An Act to amend the Criminal Code (unconstitutional provisions) and to make consequential amendments to other Acts

Sponsor

Status

Second reading (House), as of March 8, 2017

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Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Criminal Code to, among other things, remove passages and repeal provisions that have been ruled unconstitutional by the Supreme Court of Canada. It also repeals section 159 of that Act and provides that no person shall be convicted of any historical offence of a sexual nature unless the act that constitutes the offence would constitute an offence under the Criminal Code if it were committed on the day on which the charge was laid. It also makes consequential amendments to the Corrections and Conditional Release Act and the Youth Criminal Justice Act.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Criminal CodeGovernment Orders

December 10th, 2018 / 6:15 p.m.
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Conservative

Marilyn Gladu Conservative Sarnia—Lambton, ON

Mr. Speaker, I am here to speak tonight to Bill C-51. For those who are not aware, this bill is intended to clean up clauses in the law that are no longer useful or applicable and to strengthen some of the language.

First, Bill C-51 is another omnibus bill. The Prime Minister said that the Liberals would not have omnibus bills, but we continue to see them in the House day after day. I may have gotten used to the fact that the Prime Minister always breaks his promise. However, I want people to be aware of this so they understand, as we approach next year's election, that the Prime Minister does not keep his promises and if he makes new promises, Canadians can expect that behaviour to continue. The promises really are not worth the paper on which they are written. Therefore, I object to this being an omnibus bill.

Usually when we think of justice bills, we think about what the government is trying to achieve in the country with respect to justice. Normally, we try to define what behaviour would be considered criminal, sentences that would be appropriate and commensurate with the crimes and that they are enforced in a timely way. However, I have to question what the justice minister is thinking with these pieces of legislation and actions that have been taken.

The government is in the fourth year of its mandate and what priority has the justice minister been giving time to? First, she has not put enough judges in place to keep murderers and rapists from going free because time has passed and the Jordan principle applies. That should have been a priority for the government, but clearly was not.

We heard earlier in the debate about how the government was pursuing veterans and indigenous people in court. That is obviously a priority for it, but one would think that other things would make the list. The Liberals prioritized the legalization of marijuana and the legalization of assisted suicide. Then it introduced Bill C-75, which took a number of serious crimes and reduced them to summary convictions of two years or a fine, things like forcible confinement of a minor, forced child marriage, belonging to a criminal organization, bribing an official and a lot of things like that. Those were the priorities of the government.

Then there is Bill C-83 regarding solitary confinement and impacts on 340 Canadians.

I am not sure what the priority of the government is when we consider the crime that has hit the streets. There is the increase in unlawful guns and gangs and huge issues with drug trafficking. I was just in Winnipeg and saw the meth addiction problem occupying the police and law enforcement there. I would have thought there would be other priorities.

If I think specifically about some of the measures in Bill C-51, the most egregious one to me is that the government tried to remove section 176, which protects religious officials and puts punishments in place for disrupting religious ceremonies.

Eighty-three churches in Sarnia—Lambton wrote letters and submitted petitions. There was an immediate outcry. It was nice that the government was eventually shamed into changing its mind and kept that section the way it was. However, why is there no moral compass with the government? We have had to shame it into doing the right thing many times, and this was one of them.

Terri-Lynne McClintic was moved to a healing lodge. I remember hearing the Minister of Public Safety talk day after day about how there was nothing he could do. I looked at section 6(1) of the Corrections and Conditional Release Act. It says that the minister has full authority over his department. Eventually, of course, we shamed the government into the right thing. We heard today there may be a similar opportunity with Michael Rafferty, the other killer of Tori Stafford.

There is the Chris Garnier situation. He brutally murdered a police officer. He has PTSD and is getting veterans benefits when he was never a veteran. Again, we had to shame the government into taking action.

Then there was Statistics Canada. The government had a plan to allow it to take the personal financial transactional information of people's bank accounts and credit cards without their consent. Again, there was a total out-of-touch-with-Canadians response from the government, asking why it was a problem. Eventually, ruling by the polls, Canadians again shamed the government into changing its mind on that one.

Finally, there was the Canada summer jobs situation, which was very egregious to me. In my riding, numerous organizations were not able to access funding because of this values test that the government had put in place. The hospice, which delivers palliative care, was not even able to apply. It is under the Catholic diocese of Canada, which objected to the attestation. It has taken a very long time, but again, the government has been shamed into saying that the people are right and that maybe it will change it up for next year. Why does the government always have to be shamed into these things instead of having a moral compass to know what is right and what is not?

Bill C-51 would clean up a lot of things that were obviously a big priority for the government, like comic books causing crime. We know there have been huge issues about that in Canada. It would remove offences such as challenging someone to a dual. It would clean up the section on people fraudulently using witchcraft and sorcery. It would clean up a number of things. I do not object to it; I just do not see it as a priority when people are dying because of serious crimes.

Then there is the issue of sexual assault. The government spends a lot of word count talking about the fact that it cares about this. However, does it really care about sexual assault and strengthening the language on consent when it does not appoint enough judges to keep rapists from going free?

I was the chair of the status of women and we studied violence against women and girls. We know that one out of every thousand sexual assault cases actually goes to court and gets a conviction. If we want to talk about the sentences applied, they are measured in months and not years, when the victims struggle on forever.

Although there has been an attempt to make it clear what consent really means, there has been discussion in the debate today that it is still not clear. If people are interested to see what consent really means, there is a little video clip that can be googled. It is called Tea Consent. It is a very good way of demonstrating what consent is. I encourage everyone to take a look at that.

When it comes to the justice system and the priorities of the government, I cannot believe it has not addressed the more serious things facing our nation. We can think about what the justice minister ought to do, such as putting enough judges in place so we can have timely processing of events, and prioritize. If we do not have enough judges for the number of cases occurring, it is an indication of too much crime. However, it is also an opportunity to put the priority on processing murderers and rapists ahead of people being charged with petty crimes of less importance.

When it comes to looking at some of the actions the government should be taking going forward, it should be focusing on the issue of illegal gun activity happening right now. Ninety-five per cent of homicides is happening with unlawful guns or guns that are used unlawfully. There is a huge opportunity to do something about that. This should be a priority for the justice minister.

Our leader has put together a very cohesive plan that would reduce gun and gang violence. It is a great, well-thought out plan. I wish the Liberal government had some plan to try to do something to reduce crime in the country and to ensure that the people who commit crimes are actually held to account. I do not see that in Bill C-51. I have to wonder why it took so long to bring the bill forward.

As I said, the government is in the fourth year of its mandate and Bill C-39 would have made a lot of these fixes. It was introduced in March of 2017. Here we are at the end of 2018 and still none of this has gone through.

Criminal CodeGovernment Orders

December 10th, 2018 / 4 p.m.
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NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Mr. Speaker, excuse me while I shed a few tears for the troubles of being in a majority government. The parliamentary secretary should have an inkling of understanding, because he once sat in this corner, of the vast amount of power a majority government wields in this place. Frankly, I find it inexcusable at this stage in the 42nd Parliament that the only substantive justice bills that have been passed by the current government are Bill C-14, which was the result of a court-ordered deadline, and Bill C-46, which, of course, was the companion bill to Bill C-45.

Our contention on this side of the House has been that it would have been unnecessary to even use time allocation if the government had taken the non-contentious parts of Bill C-32, which was rolled into Bill C-39, which was rolled into another bill, and made those a standalone bill. For example, we have provisions in the Criminal Code such as challenging someone to a duel, possessing crime comics and fraudulently practising witchcraft. For decades, legal scholars have complained that these faithful reproductions in the Criminal Code lead to confusion. It should have been no secret to officials in the justice department that as soon as the justice minister assumed her mandate, we could have moved ahead with a bill to get rid of those inoperable, redundant sections of the Criminal Code, probably with unanimous consent.

Looking back at the last three years of the government's legislative agenda, particularly with justice bills, would the parliamentary secretary not agree with me that it would have been smarter to package the non-contentious reforms of the Criminal Code in a standalone bill, rather than having us, at this stage, at three years, with not a single reform of the Criminal Code yet passed by this Parliament?

Criminal CodeGovernment Orders

December 10th, 2018 / 3:30 p.m.
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NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Mr. Speaker, I will agree with my colleague from St. Albert—Edmonton. It is a real head-scratcher.

He recalled a few hours ago that when Bill C-32 was introduced, the government made much fanfare. There was a huge press conference in the foyer of the House of Commons. A number of stakeholders were behind the minister. It made headlines across the country. That bill still remains in purgatory.

It was then rolled into Bill C-39, and we had hope that this was moment we would be moving forward with the much-needed amendments to the Criminal. However, again, that bill remains in purgatory at first reading.

Finally, Bill C-39 was rolled into Bill C-75. The House of Commons has only just passed that bill and sent it to the Senate.

Here we are more than three years into the government's mandate and we have only just sent that package of Criminal Code reforms to the Senate. Who knows how long it will take in the other place, given how massive that bill is, how many debates will be needed in the Senate and how many stakeholders will appear before the legal and constitutional affairs committee.

For a government that came to power with such a huge and ambitious mandate to reform our criminal justice system, the evidence of its legislative progress has been very lacking. I would agree with my colleague that the government's management of time in the House could certainly use a few lessons.

Consideration of Senate AmendmentsCriminal CodeGovernment Orders

December 10th, 2018 / 1:35 p.m.
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NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Madam Speaker, I am very happy to be participating in today's debate on Bill C-51. I find it unfortunate, however, that the government has again had to resort to time allocation on a justice bill. The bill passed the House of Commons. I was certainly one of the members who voted in favour of it. However, I find myself in the awkward position of actually agreeing with what the Senate has done to the bill, because it very much mirrors the attempt I made at the justice committee last year to codify the nature of consent and provide a bit more definition in the Criminal Code.

Before I get to the Senate amendments more specifically, I want to talk more generally about the government's record on justice bills. While I do have a great deal of respect for the Minister of Justice and I very much agreed at the start of the government's mandate with what she was attempting to do, the pace of legislative change from the Minister of Justice has been anything but satisfactory. We started off with Bill C-14. It received a lot of attention and debate in Canada, as it should have, but we have to remember that the only reason the government moved ahead with Bill C-14 and we passed it in 2016 was that the government was operating under a Supreme Court imposed deadline. There was really no choice in the matter. Furthermore, when Bill C-14 was passed, we very nearly had a standoff with the Senate because of the provision in the bill about reasonable death occurring in a predetermined amount of time. We knew that that particular section would be challenged in the court system.

The other substantive piece of legislation the government has passed is Bill C-46, which was designed to move in conjunction with Bill C-45. Of course, Bill C-46 was problematic because the government has now removed the need for reasonable suspicion for police officers to administer a Breathalyzer test. They can basically do it whenever a person is legally stopped, whether it be for a broken tail light or for not stopping completely at a stop sign. If an officer has a Breathalyzer test on their person, they can demand a breath sample right then and there, without the need for reasonable suspicion. I have seen mandatory alcohol screening operate in other countries, notably Australia.

In my attempt to amend that bill, I stated that if we were going to apply such a draconian measure, it should be applied equally, because if we start giving police officers the ability to decide when or where to test someone, we know from the statistics, notably from the City of Toronto, that people of a certain skin colour are more apt to be stopped by the police than others. If such a provision were to be implemented, it should be applied equally at all times.

Moving on, there is Bill C-28, which deals with the victim surcharge, but is still languishing in purgatory at first reading.

The government then moved forward with a number of cleanups of the Criminal Code, the so-called zombie or inoperative provisions and the many redundant sections of the Criminal Code. That is the thing about the Criminal Code: It is littered with out-of-date provisions that are inoperable because of Supreme Court or appellate court rulings, but they are still faithfully reprinted every single year because Parliament has not done its work to clean up the Criminal Code. As my college the member for St. Albert—Edmonton has noted, it has led to some very bad consequences, notably in the Travis Vader case, where the judge used an inoperative section of the Criminal Code to convict someone. That conviction was then overturned. So these section do have very real consequences.

My contention has always been with section 159, which was brought forward in Bill C-32. Bill C-32 was then swallowed up by Bill C-39. Then Bill C-39 was swallowed up by Bill C-75, which has only just passed the House and now has to clear the Senate. We have no idea how much longer that is going to take. The House is about to rise for the Christmas break. We will be back functioning at the end of January, but Bill C-75 is a gigantic omnibus bill and full of provisions that make it a very contentious bill.

My argument has always been that for such an ambitious legislative agenda, especially if we are going to clean up the Criminal Code as Bill C-51 proposes to do, I contend that the Minister of Justice, had she had a good strategy in dealing with the parliamentary timetable and calendar and how this place actually works, would have bundled up the non-contentious issues in Bill C-39 and Bill C-32, which was morphed into Bill C-75, together with the non-contentious issues of Bill C-51 and made it a stand-alone bill, and we could have done that work.

These are issues that we cannot really argue against because it is a moot point; the Supreme Court has already ruled, so keeping them in the Criminal Code just leads to further confusion. Here we are, three years into the government's mandate, and the Criminal Code has still not been cleaned up to this day. For an ambitious legislative agenda, that leaves a lot to be desired. I heard Michael Spratt, who regularly appears as a witness before the justice committee, describe Bill C-51 as dealing with the lowest of the low-hanging fruit. Therefore, if we had been serious, we could have made some very reasonable progress on that. Be that as it may, we have Bill C-51 before us and we have to go over it.

Before I get into the specific amendments brought forward by the Senate, I think it is worth going over some of the things we are talking about. Among the things Bill C-51 would repeal is the offence of challenging someone to a duel. It used to be illegal to provoke someone to fight a duel or to accept the challenge. We will get rid of that section because it obviously reflects an earlier time in Canada's history. It is the reason why in this place we are two sword lengths apart. Members of parliament in the U.K. used to go into that place with swords on their hips. The bill would also get rid of section 143 dealing with advertizing a reward for the return of stolen property. It would get rid of section 163, dealing with the possession of crime comics, a legacy of a 1948 bill by a member who thought that crime comics negatively influenced kids by encouraging them to commit crimes, and that they were not a part of a good upbringing. The section on blasphemous libel would be dropped. Fraudulently pretending to practise witchcraft is probably one of my favourite ones.

While Bill C-51 is making some much needed changes to sections of the Criminal Code, as I said earlier, we would not be arguing these cases in the House three years into the mandate of the current government if the bills had been bundled up into a single bill, which I am sure could have had royal assent by now.

We did have a very interesting discussion at the justice committee on section 176. When I first read Bill C-51 and it mentioned that this section would be repealed, I read right over it. However, when hearing witnesses at committee, it became quite apparent that section 176 had a lot of very deep meaning to select religious groups. After hearing all of that testimony about the importance of having section 176 remain in the code, I am glad to see that the committee members were able to work together to polish the language to ensure that it would now be applicable to all religious faiths, and not just single out the Christian faith. Now, if someone were to interrupt the religious proceedings of any faith, that would be dealt with appropriately under section 176.

The heart of the matter before us is the Senate amendments to Bill C-51. As I mentioned, it is kind of awkward for a New Democrat to be recognizing the work of the Senate. I value the people who sit as senators. I know there are some very determined people who certainly try to do their best there. My problem has always been with a 21st century democracy like Canada having an unelected and unaccountable upper house. I have to face the electorate for the decisions I make and the words I say in this place, and for what the Senate as a whole does.

I am going to be rejecting the government's motion on Bill C-51, because I agree with the substance of what the Senate was attempting to do in Bill C-51. It very much reflects some of the testimony that I heard at committee, and I have also reviewed some of the Senate Hansard transcripts of the debates it had on Bill C-51. While it is true that the amendments were not passed at the legal and constitutional affairs committee of the Senate, they were passed at the third reading stage. When we see the transcripts, we can see that the hon. senators in the other place were trying to codify what they saw as some missing aspects of the bill.

If we look at the heart of the matter, it comes down to the Supreme Court decision in R. v. J.A. The Supreme Court ruling reads:

When the complainant loses consciousness, she loses the ability to either oppose or consent to the sexual activity that occurs. Finding that such a person is consenting would effectively negate the right of the complainant to change her mind at any point in the sexual encounter.

In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it would be inappropriate for this Court to carve out exceptions to the concept of consent when doing so would undermine Parliament’s choice. This concept of consent produces just results in the vast majority of cases and has proved to be of great value in combating stereotypes that have historically existed. In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary.

The court in a sense is recognizing the very important part that Parliament plays in this. One thing I have learned during my time as our party's justice critic is that, in looking at the Criminal Code, ultimately, we in this place are responsible for drafting and implementing the law and it comes down to the courts to interpret it. There is this kind of back and forth. When the justice aspect of the government and the parliamentary part of it work in tandem like that, we hopefully arrive at a place where the law is reflective of today's society.

However, it is not only the J.A. decision that we should be looking at. On October 30, which coincidentally was the very same day that the Senate sent the bill back to the House, there was a decision in the Alberta Court of Appeal, R. v. W.L.S. In that particular case, an acquittal on sexual assault charges was overturned by the Court of Appeal. The Court of Appeal acknowledged in its decision that the complainant was incapable of consenting.

Senator Kim Pate provided us with a message. She said:

In regard to our discussions concerning Bill C-51, I write to draw your attention to the recent case of the Alberta Court of Appeal, concerning the law of incapacity to consent to sexual activity. Please find a copy of this case attached.

The Alberta Court of Appeal heard this case on October 30, the same day the Senate passed the amendments to Bill C-51. The court overturned the trial decision on the grounds that the trial judge had wrongly held that nothing short of unconsciousness was sufficient to establish incapacity. While this erroneous understanding of the law was rectified on appeal in this case, as we know, the vast majority of cases are never appealed. The trial judge's decision demonstrates the very error, fed by harmful stereotypes about victims of sexual assault, that many of us are concerned the original words of Bill C-51 risks encouraging.

Senator Kim Pate is basically acknowledging that there is a role for Parliament to play in providing a more explicit definition of consent, what it means and when consent is not given. While I am certainly one of those people who trusts in the power and ability of judges to make decisions, the judicial discretion, I align that thinking more with the decisions that they make and not in the interpretation of the Criminal Code. There is room in some parts of the Criminal Code to be very specific so that there is no judicial discretion, and that we are very clear on what consent means and what it does not mean.

Turning to the actual Senate amendments, they would be adding specificity in both clause 10 and clause 19. Basically, those particular aspects want to ensure:

(b) the complainant is incapable of consenting to the activity in question for any reason, including, but not limited to, the fact that they are

(i) unable to understand the nature, 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;

Adding this kind of specificity to the Criminal Code is very much a good thing. In paragraph (b), it says “including, but not limited to”. I think adding that kind of specificity will help with certain cases. From the very interesting Senate deliberations on this subject at third reading, we can see that senators were not very happy with how Bill C-51 left a bit of a hole.

We have made much of the witness testimony at the Standing Committee on Justice and Human Rights. Professor Janine Benedet did look at this particular aspect of the Criminal Code. As I said in my exchange with the member for Mount Royal, one thing she stated was:

Any clarification we can give will be beneficial. It doesn't have to be an exhaustive list, but there has to be the idea that consent has to be informed, that you have to have the ability to understand that you can refuse—because some individuals with intellectual disabilities do not know they can say no to sexual activity—and that it has to be your actual agreement. Those are all things that can be read into the code as it's currently written, but sometimes are not fully realized in the cases we see.

Adding that specific part would be very much in line with what Professor Benedet was saying at the committee. That is why I will be rejecting the government's motion and voting in favour of the Senate amendments.

Turning to the Senate deliberations on this bill, in some of that debate it was said that R. v. J.A. outlines the requirement for active consent. However, the Senate very much found that without the specific amendment by Senator Pate to Bill C-51, we would have failed to capture the scope of consent laid out for us by the Supreme Court, supported by experts in the law of sexual assault in Canada.

Feminist experts in sexual assault law have advised that the inclusion of the word “unconscious” risks creating a false threshold for the capacity to consent. There were also deliberations that the current wording in Bill C-51 poses a serious risk that women who are intoxicated would be blamed if they are sexually assaulted. They would not be protected by this bill.

Further, some have noted that the weakness is in 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 clause 10 and clause 19 of the bill is clear enough.

I see my time is running out, but I will end with some of the really scary statistics we face as a country. Statistics Canada estimates that some 636,000 self-reported sexual assaults took place in Canada in 2014. Shockingly, it also estimates that as few as one in 20 were actually reported to police. Those are statistics which should give us great pause and lead us to ask ourselves what more we could be doing. The Senate amendments are very much in faith with trying to keep that.

I would also note that this is probably one of the last opportunities I will have to rise in this particular chamber to give a speech. I want to acknowledge the history of this place and what an honour it has been for me, in my short three years here, to have served in this House of Commons chamber. I know we will be going forward to West Block, and an admirable job has been done there.

I finish by wishing all my colleagues a merry Christmas. I hope they have a fantastic holiday season with friends and family, and that we come back in 2019 refreshed and ready to do our work on behalf of Canadians.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

December 10th, 2018 / 12:25 p.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Madam Speaker, the hon. minister alluded to the repeal of section 159 of the Criminal Code. Section 159 is another unconstitutional section relating to anal intercourse. More than two years ago, with a whole lot of fanfare, the government introduced Bill C-32 to repeal section 159. Bill C-32 was such a priority of the government that the bill remains stuck at first reading.

The Liberals then, as the member for Cowichan—Malahat—Langford pointed out, rolled Bill C-32 into Bill C-39, which would remove, in addition to section 159, other unconstitutional sections. Bill C-39 is such a priority of the government that after being introduced on March 8, 2017, it remains stuck at first reading and two years later, section 159, an unconstitutional section, remains there in black and white in the Criminal Code. Can the minister explain this?

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

December 10th, 2018 / 12:15 p.m.
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NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Madam Speaker, I am not satisfied with the minister's previous response to my question. We can look at the legislative track record of the Minister of Justice, starting with Bill C-28, the victim surcharge bill, which was rolled into Bill C-75. We had Bill C-32, which was rolled into Bill C-39, which was then rolled into Bill C-75, and now we have Bill C-51.

I talked about tactics. Time allocation is a tactic. It would have been an unnecessary one if we could have dealt with the substantive provisions in all those bills, but instead, the government's strategy was to basically string us along with the introduction of these justice bills that would clean up the inoperative provisions of the Criminal Code and then leave them in some kind of purgatory stuck at first reading.

When the Minister of Justice took office, everyone knew that there were zombie provisions in the Criminal Code that had to be cleaned up. This has been a topic of discussion for decades, and every year, the Criminal Code is faithfully reproduced with all of these mistakes.

Again, why did the Minister of Justice, in 2016, the first year of her mandate, not take the provisions in Bill C-32 and Bill C-39 and elements of Bill C-51 and package them in one bill? We could have had that passed, done and dusted by now, but instead, they were rolled up with contentious provisions, and they are still being debated. Bill C-75 has only just been sent to the Senate. Who knows how long it is going to take there?

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

December 10th, 2018 / 12:05 p.m.
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Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

Madam Speaker, I am happy to speak to the comments and questions from my colleague across the way with respect to the then Bill C-39, which is now incorporated in the broad criminal justice reforms contained within Bill C-75.

I am very pleased that Bill C-75 has passed third reading in this place and is in the other place for debate and discussion. We look forward to its deliberations with respect to these very important and bold reforms presented in Bill C-75. I would look to all members in the House to assist in encouraging the members in the other place to proceed in an expeditious fashion so that the provisions the member opposite references will be passed as part of Bill C-75 and we can remove those provisions from the Criminal Code.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

December 10th, 2018 / 12:05 p.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Madam Speaker, it is encouraging that in Bill C-51 there are provisions that would remove sections of the Criminal Code that have been found to be unconstitutional by appellate courts. However, following up on the question put by my friend for Cowichan—Malahat—Langford, it is disappointing that the government still has not removed unconstitutional sections, sections the Supreme Court of Canada has found to be of no force or effect.

It has now been over two years since Travis Vader had his conviction on two counts of second degree murder overturned as a result of the application of an inoperative section. Two years later, Bill C-39 remains stuck at first reading. The only thing preventing inoperative sections of the Criminal Code from being removed is the government. Can the minister explain to the McCann family why, after two years, they are still waiting for section 230 and other inoperative sections of the Criminal Code to be removed?

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

December 10th, 2018 / 12:05 p.m.
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Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

Madam Speaker, my colleague across the way sat on the justice and human rights committee, which has debated many justice bills.

As for the member's characterization of parliamentary tactics, the only parliamentary tactic I employ and that our government employs is to work as co-operatively as we can with all members in the House to have informed debate about particular bills the government puts forward, seeking feedback from hon. members in this place and the other place and valuing the work done at committee.

With respect to all the justice bills that have been advanced, we have been working expeditiously to move forward with Bill C-39, Bill C-51 and Bill C-75 so that we clean up the so-called zombie provisions and the unconstitutional provisions. I would look to all hon. colleagues in this place to work with us to make sure that these pieces of legislation move forward as expeditiously as possible.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

December 10th, 2018 / 12:05 p.m.
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NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Madam Speaker, I have found myself, as a New Democrat, in the awkward position of agreeing with the work the Senate has done. I was one of those who voted in favour of Bill C-51, because I agree with the focus of the bill and the provisions in it. Ultimately, what the Senate has attempted to do reflects very much what I attempted to do at the Standing Committee on Justice and Human Rights.

My issue with the government's approach and its parliamentary tactics comes from the fact that for the various justice bills, Bill C-32, Bill C-39, Bill C-51 and Bill C-75, the Minister of Justice could very well have packaged many of the inoperative provisions of the Criminal Code in Bill C-39 and Bill C-51 in one bill that would have passed through Parliament relatively quickly. Instead, she packaged in some other provisions that have been more contentious, and therefore, has forced the government to use extraordinary measures like time allocation.

With all the evidence from legal experts over the years who have talked about the inoperative provisions of the Criminal Code, why could the Minister of Justice not have packaged the provisions in Bill C-39 and Bill C-51, which would not have had any argument, in one bill? Instead, three years into the government's mandate, we find ourselves still deliberating on these provisions, and nothing has changed.

Criminal CodeGovernment Orders

December 6th, 2018 / 12:35 p.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Mr. Speaker, I thank the member for Coquitlam—Port Coquitlam, whom I enjoy serving with on the justice committee. I share his concerns about the Senate amendments. Therefore, I want to ask him a question about what he initially spoke of, which was the zombie sections of the Criminal Code that have been found to be unconstitutional.

He cited the Vader case, involving the murder of Lyle and Marie McCann of St. Albert. It was our committee, the justice committee, that wrote to the minister all the way back in October 2016, calling on the minister to move forward with legislation to remove unconstitutional sections. The minister did move ahead with Bill C-39, which is stuck at first reading. The government then put it into Bill C-75. However, that is going to take months to go through the Senate. Why did the government not just get it done and pass Bill C-39? It does not seem to make any sense to me. Can the hon. member comment?

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December 6th, 2018 / 11:55 a.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Madam Speaker, I spoke to the McCann family about the fact that Bill C-39 was moved into Bill C-75 and quite frankly, they were appalled. They were appalled that the government would include Bill C-39 in a bill that would, among other things, water down sentences for impaired drivers and for kidnapping of a minor and, speaking of sexual assault, for administering a date-rape drug. I voted against Bill C-75. If the McCann family were members of Parliament and could have voted, they would have voted against it too.

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December 6th, 2018 / 11:50 a.m.
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Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.

Arif Virani

Madam Speaker, to characterize what is in the bill as defence disclosure is inappropriate and incorrect. I refer the member opposite to the Darrach decision, paragraph 65 of the Supreme Court jurisprudence, which he is fond of quoting.

The member talked at length about the situation with Travis Vader and the McCann family. This is an important issue that affected his community directly and I appreciate his submissions in that regard. However, when the provisions in Bill C-39 that would have eliminated those unconstitutional provisions from the Criminal Code were moved into Bill C-75 and that legislative vehicle is being used to eliminate the very provisions he is talking about, I ask the member why he would have voted against that bill at third reading in this chamber last week?

Criminal CodeGovernment Orders

December 6th, 2018 / 11:05 a.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Madam Speaker, I rise to speak to Bill C-51, a massive omnibus bill. Perhaps it is not surprising that when we are talking about a massive omnibus bill, there are some positive aspects in it and other aspects with which I and my colleagues on this side of the House have some concerns.

One of the positives of Bill C-51 is that it seeks to remove sections of the Criminal Code that have been found to be unconstitutional by appellate courts. This is a welcomed effort to help clean up the Criminal Code. Likewise, it seeks to remove sections of the Criminal Code that are obsolete or redundant, which again is a welcome effort to clean up the Criminal Code.

As I alluded to in the question that I posed to the minister a few moments ago, while the government is moving forward with the removal of obsolete sections and sections of the Criminal Code that have been found unconstitutional by appellate courts, it is disappointing that the government has still failed to move forward with the removal of sections of the Criminal Code that have been found unconstitutional by the Supreme Court.

The minister is quite right that Bill C-75 does include the removal of those unconstitutional sections. However, as I pointed out to the minister, it was all the way back in March 2017 that the government introduced Bill C-39.

Bill C-39 is a very straightforward bill. It is not controversial. There is support on all sides of the House for the passage of Bill C-39, and yet for whatever reason, after the minister introduced the bill on March 8, 2017, it remains stuck at first reading. It is stuck at first reading with really no explanation. This is an issue that I have spoken to on a number of occasions because it really hits home in the community of St. Albert which I am very fortunate to represent.

When we talk about unconstitutional sections of the Criminal Code, zombie sections, and their removal from the Criminal Code, perhaps it sounds a little abstract and academic. However, the consequences of failing to keep the Criminal Code up to date can be very serious.

We saw that in the case of Travis Vader, who was charged and convicted of two counts of second-degree murder of Lyle and Marie McCann, an elderly couple from St. Albert. They were murdered in 2010. It was a very complicated case. The family waited a number of years for justice to arrive. Just at the moment they thought justice had arrived, they found out that, in fact, it had not because the trial judge applied a section of the Criminal Code that is inoperative as the basis for convicting Travis Vader of two counts of second-degree murder. I am referring to section 230 of the Criminal Code, a section that had been found to be unconstitutional going back to 1990, and yet there it was in the Criminal Code.

That prompted the justice committee, on which I serve as a member, to write a letter to the minister calling on her to introduce legislation to repeal these unconstitutional sections. It was a letter that was sent by the chair of the committee, the hon. member for Mount Royal, all the way back in October 2016.

Following that, I stood with the McCann family in December 2016, when we had a press conference in St. Albert to urge the minister to move forward with legislation. Again, to the minister's credit, she did move forward in a relatively quick fashion because the bill was introduced, as I mentioned, on March 8, 2017. Then nothing happened. It stalled.

I have been in touch with the McCann family. They just cannot understand why, on something as simple as removing unconstitutional sections of the Criminal Code, sections that are of no force or effect yet remain there in black and white purporting on their face to represent the law, remain in the Criminal Code.

The minister has not been able to explain why the government could not pass Bill C-39, why that bill is stuck at first reading, why it needed to be copied and pasted into Bill C-75, an omnibus bill. Bill C-75 is a massive bill which, frankly, is controversial in many respects. It saw a number of amendments at the justice committee and is, undoubtedly, going to receive a whole lot of scrutiny when it goes to the Senate. It will likely be months and months and months before the Senate is able to address Bill C-75. Meanwhile, those unconstitutional sections of the Criminal Code are going to be there.

While the Vader case is one case, it is not the only case that a section of the Criminal Code, an inoperative section, has been applied with real and significant consequences to the administration of justice. There was a case in British Columbia back in 2005 in which the trial judge in a murder trial left a copy of a section of the Criminal Code that was inoperative with the jurors. On that basis, the conviction of the accused was appealed. The British Columbia Court of Appeal ultimately upheld the conviction but only because of the fact that the trial judge's instructions to the jury were deemed impeccable by the Court of Appeal.

That is another case, so it is not just the McCann case. We have seen other cases, including the case in British Columbia.

To say that we will just get around to this whenever is not an excuse. It opens the door to another Vader situation, and if that happens, the government will be to blame. It certainly was not to blame for what happened in the Vader case but once that became apparent about the serious consequences that can come through inaction, the fact that it has been now two years, I think, just does not hold water and there really is no excuse. However, it does speak more broadly to the fact that the government, on the big things and the small things, just cannot get it done time and time again.

Another aspect of Bill C-51 when we are talking about inoperative sections of the Criminal Code was the unfortunate decision by the government initially to include section 176 of the Criminal Code among the sections that the government deemed to be obsolete. Section 176 is hardly redundant. It is hardly obsolete. It certainly is not unconstitutional.

Indeed, section 176 is the only section of the Criminal Code to protect clergy from having their services disrupted, something that is very serious and goes to the heart of religious freedom. The government turned a blind eye, the Conservatives called them on it and, as a result, tens of thousands of Canadians spoke out, telling the government that it was wrong.

To the government's credit, it backed down at the justice committee a year ago and agreed to remove the repeal of section 176, and rightfully so. However, not long after backing down on the removal of section 176, the government, in Bill C-75, hybridized section 176, so that instead of its being treated as a solely indictable offence, it would potentially be treated as a summary conviction offence.

While this specific change does not have a significant impact on the maximum sentence, unlike some of the other offences the government is hybridizing, it sends a message, and I would submit that it sends exactly the wrong message. It sends the message that disrupting a religious service, infringing on the freedom of religion of Canadians, not just any freedom but a fundamental freedom in our Charter of Rights and Freedoms, is not that serious. That is just wrong and why Conservatives have opposed it and stood up in fighting Bill C-75.

A lot of Bill C-51 relates to changes to sexual assault laws in Canada. As I indicated when I rose to ask the minister a question, many aspects of this bill include welcome changes to the Criminal Code with respect to sexual assault laws. Among the positives in Bill C-51 is that it would codify the Ewanchuk decision. That means it would make it absolutely clear that the defence of mistaken belief on the basis of a purported misapprehension or misunderstanding of the law cannot be advanced. It is a positive to have clarity on that and to have the Ewanchuk decision codified.

Another positive change the government is making with respect to sexual assault provisions is the codification of the J.A. decision. The J.A. decision makes clear that in no circumstances can a complainant be deemed to be giving their consent while unconscious. By way of background, in J.A., the accused said that no sexual assault took place on the basis that the unconscious complainant had consented to both being made unconscious and the sexual activity. That argument was successful before the Ontario Court of Appeal.

Fortunately, the Supreme Court overturned the decision of the Ontario Court of Appeal, holding that for there to be consent, that consent must at all times be contemporaneous; that consent must occur at all times at all stages of the sexual activity. Therefore, Bill C-51 would amend section 273 of the Criminal Code, which contains a list of non-exhaustive factors when consent is deemed not to have occurred. More particularly, Bill C-51 would amend that section to specifically include the word “unconscious” to make it crystal clear that in no circumstances will consent be deemed when the complainant is unconscious.

As the minister went into some detail about in her speech, there were some concerns raised by a number of witnesses, both before the justice committee when we heard from them about a year ago, as well as from witnesses who appeared before the Senate legal and constitutional affairs committee. Essentially, their argument was that codifying R. v. J.A. really would not do anything, that the whole issue of consciousness has never really been an issue, and that prior to R. v. J.A. the courts were never really finding there was consent when complainants were unconscious. In that regard, the concern was that by adding the word “unconscious”, an unintended bright line would be established whereby arguments would be put forward that consciousness or lack of consciousness would be a bright line in determining the issue of consent. That was the argument.

That was part of the reason why Senator Pate put forward her amendments, her concern being that there could be some added confusion in those cases where the person was not unconscious, but, for example, highly intoxicated. Unfortunately, while the Senate amendments may have been well intentioned, they would simply cause more problems and solve a problem that really does not exist. They would establish untested factors, which would be litigated, dealing exclusively with the mental state of the complainant. We know from some of the decisions, including the Al-Rawi decision, that it was not the mental state of the complainant that resulted in the acquittal of the accused, but rather the failure of the trial judge to consider some of the other evidence. Therefore, again, the amendments are problematic.

In terms of the language in Bill C-51, it is sufficiently clear, because it speaks of unconsciousness, but then it speaks to all other circumstances outside of that, so the language is broad. On that basis, I am not convinced that it would create the bright line that was said to be a concern by Senator Pate and by some of the other witnesses who appeared before the justice committee. As for whether or not it should be codified, I do think it is helpful. It does provide some additional clarity, and so on that basis I do support that aspect of Bill C-51.

Another area where I agree with the government is in respect to the applicability of the twin myths under section 276. Section 276 of the Criminal Code prohibits using evidence of a complainant's sexual activity for the purpose of advancing two discriminatory myths, namely that the sexual activity of the complainant makes the complainant less believable or most likely to consent. What Bill C-51 clarifies is that in no circumstances may evidence be tendered for the purpose of advancing those twin myths. That is a step in the right direction.

However, one of the areas I do have some questions about with respect to section 276 is an amendment proposed in the bill related to the definition of sexual activity. In that regard, Bill C-51 seeks to amend sexual activity to include “any communication made for a sexual purpose or whose content is of a sexual nature.” There is some concern that the definition may be overly broad. It is understandable why in this digital age, for the purpose of section 276, it makes sense to include communications in the form of text messages with photos or videos, etc. However, there was some concern expressed by the witnesses that it would be broad enough to encompass communications that were immediately before or after the alleged assault, which could be highly relevant in properly determining the case. Communications that might provide some context as to what in fact took place might no longer be admissible as a result of the wording of that section. Therefore, while I support the objective of the section, and the intent of the amendment is a good one, I do have some concerns about its breadth and how it might impact the types of cases I referenced.

On the whole, Bill C-51 is a good bill, but my biggest concern is with respect to the defence disclosure requirements. The defence disclosure requirements require the defence to bring forward an application in order to admit any record relating to the complainant. That application must be brought at least 60 days before trial. What is wrong with that? There are a number of problems I see with it. First, the definition is extremely broad. The wording is “no record relating to the complainant”. To be clear about what that means and what we are talking about, it is not about a record of the complainant involving their sexual activity. That is captured in section 276 of the Criminal Code, relating to the twin myths I just spoke of.

We are not talking about records for which there would be a reasonable expectation of privacy, such as health, therapeutic or educational records involving the complainant. They are already addressed in section 278.1 of the Criminal Code. What we are talking about is any record relating to the complainant. What type of record might that encompass? It could encompass just about anything, regardless of whether there was any connection to a reasonable privacy interest on the part of a complainant. We are talking about joint records. We are talking about Crown records. We are talking about records that might have been obtained by way of a third party application. So broad is the wording of this amendment, it could arguably relate to a record of the accused to the degree that the record was a basis upon which to cross-examine a complainant and therefore would relate to the complainant.

Why is that a problem when we are talking about all these records? We should just think about that for a minute. Let us think about it from a practical standpoint. Put aside issues of trial fairness. Put aside issues of the presumption of innocence. Think about it from a practical standpoint, the mechanics of how this is going to work. From that standpoint, there are very serious concerns.

If we are talking about any records, in most cases we could be talking about thousands of records the defence counsel would have to comb through and bring an application for, and a court would have to go through each record to determine its admissibility, not, by the way, on the basis of relevance and materiality but on the basis of eight factors provided for in Bill C-51, eight factors that have not been tested and have obviously not, to date, been litigated, because the bill has not been passed.

That would create a lot of uncertainty. It would create a lot of new litigation, and it would create the potential for real delay in our already backlogged courts. That would be an issue at the best of times, but it would particularly be an issue in light of the Jordan decision, where we have cases that are being thrown out due to delay, yet here is something that is likely to have a very significant impact on adding to delays. That is just if the defence counsel brings an application 60 days before the trial.

Again, thinking about how this might play out, there might be a record that does not seem to be that relevant, that does not seem to really assist the defence or relate to needing to be tendered as evidence, but an issue might arise at trial, and suddenly that record that did not seem very significant becomes extremely significant. Then what would we have? We would have a mid-trial application, with the possibility of a mid-trial adjournment, contributing to even more delay. That would slow things down. It would create delay, but for what purpose, what objective?

There are some who say that it would be consistent with the Mills decision of the Supreme Court in that this would guard against fishing expeditions on the part of an accused against a complainant, except for the fact that we are talking about records already in the control and possession of the accused. Therefore, there would be no fishing expedition to be had, because they would already be in the control of the accused. That argument that has been put forward does not hold a lot of water.

Another argument put forward is that it would protect the privacy of a complainant. A great deal of sensitivity is required to do what is possible to protect the privacy of complainants. I wholeheartedly agree with that. There is no question that victims are victimized when they go through the assault and can be victimized again as they go through the trial and the court process. There is no question that efforts need to be made to protect victims. However, again, we are talking about any record, regardless of whether the victim had a reasonable privacy interest and regardless of the nature of the document. As long as it related to the complainant in some way, one would need to go through this process. To the degree that it would protect complainants and the privacy of complainants, it would add a lot more than that due to the very broad wording of that section. That is a concern.

While it seems to go a lot further than necessary to protect a complainant, it would potentially have very significant consequences for the ability of an accused person to advance a defence, and ultimately, for the court to fulfill its role as a proof finder. It would significantly impact upon the presumption of innocence. It would significantly impact upon an accused person's right to make full answer and defence. When we speak about the right to make full answer and defence and how important it is, I cite the Supreme Court in R. v. La, wherein the court stated, at paragraph 43:

The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted.

How would this provision potentially impact the ability of an accused to make full answer and defence? In one significant way, it would impede the ability of an accused person to cross-examine a complainant. When we talk about cross-examination, I quote the Supreme Court again on the important role of proper, thorough cross-examination in getting to the truth. The Supreme Court said, in the Lyttle decision, that “without significant and unwarranted restraint” it is “an indispensable ally in the search for the truth.”

Cross-examination is an important tool to guard against wrongful convictions. One might ask how this disclosure would impact upon the ability of an accused to make a full answer and defence and undertake a thorough cross-examination of a complainant. It would in one very simple way. It would create a positive disclosure requirement ahead of a trial. This bill would mark the first time in the Criminal Code that there would be a disclosure requirement for an accused person to provide to the Crown in advance of a trial, aside from a handful of narrow exceptions that have been well accepted and are not in the least bit controversial. The bill would require not only that evidence be disclosed to the Crown before a trial but that the evidence be disclosed to a complainant. Not only that, under Bill C-51, a complainant would have the right to counsel at that application. Therefore, instead of two parties at the application, the Crown and the defence, there would now be three parties, the Crown, the defence and the complainant.

Let us think about what that would mean with respect to the trial. The defence would have records in its control. It would now be tendering them and having to argue why they were relevant and should be admitted. That would provide a whole lot of insight into potential lines of cross-examination and the strategy of the defence. That could have a huge impact when it came to trial.

There is no question that the vast majority of complainants are telling the truth, but not all complainants are telling the truth. I want to emphasize again that the vast majority are, but not every single complainant is. In those rare cases when a complainant was not telling the truth, this positive disclosure requirement would open the door to tipping off someone who was not telling the truth before it got to trial to understand the defence strategy and the potential lines of cross-examination. It would certainly give someone who was not telling the truth a huge advantage going into the trial. The person could change his or her story or address perceived shortcomings in the case against the accused.

It gets even more complicated than that because of what I referred to with respect to who the parties to the application would be, because it would not just be the Crown and the defence. It would also be the complainant's lawyer. The complainant would have the right to be represented through his or her lawyer.

However, if it was, for example, just the Crown that was a party to the application, and we did have a situation where a complainant was maybe not telling the whole truth on issues around preparation leading up to that application, those questions could be asked at the trial of the complainant, but because the complainant would be represented by counsel, suddenly those questions become subject to solicitor-client privilege. Again, it is another impediment to asking questions, to cross-examining a complainant.

Make no mistake, I fully support every step that is necessary to protect complainants, having regard for the sensitivity of sexual assault and the profound toll it can have on victims. However, the issue in this particular instance is that we are talking about something that is so broad, so unwieldy, that while the intention may have been a good one, it misses the mark when it comes to fully protecting complainants all the while doing much to undermine the ability of an accused person to make full answer and defence.

When I spoke previously on Bill C-51, I quoted Madam Justice Molloy of the Ontario Superior Court, which I think bears reading into the record again. Madam Justice Molloy, in the Nyznik decision in acquitting three individuals of sexual assault, stated that:

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. That is antithetical to the fundamental principles of justice enshrined in our Constitution and the values underlying our free and democratic society.

Bill C-51, with respect to the defence disclosure requirements, does not strike the right balance of protecting the victim while guarding against the potential for wrongful convictions. Therefore, I flag that issue as a serious concern that I have. However, on the whole, there are positive aspects to the bill that we are happy to support.

Criminal CodeGovernment Orders

December 6th, 2018 / 11 a.m.
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Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

Madam Speaker, I am not going to speculate as to whether or not a previous bill, Bill C-39, could have been passed by unanimous consent.

What I am confident in and very pleased with is that Bill C-75 includes the former Bill C-39 to remove these zombie laws that my friend has spoken about. It is contained within Bill C-75, which has passed third reading in this House and is on its way to the other place. I look forward to the debate and discussion in the other place on this important piece of criminal justice reform and to the speedy passage of Bill C-75 so that we can, in fact, remove the zombie provisions that are contained within the Criminal Code.