Honourable senators, I rise today to support the amendment brought forward by my colleague Senator Pate and to let the other place know that, in my opinion, Bill C-51 contains a flaw. This major flaw needs to be fixed before the bill comes into force.

The issue of sexual consent has been a core concern of mine for many years now. As former chair of the Conseil du statut de la femme, I have spoken numerous times on the evolution of this concept and the idea that, in this day and age, consent must be affirmative. A person has to say “yes” to sexual activity. Passivity, intoxication, or not saying “no” are not enough to confirm that consent has been given.

This bill includes a definition of consent, but its weakness is the definition of what constitutes non-consent. According to a legal expert who provides sexual consent training to judges, there is not enough precedent or awareness among judges to believe that the proposed wording in clauses 10 and 19 of the bill is clear enough to guide them.

Again, according to the wording, 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);

I will not repeat the arguments made by my colleagues Senators McPhedran and Lankin about the risk associated with the unconsciousness criterion in Bill C-51. I agree with their arguments.

The flaw in this bill could potentially affect many women. If a person is voluntarily intoxicated — in other words, drunk — but is still conscious, how is their consent or lack of consent to be determined? That is the problem, and that is where the alleged victim faces challenges in getting justice in court.

I think it would be appropriate to amend clauses 10 and 19 of Bill C-51 by adding subparagraph (iii), which states that the complainant is:

unable to affirmatively express agreement to the sexual activity in question by words or by active conduct;”,

However, I am not convinced that the part of the amendment proposed by my colleague Senator Pate, stating that an individual must be able to understand the risks and consequences of the sexual activity, would be admissible in a court of law.

I listened carefully to the arguments for and against this difficult issue, and especially to those made by my colleague Senator Dalphond, for whom I have a great deal of respect. We both would have liked the committee to spend more time refining the amendment to achieve a broader consensus on its nature and the wording.

Despite my reservations about the wording of one part of this amendment, I will vote in favour of it because I believe it is important to show my support for a better definition of consent in the hope that more victims of sexual assault can get justice. Thank you.