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Criminal Code - Department of Justice Act

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

December 11, 2018

The Honourable Senator Kim Pate :

Thank you, Senator Harder.

Honourable senators, since this may be my last intervention this year and in this particular chamber, I want to first take the opportunity to thank each of you on your work for all Canadians and express the appreciation for the trust placed in us to be our country’s independent, democratic chamber of sober second thought.

As we prepare to break for the holidays, I wish all of you, your staff, and administration staff throughout this place and their loved ones a lovely holiday season and a happy, healthy and hopeful new year.

Honourable colleagues, on behalf of all Canadians, I rise today to express my disappointment with the message from the other place concerning Bill C-51. This message asks us not to insist on amendments we made to clarify the law with respect to capacity to consent to sexual activity. As Minister Wilson-Raybould noted during debate in the other place, sexual assault remains a fundamental barrier to women’s equality in this country.


When we voted on these Senate amendments at third reading, I was honoured and humbled to stand together with all of you in this place of power and privilege to support marginalized women and girls and, in particular, poor, disabled, gender non-conforming, racialized — particularly Indigenous — women and girls who continue to be over-represented among victims and survivors of sexual assault.

The Senate amendments aim to provide guidance about where and how to draw the line regarding capacity to consent, and not only for police, judges, and lawyers. Laws are also a key way to communicate to Canadians what behaviour is and is not acceptable and lawful. We understood these amendments would resonate beyond the legal community in homes, schools, at social and public events and in workplaces. We hoped they might also be a catalyst for education, particularly among young Canadians, about the harmful stereotypes and misconceptions that enable sexual assault and prevent too many from ever reporting.

This is a hope shared by many women and young people who have contacted us during the month of uncertainty as these crucial amendments sat unaddressed in the other place. This past week, as the debates in the other place made clear, they would be rejected. Without exception, all who reached out to us confirmed the need for the amendments.

I recognize and appreciate the time that the other place took to consider and debate the merits of these amendments before their vote on our message. As the Senate prepares to yield to the decision of the other place, however, and with the greatest respect, I have grave concerns not only about the consequences of the other place’s decision but that the reasons for this decision have yet to be made clear.

First, contrary to some of the concerns raised in the other place, there were not last-minute changes. The need for these amendments was first specifically explained on June 8, 2017, in a letter to the Minister of Justice signed by numerous professors and others with sexual assault law expertise. These changes were repeatedly urged before the house committee that studied the bill in the fall of 2017. They were reiterated not only in the Senate but also once the Senate amendments passed in a follow up November 2018 letter from academics and other experts to the Minister of Justice.

The message from the other place states that the Senate amendments are “inconsistent with the Bill’s objective of codifying Supreme Court of Canada jurisprudence on a narrow aspect of the law on sexual assault.” Yet, from day one of their outreach to the department, sexual assault law experts were unequivocal: Bill C-51’s wording, by providing “unconsciousness” as the only example of what it means to be incapable of consent, does not actually codify the decision of the Supreme Court in R. v. J.A..

Those experts in sexual assault law made clear at committee here and in the other place, as well as in open correspondence, that focusing on unconsciousness will fail to protect women who are incapable of consenting but still conscious, whether because they have been awoken from sleep, are extremely intoxicated through the voluntarily or involuntary consumption of alcohol or drugs, or because they experience cognitive disabilities. R. v. J.A. does not direct us toward this undue focus on unconsciousness at the expense of other situations of incapacity. This is simply not the law.

The example of unconsciousness fails to challenge the harmful and still far too prevalent misconception that if a woman is incapacitated but still conscious, she may still have “consented.” In short, the emphasis on unconsciousness risks reinforcing the unacceptable view that has influenced some trial judges in this country, who have tended to equate incapacity with unconsciousness and who have failed to protect the sexual autonomy of women who are incapable of consenting due to sleep, mental disability or intoxication.

The minister also stated that the proposed amendments

 . . . focus on concerns that arise in cases where the complainant is conscious but intoxicated. As a result, the government has concerns about the potential impact of the amendments on the law governing incapacity to consent in other types of incapacity cases, . . . such as individuals living with cognitive impairment.

Professors Elizabeth Sheehy and Janine Benedet, leading Canadian experts on sexual assault and intellectual disability, both testified to this question at committee in the other place. They affirmed that the types of factors included in the Senate amendments would strengthen the protections for those with cognitive disabilities. They and other experts have noted that a narrow focus on unconsciousness renders complainants invisible and does nothing to clarify the law with respect to the capacity of those who are disproportionately targeted for sexual assault and exploitation.

Despite their attempts to discuss concerns with the Department of Justice dating back to June 2017, sexual assault law experts report that they were not consulted.

A second concern emerging from the debates in the other place is the implication that it is not the place of Parliament to go beyond codifying important Supreme Court of Canada decisions. The message from the other place states that the Senate amendments “seek to legislate a different, much more complex legal issue, without the benefit of consistent guidance from appellate courts or a broad range of stakeholder perspectives.”

As recognized in the R. v. J.A. decision itself, it has always been the role of Parliament to lead, not to follow, with respect to sexual assault law. Had Parliament confined itself to the narrow role of legislating appellate decisions, we would not have the current consent provisions. These provisions arose not from the common law but instead from the submissions of women’s groups and sexual assault law experts who urged Parliament to enact consent provisions that would protect women’s sexual autonomy and equality rights.

The lack of clear appellate court guidance is precisely what made the Senate amendments necessary. They consist of three non-exhaustive factors to consider when assessing capacity. They aim to assist judges in applying complex and sometimes contradictory case law in order to carry out the most fulsome inquiry possible in all relevant circumstances. At the very least, it seems difficult to conclude that they would not result in a more thorough and thoughtful assessment of consent than the current wording of Bill C-51.

While some courts, such as the Nova Scotia Court of Appeal in R. v. Al-Rawi, rejected one factor listed in the Senate amendments, that is, incapacity to communicate consent as part of its test for incapacity, the court in Al-Rawi nonetheless noted:

This is not to say that evidence tending to demonstrate a complainant’s incapacity to communicate consent is irrelevant. Far from it. Incapacity or patent defects in being able to communicate may well be cogent circumstantial evidence of lack of capacity to consent.

It is also noteworthy that when the Court of Appeal set out its test for incapacity, the only two considerations included in this test both appear as factors for consideration in the Senate amendments, namely, understanding the nature of the specific sexual act in question and understanding that one has a choice as to whether to participate or decline to participate in the act. As such, given the emphasis that appellate courts have placed on these same factors, the government’s concerns about unduly focusing on elements internal to the complainant at the expense of overlooking relevant circumstantial evidence seem rather incoherent.

Furthermore, consent itself is assessed subjectively, and capacity to consent is inherently a matter of a complainant’s subjective capacity. In fact, all of the factors included in the Senate’s amendment lists, in a non-exhaustive fashion, can be assessed by both the complainant’s testimony, subjectively and by the evidence of other witnesses and circumstantial evidence objectively. The Senate bill in no way unduly focuses on the complainant’s internal state nor is there any reason to assume it would discourage judges from considering relevant circumstantial evidence in assessing a complainant’s internal state at the time of the incident.

Throughout the debate on the Senate amendments, some have doubted whether further guidance is necessary on the grounds that judges know the law and will be sure to carry out fulsome inquiries into capacity. Ironically on October 30th, the same day the Senate passed the amendments, the Alberta Court of Appeal was hearing a sexual assault case involving a trial judge who had equated incapacity with unconsciousness. You heard correctly, colleagues, the very error so many of us are concerned about continues to plague courts.

In R. v. WSL, the Court of Appeal concluded:

The trial judge’s reasons are not expansive, but we can infer from the questions the trial judge asked of counsel during argument that she acquitted because she did not find that “unconsciousness” was the only reasonable inference available on the evidence. We infer from that finding that the trial judge believed nothing short of unconsciousness was sufficient to establish statutory incapacity. This is an error of law.


While this erroneous understanding of law was corrected on appeal, we know that the vast majority of cases are never appealed. Furthermore, the vast majority of sexual assaults are never reported to police, let alone tried in court. This lack of reporting is due in large part to harmful stereotypes that Bill C-51 risks encouraging.

Honourable senators, I am heartsick, frankly, when I think of all those across Canada who have contacted us and our colleagues in the other place to insist that we send a clear message about incapacity to consent. From rape crisis centres and transition houses, to numerous young women and men, from high schools and universities, they want to know why we did not pass these amendments. I cannot give them a clear reason why — why the government intends only to codify something so narrow, despite concerns that the method they have chosen does not reflect the law; what intended consequences they foresee related to the Senate amendments; why further consultation is not also required before enacting the reference to unconsciousness, when experts have raised such significant concerns about this wording.

I appreciate that the minister has committed to consulting with stakeholders. I trust that more details about consultation will follow and that the experts whose testimony was so helpful to the Senate at committee, as well as the grassroots organizations that have reached out to us in support of these amendments, will be given full opportunity to participate. Some were being contacted individually yesterday. I trust this consultation process is something in which we, honourable colleagues, will have a role, given the understanding — which I believe we share with the minister — of the importance of standing together against violence against women and in support of a fairer and more equal society for girls and women.

We know we can and must do better. Now we must join forces and ensure, with the government, that we will.

Thank you, meegwetch.



Kim Pate