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

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Speaker, I hope that everyone in this House will join me.

The fourth element is on reclassification of offences. Reclassification of offences is another key element of Bill C-75 that will modernize and streamline the Criminal Code and promote a more efficient and economical use of judicial resources.

Hybridizing offences that are punishable by a maximum penalty of two, five and 10 years' imprisonment gives the provinces and territories greater flexibility to match their resources to the cases based on the offender's circumstances and the gravity of the case.

However, this reclassification would not change the fundamental sentencing principles. The classification reforms do not reduce penalties. Serious offences will continue to be treated seriously by the courts.

The other place's amendments 1, 10, 11, 13 and 14 are about the reclassification of offences and touch on areas for which witnesses expressed concerns about amendments potentially having unintended consequences.

Amendment 1 would allow a court to order DNA sampling for offences punishable by five and 10 years' imprisonment. Bill C-75 would hybridize those offences, and DNA orders are already issued for them. This amendment is consistent with the objectives of the bill, and I urge the House to join me in supporting it.

I would also urge the House to join me in supporting amendment 11, which would amend the Identification of Criminals Act to state that a person accused of a hybrid offence can be fingerprinted even if the prosecutor opts to proceed by way of summary conviction.

Amendments 13 and 14 are consequential amendments relating to the coming-into-force date of the specified provision if amendment 12 is agreed to.

The other place's amendment 10 attempts to respond to concerns that a number of stakeholders made regarding the unintended impact of Bill C-75's proposed amendments to increase the maximum penalty for most Criminal Code offences with a summary conviction penalty to two years less a day.

Currently section 802.1 makes clear that agents, including law students, articling students, paralegals and others, cannot appear in summary conviction proceedings where the maximum term of imprisonment is greater than six months, unless the agent is authorized under a program approved by the lieutenant governor in council of the province or the accused is an organization.

The Standing Committee on Justice and Human Rights amended section 802.1 to allow provinces and territories to establish criteria in addition to their existing authority to approve programs, authorizing agents to appear in summary conviction proceedings where the maximum penalty was more than six months and to allow agents to attend court in place of the accused to seek an adjournment of the proceeding on all summary conviction matters without prior authorization.

These amendments maintain jurisdictional flexibility in this area of criminal procedure while also recognizing regional diversity and how legal representation is regulated across Canada.

The proposed other place's amendment would add a provision that would also allow agents to appear where they are authorized to do so under the law of a province. We are concerned that there might be unintended results to this amendment. As I stated earlier, this bill is the product of considerable consultation with provinces and territories and there has not been sufficient time to analyze and ascertain what the effect of this amendment would be under existing provincial and territorial laws.

Moreover, provinces and territories already have flexibility to quickly address any consequences of the reclassification scheme on agents through the amendments made to the bill in this place last December. Using the proposed new power to do this through criteria or a program established by the lieutenant governor in council is a much faster process than legislative reform.

For these reasons, we do not support the other place's amendment 10.

The fifth element is about strengthening case management. Bill C-75 will strengthen Criminal Code provisions to improve case management.

The sixth element is about improving the jury selection process. Bill C-75 will also improve the jury selection process by eliminating the potentially discriminatory use of peremptory challenges, making the selection process more transparent, promoting fairness and impartiality and making jury trials more efficient in general.

The seventh key area was implementing other additional efficiencies. One of the most widely supported aspects of the bill is the promotion of additional efficiencies, including through the use of technology where available to facilitate remote appearances.

Bill C-75 also includes reforms proposed in three bills that were previously introduced as separate bills: Bill C-28, victim surcharge; Bill C-38, exploitation and trafficking in persons, and Bill C-39, repeal of provisions ruled unconstitutional.

The other place's amendments 5, 8 and 9 respond to the December 14, 2018, decision of the Supreme Court of Canada in R. v. Boudreault, which struck down the provisions in the Criminal Code related to the federal victim surcharge, used by provinces and territories to partially fund their victim services.

The other place's amendments re-enact a new victim surcharge regime that requires the imposition of a surcharge in all cases, but provides greater judicial discretion to depart from imposing the surcharge in appropriate cases, in order to address the concerns of the Supreme Court decision.

I believe the victim surcharge amendments will restore the necessary judicial discretion to ensure that the sentence imposed in each case is fit and proportionate. I urge this House to join me in supporting these amendments. These are changes that I know my provincial and territorial colleagues are awaiting.

In conclusion, as we can see, this bill contains a number of crucial measures to reduce delays in the criminal justice system. These measures will help modernize and simplify the system, while at the same time providing additional safeguards for vulnerable victims and restoring the ability to collect the federal victim surcharge.

Last, but not least, these amendments represent an important step towards reversing the historically disproportionate impact of the criminal justice system on indigenous peoples and marginalized peoples.

We must work together to ensure that this bill is passed before we adjourn for the summer.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Consideration of Senate Amendments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(i) unable to understand the nature, circumstances, risks and consequences of the sexual activity in question,

(ii) unable to understand that they have the choice to engage in the sexual activity in question or not, or

(iii) unable to affirmatively express agreement to the sexual activity in question by words or by active conduct;

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

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

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

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

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

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

Further, some have noted that the weakness is in the definition of what constitutes non-consent. According to a legal expert who provides sexual consent training to judges, there is not enough precedent or awareness among judges to believe that the proposed wording in clause 10 and clause 19 of the bill is clear enough.

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

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

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

Bill C-51—Time Allocation Motion

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

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

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

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

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

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

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

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

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

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

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

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

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

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

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

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

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

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

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

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

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

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

Criminal Code

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

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

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

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

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

[Arif Virani]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Although the slogan ‘Believe the victim’ has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our Constitution and the values underlying our free and democratic society.

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

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

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

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

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

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

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

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

moved:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Jim Eglinski, Conservative, Yellowhead, AB]

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

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

[Jim Eglinski, Conservative, Yellowhead, AB]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you for the opportunity to present my views.

Motions in amendment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you, Mr. Chair.

I fully support this clause. I certainly support the repeal of section 159, but I have to say I don't understand why it has taken this government so long to repeal this zombie section of the Criminal Code.

I can remember back in the fall of 2016 the government announced Bill C-32, with great fanfare about how it was going to repeal section 159. It was such a priority of this government, but that bill remains stuck at first reading, two years later. Then it tried again and introduced Bill C-39 on March 8 of 2017, to again repeal section 159. That was such a priority of this government that the bill remains stuck at first reading—by the way, to the chagrin of the McCann family in my riding, who have suffered as a result of the misapplication of the zombie law.

Now finally they've thrown it into this very flawed piece of legislation. Perhaps it's one of the few good things to come out of Bill C-75. Again, I'm happy to support it. It's just disappointing that it's been two years.

[Ali Ehsassi]

I am here this afternoon in my capacity as chair of the All-Party Parliamentary Group for the Prevention of Genocide and other Crimes against Humanity, hereafter referred to as GPG. I am here to discuss Bill C-75, in particular, the hybridization aspects of the bill impacting subsection 318(1) of the Criminal Code, incitement to genocide.

Before I continue I should stress that while I am here in my capacity as chair of the GPG, my views do not necessarily reflect the views of the GPG as a whole, nor the views of its individual members.

I also believe that a brief summary of the GPG's history, operations and mandate will provide some context to our approach to Bill C-75 and subsection 318(1) of the Criminal Code.

The GPG was founded in 2006 by Senator Roméo Dallaire to provide members of Parliament and senators with a non-partisan forum for co-operation on issues of pressing humanitarian concern. Currently comprised of 36 members from across party lines, the GPG works to inform parliamentarians about ongoing conflicts, and through close collaboration with partners, experts and stakeholders, crafts strategies to help prevent genocide and crimes against humanity.

Since its inception the GPG has conducted studies and meetings on humanitarian crises in Burundi, Darfur, the DRC, Myanmar and Yemen, and it has established close working relationships with Amnesty International, the Montreal Institute for Genocide and Human Rights Studies, the Stanley Foundation, the Roméo Dallaire Child Soldiers Initiative and the Digital Mass Atrocity Prevention Lab, to name a few.

The GPG, in other words, has largely been a forward-looking and globally oriented institution. The fields of human security, human rights and atrocity prevention have always, rightly or wrongly, been largely oriented toward studies of foreign policy and related fields such as security studies, international law, international trade and international development. It is somewhat unusual, therefore, that our group has been asked to comment on what is essentially domestic legislation and jurisprudence.

However, the changes in proposed section 318 of Bill C-75 clearly relate to domestic genocide prevention and incitement to hatred laws. Although such relatively minor modifications constitute only a small part of the sweeping changes included in Bill C-75, we have a duty to examine the potential impact and side effects. Moreover, given the leadership role Canada has always observed in matters of human rights and genocide prevention, it is imperative that our laws relating to genocide and atrocity prevention remain second to none.

As you are aware, Bill C-75 seeks to modify the wording of subsection 318(1). The existing wording of the section reads:

Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

The proposed revised wording would read:

Every person who advocates or promotes genocide is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

These changes are part of the hybridization efforts included in Bill C-75, which I broadly support, and which seeks to improve access to justice by giving the Crown the necessary discretion to elect the most efficient mode of prosecution evaluated on a case-by-case basis. Hybridization will reduce court time consumed by less serious offences while freeing up limited resources for more serious offences. Of course there are few offences more serious than advocating genocide, which is why these amendments must be taken very seriously.

The first of these changes, which substitutes “every one” with “every person” appears multiple times in Bill C-75 and merely appears to be part of a broader effort to modernize the language in the Criminal Code. It is difficult to see how this change would have any impact on Canada's genocide prevention regime.

The second and more substantive change seeks to hybridize incitement to genocide as punishable via summary conviction. This change, which represents one of approximately 170 clauses in the Criminal Code being hybridized or reclassified, will allow prosecutors to pursue summary convictions for offences that would have a shorter sentence.

The proposal hybridizes all straight indictable offences punishable by a maximum penalty of 10 years or less, which is why clause 318 was captured. It also increases the default maximum penalty to two years less a day of imprisonment for all summary offences and extends the limitation period for all summary conviction offences to 12 months from the current six months.

It is important to note that subsection 318(1) has rarely been invoked in Canadian courts. The practical impact of this modification may ultimately prove negligible. However, given the extremely serious nature of the issue at hand, as well as Canada's moral obligation to serve as a leader in the field of genocide prevention, this committee should support an amendment to Bill C-75 ensuring that incitement to genocide provisions are not included within the otherwise prudent attempts at hybridization and reclassification.

Moreover, there is precedent within this bill for not hybridizing specific elements of the Criminal Code. Offences that would be repealed in Bill C-39 and Bill C-51 are excluded from the hybridization process. Furthermore, nine other indictable offences that are currently punishable under mandatory minimum penalties would not be hybridized either.

To be more specific, I'm referring here to subsection 92(3), which relates to possession of firearms, knowing possession is unauthorized; section 99, which relates to weapons trafficking; section 100, which relates to possession for purposes of weapons trafficking; section 103, importing and exporting firearms; section 202, relating to bookmaking; section 203, placing bets on behalf of others; section 279.03, which relates to withholding documents; section 286, which relates to purchasing sexual services; and lastly section 467, which relates to the recruitment of criminal organizations.

Therefore, given both the practical importance and symbolic value of subsection 318(1), we feel that this section should be included amongst the carve-outs referenced above. The fact that section 318 has almost never been invoked in Canadian courts is a testament to our tremendous good fortune and our dedication to diversity, human rights and human security. This good fortune has allowed Canada to serve as a global beacon for genocide prevention efforts. While I have every faith that Canada will continue in this noble tradition regardless of the outcome of Bill C-75, amending the legislation before us to ensure that genocide advocacy remains an indictable offence would once again send a clear message that this heinous act is incompatible with Canadian values.

I thank you for your consideration of this matter. I look forward to any questions you may have.

[Prof. Steve Coughlan]

I would note two things in that.

One is that it is worth observing that although the things that Bill C-39 would have done are duplicated in Bill C-75, Bill C-39 still exists. There is actually no reason that Bill C-39 couldn't be proceeded with, even if Bill C-75 is not.

On the go-forward basis, though, it seems to me that there's no good reason that the Department of Justice couldn't, every two years, have the charter cleanup bill. Year 2018 is what Bill C-75 will be, but why not the charter cleanup bill 2020, the charter cleanup bill 2022? It's just tiny little housekeeping tasks and, like any other housekeeping, you keep on top of it a little at a time and it doesn't become overwhelming.

It probably doesn't need to be done annually. It's not as though charter challenges are successful as often as that, but if biennially the Department of Justice simply looked at whether there are any of these basic administrative tasks that need to be done to the Criminal Code—and did that every two years—we'd stay on top of this.

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

Thank you, Mr. Chair.

Professor Coughlan, I appreciate your submission with respect to zombie laws. You mentioned the case of Travis Vader, who murdered Lyle and Marie McCann, an elderly couple from my home community of St. Albert. Following Justice Thomas's decision and under the leadership of our chair, this committee wrote a letter to the Minister of Justice calling on the government to introduce legislation to repeal “zombie” sections of the Criminal Code. Bret McCann, the son of Lyle and Marie McCann, approached me shortly thereafter, and he and I had a press conference, along with his wife Mary-Ann in St. Albert in December 2016.

You're quite right. In March 2017, the Minister of Justice did introduce Bill C-39, and then it sat at first reading. Nothing went forward. I asked the minister repeatedly about the reason for the delay on a matter that is not controversial. As you pointed out, there is no conceivable reason for unconstitutional sections of the Criminal Code to remain in the Criminal Code, in black and white, purporting to be the law. As a result, we're now faced with this situation. A very straightforward bill, which could have been passed with unanimity, is now tied to a massive omnibus bill.

I am in touch with the McCann family, and they are quite distressed. They have spoken out in deep frustration over this government's inability to get it done.

I should note—you mentioned section 159 of the Criminal Code respecting anal intercourse. Similar to the way the government handled section 230, they introduced a stand-alone bill, Bill C-32, back in the fall of 2016. They made a big fuss about it, but it was such a priority for the government that it remained stuck at first reading. No action was taken on it. They then reintroduced the repeal of section 159 with the introduction of C-39 on March 8, 2017. Again, it was such a priority that it's stuck at first reading. Now we have Bill C-75.

You are quite right when you note that it's not just this government. Previous governments didn't repeal unconstitutional sections. Going forward, if we can get these sections repealed, what do you suggest should occur to prevent this from happening again? Presumably this bill will pass and these sections will be removed, but inevitably there will be new sections dubbed unconstitutional. What steps should Parliament take to be proactive going forward?

[Professor Steve Coughlan, Professor, Schulich School of Law, Dalhousie University, As an Individual]

Thank you very much.

I'm pleased to have been invited to speak with you today about the portions of Bill C-75 that deal with removing the outdated provisions in the Criminal Code, specifically those that have actually been struck down by courts, as opposed to simply being out of step with the times.

This is an issue that I've been concerned with for decades and about which I've been advocating with the Department of Justice for several years now. We do seem to be on the verge of action being taken, finally, long overdue action. I am, of course, in favour of that. Indeed, it's difficult to imagine any basis upon which anyone could be opposed to doing this.

In September 2016, a trial judge in Alberta, as all of you will know, convicted Travis Vader of murder, relying on the offence set out in section 230 of the Criminal Code. Of course, section 230 of the Criminal Code is part of the constructive murder provisions and it was struck down by the Supreme Court of Canada 25 years ago. Unfortunately, despite its presence in the Criminal Code, it's not part of the criminal law of Canada.

This was exactly one of the flaws in the Criminal Code that a large group of criminal law academics pointed out to the Minister of Justice in a letter in December 2015. It was the same failure to update the code to remove constructive murder that led the British Columbia Court of Appeal to observe, in a 2010 decision:

I cannot leave these reasons without wondering why steps have not been taken to amend the Criminal Code to conform to the now 20-year-old decision of the Supreme Court of Canada in Martineau determining that language in s. 229(c) is unconstitutional. The law that is recorded in the statute, on which every citizen is entitled to rely, is not the law of the land. An issue such as arose in this case should not occur. It creates the risk of a miscarriage of justice and the potential need to incur significant costs addressing an error in an appellate court with the possible costs of a new trial, assuming one is practical. In my view, failure to deal appropriately with such matters by updating the Criminal Code to remove provisions that have been found to offend the Constitution is not in the interests of justice.

As I say, that's a 2010 decision called Townsend. They reached that conclusion by citing other judgments in which exactly the same thing had happened, ranging from 1997 on to 2008, in which juries had been told that the law around murder was what was set out in the Criminal Code, when of course, it's not. That seems like a glaringly obvious point but it's worth stressing it.

Section 19 of the Criminal Code says that ignorance of the law is no excuse. We rely on the fiction that every member of the public actually knows the law, but that's really only justifiable if it's possible for a person to find out the law. One of the key principles of fundamental justice, guaranteed by section 7 of the charter, is the principle of legality, the notion that the law must be knowable. It's why we have the strict construction rule of statutory interpretation. It's why section 9 of the Criminal Code abolished common law crime. It's the reason that laws can be struck down for being vague. If it's not clear enough what the law is, we say, then the law is unconstitutional.

We have all sorts of fundamental and important rules insisting on the language of the Criminal Code being as clear as it can possibly be, and yet, in that context, we have provisions that unambiguously state as the law what is unambiguously not the law, and we allow that to continue for decades. That is, frankly, dumbfounding.

The trial judge in the Vader case received a certain amount of criticism. At some level, that's understandable. We expect judges to know the law more than ordinary people do, but the general public doesn't have access to an annotated Criminal Code. The general public will go online. They're going to go to the Department of Justice's website, the official Government of Canada website, and they will look up the Criminal Code and it will lie to them about what the law is.

Of course, it's not just the general public; it's the police. The police should be able to look at a statute that actually reflects the law of Canada. When that's not the case, then of course we get the situation that we have faced in Canada, with dozens of people criminally charged with an offence that does not exist—the prohibition on anal intercourse in section 159.

Of course such charges are eventually thrown out, but that's of very little solace to the person who has been caused the embarrassment and expense of going through that procedure. We can say, “Well, you know, the police should have known better than to believe that the criminal law was what the Criminal Code said it was,” but that hardly seems like an answer.

Let's think again about the blame given to the judge in the Vader case, in not knowing that section 230 had been struck down. Okay, yes, he should have known.

On the other hand, all it means is that he failed to evade a trap that had been set for him. Surely a legitimate question to ask is why we are setting traps for our judges. If someone falls because they don't notice that their shoelaces have been tied together, a lot of the blame has to go to the person who tied the shoelaces together. If a judge doesn't notice a trap, which was set in the law, a good part of the blame has to go to the person who set the trap. In this case, that's Parliament. It's you. There is no good reason that this situation should have been allowed to continue for decades, but Parliament has allowed it to do so.

How much work would it have taken to avoid the pitfall that arose in the Vader case and the ones that can potentially arise from the other unconstitutional provisions? Realistically, a summer student in the Department of Justice, spending two hours some afternoon, could have headed this off. It's hard to see how the drafting or passing of such a bill could have occupied any real legislative time since the Supreme Court of Canada has already done all of the policy work of deciding that the provisions are unconstitutional.

Now it's fair to respond that not every situation is the same. When the constructive murder provisions were struck down, it was clear that nothing needed to be put in their place. When loitering, in paragraph 179(1)(b) was struck down, the Supreme Court provided some guidance as to what a constitutional law would look like, so you would have needed a bit of time to draft a new bill that was constitutional. When the abortion provisions were struck down in 1988, the Supreme Court didn't actually say that no abortion provisions could exist, just that these ones were no good, so yes, some time might have been needed to decide whether we would do something else instead, and if so, what.

The key point to note here, though, is that it only means that the second step might vary. The first step, invariably, is unchanging and utterly non-discretionary. The existing law is no law, and it has to be removed from the Criminal Code. Whatever might happen after that, there is no reason not to do that in the short term.

This leads, I have to say, to my major concern here today. As I've said, there is no conceivable reason, finally, after decades, no to remove these unconstitutional provisions from the Criminal Code. We nonetheless seem to be faced with the real possibility that this Parliament will not do it.

The provisions dealing with the removal of unconstitutional provisions used to be in their own bill. It used to be Bill C-39. For some reason, that bill, which contained nothing else and had no real possibility of attracting any controversy, and those sensible and uncontentious provisions have now been placed in Bill C-75, which contains many sensible and many contentious provisions.

Personally, I think some of those other proposals are very good, and some, I think, have just not been thought through, so it's difficult to actually tell whether they are wise or unwise. This bill needs to be thoroughly debated and passed through both Houses with barely a year left until the next election. It won't be surprising if that doesn't happen.

That means that we're faced here with the choice between rushing through potentially far-reaching reforms without adequate consideration as the price for solving a long-standing and fundamental problem, or allowing that long-standing and fundamental problem to continue as the price for not creating further and bigger ones. That's not an easy choice, and it is not in the least apparent as to why we should have been forced to it, or why Bill C-39 couldn't have been proceeded with on its own.

Ultimately, I do commend to you the portions of Bill C-75 that do the sensible thing of removing these unconstitutional provisions, and I hope there is some fashion in which that can happen, whether the rest of this bill goes forward or not.

Thank you.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

As the member knows, the removal of section 159 by Bill C-75 is something that has been long-standing since we introduced Bill C-39 to ensure that we do some charter cleanup.

Section 159 in the Criminal Code has been rendered unconstitutional. It is discriminatory. Our government is committed to ensuring the rights of all Canadians and equality for all Canadians.

Another example would be the introduction and passage of Bill C-16, which you're very familiar with, with regard to gender identity and expression. It's an ongoing commitment to ensure the human rights and equality of all individuals.

Criminal Code

[Colin Fraser, Liberal, West Nova, NS]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The author goes on to state:

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

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

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

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

She goes on later to say:

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

Taken from the Ottawa citizen is the following:

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

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

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

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

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

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

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

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

[Tom Kmiec, Conservative, Calgary Shepard, AB]

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

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

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

[Anthony Housefather, Liberal, Mount Royal, QC]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[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.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

With respect to Bill C-39, as you say, it has now been put into Bill C-75, as has another very important piece of the legislation around victim fine surcharge and human trafficking.

In terms of time with regard to the passage or proceeding in the House, I'm not sure that's a question I can specifically answer. As to why we have put these bills into Bill C-75, it's to ensure that the important provisions that are contained within these proposed pieces of legislation are moved through. It makes sense to me, in terms of a thematic approach, to put these bills into Bill C-75, because they are all looking to amend the Criminal Code.

I hear the member in talking about the McCann family and the tragedy faced by the McCann family. We wanted to ensure, in then Bill C-39 and in Bill C-51 , that we do renovate the Criminal Code and that we do get rid of the unconstitutional provisions. I would look to the member, as well as to everybody on this honourable committee, to have vigorous debate and discussion about all of the provisions and proposals that are contained within Bill C-75. This committee and the legal and constitutional affairs committee of the Senate have been very diligent, and necessarily so, in terms of seeking that I and our government address delays in the criminal justice system. Bill C-75 does do that, as well as address the necessary changes we have proposed in terms of the victim fine surcharge to address indigent offenders, as well as get rid of the constitutional provisions beyond section 230, which the member talked about.

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

No, Madam Minister, I am not misrepresenting anything. I think I was quite clear that you are taking a sentence, under an indictable that is punishable by up to 10 years, and if it's prosecuted by way of summary conviction, the maximum is two years less a day, and it could be as low as a mere fine. That's not a misrepresentation; that's a fact.

I want to also ask you about Bill C-39, which was introduced on March 8, 2017. Lyle and Marie McCann of St. Albert were brutally murdered by Travis Vader. After waiting for justice for six years, the McCann family, just when they thought justice had arrived, found out that it had not arrived, because the trial judge applied an unconstitutional section of the Criminal Code, section 230.

To your credit, you did introduce Bill C-39 to repeal unconstitutional sections of the Criminal Code, but more than a year later, that bill is stuck at first reading. It has now been rolled into Bill C-75, which is a big bill. As you can see, it's a contentious bill. There is a lot of debate around it.

By contrast, with Bill C-39 there is no debate. I think there is a consensus, or near consensus, that we need to get unconstitutional sections of the Criminal Code out of the Criminal Code. I just don't understand, after more than a year, what the delay is and why it has been rolled into Bill C-39. Quite frankly, this could have been passed on a voice vote a year ago.

[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 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.

[Michael Spratt]

That's great. It's going to be the first time.

One of those positive aspects is the removal of reverse onus provisions. A fundamental principle of our justice system is that the crown and the state must prove all elements of the offence beyond a reasonable doubt. Reverse onus provisions have the effect of imposing legal burdens on an accused person. Presumptions of those types, a reversal of the burden like that, can conflict with the Canadian Charter of Rights and Freedoms and the constitutional right to be presumed innocent until proven guilty. Removing those reverse onus provisions is good, but practically speaking, that's pretty low-hanging fruit. It's not something that comes up on a daily basis, and it's not something that is going to change too much in our court.

The repeal of outdated offences, similarly, is a good thing. The Criminal Code should be a simple document. It should be a general document that we can apply to specific situations. We are all, after all, presumed to know the law. The more complex and, literally, weighty the Criminal Code becomes, the more mistakes will be made by members of the public, judges, and triers of facts. Offences like alarming Her Majesty, possessing crime comic books, or disrupting religious services are simply unnecessary and add to the complexity that ought to be avoided.

Any harm caused by those activities—for example, disrupting a religious service—is covered by other sections of the Criminal Code: general public disturbance sections, harassment sections, and sections dealing with threats or assaults. Of course, as my colleague said, any actions that are motivated by hate, prejudice, or extreme ideology can be adequately dealt with as an aggravating factor on sentencing, and they already are. The only people who are really upset about removing those zombie laws and outdated laws are law professors, who are going to have one less funny story to tell their students about outdated and absurd Criminal Code sections. It's good that those are being repealed.

This bill doesn't repeal all outdated or unconstitutional sections, nor does Bill C-39, which I'm sure this committee will be dealing with as well. For example, the unconstitutional mandatory minimum sentences, which have been found to violate the charter at various courts of appeal, and by the Supreme Court in the case of Nur, are left untouched by both of those bills. If we are really serious about taking out sections that have been found to be unconstitutional, there is no principled reason not to include those sections as well. The bill should be amended to include that. That's a glaring omission that should be corrected.

The other aspect of this bill is about sexual assault. It codifies some existing law with respect to sexual assault. I don't see too much of a problem with that. Too often, common law developments are hidden from the public. You have to have a subscription to CanLII or Quicklaw, or to be following a case, to actually see those developments in court. I think it's a good thing to codify some of those sections. It would be really good if we had a law reform commission again, which could take a broad look at our Criminal Code.

For example, the Supreme Court has made it clear that an unconscious person can't consent to sexual activity. That's the law. It's common sense, but it's also currently the law. Bill C-51 doesn't change that, but it makes it clear, and I don't think anyone could be faulted for that. It's a good thing as well.

One of the changes in this bill is unlike all the others, and that is the process for reverse disclosure—in my view, an unconstitutional expansion of the Mills regime with respect to documents in the possession of an accused person. It's a major fault of this bill. There are three issues with that. The first is the reverse disclosure problems. The second is overbreadth issues, which was touched upon by the previous panel, and the third is the impact that this would have on access to justice and to trial delays in our courts.

Dealing with the reverse disclosure aspect.... An accused has to bring this application within 60 days of their trial, and they have to disclose on the record, as part of that application, not only the record and the detailed particulars of the record and the information that they want to adduce, but also their trial strategy, why that's important. This is all prior to hearing the crown's case, prior to the complainant testifying. That's unprecedented in Canadian law. It infringes upon the right to silence.

The Supreme Court has confirmed that disclosure flows from the state to the accused. In the context of the adversarial system, the defence need not disclose any material to the crown. This isn't a civil system, after all; life, liberty, and security of the person are at stake.

This change also impacts the right to a full answer and defence in a fair trial. It undermines the process of cross-examination, which is a crucible for the discovery of truth. The Supreme Court of Canada has said that Canadian courts, as in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenets of our justice system that an innocent person must not be convicted. It follows from this that the prejudice must be substantially outweighed by the value of the evidence before courts can interfere. We cannot assume in our courts that all complainants are honest and credible. We can hashtag and believe all survivors outside of court, but not in court. That's a recipe for wrongful conviction. That is the fundamental tension with this process of reverse disclosure.

What we have to realize is that when the defence discloses this information, if a complainant is not telling the truth, if they are lying—and that happens—then you're disclosing that information to a liar. You're disclosing the information that could prove they're lying to a liar before they testify in court, so that they have time to change their stories and they have time to shade the truth. That is not the crucible of cross-examination that will result in accurate findings. It's a legislative woodshed for false allegations.

You can think of examples. For instance, a complainant who says that they were stabbed in the past and has the scars and shows them to the police, but the accused has lawfully obtained medical records showing that the scars came from surgery; or the example of a text message that the complainant sends to a third party, and that message is then forwarded to the accused and it is damning evidence that the complainant is not telling the truth. It's not in the interests of justice to disclose that information in advance.

I'd be happy to answer any questions about the other issues, with respect to trial delays and the like, but I would like to echo what Ms. Davies said in the previous panel, that this is also overbroad. There's a case before the Supreme Court right now touching on this issue, and for anyone who says that text messages aren't covered, we can turn to the B.C. Court of Appeal, which said they probably are, so we might have answers soon.

But in terms of breadth, I think this committee should take a hard look at that. I have some amendments that I can suggest when I'm questioned.

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

Thank you, Mr. Chair.

I would just reiterate to the minister the urgency in passing Bill C-39. What happened in the McCann case was not unique. It has happened before, and it is just a matter of time before another judge applies an inoperative section and another family is victimized like the McCanns.

Section 176 isn't unconstitutional. The constitutionality of it has been upheld by the courts. It isn't obsolete, given the fact that there have been multiple cases in which individuals have been charged and convicted under section 176. As well, it isn't redundant inasmuch as it is the only provision in the Criminal Code that directly protects individuals to freely practise their religion.

In your testimony you made reference to the fact that section 176 applies only in the case of the Christian faith, but subsection 176(2) very clearly speaks to disturbing religious worship or certain meetings and again makes reference to “religious worship”. It says nothing about Christianity. I'm not aware of any court that has ever interpreted this section to apply only to the Christian faith. Perhaps you misspoke, or perhaps you could clarify on what basis you stated that section 176 applies to the Christian faith.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I recognize the member's comments and advocacy with the letter that was sent from this committee around the zombie provisions that are in the Criminal Code.

I am fully committed to doing as much as I can to advocate for the moving of Bill C-39 through the parliamentary process. Like you, I want to have those provisions, section 230 of the Criminal Code, removed as well as the other unconstitutional provisions that are articulated in Bill C-39, and likewise, other bills that I have felt very fortunate to have introduced around the victim fine surcharge.

Bill C-39 was phase one of the Criminal Code cleanup bill, and Bill C-51 is the second phase. I'm hopeful that they will all proceed as quickly as possible because I share your concern about having zombie provisions remain in the Criminal Code and having individuals charged under provisions that have been rendered unconstitutional.

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

Thank you, Mr. Chair.

Thank you, Madam Minister.

I certainly note that Bill C-51 does remove certain obsolete sections of the Criminal Code. I want to ask a question more broadly about the government's effort to clean up the Criminal Code. You have stated that it is a priority of the government.

One year ago, Travis Vader's conviction on two counts of second degree murder of Lyle and Marie McCann of St. Albert, Alberta was vacated after the trial judge applied an inoperative section of the Criminal Code, a section that had been found unconstitutional some 25 years earlier.

This committee wrote to you. I held a press conference with Bret McCann in December calling on the government to move forward to remove zombie laws, unconstitutional provisions. To your credit, you did introduce Bill C-39 on March 8, and seven months later, it remains stuck at first reading.

What is the delay on Bill C-39?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

For the past two years, and even before that, there have been many commentators—academics, people involved in the criminal justice system—who have made commentary around specific provisions in the Criminal Code.

We specifically sought to engage with academics on this issue. We've had over 15 round tables on the Criminal Code with criminal justice experts from all different areas. My officials have engaged in substantive working group discussions with our provincial and territorial counterparts to comprehensively review the Criminal Code, and certainly, as Bill C-39 reflects, eliminate unconstitutional provisions in the Criminal Code. With respect to Bill C-51, we looked at redundant and archaic provisions, and we also looked at where lower courts have considered specific sections to include and remove those provisions.

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

Thank you, Mr. Chair.

Thank you to all members of this committee for inviting me to appear again at this time to speak to and discuss Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act.

As you know, the Prime Minister has mandated me to review the criminal justice system, which is critically important and a long overdue task. As Minister of Justice and Attorney General of Canada, I am committed to making our laws fairer, clearer, more relevant, and more accessible to all Canadians. Bill C-51 reflects that commitment.

As I continue to work with the provinces and territories, as well as criminal justice system stakeholders, I am guided by a set of clear objectives.

First, using the criminal law to keep Canadians safe, and holding offenders to account for their crimes in a just and appropriate way. Second, making sure that our criminal justice system shows compassion and responds to the needs of victims of crime. Third, responding to the needs of vulnerable populations, and ensuring that the system does not exacerbate the challenges faced by already marginalized groups. Finally, working to make clearer links between the justice system and other social systems, so we are able to more effectively respond to the root causes of crime.

Bill C-51 reflects these objectives through changes that will have a positive and lasting impact on victims of sexual violence. This bill also affirms the fundamental truths upon which our justice system is based, including that criminal law should be used with restraint, that the state bears the responsibility of proving alleged criminal conduct, and that all criminal law must respect the Charter of Rights and Freedoms.

Mr. Chair and members of the committee, you will already be familiar with the content of the bill. In the time available to me, I don't think I can comprehensively speak to all aspects of the bill. Instead, I will provide a brief overview of the main aspects of the bill, and spend the remainder of my time focusing on some key points of discussion that have arisen since I first introduced the bill on June 6.

It may be useful to think of Bill C-51's proposed amendments as falling into four broad categories. Most of these changes are to the Criminal Code; however, the bill also proposes important improvements to the Department of Justice Act.

The first broad set of reforms under the Criminal Code seek to clarify and bolster the laws surrounding sexual assault. Second, Bill C-51 seeks to build on the proposed changes included in Bill C-39, which I introduced on March 8, by repealing or amending Criminal Code provisions that have been found unconstitutional by the courts. The third area of reform involves amendments that would remove a number of obsolete or redundant criminal offences. Finally, amendments to the Department of Justice Act would create a new statutory duty for the Minister of Justice to table in Parliament a charter statement for every government bill that sets out the bill's potential effects on rights and freedoms guaranteed in the charter.

Turning first to the sexual assault law reforms, all parliamentarians recognize the importance of taking steps to ensure that the criminal law is as clear and unequivocal as possible in its response to sexual violence. We all know that sexual assault complainants face significant challenges. Therefore, it is absolutely critical that our laws be both clear and clearly understood. This is important for all parties involved in such proceedings: judges, prosecutors, defence counsel, accused, and victims. It is also important for the proper functioning of the system overall.

In this respect, the proposed changes clarify that persons cannot consent to sexual activity when they are incapable of doing so, including when they are unconscious. This change is in line with the Supreme Court of Canada decision R. v. J.A.

Second, changes would clarify that accused persons cannot rely on the defence of mistaken belief in consent if their mistake is a mistake of law, or if their belief is based on the complainant's passivity. In this way, it would codify the Supreme Court's decision in R. v. Ewanchuk.

The bill will also fill the gap in law by introducing a specific procedure for determining the admissibility of private records relating to the complainant such as private journals that are in the hands of the accused. This will complement existing procedures that apply when the accused seeks to obtain records held by persons other than the crown, for example, a therapist.

I pause here to respond to the concerns that have been expressed around these changes. It has been suggested by some that these amendments amount to a codification of a defence disclosure obligation. I want to be very clear that this is simply not true. These changes provide no rights to the crown to receive evidence, nor do they mean that the defence would be obligated to hand such evidence over. Rather, the changes concern rules of evidence and seek to balance the rights of the accused with the rights of the complainant and to support the truth-seeking function of the courts.

As was noted in the Supreme Court of Canada's decision in Darrach, a voir dire held to determine whether evidence of past sexual history is admissible is not defence disclosure. Additionally, the bill proposes changes to remove laws that have been found unconstitutional by appellate courts. One example is the proposal to remove the restriction that prevents sentencing courts from giving enhanced credit to persons detained prior to being tried and convicted because they've breached a condition of bail. This was found unconstitutional by the Manitoba Court of Appeal in Bittern.

Next, Bill C-51 proposes to repeal 20 different offences that are either redundant of other offences of general application, or no longer have relevance in Canada today. Examples include challenging someone to a dual; posting a reward for a return of a stolen item, no questions asked; possessing criminal or crime comics; and publishing a blasphemous libel. These changes are expected to make our laws fairer, clearer, and more relevant and accessible to Canadians.

I've received a number of letters from Canadians expressing concern about Bill C-51's proposed repeal of section 176, which appears to offer specific protections to Christian clergymen. I'm grateful to have the opportunity to respond to these concerns now.

I want to be clear that removing this offence will not in any way undermine Canadians' ability to practise their religious faith, nor do I expect it to lead to an increase in violence in such situations. Many criminal offences of general application will continue to be available to address all of the conduct that is prohibited by section 176. It remains an aggravating factor in sentencing if an offence was motivated by bias, prejudice, or hate based on religion.

Finally, changes to the Department of Justice Act would require the Minister of Justice to table charter statements that would identify and highlight key charter rights and freedoms that are engaged by any government bill. They would also set out considerations that support the justification of any limits that a bill may have on charter rights or freedoms.

As members are aware, I have been tabling charter statements for bills that I have introduced since becoming Minister of Justice. We have also begun to expand this practice to bills introduced by other ministers as well. The amendments would entrench this practice in law and extend it to all future government bills. These changes, as well as those proposed to the Criminal Code, reflect our government's unwavering and deep commitment to respecting the charter.

Quite simply, we can never abdicate our responsibility as a government to ensure that our decisions, including those reflected through law reform, comply with our fundamental rights and freedoms. That is why I'm so pleased to sponsor a bill that reinforces the obligation of current and future governments to adhere to this most basic duty.

Mr. Chair, I want to thank you again for the opportunity to appear before this committee and I look forward to all of the questions and discussions.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bill C-49—Time Allocation Motion

[Erin O'Toole, Conservative, Durham, ON]

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

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

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

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

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

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

Thank you, Madam Minister.

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

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

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

Criminal Code

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

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

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

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

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