Justice committee  Maybe I can approach that question. I don't know if this is going to assist you, but I guess what I would say, as someone who doesn't want to see us move in that direction, is that what I actually see is the opposite. Increasingly now, I attend forums and conferences where I hear

Justice committee  Thank you very much to the members of the committee for inviting me. As has been said, I'm a Professor of Law at the University of British Columbia. For the past two decades, my scholarly research and a good deal of my pro bono legal work has focused on the issue of sexual viol

Justice committee  I think it's better than just leaving it as incapable of consenting, because then I think it's open to confusion: “Wait a minute, isn't that just redundant, (a) and (b)?” I take the point that the addition of the words “for any reason other than unconsciousness” is an attempt to

Justice committee  On the issue of mistaken belief in consent, yes, I think the proposed revisions are entirely accurate and a fair codification of what the Supreme Court of Canada said in that case. The piece that's missing is that the court in Ewanchuk also defined for the purposes of the actus

Justice committee  You're right. Even though it's negating the mental element, we treat it like a defence. The crown would put in their case. The defence, in order to have that defence left with the jury, would have to give an air of reality to the defence, which means they would have to point to s

Justice committee  I could probably say a couple of things in relation to that. You're quite right that simply some kind of notional right to counsel, if it's not funded, is illusory for most women. I think it's also important to recognize that the level of documentation for complainants does not

Justice committee  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?

Justice committee  Right.

Justice committee  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

Justice committee  For a very long time, the law considered consent in terms of a failure to resist, so a submission could be equated with a consent. Our definition in the Criminal Code says that not only does there need to be consent, that the complainant has to want in her own mind the sexual tou

Justice committee  Maybe those are two different things. They're already there, but unfortunately courts don't always see that they're already there.

Justice committee  I'm not sure if it's a separate, free-standing provision or just more circumstances in the current list we see in 273.1(2) regarding where no consent is obtained. You could do that by simply defining incapacity a bit more broadly and including some of those other factors in the s

Justice committee  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

Justice committee  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 mist

Justice committee  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