Honourable senators, I rise today to move an amendment to Bill C-51. This amendment responds to concerns raised by numerous witnesses who appeared at committee both here and in the other place. These included prominent women’s groups, those who work directly with and on behalf of victimized women who have been sexually assaulted, as well as Canada’s leading experts on the law of sexual assault. There was considerable consensus among these witnesses that while many of the bill’s provisions are welcome, the changes it makes regarding incapacity to give consent to sex are problematic.

The provisions at issue in clauses 10 and 19 of the bill set out that no consent is obtained where an individual is unconscious or incapable of consenting to the activity for any other reason. Witnesses testified that incorporating into the Criminal Code a provision explaining that an unconscious person cannot consent to sex and making that provision the only example of what constitutes incapacity to consent 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.

That, however, is not and should not be the law. Judges do not struggle with the question of whether women can consent to sex when they are unconscious. Witnesses familiar with decisions being made across the country assured us that judges have consistently applied that very basic and uncontroversial principle.

What they do struggle with is the level of intoxication short of unconsciousness at which a person becomes incapable of consenting. To give just one example, the judge in Nova Scotia’s Al-Rawi case notoriously held that a severely intoxicated woman on the very brink of unconsciousness was still capable of consenting to sex, in that case with a taxi driver who had picked her up minutes before and whom the police discovered engaging in a sex act with her of which she had no recollection.

As Rona Ambrose noted when discussing Bill C-377 regarding judicial education about sexual assault law, in Al-Rawi “incredibly, the judge ruled, ‘Clearly a drunk can consent’.”

In addition to the injustices done to the woman who heard the court dismiss her experience in this way, Ms. Ambrose also drew attention to the costs for other women and for the functioning of the justice system of “basic errors or, even worse, painful comments that make victims think twice of ever pursuing justice.”

While it is true that people can consent to sex when they’ve been drinking, it is not true that they can consent to any particular act along the continuum of sexual activities at any or every stage of intoxication. In this respect, some judges do not have a good record of determining whether consent has occurred in a way that both respects a woman’s right to be secure against sexual violence and/or avoids employing rape myths in their approach to their interpretation of incapacity.

Indeed, as we were reminded when the Supreme Court of Canada heard the Barton case last week, the justice system remains infused with racist and misogynistic biases and assumptions that far too often fail women, particularly Indigenous and other racialized women. The Supreme Court will be determining whether there should be a retrial of Bradley Barton, who was acquitted of killing Cindy Gladue, an Indigenous woman whom he said he had offered to pay for sex while she was extremely intoxicated. Mr. Barton was acquitted by a jury after arguing that Ms. Gladue had consented to sexual activities so violent that Ms. Gladue bled to death from an 11-centimetre wound in her vaginal wall.

Since Mr. Barton’s case was decided by a jury, the details regarding whether Ms. Gladue was found incapable of consenting are not known. However, following Mr. Barton’s acquittal, the Alberta Court of Appeal found that the trial judge’s instructions to the jury regarding how they ought to apply the law of sexual assault globally were so flawed as to require a retrial.

On the issue of capacity in particular, the court noted with respect to jury instructions on mens rea that:

. . . the issue was whether Gladue had the capacity to consent given the degree of her intoxication. Accordingly, the instruction should have expressly focussed on whether Barton knew that Gladue was not consenting validly given her degree of intoxication.

As emphasized to the court by the Women’s Equality and Liberation Coalition, an intervener group of organizations with front-line expertise concerning sexual exploitation of women:

This case . . . requires the Court to confront directly the sexualized racism and sexualized colonialism that can distort the criminal justice process through the discriminatory myths that Indigenous women invite, enjoy and deserve the harms that men inflict on them, and that construct Indigenous women as available for men’s sexual use.

These same myths repeatedly arise in cases of incapacity to consent where harmful and reprehensible practices of effectively holding women responsible — whether because of their choice to drink alcohol, their choice to dress in a certain manner, because of their race or their socio-economic circumstances — for violence that others have inflicted on them.

While the issue is certainly an element of the Barton case, the Supreme Court of Canada has not yet been asked to clarify the legal test for incapacity to consent. Some courts have adopted the test proposed in this amendment. Others have applied only parts of it. Others, troublingly, have held that an intoxicated complainant can give valid consent unless she is “insensate” or in a state of automatism.

It is virtually inevitable that the current provisions with respect to incapacity in Bill C-51 will result in further inconsistent interpretations. As they are written, they amount to little more than a tautology: They provide that a complainant cannot consent if the complainant is incapable of consenting. Worse still, by emphasizing unconsciousness and remaining silent about the states of incapacity falling short of unconsciousness, the current provisions may serve to perpetuate the pernicious myth that a woman’s decision to drink can substitute for consent to sex. Judges have applied higher thresholds for incapacity when they are advised or have otherwise determined that the complainants themselves were voluntarily intoxicated.

Instead of clarifying the legal test for incapacity as it stands, Bill C-51 simply adds that an unconscious person is incapable of consenting. With respect, this addition solves a problem we do not have and risks making worse the problems that we do have. We have the opportunity to try to correct this for the sake of women who will be victimized and find themselves before the courts.

The proposed amendment deletes the reference to “unconsciousness” in this bill’s definition of incapacity to consent on the grounds that there is no dispute in law that an unconscious person cannot consent. Rather, this paragraph may misleadingly suggest that unconsciousness, whether caused by sleep, brain injury, mental incapacity or intoxication, 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 capacity to consent merely because she was not unconscious, and Barton, where serious concerns were raised about the application of sexual assault law where a complainant was intoxicated, this amendment instead provides guidance to judges by offering three factors, among others, that ought to be considered when determining incapacity to consent in situations falling short of unconsciousness: one, the nature of the sexual activity; two, the risks and benefits involved in the attendant circumstances; and three, the ability to say “no,” as well as the capacity to communicate consent by words or conduct.

It also makes it clear that evidence that a person has had consensual sex at some other time cannot be used to prove that they have the capacity to consent to the specific sexual activity at issue.

At committee, concerns were raised by representatives of the Department of Justice that adding factors to this provision would result in more complex and harsher cross-examination of complainants during trials. This was not an issue the experts who appeared before the committee had addressed in their testimony, and when I consulted them about this concern, they clarified that they had not done so because women are already, usually, extensively cross-examined about the types of issues raised by these factors, and they would welcome judges being directed to what is most relevant.

Concerns were also raised that naming three factors in the legislation may direct judges to focus unduly on those factors to the exclusion of others that may be relevant, despite a clear reference in the amendment that inquiries into consent include, but are not limited to, these factors. Assuming that judges will place extra weight on the factors or examples included in the legislative provision, the question, honourable senators, becomes whether the guidance the Criminal Code offers regarding incapacity to consent ought to be restricted to the example of unconsciousness, as Bill C-51 currently provides.

Unconsciousness is an example of incapacity that both is uncontroversial and risks reinforcing sexist misconceptions that drunks can consent, as we heard in the Al-Rawi case.

This alternative proposal is that the Criminal Code should instead refer to the three factors in this amendment, ones that case law indicates are still overlooked far too often and ones that a number of experts regarding sexual assault law have identified as best placed to assist judges and lawyers in unpacking and counteracting sexist stereotypes and biases.

This amendment provides an opportunity to assist the government in its laudable goal of updating the law of sexual assault to provide better protection for women who become victims of sexual violence. In fact, women are particularly vulnerable to sexual assault when their faculties are impaired by drugs or alcohol.

There is a pressing need to provide legislative guidance to judges in this area of the law. The judges and lawyers of today have grown up with the discriminatory stereotypes about women who are victims of sexual violence. We must not, as legislators, leave the definition of “incapacity” to be worked out slowly, inconsistently and unpredictably in the midst of these stereotypes and prejudices.

We must take the opportunity to provide courts with the guidance they need, and we must take care to avoid sending them the message that consciousness alone is determinative of the capacity to consent.