Justice Committee on Oct. 25th, 2017

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

That is something we called for in our report at status of women as well—for the feds to work with the provinces.

[Amanda Dale]

I'd like to hear from my colleagues, because I'm sure they've thought about this from their stance.

[Dr. Lise Gotell]

I think it's a real issue. There is existing research. Complainants have had standing in section 278 hearings on the production and disclosure of confidential records. That's existed since that provision came into effect in 1997. The problem is the patchwork of approaches across the country as to whether or not complainants are provided with publicly funded legal representation. In some provinces, legal representation in section 278 hearings is provided through legal aid. Crown attorneys take this very seriously, because this is a state-authorized search and seizure. It's very important that complainants have representation.

We would like to see the federal government work in collaboration with the provinces to ensure publicly funded legal representation for complainants in section 278 record hearings and in the new provisions on the admissibility of sexual history evidence and the admissibility of confidential records in the hands of the accused. It's really critical that we ensure public funding for that legal representation.

I'll echo something that Amanda was saying, that in addition to concerns about providing publicly funded counsel to complainants when they have standing, complainants also require more general legal advice about even the very basic question of making a police report and about the progress of a trial. I know that the federal government now has a number of pilot projects in collaboration with the provinces across the country whereby complainants are being provided with three hours of independent legal representation. We need to make that more extensive. That should be something that exists across the country.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Dias, do you have anything brief to add?

[Jeremy Dias]

I just want to echo what Ms. Dale said about the provinces and the territories working together. This issue was brought up to our youth advisory council from across Canada. They're excited to have representation when they go to court if something bad happens, but the youth council actually asked us some questions. Why aren't we teaching young people from the very beginning about what to do if they are a victim of crime? What happens when they are victimized by crime? How does the criminal justice system work?

I think the federal ministry of justice needs to work with not just their counterparts provincially but also other ministries provincially, including education and health, to say, listen, we have some carrots: match these carrots, put it into your curriculum, and let's give students the resources and tools even before they're victims of crime.

That type of proactive education is really critical. I can't even tell you how many victims of crime walk in and out of my office door. First off, they have been victimized. They're not in an emotional or physical state to be able to handle the information we're throwing at them. We do victim education training in our forums. Because 50% of women will experience violence, sexual or physical, before the age of 30, and because that number is even higher in LGBTQ communities, we do training for LGBTQ folks who are attending our forums so that they understand what the criminal justice system looks like, what will happen when you're a victim of crime, how to document that experience of victimization, and how to know what to disclose or not disclose to friends, family, or other stakeholders. It's about navigating confidentiality, because of course your body and your identity become evidence.

It just can't always be last-minute. We have to be proactive about these things. It would be great to imagine that we live in a world without crime, but I think the federal ministry of justice has an opportunity to show leadership, and then of course to work with civil society like us. We can sit down and craft a national strategy, which we still don't have, and implement it.

Thank you for the last word.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I want to thank this panel for helping us go forward with our study of Bill C-51. I wish you all a great rest of the day.

We are recessed until after the votes, when we'll resume with our third panel.

[The Chair, Liberal, Anthony Housefather]

It is my pleasure to call this meeting of the Standing Committee on Justice and Human Rights back to order for our third panel of the day dealing with Bill C-51.

It is a pleasure to welcome from the University of British Columbia both Ms. Janine Benedet, who is a professor of law, and Ms. Emma Cunliffe, who is an associate professor.

Welcome, Ms. Benedet and Ms. Cunliffe. It's a pleasure to have you both here with us. Thank you for coming from so far away.

We will start with Ms. Benedet.

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

Thank you very much.

As the chair indicated, I am a law professor at UBC. My research and my teaching focus on legal responses to sexual violence against women, including sexual assault, sexual harassment, prostitution, and pornography.

I'm here today testifying in general support of the provisions of Bill C-51 as they relate to amendments to the Criminal Code in the area of sexual assault while recognizing that the barriers women face in the area of sexual assault are much deeper and more systemic than what this suite of amendments touches.

In the few minutes I have for opening remarks, I'm going to focus in particular on the proposed amendments that relate to the definition of consent, and the defence of mistaken belief in consent, and then just conclude with a couple of words in support of the proposed changes to the definition of sexual activity for the purpose of section 276 of the Criminal Code.

I'll start with proposed paragraph 273.1(2)(a.1). I would just recognize that I think we're 17 years overdue for renumbering of the Criminal Code, and these amendments remind me of that.

This is the proposed change to the Criminal Code that would add as an item on the list of factors in which no consent is obtained the fact that the complainant is unconscious.

This is the one proposed change that raises concerns for me. I understand it as an attempt to codify the Supreme Court of Canada's decision in J.A. I think that's an important decision and worth reflecting in the Criminal Code, but I am worried that the proposed amendment reduces that decision to being about whether you can consent in advance to sexual activity when you are unconscious, a term that in and of itself is perhaps contested and not entirely settled in its meaning.

The decision in J.A. actually goes further than that. What it says is that you cannot give advance consent to sexual activity that takes place when you are incapable of consenting, and that's a broader term than just unconsciousness.

Now, I recognize that you might say that incapacity is still there, but I actually think it would be better, rather than inserting paragraph 273.1(2)(a.1) into that list, to simply amend paragraph 273.1(2)(b) to say no consent is obtained for the purposes of sections 271, 272, and 273, where the complainant at the time the sexual activity takes place is incapable of consenting.

That actually gets at the crux of J.A., the point that there can be no advance consent to sexual activity that takes place when an individual is incapable. What matters is their capacity at the time of the sexual touching. That would codify J.A., and it would also benefit perhaps a broader range of sexual assault complainants than what's being contemplated by the existing amendment.

In particular, with regard to individuals with dementia, we've seen some interest in the concept of advanced directives vis-à-vis the idea that there could be advance consent by someone in the early stages of Alzheimer's disease to continue to have sexual contact with a spouse even when they no longer recognize them. That's not someone who's unconscious, but it is someone who's very vulnerable and clearly incapable of consenting to sexual activity.

It would also benefit women with intellectual disabilities more generally by making it easier to think about incapacity in a situational way. Where we are now is that judges are very reluctant to find complainants with intellectual disabilities incapable of consenting, because they believe doing so disqualifies them from all sexual activity for all time. Again, focusing the incapacity inquiry on the time that the sexual activity takes place benefits not only those women who are unconscious or otherwise incapacitated from domestic violence or from drugs and alcohol but also women with intellectual disabilities.

It seems to me there might be a clearer and better way to reflect the very important decision of the Supreme Court of Canada in J.A.

The bill also proposes some changes to the definition of mistaken belief in consent, and in particular some clarification that the accused cannot rely on any of the factors that would vitiate consent to found a mistaken belief. That again is codification of the case law, a useful clarification that makes it clear that there is a difference between a mistake of law, which does not exonerate—if you believe that consent is something other than what the law requires, you can't rely on the defence—and the defence of mistake of fact, which is much narrower and requires an honest belief, in the circumstances known to you at the time—not the result of recklessness, not the result of wilful blindness, and not the result of intoxication—that the complainant was consenting and, of course, that you took reasonable steps to ascertain her consent.

Having said that, I think it is worth pointing out that in contemporary sexual assault trials it is rare to even get to this defence. We are still in a situation in which the Criminal Code does not define non-consent, and that's actually what the crown has to prove. Most often, cases fail because the credibility of the complainant's claim as to her state of mind—that she did not want the sexual touching to take place—is undermined, and it is most often undermined by long lists of missed opportunities or what the complainant ought to have done or should have done and didn't do.

That remains a significant barrier for sexual assault complainants, which isn't addressed by Bill C-51. This means that we rarely get to the question of the accused's belief in consent, but I think that, when we do get there, these amendments would certainly be a valuable addition to the Criminal Code.

The last point I want to mention relates to the amendments that touch on the issue of sexual history evidence. In particular, I want to express my strong support for expanding or clarifying the definition of sexual activity to include communications, photographs, and other kinds of evidence that may not relate to actual physical sexual contact between the complainant and the accused or third parties.

That's particularly important because the case law in that area is currently divided, with some judges treating that kind of evidence as falling under section 276, and others thinking that it falls wholly outside, and is therefore simply inadmissible. That would actually be an important and useful clarification, as is the following proviso, which is that, if the evidence is being adduced to support one of the twin myths, it is simply not admissible and we don't go on to a balancing exercise. Those are both areas in which I see courts struggling to apply these provisions as consistent with their original intent, and they remain important clarifications and additions to the sexual history provisions in that area.

That's what I would like to draw to the committee's attention at the outset. I welcome your questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Cunliffe, the floor is yours.

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

Thank you for inviting me to speak to this honourable committee today and particularly for returning at the end of a long day to hear us speak.

It may provide a little context for my remarks if I begin by explaining that my academic research focuses on factual reasoning and the evidentiary rules in criminal trials, so I have a particular interest in factual reasoning in sexual assault cases. For that reason, I'll focus on the procedural dimensions of the proposed changes in Bill C-51, in particular the proposed changes to sections 276 and 278.

The three specific features of the bill that I will address are the clarification in respect of sexual activity that Professor Benedet touched on; the proposal to give sexual assault complainants standing in respect of procedural applications that bear upon their charter rights under section 278; and the imposition of procedural safeguards before an accused person may introduce records in which the complainant has a privacy interest under section 278.

While preparing for today, I reviewed the submission prepared by the Women's Legal Education and Action Fund and that prepared by the Criminal Lawyers' Association. I endorse the submission made by LEAF and the recommendations made within that submission, including in respect of the well-intended, but as Professor Benedet has explained, mis-drafted codification of principles regarding capacity to consent, intoxication, and unconsciousness. I would agree with Professor Benedet in that respect. I won't expand further on these matters at this time, but would be pleased to speak further to them in question time if the honourable members of this committee wish me to do so.

I'll now turn to those amendments that relate more to evidence and procedure. In order to clarify the purpose and the likely operation of these amendments, I'd like to begin by providing you with a brief review of the constitutional principles that have been laid out by the Supreme Court of Canada in respect to sexual assault trials.

The right of an accused person to make full answer in defence is fundamental to Canadian constitutionalism and the rule of law. Like all rights and freedoms, this right has limits. Some of these limits are inherent to the nature of the trial process. For example, defence counsel must have a good faith basis for questions asked on cross-examination. Other limits arise from the relationship between the right to make full answer in defence and other constitutional guarantees, such as the right to equality, privacy, dignity, and security of the person.

In the 1999 Supreme Court decision in R. v. Mills, Chief Justice McLachlin and Justice Iacobucci held on behalf of the majority that a quality consent inform the contextual circumstances in which the rights of full answer in defence and privacy will come into play. A direct quote from the judgment is “the right to make full answer and defence does not include the right to information that would only distort the truth-seeking goal of the trial process.”

In these reasons, the court drew an explicit link between a complainant's charter rights and the truth-seeking function that is the ultimate purpose of a criminal trial. Similarly, the Supreme Court has emphasized that the sexual assault trial should not be permitted to become an ordeal for the complainant. For example, in R. v. Osolin, Justice Cory held on behalf on the majority of the court that a complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system.

The challenge that is therefore presented to both Parliament and the courts is how to fully respect the importance of both the accused person's rights and those of the complainant in a sexual assault trial. A proper delineation of the boundaries of both sets of rights is an integral step towards meeting this challenge. The submission prepared by the Criminal Lawyers' Association states that sexual assault complainants should be protected against disrespect, unfair treatment, myth-based interrogation, and poorly founded, overly intrusive production orders. I agree.

However, the Criminal Lawyers' Association does not acknowledge that sexual assault complainants hold constitutional rights that are potentially impacted by the manner in which sexual assault trials are conducted. It also fails to consider the Supreme Court of Canada's explicit recognition that these rights help to define the proper scope of an accused's rights within the sexual assault trial and vice versa.

Existing statutory rules, including section 276 regarding sexual history evidence, and section 278 regarding third party records, strike a constitutional balance using three principles that have received constitutional endorsement from the Supreme Court of Canada.

The first of these principles is that some forms of reasoning, often referred to as the twin myths, have been characterized by the Supreme Court as simply impermissible. Section 276.1 in its present form, and as it will remain in Bill C-51, absolutely prohibits the admission of sexual history evidence to support that kind of reasoning.

Second, all evidence is subject to a basic requirement of relevance. This principle is reflected in existing paragraph 276(2)(b), which will remain unchanged, and in subsection 278.3(3) which is also unchanged by Bill C-51. I endorse LEAF's recommendation that Bill C-51 be amended to adopt the judicial definition of “likely relevant” provided by the Ontario Court of Appeal in Regina v. Batte. More information on this point is provided at pages 12 to 13 of LEAF's submission.

Third, in order to be admissible, an accused person's evidence must have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This principle is set out, for example, in paragraph 276(2)(c) of the present code. While the numbering will change slightly as a result of Bill C-51, the principle will not. A similar weighing exercise is required in respect of the disclosure of third party records.

Let's turn, then, to Bill C-51. The first of the things it will do with respect to this balancing between the complainant's rights and the accused's rights is to clarify the definition of sexual activity as extending to communications. In circumstances in which an accused person wishes to introduce evidence of sexual communications by the complainant, the trial judge will consider the same three principles as already exist and are already constitutional. Is the evidence introduced solely to perpetuate prohibited myths and stereotypes? If so, it's inadmissible. Is the evidence relevant to the material questions of whether the complainant subjectively consented to the sexual activity that took place at the time of the occurrence of the activity and whether the accused person believed that the complainant was consenting? Does the evidence have significant probative value that's not substantially outweighed by the danger of prejudice to the administration of justice?

In considering these questions, a judge would address the accused person's charter rights and those of the complainant, as well as the extent to which the evidence would advance the truth-seeking function of the trial and other important social purposes. It bears noting that in 1992 when section 276 was first drafted, social media was basically non-existent. The text messages and emails, including picture messages which are widely used today essentially didn't exist in their present form. The cultural embrace of digital technologies for personal communication has opened new doors to the operations of myths and stereotypes that courts and Parliament have tried valiantly to exclude from the justice system. The proposed amendment to section 276 represents a sensible and incremental response to these social changes, and a clarification in a divided body of case law. It will not result in the exclusion of valuable evidence, but it will ensure that judges are attentive to the risks of impermissible reasoning.

I'll now turn briefly to proposed subsections 278.94(2) and (3), which provide complainants the right to legal representation at admissibility hearings regarding her sexual history or records. In an article that I published in the Supreme Court Law Review in 2016, I documented some of the difficulties presently experienced by complainants who seek to assert their charter rights without standing or legal representation. Complainants' charter rights are pivotal to these admissibility hearings. Indeed, these are the very reason why the hearings are being held. Giving them standing and ensuring proper funding to ensure that they have legal representation is the single most effective way to ensure that sexual assault complainants are accorded the equal benefit and protection of the law at this important trial stage.

Finally, I would like to touch on the extension of section 278 records to records that are in the possession of the accused. The Department of Justice backgrounder to Bill C-51 states that proposed subsection 278.92(1) is intended to apply to the—quote—“complainant's private records” that are in the accused person's possession. The language actually used in subsection 278.92(1) as proposed is that a record includes, relevantly, “any form of record that contains personal information for which there is a reasonable expectation of privacy”. The Criminal Lawyers' Association raises the concern that the obligation is overbroad, and provides examples, at page 4 of its submission, of circumstances in which the plain language of the provision as drafted would appear to apply to records that do not engage the concern about a complainant's records.

Based on the Department of Justice backgrounder, I believe the intention is to engage the section 278 process when the accused has possession of records in which the complainant or witness has a privacy interest, but not otherwise. For this reason, I would recommend that this honourable committee consider an amendment to proposed subsection 278.92(1) to read “except in accordance with this section, no record in which a complainant or a witness that is in the possession or control of the accused”, etc.

To clarify that, the salient link to engaging the process is the link between the record and the complainant's privacy interests. This would sidestep the concern about overbreadth that the Criminal Lawyers' Association has raised, while securing the goal the Department of Justice has laid out.

Thank you for your attention.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now move to questions. We're going to start with Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

Thank you to the witnesses.

Professor Benedet, first of all, I want to clarify what you are proposing with respect to proposed subsection 153.1(3), the language that refers to a complainant being unconscious. Were you simply suggesting removing that?

[Prof. Janine Benedet]

I'm suggesting that if the intent of Parliament is to codify the Supreme Court of Canada's decision in Regina v. J.A., it would be better to remove the reference to unconsciousness and to amend the current paragraph (b) to read that no consent is obtained where the complainant is incapable of consenting to the activity at the time the sexual activity takes place. That covers situations in which the complainant is unconscious, but also situations in which there's an argument that advance consent has been given and the complainant is not unconscious but is incapacitated for some other reason, consumption of drugs or alcohol, or some kind of progressive intellectual disability, that they may have had consent at one time and no longer have consent.

I think it covers the reasoning in Regina v. J.A., which wasn't limited to unconsciousness. J.A. makes clear that the relevant time for assessing whether consent is present is at the time the sexual activity takes place. If you are incapable of consent, which includes unconsciousness but is lower than that, then there is no consent to sexual activity and you can't simply say consent was given at some earlier time. You need to be in a position to withdraw it.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

If the language stayed as is, you would be concerned, as I think other witnesses expressed concern, that unconsciousness might be a red line, or an argument would be made to that.

[Prof. Janine Benedet]

That's right. If you look at the jurisprudence, the case law around incapacity right now, it's not a very clear threshold. It's a difficult one to meet.

I think courts often struggle with whether there is a difference between the capacity to say yes and the capacity to know that you don't want to be touched. I think the former is a much higher level of functioning. We're already struggling with those kinds of decisions, courts holding the complainant who gets voluntarily intoxicated to a higher standard than someone who is involuntarily intoxicated.

I worry that the insertion of a separate provision dealing with unconsciousness—it's always been the common law that someone who's unconscious is not capable of consent—muddies the waters and makes the application of what will remain, the incapacity provision, even more fraught than it already is. I don't think it accurately captures the full breadth of the decision in J.A.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you for that clarification.

There is one other area on which I wish to seek clarification. You made reference to the defence of mistaken belief. It was suggested yesterday by one of the witnesses—I believe it was Ms. Lee—that based upon the current wording in Bill C-51, that defence would effectively be eliminated both in terms of mistaken belief on the basis of fact and the law. I believe that the issue comes with subparagraph 273.2(3)(a)(iii), “any circumstance in which no consent is obtained including those referred to”, etc.

Do you agree with her analysis, that unless that wording is changed, there would be the risk of at least creating a lot of confusion about whether that defence in the context of mistaken belief would be an available defence?

[Prof. Janine Benedet]

I have to say that I don't agree with that concern.

I think that the new subparagraph 273.2(a)(iii) that's being proposed is simply a codification of existing law. The Supreme Court of Canada has already made clear that where the accused's belief in consent is founded on a mistake about what consent actually means.... You believe that women sometimes say no and they really mean yes. You believe that passivity or a failure to resist is equivalent to consent. All of those are the kinds of factors that are listed in subsections 265(3) or 273.1(2).

Believing that you have consent in those circumstances—if those are the circumstances known to you at the time—is a mistake of law and not a mistake of fact. You're operating on an incorrect legal definition of consent.

The defensive mistake of fact, which the Supreme Court of Canada has made clear, is meant to be an unusual defence. The phrase that was used by the court is that people do not often commit rape “per incuriam”—by mistake. We should be able in most circumstances to tell the difference between sexual assault and consensual sex.

It's meant to be a narrow defence. It's meant to apply only in circumstances where there's a reasonable doubt on the question of whether the accused honestly believed that the complainant had given her voluntary agreement to engage in the sexual activity, that she had done through her words or her conduct some kind of voluntary yes to engage in sexual activity. That's a mistake of fact. That mistake of fact, of course, needs to be accompanied by evidence that the accused took reasonable steps to ascertain the presence of consent.

The scope of the defence remains the same with this amendment. It's as it always was. I think this is just an attempt to clarify that a mistake founded on a mistaken legal definition of consent doesn't exonerate. I think that's the existing law; it's just not reflected in the code.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair.

I would like to carry on with talking about consent. In earlier panels, some of our witnesses indicated that they would like to see incorporated into the law language such as this: consent means that the individual is capable of understanding the sexual nature of the activity and the associated risk, capable of realizing that they can choose to decline, and capable of communicating consent. Would you support that suggestion?

[Prof. Janine Benedet]

If I understand the question correctly, that's actually a fuller definition of what it means to be incapable of consenting. It's a definition of incapacity that we're talking about here. Am I understanding that?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

My understanding of the earlier testimony was that they wanted to see that specific language in the code in terms of that is what consent means.

[Prof. Janine Benedet]

Right.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Would you support that?

[Prof. Janine Benedet]

I guess I see it as a definition of incapacity. We currently have a definition that says consent is “the voluntary agreement of the complainant to engage in the sexual activity in question”. The question the code leaves unanswered is in what circumstances that voluntary agreement could appear to be present but in fact is not. I shouldn't say that it leaves it unanswered. Some circumstances are enumerated, for example, where the accused induces the complainant to participate by abusing a position of trust.

I would see those as actually definitions of what incapacity to consent means. In general, I would support giving more thought to the question of what incapacity actually is. Another way to look at it is to say that really what we're doing there is giving some substance to the notion of involuntary consent, right? I suppose you could think about it that way as well.