Justice Committee on Nov. 8th, 2017

[Rob Nicholson, Conservative, Niagara Falls, ON]

That is a good point, Mr. Fraser. It talked in general terms about the different rules she has, and with respect to the fact that she may not be making any more trips or something. However, that shouldn't change the fact that most people would consider, regardless of whether it's her or any of her successors, that it is a more serious offence if you attack the head of state.

[The Chair, Liberal, Anthony Housefather]

I agree, but Mr. Nicholson, could you just point us to the sentence, because I also read this brief from the Monarchist League and I couldn't find it. I only see the end:

...confident that the existing provision does not address a significant problem and that Canadians generally demonstrate respect for Monarch and Crown without the need for legislation or threat of punishment, we see no reason to oppose the removal of this section of the Criminal Code.

I couldn't find where they oppose—

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's a good point, Mr. Chair.

I'm sorry for raising that matter with you, but I understood they were there. That being said, the timing of this is very bad. Going back to the argument, no case has been made for why it should be removed, quite frankly.

[The Chair, Liberal, Anthony Housefather]

Do any other colleagues wish to intervene on this one?

If not, we're going to be voting on whether clause 1 shall carry. If you support Mr. Nicholson's argument, you would vote against clause 1 carrying, and if you do not support it, you would vote in favour of clause 1 carrying.

(Clause 1 agreed to)

We have no amendments to clauses 2 through 9, colleagues. Does anyone propose to ask to amend anything in clauses 2 through 9? If not, perhaps we could carry them as a group, or vote on them as a group. I'll give you time to look at that.

Colleagues, shall clauses 2 through 9 carry?

(Clauses 2 to 9 inclusive agreed to)

(On clause 10)

Now we move to the beginning of our amendments, with clause 10.

The first amendment we have to clause 10 is LIB-1.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair.

The purpose of LIB-1 is to address some of the concerns that we heard in the evidence, namely that there needs to be a more clear articulation that identifies the codification of the R. v. J.A. judgment. I believe this amendment does that by making it clear that there must be contemporaneous consent at the time of the sexual activity and that it must be ongoing, that the consent cannot be valid if it was made in advance, and that the person engaging in sexual activity must be able to withdraw consent at any time.

Also, this amendment would clearly identify that no consent given is a question of law, and it would make it clear that the defence of mistaken belief in consent as it relates to fact remains a proper, albeit a limited defence, based on the evidence we heard. That's why I'm putting forward LIB-1.

[The Chair, Liberal, Anthony Housefather]

LIB-1 is identical to LIB-4, so they carry together. They won't carry at the same time, but they're identical in the two different places.

[Colin Fraser, Liberal, West Nova, NS]

The rationale would be exactly the same for LIB-4, touching on another provision that has similar ideas.

[The Chair, Liberal, Anthony Housefather]

Yes, perfect, but this is only on LIB-1.

Are there comments, colleagues, from anyone who wishes to intervene?

Colleagues, there's just a small spelling mistake in the French version, in proposed subsection 153.1(2.2), where the word “terms” should be “termes”, with an “e”.

Mr. Fraser, I'm sure you would consider that a friendly amendment.

[Colin Fraser, Liberal, West Nova, NS]

Of course, yes.

[The Chair, Liberal, Anthony Housefather]

Are there any other comments, colleagues?

(Amendment agreed to [See Minutes of Proceedings])

Now we move to NDP-1, which is from Mr. MacGregor.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Chair.

Colleagues, I'm proposing to replace line 14 on page 5 with the following:

in paragraph (a.l), including the reason that the complainant does not have the capacity to understand the nature of the activity or is not aware that they are not obliged to consent to the activity;

Colleagues, my rationale for moving this amendment comes in particular from testimony that we heard at this committee from Professor Janine Benedet. She said:

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.

Professor Benedet's testimony was just seeking to have a little bit more clarification in this particular part of the code. I hope I've convinced my colleagues to support this amendment, just to give the code and this particularly important piece of our law the clarity that it deserves. I'll leave it to any comments. Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Are there comments, colleagues?

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Yes. Thank you, Mr. MacGregor, for bringing this forward. It was part of some of the evidence we heard.

The difficulty I would have with this amendment is that the bill as it currently stands has the broadest language possible. I would be concerned that by adding to that definition, it limits the scope of what is actually intended by having the broadest language. I think we keep it the way it is in the bill in order to catch all of the intended situations that are covered and in order not to limit it or be perceived, perhaps, to be limiting it, and open up that possibility to arguments by counsel.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Are there any other comments, colleagues?

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. MacGregor makes a good point. It seems to me that this could better protect children and young persons, and persons who have disabilities. He did point out that we had evidence before this committee that is supportive of these changes, so I'll be supporting this amendment.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. McKinnon.

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

Thanks, Chair.

I actually questioned Professor Benedet on this, and I certainly share the concern. That's where the questioning came from. However, I have talked about this with a number of people and I've come to understand that by incorporating that specific language in the law, it unfairly raises the barriers to the defence. We want to protect complainants, but we need to keep it fair for the defence as well. It does seem to narrow the language, which is broad. I also feel that the amendment that Mr. Fraser just brought forward will address this issue substantively, too.

With regret, I'm not going to support this.

[The Chair, Liberal, Anthony Housefather]

Okay.

Can I ask a question, either to Mr. MacGregor or the officials, or maybe to both? I have two questions, actually.

One, with the fact that we have “unconscious” and then a general provision saying for anything else, is there any potential that by adding two specific examples into the second paragraph, the courts may then narrow the scope of what it's intended to mean?

Two, would somebody not being aware that they are not obliged to consent to the activity not be a mistake of law, a misunderstanding of the law, as opposed to incapacity?

[Nathalie Levman, Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice]

Regarding your second point, I agree with you. I'm concerned that this doesn't necessarily speak to the capacity issue that proposed paragraph 153.1(3)(b) speaks to.

That raises a number of different points about your first question, which is that the law on when a person is so incapacitated that no consent is obtained in law is complex. The case law is difficult and there may be a number of different factors that are relevant. Singling out two factors, one of which may not relate to capacity, may have some unintended effects. As to what those effects could be, I cannot speculate, but I just point out that it is a complex issue of law, this particular paragraph, proposed paragraph 273.1(2)(b).

[The Chair, Liberal, Anthony Housefather]

Mr. MacGregor, did you want to answer also?

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

No, I don't have....

[The Chair, Liberal, Anthony Housefather]

Colleagues, are there any further questions or comments?

If not, do you want to close?

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

I take your reasons. Unfortunately, I wasn't present for much of the testimony, so I had to go on reading a lot of transcripts. It just seemed to me that with Professor Benedet's testimony, she was really driving home on this particular point. We tried our best to take her intention, provide it to legislative drafters, and bring this forward. In my honest opinion, I don't see it so much as limiting it but just underlying another reason consent cannot be obtained. To me, that capacity to understand the nature of what's going on is actually broadening this section.

In any case, I'm prepared to accept the will of this committee, so I'm prepared to go to a vote.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

(Amendment negatived)

[The Chair, Liberal, Anthony Housefather]

Next we will move to amendment CPC-1.

Mr. Cooper.