Bill C-39 (Historical)

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

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.

Criminal Code

[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.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Madam Speaker, it is positive that Bill C-51 seeks to remove redundant and obsolete sections of the Criminal Code. What is unfortunate is that the government still has not been able to move forward with the removal of the so-called zombie laws, the sections of the Criminal Code that have been deemed unconstitutional by the Supreme Court.

The minister mentioned Bill C-75, which includes the removal of those provisions. However, the minister neglected to note that Bill C-39 was introduced all the way back in March 2017, which would have removed those sections. Why did the government not pass Bill C-39, which could have been passed unanimously in this House almost two years ago?

[Jody Wilson-Raybould, Liberal, Minister of Justice and Attorney General of Canada]

moved:

That a Message be sent to the Senate to acquaint Their Honours that the House respectfully disagrees with amendments 1 and 2 made by the Senate to Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, as they are inconsistent with the Bill’s objective of codifying Supreme Court of Canada jurisprudence on a narrow aspect of the law on sexual assault and instead seek to legislate a different, much more complex legal issue, without the benefit of consistent guidance from appellate courts or a broad range of stakeholder perspectives.

Madam Speaker, I am pleased to stand to speak to Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act, and to respond to the amendments from the other place in this regard. It is a particular honour for me to stand to speak to the bill on white ribbon day, which, as we heard, commemorates the massacre that occurred in Montreal 29 years ago today.

As part of my mandate commitments I have been reviewing the criminal justice system with a view to ensuring that it is meeting its objectives and maintaining public safety. My review is also intended to ensure our criminal justice system is fair, relevant, efficient and accessible, that it meets the needs of its victims, respects an accused's right to a fair trial and is better able to respond to the causes and consequences of offending.

These are broad and important objectives, so our government has approached these tasks in phases. In Bill C-39, we removed passages and repealed provisions in the Criminal Code that had been ruled unconstitutional by the Supreme Court of Canada, so that the law as written reflected the law as applied.

In Bill C-46, we significantly modernized Canada's impaired driving laws in order to protect the health and safety of Canadians and to provide law enforcement with the resources they need to effectively detect and prosecute impaired driving.

In Bill C-75, we seek to tackle the delays that are encumbering our courts.

Today, with Bill C-51, we continue to build on our government's commitment to reviewing the criminal justice system and to making all aspects of the criminal law fairer, clearer and more accessible to Canadians. In particular, the bill seeks to modernize the Criminal Code by repealing or amending provisions that courts have found unconstitutional or that raise unavoidable charter risk.

The bill also aims to ensure that offences in the Criminal Code continue to reflect today's society and its values. To that end the bill removes a number of obsolete or redundant criminal offences that no longer have a place in our criminal law.

Further, the bill creates amendments to the Department of Justice Act. Pursuant to these amendments, the Minister of Justice would have a statutory duty for every government bill to table in Parliament a statement that sets out the bill's potential effects on the rights and freedoms guaranteed in the charter. For every one of the bills I have tabled, I have tabled charter statements. These amendments would provide greater openness and transparency about the effects of government legislation on charter rights.

Finally, the bill seeks to clarify and strengthen the law on sexual assault in order to prevent misapplication of the law and to help make the criminal justice system fairer and more compassionate toward complainants in sexual assault matters.

The importance of these reforms cannot be overstated, and I would like to recognize and acknowledge all those who have been subject to sexual assault and gender-based violence. Sexual assault is a serious problem in Canada. It affects communities across the country and across all social and economic barriers, and it remains a significant barrier to women's equality.

Addressing violence against women is an issue of the utmost importance to me and to our government as a whole. We remain deeply committed to ensuring that our criminal justice system is responsive to the needs of sexual assault victims. To that end, we have provided significant funding for judicial education relating to sexual assault law, so that judges are better educated on this crucial area of law.

We have also made millions of dollars available through the victims fund to enhance the criminal justice system's response to sexual violence. These resources support important work such as pilot projects in Ontario, Saskatchewan, Nova Scotia, and Newfoundland and Labrador to provide four free hours of independent legal advice to victims of sexual assault.

It is through efforts like these, as well as those contained in Bill C-51, that we are working to effect a culture shift in our criminal justice system and to foster an environment where sexual assault complainants feel empowered to come forward for justice and support.

We should be proud that Canadian laws around sexual assault are robust and comprehensive, even more so with the proposed steps set out in Bill C-51. However, we must also recognize that more work lies ahead, and we must continue to strive for further improvements. In short, we must continue to work to reduce the incidence of sexual assault in Canada and to ensure more victims feel encouraged to come forward and report their experiences to police.

To that end, Bill C-51 would make important changes to strengthen the law of sexual assault. These changes include creating a new regime governing the admissibility of evidence in the hands of an accused, where the evidence is a complainant's private record.

In addition to the strengthening the law of sexual assault, Bill C-51 would also clarify the law. It would do so by making clear that consent must be affirmatively expressed by words or actively expressed through conduct. This principle codifies the Supreme Court of Canada's 1999 Ewanchuk decision, and makes it explicit that there is no consent unless the complainant said “yes” through her words or her conduct. Passivity is not consent, and “no” does not mean “yes”.

Finally, as introduced, Bill C-51 proposes to clarify one aspect of the law pertaining to consent or capacity to consent to sexual activity by codifying the Supreme Court of Canada's 2011 decision in J.A. In J.A., the Supreme Court held that an unconscious person is not capable of providing consent to sexual activity. Therefore, the bill seeks to amend the Criminal Code to state explicitly that an unconscious person is incapable of consenting, but also to clarify that a person may be incapable of consenting for reasons other than unconsciousness.

To pause for a moment, I would like to express my sincere appreciation to the members of the other place for their very careful study of Bill C-51. While the other place supported most of the bill, it adopted amendments related to the determination of a complainant's incapacity to consent to sexual activity in the context of sexual assault.

By way of background, many stakeholders welcomed Bill C-51's proposed sexual assault reforms after its introduction. Some offered suggestions concerning the elaboration of the Criminal Code consent provisions to reflect J.A. In part, those witnesses argued that the J.A. decision stands for a broader proposition. They noted that the court held that our consent law requires ongoing conscious consent and that partners need to be capable of asking their partner to stop at any point.

In other words, they suggested that the bill should be amended to reflect an additional principle articulated by the Supreme Court in J.A. to the effect that consent must be contemporaneous with the sexual activity in question.

After hearing from a number of witnesses on the question, the Standing Committee on Justice and Human Rights agreed, and amended to clarify that consent must be present at the time the sexual activity in question takes place. Our government agreed with that point, and we were happy to see that the justice committee amended Bill C-51 at that time so it would codify this broader principle in J.A. Doing so was in keeping with the objectives of the bill, including to ensure that the criminal law is clear and reflects the law as applied.

However, some stakeholders offered additional suggestions concerning our proposed codification of the Supreme Court of Canada's decision in J.A. They suggested that the provision that would codify that no consent is obtained if a complainant is unconscious be entirely removed. While the House committee did not amend the legislation to this effect, the other place nonetheless proceeded to adopt amendments that would eliminate this provision.

In its stead, the other place proposed a list of factors to guide the court in determining when a complainant is incapable of consenting.

According to the proposed amendments, complainants are incapable of consenting if they are unable to: one, understand the nature, circumstances, risks and consequences of the sexual activity; two, understand they have the choice to engage in the sexual activity; or three, affirmatively express agreement to the sexual activity in words or active conduct.

I would like to be clear. I agree that courts could benefit from guidance in making determinations on a complainant's incapacity to consent when she or he is conscious. The proposed amendments underscore some very significant issues in the area of consent. I also agree that intoxication, short of unconsciousness, represents challenges in the adjudication of sexual assault cases.

For one, as Bill C-51 specifically recognizes, incapacity applies to a broad range of cases well beyond those in which intoxication is an issue. This is an important conversation that we must continue to have. It is for this reason that I plan to consult with a variety of stakeholders on this issue moving forward to determine whether further action is helpful with respect to our common goals and if so, how this might be effectively accomplished.

In taking the time we need to get this right, we recognize just how complex the law of consent is. There is no clear guidance from the Supreme Court or other appellate courts to which we can turn for an exhaustive definition of what incapacity means. In addition, because Bill C-51 proposes to legislate on a very narrow aspect of the law of consent, more detailed guidance and specific instructions on this further issue are needed from stakeholders, as well as those who would be impacted by the further changes in this area. Without this guidance, the risk of unintended consequences is very real.

Moreover, the amendments made in the other place on this issue, though very laudable in their aim, unfortunately do not assist courts in adjudicating incapacity cases. For one, the amendments focus on concerns that arise in cases where the complainant is conscious but intoxicated. As a result, our government has concerns about the potential impact of the amendments on the law governing incapacity to consent in other types of incapacity cases, including those where incapacity is due to a more stable state, such as individuals living with cognitive impairment.

I also wish to note a couple of points concerning the way the courts currently treat these issues.

First, appellate decisions show that a complainant's ability to understand that he or she has a choice to engage in sexual activity or not is determinative of incapacity. However, it is not clear from the existing case law whether the other elements proposed in the amendments are determinative of incapacity or merely factors to be taken into consideration, supported by circumstantial evidence in assessing capacity.

For example, in overturning the Al-Rawi trial decision earlier this year, the Nova Scotia Court of Appeal rejected incapacity to communicate as a determinative test for incapacity to consent. As a result, courts may well have difficulty interpreting the proposed provision.

Furthermore, the amendments' proposed factors focus solely on elements that are internal to the complainant and may lead some courts to overlook relevant circumstantial evidence in the determination of incapacity. Though the complainant's subjective state is important, there is a risk that the amendments will lead courts to overlook other evidence that bears on the complainant's capacity. This was also an error of the trial court in this case, as noted by the Nova Scotia Court of Appeal.

The amendments adopted in the other place would also prohibit drawing inferences about the complainant's capacity to consent to the sexual activity at issue from evidence of capacity to consent at the time of another sexual activity. These amendments simply restate a well-settled principle of law, which is already proposed for codification in Bill C-51. That principle is that consent must be contemporaneous with the sexual activity in question. This principle applies equally to capacity to consent. Each allegation of sexual assault must be considered on its own merits. The law is clear in this regard and the bill already proposes to codify it.

In short, the proposed changes are well-intentioned, but will not achieve their aim and, in fact, carry great risk of unintended consequences in what is a difficult yet critical area of law. Sexual assault law is too important to leave any room for error. If the definition of incapacity is to be provided, it is imperative we get it right.

If we are to alter this complex area of law in such a significant way, we must be informed by adequate analysis and debate in both chambers as well as by a broad range of stakeholder perspectives, including prosecutors from whom neither of the committees in this place or the other had the opportunity to hear. In addition, we need to consult with the defence bar, police associations and victims groups.

It is our obligation to ensure that the hundreds of sexual assault cases that are prosecuted every day in the country are not negatively affected by an amendment that has yet to be subject to full discussion and deliberation.

As I mentioned before, in order for these issues to receive the treatment they deserve and require, I will and have committed to study the issue of incapacity, with a view to striking the right balance on this important matter. I am grateful to the witnesses who appeared before the Senate committee for suggesting that this issue be the subject of further study. I look forward to consulting with them further as part of my future review.

Our government continues to work toward fostering an environment where survivors of sexual assault feel empowered to come forward and trust the system they turn to for justice and support. Consulting on and studying the issue of capacity to consent while conscious will form an integral part of that effort.

I am incredibly proud of our government's efforts to date within the area of sexual assault law. I am confident that our continued efforts will help to ensure that all victims are treated with compassion, dignity and the respect they deserve.

Bill C-51 is an important part of our work on this issue. It is also consistent with our broader efforts to ensure that our criminal law is responsible to the needs of all Canadians and that it reflects our values. Our government will continue to find ways to improve upon our criminal justice system so it keeps Canadians safe, respects victims, responds to the needs of vulnerable populations and addresses the underlying social causes of crime. I am proud of the role Bill C-51 will play in helping us to achieve these goals. I look forward to the bill's expeditious passage to ensure these important reforms are enacted without further delay.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Madam Speaker, I would agree that the Criminal Code should accurately reflect the law in Canada. Therefore, inoperative sections of the Criminal Code should be removed. The consequences of not doing so can be very, very serious.

We saw that happen in the case of the conviction of Travis Vader in respect of two second-degree murder convictions that were overturned because the trial judge applied an inoperative section, section 230, of the Criminal Code, which had been struck down in the Martineau decision all the way back in September 1990 when I was just starting grade 1, and yet almost three decades later, that inoperative section is still there in the Criminal Code.

The McCann family pleaded with the government to move forward. I stood with them. They are from my community of St. Albert. They cannot believe that almost two years later, Bill C-39, which would remove sections 230 and 159, is stuck at first reading.

Here we are, all because the government simply cannot get it done

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Madam Speaker, the hon. member for St. Albert—Edmonton and I sat on the justice committee last year. I certainly appreciated the subject matter we dealt with. It is a committee that demands a lot of responsibility from its members. It requires a lot of maturity, because the subject matter is always very weighty. When we are deliberating on legislation affecting the Criminal Code, there is a real sense that the actions we take when we amend that statute will have real-life consequences for people.

He is right when he talks about the government's slow legislative agenda. I will just correct him, however. Bill C-28 was actually the victim surcharge bill, but it was residing at first reading. Bill C-32 was also residing at first reading. We also had Bill C-38 and Bill C-39. The Canadian public got the feeling that the Minister of Justice, despite coming to power with a bold agenda to reform our criminal laws, was just kind of stringing the public along and giving us little crumbs, saying “Yes we're going to fix this”. Now, we finally have Bill C-75, which I liken to a giant amoeba that has swallowed all of those previous bills, but also added a whole bunch more. We are finally getting to the stage, three years later, where we get to debate this.

I agree with him that some of these bills could have been passed really quickly, like the zombie provisions of the Criminal Code. Scholars and professors have been calling for decades for the Criminal Code to be cleaned up, and we could have passed that bill very quickly, but we are only dealing with it now.

Would the hon. member agree that when we are looking at sections, like section 287, which deals with abortion, and section 159, that they could have been dealt with very quickly by the House and that it is a real shame that we are only doing that now?

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Madam Speaker, section 159 is an unconstitutional and inoperative section of the Criminal Code. In other words, it is one of these zombie laws. I fully support the removal of zombie laws, including section 159.

I am surprised that the hon. member would pat the government on the back for taking this step, given the government's record of dragging its feet. It was all the way back in the fall of 2016 that the government introduced Bill C-28 to remove section 159 of the Criminal Code. What happened to Bill C-28? Two years later, it is stuck at first reading. The Liberals could have passed that bill with unanimous consent, but because of the inaction of the government, section 159 remains in the Criminal Code.

To highlight the incompetence of the government, after introducing Bill C-28, in March of 2017, it also introduced Bill C-39. It also would have removed section 159 and other zombie sections of the Criminal Code. What happened to Bill C-39? It is stuck at first reading. Quite frankly, the only thing keeping section 159 from being removed from the Criminal Code is the government.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, sections of the Criminal Code have been deemed unconstitutional and are therefore of no force or effect. I was astounded that the parliamentary secretary would pat the government on the back for moving forward in this bill with the rightful removal of those sections when it was all the way back in the fall of 2016 when the second-degree murder charges against Travis Vader were thrown out of court because the trial judge applied section 230 of the Criminal Code.

The member made reference to the Martineau decision. Following that, the McCann family, who come from my community of St. Albert, Bret McCann, his son and his wife Mary-Ann, and I pleaded for the minister to introduce legislation. The member for Mount Royal, the chair of the justice committee, wrote to the minister to urge her to introduce legislation. She introduced legislation, to her credit, on March 8, 2017 in Bill C-39.

Bill C-39 has been stuck at first reading, when we could have gotten it done by way of unanimous consent. Why did the government delay almost two years before finally moving forward in Bill C-75? It is too little, too late for the McCann family.

Report Stage

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, as I stated earlier, this was brought to us early in the year, a day before we were to go on a two-day break.

Two previous bills, Bill C-38 and Bill C-39, have been thrown into this bill. Why were they not dealt with? If it is so important that this get done, why did the government wait so long to do it?

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, I am pleased to speak to Bill C-75, an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts. This omnibus bill is over 200 pages. It includes major reforms to our criminal justice system.

With a concerning level of rural crime in my riding, the safety of my constituents is a high priority for me. The safety of Canadians should be the number one priority of any government.

While there are some aspects of the bill that I agree will help to reduce delays in the court system, there are several problems associated with it with which I have concerns.

First, I want to talk about the bill itself. As I mentioned, this is a 204-page omnibus bill. I want to remind the Liberals that during the election, they promised they would never table omnibus bills, but here it is. However, 80 other promises have either been broken or have not even started.

This is still on the Liberal web page, which I looked it up the other day. It states that omnibus bills “prevent Parliament from properly reviewing and debating [the government's] proposals. We will change the House of Commons Standing Orders to bring an end to this undemocratic practice.” Yet here we are today discussing an omnibus bill.

It is a mixed bag that amends a total of 13 different acts in various ways. The bill needs to be split into more manageable portions so we can properly study it. What is more is that the government also has thrown in three bills that have already been tabled, Bill C-28, victim surcharge; Bill C-38, consecutive sentencing for human traffickers; and Bill C-39, repealing unconstitutional provisions. Perhaps if the government could manage its legislative agenda more effectively, it would not need to re-table its bills, push through omnibus bills or repeatedly force time allocation and limit debates.

The Liberals are failing to take criminal justice issues seriously. In March they tabled this bill the day before a two-week break period in our sitting schedule. Then they waited a half a year. Now they have returned it when there are only a few weeks left before our six-week break period. This does not give the image that justice is a high priority for the Liberal government.

The government's lack of judicial appointments has resulted in violent criminals walking away without a trial. As of November 2, 54 federal judicial vacancies remained. Appointing judges is an effective solution that is much faster than forcing an omnibus bill through Parliament. I remember in April when the minister talked about 54 more federal judges, yet here we are, almost the end of the year, and still no action.

I also want to talk about what is actually in the bill. Again, some parts of the bill I can support. For example, I agree with efforts to modernize and clarify interim release provisions and provide more onerous interim release requirements for offences involving violence against an intimate partner.

Modernizing and simplifying interim release provisions is an important step that will assist many rural communities across the country that do not have the resources to navigate lengthy procedures and paperwork. For that reason, I support this.

However, I wish the stricter release requirements were not limited to offences involving domestic abuse. With an alarming rate of rural crime in my riding and across Canada, which is often carried out by repeat offenders, we need to make it more difficult for all violent criminals to be released. Otherwise, we have a revolving door where they commit a crime, get arrested, get released and start all over again.

I was at a rural crime seminar in the city of Red Deer last Friday. A former police officer from Calgary city police told us about one of the cases he had worked on recently. An Alberta offender was charged with 130 offences, ranging from break and enter to car theft, equipment theft and possession of stolen property.

At the last sitting in Alberta the judge released him. Out the door he went. Where did he go? He took off to B.C. Now we understand they are looking for him in British Columbia, which has 100 similar outstanding charges against him in a very short period of time. This person should not have been released.

These criminals prey on farmers and elderly people. They know that RCMP resources are lacking in these areas and take full advantage of that. What the government needs to do is to provide our law enforcement agencies with the tools they need to stop the revolving door of criminals in and out of the courts. That is happening constantly.

Victims should be the central focus of the Canadian criminal justice system rather than special treatment for criminals, which is why our party introduced the Victims Bill of Rights. The government, unfortunately, does not agree since Bill C-75 would repeal our changes to the victim surcharge and reduce its overall use and effectiveness.

I believe in protecting victims of crime, which is why I introduced my own private member's bill, Bill C-206, that would ensure that criminals who take advantage of vulnerable people, specifically adults who depend on others for their care, are subject to harder, sure punishment.

Last month, a gentleman from my riding of Yellowhead was a witness before our public safety and national security committee. He shared with us his first-hand experience. It was a terrible story. This gentleman, whom I consider a friend, is aged 83. He heard his truck start up one day when he was having lunch with his wife. He walked outside to see his truck being driven out of his yard. He lives about 70 kilometres from the town of Edson where the local police office is located. He picked up his phone and was about to call when his vehicle returned to his yard. Two youths, one aged 18 and one aged 17, got out, knocked him to the ground, repeatedly kicked him in the face, the chest, the ribs, attempted to slash his throat, and then drove off again. This gentleman is 83. This is still being dealt with in the courts despite the fact it happened a year ago. This gentleman has had to attend court 10 times so far and the matter is still not over.

We on this side of the House will always work to strengthen the Criminal Code of Canada and make it harder for criminals to get out.

I am concerned that portions of Bill C-75 would weaken our justice system. Through the bill, the Liberals would reduce penalties for the following crimes: participating in criminal organizations, various acts of corruption, prison breach, impaired driving, abduction, human trafficking, forced marriage, and arson, just to name a few of many in the bill. Participation in terrorist activities and advocating genocide were deleted from this list only because a Conservative amendment was accepted at committee. Those are just a few examples of more than a hundred serious crimes that could be prosecuted by summary conviction and result in lighter sentencing, or even fines.

The government is failing to take criminal justice issues seriously. Reducing penalties for serious crimes sends the wrong message to victims, law-abiding Canadians and to criminals.

I am also concerned about the wording used in the section that would increase maximum sentences for repeat offences involving intimate partner violence. I support increasing these sentences but I do not support replacing the language of “spouse” with “intimate partner”. I believe both should be included. I understand that not all domestic abuse is within a spousal relationship, so there is a need to have "intimate partner" included. However, it should not replace "spouse". Rather, both terms should be included.

Another problem I have with Bill C-75 is the reversal of protections for religious officials.

When Bill C-51 was referred to the Standing Committee on Justice and Human Rights in January, two amendments were moved by my Conservative colleagues. The first amendment proposed keeping section 176 in the Criminal Code of Canada, while the second aimed to modernize the language of that section. The Liberals agreed to them and that was good, but they need to listen more.

Imagine my disappointment when I read in Bill C-75 that section 176 in the Criminal Code was once again under attack. Assault of officiants during a religious service is very serious and should remain an indictable offence.

Thank you for the opportunity to present my views.

Motions in amendment

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Mr. Speaker, as you know, I am always pleased to rise to speak to bills that mean a lot to me or bills that I am not entirely comfortable with.

Today I will be speaking to second reading of Bill C-75, an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts.

On reading this large, 302-page omnibus bill, many of my colleagues agree or might agree that this bill is quite dense and complex and that it tries to slip important changes under the radar.

I cannot help point out that it was introduced in the middle of day on the eve of Good Friday as the House was about to adjourn for a week. Nice try, whoever was trying to sneak this through, especially when three new government bills were already on the Order Paper: Bill C-28, an act to amend the Criminal Code in regard to the victim surcharge, Bill C-38, an act to amend An Act to amend the Criminal Code in regard to exploitation and trafficking in persons, and Bill C-39, an act to amend the Criminal Code in regard to unconstitutional provisions and to make consequential amendments to other acts.

Given that this bill makes a number of changes to the Criminal Code, most of my speech will focus on the amendments that, I would argue and so would many victims of crime and their loved ones, totally contradict what the Liberals say when they claim that victims are being considered, that they care about victims' rights and that they are committed to upholding those rights. The reality is a far cry from that.

The Liberals are always quick to put criminals first. It seems to be their first instinct.

We do not have to look too far to see some very recent examples of that. Consider the case of the criminal Terri-Lynne McClintic, who brutally and savagely murdered a little girl, eight-year-old Tori Stafford, yet she was transferred to a healing lodge after spending just nine years behind bars and even though she is not eligible for parole until 2031, and Tori's family was never given prior notice of the transfer.

Only after dozens and dozens of interventions in the House by the opposition parties, an open letter to the Prime Minister from little Tori's father, the arrival of many protesters on Parliament Hill, and pressure from all Canadians who found the transfer to be unacceptable, inconceivable and disrespectful did the Minister of Public Safety and Emergency Preparedness finally decide to take action.

It was only yesterday, after far too many weeks of waiting and unnecessary suffering for Tori's family and because of all the public pressure in this regard, that the Minister of Public Safety and Emergency Preparedness finally asked Correctional Service Canada to make the transfer policies more stringent.

However, we do not yet know whether this serious mistake has been corrected. We do not know whether Ms. McClintic is back behind bars where she should be. That is of little consolation to Tori's family and to Canadians.

The minister has apparently also asked Correctional Service Canada to improve its policies for the transfer of medium-security offenders to institutions without controlled perimeters precisely because these changes could help convince the public that our correctional system holds guilty parties responsible.

Canadians were outraged by Ms. McClintic's transfer, but above all they were extremely disappointed to see—

Criminal Code

[Colin Fraser, Liberal, West Nova, NS]

Mr. Speaker, I am pleased to join the debate on this important bill, Bill C-75. I will be spending my time discussing those aspects of the bill that were previously introduced in Bill C-39. These changes seek to make our criminal law clearer and more accessible, revising or repealing certain Criminal Code provisions that have been found unconstitutional and thus are no longer enforceable. These are important changes, because they would help to ensure that the law as written would reflect the law as applied. This would promote efficiency in the criminal justice system by eliminating confusion and errors. Some might say that these kinds of changes are unnecessary and that the concerns motivating them are more theoretical than practical. However, this is simply not the case.

The Travis Vader trial serves as a recent and concrete example of the repercussions the continued presence of invalid provisions in the Criminal Code can have. We recall that the case involved the prosecution of Mr. Vader for two counts of first degree murder in respect of Lyle and Marie McCann. In finding Mr. Vader guilty of second degree murder, the trial judge relied upon an unenforceable, previously struck down provision of the Criminal Code. The trial judge's mistaken reliance on an invalid provision was quickly noticed, and shortly thereafter, two convictions of manslaughter were substituted for the second degree murder convictions.

I have the deepest sympathies for Mr. Bret McCann and his family, who have endured the loss of loved ones, the stress of a criminal trial, and the trauma that ensued from the mistaken reliance on dead laws. I want to thank him for his continued advocacy in this area. I also wish to acknowledge my colleague, the member for St. Albert—Edmonton, with whom I serve on the justice committee, who has advocated for the removal of these zombie laws from our Criminal Code and has said that this should be something that crosses all political lines and that he expects will be supported by all sides of this House.

What are these specific changes in Bill C-75? The bill would repeal provisions related to the offence of murder, the abortion offence, the spreading of false news, the loitering part of the vagrancy offence, two evidentiary requirements found in the impaired-driving regime, and a provision that prevented judges from giving enhanced credit for time served in custody prior to sentencing. It also proposes to repeal the prohibition against anal intercourse.

In the time available to me, it will not be possible for me to comprehensively discuss each of these amendments, but I would like to highlight a few of them, starting with the provisions mistakenly relied upon in the Vader trial that I referenced a moment ago.

The Criminal Code defines and classifies murder as either first degree or second degree. In either case, a murder conviction is punishable by a mandatory penalty of life imprisonment and it is accompanied by the highest level of social stigma. In 1990, building on a previous decision from 1987, the Supreme Court of Canada held, in R. v. Martineau, that in order to respect the charter, a murder conviction requires proof beyond a reasonable doubt of subjective foresight of death. In other words, the accused intended to cause death or intended to cause bodily harm knowing that, or being reckless as to whether, death would actually ensue.

The effect of this ruling is twofold. First, it means that the entirety of section 230 is unenforceable, the provision at issue in the Vader trial. Section 230 indicates that culpable homicide is murder where it occurred during the commission of other offences, such as robbery, even in cases where the offender did not intend to kill the victim.

Second, it means that part of subsection 229(c) is of no force and effect. Its says that it is murder when a person, while pursuing another unlawful object, “does anything that he knows or ought to know is likely to cause death, and thereby causes the death” of another person. The phrase “or ought to know” is an objective standard that is determined based on what a reasonable person, standing in the accused's place, would have known and not on what the accused actually knew. Therefore, it could allow a conviction for murder even if the accused did not know that his or her actions were likely to cause death. The phrase “or ought to know” was read out of subsection 229(c) by the Supreme Court of Canada, but its continued presence in the Criminal Code has caused delays, inefficiencies, and injustice to the accused where, for instance, a jury is not clearly informed that it should ignore it when determining an accused person's guilt. This can also lead to a waste of judicial resources where such an omission forms the basis for an appeal.

Bill C-75's proposed amendment would make clear that a conviction for murder cannot rest on anything less than an intent to kill, or an intent to cause bodily harm knowing that, or being reckless as to whether, death would actually ensue. Bill C-75 would also repeal section 159 of the Criminal Code, an unfortunate vestige of a bygone era in which society passed moral judgment on non-harmful consensual sexual preferences through the criminal law, a section of the Criminal Code that has been declared unconstitutional by several appellate courts because it discriminates on the basis of age, marital status, and sexual orientation.

Additional changes will clarify that historical sexual offences can only be used if the conduct at issue would be prohibited by existing sexual offences if committed today. This approach protects both equality rights and victims of sexual offending, regardless of when the offence occurred. Bill C-75 would also repeal section 181 of the Criminal Code, which prohibits the spreading of false news. This is an extremely old offence, dating back to 13th century in England, and at that time it was targeted at conduct that was meant to sow discord between the population and the king, and is out of place in today's society. In Regina v. Zundel in 1992, the Supreme Court of Canada struck down this offence because it found that it unjustifiably violated freedom of expression, pursuant to paragraph 2(b) of the charter. The court held that the offence lacked a clear and important societal objective that could justify its extremely broad scope.

As we are proposing to repeal this unenforceable offence, some might have questions about whether our criminal laws should target false news in some way. These questions would be understandable, particularly given recent discussions of the spreading of fake news, for example, and concerns about the use of fake news to promote hate against particular groups. In this respect, it is worth noting that the Criminal Code already contains a robust set of hate propaganda offences and other hate crime-related provisions that can be relied upon in appropriate cases.

Bill C-75 would also repeal section 287 of the Criminal Code, the abortion offence, which prohibited the procurement of a miscarriage and was declared unconstitutional by the Supreme Court almost 30 years ago. It is high time that this invalid provision be removed from our Criminal Code, in part so that women across Canada will not face the additional and unnecessary burden of figuring out what the criminal law currently prohibits at a time when they may be facing one of the most difficult decisions of their lives.

The Supreme Court of Canada's guidance on this point was clear. It stated, “Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus an infringement of security of the person.” I agree, and wish to applaud the Minister of Justice for proposing the removal of this long-outdated and unenforceable provision from the Criminal Code.

As I said earlier, these changes and others that I have not been able to discuss in detail tonight are about promoting clarity in the law. All Canadians should be able to turn to the law as written as a reliable and trustworthy indication of the actual state of the law. These changes are consistent with the objectives of other amendments contained in Bill C-75, in that they will make our system more efficient and accessible. These changes are all about respect for the charter, and I urge members of Parliament to support the passage of this bill at second reading so it can go to the Standing Committee on Justice and Human Rights, which I am proud to be a member of, so that it can be fully examined, studied, and be given thoughtful consideration.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, I thank my colleague for his comments and also for his service to our country, especially to the city of Toronto.

As I mentioned earlier, the bill is made up of three separate bills that have already been tabled in the House: Bill C-28, Bill C-38, and Bill C-39. One deals with the victim surcharge, one with exploitation and trafficking, and one with unconstitutional provisions, which we support.

During the last campaign, in 2015, we heard over and over from Liberal members that there would be no omnibus bills, there would be no closure, and MPs would be allowed to speak individually and have adequate time for debate.

There are so many promises that have been broken. How can the member and his colleagues stand here tonight and speak to the bill, which is clearly an omnibus bill? We support many parts of it, but because of the fact that the Liberals rolled three bills into one, it made it impossible for us to even accept some of the good things in it without buying into all of these very negative implications, which I outlined earlier.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, I rise on behalf of the constituents of Kitchener—Conestoga to participate in the debate on Bill C-75, the omnibus Liberal justice bill.

This bill is over 300 pages long and amends several different acts. One does not have to look too far into the past to recollect some of the comments made by members of the Liberal Party in regard to omnibus legislation. I am sure that many of us in this House remember the promises made during the all-candidates debate in the 2015 election not to have more omnibus bills, and many others as well. I will refer to those a little bit later tonight in my comments. However, it seems as if the Liberals have kept their reputation and have changed their minds to suit their own interests. It is a reputation they have developed quite well.

Not only is it a very lengthy bill, but its timing is also suspect, given that on the eve of the Easter long weekend, the Liberal government tabled this piece of legislation that would drastically change our criminal justice system and how criminals and victims are treated. We see again in this bill that the needs of victims are discounted and the lighter treatment of criminals is a priority of the Liberal government.

Tabling Bill C-75 on the eve of the Easter weekend, just prior to the two-week parliamentary break, clearly shows that the government knew it would not go over too well with Canadians or members of the legal community. That, in fact, is definitely what has happened since the tabling of this bill, in spite of the best efforts of the Liberal Party to hide these facts from Canadians.

Another interesting fact about this piece of legislation is that it re-tables three bills already on the Order Paper: Bill C-28, Bill C-38, and Bill C-39 have all been rolled into this new bill, Bill C-75. If anything speaks to the government's inability to handle a legislative agenda, this is surely it. The government has proven to be so badly organized that it is now just combining several previously tabled pieces of legislation in order to make broader changes to our criminal justice system in less time with less scrutiny, and less debate. It is a real shame, especially, as I said earlier, when during the 2015 campaign they promised to allow all members of Parliament to have a voice, and that the government would not use omnibus bills. They also promised that this election would be the last first-past-the-post election, and that they would run small deficits and not use time allocation. All of those promises are out the window with no respect shown for Parliament.

A primary stated objective of Bill C-75 is to reduce delays in our justice system. The R. v. Jordan ruling, which imposes strict time limits on criminals, has made this objective very important. It is a crucial issue that needs to be addressed.

Thousands of criminal trials across Canada have been stayed, including those involving murderers who have been charged. The reason these charges have been stayed is that the time limits imposed by R. versus Jordan were exceeded.

However, we know that this legislation does not achieve the objective. Do not take my word for it. A number of members of the legal community and journalists have also written about this. For example, an opinion piece in the Toronto Star stated:

On Thursday, the federal government released Bill C-75, an omnibus bill aimed at reducing court delays. Unfortunately, good intentions stop at the preamble, especially for those of us who believed in the government’s pre-election promise to bring a principled approach to criminal justice reform.

The author goes on to state:

However, C-75 reclassifies a myriad of offences, giving the Crown discretion to prosecute them summarily. To further incentivize this option, the bill increases the maximum penalty for summary offences from six months to two years. Summary offence trials, like preliminary inquiries, occur in provincial courts, which are already the most congested courts in our system. C-75 may very well take many preliminary inquiries off the provincial court docket, but it will replace them with many more trials.

What has proposed here are more backlogs, more delays, longer time limits. This justice minister is abdicating her responsibility to ensure that there is a functional justice system in Canada.

We see this inability to ensure a functional justice system with this current legislation, as well as with this Liberal government's extremely poor record of appointing judges.

I have one more comment from a legal expert from McElroy Law, a firm located right in Ottawa. She notes, “Under Stephen Harper, the Conservatives justice policies drew a clear line in the sand between criminals and victims. It was an easy sell to promise law-abiding citizens that those convicted of criminal offences will be punished harshly, in order to keep the good guys safe.”

She goes on later to say:

...the government is tinkering with the guts of criminal trials themselves, such as seeking to have police provide evidence by way of affidavit and having an accused person apply to be able to cross-examine them. The changes, if the bill is passed, will not aid in reducing delay, but will instead undermine trial fairness and may adversely affect Indigenous and other marginalized communities that are so often over-represented in our justice system.

Taken from the Ottawa Citizen is the following:

Bill C-75 promises to speed up court cases by eliminating preliminary hearings for all but the most serious matters. Also, quietly slipped into the bill is a provision that would allow Crown prosecutors to simply file written copies of police officers’ evidence instead of actually calling them at trial to testify. Not only will these changes waste more court time than they save, they will erode fundamental safeguards of trial fairness.

The number one responsibility of a government is to keep its citizens safe, and this bill is seriously failing in that responsibility. It seems the government, despite all of its comments about “rigid ideology”, is clearly implementing its own rigid ideology without proper consultation with experts and lawyers in the field who are actually going to be dealing with the ramifications of this poor legislation.

Mr. Speaker, I have just been informed that I am sharing my time with the hon. member for Medicine Hat—Cardston—Warner. I thought I had 20 minutes, but I guess I will have to move quickly.

I have not yet addressed the aspects of the bill that my colleagues and I consider to be the most egregious. I am going to move to those now, as I see my time is elapsing quickly.

Some of the offences that would see penalty decreases include, but are not limited to, leaving Canada to participate in a terrorist group or participation in the activity of a terrorist group. The bill proposes to actually reduce the penalties for these crimes, and it is important that Canadians understand that.

There is a long list of criminal offences that the government appears to think are not worthy of indictable charges: leaving Canada to participate in the activity of a terrorist group; punishment of rioter and concealment of identity; breach of trust by a public officer; municipal corruption; influencing or negotiating appointments or dealing in offices; prison breach; infanticide; concealing the body of a child; neglect to obtain assistance in child birth that results in the permanent injury or death of the child; assisting a prisoner of war to escape; obstructing or violence to, or arrest of, an officiating clergyman; keeping a common bawdy house; causing bodily harm by criminal negligence; and impaired driving causing bodily harm. The bill proposes to reduce the sentences for all of these offences.

One of the hybrid offences that the bill adds to the sequence is the obstruction of, or violence toward, an officiating clergyman. This is in section 176. This is the same section that the government proposed to repeal in Bill C-51, the justice omnibus bill. However, eventually it caved in to public uproar and feedback that was carried by our opposition members. Clearly, the government is not listening to the thousands of Canadians who are very concerned by the softening of punishment for this crime. The government is trying to diminish the severity of this crime. The issue is of crucial importance, especially now, given there is an increasing concern about sectarian violence in our world.

I could go on and speak for another 10 minutes, but hopefully I will get a chance to finish later.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Madam Speaker, I would like to hear from the member on this particular piece of proposed legislation. It is a combination of three other justice bills, namely Bill C-28, the victims surcharge bill; Bill C-38, the exploitation and trafficking in persons bill, which I know the member has a great interest in, as he has formed a bipartisan group of legislators in the House to study the issue much more deeply; and Bill C-39, the unconstitutional provisions bill.

I would like the member speak on the fact that the bill is a few hundred pages of what would otherwise be considered an omnibus justice bill, as it combines different parts of the justice system into one bill.

Does the bill speak to the failure of the Liberals to push forward reforms in our justice system in a meaningful way and in a reasonable time line?

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, I will share my time with the hon. member for Ottawa South.

One of the joys of being the chairman of the Standing Committee on Justice and Human Rights is the collegial way that we work together, which is the way we should work together when it comes to the justice system, because whether we are Liberals, Conservatives, New Democrats, or Green, we all want the same things: We want a system that moves quickly; we want a system under which the accused has the right to a fair trial and is presumed innocent; we want a system that protects the rights of victims and treats victims with respect; and we want a system that ensures that we are not soft on crime but that allows for rehabilitation of an offender.

These are all elements that we need to consider as we deal with Bill C-75, a very important bill that deals with not only the Jordan decision but a number of elements that need to be enhanced and improved within the justice system.

I want to talk about some of the elements of the bill, ones that we will need to study at the justice committee. I will start with the issue of preliminary inquiries.

Parliament was invited to look at the issue of preliminary inquiries by the Supreme Court in the Jordan case itself. Due to the vast disclosure requirements now required in preliminary inquiries, the court mentioned in Regina v. Jordan that Parliament may wish to revisit the issue of preliminary inquiries, and the bill would do away with preliminary inquiries for all those offences that do not carry life sentences.

In general, I do agree with the proposal to drastically reduce the number of preliminary inquiries. It is clear that there is no constitutional right to a preliminary inquiry. That does not mean, of course, that we do not need to consider arguments that may be made by defence counsel and those there to defend the rights of the accused, so one of the issues the justice committee will need to study is whether the list of offences for which there could be a preliminary inquiry should be expanded or should be left as it is in the bill.

Another issue that we will need to study is the issue of hybrid offences. I have heard the arguments made by my colleague from St. Albert—Edmonton on hybrid offences and on the possibility that sending offences to a provincial court with a shorter time frame under Jordan will clog up the justice system even more. I do not think it will. Doing away with certain administrative offences and reducing the volume for the court in that sense will not be problematic, but I hear that argument, and we will have to look at the list of offences that are now only indictable but that would become available for summary conviction as well, and we will need to determine whether any offences that are currently on the list to be hybridized should not be hybridized.

One of the issues that is very important for all Canadians is the over-incarceration of certain populations in this country. My colleague from Victoria, the NDP justice critic, today raised at our committee the fact that 25% of jailed people in Canada are indigenous, and among women in prison it is 33%. Since this community makes up approximately 5% of Canada's population, this is a shocking situation and it needs to be fixed. As for the other vulnerable populations that are overrepresented in the prison population, we need to diagnose why that is.

The hon. member for Saanich—Gulf Islands raised the issue of mandatory minimums. That is certainly an issue that we will need to look at in depth at some point in time, because clearly mandatory minimums are one of the reasons for overrepresentation. Another reason, though, that I do believe is dealt with by the bill in a way that I totally support is the issue of creating a new judicial referral hearing that allows people who miss a condition not to automatically be charged and sent before a court, which creates a vicious cycle in which people who, for example, miss a hearing because they do not have transportation to get to the bail hearing are then incarcerated again because they have breached a condition, and it happens over and over. I totally approve of the issue of modernizing and streamlining the bail system and legislating a principle of restraint.

Another issue we need to look at is reverse onus. I do support the presumption that those people who have already been convicted of intimate-partner violence should have a more difficult time making bail. However, I understand that there are charter issues to be raised in terms of any reverse onus of proof that we create, and that is another item that our justice committee will have to study when this bill comes before us after second reading and a vote by Parliament.

Another issue I want to talk about is amending the Youth Criminal Justice Act to reduce the rates at which youth are charged for administration of justice offences.

One of the things that has worked really well in Canada since the Young Offenders Act was revised in the early 2000s is the fact that we have drastically reduced the number of youth incarcerated in Canada. This is something we need to look at, not only for young offenders but for all offenders. We need to find a way to keep people out of the vicious cycle of prisons. We need to find a way to make sure people can stay in their communities and be rehabilitated, as much as possible.

While I have a minute, I also want to turn my attention to the sections that will be repealed in the Criminal Code.

Section 230 of the Criminal Code, which was originally dealt with in Bill C-39, is now present in Bill C-75. This is a very unfortunate section that the courts have struck down, and in the case of the McCanns, which my hon. colleague, the member for St. Albert—Edmonton, has raised on multiple occasions, the judge erroneously referenced this section, causing even more pain for the family. One of the items that we need to make sure of is that those provisions of the Criminal Code that are struck down by our courts are repealed from the Criminal Code so that nobody else could ever make that type of mistake.

I also want to draw attention to section 159 of the Criminal Code, which desperately needs to be removed. The stigmatization of the gay community through section 159, the distinction between anal sex and other types of sex, and the stigmatization of gay men by a different age of consent is totally unacceptable, totally out of date, and needs to be repealed.

One of the things that I am very proud of is that the government, in bringing forward Bill C-75, has talked to all of its provincial counterparts, has held round tables throughout the country, and has not come back with its own ideas but has come back with lots of good principles that were worked on by multiple parties.

Now it is up to us as a Parliament to further enhance the bill, and for the committee to do its good work in terms of carefully looking at each of the provisions. I am very gratified that my colleagues in the other parties have agreed that we will sit extra hours when needed to deal with these provisions and to hear all the witnesses. I want to encourage those witnesses across Canada who have comments on Bill C-75 to come forward, send their briefs to committee, and ask to appear before our committee should they have a reason to do so. The more people we hear from on these important issues, the better the law will be. The goal for all of us is to get this bill as right as possible.