On November 14, 2018, the Women’s Legal Education and Action Fund (LEAF) and the Barbra Schlifer Commemorative Clinic sent a letter to Prime Minister Justin Trudeau and Minister of Justice Jody Wilson-Raybould supporting Senator Kim Pate’s proposed amendment to Bill C-51. This amendment would provide much-needed provisions to ensure that the law of sexual assault in Canada provides meaningful protection for all women.
The current language of Bill C-51 risks establishing unconsciousness as the threshold for incapacity to consent under the law. This would exacerbate existing barriers to justice for women who are sexually assaulted while intoxicated or women who have disabilities, both of whom are disproportionately targeted by sexual violence. Judges are in dire need of guidance as to how to determine whether women are capable of consenting in such circumstances. There have been cases in which the complainant was conscious during the sexual contact, but was unable to stand up, remember their address, or was vomiting profusely, yet judges have found that the complainant was capable of consenting.
Senator Pate’s amendment would provide much-needed guidance on sexual assault law. Her amendment would include factors the judge should consider in determining whether a woman is capable of consenting, including:
- whether or not the complainant is able to appreciate the essential features of the sexual activity she is engaging in,
- whether or not the complainant is able to understand the risks and consequences of the sexual activity,
- whether or not the complainant is able to understand that she has the choice to engage in sexual activity; and
- whether or not the complainant is capable of communicating consent or communicating her withdrawal of that consent.
This approach is superior to the existing language of Bill C-51, which would focus judges’ attention in assessing capacity whether or not the complainant was conscious, a dangerously low bar for finding the capacity to consent. It provides much-needed guidance to judges and meaningful protection for women. Consent must be voluntary, informed, and meaningful. Bare consciousness cannot be enough to be capable of providing it.
We urge the government to adopt this proposed amendment and take a crucial step toward equality and security of the personal rights of women and girls in Canada.
- The letter is available here.
- LEAF’s submission to the House of Commons Standing Committee on Human Rights and Justice and the Senate Committee on Legal and Constitutional Affairs is available here.
The Barbra Schlifer Commemorative Clinic is a specialized clinic for women experiencing violence, established in the memory of Barbra Schlifer – an idealistic young lawyer whose life was cut short by violence on the night of her call to the bar of Ontario on April 11, 1980. In her memory, the Clinic assists approximately 5,000 women a year to build lives free from violence through counselling, legal representation, and language interpretation. Since opening in 1985, the Clinic has assisted more than 67,000 women.
The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, we have intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms. For more information, please visit www.leaf.ca.
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