Mr. Speaker, I would like to thank my colleague from London who spoke earlier and all members for their comments on Bill C-51 today.
At the outset, because I have some time today to give a bit of a longer speech, I want to address the fact that I am troubled that in government, the Liberals are doing exactly what they said they would not do when they were in opposition. In fact, this is our second omnibus justice bill.
I know my friend from Winnipeg, the deputy House leader of the Liberal caucus, likes when I quote some of his outrage in the past Parliament about the use of omnibus bills. However, when it comes to justice omnibus bills in particular, I think the need for a lot of these provisions to be considered independently is the best way to go.
Although the bill is certainly not as long as the government's latest budget implementation act, at 850 pages or more, weaving together a variety of unrelated things in the form of one bill, here we have another substantive piece of justice legislation being presented in an omnibus bill.
Breaking it down, there are some good parts and some parts we certainly have some challenges with. I would like to use my opportunity, if I may, to highlight both the good and the bad.
The good is that as a Parliament, we need to show that we can speak with a united voice with respect to zero tolerance for sexual assault and not respecting the consent of an individual in the case of sexual relations of any kind. Therefore, I think it is good that we are having a fulsome discussion on this part of the bill today. In fact, several members have quoted from some of the case law that has led to the need for Parliament to weigh in and be very clear that people cannot provide the consent necessary to engage in sexual activities when they are unconscious. We need to send a clear signal from Parliament. I think the Senate amendments actually take away that clarity somewhat, and I am glad we are having the debate here on proposed section 273.1 in the bill.
The Supreme Court case that drove clarity in this area was very clear. It said that it was not possible for people to provide consent if they were not conscious, even if express consent had been provided ahead of time, when they were conscious. I think Parliament needs to be crystal clear that consent evolves and that there has to be the constant presence of consent and respect. That is what this bill is intended to do. In fact, some of the Senate amendments, which would almost create tests with respect to the standards, confuse the issue. There needs to be a clear signal sent that consent has to be constant. I think that is a signal that, as parliamentarians, we have to send.
I can say, as someone of my generation, that the debate on campuses about no means no and all these sorts of things was not taken seriously in the early 1990s. We are still having debates today about it. An accused will try to suggest that consent was provided sometime earlier. If consent was provided in the context of alcohol or substances, and if someone was unconscious, consent could not be provided.
The Supreme Court was clear. I think Bill C-51 and our updates to the Criminal Code send a very clear message. There is no test to be performed. It is a bright line. Everyone, all Canadians, need to show respect and a commitment to consent in the context of sexual assault cases. It is basic respect. We are in the era of the #MeToo movement and discussions about unsafe workplaces. All these things have been positive in making sure that one has a positive obligation, with respect to one's relations with someone else, to make sure that there is always consent present. I think that is clear.
I am also glad that a number of speakers from several parties have referenced Bill C-337, the bill of the former interim Conservative leader, Rona Ambrose, on judicial training in the context of sexual assault trials. The bench comprises a cross-section of society, and those attitudes need education to make sure that judicial standards adhere to the expectations we have as a society of respecting consent.
We know, in Ms. Ambrose's home province of Alberta, the case of Justice Camp, where attitudes toward a victim by the bench showed just how disconnected some may be. The vast majority of the bench would be explicitly mindful of the complainant in those cases, but we have seen cases in recent years that show that judicial training with respect to consent, in the context of sexual assault trials, is needed, as is education for all members of the bar.
As a member of the bar, I am glad that a few years ago, law societies across the country incorporated continuing legal education requirements for lawyers to make sure that they are aware of expectations with respect to consent and the law. The very fact that there would be some reluctance to have same continual legal education for judges in the context of sexual assault cases is troubling. I know that most justices demand that level of CLE, so I hope that the government, in the context of my starting off my speech by talking about some of the positive elements of Bill C-51, pushes Bill C-337 through. It should not matter that it came from a former Conservative member of Parliament, Rona Ambrose. It should not matter that it came from this side of the chamber if it addresses the same elements I am saying I support in Bill C-51 today. Let us hope there is some movement in the Senate so that in the spring, we can ensure that it is an expectation that all members of the bench have that training so they can guarantee an environment of respect for all complainants who come forward.
The provisions in proposed section 273.1 also show that Parliament is clear in its direction with respect to consent always being a requirement, and if there is any uncertainty, we err on the side of complainants. Everyone should know that if circumstances change, be they the context, consciousness, alcohol or these sort of things, prior consent is not sufficient. We have to be crystal clear on that.
This is also similar to Bill C-75, an omnibus justice bill, which I have spoken to in Parliament. I have also spoken to Bill C-77, on modernizing criminal justice within the context of the National Defence Act. I supported a number of measures in that bill. In fact, the previous government introduced Bill C-71 in the last Parliament to try to update the National Defence Act and the treatment of criminal conduct by members of the Canadian Armed Forces. That is still in a state of flux. All these bills, particularly because they deal with the rights of the accused and the rights of the victims or complainants in these cases, should be given specific attention and not be put into omnibus bills.
I would like to speak for a moment about the fact that this bill is part of the process of requiring a charter statement from the government with respect to legislation before the House of Commons. I have some concerns about that approach, in two ways. First, I am worried that it may send some sort of chill to suggest that the government is trying to innoculate itself by saying that it reviewed the bill ahead of time and has a charter opinion on it, meaning, therefore, that we cannot raise charter concerns or that there is no reasonable basis to have concerns about its validity under the charter by groups that may be impacted by the decision of this Parliament.
The very nature of the charter itself was to give a back and forth test with respect to the will of Parliament, and the ability for the court to determine whether fundamental charter rights were breached directly or indirectly by legislation in the context of enumerated groups under section 15 of the charter, are expressly contained within the charter, or are analogous ground groups, provided by subsequent court decisions.
The balancing test under section 1 of the charter, the Oakes test, which I learned in law school and is some of the first charter jurisprudence, is that balancing of the charter. By issuing a charter statement, I am quite concerned the government is trying to suggest it is doing its own Oakes test, its own charter examination of issues at the time it is passing legislation. I am not suggesting it will cause chill, but I have not have heard an argument from a member of the government bench to suggest this is any different than any government since the mid-1980s, when the charter came into effect.
Suggesting that the seal of approval for the charter is granted by one of these statements is simply ridiculous. It is up to the court to provide that reasonableness and those limitation tests under the provision of section 1 of the charter, which allows a charter right to be violated by legislation, but applies a reasonableness and balancing test to it since the Oakes jurisprudence started.
I will give a couple of examples of why I have this concern. In this Parliament, we have seen many instances of the government acting in a way I firmly believe violates the charter rights of many Canadians. This is germane because just today, shortly before we rise for Christmas, the government is reversing its position on the so-called values screen for Canada summer jobs.
We all know the controversial values test was applied for the first time in the history of this summer employment plan for youth as a clear way the government intended to exclude faith-based organizations and other service organizations from funding related to students. There were concerns from a charter basis expressed from day one when it came to the values test. Is the government suggesting, with its charter statements, that its actions on a whole range of decisions are somehow inoculated because it is providing a charter assessment? That is political theatre. It cannot provide its own charter assessment. It tries to craft legislation that it feels strikes the right balance, but the actual charter determination is not made in this chamber, which writes the laws, but in other courts.
We bow to the Speaker. We have a bar. This is a court. We write the laws, but we do not adjudicate our own laws. This is a very big distinction I have not heard the government express any clear indication on yet.
I will use another example. There have been several violations, in my view, of indigenous peoples' rights with respect to the duty to consult. In fact, I believe Bill C-69 violates that duty. We can look at the approach the government has taken on the cancellation of the northern gateway pipeline, which is one-third owned by indigenous groups. The duty to consult is not frozen in time. It does not exist 10 years before one develops a pipeline or cuts trees in a forest. If one decides to change the circumstances of that consultation, or cancel something that indigenous peoples are a one-third owner of, one has a duty to consult them on the cancellation. This is an ongoing duty.
The fact that the government may have a piece of paper that says this is our charter statement, this is our validation that the bill conforms with the charter, is political and inappropriate, because the government is suggesting this legislation will withstand any judicial scrutiny before the judicial scrutiny is applied. The government is suggesting that this is A-okay. That is not the way it works.
I invite the Minister of Justice and Attorney General and the parliamentary secretary to walk a little past the Confederation Building on the Hill to a building called the Supreme Court of Canada. It is there that the Oakes test was born, the Oakes test where the section 1 charter clause was.
As I have said, the values test that the government did to politicize the Canada summer jobs program would not be inoculated because of a government-produced charter statement nor would some of its actions with respect to Bill C-69, Bill C-75, Bill C-77. These are court determinations.
I do not have any proof because the charter statement concept is part of the government's justice reforms, including in this legislation, but I do have serious concerns that it will send a chill to suggest that the government will not consider valid concerns people have with respect to their charter rights.
I would like subsequent members of the Liberal caucus, particularly the ministers or the parliamentary secretaries, to provide a substantive rationale for their approach with respect to the charter statements. Are they somehow suggesting that previous governments, both Conservative and Liberal, have somehow not conformed to the charter by doing exactly what we are supposed to do as a Parliament, which is to try and find the right balance between the will of the people and certain provisions within the charter? That is done by a court using the Oakes test, doing the balancing. Producing a charter statement does not protect the government from criticism.
As I said today, days before Christmas, the government suddenly admits that its approach on the values test for summer jobs is wrong. This is much like days before Christmas last year, when it broke its promise to veterans on the return to the Pension Act. The Liberals make very good use of the pre-Christmas period not just for parties, but for dumping out their dirty laundry.
I would like to thank the thousands of Canadians from across the country and many of my colleagues in this chamber for representing the charter rights of millions of Canadians with respect to the conduct of the Canada summer jobs program.
Why I am focusing on this part of the bill is because we have to make sure that Canadians, members of the media and members of both Houses of Parliament do not get fooled by the fact that the government validating its own legislation under the guise of charter approval is not actually charter approval.
I am hoping in the remaining debate we can actually hear a cogent argument from the Liberal caucus on this. Otherwise, it seems to be more of the sort of media spin that we hear from the government.
The Prime Minister just yesterday, while leaning on his desk acting like a professor, told the opposition what we should ask and what we should criticize. We know full well what we should ask and we know where our criticisms and critiques are warranted.
Quietly, when the House does not sit, the Liberals backtrack on things, like they did today on the summer jobs values test, like when we rose for Remembrance week, and Miss McClintic, another justice consideration, was quietly transferred to a prison as we had been demanding, and as the break week happened Statistics Canada suddenly pulled back its program.
Like the Chris Garnier criticism, the non-veteran murderer who is receiving treatment funds from Veterans Affairs Canada, on most of the criticisms we have been raising even though they make the Prime Minister uncomfortable, the Liberals have backtracked. We have been doing our job quite effectively.
In the remaining time for debate, I would like one of the Liberal members to stand up and provide a context and a rationale addressing my concerns in regard to charter statements with respect to the bill before us and others.
As I said at the outset, we support the amendments and update of our Criminal Code with respect to sexual assault.