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Adding capacity assessment to sexual assault bill creates uncertainty | Pierre Dalphond

Tuesday, November 06, 2018 @ 9:03 AM | By Pierre Dalphond

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Pierre Dalphond %>
Pierre Dalphond
On Oct. 30 the Senate adopted on division Bill C-51, as Cristin Schmitz discussed at great length in her Oct. 31 article.

Bill C-51 pursues four distinct objectives; the first one is summarized as follows by the Department of Justice: Clarify certain aspects of sexual assault law relating to consent, admissibility of evidence and legal representation for the complainant. The other objectives being widely accepted, I will focus on the first.

The bill’s amendments regarding the admissibility of evidence, which expand the rape shield provisions and restrict the accused’s use of the complainant’s private records in his/her possession, were highly criticized before the committee by several expert criminal lawyers and civil rights groups.

In a nutshell, it imposes the obligation to the accused of a sexual offence to disclose in advance any “record relating to a complainant that is the possession or control of the accused and which the accused intends to adduce.”

Like Sen. Serge Joyal, I believe that there will be constitutional challenges to this attempt to change the ordinary criminal proceedings in sexual offences cases, including the right of accused persons to remain silent, not to disclose potential means of defence (except alibi) and to keep their defence secret from the Crown until they choose to bring them to bear in the trial.

If the bill is enacted, I urge lawyers and the courts to interpret the new provisions with sufficient flexibility to preserve the accused’s right to a legitimate means of defence in the appropriate circumstances.

As for the clarification on certain aspects of sexual assault law relating to consent, I believe the bill as amended by the House of Commons met the stated objective.

Pursuant to the new s. 273.1 of the Criminal Code, which codifies the Supreme Court’s ruling in R v. J.A. 2011 SCC 28, consent must always be present during the sexual activity in question (new ss. 273.1(1.1)) and consent no longer exists if a complainant becomes unconscious during the activity (new ss. 273.1(2)(a.1)).

As stated by Sen. Peter Harder in his Oct. 16, 2018, speech, Bill C-51, as adopted by the House of Commons, does not seek to legislate a legal test of incapacity.

Thus, one cannot seriously argue that the House of Commons version of C-51 if enacted, could have the effect of drawing the line for incapacity and capacity to consent at unconsciousness. This argument is untenable as it would be a complete reversal of the existing case law as evidenced, among other things, by the recent judgment of the Nova Scotia Court of Appeal in R v. El-Rawi 2018 NSCA 10, which states that the dividing line between consent and lack of consent is not consciousness, but the ability to consent and to withdraw consent at any point.

Unfortunately, at third reading in the Senate, in response to this false risk, an amendment was adopted on division and is now before the House of Commons for consideration. It is designed to provide courts with specific directions in cases where the complainant was intoxicated.

The amendment stipulates 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.”

By including a non-limitative list of criteria instead of referring to “any other reason,” the principles underlying the criteria (to be determined by courts) risk changing the state of the law or, at the very least, create a period of uncertainty about Parliament’s intent when incorporating such a list into the Code.

I understand that, for those advocating for a rebalancing of trial to be more favourable to complainants, that Bill C-51 is not enough. I also know that there remains in society myths, biases and prejudices toward victims of sexual assaults, including those who were intoxicated. These do not stop at the door of police stations or courthouses, and Crown counsel, defence lawyers, judges and the jury are not immune to them.

But adding in the Code a list of factors to assess capacity will not address any of that. It will only create interpretative difficulties at trial and expose complainants to new lines of questioning.

Pierre Dalphond sits as independent Senator for the De Lorimier Division (Quebec). Prior to being appointed to the Senate on June 6, 2018, he was a judge, lawyer, and legislative advisor.

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