Criminal Code - Department of Justice Act

Bill to Amend—Message from Commons—Motion for Non-Insistence Upon Senate Amendments Adopted

December 11, 2018

The Honorable Senator Colin Deacon:

Honourable colleagues, I had hoped that I would not be rising again to speak about Senator Pate’s amendment to Bill C-51.

I was proud of the work — as was she, and many of us — undertaken by the Senate in this regard and, in particular, the study by the Legal and Constitutional Affairs Committee and the thoughtful examination in this chamber of Senator Pate’s amendments. I was also pleased to hear Senator Harder’s earlier comments in this regard.

While I am obviously disappointed that the other place chose not to accept these amendments, I appreciated the extensive debate that took place in the house last week. As I mentioned in my previous speech on this topic, I firmly believe that what our society needs is more discussion on the subject of consent. We know from other examples that drawing attention to these matters can, in fact, result in change.

Last month Statistics Canada reported that the number of police-reported sexual assaults in Canada had increased quite significantly.

Data provided by police services in Canada show a marked increase in the number of victims of founded sexual assaults during October 2017 — the same month that #MeToo went viral — with nearly 2,500 victims of sexual assault. The number of sexual assaults reported by police in October and November 2017 was higher than in any other calendar month since comparable data became available in 2009.

The report was careful to note that the numbers were not presumed to suggest an increase in incidents but, rather, an increase in reporting:

This sharp increase in police-reported sexual assaults following the #MeToo movement does not necessarily reflect a rise in the prevalence of sexual assaults in Canada, but is likely attributable to a combination of factors, including an increased willingness of victims to report to police. Other factors include a heightened awareness among Canadians of what constitutes sexual assault and public announcements by police services to encourage victims to report.

This is encouraging. I raise this point because it illustrates that discussion around an issue can help to cause real change. This is what I was hoping Senator Pate’s amendments might enable.

Honourable senators heard me quote statistics in my speech. I have to say that I have been unable to get them out of my head. Every day there are more than 150 self-reported cases of sexual assault where the victim was unable to consent because they were drugged, intoxicated, manipulated or forced in ways other than physically.

It is unconscionable: an average of over 150 every day in Canada. I have spoken about this issue with many people outside of this chamber. I was struck, in particular, by reactions I got from millennials. They seemed utterly gobsmacked to learn that clear explanations around the issue of consent are not already enshrined in law.

We truly have a problem in this country as it relates to consent. Far too many women — because it is primarily women — are being sexually assaulted. Far too few are reporting these assaults — only 1 in 20 — largely because of a lack of confidence in our judicial system. We need a comprehensive strategy to materially reduce the number of sexual assaults and increase the percentage of those that are reported and prosecuted. I had hoped that Senator Pate’s amendments could be a first step.

I was happy to hear some of the things the Justice Minister had to say on the issue of consent and that she largely agreed with the work of this chamber. She said:

I would like to be clear. I agree that courts could benefit from guidance in making determinations on a complainant’s incapacity to consent when he or she is conscious. The proposed amendments underscore some very significant issues in the area of consent. I also agree that intoxication, short of unconsciousness, represents challenges in the adjudication of sexual assault cases.

This, colleagues, is an important statement. I am pleased that the Minister of Justice put it on the record.

She also stated that she looks forward to “the bill’s expeditious passage.” We have heard from Senator Harder that the Senate is now expected to deal with this message from the House of Commons in a most expeditious manner.

I have to say that, while I am still learning my way in this place, I found the different perspectives related to timing a bit perplexing. Senator Pate introduced her amendments on October 16. After a comprehensive debate, this chamber passed those amendments on October 30, two weeks later. That was just over five weeks ago, and now this chamber must immediately consider and accept the message from the other place, lest we delay government legislation. I do not intend to be obstructionist or to contribute to any perceived delay, but it certainly seems to me that the Senate did its work expeditiously.

In her speech, the Minister of Justice also noted that there is a risk of unintended consequences if we pass these amendments without further detailed study. I’m still not certain I agree with that assessment based on the advice I’ve been given from legal experts. Regardless, I think it’s something that our very capable Standing Senate Committee on Legal and Constitutional Affairs could have undertaken had we received a message back in a more timely manner.


Of course, as Senator Pate noted, it would have been optimal if key stakeholders had the opportunity to be heard before the Minister of Justice introduced the provisions regarding consent in Bill C-51.

I want to finish by saying that people listen to what we say and do in this chamber. I was not yet appointed to the Senate before the Honourable George Baker reached his mandatory retirement age, but it’s rumoured he used to read case law for fun — I can’t imagine that — and would regularly update this chamber on what he read. A recurring theme was that he would emphasize how often the Senate and Senate committees were quoted — always at a much higher rate than the House of Commons. He has previously told this chamber that we’re quoted in case law three times more often than the House of Commons, not just referring to cases before the courts but before quasi-judicial bodies.

The work we do here is important, colleagues. While I’m disappointed with the outcome of the amendments to Bill C-51, and it wasn’t what I’d hoped, I remain very proud of the debates we have had on this important issue.

I am also at least somewhat reassured by what else the Minister of Justice said:

. . . I will and have committed to study the issue of incapacity, with a view to striking the right balance on this important matter. I am grateful to the witnesses who appeared before the Senate committee for suggesting that this issue be the subject of further study. I look forward to consulting with them further as part of my future review.

This is an important commitment. I will be watching closely to see real progress from this work and I’m sure I will not be the only one.

Earlier this afternoon, I spoke with Glen Canning, Rehtaeh Parsons’ father. He is regularly invited to speak to police forces and schools across our country. He says it’s frightening to see how many boys and girls in high school simply have no understanding of the basic issues related sexual consent and sexual assault. It is harm ready to happen. I share his belief that the discussions proposed by the Minister of Justice need to include not only the judiciary but educators as well. This is because our education systems can and should play an important role in empowering all students to make better decisions around the issue of sexual consent, a key element to dramatically reducing the overall number of sexual assaults. At the same time, our justice system needs to become unrelenting in its efforts to dramatically increase the levels of reporting as a measure of public confidence. Both will be relying on appropriate guidance in our Criminal Code. We must get it right.

Honourable senators, I would argue that counting on appellate courts to overturn glaring errors does little to build public confidence — quite the opposite.

Those of you who have participated in committee meetings with me will know that my focus is on benchmarks and tangible results. I’m pleased to hear the Minister of Justice will now be consulting with those who are dealing with sexual assault issues on a daily basis. I encourage her to reach beyond the judiciary and into educational settings as well. I look forward to this occurring expeditiously.

We’ve all heard the stories. We’ve seen the facts. We know the devastating effects. Now we need to see real action.

Thank you, colleagues.


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