Criminal Code - Department of Justice Act

Bill to Amend—Third Reading—Motion in Amendment Adopted—Debate Continued

October 30, 2018

The Honorable Senator Colin Deacon:

Honourable senators, I rise to speak in support of Senator Pate’s amendments to Bill C-51.

Rehtaeh Parsons was a vibrant 15-year-old girl who entered Cole Harbour High School in September 2011. She was full of hope, dreams and optimism.

Two months later she went to a party with a friend. She drank too much and, as Rehtaeh later described, was sexually assaulted. A photograph was taken showing one of the young men apparently having sex with Rehtaeh from behind as she vomited out a window. The photograph was widely shared.

Rehtaeh went to the police a week later. After a year-long investigation, the case was closed. No charges were filed. In April 2013, 17 months after that party, Rehtaeh attempted suicide. She died a week later.

Throughout this time, she felt terribly alone and completely abandoned by everyone in positions of authority. Rehtaeh had the support of her parents and a couple of friends, but that was all. She turned to the justice system, but it was decided that there was no realistic prospect that any charges would result in convictions, so none were ever laid. Despite photographic evidence that she was incapacitated to the point of vomiting, Rehtaeh’s case was still considered “he said, she said.”

Her father, Glen Canning, later wrote that Rehtaeh had totally lost faith in the justice system. I agree with Glen when he said, “There is no excuse for someone so young to lose faith like that.”

Rehtaeh’s story would have slipped away altogether but for the actions of Anonymous, the international hacker group. Colleagues, it’s a very dangerous and scary place when non-state actors feel they must intervene in a local matter because large segments of the population are not satisfied that justice is being served.

The law usually prevents us from naming victims in such offences, but Rehtaeh’s parents strongly advocated to keep her name and her story alive. The Attorney General of Nova Scotia agreed that the public interest is served by remembering Rehtaeh and learning from what happened to her.

I hesitated to engage in this debate because I am very conscious that I am a new senator, I am not a lawyer and I don’t have any criminal law expertise, but I believe this isn’t just a problem for the experts. This is a collective problem. As I listened to Senator Pate discuss her amendment and the debate that followed, I concluded that this problem cannot be viewed just through the lens of the judiciary, or through the eyes of prosecutors or police. It needs to be considered in a manner that will change the way all Canadians make decisions related to consent.

When I looked at the data, I was even more convinced. Too many Canadians are being sexually assaulted every single day. An overwhelming number don’t report it to the police. Statistics Canada estimates that some 636,000 self-reported sexual assaults took place in Canada in 2014. Shockingly, they also estimated that as few as 1 in 20 were reported to the police. That’s 5 per cent, colleagues. What other crime can anyone point to where as many as 95 per cent of victims feel they cannot turn to the justice system?

I wanted to get a sense of the scale of this problem. I learned that in that same year there were over 116,000 car accidents in Canada. That means there are about five times as many unreported sexual assaults in Canada as car accidents — five times. Then consider that these are accidents. Think of everything we do, all the time and money that we invest as governments, the justice system and as individuals, to reduce the number of car accidents. Surely we are capable of doing more to reduce the number of sexual assaults, especially given that these are not accidents; they are entirely preventable.

I believe that the key to prevention is for Canadians, every day, to understand how to obtain mutual consent and to act on that knowledge. Think of the lifelong harm that could be prevented.

We need to stop assaults before they take place and well before they ever reach our criminal justice system. Surely that’s our goal. Surely that’s our measure of success or failure, to prevent the problem in the first place. If we’re to achieve this, we need the law to clearly state how and when someone can consent to sexual activity and when they cannot.

Ultimately, the Government of Nova Scotia ordered an independent review of the police and prosecutors’ handling of the Rehtaeh Parsons case. The Segal report ran over 150 pages. It concluded that while another prosecutor might have decided otherwise, the decision not to proceed with sexual assault charges was understandable from the standpoint of our current justice system.

There’s a long section in the report devoted to consent. What struck me most powerfully was how unclear and vague the law is on consent when it comes to sexual activity. The law is clear — and the report describes this — if the victim is intoxicated to the point of unconsciousness, but that’s where the clarity ends.

In Rehtaeh’s case, the police and prosecutors decided not to charge anyone with sexual assault, not even to put the matter before a judge. Yes, there were differing views on the evidence. Yes, another prosecutor could have reasonably reached a different conclusion, but I cannot help but see the lack of clarity in the law as it relates to the issue of consent as being a significant contributor.

Colleagues, we can’t do anything to bring Rehtaeh Parsons back and allow her to grow up and live a life that should have been hers. But we are legislators. It’s our job — it’s our opportunity — to restore some measure of justice for the far too many Canadians who are being failed by our system. When the system is failing, then it’s our responsibility as legislators to address that failing. It’s our job to look at the law and, if it isn’t working, to do our best to fix it.

I have the utmost respect for Senator Dalphond and paid close attention as he described why the government is proposing a narrower focus or Bill C-51. But, colleagues, I can only view this bill and its proposed amendments through all of the elements of our justice system: yes, the judiciary, prosecutors and police, but, most importantly, the public. I’m firmly focused on how to dramatically reduce the number of sexual assaults that occur in this country every day, be they reported and prosecuted — or not, as is the case the vast majority of the time.

We regularly use criminal law to achieve this very goal. An obvious example is that the Criminal Code prohibits driving while impaired by drugs and alcohol. As a result, think about the hundreds of thousands of different decisions and discussions occurring every single day by Canadians across this country. Think of the devastation that is prevented.

I mentioned the report that Statistics Canada released last year which focused on self-reported sexual assault. They were trying to understand why most sexual assault victims don’t go to police, why it’s one of the most under-reported crimes. But even this report cautioned the self-reported figures could well underestimate the actual incidents.

One of the three categories of sexual assault covered by the report was sexual assault where the victim was unable to consent. The question asked was, “Has anyone subjected you to a sexual activity to which you were not able to consent …where you were drugged, intoxicated, manipulated or forced in ways other than physically?”

Nine per cent of the self-reported sexual assaults fell into this category. Colleagues, there were 636,000 self-reported sexual assaults in 2014. That means in that single year, there were more than 57,000 sexual assaults where the victim was unable to consent. That’s 157 individual cases of sexual assault where the victim was unable to consent every single day.

The first year this category was even measured was 2014. In that year, only 26 per cent of sexual assault incidents where the victim was unable to consent were reported to police. That means 74 per cent — three out of every four incidents where the victim was unable to consent — did not come forward to police. Three out of every four times the victims did not believe justice would be served.

In other words, colleagues, women — and let’s be honest, these are overwhelmingly women and girls — have received the message: Don’t report the assault to police. That point was driven home to me during conversations with current and retired police officers. They spoke of the dehumanizing process of reporting. Senator Dalphond spoke with genuine concern of how this process gets even worse in those rare situations where the case actually reaches a courtroom.

Colleagues, I don’t believe this is the justice system we want in Canada. Surely this is not who we are as a nation. It certainly isn’t who we aspire to be.

The bill before us today tries to clarify the law on consent. Once again the bright line is focused on whether the person is conscious or not. There is vague language referring to whether she is incapable of consenting for any other reason. As the experts have said, if we pass this bill without amendment, we risk reinforcing the message that the dividing line is whether someone is conscious or not. Is that the message we want to send to our police, our prosecutors and our courts? Is that the message we want to send to Canadians — especially young Canadians — that even though someone is so intoxicated they’re leaning out a window and vomiting, they’re still capable of consenting to sexual activities?

Colleagues, the vast majority of law enforcement in this country is not done in our courts, not done by prosecutors nor by police. It’s done by average Canadians as they make decisions through the course of every single day. The analysis is telling us, unequivocally, that Canadians need to make much better decisions related to consent. In this chamber today we have the opportunity to get this right, to clarify the elements that Canadians should consider when assessing whether someone has the capacity to consent or not. I believe that’s what Senator Pate’s amendments achieve.

It has been suggested judges don’t require this guidance because they’re well trained and don’t need it. Colleagues, I have no doubt the vast majority of judges in criminal trials are excellent and need no guidance. But sadly, there have been many numerous high-profile cases in recent years involving judges who were not that enlightened. The simple fact is some judges do need this guidance. This is especially important when you consider the tiny fraction of assaults that ultimately make it to the courtroom.

Of course, it isn’t only judges. The police and Crown prosecutor in the case of Rehtaeh Parsons decided not to lay charges. Rehtaeh’s dad describes the justice system as “the tail wagging the dog.” His observation is the police look at it from the court perspective, effectively becoming investigators, prosecutors, judge and jury. No one, it seems, is intensely focused on preventing the 157 times every day when a Canadian is sexually assaulted and unable to consent. Let’s start to move the focus to preventing all of this harm rather than inadequately responding to it.

Don’t we all want Canadians to know very clearly how to assess consent? Setting out criteria in the Criminal Code — the clearest and strongest laws on the books — does just that.

Before I close, I want to address the argument that third reading is not the time to introduce precise changes to such a complex area of criminal law, that this work should occur in committee. As a new member of the Senate, I am very grateful for the work of our committees. It helps me enormously as I learn my new role. However, I’ve heard nothing to suggest that committee work is a substitute for work in this chamber. Quite the opposite. I’m also aware, as Senator Lankin pointed out, that Senator Pate’s amendments were defeated in committee because the vote was equally divided six to six. That sharp division underscores why I think it is so important that Senator Pate brought this matter back to the Senate for us all to consider.

Well before I ever imagined I would have the responsibility of sitting in this chamber, I was a Canadian observing the Senate struggle with Bill C-14, the law on medical assistance in dying. That too was a highly complex area of criminal law that was actively debated and amended at third reading. Canadians saw firsthand the serious and thoughtful way this chamber handled this very important and complex area of criminal law. Watching as a Canadian, I was so proud of the difficult work done at that time.

To provide some perspective, in the two years following the implementation of Bill C-14, there have been 3,714 medically assisted deaths in Canada. Colleagues, surely the 636,000 self-reported incidents of sexual assault and the more than 57,000 where the victim was unable to consent deserve the same level of attention, care and time that was properly devoted to Bill C-14.

I know if we pass these amendments, the bill will be delayed coming into force. But I have seen how short that delay can be, how quickly the other place can respond to the amendments we pass. If they choose, they can agree to our amendments the same day and the bill can move immediately to Royal Assent.

Colleagues, we can do nothing about the past. We can’t turn back the clock for any of the hundreds of thousands of victims of sexual assault or for Rehtaeh Parsons and her family. But we have the power, as legislators in the Parliament of Canada, to try and do something about the future.

Today, honourable senators, we can choose to put in place a law that can begin to change the dialogue among Canadians as they make decisions every day. We can choose to change the conversation well before it reaches the police station, the prosecutor’s office or courtroom.

We are a nation of respect. For me, that means no one should be forced to engage in any sexual activity. That means there must be genuine, mutual consent. I believe our laws need to reflect this important goal and outline the elements required to achieve genuine, mutual consent. I will be supporting Senator Pate’s amendments. Thank you.

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