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

Subscribe to a feed (what's a feed?) of speeches and votes in the House related to Bill C-39.

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

June 15th, 2017 / 8:20 p.m.
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NDP

Rachel Blaney NDP North Island—Powell River, BC

Mr. Speaker, it is my pleasure today to be splitting my time with the member for Kootenay—Columbia.

Today I rise in the House to talk about a justice housecleaning bill. Our courts and justice system are facing an unprecedented crisis. Before moving to the specifics of the bill, I feel obliged to address this issue, because it is through justice that fairness is administered. I say this because I have no difficulty believing that recent events have had victims cast serious doubt on the fairness of the Canadian justice system.

Last July the Jordan ruling unleashed a flurry of uncertainty, confusion, sheer indignation, and outrage. The ramifications are still being being felt today. In this ruling, the court said that Jordan's charter rights had been violated due to an unreasonable 49-month wait for a trial. The drug charges against him were stayed. Since then, this confusion has led to hundreds, if not thousands, of criminal cases being stopped simply because they took too long to come to trial. We have seen at least two murderers go free. The decisions have widespread implications for victims and their families. These people have had experiences for which they will never get the chance to see justice done.

This breach of public safety was caused by a number of factors. Recently, a Senate report urged the federal justice minister to take the lead in changing the Criminal Code to reduce procedural and other barriers to a speedy trial and to fill judicial vacancies as soon as judges retire. This is perhaps the most important step the government could take.

It is not normal for criminal cases to take between five to 10 times longer to be tried in Canada than in the U.K., Australia, and New Zealand. Worse still, the delays are getting longer and the legal costs are going up even as the overall crime rates are dropping. It is time for the minister to get serious about filling judicial vacancies. There is an almost record-breaking number of vacancies on the superior courts, 53 at time of this speech. We also need the Liberals to provide proper resources for support staff and courtrooms. This is so important. The national judicial vacancy rate has more than tripled since this government took office. The lack of judges has increased access problems and court delays that were already posing a threat to a fair process and public safety.

There is no reason intelligent appointments cannot be made in an open way while Ottawa works on a more formalized process. Good government, public safety, and the rights of those caught up in the justice system depend on it. This brings me to the current bill we are debating. The problems addressed are important, but they are comparatively piecemeal changes to the Criminal Code, knowing that the justice system is in a full-blown crisis.

Let me be very clear. We should be doing this exercise. Updating the Criminal Code will lead to less mistakes and a clearer comprehension of the text. Many of these provisions are like time capsules, chronicling other times, but they certainly do not belong in our Criminal Code any longer. These are often referred to as zombie provisions. Legal scholars have been calling for a very long time for them to be removed from the Criminal Code, and it is past time for Parliament to act.

However, this housecleaning bill is not the government's first. In fact, it is the third. Bills C-32 and C-39 precede it. The trouble is that they are still in second reading with very little movement, leaving many Canadians wondering whether they are a priority. Is this bill even going to be a priority?

I am encouraged by elements in the bill. The important sections that clarify the sexual assault laws would have significant benefits for survivors and work toward preventing sexual assault. That is so important in this country. However, there needs to be legal aid funding that allows for victims to exercise their rights. The bill would clarify that an unconscious person is incapable of consent. It expands the rape shield provisions to expressly include communications of a sexual nature or communications for a sexual purpose.

The code's rape shield provisions already provide that evidence of a complainant's past sexual history cannot be used to support an inference that the complainant was more likely to have consented to the sexual activity at issue or that the complainant is less worthy of belief. It would create a regime to determine whether an accused could introduce a complainant's private records at trial that the accused had in his or her possession. This adds to the existing regime governing an accused's ability to obtain a complainant's private records, such as diaries, medical records, psychological counselling records, and school records, when those records are in the hands of a third party.

The bill provides that a complainant has a right to legal representation in rape shield proceedings.

There has been criticism from legal and feminist groups that have wondered how effective the measures of having a lawyer would be if the complainants cannot afford representation. Legal aid funding needs to be provided, as there is currently simply not enough.

As Michael Spratt, vice president of the Defence Counsel Association of Ottawa, said when speaking on the bill, this “is another half-hearted attempt to reform the justice system by grabbing the lowest of the low hanging fruit.” The crisis that is under way is a manifestation of the need for deeper structural changes within our judicial system.

This is one step, but I hope to see some more positive steps to deal with the issues that are greatly inhibiting our legal system in the country. I most definitely want to see more resources so the victims of any kind of sexual assault get the support they need and have the funding to do so.

Criminal CodeGovernment Orders

June 15th, 2017 / 4:35 p.m.
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Eglinton—Lawrence Ontario

Liberal

Marco Mendicino LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, it is with great pleasure that I take the floor to discuss Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act. This legislation reflects our government's deep commitment to ensuring that our criminal justice system protects Canadians, holds offenders to account, upholds the Charter of Rights and Freedoms, and shows the utmost compassion for victims.

By amending the Criminal Code and related legislation, we can contribute to a fairer, clearer, and more accessible criminal justice system. We are committed to changes that will have a positive and lasting impact on victims' experiences in the criminal justice system and that affirm the charter rights of all Canadians. This bill would do just that. These changes reflect our government's deep respect for the charter. The bill also represents another deliverable flowing from the ongoing review of the criminal justice system that the Minister of Justice has been mandated by the Prime Minister to carry out.

Broadly speaking, the bill's proposals fall into four categories, the majority of which involve amendments to the Criminal Code. First, there are amendments to clarify and strengthen the law of sexual assault. Second, there are amendments to remove or amend provisions that have been found unconstitutional by the courts, building on the amendments set out in Bill C-39, which the Minister of Justice introduced on March 8. Third, a number of obsolete or duplicative offences would be removed. Finally, the bill would amend the Department of Justice Act to create a new statutory duty for the minister of justice to table a charter statement for every government bill, setting out any potential effects a bill may have on the rights and freedoms of Canadians.

Let me begin by addressing the proposed sexual assault amendments. As is well known, in the past few years we have seen a dramatic increase in public interest in and concerns about sexual assault and how the criminal justice system responds to it. The Minister of Justice and her department continue to collaborate with partners and stakeholders to learn, share, and discuss a broad range of issues and ideas for improving how we, as a society, address the ongoing problem of sexual assault. One of the most important roles of the federal government is to ensure that we have the best possible legal framework in place to ensure our communities are protected and victims are treated with respect.

The measures proposed in this legislation today are one step in this process. They seek to ensure that the law is as clear as it can be, in order to minimize the possibility of the law being misunderstood or applied improperly. The bill seeks to amend the Criminal Code to clarify certain circumstances where consent is not obtained and where the defence of mistaken belief in consent is not available to the accused. It would also introduce stricter rules for the admissibility of complainants' prior sexual history, as well as their private records. In addition, the bill would provide that the complainant has standing and is entitled to be represented by legal counsel during rape shield proceedings.

The Criminal Code already clearly defines consent as voluntary agreement to the sexual activity in question. It also sets out a list of circumstances when consent has not been obtained as a matter of law. For example, the Criminal Code currently states that no consent is obtained where the complainant is incapable of consenting. One of the proposed amendments to the bill would make it clear that there is no consent when the complainant is unconscious, as set out by the Supreme Court of Canada decision in J.A. As the court reminded us there, consent must be contemporaneous or received at the time of the sexual activity in question. To most of us, it seems obvious that an unconscious person cannot consent to sexual activity. Nevertheless, providing for this additional clarity in the Criminal Code promises greater protection for victims of sexual assault.

While many have welcomed these amendments, some have also expressed concern. Specifically, some have noted that this amendment may pose a risk of being interpreted in a way that would disadvantage victims. They argue that codifying the rule that consent cannot be obtained from an unconscious person could lead to defence counsel arguing in court that the law no longer recognizes incapacity to consent short of full unconsciousness, such as when a complainant is extremely intoxicated or only semi-conscious. While our government shares the viewpoint of these critics—that consent must be ongoing and affirmatively given—respectfully, the government does not believe that this is a legitimate concern. Our government agrees entirely that the law should remain clear on this point. Consent cannot be obtained from an unconscious person, and the law also remains that consent cannot be obtained from a person who is conscious but incapable of consenting, for other reasons.

However, this is already clearly reflected in the bill. Unconsciousness is set out in a different subsection from the one that refers to incapacity generally, and new language is proposed to make it abundantly clear that incapacity to consent can be for reasons other than unconsciousness. This demonstrates that the unconsciousness provision is not intended to preclude or replace the many other situations that may be captured by the incapacity provision. Simply put, unconsciousness does not subsume all of the existing circumstances of incapacity to consent. Both would be reflected in the text of the Criminal Code.

The legislation would also amend the defence of mistaken belief in consent. This defence operates where it has been proved as a matter of fact that there was no consent, but the accused asserts that he genuinely, albeit mistakenly, believed that the complainant consented. The law already sets out restrictions on the accused's ability to use this defence. The accused cannot raise the defence if the accused's belief was due to the accused own recklessness, willful blindness, intoxication, or failure to take reasonable steps to confirm consent.

Bill C-51 would amend the law to clarify, in accordance with the Supreme Court of Canada decision in Ewanchuk, that this defence is also not available if the accused's belief is based on a mistake of law. For example, if the accused believed that the complainant consented, even though she was unconscious, or if the accused believed that the complainant's silence or passivity meant that she consented, there would be mistakes of law, and the defence, therefore, would not be available. I believe these changes would help to minimize errors by making the code clearer, more accessible, and easier to apply.

Another amendment concerns the rape shield provisions, which regulate the admissibility of evidence of a complainant's past sexual activity in a manner that balances the complainant's dignity and privacy interests with the fair trial rights of the accused. These provisions were introduced by then minister of justice the Right Hon. Kim Campbell in the early 1990s in order to guard against courts relying on what are known as the twin myths, those being that a complainant's past sexual activity is evidence that she is more likely to have consented to the activity in question, or that she is less worthy of belief.

Bill C-51 would amend the rape shield provisions to clarify that they apply not only to past sexual activity but also to communications made by the complainant that are of a sexual nature or are made for a sexual purpose. Just as it would be inappropriate to infer complainants were more likely to have consented based on their past sexual activities, it is equally inappropriate to find that they are more likely to have consented because of the sexual nature of their past communications. Some courts are already applying the rape shield process to such communications. Bill C-51 would standardize this procedure.

The bill would also fill a gap in the law by introducing a specific procedure for determining the admissibility of private records relating to the complainant, such as private journals or therapeutic records, which are in the possession of the accused. Specifically, if those accused seek to adduce complainants' private records, they must bring an application under the new provisions. As is the case under the existing rape shield provisions, such records would be admissible if the judge determines that they are relevant to an issue at trial and have significant probative value that is not outweighed by the danger of prejudice to the proper administration of justice.

It is worth noting that these changes would implement a recommendation of the Senate Standing Committee on Legal and Constitutional Affairs from its 2012 report on the third party records regime.

Other changes to the sexual assault regime include expressly clarifying that complainants must be informed of their right to be represented by a lawyer in the course of rape shield proceedings, as well as an extension of the notice period associated with such proceedings, to ensure that all parties have adequate time to prepare.

I would like to briefly address some comments that have been made regarding these last two proposals and their impact on charter rights. Our government respects the charter rights of all Canadians, including those accused of crimes. This holds no less true in the context of sexual assault proceedings. We believe that these amendments maintain the fair trial rights of the accused, and at the same time, they recognize the privacy rights of victims. Indeed, the amendments' objectives are largely the same as those that underpin the rape shield provisions, which were found to be charter compliant by the Supreme Court.

More information on the charter compliance of these changes can be seen in the charter statement, which was tabled in this House on June 6.

Ultimately, these important amendments to the law of sexual assault would help ensure that victims are treated with the utmost respect and the compassion they deserve, and that offenders are held to account.

I would now like to address the other Criminal Code amendments proposed in this bill. In keeping with the Minister of Justice's mandate, this diverse set of changes would make the law more relevant, more modern, and more consistent with the charter.

One cluster of amendments involves the repeal of Criminal Code provisions that have been found unconstitutional by appellate courts. For instance, the bill proposes to remove the restriction that prevents sentencing courts from giving enhanced credit to those detained prior to trial because they had breached a condition of bail. This part of the provision was found unconstitutional by the Manitoba Court of Appeal last year in Regina v. Bittern. This amendment would complement the change proposed in Bill C-39 that would remove the restriction on giving enhanced credit to those who were detained due to a previous conviction. This was found unconstitutional last year by the Supreme Court of Canada.

The bill also proposes to remove a variety of evidentiary presumptions that have been found unconstitutional by appellate courts, including presumptions related to gambling offences. Presumptions are shortcuts designed to help the prosecution prove an element of the offence by instead proving a different but related fact. These provisions may sometimes violate the presumption of innocence, which is a fundamental precept of our criminal justice system and one we are committed to upholding.

Another set of amendments would repeal what is known as a “reverse onus”, which refers to placing a burden on the accused to prove a fact. Normally the presumption of innocence places the burden of proof on the crown throughout the trial, and any transfer of that burden of proof to the accused may unjustifiably violate the presumption of innocence. Some reversals can be upheld constitutionally; an example is the reversal of the burden of proof associated with the defence of mental disorder. However, numerous other reverse onuses are likely to violate the rights of Canadians and should therefore be removed from the Criminal Code.

This bill would amend 32 offences that contain the phrase “without lawful excuse, the proof of which lies on him”. The second part of this phrase, “the proof of which lies on him”, is generally interpreted to create a reverse onus such that any time the accused wanted to raise a lawful excuse in defence against a charge, the accused would need to prove it on a balance of probabilities rather than just raise a reasonable doubt.

Our government does not believe that accused persons charged with these offences should be put to the task of challenging the constitutionality of these clauses, which present avoidable charter risks. Forcing people to challenge unconstitutional laws or laws that are likely unconstitutional delays criminal trials and burdens the justice system. This is not in the interests of victims, accused persons, or justice. Instead, our government is committed to continued leadership on proactive criminal justice reform while defending the rule of law.

I want to be clear that these amendments will not negatively impact public safety. These provisions being removed are either already found to be unconstitutional or likely to be found so, and as such they would not be operative in any case.

The bill also proposes to repeal offences that are outdated or otherwise redundant. It would repeal 20 such offences. Many Canadians may not know that the criminal law currently prohibits conduct such as challenging someone to a duel, posting a reward for the return of a stolen item with no questions asked, possessing crime comics, advertising a drug to enhance sexual virility, publishing a blasphemous libel, and fraudulently practising witchcraft.

Canadians are far better served by a Criminal Code that is focused on conduct that actually causes harms or risks causing harms to Canadians and our fundamental values.

Finally, the bill would amend the Department of Justice Act to create a new statutory duty for the Minister of Justice. This duty would require the minister, and future ministers, to table a charter statement for every government bill that is introduced. That statement will set out any potential effects a bill may have on the charter rights and freedoms of Canadians.

The Minister of Justice has already been tabling these statements in relation to bills that she has introduced. The proposed amendment to the Department of Justice Act would formalize this practice and extend it to all government bills. This would complement the existing duty on the Minister of Justice to examine every government bill for inconsistency with the charter.

Going forward, charter statements will identify and highlight key charter rights and freedoms that are engaged by any government bill tabled after this legislation comes in force. They will also set out considerations that support the justification of any limits that a bill may have on a charter right or freedom.

That said, charter statements are not the same as the legal advice provided by a minister of justice or his or her officials during the course of a bill's development. That advice will remain confidential and protected by solicitor-client privilege.

Rather, charter statements are intended to provide Parliament and the public with legal information about the charter implications of proposed legislation. They are meant to flag key charter issues and to be a resource to Parliament and the public for the purposes of enriching debate.

This initiative is motivated by the Minister of Justice's commitment to openness and transparency and is intended to further the commitment in relation to one of our government's core responsibilities: enacting legislation that respects the Constitution, including the rights and freedoms guaranteed by the charter.

This amendment is particularly timely, as 2017 marks the 35th anniversary of the Charter of Rights and Freedoms. This initiative recognizes the essential role the charter plays in our free and democratic society, and our government is very proud to propose it.

I urge all members to support this important legislation, which represents one more step in the minister's review of the criminal justice system, one more step in our government's commitment to the charter, and one more step toward ensuring that our laws are relevant, fair, and accessible to all Canadians.

Bill C-49—Time Allocation MotionTransportation Modernization ActGovernment Orders

June 15th, 2017 / 3:30 p.m.
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Conservative

Erin O'Toole Conservative Durham, ON

Mr. Speaker, we are very proud of the hon. minister's service in Parliament and his service in space, but it is time for him to come back down to Earth. He was deriding the opposition for not bringing substantive debate to this place. The government, in almost two years, has passed only 19 bills. That is it. It has had over 30 time allocation motions limiting debate on a very small record.

In the last few weeks, the Liberals are limiting time on a substantive bill, but they put forward motions on Paris and had a speech by the Minister of Foreign Affairs that really did not amount to anything. They also have Bill C-51 and Bill C-39, which are not substantive legislation either.

I agree with the minister that there are some serious issues addressed in the bill. He is limiting debate on the serious issues affecting Canadians, affecting rail safety, and affecting our transportation system, while having nothing before Parliament to justify limiting debate in the House. I would like to ask the member why they have only passed a small number of bills, and then when bills have an important element, like this one, they are not allowing debate in the chamber.

May 11th, 2017 / 4:10 p.m.
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Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

You acknowledged the chair, but I would acknowledge that the entire committee sent me a letter. I very much appreciate the urgency of advancing a cleanup of the Criminal Code. As I stated both in the House and outside, Bill C-39 is the first phase of the cleanup. I am hopeful that this piece of legislation will move as quickly as possible. I certainly don't know how quickly that will be, but I think it's very important. When it does come back, I'm hopeful that all members will support its moving quickly.

May 11th, 2017 / 4:05 p.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Thank you, Madam Minister.

The first issue I want to raise is with respect to Bill C-39, which you made reference to. That's the bill, of course, to remove constitutionally inoperative sections of the Criminal Code. I want to thank you for your leadership in introducing that legislation.

I know our chair led this issue following the conviction on two counts of second-degree murder in the case of Travis Vader being vacated after the judge applied a constitutionally inoperative section. It's an issue that I raised, given the close connection that case has to the community that I represent of St. Albert. That bill was introduced on March 8. It has now been two months, and nothing has happened.

How many more months will it be before Bill C-39 is debated in Parliament?

Criminal CodeRoutine Proceedings

March 8th, 2017 / 3:15 p.m.
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Vancouver Granville B.C.

Liberal

Jody Wilson-Raybould LiberalMinister of Justice and Attorney General of Canada

Mr. Speaker, I rise on a point of order. I would like to table, in both official languages, a charter statement with respect to Bill C-39, an act to amend the Criminal Code (unconstitutional provisions) and to make consequential amendments to other acts.

Criminal CodeRoutine Proceedings

March 8th, 2017 / 3:10 p.m.
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Vancouver Granville B.C.

Liberal

Jody Wilson-Raybould LiberalMinister of Justice and Attorney General of Canada

moved for leave to introduce Bill C-39, An Act to amend the Criminal Code (unconstitutional provisions) and to make consequential amendments to other Acts.

(Motions deemed adopted, bill read the first time and printed)