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

[Martin Shields, Conservative, Bow River, AB]

Mr. Speaker, I appreciate my hon. colleague's speech. He is very learned and comes from a profession that understands things well. I did pass through law school at one time, but decided that another profession was of more interest to me, so my speech will probably be a little more the layman's type, and will probably have some rhetoric in it that I am sure he will rather enjoy.

I will be speaking on 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. That is quite the title, and it probably should come as no surprise that it is an omnibus bill. It makes massive reforms to our criminal justice system, and in fact, it re-tables three bills already on the Order Paper: Bill C-28, on the victim surcharge; Bill C-38, on consecutive sentencing for human trafficking; and Bill C-39, which repeals unconstitutional provisions.

The government simply cannot seem to manage its legislative agenda. It waited until late in its mandate, and now Parliament is expected to rush through debate on these important matters.

What is apparent is that Bill C-75 is a big, complicated bill that is supposed to fix the issues facing our justice system. It does contain provisions that I could support. Repealing unconstitutional provisions in the Criminal Code is a positive proposal. Increasing the maximum term for repeat offenders involved in domestic violence also makes a lot of sense.

However, the bill also introduces a host of other issues. This legislation should have been split so we could have debated and voted on some of its parts, rather than as an omnibus bill. There is far too much here to be considered in such a short time. The Liberals promised they would not introduce an omnibus bill, but here we are.

We have known for a long time that our justice system is dangerously backlogged. A primary stated objective of Bill C-75 is to reduce delays in our justice system. The R. v. Jordan ruling, now known as the Jordan rule or principle, imposes strict timelines on criminal trials: 30 months for the criminals, and 18 months for the indictable.

This objective is very important. Thousands of criminal trials across Canada have been stayed, including murder trials, for going over the imposed time limits. We have seen the stories of individuals accused of horrendous crimes being let off because of massive delays in the court system. The problem is only getting worse, but this bill is finally supposed to do something about this serious problem.

Before I get into the details of this bill, I have to ask: Why has this government not taken steps to appoint more judges? It has been pointed out that the government has appointed many, but we still have 59 vacancies. Let us get them all filled so that we can improve the justice system. Appointing judges may have been a faster way to address the delays in our justice system, rather than forcing an omnibus bill through Parliament. I know that the Liberals have left appointments unfilled in other government agencies, but the judicial ones are critical. At the very least, they need to fill those. I am sure that is something they will do quickly, right?

The biggest red flag in this legislation is the hybridization of many indictable-only offences, done by adding summary convictions as a sentencing option. Simply put, serious crimes deserve serious penalties, but some of the offences listed in the bill are undoubtedly, to me and many of my constituents, serious crimes. These include participating in a terrorist group; impaired driving causing bodily harm; kidnapping a minor; possessing stolen property over $5,000, which is a huge concern in my rural riding; participating in activities of a criminal organization; municipal corruption or influencing a municipal official; committing infanticide; extortion by libel; advocating genocide; arson for fraudulent purpose; advertising and dealing in counterfeit money; and many more. There are a lot of serious crimes in here that are going to change. Many of these crimes are classified as indictment-only for a reason. They should not be punishable under a summary conviction, with a possible mere fine. That option has been included, and it should not be there.

The bill would also delay consecutive sentencing for human traffickers. Human trafficking is a severe crime. There is a cross-party committee dealing with this crime. It is a severe problem and deserves severe punishment. We know it is taking place in Canada. It is an international issue that needs to be combatted with all the tools at our disposal. Why would the government weaken our criminal justice system with these changes? We all need to address the backlogs in our courts system, but some of these measures just do not make sense.

In my riding of Bow River, we have been dealing with serious issues involving rural crime. I am happy that motion by the member for Lakeland, Motion No. 167, was passed last week in this House. I believe it will be an important step toward actually doing something about rural crime. The statistics show that crime in rural areas has increased significantly in all three prairie provinces. However, right on the heels of adopting this important motion, we have this bill taking two steps backwards. This is going to be hard to explain to the constituents in my riding who are dealing with constant rural crime. Residents across the country are going to be shaking their heads in disbelief at this one. I have heard from many constituents who have suffered break-ins, property theft, and threats to person. We have held round tables in locations in ridings across Alberta and heard from many people who are living in fear. They do not have confidence that the criminal acts taking place around their homes will be addressed. In many cases, the RCMP is simply stretched too thinly across the vast rural areas to respond promptly.

I am particularly concerned that this bill would relax sentences for crimes like possession of stolen property and participating in criminal gangs. It is hard enough to catch criminals engaged in rural crimes. In many cases, the criminals are long gone before anyone can show up to deal with them. When it takes police officers hours or until the next day to get to the scene, there is plenty of time to disappear. This is not like crime in a city where people reasonably expect police to show up on their doorstep in minutes. When criminals are caught, there is a reasonable expectation that they will face serious consequences for their actions. It is hard enough to convince people to report crimes when they occur. We encourage them to do so because it is very important for the statistics of the police services. The police need to know what is actually happening in communities, but people are afraid to report crimes, or they say it is a waste of time. The police need the statistics to make decisions related to how to best enforce the law, but my constituents do not always believe they will make any difference in the justice system anymore. It is going to be that much harder to encourage people to report rural crimes if this bill receives royal assent. At a bare minimum, people need to know that if they report a crime and the criminal responsible is actually apprehended, there will be serious consequences for that individual. We need real deterrents, not slaps on the wrist, to keep Canadians' faith in the justice system.

They talk about Alberta judges, and yes, we are short of judges, but here is the other side of it. I have spoken with legal people and they say that the number of crown prosecutors is drastically short. There are few crown prosecutors willing to do it. As the number of crown prosecutors has decreased, there are fewer of them who will work on this huge workload. The average caseload that crown prosecutors have is twice what it used to be years ago. Legal aid lawyers are quitting. The pay they are getting has decreased, or they are not being paid at all. If they are moving to summary convictions, two years less a day, the jails are full. I have seen downloading from governments before; this is a huge download from the federal government to the provincial governments. They are going to download into the provinces' judicial systems by changing convictions from indictable to summary convictions. As the prosecutors have told me, they have been told to clear the docket and keep only the very serious cases and kick all the rest of the cases out, not to take them to court but to get the charges dropped, to kick them out.

There is a joke around the provincial jail system that if there is an arrest for car theft, the officers should make sure their car is locked when the criminal goes out the door, because the criminal is likely to steal their car to go home. With the shortage of prosecutors, the time that is available to put people in jail for two years less a day is a huge download to the provincial system.

It is especially wrong that this bill is being introduced at the same time we are considering Bill C-71. That bill would do nothing to address rural crime and gang violence. Nothing in it would make a difference to the criminals using illegal firearms. All the bill does is target law-abiding firearms owners with new, poorly designed, heavy-handed regulations.

Farmers in my riding make use of all kinds of firearms on their property. Firearms are basic to rural life in many cases. I have heard from many constituents who are very concerned about Bill C-71. Why would the government treat farmers like criminals, while reducing sentences for rural criminals at the same time? Summary convictions and fines are just kicking the cases out, because there is no time to deal with them.

Again, it makes no sense. The government's agenda is looking increasingly incoherent, especially from the perspective of rural residents. Will these measures do anything to reduce the backlog? No. They are just downloading the problem on the provinces. Just as Chrétien did with the transfer payments, the current government is going to do it with the judicial system to download to the provinces.

Our legal institutions are overwhelmed by the number of cases that need to be addressed. The bill could stretch them to a breaking point, as the crown prosecutors in Alberta told me. We could have many more cases thrown out for taking too long. Jordan's principle is going to come in and many people will walk the street because of it. In other words, criminals will walk. That is not a result anyone wants to see, especially when rural crime is involved. It is deeply painful for victims of crime and it is dangerous for the Canadian public at large to lose faith in the justice system, like the rural residents in my constituency.

The government seems to be dumping more problems on provinces and municipalities. It leaves them to clean up the mess. We have already seen how the government has done this with cannabis legislation. Its approach has left provinces and municipalities scrambling to accommodate the new laws and pay for their implementation.

I have heard from town councillors across my constituency how concerned they are about the cannabis legalization and how they are going to pay for it. They do not know how the small towns and villages will handle all the issues that are coming down the pipe, just like the carbon tax. The Alberta Urban Municipalities Association has expressed grave doubts about how its members are going to get ready for legalization. It has been conveying these concerns to the government for a long time, but the Liberals are not listening.

The federal government simply punts its problems on to subnational governments and claims to have taken action. That is exactly what it did with the cannabis legalization, and that trend is continuing with Bill C-75. We need real leadership, not just passing the buck to the provinces.

The legislation would weaken our criminal justice system by relaxing the sentences for many serious crimes. That list was not even the extent of it. It is a very broad bill. It downloads the delays in our court system onto the provinces. It also changes the victim surcharge, which is a deeply disappointing departure from our former government's priority of putting victims first. It would remove the requirement of the Attorney General to determine whether to seek an adult sentence in certain circumstances. It would remove the power of a youth justice court to make an order to lift the ban on publication in the case of a young person who receives a youth sentence for a violent offence. It would delay consecutive sentencing for human traffickers, and that is wrong. It would make our justice system more like a revolving door than it is now. It would make rural crime in my riding and across Canada even harder to deal with, and it would make people not trust the justice system.

We need to deal with the problems in our justice system, but this is not the way to do it. This is simply a huge, poorly designed bill. It would make many changes that I simply cannot support.

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

Madam Speaker, I rise to speak to Bill C-75, another omnibus bill introduced by a government that said it would never introduce an omnibus bill, but here we are again with another 300-page bill.

Quite frankly, there are some provisions in Bill C-75 that I support, but on the whole I believe this legislation to be deeply problematic.

Before I address the substance of Bill C-75, I want to talk a bit about the process surrounding Bill C-75.

This omnibus legislation reintroduces four government bills currently before the House of Commons: Bill C-28, Bill C-32, Bill C-38 and Bill C-39. This is the third piece of legislation the government has introduced to repeal section 159 of the Criminal Code, the unconstitutional section related to anal sex.

With much fanfare, the Liberals introduced Bill C-32. They wanted to take tremendous credit for introducing that bill that proposes to repeal section 159. It was such a priority for the government that a year and a half later, Bill C-32 remains stuck at first reading.

Not to be outdone, they proceeded to introduce Bill C-39, which would remove unconstitutional sections of the Criminal Code, also known as zombie laws. That included section 159 of the Criminal Code. It was introduced on March 8, 2017, and it was such a priority of the government that more than a year later, Bill C-39 remains stuck at first reading.

Now, for the third time, the government has introduced, with Bill C-75, another attempt to remove section 159 of the Criminal Code.

How many bills is it going to take the Liberal government to repeal one simple section of the Criminal Code? It speaks to the utter incompetence of the government and its complete inability to move justice legislation forward. In light of that record of incompetence and failure, Canadians should be left to ask the question: how it is that the government can be trusted to address delay in our courts when it cannot even manage its own legislative agenda?

The purported objective of Bill C-75 is to deal with the backlog in our courts. It arises from the Jordan decision that was issued by the Supreme Court almost two years ago. The Supreme Court of Canada determined that there would be strict limits before delay would become presumptively unreasonable. The remedy that the Supreme Court provided in the case of delay was that the charges against the accused person would be stayed, in other words, thrown out of court. The strict timeline that the Supreme Court provided was 30 months between the laying of charges and the anticipated or actual conclusion of a trial for matters before superior courts, and 18 months for matters before provincial courts.

It has been almost two years since the Jordan decision and in those nearly two years, the Minister of Justice has sat on her hands and done absolutely nothing to deal with delay and backlog. The minister is so incompetent that she could not get around to doing the simplest and easiest thing, which is to fill judicial vacancies in a timely manner.

Under this Minister of Justice's watch, we have seen a record number of judicial vacancies. Indeed, the average number of vacancies has consistently been between 50 to 60. In the province of Alberta, where the issues of backlog and delay are most acute, the provincial government tried to respond in 2016, by way of order in council, establishing 10 new judicial positions, nine Court of Queen's Bench positions and one Alberta Court of Appeal position. The government, to its credit, in budget 2017, provided funding for additional judicial positions. All the minister had to do was fill them.

Do members know how long it took the minister to appoint a new judge in Alberta?

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

moved that 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, be read the second time and referred to a committee.

Mr. Speaker, I am proud to rise today 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. The legislation represents a key milestone in our government's commitment to modernize the criminal justice system, reduce delays, and ensure the safety of Canadians.

For more than a decade, the criminal justice system has been under significant strain. Although the crime rate in Canada has been declining, court cases are more complex, trials are getting longer, and the impacts on victims are compounded. In addition, indigenous people and marginalized Canadians, including those suffering from mental illness and addictions, continue to be overrepresented in the criminal justice system. For these reasons, I was mandated by the Prime Minister to reform the criminal justice system, and it is why I was proud to introduce this legislation as part of our government's response to those fundamental challenges.

Bill C-75 also responds to the Supreme Court of Canada's decision in 2016 in R. v. Jordan. The decision established strict timelines beyond which delays would be presumptively unreasonable and cases would be stayed. In such cases, the accused will not stand trial. This is unacceptable, and it jeopardizes public confidence in the justice system.

The bill also addresses issues raised in the June 2017 report of the Standing Senate Committee on Legal and Constitutional Affairs, which called on the government to address court delays, and it reflects our government's commitment to bring about urgent and bold reforms, many of which were identified as priorities by all provincial and territorial justice ministers in April and September of last year.

The bill proposes reforms in seven key areas. First, the bill would modernize and streamline the bail system. Second, it would enhance our approach to addressing administration of justice offences, including for youth. Third, it would bolster our response to intimate partner violence. Fourth, the bill would restrict the availability of preliminary inquiries to offences with penalties of life imprisonment. Fifth, it would reclassify offences to allow the crown to elect the most efficient procedure appropriate in the circumstances. Sixth, it would improve the jury selection process. Seventh, it would strengthen the case management powers of judges. The bill includes a number of additional reforms related to efficiencies, which I will touch on briefly later.

As noted, the first area of reform would modernize and streamline the bail regime. Under the charter, an accused person is presumed innocent until proven guilty. If charged with an offence, that person has the right not to be denied bail without just cause. The Supreme Court of Canada has repeatedly stated that bail, including the types of release and conditions imposed, must be reasonable, yet we know that police and courts routinely impose conditions that are too numerous, too restrictive, and at times directed toward improper objectives, such as behaviour and punishment. These objectives do not protect public safety.

We also know that there are more individuals in remand than those convicted of a crime. In other words, our correctional facilities are more than half-filled with people who have not been convicted of an offence.

In addition, the current approach to bail uses a disproportionate amount of resources, taking away from more serious cases. It perpetuates a cycle of incarceration.

Consistent with the 2017 Supreme Court of Canada decision in R. v. Antic, the proposed bail reforms would codify a principle of restraint. This would direct police and judges to consider the least restrictive and most appropriate means of responding to criminal charges at the bail stage rather than automatically detaining an accused. The individual circumstances of an indigenous accused and a vulnerable accused, such as a homeless person or one with mental illness and addiction issues, would become required considerations when making bail decisions. This means that an accused's circumstances would have to be considered prior to placing conditions upon them that were difficult or impossible to follow.

The principle of restraint would make bail courts more efficient by encouraging release at the earliest possible opportunity, without the need for a bail hearing in every case, and would take significant steps to reduce costs associated with the growing remand population currently detained in custody awaiting trial.

The bill would also strengthen the way our bail system responds to intimate partner violence by providing better protection for victims. If an accused has a history of violence against an intimate partner and is charged with similar conduct, the amendments would impose a reverse onus at the bail hearing, shifting the responsibility to the accused to show why the accused should not be detained pending trial.

I will now turn to the second area of reform proposed in Bill C-75, which is to enhance the way our justice system responds to administration of justice offences. These are offences that are committed by a person against the justice system itself after another offence has already been committed or alleged. Common examples are failure to comply with bail conditions, such as to abstain from consuming alcohol; failure to appear in court; or breaching a curfew.

Across Canada, accused people are routinely burdened with complex and unnecessary bail conditions that are unrelated to public safety and that may even be impossible to follow, such as when a curfew is broken by an accused because he or she missed the bus in a remote area. In other words, accused people are being placed in circumstances in which a breach is virtually inevitable. We are setting them up to fail.

Indigenous people and marginalized Canadians are disproportionately impacted by breach charges, often because of their personal circumstances, such as a lack of family and community supports. As a result, indigenous people and marginalized Canadians are more likely to be charged, more likely to be denied bail, and if released, more likely to be subject to stricter conditions.

In addition, administration of justice offences impose an enormous burden on the criminal justice system, as nearly 40% of all adult cases involve at least one of these administrative charges. To respond to these challenges, Bill C-75 proposes a new approach. Police would retain the option to lay a new charge for the breach or failure to appear where appropriate. However, if the offence did not involve physical or emotional harm to a victim, property damage, or economic loss, the police would have an additional option of referring the accused to a judicial referral hearing. This would be an entirely new tool that would serve as an alternative to an unnecessary criminal charge and that would substantially increase court efficiencies without impacting public safety.

In the youth context, these proposals would encourage police to first consider the use of informal measures, as already directed by the Youth Criminal Justice Act, such as warnings, cautions, and referrals, and would require that conditions imposed on young persons be reasonable and necessary. This aligns with the overall philosophy of the act, which is to prevent our youth from entering a life of crime, in part by providing alternatives to formal criminal charges and custody.

At the judicial referral hearing, a court would hear the bail conditions and have three options: release the accused on the same conditions, impose new conditions to better address the specific circumstances of the accused, or detain the accused. This approach would allow for alternative and early resolution of minor breaches and would ensure that only reasonable and necessary conditions were imposed. This is a more efficient alternative to laying a new criminal charge and would help prevent indigenous persons and marginalized Canadians from entering the revolving door of the criminal justice system.

The third area of reform in Bill C-75 is with respect to intimate partner violence. In 2015, Canadians elected our government on a promise to give more support to survivors of domestic violence, sexual assault, and sexual harassment and to ensure that more perpetrators were brought to justice. I am proud to follow through on this commitment within this bill.

As I already noted, those accused of repeat offences involving violence against an intimate partner would be subject to a reverse onus at the bail stage. In addition, the bill does the following: (1) proposes a higher sentencing range for repeat offences involving intimate partner violence; (2) broadens the definition of “intimate partner” to include dating partners and former partners; (3) provides that strangulation is an elevated form of assault; and (4) explicitly specifies that evidence of intimate partner abuse is an aggravating factor for sentencing purposes.

Intimate partner violence is a reality for at least one in two women in Canada. Women who are indigenous, trans, elderly, new to Canada, or living with a disability are at increased risk for experiencing violence due to systemic barriers and failures. The personal and often lifelong consequences of violence against women are enormous.

The fourth area of reforms is to increase court efficiencies by limiting the availability of preliminary inquiries. Preliminary inquiries are an optional process used to determine whether there is enough evidence to send an accused to trial. Bill C-75 would limit their availability to accused adults charged with very serious offences punishable by life imprisonment, such as murder and kidnapping.

I recognize this represents a significant change. It is not a change we propose lightly. It is the product of an in-depth consultation process with my counterparts in the provinces and territories and with the courts, and it is based on the best available evidence. For instance, we know in 2015-2016, provincial court cases involving preliminary inquiries took more than four times longer to reach a decision than cases with no preliminary inquiry.

It is important to note that there is no constitutional right to a preliminary inquiry, and one is not necessary for a fair trial so long as the crown satisfies its disclosure requirements. In the Jordan decision, the Supreme Court of Canada asked Parliament to take a fresh look at current processes and reconsider the value of preliminary inquiries in light of the broad disclosure rules that exist today. The Standing Senate Committee on Legal and Constitutional Affairs also recommended that they be restricted or eliminated.

The proposed measures would reduce the number preliminary of inquiries by approximately 87%, ensure they are still available for the more complex and serious offences, help unclog the courts, and reduce burdens on witnesses and victims from having to testify twice, once at a preliminary inquiry and once at trial. For example, this measure would eliminate the need for a vulnerable witness in a sexual assault or child sexual assault trial from having to testify twice.

I am confident these reforms would not reduce trial fairness, that prosecutors would continue to take their disclosure obligations seriously, that our courts would continue to uphold the right to make full answer and defence, and that there would remain flexibility in existing processes, such as out-of-court discoveries, that have been implemented in some provinces already—for example, in Quebec and Ontario.

I will now turn to the fifth major area of reform proposed in Bill C-75, which is the reclassification of offences. The Criminal Code classifies offences as summary conviction, indictable, or hybrid. Hybrid offences may proceed as either a summary conviction or as an indictable offence. That choice is made by the prosecutor after considering the facts and circumstances of the case. The bill would hybridize 136 indictable offences and standardize the default maximum penalty for summary conviction offences in the Criminal Code to two years less a day.

These proposals would neither interfere with the court's ability to impose proportionate sentences nor change the existing maximum penalties for indictable offences. What Bill C-75 proposes is to provide more flexibility to prosecutors to proceed summarily in provincial court for less serious cases. This would allow for matters to proceed more quickly and for superior courts to focus on the most serious matters, resulting in an overall boost in efficiency in the system.

Let me clear: this reform is in no way intended to send a message that offences being hybridized are less serious or should be subjected to lower sentences. Rather, it is about granting greater discretion to our prosecutors to choose the most efficient and appropriate procedure, having regard to the unique circumstances before them. Serious offences would continue to be treated seriously and milder offences would take up less court time, while still carrying the gravity of a criminal charge.

A sixth area of proposed reforms in Bill C-75 is with respect to jury selection.

Discrimination in the selection of juries has been well documented for many years. Concerns about discrimination in peremptory challenges and its impact on indigenous peoples being represented on juries was raised back in 1991 by Senator Murray Sinclair, then a judge, in the Manitoba aboriginal justice inquiry report. That report, now over 25 years old, explicitly called for the repeal of peremptory challenges. More recently, retired Supreme Court Justice Frank Iacobucci addressed these issues in his 2013 report on first nations representation on Ontario juries.

Reforms in this area are long overdue. Peremptory challenges give the accused and the crown the ability to exclude jurors without providing a reason. In practice, this can and has led to their use in a discriminatory manner to ensure a jury of a particular composition. This bill proposes that Canada join countries like England, Scotland, and Northern Ireland in abolishing them.

To bring more fairness and transparency to the process, the legislation would also empower a judge to decide whether to exclude jurors challenged for cause by either the defence or prosecution. The legislation will strengthen the power of judges to stand aside some jurors in order to make room for a more diverse jury that will in turn promote confidence in the administration of justice. Courts are already familiar with the concept of exercising their powers for this purpose.

I am confident that the reforms will make the jury selection process more transparent, promote fairness and impartiality, improve the overall efficiency of our jury trials, and foster public confidence in the criminal justice system.

The seventh area of reforms will strengthen judicial case management. As the Supreme Court of Canada noted in its 2017 decision in Cody, judges are uniquely positioned to encourage and foster culture change. I completely agree. Judges are already engaged in managing cases and ensuring that they proceed promptly and fairly through the existing authorities in the Criminal Code, as well as provincial court rules. These reforms would bolster these powers—for instance, by allowing case management judges to be appointed at the earliest point in the proceeding.

In addition to the major reforms I have noted thus far, Bill C-75 will make technical amendments to further support efficiencies, such as by facilitating remote technology and consolidating and clarifying the Attorney General of Canada's power to prosecute.

Finally, the bill will make better use of limited parliamentary time by including three justice bills currently before Parliament: Bill C-28, Bill C-38, and Bill C-39.

In closing, Bill C-75 proposes meaningful reforms that will speed up criminal court proceedings and improve the safety of our communities while also taking steps to address the overrepresentation of indigenous peoples and marginalized Canadians in the criminal justice system.

Our criminal justice system must be fair, equitable, and just. Victims, families, accused, and all participants in the justice system deserve no less. I urge all members of this House to support this important piece of legislation.

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

Mr. Speaker, my colleague's question illustrates the comprehensive reform that is needed with respect to the Criminal Code, and I am in complete agreement with her. While I was not fortunate enough to sit in the previous Parliament, I did work for the great Jean Crowder. We were opposed to that motive of the government to lump in those kinds of crimes, and I think that is a section that absolutely needs to be looked at.

Again, I will have to go back to my comments on Bill C-39. We hope that with the government purporting to be serious about criminal justice reform, we get to see some movement on these important bills coming in the near future.

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

Mr. Speaker, it is indeed a great honour to be the last speaker today on this particular bill. I want to start by thanking several of my colleagues who had to cover for me in the earlier part of the session when, due to a family situation, I was unable to be here for the first sitting weeks of Parliament and unable to participate in the Standing Committee on Justice and Human Rights. That was during the time when Bill C-51 came before the committee, and I just want to signify my appreciation for the colleagues who did that important work on my behalf.

I have heard comments in this House referring to Bill C-51 as an omnibus bill. With respect, I would have to disagree with those comments. The true sense of omnibus legislation refers to a bill that amends multiple different federal statutes, whereas with Bill C-51, we see all the amendments grouped thematically and really centred on cleaning up the Criminal Code, those redundant and obsolete sections, clarifying the language, and also providing direction to the Minister of Justice in providing a charter statement. Of course, there are consequential amendments to other acts and transitional provisions, but on the face of it, Bill C-51 is an appropriate bill. Some may balk at the length of the bill, but I would say to those members that just underlines the state our Criminal Code is in.

The Criminal Code is a very massive federal statute. It has been added to over the decades, and is a law that needs a lot of cleanup. In fact, legal scholars have been calling for us to act on these provisions for decades now. They have resulted in some real problems in case law. Unless Parliament provides for the amendments, the Criminal Code gets faithfully reproduced with all of its mistakes year after year.

It is heartening to see the charter statement contained in the bill. I will commend the government on starting that process, where the government at least puts forward its arguments with respect to why it thinks a particular piece of legislation infringes on the charter and why it thinks it is going to be okay. That is a starting place for us to have a fulsome debate in this place. As to whether we will always agree with it, that of course remains another question.

We are encouraged that the sections that help clarify Canada's sexual assault laws are in there. When we talk about our sexual assault laws, the big topic of conversation in Canadian political and public discourse is on consent. We need a lot of education among our youth and all members of society on what consent actually means. It is one thing to codify it in the Criminal Code, but not many people outside this chamber and the court system have the opportunity to read the Criminal Code. We also need to have that robust public education campaign to make sure everyone in society knows exactly what consent means and what the ramifications are of it.

On the sexual assault provisions, I will go over a few of the things the legislation is aiming to do. It is aiming to clarify specifically section 273.1, which is going to reflect the Supreme Court's decision in R. v. J.A. It is amending section 273.2, which clarifies the defence of a mistaken belief of consent. It is not available if the mistake is based on a mistake of law, for example, if an accused believed that the complainant's failure to resist or protest meant that the complainant consented.

This was a pretty heavy part of the committee's study. This part of the bill is quite complex, where a slight turn of the phrase or a different word used can certainly have some big ramifications. When I was on that committee, a lot of that testimony really informed some of the amendments the NDP made at that committee. Of course, thanks to my colleagues who took my place during some of the important testimony we heard.

We moved three main amendments that, unfortunately, were not passed at committee. While I respect my Liberal colleagues' arguments against those provisions, I think the law is an organic thing. We do our best to write the law in this place, but of course it will have to withstand the test of time within our courts, and those ultimately will be the judge of who was right and who was wrong in this case.

At committee, we tried to amend clause 10 to clean up the language to include the reason that a complainant would not have the capacity to understand the nature of the activity or would not be aware that she or he was obliged to consent to the activity. Therefore, we were concerned that the definition of incapacity might not have been entirely clear. There were some questions over whether the law was relying too heavily on a person's being unconscious and not looking at other forms of incapacity such as being drugged or something like that. Someone may not necessarily be unconscious, but could still be incapable of consenting to the activity that is going on.

We also heard of a complainant's expectation of privacy. We moved an amendment that reflected the need to clarify the admissibility of a complainant's private records at trial that would be in the hands of the accused. We heard some really great testimony from Professor Emma Cunliffe from the Peter A. Allard School of Law at UBC.

I was proud to move those amendments and argued as forcefully as I could, ultimately to no avail, but I still respect the work we did at committee and that we are finally at a stage now where Bill C-51 is on the launching pad and ready to go to the other place.

This bill also seeks to clarify and amend a number of sections of the Criminal Code that are redundant and obsolete. Some of those sections, I can go over. It would repeal section 71, provoking a person to fight in a duel or accepting such a challenge. Of course, in modern Canadian society that is no longer going on. It would repeal advertising a reward for the return of stolen property no questions asked, under section 43; and, of course, it would repeal the section on the possession of crime comics, from another age in Canada when people thought these would corrupt our youth. Of course, we know that to be a bit outdated in this day and age. One of my favourite clauses repeals the section on people fraudulently pretending to practise witchcraft. These sections serve to show how out of date many sections of our Criminal Code are and, of course, why we need this particular clause.

I will end on one of the most positive parts of our study of this bill, and that had to do with section 176. When members first read the bill at second reading, the proposed repeal of section 176 was simply a line item. It became obvious over the summer months that this particular section had deep symbolic value to many religious communities across Canada. I know that many of my colleagues and I received a lot of correspondence from people who felt that the section should be kept in the Criminal Code because of today's climate of religious intolerance. I believe that repealing it would have sent the wrong message. I am very pleased that we as a committee, indeed all parties, came together to keep that section and the fact that we reached consensus to modernize the language and so on and so forth.

With that, I will end on the fact that the bill is an important first step. We in the NDP are eagerly awaiting news from the Liberal government on when it will move ahead with Bill C-39, because that bill includes some very important provisions of the Criminal Code that need to be dealt with. I hope that the current government, with its emphasis on criminal justice reform, heeds those requests and moves forward with that particular bill.

With that, I will conclude my speech. I appreciate this opportunity to speak to this bill.

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

Mr. Speaker, I have the great honour of serving as one of the vice-chairs on the Standing Committee on Justice and Human Rights. I have been on a few committees, but I have to honestly say that I have never had a better experience than being on the Standing Committee on Justice and Human Rights in this Parliament. Everyone who serves on the committee approaches their job with a lot of care, compassion, and responsibility, and it is because of the nature of the subject matter that comes before committee.

My experience, whether dealing with various studies on access to justice or criminal justice bills, has always been a positive one and I feel there are always good conversations in that respect. We made some good amendments that reflected the popular will of the people, notably with section 176. I received an avalanche of correspondence from people all across the country, for whom section 176 had deep, symbolic value. I am glad that all parties could come to an agreement on leaving that section in.

The Minister of Justice has stated many times that criminal justice reform is very important to the Liberal government. As we are about to send Bill C-51 off to the other place, I wonder if the parliamentary secretary could comment on the status of Bill C-39, because that has some incredibly important provisions that need to be amended in the Criminal Code. We have heard reference to the Vader case, in which an incorrect verdict was rendered because of an obsolete section of the Criminal Code. It also deals with a section that still criminalizes abortion.

If criminal justice reform is so important to the government and we are now past the two-year mark, can he offer any insight as to when we will see further steps in the government's agenda on criminal justice reform?

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

Madam Speaker, I rise to speak on Bill C-51, the latest omnibus bill from the government. I have to say it is a bit ironic that we are debating an omnibus bill, given the fact that when the Liberals were in opposition, they made so much noise and such a fuss about omnibus bills introduced by the previous Conservative government.

The Prime Minister and the Liberal platform called omnibus bills undemocratic and the Prime Minister pledged that a Liberal government would undo the practice of introducing omnibus bills. I guess, like so many promises made by the Prime Minister during the last election campaign, this is just another broken promise in a string of broken promises made by him. It really illustrates that the Prime Minister's platform for real change was not worth the paper it was written on.

This omnibus bill contains a number of different sections and parts that are unrelated and given the fact that it contains a number of sections that are unrelated, it then comes as no surprise that parts of Bill C-51 I strongly support and other parts I have real concerns with. I will start with some of the positives.

One aspect of Bill C-51 that I strongly support is the removal of unconstitutional sections of the Criminal Code. Canadians should be able to expect that the Criminal Code accurately reflects the state of the law, and yet Canadians who make that common-sense assumption would be wrong. They would be wrong because the Criminal Code contains dozens and dozens of sections that have been found to be unconstitutional.

The consequences of leaving sections in the Criminal Code that are unconstitutional can be very serious. That was most recently illustrated last year when Travis Vader's conviction for two counts of the second-degree murder of Lyle and Marie McCann was vacated after the trial judge applied a section of the Criminal Code that had been found to be unconstitutional 26 years earlier, all the way back in 1990, and yet there was the section in black and white in the Criminal Code purporting to represent the law on its face.

Lyle and Marie McCann, who were murdered, resided in St. Albert and members of the McCann family live in my community of St. Albert. I can say that the case really did have a profound impact on the community. It further strengthened the impact of the case after the family waited six years for justice. At the moment it seemed that justice had been finally achieved, we saw the injustice of having those two convictions for second-degree murder vacated.

What happened to the McCann family should never have happened. It was completely preventable. That is why, in December of 2016, I joined Bret McCann, the son of Lyle and Marie McCann, at a press conference to call on the government and the Minister of Justice to introduce legislation to repeal unconstitutional sections of the Criminal Code, often referred to as zombie laws.

To that end, I am pleased that Bill C-51 would remove sections of the Criminal Code that have been found to be unconstitutional by appellate courts. I am also pleased that the government introduced Bill C-39, which would remove sections of the Criminal Code that have been found to be unconstitutional by the Supreme Court of Canada.

However, I am very disappointed with the lack of progress the government has made in the passage of Bill C-39. Bill C-39 was introduced by the Minister of Justice on March 8. Nearly a year later, absolutely no legislative progress has been made. Indeed, it remains stuck at first reading. Bill C-39 is straightforward legislation, it is not controversial, and it could be passed easily, yet the minister continues to drag her feet.

I am baffled and the McCann family is baffled and frustrated about the failure of the Liberal government to move Bill C-39 forward so unconstitutional sections, as determined by the Supreme Court, can be removed from the Criminal Code, including the section wrongfully applied in the Vader case. The inaction from the minister and the government increases the likelihood that something like what happened to the McCann family can happen again. In the event that it does, as the result of the Liberal government's inaction, the government will bear partial responsibility. I urge the government to move forward with Bill C-39 in addition to Bill C-51.

One other positive aspect about Bill C-51 is the fact that the government has finally backed down from the removal of section 176 from the Criminal Code. One of the parts of the bill is to remove unconstitutional sections, as well as sections of the Criminal Code that, in the opinion of the government, are redundant or obsolete.

Section 176 of the criminal code makes it a criminal offence to obstruct or threaten a religious official or to disrupt a religious service or ceremony. Simply put, section 176 is not unconstitutional, has never been challenged in court, and is not obsolete. Indeed, a number of individuals have been successfully prosecuted under section 176. Also, it is not redundant in as much as it is the only section of the Criminal Code that expressly protects the rights and freedoms of Canadians to practise their religion without fear or intimidation, a freedom that, by the way, is not just any freedom. When we are talking about freedom of religion, we are talking about a fundamental freedom guaranteed under the Charter of Rights and Freedoms.

I am glad the government listened to the official opposition. More important, it listened to thousands and thousands of Canadians who signed a petition, wrote letters and emails, and made phone calls to MPs and the government to keep section 176 in the Criminal Code.

Bill C-51 would remove another section of the Criminal Code that I believe should not be removed, and that is section 49. Section 49 makes it an offence to attack or harm the head of state, Her Majesty the Queen. The government has not been able to provide any meaningful rationale as to why section 49 would be removed. It has not been able to provide a rationale in debate. It has not been able to provide a rationale at committee. It could not come at a worse time. This year marks the 65th anniversary that Queen Elizabeth was ascended to the throne. It makes no sense why the Liberal government seems intent on removing section 49 from the Criminal Code.

Perhaps the most substantive part of Bill C-51 deals with amendments to the Criminal Code related to sexual assault laws in Canada. There are a number of parts of the code that Bill C-51 would amend with respect to sexual assault provisions of the code. A number of the changes in Bill C-51 would clean up the Criminal Code with respect to codifying certain Supreme Court decisions, including the J.A. decision and the Ewanchuk decisions of the Supreme Court. I fully support the parts of the bill that would clean up the Criminal Code with respect to that.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Madam Speaker, I appreciate the opportunity to participate in today's debate on Bill C-51. It is fair to say that the bill has enjoyed broad and bipartisan support from all members in the House. I wish to acknowledge this support and to thank members from all parties for the collaborative, constructive, and focused discussions that have taken place so far, including before the Standing Committee on Justice and Human Rights. I expect that this approach will continue and hope that we can quickly move this important legislation forward.

As is well known, Bill C-51 reflects the mandate of the Minister of Justice to review the criminal justice system. It proposes changes that would make the criminal law fairer, clearer, more relevant, and more accessible. These changes are critically important.

The Criminal Code provides the anchor for the criminal justice system and the actions taken within it. As such, these changes would help to advance the minister's ongoing work to transform the criminal justice system and ensure that it continues to promote public safety, hold offenders to account, and meet the needs of victims.

Bill C-51 proposes changes to the Criminal Code and to the Department of Justice Act. I am particularly proud to be part of a government that has shown a consistent and unwavering commitment to promoting the greatest possible respect for the Charter of Rights and Freedoms. This commitment is reflected in Bill C-51 in many ways. Notably, it proposes changes that would require the Minister of Justice to table a charter statement in Parliament for every government bill. These statements are already being tabled by the minister in respect of her bills. Under Bill C-51, this would be mandatory for the current and future governments.

Some have suggested that this type of change is unnecessary, given the minister's current statutory responsibility to examine every bill introduced in Parliament to determine if any of its proposed changes are inconsistent with the charter. However, we can go further, and that is what Bill C-51 would do. By providing Parliament, the public, and all stakeholders with information on the effects of all government legislation on our constitutionally protected rights, these changes would contribute to a more informed debate on government legislation and a more informed justice system. It is in all of our interests to ensure that those responsible for administering the justice system understand how federal laws implicate our charter rights. This is particularly true for the criminal justice system.

Bill C-51's proposed changes to the Criminal Code can be said to fall into three broad categories. First, Bill C-51 would repeal a number of offences in the Criminal Code that are obsolete or are otherwise redundant. Next, Bill C-51 would build on the work started by the Minister of Justice in Bill C-39, which proposes to repeal provisions that have been found unconstitutional by the courts. It also seeks to amend provisions that have been identified as raising charter risks but that have not been constitutionally considered.

I see the proposed changes in Bill C-51 as reflecting a recognition by the Minister of Justice that, for far too long, we have not been engaging in the kind of modernizing, clarifying, and rationalizing necessary to ensure that our Criminal Code remains coherent and contemporary. Criminal law academics from across Canada, as well as justice system stakeholders, have been calling for this kind of law reform for years. The public also deserves nothing less than a Criminal Code that reflects modern society and that is an accurate reflection of the law in force today. Bill C-51 seeks to make these kinds of changes, and I congratulate the Minister of Justice for making this kind of criminal law reform a priority.

Bill C-51 has generated a lively and important debate. Much of the focus of the debates and the concerns expressed to date have been centred on the bill's proposed changes to sexual assault law, an area that many recognize as complex and for which we would all agree clarity is particularly important. It is an area of particular interest to me as vice-chair of the Status of Women Committee.

I will focus the remainder of my remarks on this section of the bill. I think this area is important for a number of reasons, especially in light of what we have seen in Canada and elsewhere as an ever-expanding dialogue and discussion about gender-based violence and inappropriate and unacceptable sexualized conduct. This violence is almost universally perpetrated by men toward women or toward LGBTQ2 individuals. We know that many survivors of sexual violence in Canada believe that the criminal justice system is not well equipped to address their needs and that if they do come forward to report a crime, they will not see justice.

We do have to do better in addressing these realities, and within our own responsibility can make positive contributions in this regard. Bill C-51 would clarify and strengthen the law on sexual assault, and would help address concerns about how the law is applied in practice. I was particularly pleased to see the changes to consent that are included in this bill.

I had the opportunity to sit in on the justice committee's hearings during testimony on consent. I am pleased to see that at report stage these definitions have been further clarified. We know that no means no and that someone who is incapacitated by alcohol or otherwise or is unconscious is not able to provide informed consent. Now the Criminal Code would reflect these realities.

These changes are, however, only one part of the solution. I am proud of the work of our status of women committee, reflected in our government's commitment to tackling gender-based violence and promoting gender equality as a priority. Efforts like the establishment of a national strategy to address gender-based violence and the allocation of $12 million through the victims fund for projects are designed to improve the criminal justice system's response to sexual assault against adults. This funding is going toward initiatives pursued by the provinces and territories to support victims of sexual assault to receive independent legal advice or the development of awareness raising for the judiciary on gender-based violence. These initiative are important and will contribute to making the justice system more responsive to the needs of survivors of sexual assault.

Furthermore, our government has made judicial education a priority. In April 2017, we announced nearly $100,000 in new funding to the National Judicial Institute to develop training for federally and provincially appointed judges that will focus on gender-based violence, including sexual assault and domestic violence. Additionally, budget 2017 provided funding to the Canadian Judicial Council to support judicial education and training. This funding will ensure that more judges have access to professional development with a greater focus on gender and diversity training.

I urge all members of the chamber to support Bill C-51. I believe this bill is critically important in ensuring that survivors of sexual assault are treated with the respect and dignity they deserve.

[Marco Mendicino, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, our government was proud to introduce Bill C-51 on June 6, 2017. That day marked an important milestone in our ongoing efforts to make the criminal law fairer, clearer, more relevant, accessible, and compassionate.

Since that time, Bill C-51 has been the subject of extensive and compelling debate both at the second reading stage and during its study by the House of Commons Standing Committee on Justice and Human Rights.

I want to offer my thanks to the many members who have participated in these debates and to members of the standing committee in particular, whose deliberations strengthened Bill C-51 through amendments that seek to further the objectives we identified when we introduced this important legislation.

I would also like to extend my great appreciation to the many witnesses who took the time to examine the bill and appear before the Standing Committee on Justice and Human Rights. Although I may not agree with all the points that were made by the witnesses who spoke to this bill, I fully recognize the importance of their contributions because they have allowed Parliament to have a rich and thorough discussion on the bill.

I now want to walk through the changes included in Bill C-51. These have received broad support in this House, at committee, and among key stakeholders.

Bill C-51 seeks to address sexual assault, an issue that could scarcely be more relevant, given the present Canadian and international discourse on this important subject. Survivors of sexual assault and other forms of sexual misconduct are standing up and speaking out as never before. I am proud to say that our government stands behind survivors and that we are adding our voice to theirs by bringing change on numerous fronts, including the reforms set out in Bill C-51.

The bill proposes amendments that build upon an already robust legal framework that has been consistently regarded as one of the best sexual assault regimes in the world. However, despite its explicit acknowledgement that outdated myths about a victim's sexual history should have no bearing on whether she should be believed, and despite the clear rules about when consent is or is not valid in law, challenges remain.

What are those challenges? We know that sexual assaults continue to occur far too often in Canada. According to Statistics Canada, there were approximately 21,000 police-reported sexual assaults in Canada in 2016. That is an average of 57 sexual assaults every day in Canada. That number is staggering, but when, according to the general survey on victimization, only five per cent of sexual assaults experienced by Canadians over 15 are reported to the police, the likely number of actual sexual assaults that occur every day in Canada becomes unfathomable and could well be over 1,000 incidents every day. When thinking about those numbers and the fact that so many cases of sexual assault go unreported, we must think about what we can do to not only reduce the incidence of sexual assault in Canada but ensure that more victims, and let us be clear that this is a gender-based crime that disproportionately targets women and girls, feel encouraged to come forward to report their experiences to the police and to law enforcement.

One way we can, at the federal level, help encourage women to come forward is through law reform that increases the likelihood that our laws will be applied as they were intended, and in so doing, reduce the potential for unnecessary distress experienced by victims who participate in the criminal justice process. That is what Bill C-51 proposes to do. As introduced, it would make important changes to clarify the law, including by making clear that consent must be affirmatively expressed by words or actively expressed through conduct. This principle would codify the Supreme Court of Canada's 1999 Ewanchuk decision and make clear that there is no consent unless the complainant said yes through words or through conduct. Passivity is not consent.

We have also codified the principle set down by the court in its 2011 decision in R. v. J.A., where the court held that a person cannot consent in advance to sexual activity that occurs while they are unconscious.

The Standing Committee on Justice and Human Rights heard a number of witnesses on this particular amendment. Some witnesses expressed their support for this codification, but others argued that it did not entirely or accurately codify the court's findings in R. v. J.A. Those witnesses argued that J.A. stands for a broader proposition. They noted that the court held that our consent law requires ongoing conscious consent and that partners have to be capable of asking their partners to stop at any point. Our government was listening carefully to witnesses and members, and we are pleased to support the committee's amendment to Bill C-51 that would codify this broader principle from J.A. Doing so is in keeping with the objectives of the bill, including to ensure that the Criminal Code is clear and reflects the law as applied by the courts.

Bill C-51's proposed sexual assault reforms do more, however, than simply codify key Supreme Court decisions. They will also create a new regime governing the admissibility of evidence in the hands of an accused person, where that evidence is a complainant’s private record. At its core, this regime is anchored in the following key principles.

First, it respects the fair trial rights of the accused in that it does not prevent relevant evidence from being used in court. The Supreme Court has already recognized that an accused's right to full answer and defence does not include a right to defence by ambush.

Second, it acknowledges the privacy interests of a complainant. While privacy interests do not trump all else, the regime seeks to acknowledge that victims of sexual assault and other related crime, even when participating in a trial, have a right to have their privacy considered and respected to the greatest extent possibly.

Finally, the regime seeks to facilitate the truth-seeking function of the courts by ensuring that evidence that is clearly irrelevant to an issue at trial is not put before the courts, with its potential to obfuscate and distract the trier of fact.

These are important changes and ones that have been called for by Parliament. In their 2012 report on the third-party-records regime in sexual assault proceedings, the Senate Standing Committee on Legal and Constitutional Affairs recommended the enactment of a regime governing the admissibility of a complainant's private records in the hands of an accused. I am pleased that we are doing so as part of Bill C-51.

The second major aspect of Bill C-51 is its proposal to clean up the Criminal Code by removing offences that are no longer relevant because they address conduct that is not inherently blameworthy, because the criminal law should not be used to target such conduct, or because the conduct is addressed by other offences of general application.

To be clear, a foundational principle upon which our criminal law is based is that of restraint. This means that we, as parliamentarians, should ensure that criminal offences, with all the attendant stigma and consequences associated with being called a criminal, are only used to address conduct that cannot or should not be addressed through other mechanisms. Bill C-51 would reflect this principle by removing offences such as the prohibition on advertising the return of stolen property “no questions asked”, a provision under section 143; making crime comics; challenging someone to a duel; and impersonating someone during a university exam.

I am confident that removing these offences will have no adverse consequences and will help make our criminal law more reflective of the values Canadians hold dear in 2017.

Bill C-51 would make other important changes to remove offences that are no longer pertinent in today's society. One such example is the removal of the offence of blasphemous libel under, currently, section 296. This old offence, with its English origins in the 1600s, has as its purpose the suppression of criticism directed at God, the king, and government. Such an offence is a historical holdover and has no place in a liberal democracy, where freedom of expression is enshrined as a constitutionally protected right. In so removing this offence, we would follow the example of the United Kingdom, which repealed its analogous offence almost a decade ago, in 2008.

During the committee proceedings on Bill C-51, we heard testimony from the Centre for Free Expression that we should go further and that in addition to repealing blasphemous libel, our government should be repealing the offences targeting seditious and defamatory libel as well. Although such amendments would have been outside the scope of the bill, these are interesting suggestions, and they do indeed warrant further discussion.

I know, for example, that England abolished its seditious libel offences in 2009. I also know that there are divergent opinions on whether defamatory libel should be criminal. We have all benefited from the discussion on these proposals, and our government will take them under advisement as we continue to examine ways to make our criminal law and criminal justice system more reflective and responsive to the realities of Canada today

Before moving on, let me talk briefly about the amendment made by the standing committee to Bill C-51, which is supported by our government, that seeks to retain section 176, the offence of interfering with religious services. As the minister said when she appeared before the committee to discuss the bill, the repeal of section 176 would, in fact, not leave a gap in the criminal law's ability to meaningfully respond to the conduct captured by this offence. She also said that its removal would not in any way undermine the ability of Canadians to practice their faith freely and free from violence. Both statements remain true today.

At the same time, we appreciate and acknowledge that for many stakeholders, the removal of the offence would send the wrong message and that in an era when xenophobia and religious intolerance are all too frequent, Parliament has a responsibility to ensure that its actions do not, directly or indirectly, provide opportunities for the promotion of such intolerance.

Our government was listening carefully to members of the religious community, and I am pleased to say that we will support not only the retention of section 176 but an expansion of that section to ensure maximum inclusivity.

By way of conclusion on this point, I would note that intolerance of any kind is simply unacceptable, and I know that the vast majority of Canadians, even when they may not share the same religious convictions as their neighbours, will conduct themselves in a manner that is respectful and welcoming. Intolerance that leads to threats or violence must be swiftly addressed by the police, and I know that the criminal law provides them with a broad range of tools to effectively respond to such conduct.

Bill C-51 also reflects our government's unwavering commitment to respect the Charter of Rights and Freedoms. It does so in a number of ways. First, Bill C-51 proposes to amend provisions that have been found unconstitutional by our courts.

In this vein, Bill C-51 builds on the work we started with Bill C-39, which we introduced on March 8, 2017. Bill C-39 repeals provisions found unconstitutional by the Supreme Court of Canada, as well as the prohibition against anal intercourse that has been found unconstitutional by numerous courts of appeal.

Bill C-51 seeks to repeal provisions found unconstitutional by appeal courts, and in some cases trial courts, in circumstances where there can be little doubt as to their unconstitutionality. For example, Bill C-51 seeks to repeal the rule that prevents judges from giving enhanced credit for pre-sentence custody for offenders who were detained due to a bail breach. This rule has been found unconstitutional by the Manitoba Court of Appeal and creates a situation where similarly situated offenders can receive substantially different credit for pre-sentence custody, which can undermine public confidence in the administration of justice.

Bill C-51 also proposes to amend a number of provisions that could result in an accused's being convicted for an offence, even though they raised a reasonable doubt as to their guilt. Such an outcome is at odds with the most basic rules and fundamental principles upon which our criminal law is based, not to mention our charter rights.

These changes are important, and we are not waiting for costly unnecessary charter litigation to tell us that these rules are unconstitutional. Making these changes would ensure that our criminal justice system is more efficient and continues to hold offenders to account while reinforcing the fundamental principle that it is the state that bears the responsibility of proving offences beyond a reasonable doubt.

Our respect for the charter is also evident in the changes we are proposing to the Department of Justice Act. Although these changes have not been the subject of significant debate or commentary, a number of witnesses who testified before the justice committee welcomed this innovation in our law.

The amendments proposed in Bill C-51 will require our government, and all future governments, to table in Parliament a statement outlining the potential charter effects of all government legislation. The Minister of Justice has been doing this already as a matter of practice, but with Bill C-51, it will become an obligation.

These charter statements provide information to Parliament, stakeholders, and the public writ large about the charter rights and freedoms that are potentially engaged by a bill and set out how they may be engaged.

In the charter statement for Bill C-51, for example, the sexual assault reforms are discussed and an explanation is provided on how they interact with an accused's section 7 right to life, liberty, and security of the person. The charter statement further notes how a failure to remove unconstitutional laws can undermine the rule of law, create confusion, and make our Criminal Code less accessible.

I am proud of these reforms and believe that charter statements will quickly become a critical resource for justice system participants, parliamentarians, and members of the public who are interested in learning more about how our laws may engage the charter.

Let me conclude by again thanking all members for their excellent deliberations on Bill C-51. The widespread support it has received is testament to its importance and the need to move forward with these changes. I look forward to continuing to follow Bill C-51's passage through Parliament, and will continue to work diligently to bring forward the kinds of changes needed to address the most pressing challenges facing our criminal justice system today.

Expungement of Historically Unjust Convictions Act

[Mark Holland, Liberal, Parliamentary Secretary to the Minister of Public Safety and Emergency Preparedness]

Mr. Speaker, it is an honour to rise in the House today to speak to Bill C-66.

I, along with all members, was in the House for the landmark apology that was offered by the Prime Minister to the LGBTQ2 community. The apology was then echoed by every party leader in the House. It was an incredibly moving moment.

I remember debating same sex marriage in the House. I remember how difficult the debate was and how proud I was to support the legislation at the time. To see how much progress we have made on this issue as a country is very heartening.

I attended an event that the Canadian Human Rights Voice hosted, where Todd Ross was honoured, and he shared his story. He served in the Canadian military with distinction. However, as a very young man, he was forced, through lie detector tests, to come out to two strangers in a room that he was gay, before he had the opportunity to come out to anybody else, and he was forcibly removed from our military. To hear him share his story, and what that apology by our Prime Minister and every party leader meant to him was so important. We already see the effects of that apology. However, that apology in and of itself is not enough.

The Prime Minister's assertion that the injustices will never be repeated again, that we will not make the same mistakes is essential. Therefore, it is absolutely critical that we work with the lesbian, gay, bisexual, transgender, queer, and two-spirit communities to make right past wrongs and to ensure this never happens again. We are proud of the relationship we have with this community, but we recognize how much work needs to be done. Bill C-66 is a critical part of that.

It is difficult for many of us to fathom that there was a time in our history where laws allowed persons to be charged, prosecuted, and criminally convicted simply because of who they loved. LGBTQ2 Canadians were humiliated, imprisoned, and saddled with criminal records because of their sexual orientation. They were forced to live with permanent stains on their lives when they had done nothing wrong, until now.

Bill C-66, the expungement of historically unjust convictions act, would create a process to permanently destroy the records of a conviction of offence involving consensual activity between same sex partners that would be lawful today. It would give the Parole Board of Canada jurisdiction to order or refuse to order expungement of a conviction. It would deem a person convicted of an offence for which expungement was ordered never to have been convicted of that offence.

This is very different from other processes that currently exist today. For example, a record suspension or pardon, the purpose of which is to remove barriers to reintegration for former offenders, does not destroy the criminal record. It sets aside for most purposes, but the criminal record could be disclosed or revoked in certain circumstances when public safety is at risk. Also, record suspensions or pardons cannot be granted posthumously, meaning those who have died do not get an opportunity to have their name cleared.

In contrast, the government fully recognizes that those convictions constitute a historic injustice and that they should not be viewed as former offenders. They are not only wrong today but they were wrong then, in violation of our charter, and of fundamental rights. These convictions were for an act that should never have been a crime. However, this expungement process will allow these convictions to be fully and permanently removed from federal databases.

For thousands of Canadians impacted, the process will be straightforward. Applying will be free of charge. Those eligible to apply directly can do so to the Parole Board. In the case of deceased persons, a family member, loved one, or other appropriate representative will be able to apply on their behalf. This is consistent with the recommendation of Egale Canada's human rights trust.

Applicants will need to provide evidence that the conviction meets certain criteria, including that the act was between same-sex individuals, that it was consensual, and that those involved were at least 16 years of age or subject to a close in age defence under the Criminal Code.

Upon confirmation of a successful application, the record of the conviction can be destroyed. That means once the Parole Board orders expungement, the RCMP will permanently destroy any record of the conviction in its custody. It will also notify any federal department or agency that to its knowledge has any records of the conviction and direct it to do the same. Relevant court and municipal and provincial forces will be notified of the expungement order as well.

Expungement offers more than a clean criminal record check. It is recognition that the conviction was unjust and that it never should have occurred in the first place. It is recognition that it was inconsistent with the fundamental rights now protected under the charter of rights and freedoms.

All of this is not to say that there will be blanket expungement. Indeed, we want to ensure we are only catching those who meet the set criteria. Criminal records for individuals convicted of non-consensual sexual activity will continue to be upheld. Applications submitted for an ineligible offence or by an ineligible applicant will also be rejected. Furthermore, an automatic expungement process would be irresponsible as it could result in the expungement of records for acts that are still criminal.

However, those eligible will find the process to expunge their record very straightforward. This includes military service members whose offences sometimes were prosecuted under the National Defence Act. That is why we have allowed for a schedule of eligible offences that will apply to convictions under the Criminal Code as well as convictions under the National Defence Act.

Applications must be for offences listed in the schedule of the act, and initially this will include buggery, gross indecency, and anal intercourse.

The act would allow for the Governor-in-Council, in future, to make other historically unjust convictions eligible for expungement by amending the schedule of eligible offences, and as necessary, criteria through order in council.

Given the historic nature of these offences, if court or police records are not available, sworn statements may be accepted as evidence.

It should be noted that anyone attempting to mislead the Parole Board about a historical offence can be charged with perjury.

To put all of this in place, the government has set side $4 million over two years to implement this new process. Proactive outreach will also be undertaken to increase awareness of the initiative, the criteria, and the application process among potential applicants. The government will work with federal partners and stakeholders from the LGBTQ2 community to inform potential applicants.

It is now incumbent upon us to ensure that happens sooner rather than later.

The moment the bill is passed we can begin accepting applications, which is why I would urge all members to pass the bill as expeditiously as possible. The Parole Board of Canada can begin accepting applications as soon as this legislation is brought into force.

At the same time the government introduced the bill, it announced a settlement in the class action lawsuit for actions related to the purge. This will provide up to $145 million to former public servants and military and RCMP members impacted by state-sponsored systemic oppression and rejection.

The agreement in principle also includes a minimum investment of $15 million by the Government of Canada for projects that will record and memorialize those historic events, so we never forget our past, so we never repeat it again in the future. That includes museum exhibits curated by the Canadian Museum of Human Rights. It includes a national monument located right in Ottawa, along with an education package memorializing the historic discrimination against the LGBTQ2 community.

As I have mentioned, all of this represents an important step but not a panacea. Working to create the inclusive and diverse country we want will take sustained effort and collaboration on all our parts.

As the Prime Minister noted in his apology, “Discrimination against LGBTQ2 communities is not a moment in time, but an ongoing centuries-old campaign. We want to be a partner and ally to LGBTQ2 Canadians in the years going forward.”

That is why we have been and will continue to work hard to address issues impacting lesbian, gay, bisexual, transgendered, queer, and two-spirit individuals.

I am deeply proud of what the government has accomplished to date and of the work that is still ongoing. Just over a year ago, the Prime Minister named the hon. member for Edmonton Centre as his special adviser on LGBTQ2 issues. An LGBTQ2 secretariat has also been established within the Privy Council to support government initiatives on these issues.

With the recent passage of Bill C-16, gender identity and gender expression are now prohibited grounds for discrimination under the Canadian Human Rights Act. Bill C-16 also expands hate propaganda offences in the Criminal Code to protect identifiable groups that are targeted for their gender identity or expression. Another piece of legislation, Bill C-39, has been introduced to repeal section 159 of the Criminal Code.

Work is also under way to develop a long-term vision for blood services that ensures safety and non-discrimination in donation practices. In fact, the Minister of Health was instructed in her mandate letter to work with the provinces and territories toward that very goal.

The government is working toward adopting policies and practices that remove unnecessary collection of gender markings in government forms. We are also working to introduce an X gender designation on passport applications. This would ensure Canadians who do not identify as either male or female receive the same services and support as everyone else does.

The government also plans to commemorate the 50th anniversary of the decriminalization of homosexuality in 2019. It will do so by providing funding for initiatives that increase awareness of the people, actions, and struggles that led to that milestone.

For example, more than $770,000 in federal funding will be provided to the Egale Canada Human Rights Trust to support the “Legalizing Love: The Road to June 27, 1969” travelling exhibit project.

I am also proud to note that Canada is actively promoting LGBTQ2 rights on the international state, including as co-chair of the Equal Rights Coalition.

Since 2014, we have provided $2.9 million in funding for projects that support violence prevention programs, awareness campaigns, and advocacy efforts in support of LGBTQ2 communities abroad. These include initiatives aimed to combat homophobia, transphobia, and biphobia in education systems.

In Canada, we know that LGBTQ2 youth have a disproportionately high rate of homelessness. According to a 2016 Statistics Canada study, while members of LGBTQ2 communities make up between 5% and 10% of our population, they represent between 25% to 40% of our homeless youth. A new and unique facility, currently under construction in Toronto, will be exclusively dedicated to serving this very vulnerable group. The Egale Centre will offer transitional and emergency housing, as well as counselling services, for homeless LGBTQ2 youth.

Last week, the government announced just over $47,800 in federal funding to help improve the Egale Centre's security. The funding will be used for the installation of security cameras and access control systems. The enhanced security measures will mean greater peace of mind and a safer and more secure facility, for the benefit of the Egale Centre's residents, staff and volunteers.

I am proud to stand with a government that is committed to protecting the fundamental human rights of all Canadians. All people, regardless of sexual orientation, gender identity, and gender expression must be able to live their lives free from stigma, violence, discrimination, or prejudice.

Sadly, as we know, there was a time in our history when the prevailing attitude to LGBTQ2 issues was very different from today. People could be criminally charged and convicted simply because of their sexual orientation. The could lose their jobs, their livelihoods, and their loved ones, or be barred from serving their country. They could be bullied, ostracized, and made a pariah by their own government.

The landmark bill we are discussing today is an important and necessary step toward righting the historical discrimination faced by LGBTQ2 Canadians for so many years. It is a key step we are taking, but is only one of many. It is in the context of a world in which calls for equality are slowly being answered.

Just yesterday, the legalization of same-sex marriage occurred in Australia. It joined countries like the U.K., Germany, and many others. They are also looking at making reparations for the historic discrimination that happened to the LGBTQ2 communities within their countries.

We remain in a world in which many LGBTQ2 individuals are still forced to live in fear, fear of being rejected, fear of being hated, fear of facing violence or even facing death, just because of who they love. Sometimes the gaps appear so far apart, they are like worlds we cannot bring together. However, as the proverb goes, a river cuts through rock not because of its power, but because of its persistence, and the calls for an inclusive world in which diversity can thrive are stronger and more persistent than ever. The apology that was given by all of the leaders in this House was demonstrative of that. The fact that we can come together as a House and be able to stand and acknowledge our part with respect to the wrongs of the past, as well as to be able to talk about the future we want, not only for our country but for all people across the world, about basic human rights, and the right as basic and as simple as being able to love the person that one loves without fear of reprisal, is something that we can stand for and propagate.

I am proud to introduce this bill. I urge all members to support it expeditiously.

Justice

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

Mr. Speaker, last year the conviction of Travis Vader on two counts of second degree murder was vacated after the trial judge applied a section of the Criminal Code that had been found to be unconstitutional all the way back in 1990, and yet there it was still in the Criminal Code 26 years later. After waiting six years for justice, the McCann family was obviously devastated by the vacated convictions.

In March, the Minister of Justice introduced Bill C-39 to see the removal of constitutionally inoperative sections from the Criminal Code. Yet eight months later, the minister has done absolutely nothing to move Bill C-39 forward and absolutely nothing to see that what happened to the McCann family never happens again. It is time for the minister to stop the delay and pass Bill C-39.

Human Rights

[Mélanie Joly, Liberal, Minister of Canadian Heritage]

Mr. Speaker, as I said already in French, all Canadians should be safe to be themselves, free from discrimination of any kind.

We have already made significant progress in this House on these issues with Bill C-16 and Bill C-39. Our special adviser on LGBTQ2 issues, the MP for Edmonton Centre, has been working with the community concerning the different issues that affect them in their everyday lives.

We have committed to apologize in an inclusive and meaningful manner tomorrow. Our government is working with a national advisory committee representing the community, to make sure that these excuses are—

[Mélanie Joly, Liberal, Minister of Canadian Heritage]

Mr. Speaker, all Canadians should feel safe to be themselves, free from discrimination. We have already made significant progress on these issues with Bill C-16 and Bill C-39.

Our special adviser on LGBTQ2 issues, the member for Edmonton Centre, has been consulting extensively with the community to ensure that we give a full and meaningful apology.

We are committed to making this formal apology tomorrow, November 28. Our government is working with the national advisory committee representing the community to make sure that this is a full apology.

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Canadian Heritage (Multiculturalism)]

Mr. Speaker, all Canadians should be safe to be themselves, love whom they choose, and be free from discrimination of any kind.

We have already made significant progress on these issues with Bill C-16 and Bill C-39. Our special adviser on LGBTQ2 issues, the member for Edmonton Centre, has been working hard and consulting broadly with the community to ensure that when an apology happens, it will be thorough and complete. That applies to veterans who are LGBTQ as well.

Funds have been allocated for things like the expungement of records. We will be addressing the issues of veterans.

Criminal Code

[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.