Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 47 - Evidence - June 14, 2018
OTTAWA, Thursday, June 14, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, met this day at 10:30 a.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Good morning, honourable senators, and welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. Today we are opening our consideration and examination of Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act.
We have the pleasure this morning of welcoming a panel of well-known professors, especially on behalf of the Centre for Free Expression: James L. Turk, Director, Centre for Free Expression, Ryerson University; Jamie Cameron, Professor, Osgoode Hall Law School; and Lisa Taylor, Assistant Professor of Journalism, Ryerson University. Welcome to all of you. Also appearing before us by video conference this morning is Elaine Craig, Associate Professor, Schulich School of Law, Dalhousie University.
I think, honourable guests, that you know the procedure. I will invite Mr. Turk to make his opening statement, followed by Professor Cameron and Professor Craig.
James L. Turk, Director, Centre for Free Expression, Ryerson University, Centre for Free Expression: Thank you very much, Mr. Chair. We want to express our appreciation to you and the committee for having us. Professor Jamie Cameron from Osgoode Hall Law School, one of Canada’s most respected and senior constitutional scholars, will be making our presentation.
Professor Taylor has undertaken the most substantial research on the use of defamatory libel in Canada since the turn of the century. Professor Cameron will make reference to her work, and Professor Taylor will be available to answer any questions committee members have about the specific application of that law. I will now turn it over to Professor Cameron.
Jamie Cameron, Professor, Osgoode Hall Law School, Centre for Free Expression: Thank you, Jim, and thank you, Senator Joyal. Like Dr. Turk, I appreciate the opportunity to appear here today and thank the committee for hearing us. I will try to be brief.
Bill C-51 is an important and welcome initiative. It is not often that Parliament takes a methodical look at the Criminal Code, and in doing so, Bill C-51 has specific objectives. One of those objectives is to deal with obsolete provisions of the Criminal Code; a second objective is to deal with laws that no longer have a place in the criminal law; and a third objective is to address laws that either are unconstitutional or carry risks under the Canadian Charter of Rights and Freedoms.
So that’s the framework in which we bring our presentation this morning. We are pleased that blasphemous libel falls within Bill C-51’s objectives and that the plan is for this provision of the Criminal Code to be repealed. At the same time, it’s unfortunate in our view that the government has singled blasphemous libel out and not given adequate consideration to the status of seditious libel and defamatory libel. Apart from a minor detail, defamatory libel remains unamended under Bill C-51.
Today, we’d like to take a few moments to tell you why we consider all three forms of criminal libel problematic and why we think it’s appropriate for Parliament to repeal and remove all three forms of criminal libel from the Criminal Code.
First, here a couple of words on each of the three forms of libel currently found in the Criminal Code. Blasphemous libel, which is scheduled for repeal, is an inactive and outdated provision of the code, and I think it’s widely accepted that this provision and this offence is obsolete and no longer has a place in the criminal law. I believe I’m right in saying it was last prosecuted in and around 1936.
Seditious libel is similar in our presentation. Seditious libel was last prosecuted unsuccessfully in the late 1940s, and it resulted in a major precedent at the Supreme Court of Canada called Boucher v. the King, and in our submission these provisions of the Criminal Code are also obsolete. They’re really about public disorder and public disorder offences and no longer have a place in the criminal law.
I turn now to defamatory libel. Defamatory libel in the Criminal Code consists of two separate offences set out in sections 300 and 301 of the Criminal Code. I think it’s fair to say that the situation with respect to defamatory libel is a little bit different because these provisions of the code are not obsolete, and that actually is the problem.
First, in section 301 of the Criminal Code it is important to note that this form of defamatory libel has been declared unconstitutional by five lower courts in five different provinces. Regrettably, and perhaps because there seems to be no need to appeal, there hasn’t been a decision by any higher court, so section 301 remains in place but has been declared unconstitutional by five courts in five different provinces.
Section 301 is problematic because it’s harsher than the civil law of defamation. As my colleague, Lisa Taylor, will be able to tell you, it has been misused to protect public and private authorities from criticism. It’s my personal view that this provision is manifestly unconstitutional and is well within the objectives of Bill C-51 in identifying Criminal Code provisions that carry risks to the Charter of Rights and Freedoms.
Section 300 of the Criminal Code has slightly different elements for defamatory libel. I don’t have time to get into them, but I will say that the constitutional status of this provision is more contestable, and that’s because this provision was upheld by the Supreme Court of Canada in the late 1990s.
Without getting into those details, and I’m happy to answer questions on that, our position is that regardless of the Supreme Court’s constitutional decision, defamatory libel as defined in section 300 of the Criminal Code no longer belongs in the criminal law.
In making that statement, I would like to draw the committee’s attention to a 1984 study on defamatory libel by the Law Commission of Canada which, at that time, recommended that defamatory libel be abolished and removed from the criminal law of Canada.
I have three quick additional points I’d like to bring to the committee’s attention.
The first concerns our appearance before the house committee and remarks made by the Parliamentary Secretary to the Minister of Justice at third reading; this is the Honourable Marco Mendicino. I will read this out to the members of the Senate here in the committee. He said to the house:
During the committee proceedings on Bill C-51, we heard testimony from the Centre for Free Expression that we should go further and that in addition to repealing blasphemous libel, our government should be repealing the offences targeting seditious and defamatory libel as well. Although such amendments would have been outside the scope of the bill, these are interesting suggestions, and they do indeed warrant further discussion.
I know, for example, that England abolished its seditious libel offences in 2009. I also know that there are divergent opinions on whether defamatory libel should be criminal. We have all benefited from the discussion on these proposals, and our government will take them under advisement as we continue to examine ways to make our criminal law and criminal justice system more reflective and responsive to the realities of Canada today.
He also stated to the house that Bill C-51 seeks to repeal provisions found unconstitutional by appeal courts and, in some cases, trial courts in circumstances where there can be little doubt as to their unconstitutionality.
It’s our position that there is no doubt about the unconstitutionality of section 301, and we’re asking the Senate committee today to take the next step and engage in the consideration that Mr. Mendicino brought to the attention of the house.
My second point is that it’s important to know that the U.K. abolished all forms of common law criminal libel in 2009, and in doing so, Claire Ward, Parliamentary Under-Secretary of State in the Ministry of Justice, made the following remarks:
Sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today.
Freedom of speech is now seen as the touchstone of democracy, and the ability of individuals to criticize the state is crucial to maintaining freedom.
The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws.
She concluded:
Abolishing these offences will allow the U.K. to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.
My last comment is that criminal libel laws are routinely recognized as a violation of the ICCPR’s Article 19 guarantees for free expression. General comment No. 34 is considered authoritative, and it makes ongoing calls for countries to abolish criminal libel and replace it with civil defamation laws.
There’s more I can say about that, but I think I’ve taken my five minutes. I would be happy to answer questions from the committee. In particular, I invite the committee to ask my colleague Professor Taylor about the study she has undertaken.
In conclusion, we think our position is well grounded in domestic and Charter law and in criminal law policies as well as in international law. Thank you for giving us the opportunity to make these comments this morning, and we look forward to your questions.
The Chair: Thank you very much, Professor Cameron. Professor Taylor, please make your presentation.
Lisa Taylor, Assistant Professor of Journalism, Ryerson University, Centre for Free Expression: Professor Cameron made the observation that the received wisdom around defamatory libel has been that it’s rarely prosecuted. We can read this time and again.
A colleague and I did some empirical research to pull together all the cases in which Criminal Code defamatory libel had been used since 2000. In 1984, when the Law Commission made its recommendation to abolish it, there were only two or three cases a year. By 2000, there were about 20 prosecutions per year, and by 2015, we were up to 40 per year. I don’t presume that the gathering of cases I have done is exhaustive; I’m convinced I’ve missed some.
Even still, we’re talking about 400 cases of defamatory libel between 2000 and 2015. That in itself is telling, but the more telling part is that when you look at the types of cases, they fall into two very distinct categories. The first category is that of cyber-smearing, an unfortunate side effect of the Internet age. It is defamation conducted online, with the use of a criminal remedy as opposed to civil law to resolve these matters. More than a third of these cases are what I would call cases that suppress political speech. These are cases consistently in which the target of the speech is a state actor — usually police, often judges or Crown prosecutors and sometimes even prison guards. In one case, it was a Canada Revenue Agency investigator.
These are state actors being criticized for their job, the work they do and the power they hold. This puts the comments at the core of our freedom of speech guarantee. Those who speak out against these individuals use harsh and inelegant language, and hyperbole of the highest order, but they’re not powerful people. They’re the “little guy” who is upset, feeling that a prison guard or police officer behaved inappropriately, and they are speaking out against that. This is speech core to our free speech guarantee and on matters of public importance. This year-over-year increase we’re seeing strongly suggests that authorities are using this more frequently.
To make a final point about this, in many cases, there seems to be a disproportionate number of defamatory libel investigations in which, ultimately, no charges are laid. But the process itself is the punishment in that police show up with search warrants; they seize communications devices, such as cellphones and computers; individuals hire criminal defence lawyers because they are worried about where this is going; and then suddenly, magically, the charges are dropped. So it does appear that, in many cases, it is the process itself that provides punishment, even if, ultimately, the cases don’t go to trial.
I’d be happy to elaborate on any other aspect of that.
The Chair: Thank you very much for that short and targeted presentation, Professor Taylor.
It is my pleasure to invite Professor Elaine Craig from the Schulich School of Law to speak.
Elaine Craig, Associate Professor, Schulich School of Law, Dalhousie University, as an individual: Thank you for inviting me to appear today.
My area of expertise is sexual assault law, and I will confine my comments to Bill C-51’s amendments to this area of law, which is page 9 of the bill. I’ll just make a few brief points, but I can speak to other aspects, including the provisions with respect to consent, should you have any questions on those.
With respect to proposed changes to section 276, prior sexual history, the rape shield provisions, the bill makes important and necessary changes. First, it cleans up some sloppy drafting in the current version that has, unfortunately, led numerous trial judges to improperly apply the rape shield law. I’m referring here to subclause 21(1) of the bill.
This subclause doesn’t change the law; it clarifies that “twin myth” evidence is never admissible. It reflects what courts that have properly applied the current provision have said repeatedly. This amendment should help to reduce the types of errors trial judges continue to make because of their lack of understanding of how the subsections of 276 intersect and are intended to operate.
The second amendment to the rape shield provision — and now I’m looking at subclause 21(3) of the bill — amends section 276 to clarify that the rape shield law applies to sexual communication. Here, we’re talking about texts, emails, photographs — those types of evidence. The important thing to remember with respect to this amendment is that lots of courts, and both Crown and defence lawyers, have already recognized that these types of communications fall under the rape shield regime, and that it’s right and appropriate to recognize these communications as sexual activity for the purposes of section 276.
The use of texts, for example, between the complainant and the accused is now commonplace in sexual assault trials. When the content of those communications is sexual, this evidence should be assessed in advance to make sure it isn’t being used simply to humiliate and embarrass the complainant or to trigger discriminatory stereotypes that risk distorting the truth-seeking function of the trial process.
If you think about the recent and, in my opinion, horrific case from Newfoundland that went up to the Supreme Court of Canada last year involving very graphic texts between the complainant and others, no one suggested those texts shouldn’t have been subject to section 276. This amendment would simply clarify that. In its decision in the Newfoundland case, the Supreme Court recognized the power of these types of communications — these types of evidence — to distort the trial process by infecting it with discriminatory gender-based stereotypes.
So this amendment, subclause 21(3) of the bill, is both necessary and desirable. Trial courts need clarification about what constitutes sexual activity for purposes of section 276. Particularly in the era of social media and the increased role that digital communications play in the sex lives of Canadians, young Canadians in particular, it is entirely consistent with the legislative objectives of section 276 to include sexual communications within the scope of our rape shield regime. As I said, some courts are already doing it.
The last point that I’ll make by way of opening remarks is that one of the concerns expressed by some with respect to Bill C-51 relates to the introduction of, essentially, an admissibility process for records in the possession of the accused. The argument, as you already know, is that these changes to the law will destroy the ability of the defence to essentially catch complainants in lies or inconsistencies.
First, in terms of emails and texts that have sexual content, as I’ve said, they’ve already been treated as section 276 evidence in some cases, and they should be, as I’ve noted. So the defence has always been required to disclose evidence subject to section 276 prior to introducing it at trial. The argument that this violates an accused’s rights by forcing them to reveal their case was soundly rejected by the Supreme Court of Canada. I don’t think the court could have been any clearer in Darrach:
The right to make full answer and defence does not include the right to defend by ambush.
So the accused may very well have a strategic interest in surprising complainants with their intimate sexual communications at trial, but it’s just that; it is a strategic interest, not a constitutional right. And the intensely important justice objectives underpinning 276 justify impeding this strategic interest.
The last thing I will say is that in terms of the other records in the accused’s possession — communicative content that wouldn’t be of a sexual nature — there is no constitutional right to ambush. The point of a trial process is to attempt to ascertain truth. We allow complainants to review their police statements and preliminary inquiry evidence prior to trial. The Supreme Court has repeatedly said in sexual assault cases the right to full answer and defence is not a right to the most favourable procedures imaginable. It is true that this change will have an impact on the strategic advantages currently deployed by those accused of sexual assault. But strategic and constitutional interests are not synonymous, and it’s not clear to me that there’s a constitutional issue, even with respect to non-sexual records in possession of the accused, but certainly there isn’t one with respect to sexual communications in the possession of the accused.
The Chair: Thank you very much, Professor Craig. May I ask you to identify the two Supreme Court cases you referred to?
Our viewers, who are not necessarily law students, might want to know the name of the parties to be able to go through these court cases. Would you have those names at hand now?
Ms. Craig: The first case I referred to is R. v. S.B., the Newfoundland case, and the second is R. v. Darrach.
The Chair: Thank you very much, professor.
[Translation]
Senator Boisvenu: First, thank you very much for your interesting presentations. My question is for Professor Elaine Craig.
In Professor Benedet’s opinion, based on U.S. statistics, 50,000 women in Canada have been sexually assaulted while intoxicated. I would remind you of the case in Nova Scotia, on March 3, 2017, when Justice Lenehan acquitted a taxi driver of sexual assault, which angered feminist groups and Minister Bernard from Nova Scotia, among others. According to this decision, a person who is drunk can give consent. Professor Sheehy, from the University of Ottawa, stated at the time that this decision sends the message that it is open hunting season on non-consenting women.
Does this bill clearly define consent in the case of intoxication? Do you think this bill will in future prevent such decisions in cases of sexual assault of women? I would remind you that 50,000 Canadian women have been sexually assaulted while intoxicated. Will this bill send the message to judges once and for all that consent is impossible when a woman is drunk? The current bill provides that there can be no consent if the person is unconscious or unable to form a judgment.
Is the bill clear enough to ensure that women who are sexually assaulted while they are intoxicated will no longer see their attackers acquitted in court?
[English]
Ms. Craig: Thank you for the question. Unfortunately, I’m not sure that the amendment will achieve that objective. So the case that you’re referring to is Al-Rawi, which was a case that happened here in Halifax. In my experience, the research that I have done with respect to the issue of capacity to consent while intoxicated suggests to me that trial judges fortunately, thankfully, at this point, typically are not confused about a woman’s lack of capacity to consent while unconscious. They tend to get that one right. Al-Rawi in part was so shocking because of a number of failures, including Judge Lenehan’s reasoning with respect to capacity and unconsciousness.
With respect to the amendment, I don’t think it will do much to provide trial judges with the appropriate guidance and clarification with respect to capacity because it’s true that individuals can consent to sexual contact while intoxicated. The difficulty in these cases is ascertaining where to draw that line between drunk but still able to say “yes,” still able to understand the nature and consequences of one’s action, and too drunk. Where trial judges are having difficulty drawing that line is at that level or gradation of intoxication. Most trial judges are not having difficulty drawing the line at unconsciousness. The question or the trick — and unfortunately I don’t think this amendment will achieve this — is trying to figure out how much before unconsciousness does a complainant have capacity? At what point do we draw that line?
Certainly we can all agree that the line shouldn’t be drawn at unconsciousness. One of the unfortunate things with this particular amendment, and something that some scholars and feminist lawyers have identified as a potential difficulty with this particular amendment, is that it might erroneously suggest to some trial judges that now we are just going to draw the line at unconsciousness. That’s not the law. That isn’t how the courts have approached the issue of capacity to consent, nor is it the way to approach it.
Unfortunately, my answer is that it is not going to do a lot to help with that problem.
[Translation]
Senator Boisvenu: Does this amendment require clarification or is it simply a question of training judges?
[English]
Ms. Craig: I think there is clarification that could be added. We have left it to the discretion of judges to date, and we have inconsistency across the provinces, including in Nova Scotia’s recent decision in Al-Rawi about how and where to draw that line.
My position would be that the line should be drawn at the point where someone’s level of intoxication means that they lack the capacity to understand both the nature of the sexual acts as well as any risks. Some courts have adopted that standard. Others, including the Nova Scotia Court of Appeal, unfortunately didn’t go that far. And so yes, I think there is a role to be played by Parliament in clarifying that, because either the Supreme Court needs to clarify that or we need a legislative response to clarify that so that we can have consistency across the country. And if we’re serious about protecting intoxicated women from sexual assault, I think we need to take that heightened assessment that I’m suggesting.
The Chair: Thank you, professor.
[Translation]
Senator Dupuis: My question is for Professor Turk. I would like you to explain your recommendation that defamatory libel be repealed. There is such a high level of activity on the Internet these days, which affects young people in particular, who are relatively vulnerable. Have you addressed this issue? Have you thought about it? If so, what are your thoughts?
[English]
Mr. Turk: I will ask my colleagues if they want to comment. It’s our view that defamatory libel is an inappropriate and unnecessary way of dealing with the problem that you have identified.
The use of defamatory libel in the instance to silence critics of public officials is clearly a problem, but the other issue of it, which Professor Taylor addressed, those behaviours certainly need to be addressed and can be addressed by other provisions of the Criminal Code so that defamatory libel is not necessary to deal with that problem.
Professor Taylor has done a lot of work on that and may want to elaborate.
Ms. Cameron: As a matter of first impressions, these kinds of exchanges fall generally into the realm of private wrongs between individuals and, in general, they should be dealt with by the civil law of defamation.
In addition, remedies are available currently under criminal law, which would include some of the existing offences for things like harassment and uttering threats. There are some that deal with different kinds of cyberbullying, and there are ways in which takedowns can be available in certain circumstances.
Perhaps the most appropriate way to deal with this specific issue is a specific provision, not an outdated provision that doesn’t address the circumstances of what we’re looking at with widespread Internet communication.
Ms. Taylor: A federal Department of Justice publication from last year entitled Existing Criminal Code Responses to Cyberbullying set out the range of much more targeted criminal law remedies to problems associated with defamatory communications online, especially for the younger generation. That publication lists about 9 or 10 alternative remedies in the Criminal Code that do not suffer from the same degree of overbreadth that we see with defamatory libel.
Senator Gold: Thank you all for appearing. It is an especially great pleasure to see my former colleague Jamie Cameron there because it has been decades. I’ve followed your career with great pleasure.
I agree with Professor Taylor that the process is so often the punishment. I recall Alan Borovoy was keen to remind us that laws restricting speech are often used on the ground by the police to harass and stop otherwise legitimate expressions of protest, and so on. I agree that it’s not only the matter of the number of cases but also how it’s handled and the tools that it puts in the hands before a case goes to trial or a charge is laid.
I’m not sure I agree, Professor Cameron, that there is no doubt about the constitutionality. Colleagues here know that I’m somewhat conservative in these matters. But in any event, I would tend to agree that defamatory libel does not belong, as a matter of principle, in the Criminal Code.
Could you elaborate more on those more targeted provisions in the Criminal Code that you think would better protect the competing interests than the law of defamatory libel? Could you also comment on the problem that treating it simply as a civil matter — that is, the law of defamation — imposes a burden on the victim or the person who is the recipient of the libel? Is there anything outside the Criminal Code that would be more appropriate for the state to signal the unacceptability of this kind of libel without putting the burden on the libelee to pursue their libelor?
Ms. Cameron: Perhaps I can say a few things and then turn it over to Professor Taylor. It’s nice to see you, Senator Gold.
In terms of your two-part question about the deficiencies of the civil law system of defamation, I don’t have a good answer to that except to say that engaging the coercive authority of the criminal law is not an appropriate manner of dealing with access-to-justice problems in the civil law. I regret saying that, but the criminal law is our most coercive sanction, so it ought to be reserved for a small number of cases in which the harm is very pronounced and very manifest. That’s not achieved by the current definitions of defamatory libel in either section 300 or 301.
To add a footnote to that, it may well be that the civil law of defamation will be undergoing some significant change in the near future. There is a major project under way at the Law Commission of Ontario dealing with defamation in the Internet age. They’re doing a comprehensive project to determine whether and in what ways the law of defamation can be modified to better address the problems of defamation generally, but especially in the Internet age. It’s midway, and I don’t know what they’ll recommend, but there is attention to these issues.
Just a second point about the criminal law before turning back to Professor Taylor. One thing I think has gone missing in the constitutional consideration of defamatory libel provisions is the harm threshold that is needed to engage the criminal law where we’re talking about freedom of expression. I’m not saying that the criminal law couldn’t be engaged to deal with some of these extreme kinds of defamatory statements, but that has not been done either by the language of the statutory provisions or by the jurisprudential attention to this issue on the part of the Supreme Court in R v. Lucas.
In R v. Lucas, the decision relied on a civil law defamation precedent, Church of Scientology v. Hill, to uphold the criminal defamatory libel provisions. Several years out now, the authority of Church of Scientology has been diminished by subsequent civil authority of the Supreme Court of Canada. The whole status of defamatory libel is low if we look at analogue democracies like the United Kingdom and sources like general comment No. 34 and the international sources.
I’m sorry my answer was long, but I’m finished.
Ms. Taylor: Senator Gold, I shouldn’t go analogue because in this mess of papers I have here before me, I do not have the list of alternative remedies. I would like to forward that to you through the clerk, if I may.
Speaking a bit more broadly about this, more than 400 cases in 15 years is too many. I would suggest that is a mere drop in the bucket given the degree of defamatory and civil defamatory comments that are happening in the digital sphere. We know the state is cherry-picking the cases they want to pursue because there are far more than 400. We have to look at what happens when the state is selective in how it applies this. I am confident that at the end of this, if Professor Cameron says something defamatory about me, if I go to the police and say, “Could you charge her,” odds are they’re going to say, “That’s on you, ma’am. You should take this to a civil lawyer.” We’re seeing where the police are being selective in which cases are worthy.
Anecdotal evidence suggests that in many of these cyber-smearing cases, the police are choosing to take up the cause or the interests only of the so-called “perfect” victim. We know this is a problem in the criminal realm, in sexual assault, that not all victims are perceived as equal when they look for a remedy through criminal justice. We’re also seeing that with these cases. In all of these cases where there could be civil defamation, one in several hundred is picked up by the authorities and they say no, this is a criminal matter.
In so many of these cases it is — and I’ve said this once before but I think it bears repeating — mere hyperbole because the comments are so outrageous as to not be considered. If someone says I’m a bad professor, that may be believed by an audience. If I can go back to this Revenue Canada field investigator, someone who was unhappy with his work displayed a poster that said the following, with his image, “This man is known to be working for an insidious organization accused of causing people’s deaths. Protect yourself from organized crime. If you are approached by this man, be prepared to defend yourself.”
I don’t think that anyone, unless they were entirely absent a sense of humour or irony, would ever think that CRA was an insidious organized-crime organization, nor does it, in fact, speak directly to wrongdoing by the individual. So it’s these kinds of hyperbolic, over-the-top comments that are becoming more and more prevalent in social media that are often attracting criminal charges.
Senator McIntyre: Thank you all for your presentations. My question is directed to the Centre for Free Expression. You have all underlined the importance of repealing all three criminal libel provisions in the code, and not just blasphemous libel, because all three relate directly to the rationale of Bill C-51. In doing so, you rely heavily on the U.K. initiative that recognizes that all forms of common law or criminal libel have been replaced by other forms of criminal offences that can address or prosecute this kind of criminal behaviour or conduct.
You have also relied on the Law Reform Commission’s report of 1984, and as we all know, the report recommended that defamatory libel should be abolished as a criminal law offence in Canada. Could you elaborate a bit further on the report?
Ms. Cameron: Senator, I have the report here in front of me, but I’m candid to admit that I did not have an opportunity to reread it before the hearing today. I can explain to you that the report was written in 1984 by the Law Reform Commission of Canada, Working Paper 35. It goes through the history of defamatory libel. It goes through the complex provisions on defamatory libel in the Criminal Code, on a section-by-section basis. These include complex provisions that deal with statutory versions of defences that are more or less available at common law.
In coming to its conclusion, I’ll just read this out if that’s helpful to you, sir. The conclusion of the commission is as follows: “Undoubtedly, reputation is a fundamental value in our society. An attack upon reputation may well result in serious consequences to the victim. Let us being frank. Deliberate character assassinations ought not to be tolerated by society. Nonetheless, as we have emphasized throughout this paper, the criminal law must be used with restraint. For reasons previously explored at some length, we do not feel that a crime of defamation would be able to do better than what is already done by the civil law of defamation, nor would it seem to be an effective deterrent. Therefore, we do not feel that a crime of defamation could make a substantial contribution in dealing with the problem of defamatory publications in our society. So, accordingly, we recommend that our Criminal Code should contain no crime of defamation, even in a restricted form.”
So I’m not giving an editorial comment on the Law Commission’s paper as much as sort of giving you more information about it, but as some of the senators might know and remember, the Law Reform Commission of Canada was a highly respected institution for a number of years that undertook very comprehensive and high-level reviews of different aspects of the law. This was one of its working papers, which was signed by all of the then commissioners.
So I think the best way I could put it is that the Centre for Free Expression endorses the conclusion of the Law Commission. We think it is as valid today as it was in 1984, and, yes, we do rely on it.
Senator McIntyre: Thank you, Ms. Cameron.
Senator Jaffer: Thank you for all your presentations. My question, because we also have a limited time for asking questions, is for Professor Craig. Professor Craig, you touched on this briefly, but I want to ask you further questions on it. This is the accused’s right to silence. In this bill, before the accused’s lawyer is able to use certain documents — from what I understand, and you can correct me — they will have to go to court to get permission for those documents, and I think that has to be done 60 days before. You are very learned on these things, and I want you to first explain to us what the right to silence is and what this will do to the rights of the accused.
Ms. Craig: Thank you. The requirement that an application be brought 60 days in advance is with respect to the current third-party records provisions of the Criminal Code. So, as the Criminal Code currently stands, an accused individual that seeks to obtain records that are in the possession of a third party, for example, a counsellor or a social services agency, has to go through a process and seek the court’s permission and obtain the court’s order to have those records produced.
So the 60-day time period, I think, refers to that. However, there is a seven-day time period with respect to records that would be subject to the rape shield provisions, so sexual communications between the complainant and the accused that are in the accused’s possession or other records that are in the accused’s possession that the accused seeks to admit at trial.
First of all, the right to silence or the right —
Senator Jaffer: The third-party documents, I’m not concerned about that. That’s been in place for a long time.
Ms. Craig: Yes.
Senator Jaffer: I misled you; sorry. I’m talking about the seven-day period. Can you focus on that, please?
Ms. Craig: Yes, of course. The right to silence and the right against self-incrimination are, obviously, fundamental principles of justice that are protected under the Charter, but, as with any rights, they’re not absolute. There are lots of examples in criminal law that require an accused to reveal aspects of their defence, for example. So third-party production is one example. The current rape shield regime is another example. Accused individuals that are pursuing an alibi defence are already required to reveal that information, so too with respect to expert medical opinion, so too with respect to what we call a Corbett application, where the accused is required to introduce, in a voir dire, particulars of their defence in order to seek the judge’s exclusion of their prior criminal record.
So we already have lots of examples in the criminal law where an accused is required, in a limited context, to provide, for strategic reasons, at their own impetus, information or to speak.
Maybe the simplest way to put it is that — and the courts said this in the case I referred to earlier, Darrach — because these arguments were advanced with respect to the rape shield provision in that case, the right to silence, within the context of a trial, is not absolute. So there are circumstances in which, again, like I say, for strategic reasons, an accused, while not legally compelled to speak, may be well advised to provide information or to speak in a limited context.
At first glance, there’s nothing presumptively unconstitutional about requiring the accused to bring an application seeking the court’s permission to introduce certain evidence. The overarching rule of evidence is that whatever party seeks to introduce that evidence is required to demonstrate its relevance and the probative value of that evidence before it’s admitted. So there’s nothing presumptively unconstitutional, nor is there a violation of their right not to be legally compelled to speak by requiring this of the accused.
[Translation]
Senator Carignan: I have a few questions. The first pertains to the Charter statement, in clause 73, which provides that, for every bill tabled in either house, the Minister of Justice must present a statement to that chamber setting out the possible effects of the bill as to rights and freedoms. I would like to hear your thoughts on this clause and its application.
At first glance, I have reservations because we are talking about statements and of course possible effects. Is that a legal opinion on constitutionality? Will it be argued that there is a possible effect, but that it is offset by section 1 of the Charter? How far should the statement go? What will the legal penalty be if a statement is incomplete or is not issued?
[English]
The Chair: Who wants to take the risk of answering that question? Professor Turk?
Mr. Turk: To whom are you directing your question, senator?
Senator Carignan: We have amazing experts in front of us, so it could be any of you.
The Chair: It’s clause 73 of the bill, page 24, at the bottom of the page. It refers to the Department of Justice Act. It’s titled “Charter statement,” 4.2(1).
Mr. Turk: I’m sorry; where is the statement to which you’re referring?
The Chair: It’s page 24, clause 73, at the bottom of the page, titled, in capital letters, “Department of Justice Act.” Senator Carignan referred to an amendment to the Department of Justice Act.
Mr. Turk: Just give us one second to look at it, please.
[Translation]
Senator Carignan: Perhaps I can ask another question in the meantime, if you don’t mind.
[English]
The Chair: Professor Cameron, do you have the bill with you?
Ms. Cameron: Senator, in answer to your question, I don’t really have much of a comment, except to say that this is a laudable amendment to the Department of Justice Act. What it does, to my mind, is provide a degree of accountability and transparency to those who are considering the bill and then acting on the bill after it has gone through the house processes to let them know that attention has been paid to the constitutional consequences of the provisions proposed.
I think I would not be out of line in saying that it’s certainly our impression in the academic community that predecessor versions of these provisions were not followed as assiduously as we had hoped. Just speaking off the top of my head, I hadn’t noticed this, but I think it’s a valuable amendment to the legislation.
[Translation]
Senator Carignan: Are there not certain amendments or withdrawals in this regard that would deprive the Crown prosecutor of a measure of discretion, who could still use these provisions where appropriate?
Consider defamatory libel, for instance. I remember a case where someone was sending anonymous letters to different businesses in the city, informing the public that an elected official was accepting bribes. They were anonymous letters, of course. There is no civil recourse in such situations and civil search warrants to find the author of the letters are not an option either. The only available recourse is to complain to the police so they can open an investigation and reassure the victim somewhat.
I am also thinking of a recent case where an individual was wearing military medals that were not his. That is a form of impersonation. This individual was able to use the medals to create a false sense of security. Could these clauses not be useful when there is no other way of apprehending individuals? The police or Crown prosecutors can use this tool to identify these people, charge them and at least get them on record.
[English]
Ms. Cameron: On the point you raised, senator, about stolen valour, I will turn this over to Professor Taylor, but I would say that that’s not something that fits within the rubric of the defamatory libel provisions. I do believe there are other ways to deal with the question of, as it’s referred to, stolen valour. But on the general point you raised about elected officials not having recourse, I think Professor Taylor has an answer.
Ms. Taylor: Yes, if I may. Thank you.
There are existing Criminal Code responses to many of the wrongs that you may be contemplating as you frame this question. There are Criminal Code provisions on matters such as criminal harassment, mischief in relation to data, identity fraud and false messages. So there is a pretty broad range.
I would also, if I could, sir, respectfully, still push forward with this notion of elected officials accepting the fact that they must, for lack of a more gracious way to say it, grow a thick skin. It comes with your office, sir. In 2011, the United Nations Human Rights Committee encouraged its member states to accept “. . . uninhibited expression, particularly in the circumstances of public debate in a democratic society concerning figures in the public and political domain.” If I can follow up on that in any way, sir, I would be happy to do so.
Senator Carignan: I’m not satisfied with the answer, but —
Senator Eaton: Professor Craig, I’m not a lawyer and I have no legal background, but perhaps you could explain to a simple person like me why requiring disclosure of the defence strategy in cross-examination in sexual assault cases — I think it’s considered unprecedented — how is that different than somebody charged with murder or with another capital offence?
Ms. Craig: Thank you for your question. I have two responses.
First, as I suggested a moment ago, it’s not unprecedented. We have lots of examples. There are several examples, anyway, in the criminal law context in which an accused individual, while not legally compelled — so there isn’t a law requiring them, for example, to testify — they are required to provide certain particulars or details about their defence in order to pursue a certain strategy. We already have an example of that in our current rape shield provision. Before an accused individual is entitled to lead evidence of a complainant’s other sexual activity, the accused has to bring an application with an affidavit demonstrating the relevance of that evidence and establishing that its probative value outweighs its prejudicial effect. So it’s not unprecedented. That’s the first point.
What was the second piece of your question?
Senator Eaton: How does that differ from somebody accused of first-degree murder?
Ms. Craig: Right. Thank you. There are all sorts of ways in which sexual assault, as Justice L’Heureux-Dubé said, is like no other crime. One of the main reasons is that we have a legal legacy in the context of sexualized violence that has been infused with very intransigent gender-based stereotypes and assumptions. We have rules particular to sexual assault, and this would be responsive to that particular context.
Senator Eaton: Something perhaps no one talks about because it’s perhaps not very politically correct is that now, with digital media, some men are being stalked. Some women are actually the stalkers. I guess what you’re saying to me is if I stalk somebody, he can’t use that in his defence if he turns around and there is sexual activity between us.
Ms. Craig: No. I’m not saying that at all. That’s not what this amendment to the legislation would do. It’s not excluding this evidence. In the context of any stalking communications that would have had sexual content, it’s simply requiring the accused to demonstrate that the evidence is relevant, that it’s being used for reasons other than to trigger a discriminatory stereotype or to humiliate the complainant and that its probative value outweighs its prejudicial effect. That is, it would be useful for the trier of fact, the judge or jury. The rule doesn’t say that an accused is not entitled to use that evidence.
Senator Pate: Thank you to all the witnesses.
Professor Craig, I wanted to go back over a couple of things that you mentioned. As you’ve identified, part of the provisions, particularly in the bill with respect to consent, it was billed as having codified J.A. However, many witnesses before the house committee have indicated that it does not and that it misses the mark. Is it sufficient to correct this problem by removing basically the entire piece of proposed paragraph (a.1) “the complainant is unconscious,” and then removing reference to it in proposed paragraph (b)? Would that achieve the objective of codifying J.A.?
Ms. Craig: I agree with the witnesses you referred to who suggested that the amendment as it stands wouldn’t codify J.A.J.A. was about advanced consent to sexual activity that would have occurred once somebody was unconscious.
I’m not following the second piece of your question.
Senator Pate: My apologies. I’m looking at page 9 of the bill. Clause 19(2.1) refers to paragraph 273.1(2)(b). If there is something more nuanced that we need to do, you can probably anticipate my next question. Could we remove (a.1) and remove the reference to (a.1) in paragraph (b) and therefore achieve the objective of removing “unconsciousness,” which has been raised as a concern for many in that it may signal to some judges, particularly those who ascribe to the stereotypes, that the key is unconsciousness and remove the potential for that confusion? If there is a better amendment, what would that be?
Ms. Craig: I think two things. First, I don’t know that there’s a pressing need to codify J.A. I think the concern is that this will in fact erode J.A., but more importantly — and this touches upon the earlier question and is a situation that happens over and over again in the cases — given Janine Benedet’s statistics about the number of women who are sexually assaulted while intoxicated, there is a pressing need to clarify the legal test for capacity to consent. Nothing in this amendment, or even in your suggested revisions, would achieve that. I think removing the addition of unconsciousness would be a partial response. It would respond to concerns either that J.A. was going to be eroded or, what I think is the more pressing concern, that judges will erroneously assume that the legal test for capacity to consent while intoxicated is consciousness. So yes, it will do that.
What it won’t do is clarify — and this is needed — where that line should be drawn. We need guidance either from Parliament or from the Supreme Court of Canada about the line to be drawn in terms of capacity. I don’t think that lower courts are doing a sufficient or consistent job with that. I don’t know if that responded to your question.
Senator Pate: It does, thank you. What amendment would you suggest, then, that would achieve that objective so that the message could be sent of where the line should be drawn?
Ms. Craig: It’s always factually driven in any particular case, but a capacity-to-consent test should include a legal standard that requires a level of sobriety at which a complainant can understand both the nature and consequences of the sexual activity to which he or she is consenting and the risks and the surrounding contextual circumstances. For example, using the Al-Rawi case, a capacity-to-consent standard would take into consideration the fact that the complainant and the accused had met 13 minutes prior to the sexual contact. Furthermore, the capacity to consent standard would include a complainant’s capacity to assess circumstances like having sex in public with an unknown person in particular contexts such as a parked vehicle on a dark, poorly lit street. It isn’t sufficient to have capacity to understand the physical act itself. The standard should be more stringent. That capacity to consent to sex requires the capacity to understand both the circumstances and the risks.
The Chair: On behalf of the committee, it is my pleasure to thank you, Professor Turk, Professor Cameron, Professor Taylor, from the Centre for Free Expression; and Professor Craig, from Schulich School of Law at Dalhousie University. Your contributions have been essential for our understanding the scope and the impact of this legislation.
Honourable senators, we resume our consideration of Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act.
It is my pleasure to welcome Professor Steve Coughlan from the Schulich School of Law, Dalhousie University. I think it’s Dalhousie University’s morning, professor. Welcome.
Also appearing by video conference, it’s my pleasure to introduce to you Karen Segal, Counsel, Women’s Legal Education and Action Fund. Good morning. And, of course, Hilla Kerner, Collective Member, Vancouver Rape Relief and Women’s Shelter.
We will begin with Professor Coughlan, followed by Ms. Segal and Ms. Kerner.
Steve Coughlan, Professor, Schulich School of Law, Dalhousie University, as an individual: Thank you very much, Senator Joyal and members of the committee, for the invitation to address you with regard to Bill C-51, and in particular the portions of that bill that have to do with removing provisions from the Criminal Code and taking out various reverse onus provisions.
I am in favour of this bill, but what I really want to do with my time with you this morning is to explain that support by situating this bill within the broader endeavour of which it ought to be only a part.
I would like to begin with a quote from the Minister of Justice, who said, “I believe that the time has come to undertake a fundamental review of the Criminal Code. The Code has become unwieldy, very difficult to follow and outdated in many of its provisions.”
That’s not a quote from the current minister. That’s a quote from Senator Jacques Flynn when he was Minister of Justice in 1979. Forty years ago our code was already fundamentally flawed, and piecemeal reform since then has made the situation worse. That is why I want to suggest it is necessary to have a much broader vision than just the proposals in this bill. It’s worth doing these things, but these are the low-hanging fruit. Doing only this would be to ignore fundamental problems that have existed for decades.
I’m going to make a statement that will sound like hyperbole but is not. Canada does not have a Criminal Code. A code is a bill that sets out all the relevant law about a particular topic. Our code has never attempted to do that. A code ought to tell us all the elements the Crown needs to prove to establish a person’s guilt for an offence. Our code not only doesn’t do that, it is drafted in a way that makes it more difficult, not less, to determine what those elements are. This is the direct cause of ambiguity, which is inconsistent with the rule of law.
Given the time constraints, I will speak about only one issue, which is the lack of what is called a general part in our Criminal Code. A general part is a common feature of criminal codes in other countries, and among other things, it sets out the mental states required before a person can be found guilty of a crime. The notion that crime requires a guilty act and a guilty mind is well known, but, as a general practice, our code rarely says anything about the guilty mind. It leaves it to the courts to work that out.
So our code doesn’t contain anything similar to, for example, section 15 of the General Part of the German criminal code, which says, “Unless the law expressly provides for criminal liability based on negligence, only intentional conduct shall attract criminal liability.”
Mostly we don’t specify mental elements, but then sometimes we do, and when we do, we do so inconsistently, which, as I say, simply makes it more difficult to determine what the actual answer is.
I’m going to talk about the arson provisions in the Criminal Code as an example not because they are particularly bad but just because they are typical. Really, we could grab a code and open it to any substantive provision, and I could probably use it to illustrate the point here.
But let’s take a look at arson. We have a bunch of arson provisions. One of them, section 434.1, is arson that seriously threatens the health, safety or property of another person. So a question that naturally arises for someone to be guilty of that offence is do they have to know that the arson will threaten health, safety or property?
On the one hand, the answer to that is obviously yes because the Supreme Court has said on many occasions that the presumption of subjective fault is a basic principle for interpreting the Criminal Code. That’s why when someone is charged with assaulting a peace officer in the execution of duty, they have to know that the person was a peace officer in the execution of duty to be guilty. The code doesn’t say that, but we presume knowledge.
On the other hand, there is a way in which the answer is obviously no. There is more than one arson provision. Section 433 talks about arson in relation to a property that the accused knows is occupied. That is, that provision specifies that the accused has to know that fact.
Based on that difference, the British Columbia Court of Appeal just last year in a case called Bastien decided that arson under that first provision doesn’t require knowledge, and you can see their reasoning. If one section says you need knowledge and the other section doesn’t say you need knowledge, of course, the one that doesn’t say you need knowledge doesn’t need knowledge. In the abstract, that’s perfectly sensible reasoning, but the difficulty is that it rests on giving significance to the absence of language about mental elements when the Supreme Court of Canada has said repeatedly that the absence of language about mental elements should not be given significance.
I don’t actually mean to suggest the British Columbia Court of Appeal is wrong there. My point is that we have created conditions where it’s no longer possible for there to be a right answer. In fact, because the code doesn’t settle this, it’s quite possible that a Court of Appeal in another province will reach the opposite conclusion. We don’t actually know. We can’t know what the law is there.
Another arson provision, section 434 — because in between 433 and 434.1, of course, we have 434 — says that a person is guilty of arson if he or she intentionally causes damage by fire to property. So when that section says that a person must have intentionally caused damage by fire, does that mean the person must have intended to cause damage by fire? Surprisingly, the answer seems to be no.
Our courts have created a distinction between “general intent” and “specific intent.” General intent is the intention to perform an action, while specific intent is the additional intention to bring about a result because of that action.
In a recent case called Tatton, the trial judge decided that arson was sometimes general intent and sometimes specific intent, depending on the facts. The Ontario Court of Appeal said, “No, that’s wrong. It has to always be one or the other, and it’s always general.” Then it went to the Supreme Court of Canada, who said, “No, that’s wrong. It does always have to be one or the other, but it’s always general intent.”
It turned out, after years of debate, that the language “intentionally caused damage by fire” doesn’t actually require any foresight about the fire causing damage, which is an entirely counterintuitive result and, again, you can’t tell by reading the code.
In Tatton, on exactly the point I’m raising for you today, the Supreme Court of Canada said this:
The confusion surrounding the general/specific intent distinction is part of a larger problem that has plagued the Canadian criminal law for decades. Regrettably, the Criminal Code often provides no clear direction about the required mental element for a given offence. It is therefore left to judges to attempt to divine the required mental element (also referred to as the degree of fault). As Professor Don Stuart states in Canadian Criminal Law, at p. vii:
Our adversary system, which requires cases to be fairly put to impartial judges or juries, and the presumption of innocence, cannot work with legitimacy where there is confusion as to the applicable tests on even basic matters such as the fault requirement . . . .
On this point the court concluded:
Legislative intervention is sorely needed to spell out the mental element of offences . . . .
The Supreme Court has also said:
If an accused must wait “until a court decides what the contours and parameters of the offence are then the accused is being treated unfairly and contrary to the principles of fundamental justice.”
The fact is, however, that most of the time the Criminal Code does not set out the contours and parameters of offences and we have to wait for a court to do it.
That is why I say that a much larger task than simply removing some particular sections from the code is necessary. The major systemic problems which exist cannot be solved by tinkering. Yes, it’s worth removing the sections which this bill proposes to remove, and it might be worth adding a few more sections to the ones being removed, but doing that will have only a minor impact on bringing our code up to date. It has become literally impossible to add new provisions to the code without creating further conflicts and ambiguities. Only a large-scale review and, ideally, the inclusion of a general part can solve that problem.
The Chair: Thank you.
Karen Segal, Counsel, Women’s Legal Education and Action Fund: Thank you for having me here today. I’m here on behalf of LEAF, the Women’s Legal Education and Action Fund, which is a national feminist legal organization founded in 1985 and dedicated to advancing the rights of women and girls through litigation, law reform and education.
LEAF has been involved in nearly every precedent-setting Supreme Court of Canada decision addressing women’s rights and sexual assault law and has made submissions on various significant reforms to the Criminal Code. Our goal in this advocacy is to improve sexual assault law in a manner that creates a systemic improvement for women’s lives.
I’ll be commenting on the changes to the sexual assault provisions in the code. At the outset it is important to remember that sexual assault is a heavily gendered crime that disproportionately impacts women and girls and denies women and girls substantive equality. In addition, sexual assault faces extraordinarily low conviction rates. This is the context against which these legislative changes must be assessed.
I note that we provided you with submissions that we actually wrote for the House of Commons standing committee on this bill. Unfortunately, during the short turnaround we weren’t able to update it for this hearing, but the recommendations we made in that submission apply equally here as the changes we proposed were not implemented at that stage.
Given the limited time, I will direct you to the submissions for the elements of the bill which we support, of which there are many. Broadly speaking, LEAF supports many of the changes in this bill. I will use the time I have here today to identify some of LEAF’s concerns.
Our fundamental concern with Bill C-51 is the proposed codification of unconsciousness as a bright line defining when a complainant becomes incapable of consenting, which is contained in section 273.1(2) and section 153.1(3). In LEAF’s submission, this provision adds nothing new to the law of sexual assault and opens the law of incapacity more generally to being limited by this assessment of consciousness as opposed to unconsciousness, instead of an assessment of a woman or an individual’s ability to provide informed, voluntary consent. This, in turn, risks undermining the legal protections for women who are conscious but otherwise incapable of consenting; for example, the thousands of women in Canada who are sexually assaulted each year while conscious but severely intoxicated due to alcohol or drugs.
The reason we are concerned about this is not that unconsciousness shouldn’t be relevant but that courts have had no difficulty dealing with the long-standing rule that an unconscious person is incapable of giving consent. Where courts have had difficulty is dealing with complainants who are conscious but whose ability to meaningfully consent to sexual activity is severely impaired by alcohol or drugs.
The law on incapacity requires complainants to be capable of providing informed and freely exercised consent, understanding the sexual nature of the act and realizing that he or she may choose to decline participation. However, in practice, courts have struggled with giving meaning to this threshold and have often adopted a significantly lower and more dangerous threshold for determining when someone has the capacity to consent. Judges have routinely required external indications of unconsciousness or sleep in order to conclude that someone was not capable of consenting; for examples, I will direct you to our submissions.
We are not seeing courts engage in a nuanced analysis of the complainant’s ability to provide informed consent. Rather, we see judges rely on a complainant’s capacity to perform extremely basic tasks as evidence they are able to provide informed, voluntary consent to sexual contact. This essentially results in a judicial tendency to equate consciousness with capacity to consent to sexual contact, which is not the law.
A glaring example of this is the Nova Scotia case R v. Al-Rawi, in which, at trial, the accused taxi driver was acquitted of sexual assault despite the fact the complainant was found unconscious in the back of the accused’s taxi cab in a remote area of town, partially nude, with the accused holding her urine-soaked underpants in his hands. The judge at trial found he could not conclusively say the complainant was unconscious at the time the sexual contact began and, therefore, he had a reasonable doubt as to her capacity to consent at the time the assault began, effectively a finding that consciousness equates capacity to consent.
This was appealed and a new trial was ordered, but the Al-Rawi case is significant because it is indicative of the trend going on in trial courts across Canada. LEAF, as an advocate for women’s equality, is concerned about this trend as it emphatically fails to protect women who are sexually assaulted while conscious but otherwise severely impaired and unable to provide informed consent. We are not seeing a failure of the courts to find incapacity in the case where the complainant was, in fact, unconscious.
LEAF’s view is that this excessive focus on consciousness as the defining point at which someone becomes unable to consent improperly distorts the analysis, focusing on whether or not the complainant was awake as opposed to whether the complainant was able to and, in fact, did give voluntary, ongoing consent to sexual contact. Our fear is that these changes will perpetuate this problem.
There are a few reasons for this. First, we’re concerned that defence counsel will argue that these changes mean that unconsciousness is now the legal standard for incapacity to consent. Because codifying unconsciousness adds nothing new to the law, we anticipate that defence counsel will argue that this amendment is intended to clarify the outstanding uncertainty in the law around capacity to content. Where the courts have struggled is in determining what degree of impairment is enough to render someone incapable of consenting. Our fear is that this will be treated as an attempt to resolve that uncertainty, creating a defining point of unconsciousness, as opposed to examining whether someone has the ability to understand the sexual nature of the act and provide informed consent to that act.
We anticipate that the Crown will have to re-litigate the questions of capacity to consent, which comes at the expense of complainants, whose lives are affected by these arguments.
Second, even if unconsciousness is not officially interpreted as a legal bright line at which a person becomes incapacitated, we’re fearful that this provision will perpetuate the focus on consciousness versus unconsciousness, as opposed to encouraging judges to engage in a nuanced assessment of capacity versus incapacity. The law, as it stands, doesn’t create unconscious as a bright line, but we see a judicial trend to focus on that. The concern with codifying that is that this will perpetuate that focus on unconsciousness.
It certainly does nothing to provide guidance to judges, such as the judge in Al-Rawi, who are tasked with determining whether or not a conscious woman is capable of consenting.
LEAF recognizes that the (b) provisions in these two new proposed sections, 273.2(b) and 153.1(b), leave open the possibility that incapacity could be found for reasons other than unconsciousness, and it was not the drafter’s intention to foreclose the finding of incapacity short of total unconsciousness. But this doesn’t allay our concern. The provisions still direct judicial attention to unconsciousness and do nothing to assist decision makers in assessing incapacity short of unconsciousness. These changes, for example, would not have changed the outcome in the various cases that we’ve cited in our submissions, where the complainant was required to adduce evidence that she was, in fact, asleep or nearly asleep in order to confirm that she was incapable of consenting.
The Chair: Thank you very much. Could you conclude, Ms. Segal, because we have limited time for the video conference, with the time allocated to us.
Ms. Segal: Yes. In conclusion, what we propose to the government is that you should use this opportunity to clarify the law on capacity to consent and codify a standard of capacity that articulates that a person cannot consent unless they are capable of understanding the sexual nature of the act and the risks associated with that act, capable of realizing that he or she may decline to participate and capable of communicating voluntary consent to that act by either words or actively expressed conduct.
In terms of language, I know I’m out of time, but I’ll just read out a proposed change for you. We would propose the language to state: “No consent is obtained if the complainant is, at the time the sexual activity takes place, incapable of consenting to the activity. Incapacity, in this context, means the inability to meaningfully understand the risks and consequences of the sexual activity or to know that one has a choice whether to engage in it or the inability to affirmatively express one’s agreement to the sexual activity by words or actively expressed conduct.” Thank you.
The Chair: Thank you very much, Ms. Segal.
Ms. Kerner, on behalf of the Vancouver Rape Relief and Women’s Shelter, the floor is yours.
Hilla Kerner, Collective Member, Vancouver Rape Relief and Women’s Shelter: Good morning. Most of you know who we are and our work as the oldest rape crisis centre in Canada and a member of the Canadian Association of Sexual Assault Centres. From this front-line involvement in the women’s movement, I bring you my group’s position in relation to the bill.
I will start by saying that we are troubled that, even though we, other women’s groups and feminist legal scholars testified before the House of Commons Justice Committee and asked for amendments to the bill, they were not incorporated in the version that is being brought before you.
I caught the tail end of the conversation between Senator Pate and Elaine Craig, so I understand that at least Senator Pate is aware of the feminists’ request for amendments.
Sexual assault is a gendered crime. It’s now common knowledge. It is an act of violence that is committed almost always by men against women and children. The advancement of sexual assault laws shows Parliament’s growing understanding of sexual assault as a reflection and reinforcement of women’s equality. Our sexual assault laws aim to protect women’s bodily integrity.
We appreciate the Minister of Justice’s efforts to advance sexual assault provisions, but it would be unwise for Parliament to pass any amendments to sexual assault laws without thorough consultation with rape crisis centres and other women’s groups and feminist legal scholars.
In relation to this particular bill, I will reinforce the objection that my friend from LEAF just brought forward. We are objecting to the addition of “. . . no consent is obtained if the complainant is unconscious.” Of course, an unconscious woman cannot consent, but this is already captured under the existing law, which says that no consent is obtained if the complainant is incapable of consenting to the activity.
We are worried that the proposed addition could be misused by defence counsels to argue that unconsciousness is the threshold for incapability, and since we too often see cases where judges do not know sexual assault laws, the intent behind the laws, and the intent of Supreme Court judgments instructing the application of the law, there is a serious danger that the judges will accept the defence arguments in this matter.
We support the proposed articulation that no consent is obtained if there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.
We also support the expansion of rape shield provisions to include communication of a sexual nature or communication for a sexual purpose. We support the right to legal representation for victims in rape shield proceedings, and we support the proposed amendments regarding women’s records in the possession of the accused. For the women we work with in our rape crisis centre, these will be useful and helpful provisions.
All in all, when it comes to violence against women, Canada has good laws on the books. The legislation on sexual assault, wife battering, incest, sexual harassment and the fairly new law on prostitution allow the criminal justice system to investigate, charge and convict men who assault women.
When women who are victims of male violence come forward and report to the police, they are doing so to protect themselves and their children, to protect other women and to call on the state to fulfill its obligation to women’s inherent right to safety, security and liberty.
Alas, it is common knowledge that the criminal justice system is utterly failing women and Canada’s commitment to women as it is stated in the Charter. Women in Canada do not have their rights to equal protection and equal benefit of the law realized.
Men can change. Men are not inherently violent, and they can choose to treat us better. They can choose to treat us as fully equal, with complete autonomy over our body and our sexuality. But men will not change unless they are pressed to, unless they are held accountable, and I would like to stress that we are not calling for harsh sentencing or even imprisonment. We are in support of the removal of the mandatory minimum sentencing. But we are demanding that men will be accountable and controlled.
Serious reforms are needed in all levels of the criminal justice system — police, Crown and judges — when it comes to male violence against women, and we hope to appear before you again in the upcoming discussion of this committee on Bill C-337, the judicial accountability through sexual assault law training act.
But today, while I have your ear, I would like to argue that any improvement, let alone transformation, of the criminal justice system must begin with transparency. The public must know how many reports each police detachment receives on sexual assault, wife battering, sex purchasing and pimping, how long the investigations have taken, and if cases weren’t passed to the Crown, the reasons for it. The public must know how many cases the Crown has received, how many did not result in charges and the reason for each decision.
Lastly, all provincial, Supreme Court and Court of Appeal judgments must be transcribed and posted on a website available for public scrutiny.
Exposing the criminal justice system data will reveal all the points of its failure when it comes to male violence against women. It’s a first cruel step that has to happen if we want to see any change, and we must see change.
The Chair: Thank you very much, Ms. Kerner.
[Translation]
Senator Boisvenu: First, I want to thank you very much for your testimony, which is very relevant to our study. Ms. Segal, if I understand you correctly, you are saying that the bill does not solve the issue of consent for women who are intoxicated with alcohol or drugs. Do you really believe that the bill does not resolve this issue at all, given the infamous case in Nova Scotia?
[English]
Ms. Segal: I’m not sure I understand your question.
[Translation]
Senator Boisvenu: Do you think the bill does not resolve the issue of consent for women who are sexually assaulted while intoxicated, as we saw in the case in Nova Scotia?
[English]
Ms. Segal: Thank you for the question. Our position is that it doesn’t resolve the question of whether someone is able to consent. In any case involving intoxication, the court should be asking two questions. First, did the person in fact provide consent? And was the person capable of providing consent?
What we’re seeing is a problem in the case law, separate and apart from whether or not consent was actually present, of whether someone had the ability to consent at all. Our concern with this bill is whether it does anything to resolve the outstanding uncertainty and lack of clarity in the law as to what degree of impairment is enough to render someone incapable of consenting.
As a separate question then from whether someone did consent, which is another problem in the law that those two inquiries are separate inquiries, and we are concerned that the question of capacity to consent is being contemplated with consent. In the Al-Rawi case, not only did the judge find that he had reasonable doubt with regard to the complainant’s ability to provide consent, he relied on that finding to find reasonable doubt as to whether she consented at all. There are two separate questions, but the particular provision that we are here to address is the law around at what stage does somebody lose the ability to provide consent.
[Translation]
Senator Boisvenu: Thank you very much. As to the right to counsel, which is a very interesting part of the bill and which confirms that a complainant has a right to a counsel at hearings, I must remind you of something, Senator Joyal. In 2012, we tabled a report that indicated that one of the main reasons for a victim failing to report a crime and stayed proceedings is the very limited assistance provided to victims of crime during criminal proceedings, whereas support is provided to the criminal.
Although the bill stipulates that the victim has the right to legal counsel, if the victim does not receive financial assistance to pay counsel, how will we be any further ahead? My question is for Ms. Kerner.
[English]
Ms. Kerner: At least in British Columbia, there is some funding from legal aid to assist a woman in a case to have legal representation. The dramatic problem we have is that a lot of defence counsel go after the woman’s records when they are held at a rape crisis centre, where the woman get support from a feminist rape crisis centre and other women’s groups. And the defence counsel wants those records. It’s a way not only to undermine and to shake the particular victim, but also to undermine the feminist work of rape crisis centres.
There is no funding for defending those records that are about the work and the support and advocacy. There is a huge value to what women are telling us, because this is the basis of what we know about male violence against women. And rape crisis centres do not have a way to fund the legal defence for those records. We see it across the country. It’s an intense backlash against the work that rape crisis centres have done to support women victims of male violence and to advance women’s equality.
[Translation]
Senator Dupuis: I would like to continue along the same lines as Senator Boisvenu. Should the cost of the complainant’s right to legal counsel — often women complainants — be considered as part of the trial costs as opposed to being based on the complainant’s financial situation? In other words, trials and investigations involve costs that are covered by society. I am trying to see if these costs could be considered as part of the trial costs.
[English]
Ms. Kerner: This is a fantastic question and I appreciate it. We need to acknowledge that any woman who comes forward, reports to the police and is willing to go through the criminal justice system to hold this man accountable is calling on her rights and other women’s rights for equality, safety, security and liberty. It is our interest as a state to secure the life of women and to want to promote them, their equality, our equality, and that we as a state will fund the protection of their counselling and other records that are undermining their privacy. It is within our interest as a society that men will be held accountable and women will dare to come forward. It is in our interest to allow and support these women to do that.
[Translation]
Senator Dupuis: With regard to the legal affairs committee report on delayed justice that was released last year, the committee heard from the current Minister of Justice, as I recall. At that time, I asked about the observation you are making today. As part of a comprehensive review of the criminal law, can it be left to what I call the triad — the defence, the prosecution and the courts — to sort this out? Should the legislator not undertake a comprehensive review, including the items you mentioned, namely, adding a general first part, stipulating what constitutes an offence, and defining the main features of an offence?
[English]
Mr. Coughlan: I would be entirely supportive of that. A little under two years ago, I wrote a letter to the Minister of Justice, which was signed by essentially every criminal law professor in the country, urging exactly that, a fundamental review of the system.
Informally, I have had quite a lot of discussions with the minister’s office or people within the minister’s office and the Department of Justice. And I think some of that advocacy work accounts for some of the portions of this bill, for example, or of other bills which have removed from the code or are aimed at removing from the code provisions that have already been struck down.
But in our letter, certainly we had talked about a scale of things, of the low-hanging fruit, the really easy things to do and what we really needed. These provisions, while useful, are the really obvious, easy stuff.
If we are thinking from the point of view of fairness to the accused, fairness to victims, efficiency of the system from every point of view, we ought to be undertaking a fundamental overhaul.
The last time our Criminal Code was actually subject to systematic review was before I was born. That’s too long.
Senator McIntyre: Professor Coughlan, you’ve made a comparison between the Canadian Criminal Code and the German code. You’re suggesting that we renovate our code and be more consistent. My understanding from your presentation is that we do not rethink the provisions but rewrite them. In other words, not be repetitious.
What are you driving at exactly, removing certain words in the code like “wilfully,” “corruptly,” “intentionally” and “knowingly,” and replacing them with statements at the beginning of the code and then moving on from there?
Mr. Coughlan: Certainly that would be among the things to be done. I say with confidence that any time I look at a provision which contains the word “wilfully,” I have no idea what it means because that word has been given five different meanings, at least, in cases.
Senator McIntyre: Give us an example of a statement that you would use. If we get rid of those words, we’re going to bring in statements, but what statements are you talking about, briefly?
Mr. Coughlan: Things like —
Senator McIntyre: Knowledge?
Mr. Coughlan: Yes. “When the commission of an offence requires that a particular fact be true, the accused cannot be guilty unless he or she knew of that fact, unless the provision specifies otherwise,” something like that.
You’re right, it is largely rewriting for much of this. There are many provisions which could go, but even leaving that aside, it is largely rewriting. Words like “purpose” mean two different things depending on which part of the code you’re in. The Supreme Court has acknowledged this and said, “Any time you hit the word ‘purpose,’ actually you don’t know what it means.”
Senator McIntyre: In other words, at the beginning of the code, we would have a word like “knowledge” that would say knowledge is required for all circumstances unless the code says otherwise.
Mr. Coughlan: Yes. Right now we have a distinction between subjective fault, which is the accused actually knew, and objective fault, which are things like negligence, the accused ought to have known. But then we have provisions in the Criminal Code which talk about wilful neglect. What is that? There is, actually, no sensible way to read many of the provisions.
Some of the provisions are virtually unchanged in their wording since 1892, when the code was first drafted.
Senator McIntyre: Thank you very much. We could do the same thing with the word “intent.”
The Chair: Would it not be the work of a lifetime if a commission were charged with the responsibility of reviewing the code on the basis you have outlined?
Mr. Coughlan: Professor Cameron, earlier today, was referring to the Law Reform Commission’s paper on defamatory libel. The Law Reform Commission of Canada, through the late 1970s and 1980s, wrote about 40 or 50 working papers and reports on various offences like defamatory libel, like arson, like murder. They went through all of the provisions. In about 1987, they proposed a new draft Criminal Code that was perhaps half the size of the one that we have now and that contained a general part, and it was done consistently.
Yes, that was a major undertaking. It was a major undertaking that was undertaken, and then nothing came of it.
The Canadian Bar Association, at least 25 years ago, wrote a new draft Criminal Code. Again, perhaps neither of those is perfect, but both are dramatically better than what we have.
It’s not the work of a lifetime. I don’t want to suggest it’s the work of a year. It’s not that, but it’s not unmanageable.
Senator McIntyre: Ms. Segal, some commentators have argued that Bill C-51 is basically a codification of the J.A. decision. Obviously, you disagree with that argument.
Former Chief Justice McLachlin wrote the majority decision in which she makes it clear that consent must be ongoing, conscious and contemporaneous with the sexual activity.
From what I understand from your presentation, Bill C-51 does not clarify that consent must be ongoing, conscious and contemporaneous with the sexual activity. As you recall, Justice Fish wrote a dissenting decision.
Are you recommending that Parliament adopt the approach taken by Justice Fish?
Ms. Segal: Thank you for the question. No, we’re not endorsing the dissent of Justice Fish. We agree with the outcome of Chief Justice McLachlin in J.A., but our argument is that the provisions proposed in Bill C-51 are not nearly as nuanced of an analysis as that by Chief Justice McLachlin.
Even when J.A. was litigated, it was accepted that an unconscious person could not provide consent. The question was: Can someone provide consent in advance of becoming unconscious? The court found that consent must be contemporaneous with the sexual activity because everyone has a right to retract consent. Therefore, you have to be conscious for the duration of the sexual contact.
Certainly we agree with the outcome of J.A., but our concern is that the changes provided in Bill C-51 don’t actually codify what Chief Justice McLachlin was saying in a sufficiently nuanced way and, actually, could send us back into re-litigating J.A., because at the time, the law said that an unconscious person could not consent. If we make that the law under our Criminal Code, then we could be in a position where we’re addressing these questions again.
In order to codify what Chief Justice McLachlin was saying in that decision, we propose a more nuanced and robust definition of “capacity to consent” that includes consent to be ongoing and contemporaneous with the sexual activity but that also addresses incapacity in the other kinds of cases we have seen involving intoxication and other forms of incapacity.
[Translation]
Senator Carignan: I would like to continue discussing the decision by Justice Fish. How do you respond to Justice Fish’s argument that this would even prevent someone from affectionately touching their sleeping spouse because they are not conscious at that time? That is the example that Justice Fish gave. How do you respond to that?
[English]
Ms. Kerner: I’m not very familiar with this decision since I am a front-line worker and not a lawyer, but I can say confidently that we do not have a problem in this country of men lovingly touching their female partners and them going to the police and calling rape.
Our problem is the opposite. Our problem is that women’s bodies are still not considered ours, with complete autonomy and right to choose in any given moment, and to give our voluntary agreement to any sexual act when it comes to it.
I think Justice Fish missed the mark, and the challenge we are facing as a society is how to stop men, how to hold them accountable, and how to transform women’s oppression and to be equal, liberated and collective in our society.
[Translation]
Senator Carignan: While you were talking about the Law Reform Commission of Canada, I looked at its site and noted its work and recommendations on reforming the Criminal Code.
How do you explain the fact that we are unable to reform it, despite the recommendations from experts and the Law Reform Commission? This is for the legal experts. The other day, I had a discussion about the problem with wiretapping because such disclosures hinder proceedings. How can you explain that there is no comprehensive reform and a new code? What are the obstacles?
[English]
Mr. Coughlan: I think it’s two things. Of course, there was large-scale fundamental work with the Law Reform Commission, and I think at that time it’s probably an illustration of the maxim that “the perfect is the enemy of the good,” because you couldn’t get universal agreement that this was exactly right, and, therefore, we didn’t do anything and we are left with something far worse. I think that is frequently a problem. After that, I think the problem does become one of political will. There are always pressing issues, and it’s legitimate that many of these pressing issues should be incorporated into the code, for example, revenge posting of pictures, an offence which has recently been added and sorely needed, so it makes sense to put it into the Criminal Code.
The difficulty is do you draft it to refer to the mental elements and therefore be inconsistent with the Supreme Court decisions that say you don’t need to? Or do you draft it to not include those mental elements and therefore be inconsistent with those provisions which do? So now when we respond to individual issues and tinker in that way, even though the particular concerns might be legitimate ones, all we’re doing is creating greater internal inconsistency.
The difficulty is getting the political will to think, yes, let’s just start from scratch and do it because that seems like the work of a lifetime, and it isn’t the work of a lifetime. It is a big task, but it is a doable task, and you need someone committed to that view.
Senator Pate: Thank you to all the witnesses for all your work. I have a couple of questions and some easy ones.
I presume the letter that you sent is on the public record somewhere, or could you point the clerk to the letter that was sent?
Mr. Coughlan: I’m not sure it is publicly available anywhere. It wasn’t an open letter to the minister. It was just a letter that we sent to the minister. I don’t imagine the minister’s office would object to providing it. I would be more comfortable with it coming from her.
The Chair: What’s the date?
Mr. Coughlan: Well, in fact I have a copy—December 2, 2015, about two and a half years ago.
Senator Pate: It sounds as though one of the observations that you might want to recommend that we make is that there have been many recommendations to reconstruct or reinvigorate a law reform commission or sentencing reform commission or a combination of the two. Is that something that you would recommend to this committee?
Mr. Coughlan: Yes.
Senator Pate: Thank you, Ms. Segal and Ms. Kerner for your comments as well.
Among the recommendations that you made in your submissions on October 25, 2017, for LEAF, are there any that you would change for this committee, just in the interests of time?
Ms. Segal: We wouldn’t change the recommendations. But at the end of our submissions, we propose three markers of capacity to consent that we propose would be implemented in any revision to the code. At the end of my presentation, I read out language that we have since workshopped which we say would reflect those proposals in a way that could fit neatly into the body of the code. I would be happy to read that out again if that would be helpful, or I could forward them by email.
The Chair: We have it in the minutes of the committee.
Senator Pate: Could you send them as a submission as well?
Ms. Segal: Yes.
Senator Pate: Ms. Kerner, thank you for all the work that your organization does, all the time on this issue and many more.
In terms of your submissions, it sounds like a couple of key ones would be around the support for those whose records might be sought so they could provide information as to whether they would be relevant. It sounds like changing the definition to consent in the way that Ms. Segal described is one. Were there others that you would suggest we would look at in terms of this bill in particular?
Ms. Kerner: I would add funding for legal representation for women’s groups and rape crisis centres when defending victims’ records. I would reinforce amendments that are made by Professor Liz Sheehy, Professor Janine Benedet, the Ottawa Rape Crisis Centre and my friend from LEAF.
The Chair: Thank you very much, Ms. Segal, Ms. Kerner and Professor Coughlan for your contribution to our work. It is very much appreciated by all the senators around the table, and we will continue with our consideration of Bill C-51, certainly with the concerns that you have expressed this morning. Thank you very much.
(The committee adjourned.)