Honourable senators, I rise today to ask you to vote against the amendment Senator Pate proposed at third reading to make changes to the Criminal Code.

I do so with regret.

I have the utmost respect for my colleague Senator Pate, and her important contribution to the work of the Senate. I would like to mention, for example, her Bill S-251, An Act to amend the Criminal Code (independence of the judiciary), which seeks to restore sentencing discretion to judges, in order to prevent the automatic imposition of minimum sentences in every case regardless of the circumstances. I commend my colleague’s initiative and appreciate her confidence in the ability of the courts to fully understand the specific circumstances of each case. In a speech delivered on September 27, 2018, our colleague Senator Wetston brilliantly invited this chamber to vote on the motion to pass this bill at second reading.

With the exception of more serious crimes, such as first and second degree murders — where I am not convinced that minimum sentences are inappropriate for sending a strong deterrent message — I agree with Senator Wetston’s comments and invite you, honourable colleagues, to vote in favour of second reading of Bill S-251 so that the Standing Senate Committee on Legal and Constitutional Affairs may study it in greater detail and propose suitable amendments.

That said, I will now move on to the proposed amendment to Bill C-51, which is now at the end of the legislative process.

What is Bill C-51 about? The bill pursues four distinctive objectives, and I quote here from the Justice Department website:

Clarify certain aspects of sexual assault law relating to consent, admissibility of evidence and legal representation for the complainant.

Repeal or amend the number of provisions in the Criminal Code that have been found unconstitutional by appellate courts and other provisions that would likely be found unconstitutional.

Repeal several or obsolete or redundant criminal offences; and.

Require the Minister of Justice table a Charter Statement in Parliament for every new government bill, setting out the bill’s potential effects on the Charter of Rights and Freedoms.

In connection with sexual offences, the summary of the bill states:

It also modifies certain provisions of the Code relating to sexual assault in order to clarify their application and to provide a procedure applicable to the admissibility and use of a complainant’s record when in the possession of the accused.

In other words, in connection with sexual offences, the primary aim of the bill is to reflect in the code the current state of the law on consent and not to respond to the invitation made to Parliament in 2011 by the Supreme Court in R v. J.A. to change the state of the law on consent if Parliament felt the courts were going too far in their interpretation of what is consent.

As stated by Senator Harder in his October 16 speech, Bill C-51 does not seek to legislate a legal test of incapacity.

The second aim of the bill, which was criticized before the committee by several criminal defence lawyers and civil rights groups, is to expand the rape shield provisions and to restrict the accused’s use of the complainant’s private records in his or her possession.

Like Senator Joyal, I share some of their concerns and I believe there will be constitutional challenges to these provisions. That said, I support the bill as a whole because I believe courts can be trusted to interpret the new provisions with some flexibility so as to preserve the accused’s rights to a legitimate means of defence in the appropriate circumstances.

Acknowledging that Bill C-51 has multiple objectives, for the remainder of this speech I will focus on consent, a key element in sexual offences.

The jurisprudence has concluded that the current provisions of the code require ongoing, conscious consent to ensure women and men are not victims of sexual exploitation and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.

To prevent sexual exploitation, the Supreme Court said in J.A., rendered in 2011, that the jurisprudence has consistently interpreted consent as requiring a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act.

Thus, consent must be present at all times during the sexual activity and cannot be given, for example, in advance by a person who agrees to engage in erotic asphyxiation.

Bill C-51 merely incorporates in the existing Criminal Code the principle that consent must be specific to each sexual act and be present at all times.

Clearly, the two additions to section 273.1 of the Criminal Code do nothing more than codify the Supreme Court’s ruling in the R. v. J.A., when stating that consent must always be present during the sexual activity in question — new section 273.1(1.1) — and that consent no longer exists if a complainant becomes unconscious during the activity.

Relying on some witnesses, Senator Pate expressed the fear that the new wording is:

. . . likely to encourage defence counsel to argue, and some judges to accept, that Parliament intends to draw the line for incapacity and capacity to consent at unconsciousness and similar states.

With all due respect, this argument is clearly untenable, as it would be a complete reversal of the existing case law, as evidenced, amongst other things, by the recent judgment of the Nova Scotia Court of Appeal in the Al-Rawi case, stating clearly that the dividing line between consent and lack of consent is not consciousness but the ability to consent and to withdraw consent at any point.

Nobody can seriously argue that a bill intending to codify the current state of the law could have the feared effect.

This is one of the reasons why I opposed a different version of the amendment proposed by Senator Pate at committee stage and now oppose, respectfully and in all friendship, my colleague’s second attempt with the new wording.

My second reason to oppose, then and now, is related to the content of the amendment.

As stated by Senator Harder in his October 16 speech opposing the amendment, at committee, concerns were raised by representatives of the Department of Justice that replacing in subsection 273.1 the words “the complainant is incapable of consenting to the activity” by a list of factors that will result in a more complex and harsher cross-examination of complainants during trials.

While acknowledging that this is an issue which was not addressed by the witnesses on whom she relies, Senator Pate told us that she subsequently spoke with them and reported in her October 16 speech that they are not alarmed by this possibility:

. . . because women are already, usually, extensively cross-examined about the types of issues raised by these factors . . . .

Before subjecting victims to further stress and pain in the courtroom, I, for one, would like to hear witnesses on the consequences of the proposed amendment for the conduct of trials.

My third and last reason to oppose the amendment at the committee level was about the drafting technique used in the then proposed amendment. At the time, Senator Pate suggested deleting references to unconsciousness and incapacity to consent and replacing them with a list of three detailed tests. The tests would have served to determine a complainant’s state of mind at the time of the sexual activity and were designed especially for situations where the complainant is intoxicated.

Even if this list was eventually amended to make it non-exhaustive, it remains that lawyers and courts would most likely have strived to read into the list of tests some guiding principles to determine what other circumstances or factors were to fall into the purview of the disposition, as intended by Parliament.

I apologize to non-jurists for delving into legal niceties, but when interpreting lists, courts often rely on an interpretation rule known as ejusdem generis, of the same kind or nature.

In R. v. J.A., the majority of the Supreme Court stated that the courts have to:

. . . identify additional cases in which no consent is obtained, in a manner consistent with the policies underlying the provisions of the Criminal Code.

By replacing the words “incapable of consenting to the activity in question for any reason” with a list of criteria, the principles underlying the amendment proposed at committee would have restricted the other circumstances where the person is unable to consent.

One cannot help but notice that the amendment now proposed, which has kept the words “incapable of consenting to the activity in question for any reason” but deleted the words “the complainant is unconscious” and reinstated the three sets of criteria introduced in committee, will create interpretative difficulties and risk changing the state of the law or, at the very least, will create a period of uncertainty about Parliament’s intent when incorporating such a list of criteria in the Criminal Code.

Incidentally, this is why an amendment to add simply the words “including the reason that the complainant does not have the capacity to understand the nature of the activity or is not aware that they are not obliged to consent to the activity” was rejected by the Justice and Human Rights Committee in the other place.

For all these reasons, I prefer the Justice Department’s approach, as amended in the House of Commons, that preserves the discretion of judges to deal with the specifics of each case and avoids a period of interpretive difficulties and uncertainty.

Finally, let me say a few words about Senator Lankin’s call for action.

There is no doubt in my mind that victims of sexual assault, the majority of whom are women, do not view reporting to the police and resorting to the judicial system as worthy avenues.

There is no doubt there remain in society myths, biases and prejudices towards victims of sexual assaults, and these do not stop at the door of police stations or courthouses. Crown counsels, defence lawyers, judges and the jury are not immune to them. Some groups and experts have rightfully addressed criticism in this regard to the judicial system. Some of these groups are now intervening before Courts of Appeal and the Supreme Court to help courts correct any failure that may exist from time to time.

But following the teachings of the Supreme Court on consent, appellate courts do not hesitate to reverse troubling cases, such as Al-Rawi and Barton, to which Senator Pate and Senator Lankin have referred.

However, these cases are emblematic of the need for greater education and awareness efforts on the issue of consent, as the Minister of Justice acknowledged before the Justice Committee.

Our societal efforts may very well include changing various provisions of the code governing sexual offences to increase trust in the system and to tend to the needs of the victims, while at the same time protecting the right of the accused to a fair trial.

That being said, an amendment at third reading to a complex and key provision of the code on consent, described by Senator Lankin in her speech last Thursday as an attempt to change the law in the context of a “small ‘r’ revolution,” is not the proper way forward for a house of sober second thought.

Bill C-51 is not an attempt to reform the law on consent. It is not an attempt to provoke a small revolution in the law of sexual offences. Those who participated in the parliamentary process understood that.

The Hon. the Speaker pro tempore: Senator Dalphond, your time has expired.

Senator Dalphond: Five more minutes?

The Hon. the Speaker pro tempore: Five minutes?

Hon. Senators: Agreed.

Senator Dalphond: I understand that for those advocating for change, Bill C-51 may not be enough, but the solution cannot be a proposal adopted at third reading without proper consultation and without any thorough analysis and debate in committees in both houses of Parliament.

This should be done through a bill directed at reforming sexual offences or the Criminal Code to reflect, amongst other things, the concerns of victims of sexual assault.

In the meantime, as stated by Senator Pate, the Supreme Court will rule on the appeal in the Barton case, where the assessment of consent to sexual activity is a very live issue.

After the ruling, should the government or members of the Senate deem it necessary, a bill proposing to change the law on consent in relation to sexual activity could be introduced, and a fair debate involving all interested parties could follow.

This is not what we are discussing today. Today, we should be looking at why it is so important that this one last-minute amendment to the bill be passed so that the bill can be returned to the House of Commons, which would then delay the implementation of provisions for which there is broad consensus. In my opinion, there is no need for this. I urge you to oppose the motion in amendment.

The Hon. the Speaker pro tempore: Senator Joyal, do you have a question?

Hon. Serge Joyal: Would the Honourable Senator Dalphond take a question?

Senator Dalphond: Certainly.

Senator Joyal: Senator, I listened carefully to your speech. Do you think that Bill C-51 as drafted is sufficient to allow the Supreme Court to rule on the fundamental question in Barton? Could the Supreme Court rely on an “objective likelihood of harm” to find that the victim could not have consented to physical harm? An individual cannot consent to physical harm.

Would Bill C-51 as drafted allow the Supreme Court to find that its scope is sufficient to read in the law —

— That criteria is, in my opinion, objective and has nothing to do with the consciousness or lower level of consciousness of a victim or a complainant.

Senator Dalphond: The current law is not going to change. The judge has to take into account all applicable circumstances to determine whether consent is or is not present. The requirement is that consent must be present at all times, can be withdrawn at any time, and must be specific to each sexual act. That’s not going to change.

However, if this chamber were to adopt an amendment now, while the case is still before the Supreme Court, wouldn’t it be a bit disrespectful to the Supreme Court, which is still weighing the matter?

In R. v. J.A., the Supreme Court demonstrated a very liberal interpretation of consent. Indeed, three justices dissented, including Judge Fish, a noted criminal law expert, because they felt the court was going too far. The Supreme Court ruled that consent must be present at all times, including during the period when the person who later filed the complaint claimed to have been unconscious. The Supreme Court also did not hesitate to reaffirm that equality in sexual relations requires ongoing, conscious consent at all times.

I believe that in the Barton case, which involves 12 interveners in addition to the Crown and the accused, the court will answer these questions with its customary wisdom.

Senator Joyal: My question is not about changing the state of the law that the Supreme Court must rule on. The Supreme Court will not rule on the Bartoncase based on Bill C-51 because, as the honourable senator knows very well, it is the state of the law at the time that the alleged act was committed that the Supreme Court has interpreted, not the state of the law after the offence was committed, which is obviously what is covered by Bill C-51.

My question is basically about determining the interpretation of the victim’s consent under the current Criminal Code and not under some future criminal code that could be amended if Bill C-51 is passed.