I'm hoping my accent will be clearer in the beginning.
The women who work in a rape crisis centre did not need the “Me too” campaign to know how common it is for women to experience sexual assault and rape. Being a girl and a woman in this world means we are likely to be sexually assaulted. If we are poor, indigenous, women of colour, or women with cognitive or physical disabilities, we are even more likely to be sexually assaulted. I would say it's almost guaranteed and, yes, me too.
In preparation for this submission, we looked at almost 6,000 cases of sexual assault and rape of women who called our rape crisis centre in the last five years. Twenty-five hundred women were raped by their husbands, boyfriends, or lovers, and another 422 women were raped by their ex-male partner after they broke up with him. Two hundred and thirty-four women were sexually assaulted, most often raped, by their male supervisor or co-worker. Eleven hundred women were sexually assaulted by someone they knew superficially, often through social circumstances like a party, mutual friends, or someone they had a first or a second date with. Three hundred and thirty women were raped by their own fathers when they were young, and another 471 women were sexually assaulted or raped by other family members or family friends. Five hundred and nine women were assaulted by men who were a stranger to them.
We appreciate the 's efforts to advance sexual assault provisions with the amendments proposed in Bill . We have one objection, and that is to the addition of “no consent is obtained if the complainant is unconscious”. Of course an unconscious woman cannot consent, but this is already captured under the existing law which says, “No consent is obtained” if the “complainant is incapable of consenting to the activity”.
The addition can be misused by defence counsels to argue that unconsciousness is a threshold for incapability, and since we too often see cases where judges do not know sexual assault laws, the intent behind the laws, and the intent of Supreme Court judgments instructing the application of the law, there is a serious danger that the judges will accept the defence arguments in this matter.
We support the proposed articulation that no consent is obtained if there is “no evidence that the complainant's voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct”.
We also support the expansion of rape shield provisions to include communication of a sexual nature or communication for a sexual purpose. We support the right to legal representation for victims in rape shield proceedings.
About the amendment concerning victims' private records, it has been exactly 20 years since the passing of Bill C-46 which amended the Criminal Code with specific provisions regarding the production and disclosure of records of the accused in sexual assault proceedings.
We have been members of CASAC, the Canadian Association of Sexual Assault Centres, since 1978. Early on, members of CASAC faced the need to protect a record; so in 1981 CASAC members passed a resolution to protect the confidentiality of records and to protect the confidentiality of what women told us regardless of legislation. Seeking women's records from rape crisis centres is a clear and blunt attempt to undermine a victim's credibility and violates their privacy and dignity. It is also a direct attack on rape crisis centres and our role in supporting individual victims, our demands that violent men be held accountable, and our overall fight for women's equality and liberty.
When Bill C-46 passed, the feminists who advocated for it described it as second best, because the full demand was for no records at any time. The current proposed amendments regarding women's records in the possession of the accused gets us closer to that demand, and we support this.
Alas, good laws mean nothing when judges do not know the law and therefore do not uphold the law. We are aware of the recent attempt by Parliament to address this issue, and we are looking forward to speaking to the matter when Bill is discussed at the relevant committee in the Senate.
Judges' ignorance is only one element in the utter failure of the criminal justice system as a whole to hold men who commit violence against women accountable. Of the 6,000 cases that I mentioned earlier, 1,800 were reported to the police. About 30 resulted in charges, and fewer in convictions.
The common sexism and diminishment of women in all aspects of our private and public lives teach men to see and treat us as things and not as full human beings. Pornography is a devastating and effective promotion and reinforcement of men's sexualized violence against women. Prostitution is a devastating and effective promotion of the sexual commodification of women, where women are used as a commodity that can be bought and sold by men.
The problem is not that men do not know if a woman really consented or if she really wanted to have sex with them; the problem is that they don't care. They are allowed not to care, because they know they can rape women with impunity.
We often use the term rape culture to mean the acceptance, the collusion, the promotion of male violence against women. Men use rape culture to sustain rape structure, a structure that keeps men in domination and keeps us women in submission. The accumulation and the impact of all the individual rapes that men commit against individual women sustain all men's power over all women.
Of course, we know it's not all men. We know that not all men are wife beaters, sex buyers, rapists, or pornographers, but for sure, many are. We know that because of all the women who call our and other rape crisis centres, and because of all the women who are living in our and other transition houses. And now,anyone who pays attention knows it too, because of all the women who say “Me too.”
We believe men can change, but not as long as they get permission and encouragement to violate our bodily integrity and autonomy. We need to shake the pillars of the rape structure and start by holding men who commit violence against women accountable. So far, the Canadian state and its criminal justice system has been failing to do so.
The Canadian Charter of Rights and Freedoms promises us, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law.” It is now 2017, and we women still do not have it, not the equal protection nor the equal benefit of the law.
Thank you, Mr. Chair and committee members. It is my honour and privilege to be here.
My name is Laurelly Dale. I'm a criminal defence lawyer of Dale Legal Firm. I've been practising for more than 10 years. I practise in two areas: downtown Toronto and northwestern Ontario, covering the large district of Kenora. I attend today to focus on clause 25 of the proposed amendments in Bill , specifically the amendments to add proposed new sections 278.92, 278.93, 278.94.
I've listened to the testimony of Breese Davies and the Criminal Lawyers' Association. I'm a member of the Criminal Lawyers' Association; however, I attend today as an individual. I'm not here to repeat their submissions. Ms. Davies takes a position that the amendments are overly broad and should be specified. I can indicate that I am in opposition of the proposed amendments in their latest form, entirely.
Our laws are progressive. They must be fair. They must uphold the principles of our supreme laws, namely the Canadian Charter of Rights and Freedoms. They must not be reduced to social media hashtags. We must not feed into the myth that all complainants of sexual assault are survivors of sexual abuse and therefore are always to be believed.
The amendments that I am here today to discuss have also been referred to as the Ghomeshi amendments. They violate section 7 and section 11(b) and (d) of the charter, ultimately allowing for the conviction of the innocent. Violations occur in a variety of ways. Today I'll focus on the main three.
First are the section 7 and section 11(d) violations to the accused's presumption of innocence and fair trial by declaring these records inadmissible and requiring defence disclosure.
The second major area of concern is the section 7 violations as, for the first time ever, they interject the complainant as a party to the criminal proceedings against the accused. It is the state versus the accused, not the state and the complainant versus the accused. Tied into this is the violation arising from allowing the complainant to be part of this hearing, usurping the very valid reasons for excluding witnesses, and allowing them to make submissions.
The last violation relates to the potential delays that this will ultimately cause, violating the recent Supreme Court of Canada decision in Jordan, upheld by Cody, by creating at the very least an additional three- to four-day pretrial hearing for the accused, and by the addition of the third party.
The onus is on the crown to prove allegations of sex offences. It is its obligation to prove each and every element to the offence. The accused is not required to do anything. The crown attempts to prove its case by putting forth the evidence of the complainant. Sexual assault cases are most often about the credibility of the complainant, as there is no other evidence. Crown evidence of the offence is presented to court on the basis that what the complainant is saying is true. The defence is then allowed the opportunity to test the evidence of the crown and demonstrate that the complainant is not credible.
Testing is through cross-examination and must always be relevant. The accused can then choose to testify or call other evidence. The crown is then able to cross-examine as well. The trier of fact, considering all admissible evidence, makes the decision.
Minister of Justice claims that the amendments will boost protections for sex assault victims and ensure trial fairness. I ask how this can be achieved in light of these charter violations. The justice minister indicated in committee last week that the amendments would not create defence disclosure obligations. I ask how this would be possible when this is clearly the procedure set out in the section.
Relevancy and materiality can be canvassed at the time of introducing the material during cross-examination. Why must the accused disclose evidence that he or she wishes to use in cross-examination? We must not water down reasonable doubt in these cases. The presumption of innocence is the cornerstone of our criminal justice system.
Under clause 25, all correspondence in the possession of the accused is presumptively inadmissible unless they can persuade the judge that it should be disclosed in accordance with eight substantive factors. I point out that seven out of eight of these factors are drafted with the purpose of protecting the complainant, and only one references the accused's right to make full answer and defence. I concede this is not a popular perspective, but it's one that must be stated, that the accused is presumed innocent and we must protect their charter rights.
As well, it's important to note in interpreting this section that the information in the possession of defence is communication that's authored by the complainants themselves. This is information that the complainant has intentionally chosen to withhold from the police and the crown attorney that is relevant to the alleged incident.
The Ghomeshi amendment requires defence to give this information to the complainant and the crown ahead of trial. To notify the complainant in advance that defence can expose their dishonesty invites the complainant to come up with a fabricated answer. The amendment serves to allow the complainant to correct their mistakes at the expense of trial fairness to the accused.
In acquitting three accused of sexual assault, in a recent decision in 2017, Ontario Superior Court Justice Molloy in Nyznik states at paragraph 17 the following:
||Although the slogan 'Believe the victim' has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence.
The current system works. In the recent case of D.A.E., found at tab 5 of my materials, defence counsel utilized the material in their possession, and based on the totality of evidence, considering that this was utilized during cross-examination, the judge still convicted the accused.
Found at tab 5 is a recent Ontario Superior Court case, where it was held that myths about victims and sex offenders have no place in our criminal justice system. At paragraph 60 the judge states:
||I agree with the trial judge that we must be vigilant to reject...stereotypical thinking about the behavior of women. At the same time, we must not adopt...assumptions about men and their tendency to rape.
The public outcry from Ghomeshi should not be used to undermine the presumption of innocence. Trial by media should not invade the rights of the accused.
I'll briefly touch on the second major amendment, as previously stated.
A criminal trial, by its nature, is the state against the individual. No one else is a party to these proceedings in any case. The complainant is not a party to the proceedings. The consequences of a criminal judgment do not apply to them. It is a slippery slope, allowing the complainant to participate in other aspects of the case against the accused, such as crown or judicial pretrials. There is, therefore, a risk that innocent people will be convicted.
Further, it is routine at the commencement of a criminal trial for a judge to make an order excluding witnesses. The reason is obvious. It is essential for the discovery of truth. As Justice Abbey stated in Jenkins:
||The general and overriding principle which lies behind an exclusion order is to maintain, to the degree possible, in the search for the truth, the purity of the evidence.
Section 7 of the charter is violated, as this amendment permits the complainant to testify knowing what the evidence is beforehand, undermining the accused's trial fairness. Chapters of cross-examination are revealed, and the opportunity exists to resolve issues with their testimony.
The last violation relates to potential delays this will inevitably cause by creating an additional three- to five-day hearing 60 days in advance of the trial.
As noted at tab 9, the Jordan case is the law upheld by the Supreme Court of Canada that relates to delay that is presumptively unreasonable when it is longer than 18 months at the provincial court level, or 30 months at the superior court level. The resources allotted to the accused are not the same as those allotted to the complainant. It is not known whether, post these amendments, other resources would be available, such as legal aid, and whether these pretrial applications would be funded. I echo the comments of Breese Davies with respect to her concern about imbalance of resources.
Last, in my materials I have included a number of materials relating to the consequences of conviction for sexual assault that must be at the back of minds when considering these amendments as well as wrongful convictions. If accepted, the balance of the trial will be entirely upset. Charter violations will occur, and it will ultimately result in the conviction of innocent people.
Those are my submissions. Thank you.
In recent months, there has been a great deal of debate over Canada's sexual assault laws. Dramatic events have provoked calls for the law to be completely overhauled. While understandable, such calls are overstated. In fact, Canada has one of the most progressive sexual assault frameworks in the world. Nonetheless, there are some changes that would ensure greater consistency between the Criminal Code and Supreme Court jurisprudence, better reflect parliamentary intent, and promote optimal responses to sexualized violence.
Bill contains a number of such changes, which I am pleased to support. I will focus on the proposed changes to the law of consent in section 273, and to the impermissible uses of past sexual history in section 276. These changes are contained in clause 19, clause 20, and the first part of clause 21.
Clause 19 clarifies the conditions, already set out in section 273.1, under which no consent to sexual touching is legally possible. I agree with the proposal to include a specific reference to unconsciousness and to make clear that other forms of incapacity, short of that state, can impair a person's legal ability to consent.
Some have argued that, given Supreme Court case law, this change is redundant. I disagree. It is always appropriate—indeed, it is laudatory and even essential—for Parliament to confirm common-law rulings with which it agrees. This is especially true in criminal law. Such clear expression of legislative intent protects important principles from later judicial change. I would remind the committee that the court's important decision in Regina v. J.A., in which it rejected the idea of advance consent to unconscious sex, was a majority ruling that was attended by a vigorous, three-judge dissent.
Some have also argued that this change could lead trial judges to insisting on complete unconsciousness before the rule against consent is operative. To the extent that there is such a risk, a proposition I do not necessarily accept, I think that the new subparagraph (b) addresses it.
Let me move now to clause 20 and its proposed change to section 273.2. One of the most important and distinctive aspects of Canada's sexual assault law is that it narrows the accused's ability to argue an honest but mistaken belief in consent, a defence that negatives mens rea.
In its unanimous decision in Regina v. Ewanchuk, the Supreme Court stated that an accused may not rely on mistakes of law about consent as a basis for honest but mistaken belief. The court gave a number of examples, such as the belief that consent is demonstrated by passive or ambiguous conduct.
In my opinion, the limitations on the definition of consent set out in section 273.1 are properly regarded as mistakes of law. I therefore support the move in clause 20 to specify those limitations as ineligible for the defence of honest but mistaken belief. I am, though, concerned that the current wording of proposed subparagraph 273.2(a)(iii), which refers to “any circumstance in which no consent is obtained,” could confuse the distinction between fact and law in relation to consent.
Assuming that the intent is to remove the accused's ability to rely on legal as opposed to factual mistakes, I would recommend either inserting into this new clause some reference to the term “mistake of law”, or making it clear that these are circumstances where consent is deemed not to obtain. Using the word “deemed” would clarify that the intent here is to prohibit the accused from relying on legally impermissible understandings of consent. It would also be a very powerful message from Parliament about the nature of the limitations on consent in section 273.1.
I also agree with the proposal in subclause 20(3) to ensure that an honest but mistaken belief in consent must rest in some way on evidence that consent was communicated. This change is consistent with the Supreme Court's reasoning in R. v. Ewanchuk. Such evidentiary thresholds are not uncommon. I think it is appropriate to ensure that the defence is based on evidence that relates in some way to how Parliament has defined consent for the purposes of sexual touching.
Finally, let me move to one change contained in clause 21 that relates to sexual history, or what is colloquially known as the “rape shield” provision.
The treatment of the complainant's prior sexual history has been a persistent challenge for the criminal justice system. Current section 276 of the code was part of a groundbreaking law reform effort in 1992. Subsection 276(1) states that sexual activity evidence is inadmissible to support an inference that, by virtue of her past sexual conduct, a complainant is more likely to have consented to the alleged assault or that she is less credible as a witness. These are called the twin myths of sexual assault. It is important to understand that the use of such evidence for such purposes is prohibited.
Under subsections 276(2) and 276(3), there is a separate process for considering the admissibility of past sexual activity that is offered to support different inferences. Unfortunately, the distinction between subsection 276(1) and the rest of section 276 has become blurred. Some judges have applied the framework outlined in the later subsections, subsections 276(2) and 276(3), to inferences that are clearly prohibited by subsection 276(1).
There is no balancing process capable of supporting the admission of evidence intended to advance the twin myths. By clarifying that subsections 276(1) and 276(2) cover distinct uses of sexual history evidence, the proposed change addresses this problem. It is consistent with the specific, unanimous, and complete rejection of the twin myths in R. v. Seaboyer, later affirmed in R. v. Darrach, and with the original animating intent of Parliament.
That concludes my prepared remarks. Thank you.
Honourable members, I am testifying on this bill as an individual with expertise in sexual assault law. I was just asked this morning as a representative of the Ottawa Rape Crisis Centre. Our executive director was unable to be here. She is travelling across Ontario working with 11 police forces, trying to persuade them of the benefits of what's called the Philadelphia model in terms of policing. She asked me, as secretary of the board, to speak on their behalf. I am a law professor and an expert in the area of sexual assault law, with over 30 years of experience teaching, researching, and advocating for the rights of women who have experienced sexual violence.
The Ottawa Rape Crisis Centre is the third-oldest rape crisis centre in Canada. It was established in 1974. For 43 years, they have been providing crisis line support, face-to-face counselling, and group counselling to thousands of survivors annually. In the current climate, those numbers are increasing exponentially. It's a feminist organization that has fought tirelessly for legal and policy change at the local, provincial, and national level to secure women's rights to report sexual assault, and for these crimes against women to be investigated, prosecuted, and adjudicated with professionalism and attention to women's equality rights.
The Ottawa Rape Crisis Centre has challenged police practices of unfounding of women's sexual assault reports and documented police failures as early as 1975. Currently, our executive director, Sunny Marriner, has led the country in successfully advocating for the Philadelphia model, a model that requires review of police files on sexual assault investigations by independent violence against women advocates.
To speak for myself and the Ottawa Rape Crisis Centre, we support the bill overall. We read it as a significant effort by government to remedy discriminatory practices in the criminal justice system and to inspire trust on the part of women to report sexual violence. There is some urgency to this reform, as women flood traditional and social media with their disclosures of perpetration, yet the reporting rate by women has plummeted from one in 10 to one in 20 in the last several years. We are therefore at a crisis point in terms of the credibility of the criminal justice system for crimes of sexual violence.
I start by noting that we support the provision requiring that all bills include a charter statement assessing compliance with the Constitution of Canada. We trust that this compliance review will include an assessment of each bill's impact on women's equality rights protected by section 15, and women's section 7 rights to security of the person and to trial fairness. When assessing criminal laws that will impact an accused person's rights, the charter requires us to also consider the countervailing charter-protected interests of complainants.
We see the bill as modernizing the criminal law in keeping with current social realities in terms of the role that social media plays in both sexual activity and sexual violence by men against women. We thus support the provision that characterizes communications that are sexual in content or purpose as sexual activity for the purposes of the rules governing the admissibility of sexual history evidence. Moreover, this provision is consistent with legal decisions from some courts in advance of the bill that have interpreted sexualized text messages as sexual activity for the purposes of the rape shield provision, so in some ways this is not a major change in law.
We also support the provisions that provide legal standing and access to legal representation for complainants who face defence applications to introduce their prior sexual activity as evidence into the trial. The provision mirrors the provisions regarding complainants' rights to standing and representation to respond to defence applications to admit their private records. It was previously inexplicable to us why women had standing to defend the privacy of their confidential records but not their private sexual activities.
We think that the bill's extension of the records regime to private records in the hands of the accused, even those without sexual content or purpose, is also an important advance in terms of protecting women's privacy. Although we recognize that the provision has a broader reach, it means that no advantage can be gained by extrajudicial interception of private diaries or other such records. It's true that the defence will lose the element of surprise when required to have such records vetted for admissibility, but it must also be recognized that complainants in sexual assault trials themselves experience forms of jeopardy that require recognition and accommodation.
Bill also serves to codify some aspects of sexual assault law already established by the Supreme Court of Canada in interpreting the statutory regime. While strictly unnecessary, we support the amendments that do not add confusion to the already exceedingly complex law of sexual assault.
For example, the Ottawa Rape Crisis Centre supports the provision requiring evidence that a complainant expressed her voluntary agreement to sexual contact in order for an accused to rely on the defence of mistaken belief in consent, even though this is not a legal change, but simply a reiteration of the law interpreted by the Supreme Court of Canada almost 20 years ago in Ewanchuk.
We do have serious concerns, however, that the provision purporting to codify the J.A. decision misses the mark. It introduces the potential for confusion and may inadvertently limit legal interpretations on the meaning of incapacity. We say this because the introductory notes to the bill describe this provision as a codification of J.A. However, long before J.A., courts had ruled that unconscious people cannot consent—how could it possibly be otherwise—and, in fact, J.A. stands for a much more significant principle: that you cannot consent in advance of a sexual activity during which you are unconscious.
It would be wonderful if the bill actually codified J.A. and put that principle into law, particularly because, as Professor Mathen noted, it was a majority decision, not a unanimous decision. I think it would be wonderful if, in fact, this law codified J.A. It does not at the current moment.
The other problem that we worry about.... It's true that the bill does not foreclose the possibility that incapacity can include states approaching, but not reaching, unconsciousness. I think the bill ought to go further and explicitly state that proposition. It does not at the current moment. It simply leaves open the possibility that there are other ways in which one could be incapable. In fact, we think it ought to go further and begin to map out the considerations that judges should look at in determining incapacity short of complete unconsciousness.
Those are my submissions. Thank you.
Deepa and I are going to divide up our comments, so bear with us.
Honourable chair and committee members, we're very honoured to be able to speak with you today about the proposed legislation dealing with sexual assault law, specifically clause 10 and clauses 19 to 25 of Bill .
The clinic's submission will focus on three broad areas.
First, it will focus on the need for the implementation of trauma-informed training for all actors in the justice system who interact with sexual assault complainants.
Second, based on our experience of delivering such a program in Ontario, we recommend that sexual assault complainants be provided with government-funded legal representation. This will especially be true for the new sexual history applications that are contemplated in the legislation, but also from the time of first disclosure. Federal funding for non-compellable community support from the federal government means better support for provincial legal aid programs and community-based centres.
Finally, the clinic asserts that there must be some form of accountability for the new mechanisms proposed that is based on the expertise of the community advocates who work with the women who we are hoping will come forward.
As a brief background to the clinic, for those of you who don't know, the Barbra Schlifer Commemorative Clinic was named for a promising young lawyer who lost her life to sexual violence the night of her call to the bar in 1980. It's the only clinic of its kind in Canada. We are independent of the provincial legal aid systems.
Since 1985 the clinic has provided legal representation, counselling, and language interpretation to over 60,000 women who have experienced all forms of violence. Currently we assist more than 4,000 women a year, and we work in over 200 languages. We provide a variety of innovative counselling services and public legal education as well as legal representation. We are also engaged in law reform.
The clinic consults broadly with all levels of government on policy or legislative initiatives, and we are a public voice on the experiences of women engaging with the law when they have been sexually assaulted. We are also part of landmark cases regarding sexual assault law.
We are in broad support of the changes to sexual assault law that are proposed in this bill. Specifically, we believe the expanded rape shield provisions provide for judicial screening of communications between the accused and the complainant, and this is consistent with the truth-seeking function of the court. However, while these changes will further clarify the law, they do not change the attitude of the justice system actors.
Unfortunately, the clinic's experience over the last 30 years tells us that the proposed legislation needs broader support in place in community to operationalize these changes to make a difference in the lives of women so that those who we would like to bring into the fold of reporting to the law will actually feel the trust to be able to do so.
I'd like to begin by mentioning that I'm using my iPhone because our organization is totally paperless, so I'm sorry if that is new to you.
I'd also like to acknowledge that we are on the unceded territories of the Algonquin peoples.
I'm perfectly bilingual. So I will answer questions in French with great pleasure, but I will make my presentation only in English.
I work at the Canadian Centre for Gender and Sexual Diversity. We're the national LGBTQ advocacy education organization. We work across the country running workshops and doing presentations in all of the LGBTQ fora in all of your communities for all of your students.
We will be submitting the “pink agenda” after this testimony to the rest of the committee. It's from there that we extract our criticism and critique of the changes that have been made. We just want to highlight some of that, based on clause 10 and clauses 19 through 25, as Ms. Dale mentioned.
While we are in broad support of the changes and excited by the expansion of the rape shield laws, there are some concerns that the next witnesses are going to be talking about, so I'm going to leave that up to them. I do want to focus on some of the things that we would like to mention.
At our end, we are very concerned by the lack of research around intimate partner violence relationships within Canada in an LGBTQ context. What this means is that, while we're excited by all these changes, these changes don't reflect the experiences of lesbian, gay, bisexual, trans, queer, and two-spirit people in our country. We're excited, but we don't actually have an informed space to derive any sort of critique on these changes, so we really just want to emphasize those things.
This has made our understanding of this review of this piece of legislation complicated because the experiences of lesbian, gay, bisexual, trans, queer, and two-spirit people are all unique and totally different. What we know from anecdotal evidence is that there are high rates of intimate partner violence in LGBTQ relationships and when you think about it, that actually makes sense. You struggle with your relationships with your parents. You probably struggle with your relationships at school. You may not see yourself reflected in mainstream society and you sometimes bring that anger and violence to relationships.
In the handful of public academic discussions that we have had, mostly at Laurentian University, here at the University of Ottawa, and some at Ryerson University, we've had some really interesting debates where LGBTQ people, and specifically gay and lesbian identified folk, are very reluctant to report crimes of violence to the police because of the long-standing difficult relationship that we've had with police and police services. The first point of access, to which we're often directed, is an access point that we're not necessarily finding to be the most accessible.
These ongoing difficulties with police services across the country are then becoming more challenging through the expansion and deeper understanding of racism and intersectional violence in our community, by which I mean we in the queer and trans community are finally talking about racism. What you may not know is that the LGBTQ community is incredibly racist, disrespectful toward women, and cissexist, which is the modern way of saying transphobic. As we start to break down these pieces, we're finding that new community actors are coming forward and identifying a new challenge with police services and criminal justice services, as well as intimate partner violence victims services, that we didn't even know about. At an organizational level, it is really exciting to finally see those conversations come to light, but they are actually identifying major gaps in services.
Of course, this brings me to my second point, that we don't have any services that support LGBTQ victims of intimate partner violence. In our country, except for our organization's intimate partner violence victim prevention program, there is nothing else. We know this because we brought all of the LGBTQ service providers together in June and we asked everyone what they would do if a victim of intimate partner violence came to them, as an executive director, service provider, or volunteer at their service. The answer in many cases was “I don't know, maybe send them to police or send them to a shelter”, to which we asked, “Will these shelters welcome a lesbian person? Will these shelters welcome a trans person?”
We're not saying shelters are not welcoming these folk. In fact, when working with the national shelters network, we're really excited that these shelters are becoming very progressive and very aware of these issues. However, there is no funding to train these shelters and resources on these new and emerging needs in our community.
That brings us to my third point, which is reporting. As I mentioned earlier, we in our community struggle with our relationships with criminal justice service providers, specifically the major first point of contact, which is the police service. If there are no LGBTQ service providers who provide support counselling for intimate partner violence services, how can you even then be guided or supported when you go to police? Again, we have very little research to go on, so this is anecdotal, but what we're hearing from our partners internationally is that, in many cases, people are not reporting. This is also compounded by the existing issues of not reporting that victims of intimate partner violence already face: financial, emotional, and so on.
On top of that, if someone does decide to report something—as we actually had a case here in Ottawa, finally—those victims have then gone back to service providers such as us and said, “Hey, can you walk us through the process? Can you come to court with me? Can you sit outside the police centre so I have someone to talk to after?” As we looked around Ottawa, we actually had no resources to do that. Even our centre, while we got volunteers and staff to step up, had a very difficult time providing those services effectively and properly. We either need to train existing service providers and enhance them, or we need to create new service providers to address those needs.
Then, to make it all more exciting, we're finding that the justice system is very unfamiliar with us: we're talking police; we're talking crowns; we're talking judges. It ranges from all kinds of behaviour between complainants being completely misgendered and disrespected, right up to having a crown attorney say they weren't going take something to court because it was two men and they can fight out their own problems. We're really disturbed by these types of comments that are not even made behind closed doors. They're made in emails; they're super public. They're on our website; you should read them. We're really concerned by them.
Frankly, I'd like to echo Ms. Dale's comment that we need more training, which is funny because I was at this committee two years ago and we talked about training and about funding that, and we're not seeing any movement on that. Mandatory training for the justice system as a whole, not just judges, is super critical, mandatory training that has a national standard.
You're thinking you're the federal government and you can't really impose stuff on the provinces or territories, but you can work in collaboration. We can bring people together and create those national partnerships, because that leadership is required somewhere. It's not coming from us, because we don't have any money for it.
Going back to a little piece that we'd like to discuss, the experiences for sexual minorities, for gay, lesbian, bisexual, pansexual, or asexual folk are very different from the experiences for trans folk. What we're noticing within gay, lesbian, and bisexual relationships is that police services are just not taking them seriously and they're expecting that because both partners are of the same sex, they'll resolve the conflict on their own.
When it comes to trans victims, trans feminine victims are reporting that they're being outed as men, so once again the onus is on them to resolve their own conflict, and trans masculine folk are often being dismissed or misunderstood within those relationships.
The new and emerging issue, which I think many of you may be somewhat familiar with, is that we've had the first intersex Canadian come out. Nine months ago, as many of you know, at the Canadian Centre for Gender and Sexual Diversity, Mel Thompson came out as Canada's first openly intersex individual. Traditionally, most Canadians have at the age of five or six decided to be a boy or a girl, and while identified as intersex at birth, grow up for the rest of their lives in the traditional gender binary. Mel Thompson, the first Canadian to do so, has broken that rule, and now we're actually seeing more Canadians come out and demand that hospitals do not perform surgery on infants and do not give young children the choice of either being a man or a woman if identified as intersex at birth, but actually a third choice, to grow up as intersex and not have their bodies mutilated. That is actually becoming the norm through the European Union, through the United Nations Free and Equal campaign, and of course, in the Latin American alliance led by Chile. It's totally normal internationally and still very new here.
If you want to learn more, on November 1, our tool kit will be available online, including our requests to change the criminal justice code on these issues. You'll get an email about it anyway.
In speaking to this, I'm really excited by these changes. We totally support the expansion of the rape shield clause, and with the exceptions that our colleagues are going to talk about shortly, we're excited but we do hope that the committee and the members here will think about prevention. What we truly need is a national strategy to address intimate partner violence, and especially the rising rates of violence that we're seeing against women and female-identified folk. This national strategy has to work in partnership with municipal agencies, provinces, territories, as well as civil society; and it has to have both a prevention focus as well as a victim-informed strategy.
Frankly, what this comes down to is greater funding, and greater funding for research, not just for LGBTQ organizations but for all of us. Many of us are working the best way we can, but it's very difficult. We'd like to see some leadership on these issues as opposed to ongoing band-aid solutions.
My name's Karen Segal. I'm counsel at LEAF, the Women's Legal Education and Action Fund. LEAF is an equality rights organization that, since 1985, has been involved in advancing women's substantive equality rights. We do that particularly through legal advocacy and litigation. In particular, we have played a significant role in law reform initiatives relevant to sexual assault, and have participated in nearly all significant changes in this area.
Broadly speaking, LEAF is supportive of the changes proposed in Bill . However, we have serious concerns about the additions of proposed paragraphs 153.1(3)(a.1) and 273.1(2)(a.1). I'll first review our concerns about those provisions, and then briefly identify the reforms that we support.
Our fundamental concern with Bill is the proposed codification of unconsciousness as a bright line defending when someone is not capable of providing consent to sexual contact. The provision adds nothing new to the law of sexual assault, which has long held that unconscious women cannot consent to sexual contact, and risks opening the law of incapacity to being defined by unconsciousness as opposed to by an individual's ability to provide informed and voluntary consent.
As I said, courts have had no difficulty dealing with the long-standing rule that unconscious people cannot consent, and we're not finding that courts find that unconscious women have been capable of providing consent. Where courts have real difficulty is in dealing with complainants who are conscious but whose ability to give meaningful consent is severely impaired by alcohol or drugs.
The law on incapacity requires women to be capable of providing informed consent, which has been defined to mean understanding the sexual nature of the act, and of realizing that he or she may choose to decline participation. However, in practice, courts have struggled with giving meaning to this threshold. Judges have routinely required external indication of unconsciousness or sleep in order to conclude that the complainant was not capable of consenting. We've also seen judges rely on a complainant's ability to perform basic tasks, such as remembering the password to his or her cellphone, as evidence of the capability of providing informed consent to sexual contact. We are not seeing courts engage in a nuanced analysis of the complainant's ability to provide informed consent.
Further, courts have a tendency, because of this focus on unconsciousness, to conflate capacity to consent with consent itself. A glaring example of this is the Nova Scotia case R. v. Al-Rawi, which is currently under appeal, in which the accused taxi driver was acquitted despite the fact that the complainant was found unconscious in the back of the accused's taxi cab in a remote area of town, partially naked, with the accused crouched between her legs, holding the complainant's soaked underwear in his hands. The judge found that he could not conclusively say that the complainant was unconscious at the time the sexual assault began, and therefore, he had reasonable doubt as to her capacity to consent, and whether or not she in fact consented. In other words, she may have been conscious; therefore, she may have been capable; therefore, she may have consented. LEAF is very concerned about this trend in the case law, as it emphatically fails to protect women who are sexually assaulted while conscious but otherwise intoxicated and incapable of providing consent.
Our view is that the courts' excessive focus on unconsciousness as the defining point at which someone becomes unable to consent improperly distorts the analysis, and it focuses judges on consciousness versus unconsciousness as opposed to whether the complainant was able to and in fact did give voluntary, ongoing consent to sexual contact. Our fear is that these changes perpetuate this problem.
First, on the codification of unconsciousness, we believe defence counsel will rely on that to argue that unconsciousness is now the legal standard at which a woman becomes unable to provide consent. Given that codifying unconsciousness adds nothing new to the law, we fear that this amendment will be interpreted as clarifying the existing uncertainty in the law of incapacity that I've just identified. At the very least we anticipate these arguments will be made, which means the crown will have to re-litigate capacity to consent, at the expense of the lives of individual complainants whose lives are affected by these arguments and by these trials.
Second, even if unconsciousness is not officially interpreted as the legal bright line at which a person becomes incapable of consenting, we fear that this provision will perpetuate the excessive focus on consciousness as the point of incapacity, as opposed to encouraging judges to engage in a nuanced assessment of capacity versus incapacity, informed by the principles of understanding the nature of the act, understanding the risks associated with the act, and understanding the right to decline participation.
We recognize that the paragraph (b) provisions of these two subsections keep open the possibility that incapacity will be found for reasons other than unconsciousness, but this doesn't allay our concern. The new provisions will still direct judicial attention to unconsciousness as at least a bright line at which a person becomes incapable of consenting, and they do nothing to assist judges or decision-makers in assessing incapacity short of unconsciousness.
We propose that, rather than codifying and potentially restricting the definition of incapacity to consent, Parliament use this opportunity to address the problem that actually exists in the case law and to clarify in what circumstances a person is able to provide consent. We suggest codifying a standard that clearly articulates that a person cannot consent unless he or she is capable of understanding the sexual nature of the act and risks associated with the act, capable of realizing that he or she may choose to decline participation, and capable of communicating voluntary consent to the act. This analysis will go much farther to protect women from sexual assault than will an amendment that focuses on unconsciousness as a legal test for incapacity.
That being said, we do support many of the changes that are being made. For more detail on that, we direct you to our submissions which flesh out our arguments on that point. I'll note specifically that we support limiting the admissibility of records in which the complainant has a reasonable interest of privacy, regardless of who possesses those records. The purpose of the third party records provisions is to advance women's equality and right to privacy in the course of a sexual assault trial and to provide greater fairness to the complainant, which in turn encourages the reporting of sexual offences. We submit to you that those goals apply with equal urgency to any records in which the complainant has an expectation of privacy.
We also support codifying the law, which we would say already exists, that sexual communications are sexual history evidence. Sexual communication is just as susceptible to discriminatory logic, myths, and stereotypes as is sexual behaviour. An example is the fact of someone sending a sexual text message. We fear that it will be argued that it means that woman is the kind of person who would consent to sex, which is exactly the kind of logic that the rape shield laws were created to prevent. So, we support Parliament's movement to bolster the rape shield provisions and protect women from discriminatory myths and stereotypes.
We also agree with the provision providing complainants with right to standing in these hearings. Our experience with third party records hearings is that complainants with legal representation have a much more empowered experience, and it increases fairness to the complainant to have representation. We agree that complainants facing disclosure of their sexual history should be entitled to the same protection.
To summarize, we broadly support the changes. We encourage you to remove the codification of unconsciousness as a standard at which someone becomes unable to consent, and to properly clarify what is required for someone to have capacity to consent.
For a more detailed analysis of these provisions, we direct you to our submissions.
To clarify what I was trying to say, we're always in a resource crunch. This is always the argument against more and more lawyers entering the system. We are very much in support of proper legal counsel with a proper role in the law, but there are additional things that happen in cases of gender-based violence that women require which are outside of the purview of a lawyer's expertise. Lawyers are not always the best people to glue women back to the systems that they need to support them in their social life. What we have in Ontario is a combination.
You may know that the legal aid system in Ontario has a minimal amount of support for family law. Often women who are experiencing violence have multiple family law issues. In our clinic, which is not legal aid supported, we provide representation in family law.
Additionally, we have three workers whose job is to navigate that system with her, so that she understands the system and she gets the social supports she needs, like housing, income support, access to child care, access to children's aid, or whatever it is she needs in that context. Additionally, these workers know the family law system well enough that they can be the ones that literally run down the hall and make sure duty counsel is on tap or make sure that the legal aid certificate is being applied for when she's eligible for it.
It's that glue in the system which we believe would help in the case of sexual assault. Again, since we're talking about a different scenario, where she doesn't have legal standing, in addition to legal counsel, what we're looking for is independent legal advice, in addition to which she will have some kind of specialized support in the court system that is not victim services because victim services has a limited role and they cannot discuss anything that has to do with the dispensation of the case, as you probably know.
In order to have proper support that's in her corner, we're suggesting an additional element beyond strictly legal.
Those are great questions.
How would this help? Unfortunately, in our country you can go from kindergarten to a Ph.D. without learning anything about LGBTQ culture, communities, or history, or even about inclusion and how to create respectful spaces. Frankly, this will make our justice system more accessible to the 13% of our population who are dramatically underserved in this cause, and we would carefully acknowledge, based on anecdotal evidence, that many LGBTQ people, within one relationship or another, will face intimate partner violence. We're very concerned about that.
Other than our agency, we house the national network of LGBTQ service providers, so while we would love a ton of money, we actually wouldn't keep it. We would rather train our LGBTQ service provider network and all of the national service providers and enhance those existing agencies, so that services are delivered by queer and trans folks. Similar to how this government and the previous one really empowered indigenous communities to take ownership of their resources and services, we would want to empower LGBTQ organizations across the country.
We're proud to say that the LGBTQ service providers network that is housed at the Centre for Gender and Sexual Diversity does create a total blanket across our nation. If only we had the funding to empower those agencies.... We're not talking about a lot of money. I fundamentally believe that a small investment of a million dollars or maybe slightly more would hire enough staff people in those agencies and would train them, and we would move forward on really enhancing the capacity of these agencies. As an organization, we are not advocating to build LGBTQ shelters in every city across the country for partners escaping domestic violence. We just want the ability to enhance existing service providers to create a good point of first contact and then train those service agencies that are already working in intimate partner violence.
Look at what Ms. Dale is doing and what LEAF is doing. We don't need to replicate that. We just need to work with those services to make sure that LGBTQ, intersex, and trans are a part of their language and a part of the work that we're all doing together to make the world a better place. For that, we need to fund them.
As the chair indicated, I am a law professor at UBC. My research and my teaching focus on legal responses to sexual violence against women, including sexual assault, sexual harassment, prostitution, and pornography.
I'm here today testifying in general support of the provisions of Bill as they relate to amendments to the Criminal Code in the area of sexual assault while recognizing that the barriers women face in the area of sexual assault are much deeper and more systemic than what this suite of amendments touches.
In the few minutes I have for opening remarks, I'm going to focus in particular on the proposed amendments that relate to the definition of consent, and the defence of mistaken belief in consent, and then just conclude with a couple of words in support of the proposed changes to the definition of sexual activity for the purpose of section 276 of the Criminal Code.
I'll start with proposed paragraph 273.1(2)(a.1). I would just recognize that I think we're 17 years overdue for renumbering of the Criminal Code, and these amendments remind me of that.
This is the proposed change to the Criminal Code that would add as an item on the list of factors in which no consent is obtained the fact that the complainant is unconscious.
This is the one proposed change that raises concerns for me. I understand it as an attempt to codify the Supreme Court of Canada's decision in J.A. I think that's an important decision and worth reflecting in the Criminal Code, but I am worried that the proposed amendment reduces that decision to being about whether you can consent in advance to sexual activity when you are unconscious, a term that in and of itself is perhaps contested and not entirely settled in its meaning.
The decision in J.A. actually goes further than that. What it says is that you cannot give advance consent to sexual activity that takes place when you are incapable of consenting, and that's a broader term than just unconsciousness.
Now, I recognize that you might say that incapacity is still there, but I actually think it would be better, rather than inserting paragraph 273.1(2)(a.1) into that list, to simply amend paragraph 273.1(2)(b) to say no consent is obtained for the purposes of sections 271, 272, and 273, where the complainant at the time the sexual activity takes place is incapable of consenting.
That actually gets at the crux of J.A., the point that there can be no advance consent to sexual activity that takes place when an individual is incapable. What matters is their capacity at the time of the sexual touching. That would codify J.A., and it would also benefit perhaps a broader range of sexual assault complainants than what's being contemplated by the existing amendment.
In particular, with regard to individuals with dementia, we've seen some interest in the concept of advanced directives vis-à-vis the idea that there could be advance consent by someone in the early stages of Alzheimer's disease to continue to have sexual contact with a spouse even when they no longer recognize them. That's not someone who's unconscious, but it is someone who's very vulnerable and clearly incapable of consenting to sexual activity.
It would also benefit women with intellectual disabilities more generally by making it easier to think about incapacity in a situational way. Where we are now is that judges are very reluctant to find complainants with intellectual disabilities incapable of consenting, because they believe doing so disqualifies them from all sexual activity for all time. Again, focusing the incapacity inquiry on the time that the sexual activity takes place benefits not only those women who are unconscious or otherwise incapacitated from domestic violence or from drugs and alcohol but also women with intellectual disabilities.
It seems to me there might be a clearer and better way to reflect the very important decision of the Supreme Court of Canada in J.A.
The bill also proposes some changes to the definition of mistaken belief in consent, and in particular some clarification that the accused cannot rely on any of the factors that would vitiate consent to found a mistaken belief. That again is codification of the case law, a useful clarification that makes it clear that there is a difference between a mistake of law, which does not exonerate—if you believe that consent is something other than what the law requires, you can't rely on the defence—and the defence of mistake of fact, which is much narrower and requires an honest belief, in the circumstances known to you at the time—not the result of recklessness, not the result of wilful blindness, and not the result of intoxication—that the complainant was consenting and, of course, that you took reasonable steps to ascertain her consent.
Having said that, I think it is worth pointing out that in contemporary sexual assault trials it is rare to even get to this defence. We are still in a situation in which the Criminal Code does not define non-consent, and that's actually what the crown has to prove. Most often, cases fail because the credibility of the complainant's claim as to her state of mind—that she did not want the sexual touching to take place—is undermined, and it is most often undermined by long lists of missed opportunities or what the complainant ought to have done or should have done and didn't do.
That remains a significant barrier for sexual assault complainants, which isn't addressed by Bill . This means that we rarely get to the question of the accused's belief in consent, but I think that, when we do get there, these amendments would certainly be a valuable addition to the Criminal Code.
The last point I want to mention relates to the amendments that touch on the issue of sexual history evidence. In particular, I want to express my strong support for expanding or clarifying the definition of sexual activity to include communications, photographs, and other kinds of evidence that may not relate to actual physical sexual contact between the complainant and the accused or third parties.
That's particularly important because the case law in that area is currently divided, with some judges treating that kind of evidence as falling under section 276, and others thinking that it falls wholly outside, and is therefore simply inadmissible. That would actually be an important and useful clarification, as is the following proviso, which is that, if the evidence is being adduced to support one of the twin myths, it is simply not admissible and we don't go on to a balancing exercise. Those are both areas in which I see courts struggling to apply these provisions as consistent with their original intent, and they remain important clarifications and additions to the sexual history provisions in that area.
That's what I would like to draw to the committee's attention at the outset. I welcome your questions.
Thank you for inviting me to speak to this honourable committee today and particularly for returning at the end of a long day to hear us speak.
It may provide a little context for my remarks if I begin by explaining that my academic research focuses on factual reasoning and the evidentiary rules in criminal trials, so I have a particular interest in factual reasoning in sexual assault cases. For that reason, I'll focus on the procedural dimensions of the proposed changes in Bill , in particular the proposed changes to sections 276 and 278.
The three specific features of the bill that I will address are the clarification in respect of sexual activity that Professor Benedet touched on; the proposal to give sexual assault complainants standing in respect of procedural applications that bear upon their charter rights under section 278; and the imposition of procedural safeguards before an accused person may introduce records in which the complainant has a privacy interest under section 278.
While preparing for today, I reviewed the submission prepared by the Women's Legal Education and Action Fund and that prepared by the Criminal Lawyers' Association. I endorse the submission made by LEAF and the recommendations made within that submission, including in respect of the well-intended, but as Professor Benedet has explained, mis-drafted codification of principles regarding capacity to consent, intoxication, and unconsciousness. I would agree with Professor Benedet in that respect. I won't expand further on these matters at this time, but would be pleased to speak further to them in question time if the honourable members of this committee wish me to do so.
I'll now turn to those amendments that relate more to evidence and procedure. In order to clarify the purpose and the likely operation of these amendments, I'd like to begin by providing you with a brief review of the constitutional principles that have been laid out by the Supreme Court of Canada in respect to sexual assault trials.
The right of an accused person to make full answer in defence is fundamental to Canadian constitutionalism and the rule of law. Like all rights and freedoms, this right has limits. Some of these limits are inherent to the nature of the trial process. For example, defence counsel must have a good faith basis for questions asked on cross-examination. Other limits arise from the relationship between the right to make full answer in defence and other constitutional guarantees, such as the right to equality, privacy, dignity, and security of the person.
In the 1999 Supreme Court decision in R. v. Mills, Chief Justice McLachlin and Justice Iacobucci held on behalf of the majority that a quality consent inform the contextual circumstances in which the rights of full answer in defence and privacy will come into play. A direct quote from the judgment is “the right to make full answer and defence does not include the right to information that would only distort the truth-seeking goal of the trial process.”
In these reasons, the court drew an explicit link between a complainant's charter rights and the truth-seeking function that is the ultimate purpose of a criminal trial. Similarly, the Supreme Court has emphasized that the sexual assault trial should not be permitted to become an ordeal for the complainant. For example, in R. v. Osolin, Justice Cory held on behalf on the majority of the court that a complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system.
The challenge that is therefore presented to both Parliament and the courts is how to fully respect the importance of both the accused person's rights and those of the complainant in a sexual assault trial. A proper delineation of the boundaries of both sets of rights is an integral step towards meeting this challenge. The submission prepared by the Criminal Lawyers' Association states that sexual assault complainants should be protected against disrespect, unfair treatment, myth-based interrogation, and poorly founded, overly intrusive production orders. I agree.
However, the Criminal Lawyers' Association does not acknowledge that sexual assault complainants hold constitutional rights that are potentially impacted by the manner in which sexual assault trials are conducted. It also fails to consider the Supreme Court of Canada's explicit recognition that these rights help to define the proper scope of an accused's rights within the sexual assault trial and vice versa.
Existing statutory rules, including section 276 regarding sexual history evidence, and section 278 regarding third party records, strike a constitutional balance using three principles that have received constitutional endorsement from the Supreme Court of Canada.
The first of these principles is that some forms of reasoning, often referred to as the twin myths, have been characterized by the Supreme Court as simply impermissible. Section 276.1 in its present form, and as it will remain in Bill , absolutely prohibits the admission of sexual history evidence to support that kind of reasoning.
Second, all evidence is subject to a basic requirement of relevance. This principle is reflected in existing paragraph 276(2)(b), which will remain unchanged, and in subsection 278.3(3) which is also unchanged by Bill . I endorse LEAF's recommendation that Bill be amended to adopt the judicial definition of “likely relevant” provided by the Ontario Court of Appeal in Regina v. Batte. More information on this point is provided at pages 12 to 13 of LEAF's submission.
Third, in order to be admissible, an accused person's evidence must have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This principle is set out, for example, in paragraph 276(2)(c) of the present code. While the numbering will change slightly as a result of Bill , the principle will not. A similar weighing exercise is required in respect of the disclosure of third party records.
Let's turn, then, to Bill . The first of the things it will do with respect to this balancing between the complainant's rights and the accused's rights is to clarify the definition of sexual activity as extending to communications. In circumstances in which an accused person wishes to introduce evidence of sexual communications by the complainant, the trial judge will consider the same three principles as already exist and are already constitutional. Is the evidence introduced solely to perpetuate prohibited myths and stereotypes? If so, it's inadmissible. Is the evidence relevant to the material questions of whether the complainant subjectively consented to the sexual activity that took place at the time of the occurrence of the activity and whether the accused person believed that the complainant was consenting? Does the evidence have significant probative value that's not substantially outweighed by the danger of prejudice to the administration of justice?
In considering these questions, a judge would address the accused person's charter rights and those of the complainant, as well as the extent to which the evidence would advance the truth-seeking function of the trial and other important social purposes. It bears noting that in 1992 when section 276 was first drafted, social media was basically non-existent. The text messages and emails, including picture messages which are widely used today essentially didn't exist in their present form. The cultural embrace of digital technologies for personal communication has opened new doors to the operations of myths and stereotypes that courts and Parliament have tried valiantly to exclude from the justice system. The proposed amendment to section 276 represents a sensible and incremental response to these social changes, and a clarification in a divided body of case law. It will not result in the exclusion of valuable evidence, but it will ensure that judges are attentive to the risks of impermissible reasoning.
I'll now turn briefly to proposed subsections 278.94(2) and (3), which provide complainants the right to legal representation at admissibility hearings regarding her sexual history or records. In an article that I published in the Supreme Court Law Review in 2016, I documented some of the difficulties presently experienced by complainants who seek to assert their charter rights without standing or legal representation. Complainants' charter rights are pivotal to these admissibility hearings. Indeed, these are the very reason why the hearings are being held. Giving them standing and ensuring proper funding to ensure that they have legal representation is the single most effective way to ensure that sexual assault complainants are accorded the equal benefit and protection of the law at this important trial stage.
Finally, I would like to touch on the extension of section 278 records to records that are in the possession of the accused. The Department of Justice backgrounder to Bill states that proposed subsection 278.92(1) is intended to apply to the—quote—“complainant's private records” that are in the accused person's possession. The language actually used in subsection 278.92(1) as proposed is that a record includes, relevantly, “any form of record that contains personal information for which there is a reasonable expectation of privacy”. The Criminal Lawyers' Association raises the concern that the obligation is overbroad, and provides examples, at page 4 of its submission, of circumstances in which the plain language of the provision as drafted would appear to apply to records that do not engage the concern about a complainant's records.
Based on the Department of Justice backgrounder, I believe the intention is to engage the section 278 process when the accused has possession of records in which the complainant or witness has a privacy interest, but not otherwise. For this reason, I would recommend that this honourable committee consider an amendment to proposed subsection 278.92(1) to read “except in accordance with this section, no record in which a complainant or a witness that is in the possession or control of the accused”, etc.
To clarify that, the salient link to engaging the process is the link between the record and the complainant's privacy interests. This would sidestep the concern about overbreadth that the Criminal Lawyers' Association has raised, while securing the goal the Department of Justice has laid out.
Thank you for your attention.
Thank you for inviting me to do so.
I agree with the Criminal Lawyers' Association that there is space for clarification. If we return to the case that's the genesis for this change, the case of Shearing, the facts in that case were that the complainant's diary had been stolen by the accused person, and the court held that the means by which the accused person came into possession of it were not relevant to the admissibility of the diary at trial. That's being addressed by a provision such as this.
If we think about the possibility, as exists in some case law, of an accused person improperly obtaining access, for example, to Facebook profiles or confidential email records, there's a significant public policy interest in ensuring that there are procedural safeguards before those kinds of materials can be aired in court.
The value of this provision, if it's targeted only to those records in which the complainant has a privacy interest, is that it allows the trial judge to run those records through that same decision-making process and those principles I elaborated. So does it just rely on and perpetuate myths and stereotypes? Is it relevant to a material issue at trial? Would the probative value substantially outweigh the prejudicial effect of introducing this information?
The trouble that I see and which I think the Criminal Lawyers' Association's submission points to is that the way in which the provisions have been drafted, that link between the complainant's privacy interests and the recording question is not apparent on the face of it. I think it's very clear in the intention but not on the face of it.
That's the reason for my recommendation. Where the existing text for proposed new subsection 278.92(1) reads, “Except in accordance with this section, no record relating to a complainant or a witness that is in the possession or control of the accused”, that's where the problem arises, the breadth of that language of “relating to”. It would be clearer and would more perfectly capture the intention to say, “Except in accordance with this section, no record in which a complainant or witness has a privacy interest and that is in the possession or control of the accused”. That link between the privacy interest of the complainant and the accused's possession becomes much clearer on that rewording.