The Lawyer’s Daily with Kim Pate 11 December 2018
The Liberal government, joined by the Conservatives, voted down two controversial Senate Criminal Code amendments supported by women’s advocates who argue trial judges desperately need Parliament’s specific guidance in sexual assault prosecutions involving complainants who were incapable of consenting due to intoxication, disability or other factors.
With NDP MPs in dissent, after a fulsome debate that ended around 7 p.m., the Commons voted 240-35 Dec. 10 to send the Senate a message that it “respectfully disagrees” with Senate amendments 1 and 2 to the government’s sexual assault law reform package in Bill C-51 “as they are inconsistent with the Bill’s objective of codifying Supreme Court of Canada jurisprudence on a narrow aspect of the law on sexual assault, and instead 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.”
If history is a guide, most of the senators, having given their best advice after sober second thought, are now likely to bow to the will of the elected representatives. (In theory, a stalemate could occur, and the bill could ping-pong back and forth between the chambers for a time; in practice the Senate generally defers).
The Commons vote was a bitter pill to swallow for the sponsor of the amendments, Sen. Kim Pate. “I am so very disappointed in the response,” said the former executive director of the Canadian Association of Elizabeth Fry Societies, who saw growing public support for the changes.
“Though I appreciate the time that the House spent debating the amendments, the debate failed to clarify the rationale for the government’s decision,” Pate told The Lawyer’s Daily.
“Many speakers referred to the ‘unintended consequences’ of the amendments, without explaining what these might be,” she explained. “They raised concerns, on the one hand, that the House had not had the opportunity to adequately study the amendments proposed and, on the other hand, dismissed the amendments as being similar to ones the House [justice] committee had already considered and voted down.”
The government’s move is “a significant missed opportunity” that “essentially leaves the responsibility to Crowns and courts of appeal to remedy and clarify the law,” she said.
Pate pointed to a Nov. 2 Alberta Court of Appeal ruling that overturned a sexual assault acquittal by a trial judge. The trial judge had implicitly concluded that nothing short of unconsciousness was sufficient to establish that the complainant, who had ingested pills and alcohol (possibly as a result of compulsion), was incapable of consenting to the sexual activity (a legal error also made by some trial judges in previous cases): R. v. W.L.S. 2018 ABCA 363.
“While this erroneous understanding of law was rectified on appeal in this case, as we know, the vast majority of cases are never appealed,” Pate remarked. “The trial judge’s decision demonstrates the very error, fed by harmful stereotypes about victims of sexual assault, that many of us are concerned the original wording of Bill C-51 risks encouraging.”
Célia Canon, a spokesperson for federal Justice Minister Jody Wilson-Raybould, said the government will look further at the issues raised by the Senate and by women’s advocates.
“Parliament should not proceed without a clear understanding of this important question, and without broader input from stakeholders, as well as full analysis and debate in both Chambers,” she said by e-mail. “That is why, moving forward, we will be studying and consulting with law enforcement, legal experts and advocacy groups on the issues raised by the proposed amendments.”
Pate rejoined that the government appears not to have consulted with stakeholders on the contentious language it incorporated in Bill C-51 in respect to capacity to consent.
“The resulting language perpetuates a serious risk that, by emphasizing ‘unconsciousness’ as the only example of incapacity, this law will not provide adequate protection from sexual assault for those who are conscious but incapacitated,” she warned. “The lack of consultation the first time around, despite sexual assault law experts reaching out to the Department of Justice — I’m told that was as early as the summer of 2017 — raises serious concerns about whether consultation will be any different this time.”
She added “today I did receive a number of messages that, despite having heard nothing from the government since then, some individuals have now received calls from a lawyer in the Department of Justice who is indicating there will be consultations in January of 2019.”
The Senate’s amendments removed the statement in Bill C-51, passed by the Commons Dec. 11, 2017, that no consent to sexual activity is obtained when a complainant is unconscious. The government said the aim of that statement on capacity to consent was simply to codify the law as set down by the Supreme Court of Canada in R. v. J.A.2011 SCC 28.
However, a number of feminist law professors argued that the government’s statement in Bill C-51 on capacity to consent was redundant because it adds nothing new to the common law of sexual assault. Worse, they argued that the statement is also dangerous because it risks limiting more generally the law in respect of incapacity to consent by narrowing the court’s focus to the assessment of the complainant’s consciousness and unconsciousness, instead of focusing on an assessment of a person’s ability to provide informed, voluntary consent.
They argued that the government’s version of the bill leaves it open to defence counsel to argue that the line for incapacity to consent to sex should be drawn at unconsciousness. The academics who testified argued that what was needed was specific guidance to judges that clarifies the wildly inconsistent case law on how to apply the principles of capacity to consent to complainants who are conscious, but either severely intoxicated, or experiencing other conditions which can give rise to incapacity, such as disability.
The Senate’s version of Bill C-51 states that consent is not obtained when complainants are incapable of consenting to the activity in question “for any reason, including but not limited to” because they are (i) unable to understand the nature of circumstances, risks and consequences of the sexual activity in question; (ii) unable to understand that they have the choice to engage in the sexual activity in question or not; or (iii) unable to affirmatively express agreement to the sexual activity in question by words or by active conduct.
The Senate’s amendments also state that “for greater certainty, capacity to consent at the time of the sexual activity that forms the subject-matter of the charge cannot be inferred from evidence on capacity to consent at the time of another sexual activity.”
During the Commons debate, Liberal MP Anthony Housefather, who chairs the Commons Justice and Human Rights Committee, applauded Pate for raising the issue.
“I entirely agree it’s entirely appropriate for Parliament to legislate what ‘consent’ is, to legislate what ‘capacity,’ is,” he told MPs. What I don’t feel appropriate … is none of the witnesses that came before the [Commons] Standing Committee of Justice and Human Rights had the proposed language from Senator Pate in front of them when they testified before our committee. Nor did the people testifying before the Senate Legal and Constitutional Affairs Committee have that language.”
He continued, “an appropriate mechanism for Parliament to legislate, I believe, is for the government to carefully consult, put forward language, and then have both committees carefully study it with all witnesses having the benefit of that language in front of them — and I’m hopeful that my colleague, the minister of justice, will do that.”
Bill C-51 as passed by the Commons stipulates that “no consent is obtained if (a.1) the complainant is unconscious; (b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1).”