathen, you touched on this a little, and we already talked about the codification of J.A. Can you talk about how the provisions in the bill assist findings of consent not being present in cases where the victim is just short of unconsciousness, for example? Can you touch on that a little?

4:10 p.m.

Prof. Carissima Mathen

Certainly. Of course, the law as stated has always said that incapacity in itself impairs one's ability to consent in law. The current expansion would, in a sense, separate that to a specific mention of unconsciousness, and then the complainant is incapable of consenting for any reason other than the one referred to, i.e., unconsciousness.

It is simply a direction, I think, to judges and to triers of fact that a number of states can impair a person's ability to consent. It is true that there is still work to do with respect to the line at which someone slips into a state of intoxication, for example. Those are very difficult questions that in some sense will be limited to specific factual circumstances, but certainly I think there is value in at least separating the various ways in which someone could be incapable of consenting.

4:10 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Thank you.

On Monday we heard testimony regarding the mistaken belief in consent from a couple of witnesses who said that the changes here and the attempt to codify Ewanchuk would effectively eliminate any mistaken belief in consent as a defence, both in law and in fact. As I understand it, the codification of Ewanchuk is meant to reflect the law, which is that you cannot have a mistaken belief in consent as it pertains at law, but that it would still exist as a matter of fact.

I'm wondering if you can explain your thoughts on whether or not it would effectively eliminate any mistaken belief in consent defence.

4:10 p.m.

Prof. Carissima Mathen

I don't believe it would. I don't believe that would be consistent with the charter, to simply remove the ability to argue mistake of fact about whether there was consent.

It's important to note that mistaken belief in consent is something that is only considered in the criminal trial when the crown has proven that there in fact was no consent. That's when the issue of mistake becomes important. So it is a question of fact, but it is appropriate for Parliament to inject some values into what are the circumstances under which we will excuse someone from making that mistake of fact.

The Supreme Court has said that beliefs about consent cannot rest on mistakes of law. They made that clear in Ewanchuk. My argument is that Parliament has also done that in the limitations in section 273.1. That is why, with respect to that specific point, I am a little concerned that the language in the current clause 20, proposed subparagraph 273.2(a)(iii), which I pointed out, does make it seem as though what is being referred to is simply a factual context. I would suggest some reference of words to indicate that what is being referred to here is the legal understanding of consent.

4:10 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Thank you very much. That's helpful.

Ms. Dale, you mentioned in your presentation, regarding the new hearing process for records in the possession of the defendant, that it could result in a three- to five-day hearing being necessary 60 days in advance of the trial. First of all, where do you get those numbers, of a three- to five-day hearing?

Second, isn't the 60-day notice period in the bill about the production of documents, or a request for production of documents, not the seven-day notice period that the defendant would have to make in order to adduce evidence of documents or records that are in their possession?

4:10 p.m.

Barrister and Solicitor, Dale Legal Firm, As an Individual

Laurelly Dale

I'll address the first part of your question. It's a very good question. With respect to the estimate of the three- to five-day period, of course that is an estimate. Sexual assault trials, case by case, can be half a day, or one day at most, in terms of trial time, and therefore would only perhaps require a one- or two-hour hearing for this purpose. The three- to five-day estimate would be an averaging of sexual assault cases.

If we look at the Ghomeshi case, in that case there were over 5,000 messages, emails that were utilized by his counsel to establish collusion, diminish credibility, and align with some of the consent defences that were used in that case. For 5,000 messages, it would require a much lengthier hearing than the three to five days.

As well, considered in that factor, if the complainant is going to be added now as a party to the proceedings, and they're permitted to make submissions at these hearings, scheduling of additional time has to be taken for them and their counsel to make submissions at that hearing as well.

4:15 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

The complainant would only be added for the purpose of making submissions at that hearing. You're not suggesting that it would be for the entire proceedings.

4:15 p.m.

Barrister and Solicitor, Dale Legal Firm, As an Individual

Laurelly Dale

By my understanding of the draft, the complainant is permitted to be in attendance at the hearing and to make submissions at the hearing.

4:15 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Right.

What about the 60-day notice period? That's for production, isn't it, not the seven-day notice that is required for the hearing that we're talking about? Is that your understanding?

4:15 p.m.

Barrister and Solicitor, Dale Legal Firm, As an Individual

Laurelly Dale

My understanding is that it had to be 60 days prior to trial. However, that was my interpretation of the legislation.

4:15 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Thank you. That's probably all my time.

4:15 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much, Mr. Fraser.

Mr. Angus.

4:15 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Thank you, Mr. Chair.

Thank you for this excellent presentation.

I'll start with Ms. Sheehy. If we're talking about codifying consent so that we can clarify the rules for these very disturbing cases that have to be tried, do we still not have the problem that judges decide to interpret what consent means all the time?

Right now in Quebec, we have a case of a judge who, over the sexual assault of a teenage girl in a cab, was suggesting that there are different levels of consent, that just because the guy took a 17-year-old girl and started kissing her without her consent, that required a lesser level of consent than if he did other physical acts against her. They're still acts of violence. How do we codify this if we still have judges who will ignore the basic rights of a victim?

4:15 p.m.

Elizabeth Sheehy

Well, this bill doesn't purport to deal with judicial education or judicial accountability. Of course I share your concern that we have persistent problems in terms of judges fumbling the ball on the legal rules regarding consent and other issues in a sexual assault trial. I guess I still favour further legislative clarification and codification when possible.

On the issue of forms of incapacity that do not reach unconsciousness, I think it would be really good for our legislation to specify some criteria for capacity to consent, and I take some of these from Supreme Court jurisprudence in other cases. The complainant has to be capable of understanding the sexual nature of the act and the risks involved. The complainant has to be capable of understanding that she can choose to decline, and she has to be capable of communicating her voluntary agreement. I think putting those kinds of details in legislation is really helpful for judges, because I think the law of sexual assault is already exceedingly complex. The more clarification and guidance we can provide judges, the better.

4:15 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

I thank you for that.

I know that we don't have a law telling judges how to behave, and that's something judges have to have some interpretation or right to. But it seems to me that there's a larger societal problem dealing with victims of sexual assault. That is something that has to be dealt with in public, in the media. I know we're always told we shouldn't be trying judges in the media, but it's these notorious cases that draw attention to the fundamental problems.

Your suggestions for codifying, I think, is very helpful, because I am concerned about strictly a provision of being unconscious means no consent, particularly with issues of rape drugs and where young people may be incapacitated but not completely incapacitated.

4:15 p.m.

Elizabeth Sheehy

Not unconscious.

4:15 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Not unconscious. We're into the real weeds about sexual violence here, but we have to be able to start to clarify what defines consent. Would you make those suggestions coded into the legislation?

4:20 p.m.

Elizabeth Sheehy

I would. I think it's a great starting point to begin to map out or to give judges some guidance that we're not only looking at unconsciousness, but someone can be incapable if they do not meet three basic criteria. These criteria were already set out in a Supreme Court decision on this issue. I think they are very basic principles. If a woman is incapable of really talking, and there may be evidence that she couldn't speak or she didn't understand what was going on, you then have really clear evidence that she's not capable of giving a legally valid consent.

Those three guiding points are not specific. I'm not talking about how much drugs she has to have consumed or how much alcohol the person has to have consumed. I don't think we can really do that in legislation, at least not at this point, but I think we can set guiding principles that are legal principles as to what conditions are necessary before a person has the legal capacity to consent.

4:20 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Ms. Kerner, through your work, you have really painted a picture that sexual assault victims come in all classes and all races. But the issue of marginalized women, indigenous women, poor women, who have very few resources to have their rights protected, who may be in a situation where they engage in risky behaviour, or who have no power.... At the moment when they decide no, it still means no, and yet they have very few resources to be able to have their stories taken credibly in many situations because they are considered marginalized due to their past history. How do we start to address that power imbalance faced by marginalized women?

4:20 p.m.

Collective Member, Vancouver Rape Relief and Women's Shelter

Hilla Kerner

I would say four things. First, I think there needs to be support services, independent transition houses, and rape crisis centres funded by the state, while independently operated by women, so on every reserve and in every rural place women can immediately get safety, support, and advocacy.

On the other hand, we have to have transparency in the system. The fact that we have seen the tip of the iceberg in terms of the judgment to the media does not tell us what's really happening. There is no accessibility of judgments. At the provincial court, in general, it's very hard to have access to the judgments. We want all judgments from all levels of courts to be available to the public for scrutiny.

It's the same with crown decisions and the same with police decisions. I hope that the legislator will come up with instructions that mean that all police forces everywhere, once in a while, once a year, need to report how many sexual assaults and how many violence against women complaints they have received, how long the investigation took, and what the result was of each case.

It's the same for the crown. How many recommendations did they receive? How many charges did they drop or were stayed, and how many were pursued to see court?

I got permission from a woman I work with. She's my age and when she was 11 she was raped for a few years by her adult cousin. In 2007 she went to the police. Charges were laid only in 2011, after four years. The pretrial was in 2013. The trial started in 2015 and it's not over yet. The defence lawyer here was arguing against delay. Delay is everything that the victims are experiencing. The defence counsels are leading this process of delay. Not only do women have no justice, but there is not transparency in all the places that the state is failing them.

There was a really brilliant document written in 1993, called “99 Federal Steps to End Violence Against Women”, by Lee Lakeman. It was adopted by women's groups across the country. I encourage you—and I can send it to the chair—to look at the recommendation for immediate application to advance the situation.

4:20 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Thank you.