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
October 25th, 2017 / 4:20 p.m.
Liberal
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
I think that will depend on what kinds of resources are put into the criminal justice system. We're already at a crisis point in terms of delay. I think there's just no question that sexual assault is not like any other crime. I'm quoting former Madam Justice L'Heureux-Dubé. That was her refrain in the Seaboyer case, “Sexual assault is not like any other crime.”
I think more resources are required to do a good job of prosecuting sexual assault. I think the answer is entirely in the hands of government at federal and provincial levels as to whether these provisions will necessarily add more delay.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
On its face, they may or may not. It's not a given that they will.
Elizabeth Sheehy
I think they are going to add some time, but the question of whether it amounts to more delay depends on what kinds of resources we put into these provisions.
Liberal
Prof. Carissima Mathen
I think the question for Parliament is not whether this will add more delay, but whether this is the right step to take to advance our objectives and to further justice. To the extent that more resources are required, it's incumbent on all the actors in the criminal justice system to make that happen.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you.
Ms. Kerner, earlier in your testimony you mentioned that you're opposed to the addition of the “no consent if unconscious” provision. You indicated the reason for that was that it would be misused by the defence. Can you elaborate on that a bit, please?
Collective Member, Vancouver Rape Relief and Women's Shelter
First, I want to acknowledge you, Ms. Khalid. I know you did participate in the “Me too” campaign. I think it's a direct message of solidarity to women victims of sexual assault, and so I appreciate that.
I think my friend Elizabeth Sheehy explained at length about the problem with the codification...only one extreme element of incapability. I did agree earlier that codification is a very good idea. Applying Supreme Court judgments to the letter of the law is a very good idea, but if we are going to do that, we need to do it consistently and comprehensively.
Liberal
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?
Elizabeth Sheehy
I certainly agree that the bill takes a step towards trying to level the playing field. I think we often forget how much is on the line for complainants in rape trials. When an accused is acquitted, the complainant may be called a liar publicly, to her family, to her community, and to her job. She may also be exposed to further jeopardy, which may mean mischief charges or perjury charges. She may be subject to defamation proceedings, with enormous personal and economic costs. I think we forget that this is not an ordinary witness. This is a witness with her whole life on the line. I don't think it's unfair to an accused to be deprived of the element of surprise when she too, in that context, is in jeopardy with respect to her privacy, but also the further implications of that proceeding.
Liberal
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
Since we have votes today, I don't want to go on at length with the panel because we have to get to the next panel. Ladies, I want to thank all of you. Your testimony was compelling. You really helped the committee. I really want to thank each and every one of you.
For those of you who provided detailed submissions, they have to be translated, but then they will be distributed. If we have any further questions, we'll contact you by email to ask those questions. Thank you again.
I'd ask the next panel to come forward. We'll briefly suspend while we change panels.
Liberal
The Chair Liberal Anthony Housefather
We will now reconvene.
This is the second session of witnesses that we have today. Welcome to the Standing Committee on Justice and Human Rights.
We are joined by Ms. Amanda Dale, executive director of the Barbra Schlifer Commemorative Clinic and Ms. Deepa Mattoo, director of legal services, who is in Toronto and is with us by video conference. Welcome to both of you.
We have the Canadian Centre for Gender and Sexual Diversity. Mr. Jeremy Dias, the executive director, is here with us. Welcome, Mr. Dias.
From the Women's Legal Education and Action Fund, we have by video conference, Ms. Lise Gotell, chair, and Ms. Karen Segal, staff lawyer. Welcome, Ms. Gotell and Ms. Segal.
We are going to start with the Barbra Schlifer Commemorative Clinic, so I'll turn to Ms. Dale and Ms. Mattoo to start.
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.
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.
Executive Director, Barbra Schlifer Commemorative Clinic
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.
Director, Legal Services, Barbra Schlifer Commemorative Clinic
In conclusion, we want to say that the clinic truly believes that the community experts who work with sexual assault survivors and the survivors themselves should be at the centre of all the proposed amendments. We recommend that front-line agencies such as the Barbra Schlifer Commemorative Clinic, and the survivors themselves should have an ongoing feedback mechanism which is not only formalized but also predictable, to monitor the implementation of the changes proposed.
Thank you.
Executive Director, Barbra Schlifer Commemorative Clinic
Thank you very much for including us in your deliberations. I expect we'll be answering some questions when you're ready.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much for your testimony.
We're going to move to Mr. Dias.
Mr. Dias, the floor is yours.
Jeremy Dias Executive Director, Canadian Centre for Gender and Sexual Diversity
Thank you.
I'd like to begin by mentioning that I'm using my iPhone because our organization is totally paperless, so I'm sorry if that is new to you.
I'd also like to acknowledge that we are on the unceded territories of the Algonquin peoples.
I'm perfectly bilingual. So I will answer questions in French with great pleasure, but I will make my presentation only in English.
I work at the Canadian Centre for Gender and Sexual Diversity. We're the national LGBTQ advocacy education organization. We work across the country running workshops and doing presentations in all of the LGBTQ fora in all of your communities for all of your students.
We will be submitting the “pink agenda” after this testimony to the rest of the committee. It's from there that we extract our criticism and critique of the changes that have been made. We just want to highlight some of that, based on clause 10 and clauses 19 through 25, as Ms. Dale mentioned.
While we are in broad support of the changes and excited by the expansion of the rape shield laws, there are some concerns that the next witnesses are going to be talking about, so I'm going to leave that up to them. I do want to focus on some of the things that we would like to mention.
At our end, we are very concerned by the lack of research around intimate partner violence relationships within Canada in an LGBTQ context. What this means is that, while we're excited by all these changes, these changes don't reflect the experiences of lesbian, gay, bisexual, trans, queer, and two-spirit people in our country. We're excited, but we don't actually have an informed space to derive any sort of critique on these changes, so we really just want to emphasize those things.
This has made our understanding of this review of this piece of legislation complicated because the experiences of lesbian, gay, bisexual, trans, queer, and two-spirit people are all unique and totally different. What we know from anecdotal evidence is that there are high rates of intimate partner violence in LGBTQ relationships and when you think about it, that actually makes sense. You struggle with your relationships with your parents. You probably struggle with your relationships at school. You may not see yourself reflected in mainstream society and you sometimes bring that anger and violence to relationships.
In the handful of public academic discussions that we have had, mostly at Laurentian University, here at the University of Ottawa, and some at Ryerson University, we've had some really interesting debates where LGBTQ people, and specifically gay and lesbian identified folk, are very reluctant to report crimes of violence to the police because of the long-standing difficult relationship that we've had with police and police services. The first point of access, to which we're often directed, is an access point that we're not necessarily finding to be the most accessible.
These ongoing difficulties with police services across the country are then becoming more challenging through the expansion and deeper understanding of racism and intersectional violence in our community, by which I mean we in the queer and trans community are finally talking about racism. What you may not know is that the LGBTQ community is incredibly racist, disrespectful toward women, and cissexist, which is the modern way of saying transphobic. As we start to break down these pieces, we're finding that new community actors are coming forward and identifying a new challenge with police services and criminal justice services, as well as intimate partner violence victims services, that we didn't even know about. At an organizational level, it is really exciting to finally see those conversations come to light, but they are actually identifying major gaps in services.
Of course, this brings me to my second point, that we don't have any services that support LGBTQ victims of intimate partner violence. In our country, except for our organization's intimate partner violence victim prevention program, there is nothing else. We know this because we brought all of the LGBTQ service providers together in June and we asked everyone what they would do if a victim of intimate partner violence came to them, as an executive director, service provider, or volunteer at their service. The answer in many cases was “I don't know, maybe send them to police or send them to a shelter”, to which we asked, “Will these shelters welcome a lesbian person? Will these shelters welcome a trans person?”
We're not saying shelters are not welcoming these folk. In fact, when working with the national shelters network, we're really excited that these shelters are becoming very progressive and very aware of these issues. However, there is no funding to train these shelters and resources on these new and emerging needs in our community.
That brings us to my third point, which is reporting. As I mentioned earlier, we in our community struggle with our relationships with criminal justice service providers, specifically the major first point of contact, which is the police service. If there are no LGBTQ service providers who provide support counselling for intimate partner violence services, how can you even then be guided or supported when you go to police? Again, we have very little research to go on, so this is anecdotal, but what we're hearing from our partners internationally is that, in many cases, people are not reporting. This is also compounded by the existing issues of not reporting that victims of intimate partner violence already face: financial, emotional, and so on.
On top of that, if someone does decide to report something—as we actually had a case here in Ottawa, finally—those victims have then gone back to service providers such as us and said, “Hey, can you walk us through the process? Can you come to court with me? Can you sit outside the police centre so I have someone to talk to after?” As we looked around Ottawa, we actually had no resources to do that. Even our centre, while we got volunteers and staff to step up, had a very difficult time providing those services effectively and properly. We either need to train existing service providers and enhance them, or we need to create new service providers to address those needs.
Then, to make it all more exciting, we're finding that the justice system is very unfamiliar with us: we're talking police; we're talking crowns; we're talking judges. It ranges from all kinds of behaviour between complainants being completely misgendered and disrespected, right up to having a crown attorney say they weren't going take something to court because it was two men and they can fight out their own problems. We're really disturbed by these types of comments that are not even made behind closed doors. They're made in emails; they're super public. They're on our website; you should read them. We're really concerned by them.
Frankly, I'd like to echo Ms. Dale's comment that we need more training, which is funny because I was at this committee two years ago and we talked about training and about funding that, and we're not seeing any movement on that. Mandatory training for the justice system as a whole, not just judges, is super critical, mandatory training that has a national standard.
You're thinking you're the federal government and you can't really impose stuff on the provinces or territories, but you can work in collaboration. We can bring people together and create those national partnerships, because that leadership is required somewhere. It's not coming from us, because we don't have any money for it.
Going back to a little piece that we'd like to discuss, the experiences for sexual minorities, for gay, lesbian, bisexual, pansexual, or asexual folk are very different from the experiences for trans folk. What we're noticing within gay, lesbian, and bisexual relationships is that police services are just not taking them seriously and they're expecting that because both partners are of the same sex, they'll resolve the conflict on their own.
When it comes to trans victims, trans feminine victims are reporting that they're being outed as men, so once again the onus is on them to resolve their own conflict, and trans masculine folk are often being dismissed or misunderstood within those relationships.
The new and emerging issue, which I think many of you may be somewhat familiar with, is that we've had the first intersex Canadian come out. Nine months ago, as many of you know, at the Canadian Centre for Gender and Sexual Diversity, Mel Thompson came out as Canada's first openly intersex individual. Traditionally, most Canadians have at the age of five or six decided to be a boy or a girl, and while identified as intersex at birth, grow up for the rest of their lives in the traditional gender binary. Mel Thompson, the first Canadian to do so, has broken that rule, and now we're actually seeing more Canadians come out and demand that hospitals do not perform surgery on infants and do not give young children the choice of either being a man or a woman if identified as intersex at birth, but actually a third choice, to grow up as intersex and not have their bodies mutilated. That is actually becoming the norm through the European Union, through the United Nations Free and Equal campaign, and of course, in the Latin American alliance led by Chile. It's totally normal internationally and still very new here.
If you want to learn more, on November 1, our tool kit will be available online, including our requests to change the criminal justice code on these issues. You'll get an email about it anyway.
In speaking to this, I'm really excited by these changes. We totally support the expansion of the rape shield clause, and with the exceptions that our colleagues are going to talk about shortly, we're excited but we do hope that the committee and the members here will think about prevention. What we truly need is a national strategy to address intimate partner violence, and especially the rising rates of violence that we're seeing against women and female-identified folk. This national strategy has to work in partnership with municipal agencies, provinces, territories, as well as civil society; and it has to have both a prevention focus as well as a victim-informed strategy.
Frankly, what this comes down to is greater funding, and greater funding for research, not just for LGBTQ organizations but for all of us. Many of us are working the best way we can, but it's very difficult. We'd like to see some leadership on these issues as opposed to ongoing band-aid solutions.
Thank you.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
We're going to go to Women's LEAF, to whoever's starting.
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.
