This amendment codifies the legal principle that the defence of honest but mistaken belief in consent is not available if there is no evidence that a complainant has positively expressed agreement to the sexual activity, which can be done through words or conduct. The principle is clearly articulated in Supreme Court of Canada jurisprudence, which informed the drafting of this amendment.
Here are the examples that I would like to share with you today.
First, Ewanchuk clarifies that a belief that silence, passivity, or ambiguous conduct constitutes consent is a mistake of law and provides no defence. That's at paragraph 51. This principle, expressed in another way, requires the accused's belief to be based on something positive the complainant said or did. Ewanchuk also cites commentators who observed that the notion of consent connotes active behaviour. That's at paragraph 27.
Also, Ewanchuk notes that, as you've pointed out, for the purposes of the honest but mistaken belief in consent defence, consent means that the complainant has affirmatively communicated by words or conduct her agreement to engage in sexual activity. As you noted, that's at paragraph 49.
Furthermore, in R. v. J.A., the Supreme Court of Canada's 2011 case, the court noted that the definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity, and that's at paragraph 66.
The court's various articulations of the overarching principle that consent must be expressed positively inform the way in which this proposed amendment is drafted. Its objective is to codify with clear meaning.
It should also be noted that English and French versions of statutes are both authoritative but are not translations of each other. The French version uses the verb manifester, which is also the verb used in paragraph 49 of the French version of Ewanchuk. Unlike “express” or “communicate”—that verb in English—manifester clearly implies positive action or expression. The notion of positive expression is further highlighted by the phrase de façon explicite in the French version of C-51.
“Affirmatively expressed by words or actively expressed by conduct” conveys the same meaning, the meaning that the Supreme Court of Canada has articulated in various places throughout the jurisprudence—not just paragraph 49 of Ewanchuk—as well as in the French version, which is equally authoritative.
I would also note that in the LEAF submission, the Women's Legal Education and Action Fund, they have noted that it is their view that this does reflect a codification of this principle.