Justice Committee on Nov. 8th, 2017

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

Thank you, Mr. Chair.

This is a fairly straightforward amendment. It deals with honest but mistaken belief in the section that pertains to when that defence cannot be advanced.

Under proposed paragraph 153.1(5)(c), the intent of the language is essentially to codify the Ewanchuk decision. The Canadian Bar Association raised a concern in their submission that the word “actively”, which is added to the subsection in proposed paragraph 153.1(5)(c), could cause some confusion as to what the meaning of that word is.

My amendment would simply remove that word to remove any ambiguity or any issues that might arise in terms of litigation over whether there is a meaning to that word “actively” so that the subsection would plainly reflect paragraph 49 of the Ewanchuk decision, which I believe is the intent of the subsection.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Are there comments, colleagues?

Mr. McKinnon.

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

I wonder if the officials could give us their view of this in relation to Ewanchuk.

[Nathalie Levman]

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.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. McKinnon, do you have another question?

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

What I'm hearing is that this proposed change also reflects the Supreme Court judgment. I like this amendment. I wonder if we could have a bit of a—

[The Chair, Liberal, Anthony Housefather]

I have some questions. Does anybody else have questions for the officials? I would like to understand something.

I understand that the French and English versions are drafted separately to try to convey the same meaning and so they are not translations of one another. Where my question lies, and the concern I have, is that in the French version we're using the words

“...à l'activité a été manifesté de façon explicite par ses paroles ou son comportement.”

That means paroles and comportement are using the same adjectives—the same words—to tell us what can or cannot be consent. Both words and behaviour or conduct are using the same adjectives.

In English, instead of using the same words, we're using two different phrases: “affirmatively expressed by words” and “actively expressed by conduct”.

If I was translating it based on the French, I would say “affirmatively expressed by words or conduct”. Can you explain to me the difference between “affirmatively” and “actively”, so that I can understand why we're using different words for words and for conduct in English but not in French?

[Nathalie Levman]

I want to say that I speak French but I'm not francophone, so I'm not an authority on the intricacies of the French language.

When we sit in a drafting room and we draft, we try to achieve the clearest way of expressing the same thing in both languages. Sometimes that means using different words in each language because of what the words mean, respectively. That's what happened here.

We have assured ourselves that the meaning is the same, and that it is expressed clearly in both languages. I believe that “actively expressed by conduct” versus “affirmatively expressed by words”, was just considered to be a better way of expressing the concept of positive action or words, because one adverb fit better in English with words and the other with conduct. It's as simple as that.

I want to stress the fact that the two versions have to be read together, and their objective is to codify the principles in the Supreme Court of Canada jurisprudence, not just in paragraph 49 but also in the other locations that I noted. The words are carefully chosen to reflect that.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Colleagues, have you any further comments?

Mr. McKinnon.

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

Could we have a brief recess so I could talk with my cohort here about this?

[The Chair, Liberal, Anthony Housefather]

Colleagues, is that okay?

We'll have a brief recess.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, colleagues.

We'll resume the meeting. I appreciate that.

Are there any further interventions on CPC-1?

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thanks, Mr. Chair.

I've thought about this, and I appreciate the purpose and intent behind the amendment. I recognize what the Canadian Bar Association said. However, I accept the officials' explanation as to its codifying Ewanchuk and adding the word “active”. If you look at paragraph 27 in particular, it talks about “active behaviour”. There are other paragraphs indicating that the conduct must be more than passive, which is the state of the law right now in common law. J.A. uses the words “active consent”.

I had some difficulty until it was explained regarding the difference between the French and the English, but in French the word manifesté I believe is different from the word in English, and they have to be read together.

While I appreciate the intention of it, I think the bill as drafted correctly identifies the state of the law after Ewanchuk and J.A., and that's why I'm not going to be supporting this amendment.

[The Chair, Liberal, Anthony Housefather]

Are there any further comments?

Mr. Cooper, do you want to close?

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

I would respectfully submit that using the word “affirmatively” captures both, and using this different word, “actively”, actually creates more questions. It creates ambiguity and will result, I believe, in further litigation.

These words were not used by the Supreme Court. The Supreme Court used the word “affirmatively”. That was what the Supreme Court used in capturing both words and conduct.

I would respectfully disagree, and with respect to the translation, if anything this would seem to clean it up.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Let's move to a vote, then, on CPC-1.

(Amendment negatived)

Now that we've had our votes on the amendments proposed to clause 10, does anyone else have any other amendments to clause 10?

Not hearing any, we will now have a vote on clause 10 as amended.

(Clause 10 as amended agreed to)

(Clause 11 and 12 agreed to)

All those in favour of clause 13?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Just a second, we have an amendment here. It's CPC-2.

[The Chair, Liberal, Anthony Housefather]

CPC-2 and LIB-2 create new clause 13.1. As I understand it, the current clause 13 deals with section 165 of the act being repealed, and the amendments deal with section 176. My clerk tells me we have to vote on 13 before we can get to the next amendment.

(Clause 13 agreed to)

I'm going to ask a question of the committee, and it's only if you all agree to do it this way.

We're soon going to get into the substantive discussion of what should be in section 176. We have two amendments that are very similar but a bit different. It would seem logical to me that before that, we would actually make the decision that we would leave section 176 and then decide how to amend it, which would come as the identical CPC-3 and LIB-3 as part of clause 14.

I am told that with unanimous consent we can vote on the identical CPC-3 and LIB-3 and then have the committee agree to leave section 176—

[Colin Fraser, Liberal, West Nova, NS]

Mr. Chair, it's LIB-2.

[The Chair, Liberal, Anthony Housefather]

Sorry. I keep using—

[Colin Fraser, Liberal, West Nova, NS]

It's CPC-2 and LIB-2.

[The Chair, Liberal, Anthony Housefather]

No, but I'm talking about moving to CPC-3 and LIB-3 first.

CPC-2 and LIB-2 are both saying that section 176 should read this way. CPC-3 and LIB-3 both have the purpose of saying we're not taking out 176.

It would seem logical to me that we would agree not to take out 176 and then decide how we want to amend 176, but only if you want to do it that way. I mean, that just seems the logical thing, to agree to leave it there and then how to change it once we agree to leave it there.

[Rob Nicholson, Conservative, Niagara Falls, ON]

We'd like to leave it there, but we'd like to amend it.

[The Chair, Liberal, Anthony Housefather]

For sure, but the effect of adopting CPC-3 and LIB-3 is that we're not taking it out. Then we move back to CPC-2 and LIB-2 and talk about how to amend it.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think we should talk about CPC-2 and CPC-3, and then go from there and we'll figure it out.