Past Session:

Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue No. 48 - Evidence - September 20, 2018

OTTAWA, Thursday, September 20, 2018

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:45 a.m. to give clause-by-clause consideration to Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act.

Senator Serge Joyal (Chair) in the chair.

[English]

The Chair: Honourable senators, I will open the meeting.

Yesterday, at the end of the afternoon, the Minister of Justice sent me a response to an issue raised when she appeared about the interpretation of the French version of a section of a bill, that is very important, because it’s related to the issue of consent. You will read the line from the letter of response from the Minister of Justice that is the most important one:

During my appearance, a question was asked about whether the French and English versions of proposed new paragraphs 153.1(5)(c) (Clause 10) and 273.2(c) (Clause 20) of the Criminal Code are the same. I am pleased to advise the Committee that our legislative drafters have confirmed that the French and English versions of the proposed paragraphs convey the same meaning.

The letter continues to explain why, in the opinion of the Department of Justice, the French and English versions are similar, even though when you read the wording textually there might be a doubt about it.

The letter concludes, and I will read the last line of the last paragraph:

The French version of the text helps to confirm that there is no different standard between agreement expressed through words or conduct: what is required is a positive expression of agreement.

When I read that letter last night, I thought it was very important that it be appended to our minutes today because a lawyer in any legal action where a doubt may be raised in court could, of course, resort to our minutes and call upon the Department of Justice’s interpretation of the act.

I would seek a motion, and your concurrence, that the letter of the Minister of Justice dated September 19 and addressed to the Honourable Serge Joyal, P.C., Chair of the Standing Senate Committee on Legal and Constitutional Affairs, be appended to our minutes today.

Do I have such a motion?

Hon. Senators: Agreed.

The Chair: Agreed. Thank you, honourable senators.

Then we will move on to our agenda of today, which is that the committee move to proceed to clause-by-clause 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.

Is it agreed, honourable senators?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Is it agreed, honourable senators, with leave, that the committee be allowed to group clauses 1 to 9 together and stand clause 10 in another vote, because I understand that there is an amendment to clause 10? We could adopt clauses 1 to 9, which are covered by pages 1 to 5 in the bill, so you know where we are in the bill.

Is it agreed, honourable senators, that clauses 1 to 9 be carried?

Hon. Senators: Agreed.

The Chair: Agreed.

I understand that there is an amendment to clause 10 of the bill. May I ask if the amendment has been circulated around the table?

Senator Pate: My understanding is that it has been.

The Chair: I understand that it is moved by Senator Pate. On clause 10, I’m ready to listen to you, Senator Pate.

Senator Pate: This amendment concerns the definition in Bill C-51 of incapacity to consent to sexual activity and concerns the offence in 153.1 of the Criminal Code regarding sexual exploitation of a person with a disability. It removes the reference to unconsciousness from this definition on the grounds that there is no dispute in law that any unconscious person cannot consent. Rather, the paragraph proposed by Bill C-51 may misleadingly suggest that unconsciousness is the threshold for incapacity, a standard that offers no protection for women who are debilitated by the effects of alcohol or drugs.

In the wake of decisions such as Al-Rawi, where a trial judge erroneously found that an extremely intoxicated complainant had the capacity to consent merely because she was not unconscious, this amendment provides guidance for determining incapacity to consent based on the complainant’s capacity to understand the nature of the sexual activity, the risks and benefits involved in the attendant circumstances, and the ability to say no as well as the capacity to communicate consent by words or conduct.

After consultation with my colleagues, I would be pleased to change the amendment in proposed paragraph (b), which reads “the complainant is incapable of consenting to the activity in question, in particular because they are,” by replacing the words “in particular because” with “including because.”

The Chair: Would you repeat where you want to introduce those words so we know exactly where it is?

Senator Pate: The wording is, in paragraph (a):

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

And then, in proposed paragraph (b):

(b) the complainant is incapable of consenting to the activity in question, including because they are

(i) unable to understand the nature, circumstances, risks and consequences of the sexual activity in question,

(ii) unable to understand that they have the choice to engage in the sexual activity in question or not, or

(iii) unable to affirmatively express agreement to the sexual activity in question by words or by active conduct;

And:

(3.1.) For greater certainty, capacity to consent at the time of the sexual activity that forms the subject matter of the charge cannot be inferred from evidence on capacity to consent at the time of another sexual activity.

The Chair: I understand that what you are doing with your amendment — and I’m not trying to extract an answer from you — is that you give some circumstances that could be considered by the court in relation to the consent, because paragraph (b) was very general. It was not stating any circumstances. It referred to the complainant being incapable of consenting to the activity for any reason. What you are doing is keeping any reason but you are giving instances. That is essentially the purpose of the amendment.

Senator Pate: That’s correct.

The Chair: Because when I read the amendment last night, I had the same preoccupation as some other senators which was, in fact, that you were restricting the circumstances while, in fact, the bill was opening everything. So I was concerned that the intent of your amendment might not be serving the purpose that you were seeking originally as it was drafted.

Am I right in interpreting it that way?

Senator Pate: That was certainly one of readings brought to my attention. My intention was to help provide greater guidance to the courts because of the uncertainty that has been exposed across the country. We heard evidence from Elaine Craig and others about how the courts have been misinterpreting this based on stereotypes about sexual assault and sexual assault complainants.

The Chair: We have the representative of the Department of Justice in the room, so if any senators want to address themselves to the representative of the Department of Justice in relation to the amendment, of course, they are available to you. If so, I will ask them to come to the table; if not, of course, they are in the room at our disposal.

Any other questions or comments on the amendment proposed by Senator Pate?

[Translation]

Senator Boisvenu: I have a question for Senator Pate. I am very concerned about the Bassam Al-Rawi case in Nova Scotia, where an intoxicated young woman said she was unconscious at the time of consent. The judge stated that “a drunk can consent.” Are we blocking these situations where there is still a risk of seeing cases where an intoxicated young woman cannot claim to be unconscious at the time of giving her consent?

[English]

Senator Pate: In Al-Rawi, the woman was apparently conscious. She was intoxicated but couldn’t respond. The issue that arose was that the judge indicated she was conscious and that someone who is intoxicated could consent, but there was plenty of other evidence that, in fact, she may have been incapable of doing so for all kinds of reasons. This is exactly part of the analysis that went into it. She couldn’t remember, that’s correct, and it was really the evidence of the police officers who attended and found her and the taxi driver who was assaulting her that really gave rise to many of these issues.

[Translation]

Senator Boisvenu: Will your proposed amendment close loopholes like the ones we have seen in this case?

[English]

Senator Pate: To the best of my knowledge, yes, after consulting with some of the experts who appeared before us and have been working in this area, like Elaine Craig and Professor Sheehy.

[Translation]

Senator Boisvenu: In that case, could you please explain to me how we will manage to avoid problems like that?

[English]

Senator Pate: Because the individual will have to establish all the circumstances upon which consent was actually achieved. At this stage, it is wide open. If one judge believes that someone who is drunk and can’t even speak, like Rehtaeh Parsons, or the complainant in Al-Rawi, or the complainants in various other cases that have been brought forward, then those circumstances will have to be explored, proven, and essentially established by the accused that they had obtained consent.

[Translation]

Senator Boisvenu: But it is not a full assurance. Thank you.

Senator Dupuis: I would like to hear from Ms. Morency, from the Department of Justice, on the French version of the proposed amendment, given the answer we received last night and the clarification provided by the Minister of Justice in her letter. I would like to know if the word “actif” needs to be removed from the wording of subparagraph (b)(iii) of the proposed amendment, so that it reads as follows:

(iii) il n’a pas la capacité de manifester son accord de façon explicite à l’activité sexuelle en question par ses paroles ou son comportement;

So the word “actif” would be removed.

[English]

The Chair: May I ask Ms. Morency to come to the table?

I understand that you are also accompanied by Ms. Nathalie Levman, who is counsel for the department, Mr. Matthew Taylor, who is acting senior counsel, and Mr. Ray MacCallum, senior counsel.

Ms. Morency, we would like to see you at the table because you are a regular. We can’t conduct amendments to the Criminal Code without you being at the table.

Matthew Taylor, Acting Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Good morning. If it’s any sentiment, we like having her at the table with us as well.

So I can catch my place, if I understand the question correctly, it related to the response provided by the Minister of Justice and the difference between the English version and the French version where the English used “actively expressed by words or affirmatively expressed by conduct.” Is that correct?

[Translation]

Senator Dupuis: That isn’t my question.

Go to the last paragraph on page 1 of the letter from the Minister of Justice. According to the minister, the Supreme Court stated the following:

. . . the defence is unavailable to the accused if there is no evidence that the complainant’s voluntary agreement to the sexual activity “was affirmatively expressed by words or actively expressed by conduct.”

So, I understand that this is the appropriate terminology. The Minister of Justice confirmed that the wording was chosen and is equivalent to the English version: “affirmatively expressed by words” and “actively expressed by conduct.” Now that we have this confirmation, shouldn’t the proposed amendment that we are considering be corrected? It would involve removing the word “actif” at the end from paragraph (a), which meant to replace the text with a new subparagraph (b) in point (iii), so that the expression of the bill in French, which corresponds to the English expression, is repeated exactly.

[English]

Mr. Taylor: Yes, senator, I think that’s a very good suggestion to ensure consistency in the two different provisions.

The Chair: Taking into account the answer being given, Senator Pate, I’m returning to you because you are the sponsor of the amendment. You have to stake a stand if you accept the answer that has been given to Senator Dupuis.

Senator Pate: Yes, I accept that.

The Chair: Would you read it for the record? Because that is important for anyone who will have to consult it. Those issues, as you know, are issues of judicial knowledge. I think it is important that you read it the way you suggest the amendment be made.

[Translation]

Senator Pate: Thank you very much, Mr. Chair. The very kind Senator Pratte is helping me.

Senator Pratte: This is point (iii). If I understand correctly what Senator Dupuis would like, the French would read as follows:

(iii) il n’a pas la capacité de manifester son accord de façon explicite à l’activité sexuelle en question par ses paroles ou son comportement;

Is that it?

Senator Dupuis: Exactly.

Senator Pratte: So we are crossing out the word “actif.”

[English]

The Chair: Are there any questions in relation to the amendment as proposed by Senator Pate and amended on the floor of the committee?

Senator Batters: Yes. There are a couple of officials at the table. I’m not sure if all the officials who need to be here for this particular question are here, but if not, others can join. I see other familiar faces in the back row as well.

With respect to the question that Senator Boisvenu was asking Senator Pate earlier about whether this particular amendment would provide proper clarification in those types of cases, I’m interested to hear the opinion of the Department of Justice on that matter.

Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: Mr. Chair, with your permission, I would ask my colleague Ms. Levman to respond.

The Chair: Of course.

Nathalie Levman, Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you for welcoming me and for the question.

The case law on incapacity is quite complex and Senator Pate is right to point out that there are difficulties associated with it. Certainly changing this from an exhaustive legal test to a more open-ended, factors-based test improves it.

My concern is that we’re focusing here on three specific factors only and not the totality of the circumstances.

Another issue that I have is that this all looks at the factors from the perspective of the complainant, whether or not the complainant is capable of understanding certain things. It doesn’t ask the court to objectively assess the totality of the circumstances, which I think could have helped in a case like Al-Rawi which, by the way, was overturned on appeal at the Nova Scotia Court of Appeal.

Senator Batters: So are those the reasons, then, that the Department of Justice did not incorporate that sort of definition into that particular part and kept it very general?

Ms. Levman: It’s interesting you raise that. Actually, the purpose of these amendments were to try to get at some of the principles articulated in the 2011 J. A. case. You’ll know that an unconscious person can’t consent. Advance consent to sexual activity that takes place while a person is unconscious is invalid in law. The Al-Rawi case notes that the unconsciousness principle is articulated as an axiom in the J. A. case.

Then at the house, another amendment was added — an important one — requiring that consent be present or contemporaneous with the sexual activity at issue. So J. A. stands for a bunch of different legal principles, and the bill attempts to clarify those principles to ensure that the law can be applied in a reasonable way.

The point of leaving (b) completely open, meaning the language saying a person is incapable for any reason other than unconsciousness, (a.1), is to acknowledge the complexity of the cases that deal with incapacity, and also to ensure that in no way would clarifying the unconsciousness rule impinge or take away from any of the circumstances in which a complainant might be found incapable of consenting for reasons other than unconsciousness.

Senator Batters: Thank you, Ms. Levman; helpful as always.

I have one question for Senator Pate. I’m wondering if you’ve had any consultation with the Minister of Justice or people from her office, and whether you’ve had any indication whether the minister is likely to agree to this particular amendment or is already indicating that she does not agree.

Senator Pate: Thank you very much for the question, Senator Batters.

The indication is that the government is satisfied with what they’ve put forth. We’ve had some subsequent discussions. I think there’s some understanding that what is proposed does not cover all of the issues. Some of what is being proposed as a response by the Department of Justice is that putting in more specificity may subject complainants to more cross-examination. In fact, there is no evidence of that. Anytime intoxication is raised, all of the evidence shows that it increases the level of cross-examination anyway.

As Professor Elaine Craig said when she was before us, the courts are all over the place on these issues right now. Her opinion was that even the Supreme Court of Canada hasn’t defined this at this stage and that it would be a benefit for Parliament to clarify at this point, legislatively, what consent in this context means and part of the ways you can determine it.

As the Department of Justice and colleagues pointed out, part of the way to do that would be to further the amendment that I proposed by making it less specific and including but essentially not limiting it to those provisions, but helping to provide guidance for those courts that might otherwise apply discriminatory attitudes and ideas about sexual assault and complainants.

Senator Batters: So with respect to the Minister of Justice, though, it sounds like she’s probably happier to remain with the clause as it stands right now without the amendment, correct?

Senator Pate: That would be my understanding, yes.

Senator McIntyre: I have a point of clarification. First of all, we have the current version in the code, which is broader, and now we have the amendments that set out the criteria a judge must consider.

Will these criteria restrict the power of the judge versus the current version, which is broader? Will the power of the judge be restricted with these amendments?

Ms. Levman: It’s really impossible to say how a judge will interpret a particular provision in the abstract. What I can say is that there’s a power in legislating something. What I mean is that it directs judges’ attention to what is in the legislation. So there may be a risk that these three factors are the ones that are focused on and not some of the other ones that would be helpful in the more difficult cases.

Ms. Morency: I would add that as the amendment before the committee is worded, it is inclusive, so it does direct a court to consider a range of factors.

I think the comment that my colleague was making is that in practice, when you specify two or three factors, sometimes that’s what courts end up focusing on rather than the chapeau, which invites the court to look at it more fully. I think that’s the point we’re trying to raise.

Senator Pate: I want to return to the expert testimony we received that it would be helpful to provide a legal standard that points the court in a certain direction, and that’s the attempt of the amendment.

Senator Pratte: Senator Pate has moved a change to an amendment, and I would like to clarify whether, in your view, this alleviates part of the concern. The original amendment said “the complainant is incapable of consenting to the activity in question, in particular because” of the three factors.

Now Senator Pate proposes that instead of “in particular because,” we write “including because” they are one, two, three. There is a slight difference there. Would that, in part, alleviate the concerns you expressed?

Ms. Levman: Yes. I think there’s a big difference between an exhaustive legal test versus a non-exhaustive list of factors. I mentioned before that that definitely improves the approach. But I’m still concerned about singling out three factors that are all from the perspective of the complainant and not looking more objectively at the overarching circumstances in which the sexual activity took place.

Then, of course, there’s the concern, as Carole clarified a few moments ago, that I was attempting to make, which is that legislation has a force. Sometimes it directs judges’ attention to what is actually in the code to the exclusion of other potentially relevant factors that could assist vulnerable complainants. We know that in this context we’re dealing with a gendered activity and vulnerable victims.

Senator Pate: Ms. Levman, I’m interested in what other factors you think should be here, because by making it more inclusive but also providing the court with direction so they have some idea of what they should be looking at, which cases that have come forward that have been problematic would not be addressed by the proposed amendment?

Ms. Levman: I’m not saying that a judge couldn’t interpret them appropriately in a given case. My concern is this particular approach asks the judge to look at whether or not the complainant is capable of understanding certain things. It doesn’t ask the judge to look at the overall nature and circumstances of a case, the relationship, et cetera, not from the complainant’s perspective.

Senator Pate: Doesn’t sub (i) do that?

Ms. Levman: It asks the judge to consider whether the complainant is unable to understand the nature or circumstances, risks, consequences, et cetera; so the focus is on the complainant.

Senator Pate: And the complainant’s understanding.

Ms. Levman: Right. We’re always dealing with circumstantial evidence in criminal court, so it’s not unusual, but it’s very difficult to get inside the mind of a particular person when they’re in a very vulnerable moment and they may be intoxicated or somehow compromised.

Senator Pate: Would you be objecting to this legislation if it proceeded with the amendment as proposed?

Ms. Levman: I’m not sure it’s my place to —

[Translation]

Senator Boisvenu: I have a question for our experts at the Department of Justice. The position of the Indigenous Bar Association in its brief is that that the word “unconscious” would cause more harm to victims. Do you agree with that?

[English]

Ms. Levman: You said that they talked about the word “consciousness” and that there were prejudices associated with it?

[Translation]

Senator Boisvenu: Because the word “unconscious” is in the legislation. What the Indigenous Bar Association says in its brief is that this word is more harmful to victims.

[English]

Senator McIntyre: If I may, with Senator Boisvenu’s permission, read what the brief is saying. Here’s what they’re saying:

The addition of the “unconscious” wording in the Criminal Code, as suggested to be in response to R. v. J. A., will do little to address — and arguably more to prejudice — the victims of sexual assault who are intoxicated, but not to the point of unconsciousness.

Ms. Levman: The (a.1), the unconsciousness amendment, doesn’t alter the law in any way. It’s merely a codification of a principle that was articulated in many different cases but also in the J. A. case.

The legislation, as drafted, is clear that conscious complainants may not be capable in law of consenting, and that falls under the amended sub (b) in Bill C-51, which clarifies that there may be many other reasons why a complainant is not capable in law of consenting other than unconsciousness. So we feel the legislation is very clear, and it’s an articulation of a well-accepted principle of law.

[Translation]

Senator Dupuis: As I understand it, the position of the Department of Justice is that Bill C-51 codifies the state of the law, taking into account current case law. It does not necessarily go any further, but I do not think that is the purpose of the bill.

If paragraph (b), which follows paragraph (a.1) dealing with unconsciousness, were retained in circumstances where “the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph a.1),” in particular by (i), (ii) and (iii) of the amendment — In other words, we would keep the general perspective.

Your concern, and I understand it, is not to restrict the interpretation that could be given by introducing the possibility of being incapable of consenting. In that sense, if we keep the wording of paragraph (b), that is, someone who is incapable of consenting for any reason other than that referred to in paragraph (a.1), meaning anything other than unconsciousness, in particular for one of the following reasons, (i), (ii) and (iii), which are the three subparagraphs of the proposed amendment, does this not address your legitimate concern not to unduly restrict the scope of Bill C-51?

[English]

Ms. Levman: Thank you for the question. I note that the interpreter translated “notamment” in particular, but it’s really “including.” I just wanted to clarify for those using the translation that you’re still proposing a non-exhaustive approach is what I’m understanding from your comments. Like I said, a non-exhaustive approach definitely poses fewer concerns than an exhaustive one.

My concern about singling out three factors, from the perspective of the complainant, still remain, even in your formulation.

[Translation]

Senator Dupuis: I find your remarks and your concerns very interesting. Senator Pate’s amendment follows expert testimony that told us there is a real problem. Apparently, judges in Canada have difficulty interpreting the position of victims, which means that we end up with all kinds of judgments that can pose significant legal problems.

I hope we won’t need a letter from the Minister of Justice so that our translators translate the words “including” as “notamment” or “notamment” as “including.” However, wasn’t this list inserted only to help judges who would have difficulty dealing with the particular context of sexual violence cases and the positions defended in the testimony they must hear from victims of sexual assault?

[English]

Ms. Levman: My understanding of the intent behind the proposal is the same as yours. I agree with you that sexual assault jurisprudence is very complex, and particularly complex on the issue of incapacity.

We looked at the case law over the summer and concluded that, as the experts have said, there are inconsistencies. But what we took away from it was that there are a variety of different factors that courts consider when determining whether or not a particular complainant is incapable of consenting in law.

My concern in singling out only some of those factors is that we could end up with unintended consequences. So, yes, I agree the intent is to help courts interpret the law appropriately, but as we know with recent case law, even cases that have been overturned, it can be very difficult for courts to interpret these complex provisions. Not just the definition of consent provision, section 273.1, that we’re talking about, but the other provisions as well — mistaken belief in consent, et cetera. We need to tread carefully, I believe, when we legislate because we want to avoid consequences that we don’t intend, especially in an area where we’re dealing with such vulnerability.

Senator Pate: Picking up on that theme, one of the reasons for suggesting these amendments was that it was clearly stated by not just the experts in sexual assault law and criminal law — Isabel Grant, Elizabeth Sheehy and Elaine Craig — but also the Women’s Legal Education and Action Fund and rape relief crisis centre workers. As was mentioned earlier by the Indigenous women as well, one of the issues is a concern that by focusing only on unconsciousness, you point judges in the direction of the biases that already exist.

I’m wondering if you could explain why including unconsciousness was the only direction provided to judges, when it seems clear in all the case law that judges get that and understand that someone unconscious cannot consent, instead of providing more direction to judges who are clearly in some cases — not all — floundering around that issue.

Ms. Morency: Generally, on the issue of codification of a decision by a court, there’s often debate: Should you codify or should you not? There’s always the risk of over-inclusive, under-inclusive, and do we understand it to be exactly the same thing.

With Bill C-51’s proposal, I think the committee understands that the minister had explained the intention here was to codify J. A. I think it’s also fair to note that not everyone agreed that codification of J. A. was needed, and we’re perhaps more comfortable relying on the Supreme Court decision itself in setting out the parameters.

In fact, Bill C-51 is a little bit about all of that, which is to bring greater clarity and transparency so the law as written in black and white in the code is clear and easier for everyone to understand and, of course, to give directions to the courts.

While J. A. says unconscious victims cannot consent, putting it into the Criminal Code, as Bill C-51 before you proposes, makes it clear in black and white in the Criminal Code, and that was the objective. It was not to detract from the ability of courts in these cases to consider any other factors.

But I understand the concerns some have stated, that by putting in “unconscious” specifically, maybe you’re detracting from a court considering someone who’s almost unconscious. You don’t just all of a sudden become incapable when you pass out, but your capacity to consent is very much affected all the way up. That’s why the bill before you left that category open, to clearly leave room for any circumstance leading up to that point, as well as any other circumstance that may affect incapacity, not just as a result of intoxication.

I do that to bring to the committee’s attention the benefits, the risks, the likes and the dislikes of codification. That’s really what Bill C-51 was trying to address.

To your more specific point, maybe my colleague could answer.

Ms. Levman: In addition to what Ms. Morency said, I would note that we haven’t had a statement from the Supreme Court interpreting incapacity to consent issues, so arguably the law isn’t settled and can’t really be codified with any kind of uncertainty. That’s part of my concern about codifying something without proper direction from the courts. We have the Nova Scotia Court of Appeal’s decision in Al-Rawi, and it says that certain factors are the legal test and others aren’t, but other cases say differently.

As much as I totally agree with the experts who came before you and talked about the problems associated with the case law, the fix isn’t necessarily an easy one and certainly wouldn’t fit into the category of codification of established law.

The Chair: Senator Pate, I will risk an opinion after that.

Senator Pate: Essentially, the decision about what law should be is both within the legislative arm and judicial, obviously. In this context, clearly we, and you by extension, were being asked to deal with the fact that there is a judicial tendency to equate consciousness with consent and the need to have more specificity, and that’s what this was attempting to do.

I appreciate your answer, though. That assists the amendment we’ve made, and I welcome any other comments.

Senator Pratte: Your point about the three factors that the amendment seeks to add to the law is that even if the wording leaves it open-ended by using words like “including because,” for instance, simply because the three factors are there, some judges may tend to focus on them because they’re there in the law, codified.

But isn’t it true that the same could happen with the present bill, which focuses on unconsciousness? That is, even if sub (b) is totally open-ended, some judges may tend to focus on unconsciousness. That’s exactly the problem we’re seeking to alleviate by removing this concept of unconsciousness and the possible link between unconsciousness and incapacity. That’s what we’re trying to remove.

Ms. Levman: Yes, I appreciate that point, but I do feel that interpreting unconsciousness as the bright-line rule for incapacity would render sub (b) meaningless. There would be no point to it at all, so judges have to assume that sub (b) means something. What sub (b) means clearly, as stated in Bill C-51, is that it covers incapacity cases that result from any circumstance other than unconsciousness, so it’s very broad and very open-ended. We were very careful to draft it that way in separate subparagraphs to be clear to the court that unconsciousness is one way of finding incapacity. It’s clear and there’s no dispute.

Then on the other side where you don’t have unconsciousness, there may be a wide variety of reasons why someone is incapable in law of consenting, not just as a result of intoxication, I might add, but for other reasons as well.

[Translation]

Senator Dalphond: I will refer to my past experiences because I have been interpreting legislation for 20 years. Here is my first reaction. I find that the wording proposed by the Department of Justice is very broad and gives the judge the discretion to involve in the particular circumstances of each case the main issue, which is the one that the court and the courts always recognize, namely the issue of consent. However, it is not presumed consent, but express consent that is always sought.

Here, we propose a codification of certain case law decisions, which has the effect of presenting a list — in particular (i), (ii) and (iii) — so that judges will be tempted, at the suggestion of lawyers, to read into the list in order to see the principle behind each of the cases mentioned to find a guiding principle that could limit the very broad interpretation that is intended by Parliament for any reason other than that referred to in paragraph (a.1). All other reasons may be sought from the same list as those mentioned in subparagraphs (i), (ii) and (iii).

My first reaction is to see it as a danger of restriction in relation to what the department is proposing.

[English]

I have reservations about that proposal. I think it is complicating the process and people will be looking for the guiding principle behind these three exemptions, which I’m worried about.

The Chair: My preoccupation is that when we read (a.1), the complainant is unconscious. Well, unconsciousness is the highest level of not being able to consent. You are totally out, as if you lose your mind.

The other one is that you are incapable of consenting. That’s a different level. And by establishing as a first principle that you are spaced out, the other level of unconsciousness, which is the other point of being unable to consent, you have to be unable to consent to the level of being spaced out.

So by leaving it to the point where there are no examples, as Senator Pate proposed, you might induct the court to seek such a high level of incapacity that in fact the court will miss the point of the protection that you want to give to the complainant.

That’s why of Senator Dalphond’s point is correct. The court will want to read into each of those paragraphs what is the underlying criteria sought to interpret the incapacity. But on the other hand, if we give no indication or no idea to the court of what incapacity can be, they could be tempted to establish the level of demand of unconsciousness. So we will miss the target of protection we want to afford in the second paragraph.

As I say, you’re doomed if you do and you’re doomed if you don’t. So in that case, what should we adopt as a conduct in relation to determining the protection that we want to give to the incapacity to consent? That’s what I want to put on the table in listening to your answers given by the various points raised by Senator McIntyre, Senator Pate, Senator Dalphond and Senator Dupuis.

Senator Pate: Thank you. That is helpful. I’m wondering, in light of all of that, if one other possibility would be to amend (a.1) to say that the complainant is incapable of consenting and then continue on with the rest of my proposed amendment and take out unconsciousness altogether, given it’s pretty much established that unconsciousness can’t be consent. Would the department be happier with that?

Ms. Morency: Again, coming back to the objective of Bill C-51 as introduced before you, it is to codify J. A. So to have the advantage of being clear, a person who is unconscious cannot consent. There is not a question of capacity there. That was important to keep.

The amendment that you have tabled would delete that altogether and just go with the (b). And if you put (b) in the context of what is in Criminal Code right now, which is essentially that the complainant is incapable of consenting to the activity, J. A. speaks to that. If you are unconscious, you can’t consent and (b), as it is in C-51, proposes to say that it is anything else. Your proposal, as I understand it, would eliminate the (a.1) unconsciousness reference and just leave it open. It is kind of what is there now in the Criminal Code, which is “incapable of consenting.” You give more direction to focus in on some of the examples, which is more than what is there now, correct. I agree with that, but it’s still a different approach from what the bill had sought to achieve.

I think we’re talking about trying to achieve the same thing but maybe in different ways, and I think your concern is to try and give more direction to the court so that we avoid some of the challenges we have seen in cases to this point. Whereas the risk that has been identified, whether it plays out or not — because we are being asked if we think there is a risk — if we look at other sections of Criminal Code, we have list of conditions. We have bail, peace bonds, et cetera. Over time, those lists keep being added to because sometimes the courts don’t specifically turn their minds to it. You could look at the sentencing provision in 718.2(e), referred to as the Gladue provision, paying particular attention to the circumstance of the Aboriginal persons. That’s the primary focus, but it also applies to everyone else and it becomes the focus of that clause often.

Obviously, this is the issue before the committee, and we are trying to assist the committee because we have asked if there are risks. We think those are some risks, and maybe you think the risks are greater. That’s all we are trying to comment on.

Mr. Taylor: I wanted to add that I think Senator Pate had asked the question of whether removing unconsciousness would address the concerns, and we wanted to point out that we had understood that was the effect of the amendment, in any event, looking at the draft. And we understood if this amendment passed, the reference to unconsciousness would be removed.

Senator Sinclair: Senator Pate’s amendment you mean?

Mr. Taylor: Yes. So the draft that we have indicates “by replacing lines 17 to 20.”

Senator Dupuis: Twenty to 22.

Mr. Taylor: Perhaps we have a different —

[Translation]

It is lines 20 to 28 in French, and lines 17 to 20 in English.

[English]

The Chair: I don’t think it was the intent to remove the unconsciousness. It’s lines 18 to 20, because (b) starts at starts at line 18.

Senator Batters: The amendment says right now that it’s lines 17 to 20. Is it supposed to be 18 to 20.

The Chair: Yes, 18 to 20.

The Chair: For the purpose of the discussion, by replacing lines 18 to 20 in the English version, and in French it is:

[Translation]

a) par substitution, aux lignes 21 et 22, . . .

Senator Dupuis: I think the way you put it, Ms. Morency — Needless to say, we appreciate your collaboration and interventions to help us clarify our proposal, but also to understand how to translate what we believe has been rightly argued before us.

I think that the issue of risks, whether it is the choice to codify, as the department has indicated, which poses a number of risks, while the amendment, in your opinion, poses other types of risks, is reduced, for us, to the least important risks in a situation that is currently complex and delicate.

[English]

Senator Pratte: I’m just trying to see if there is a way of even further alleviating your concerns and yet keep the wording that we believe corresponds to our intentions.

If we left (a.1) and (b) as they are presently in the bill — that is, (b) would read:

(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);

But then added to this, “including because,” (i), (ii) and (iii).

[Translation]

Senator Dupuis: I proposed the same thing.

Senator Pratte: Right. I am honoured to come to the same reasoning as you.

[English]

Again, wouldn’t that be an improvement compared to the original amendment and alleviate, in part, your concerns? Because (b) would remain intact and would direct the judge from the start that it is for any other reason but (a.1).

Ms. Levman: I don’t think my previous comments were contingent upon my understanding that (a.1) was going to be removed. They equally apply in this type of scenario. Even if you have the line drawn at unconsciousness, you are still going to be dealing with the conscious complainants under sub (b), and we know from the case law that that’s where the complexity lies.

To ask the court to focus on what a particular complainant could understand or was able to understand or appreciate at a given point in time when she was very compromised may have the unintended effects that I outlined earlier.

Senator Sinclair: I don’t know if I’m going to add to this or not, but let me give it a shot. This is similar to the debate that I often get into at home when it comes to painting rooms. I always say that the shade of the colour doesn’t make any difference to me; it still looks beautiful.

The reality is the amendments in Bill C-51, as it now exists, accomplish an objective that is worthy, and this proposed amendment from Senator Pate also accomplishes an objective that is worthy. It is a question of whether we want to be specific in defining incapacity without limiting the incapacity created by unconsciousness, or not.

As I understood it, the concern that this proposed amendment from Senator Pate was intended to address was that we didn’t want judges to be focusing either exclusively or primarily on the question of unconsciousness as a threshold to incapacity. We wanted them to consider other factors as well and not redirect or direct them unintentionally.

I think the proposed amendment from Senator Pate does that, but I also think if we left it alone it would do that. My suggestion would be that it would be helpful to have a delineated set of categories where incapacity is clear, but I think the bill itself would be able to stand on its own and accomplish a good objective.

I would encourage us to vote on this to support or not support the amendment as we see fit. I will support it, but think at the end of day, whichever way we go, we will still end up with a bill that accomplishes what we all want to accomplish.

Ms. Morency: As a further comment on Senator Pate’s amendment, at the end of (b) as presently worded there is an “and,” and I think if the intention is to insert it in the framework in the code now, it is actually disjunctive. And you have an “or.” So this would be (b), then there’s paragraph (c), paragraph (d), then after (d) it becomes “or” and then (e), so I don’t think you would need the word “and” here.

The Chair: Thank you.

[Translation]

Moreover, there is no paragraph (a) in the French version.

[English]

Senator Sinclair: Senator Pate apparently agrees to change the word “and” to “or.”

Senator Pate: We don’t need it.

The Chair: No, I don’t think we need it. That’s my understanding, humbly submitted.

Senator Pratte: I came here with an idea that I thought was original but in fact it was Senator Dupuis’s idea, but I’m more comfortable with that wording so I don’t know if I should — do you agree with that, Kim, keeping (b) as it is and replacing your version of (b) with the original (b) as it is in the bill and then adding, “including because”?

Senator Sinclair: “Including but not limited to.”

Senator Pratte: “Including but not limited to” would simply be added to the present (b) in the bill.

Senator Sinclair: Do we agree on that wording?

Senator Pratte: Then we have the factors.

The Chair: Can we ask the reaction of the department to that?

Ms. Morency: If I may just confirm, the wording would be as in (b) now in the bill, and after the reference to paragraph (a.1), “including,” et cetera? Is that correct?

Senator Pate: “Including but not limited to.”

The Chair: “Including but not limited to.” The concern expressed around the table that it would be too restrictively interpreted would find its answer by “not limited to.”

Senator Dupuis: Keeping in French “notamment,” which is actually “including.”

Senator Sinclair: Just so I’m clear, senator, we’re adding the words “including but not limited to.”

The Chair: I will ask Senator Pate, as author of the amendment, to restate the amendments, with the correction of the lines on everything, so that everybody has the same text. Move the motion as you have amended it.

Senator Pate: I move:

That Bill C-51 be amended in clause 10 on page 5,

(b) the complainant is incapable of consenting to the activity in question, including, but not limited to, because they are —

Sorry.

(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a), including, but not limited to

(i) unable to understand the nature of circumstances, risks and consequences of the sexual activity in question;

(ii) unable to understand that they have the choice to engage in the sexual activity in question or not, or;

(iii) unable to affirmatively express agreement to the sexual activity in question by words or by active conduct;

And then continuing on.

[Translation]

The Chair: And in French? Senator Pratte.

Senator Pratte: We would replace lines 21 and 22 with the following wording:

b) il est incapable de le former pour tout autre motif que celui visé à l’alinéa a.1), notamment — Is this correct?

The Chair: Yes.

[English]

Senator Pratte: “Notamment” is the same as “including but not limited to.”

[Translation]

Notamment — followed by three factors, (i), (ii) and (iii):

(i) il n’a pas la capacité de comprendre la nature, les circonstances, les risques et les conséquences de l’activité sexuelle en question,

(ii) il n’a pas la capacité de comprendre qu’il peut choisir de se livrer ou non à l’activité sexuelle en question,

(iii) il n’a pas la capacité de manifester son accord de façon explicite à l’activité sexuelle en question par ses paroles ou son comportement. »

[English]

The Chair: Any other intervention before the vote?

Ms. Morency: Just to confirm in English, “including but not limited to because they are,” and then (a), (b), (c)? “Because they are.”

The Chair: “Because they are.” Yes, of course. I made the slip, too. It was not readable otherwise.

[Translation]

No other comments? Yes, Ms. Morency?

[English]

Ms. Morency: Just to remind the committee, in the French version we had matched the language to the language of the minister’s letter. It was read out we had “actif,” but I think the —

The Chair: We have removed it. Senator Pratte didn’t read it; so it’s not part of the text, as much as I understood. I was watching carefully too, Ms. Morency. Thank you for that.

Any other comments?

[Translation]

I was told that, in French, it would basically be “notamment pour l’un des motifs suivants,” without any further clarification required.

Senator Boisvenu: I would like to ask our two judges a question. I was listening earlier to Justice Sinclair explain that if we passed legislation as it stands, it would not make a big difference, and if we passed the amendment, it would not make a big difference either. I think an amendment delays the process, because we have to go back to the House of Commons and start all over again, when passing this bill is a matter of urgency for us. I would like to hear the judge’s comments on this amendment. If the judiciary likes the legislation as it is written, I think it would be pointless to amend the amendment.

Senator Dalphond: May I answer the question?

The Chair: Yes, absolutely.

[English]

Senator Dalphond: I’m far from being representative of the Canadian judiciary today, so I will refrain from pretending that I am. My understanding of the law is that consent has evolved substantially from being applied or tacitly to expressly being given. It is fair to say that the status of the law is that now. There are some judges who may have problems understanding it, but that’s another issue. This is where the law stands now.

These older amendments make it a question of law, what is the interpretation of the consent, which means that the Court of Appeal will step in more easily to give the proper interpretation to these provisions. That being said, it’s going to be an improvement because to make it a question of law gives the Court of Appeal broader jurisdiction than before, at least clarifying the situation.

Finally, I like my colleague very much, and I even asked him to introduce me in the Senate, so that shows how much respect I have for him. I tend to agree with him that one way or the other will not have a catastrophically different result. I still believe some lawyers are going to read in the list that there is an intent of Parliament to give some indication on what situations are covered. Lawyers, being creative and as good as they are, will try to find the common spirit between (i), (ii) and (iii), and whether there are similar situations that should be on an exhaustive list, that are not necessarily limited, other things that don’t share the same principles but could be covered. I think there would be room for debate.

I prefer maybe the drafting as proposed by the Justice Department as being large enough to avoid that hurdle. But at the end, I guess the Court of Appeal will come to the right result.

The Chair: Any other intervention before we go to the vote?

Senator Pate: In response to that, I feel the need to say that while I’m not disagreeing with either of our colleagues who are former members of the judiciary, the fact there is a clear impetus for the need for this, and the evidence we received, points to the direction of providing more direction to judges who have not shown the ability to interpret this, and lawyers who have not shown the ability to be respectful of complainants.

The Chair: I will ask the clerk to call the vote.

[Translation]

Keli Hogan, Clerk of the Committee: The Honourable Senator Joyal, P.C.?

Senator Joyal: Yea.

Ms. Hogan: The Honourable Senator Batters?

Senator Batters: Nay.

Ms. Hogan: The Honourable Senator Boisvenu?

Senator Boisvenu: Nay.

Ms. Hogan: The Honourable Senator Carignan, P.C.?

Senator Carignan: Nay.

Ms. Hogan: The Honourable Senator Dalphond?

Senator Dalphond: Nay.

Ms. Hogan: The Honourable Senator Dupuis?

Senator Dupuis: Yea.

Ms. Hogan: The Honourable Senator Eaton?

Senator Eaton: Nay.

Ms. Hogan: The Honourable Senator Jaffer?

Senator Jaffer: Yea.

Ms. Hogan: The Honourable Senator McIntyre?

Senator McIntyre: Nay.

Ms. Hogan: The Honourable Senator Pate?

Senator Pate: Yea.

Ms. Hogan: The Honourable Senator Pratte?

Senator Pratte: Yea.

Ms. Hogan: The Honourable Senator Sinclair?

Senator Sinclair: Yea.

[English]

Ms. Hogan: Yeas, 6; nays, 6; abstentions, none.

The Chair: The amendment is defeated. We move back to clause 10 of the bill, unamended. All those in favour of clause 10?