Bill C-46 (Historical)

An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts

Part 1 amends the provisions of the Criminal Code that deal with offences and procedures relating to drug-impaired driving. Among other things, the amendments
(a) enact new criminal offences for driving with a blood drug concentration that is equal to or higher than the permitted concentration;
(b) authorize the Governor in Council to establish blood drug concentrations; and
(c) authorize peace officers who suspect a driver has a drug in their body to demand that the driver provide a sample of a bodily substance for analysis by drug screening equipment that is approved by the Attorney General of Canada.
Part 2 repeals the provisions of the Criminal Code that deal with offences and procedures relating to conveyances, including those provisions enacted by Part 1, and replaces them with provisions in a new Part of the Criminal Code that, among other things,
(a) re-enact and modernize offences and procedures relating to conveyances;
(b) authorize mandatory roadside screening for alcohol;
(c) establish the requirements to prove a person’s blood alcohol concentration; and
(d) increase certain maximum penalties and certain minimum fines.
Part 3 contains coordinating amendments and the coming into force provision.

Criminal Code

[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?

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.

Expungement of Certain Cannabis-related Convictions Act

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

Madam Speaker, I am pleased to rise on Bill C-415, a private member's bill introduced by my friend the hon. member for Victoria. It is legislation that would expunge the criminal records of Canadians who were convicted for the minor possession of marijuana. The fact that the hon. member for Victoria has had to bring forward a private member's bill around this issue speaks to the fact that once again the Liberals have dropped the ball on the issue of marijuana legalization.

The Prime Minister, during the last election, made it a central platform commitment to legalize marijuana. We on this side disagreed with the position of the Prime Minister, but elections have consequences and enough Canadians voted Liberal and the Prime Minister was elected. Therefore, it was not a surprise that the government decided to move forward with the legalization of marijuana.

It is one thing to have an idea and another to actually implement that idea. What we have seen is time and again the Liberal government has not had a plan when it comes to going about the enforcement and implementation of marijuana legalization. The government had no plan with respect to a public awareness campaign. That was, by the way, a key recommendation of the government's own marijuana task force headed by former deputy prime minister Anne McLellan, and for good reason, because there are serious health risks associated with the consumption of marijuana, particularly for young Canadians, those 25 and under, in terms of brain development impairment among other issues. Where was the government's early and sustained public awareness campaign? There was no public awareness campaign. The Liberals simply dropped the ball.

Then the Liberals had no plan around keeping Canadians safe from drug-impaired drivers. Sure, they introduced Bill C-46, legislation that amended the Criminal Code to bring in drug-impaired driving laws. It is one thing to pass a law and quite another to give law enforcement agencies the tools and resources they need to enforce the law.

Three years ago, there were about as many drug recognition experts as there are today. This is despite the fact that law enforcement agencies, including the Canadian Association of Chiefs of Police and the Canadian Police Association, among others, have been begging and pleading with the government to provide the resources so that they can hire more drug recognition experts, which are essential to keep our roads safe. However, instead of listening, the government once again just dropped the ball.

Bill C-46 imposed per se limits around THC. The problem with that is there is not necessarily a clear correlation between THC levels and drug impairment. It is a pretty big problem, but instead of addressing concerns that were raised about the government's approach, the Liberals just shrugged their shoulders as they dropped the ball yet again.

Bill C-46 provided for roadside screening devices to detect drug impairment. The problem was that no device was approved until virtually on the eve of the date that marijuana became legal in Canada. So unreliable is this device that most law enforcement agencies across Canada are not acquiring the device. They are waiting for another, more reliable, device to be approved. Again, the Liberals dropped the ball.

Given a record like that, is it any wonder that when it comes to dealing with the more than half a million Canadians who have criminal records for minor possession, the government has no plan. Again, it has dropped the ball.

The government talks about a so-called expedited pardon process, but it has provided no indication when it plans to introduce legislation. The timeline is completely vague. The government has refused to provide details about what that expedited pardon process would look like. In fact, it seems that while making a commitment to move forward with a pardon process, the Liberals would prefer not to talk about it at all if they can get away with it.

It was not until the member for Victoria called on the government to take action that the government announced it would move forward with some sort of undefined pardon process. As the member for Victoria rightly pointed out, other jurisdictions, including California and Vermont did implement an expungement process at the same time that legalization came into effect.

While one could argue about the merits of expungement versus a pardon versus providing no blanket process at all, what is unacceptable is that the government has refused to be straight with Canadians and tell them honestly where we are going. It just does not have a plan.

It is a little rich that the government has dragged its feet and would prefer not to talk about this issue, given the Prime Minister's, personal history, when in 2013, he bragged about how he used marijuana. He relished the attention he got upon making that pronouncement. Of course, the Prime Minister was not caught. He was not charged or convicted. He does not have the burden of a criminal record. He lives a pretty privileged life. However, as the member of Victoria pointed out, half a million Canadians, including many marginalized Canadians, are burdened with a criminal record for committing an offence that today is perfectly legal.

The time has come for the government to be straight, to come forward and come up with a plan. To date, it has done nothing more than drop the ball. Canadians deserve better.

Criminal Code

[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.

[Arif Virani, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.]

Madam Speaker, very briefly, as to the competency of the government, I would point to our medical assistance in dying bill, Bill C-45, and Bill C-46, and our appointment of 240 judges.

The member opposite took issue with peremptory challenges. The question I would put to him is on this issue. First of all, we have not just eliminated peremptory challenges, but are allowing judges to ensure that any jury will be diverse and represent the community it serves. We emphasize challenges for cause.

Does the member opposite believe, as in England, as it was done 30 years ago, that it is important that if one seeks to stand aside a juror, one has a reason for that, other than simply just the way that juror looks, and that one can enunciate that reason in front of an impartial adjudicator?

[Bill Blair, Minister of Border Security and Organized Crime Reduction]

Thank you very much, Mr. Chair.

I was quite interested in participating in a new approach to these committee meetings whereby you would ask the questions first and then I would deliver my remarks. I want to thank Ms. Dabrusin for sharing her time with me.

Good afternoon, everyone.

I'm very pleased and honoured to have the opportunity to attend before this committee today to speak about the supplementary estimates (A) for the Public Safety portfolio as it pertains to my responsibilities.

I know you have just spent an hour with Minister Goodale, who noted earlier that the portfolio as a whole is requesting adjustments for the fiscal year resulting in a net increase of $262 million in authorities.

The minister, I believe, has given this committee a broad overview of the estimate items and why they are important for Canadians. My remarks today will focus on those items that fall strictly within my purview and my mandate and its priorities. Specifically, I hope to focus my attention on two issues that are top of mind for Canadians, the cannabis implementation and guns and gangs.

The country is currently seeing a surge in gun violence. Much of that violence is related to gang activities involving reprisals or rival gangs battling over turf. Mr. Chair and committee members, this is not simply happening in large urban centres in our country; smaller cities are plagued by this problem, as well as rural and indigenous communities. People are concerned.

I have had the opportunity over the past several months to travel across the country to communities large and small. We're listening to their concerns and then working hard to take concrete action to reduce violent gun crime and to keep communities safe.

Just over one year ago, the government announced the launch of an initiative to take action against gun and gang violence. This initiative reflects the need to take a broad and all-encompassing approach to reducing violence in our communities. For example, we recognize that while this is a nationwide concern, the problem is not the same everywhere: Different regions and communities are facing distinct and unique challenges, and those challenges require distinct and unique solutions. It's very important to hear perspectives from all parts of the country and from every perspective on the issue. We're making sure we do precisely that.

The Prime Minister has asked me to engage Canadians in a dialogue on handguns and assault-style weapons. I've been talking to experts, front-line police officers and members of the public across the country to seek their views, to listen to the evidence and to examine the data. I look forward to making recommendations based on those findings upon the completion of my examination.

We have also committed to investing $327.6 million over five years as part of a gun and gang violence action fund. This fund will help support a variety of initiatives that will help reduce gun crime related to gun and gang activities. A portion of that funding is aimed at reducing the supply of illegal guns that show up on our streets and get in the hands of people who would commit violent criminal acts with them. An important first step in eradicating gun and gang violence is investigating and stopping the smuggling of firearms, especially handguns, into our country. Our front-line law enforcement officers with the CBSA and the RCMP are already doing extraordinary work in that regard, and we have many examples to share of the successes they have achieved.

As Minister Goodale and I announced earlier this month, the government is making major investments to strengthen the enforcement capacity of the RCMP and the CBSA. Significant funding, for example, will be provided to the CBSA to increase its operational capacity to screen passengers and examine commercial shipments at the border.

Funding is also being provided to the RCMP for a new integrated criminal firearms initiative. These are important first steps to restore the force's ability to support law enforcement across the country to ensure that front-line officers have access to an integrated suite of resources to support firearm investigations.

At the same time, Mr. Chair, there's a clear consensus that gun and gang violence cannot be tackled through enforcement alone. I know from experience as a police officer and a police chief in a large urban centre that outreach and awareness are also essential. In other words, we need not only to interdict the supply of guns that get into the hands of criminals but to reduce the demand for those guns as well.

That's one reason the largest portion of the $327.6 million in new funding that has been announced, over $200 million over a five-year period, will be going to the provinces and territories to respond to specific needs in their communities.

We are aiming to start signing some of those funding agreements before the end of this calendar year. A major purpose of this funding is to support the efforts of local organizations that offer prevention and intervention programs. These types of programs help divert young people from gang culture that can almost inevitably draw them into a life of violence and criminality.

The response of any government must be to protect the health and safety of our citizens. There is no greater responsibility that all of us share, and that's why we are taking action on multiple fronts to reduce violent gun crime. Public Safety Canada, CBSA and the RCMP are seeking a combined total of $29.9 million in these supplementary estimates to support this important work.

Protecting Canadians is also why we have legalized, strictly regulated and restricted access to cannabis in Canada. Prior to October 17, all non-medical cannabis in this country was produced and sold, 100%, by criminal organizations. They were responsible for the illegal production and distribution of cannabis, and they made billions of dollars in illicit profit. What they were selling, Mr. Chair, to both adults and our kids, was unregulated, untested and often unsafe. It put the health and safety of Canadians at risk, and the system was failing our children. We had the highest rates of cannabis use of any country in the world. Our children were being criminalized for the simple possession of cannabis, and criminals were becoming enriched by that activity in the amount of billions of dollars each year.

We now have a far better, far more comprehensive and effective system in place. The new regulations offer Canadian adults a choice. It's a choice of a legal, regulated and reliable product of known potency and purity. We expect this will help to take a big bite out of the criminal black market.

However, our work has only begun; it is not yet complete. As I have said many times, the implementation of the Cannabis Act is a process, not an event. It's one reason that the RCMP is seeking $3.3 million in these supplementary estimates to support the delivery of Canada's new, legal cannabis framework.

The government also continues to take action to crack down on impaired driving. It's not a new problem, Mr. Chair. Since 1925, drug-impaired driving has been a crime in this country, but up until fairly recently, the police had neither the training, the legal authorities nor the access to the technologies they needed to be effective in keeping our country and our roadways safe.

The problem with drug-impaired driving did not suddenly come into existence simply because cannabis was now legally available from a legitimate, licensed source. Those who get behind the wheel after consuming drugs or alcohol represent a significant danger to the public, and this has always been the case, but I am pleased to tell you that today, with Bill C-46 now in effect, our police services have the tools that they have long asked for to keep the public and our roadways safe. The bill also strengthens our impaired driving laws with tough new penalties and new, important provisions to control alcohol-impaired driving as well.

All of this is to be complemented by important investments in public education and awareness. We want to ensure that Canadians know the dangers and consequences of driving while impaired by drugs, including cannabis. That's why we have been running an ad campaign on social media, online, on TV and elsewhere in the country to counter the persistent myths and misconceptions that Canadians unfortunately held with respect to cannabis-impaired driving. These ads are aimed at youth and young adults, and they have a simple message, Mr. Chair: don't drive high.

Public Safety Canada is seeking $2 million under the supplementary estimates to support this evolving campaign. Mr. Chair, the campaign is achieving a high level of success. We have heard from law enforcement agencies across the country that with the implementation of the new regulations, they have not seen a significant increase in drug-impaired driving, but what they have now available to them are the tools, the technology and the training they need to respond appropriately.

Mr. Chair, these are just a few examples of the important work that is happening across the Public Safety portfolio. I'd like to thank the hard-working men and women throughout the portfolio for all that they do, and acknowledge and thank the senior officials who have joined me here today. We are grateful for the work they do to protect Canadians from all manner of threats and dangers.

I'd like to thank the members of the committee for your efforts on the many public safety matters that come before you.

Thank you, Mr. Chair, for the opportunity to appear before you and answer the questions of your members.

Bill C-75—Time Allocation Motion

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

Madam Speaker, our government is committed to working co-operatively with all members of the House.

With respect to Bill C-75, I would point out that there has been a total of seven hours and 45 minutes of debate in the House. The bill went to committee, where there was major discussion among committee members, and I thank them for that discussion. The committee heard from 95 witnesses. Twenty-seven hours of discussion and debate happened at committee. I thank members for the suggested amendments, many of which were accepted by the government.

Bill C-75 is a robust bill which proposes to amend the Criminal Code. It is not an omnibus piece of legislation. It seeks to address Criminal Code changes.

To comments by the member opposite around serious offences, under this legislation serious offences would still be prosecuted in a serious manner.

I am glad the member raised impaired driving. I am very pleased that our government was able to pass Bill C-46, major legislation to create in Canada among the toughest impaired driving laws in the world. I appreciate the member's bringing that up.

Criminal Code

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Madam Speaker, it is always a pleasure to rise in the House especially to talk about ensuring the safety of my constituents and all Canadians.

Every day since the 2006 election I have had the privilege of being chosen to represent the values that are dear to us in Lévis—Lotbinière. My Conservative colleagues and I are determined to live up to that honour ethically and with respect and integrity.

Generally speaking, the legislation debated and passed in the House moves Canada forward, but since the election of this Liberal majority government, legislation is debated and passed very quickly in the House, which is moving our country backward. The list is long, but consider the marijuana legalization legislation, which is disastrous for the future of our young people, not to mention the bill before us today.

I would like nothing more than to remain positive, even optimistic, or even bury my head in the sand like so many other MPs are doing when it comes to Bill C-75, the 300-page omnibus justice bill.

As the official opposition, we have to once again call out this Liberal government's poor judgment, as it refuses to consider the impact that some of its changes will have on the safety of our children and our country. What is motivating the government? Is it tyring to keep one of its promises at all costs, even if that means setting Canada back? Time will tell.

We were fortunate to have inherited one of the most stable and robust political systems in the world, a model in terms of peace, order and good governance. Of course, things took a turn for the worse with this Liberal government, which wants to liberalize everything that we think should have some oversight.

Making major changes to Canada's justice system should be a judicious exercise, one that is not taken lightly, as the Liberal government seems to have done once again. Believe it or not, rather than taking action to combat terrorism, the Liberals want to get rid of penalties imposed on those who go abroad to join a terrorist group like ISIS.

What should we make of this Prime Minister who believes that reintegration, rather than prosecution, is the best way to treat ISIS fighters? Clearly, in keeping with the usual Liberal opportunism, the rights of victims and the safety of Canadians are not among the Liberal government's priorities to the same degree as they were top priorities for the Conservatives. The Prime Minister wants to lower penalties for serious crimes.

Apparently reason, committee testimony, studies, and plain old common sense just do not matter. If this bill passes, criminals may have to do nothing more than pay a fine instead of serving jail time for serious crimes such as leaving Canada to participate in a terrorist group, trafficking in persons and impaired driving causing bodily harm.

It makes absolutely no sense. All of these crimes are indictable offences and carry with them the maximum jail time they deserve. The Standing Committee on Justice and Human Rights heard from victims of crime who are angry that the Liberals are again failing them by denying justice for their loved ones.

Recently, the Prime Minister refused to put a murderer back in jail. He decided to pay veterans' benefits to incarcerated criminals who never served their country. That is scandalous.

Canada's Conservatives have always stood up for the rights of victims of crime, and we will not stop now. That is why we submitted over 100 amendments to ensure the continued safety of Canadians and our country.

We called for serious crimes to remain indictable offences and demanded that the Liberals reverse the elimination of preliminary inquiries and peremptory challenges of jurors.

We also called for a reversal on the elimination of cross-examination of police officers for certain offences and an increase to the maximum sentence for sexual assault.

We demanded that the victim surcharge imposed by the courts not be reduced.

Obviously, some of the amendments are commendable. The Conservatives can support some of the proposals set out in Bill C-75. We agree to remove the provisions of the Criminal Code that have been deemed to be unconstitutional. The Conservatives can support that measure because it will benefit victims of crime and it will clean up the Criminal Code.

It goes without saying that we support increasing the maximum sentence where offenders have been repeatedly violent toward an intimate partner as well as the consideration of intimate partner violence as an aggravating factor in sentencing. We also support more stringent temporary release requirements in the case of offenders who have committed intimate partner violence.

It also goes without saying that we support the provisions to reduce delays in our justice system, particularly those that seek to limit the scope of the preliminary inquiry, allow increased use of technology to facilitate remote attendance by any person in a proceeding, modernize and clarify interim release provisions to simplify the forms of release that may be imposed on an accused, and provide for a judicial referral hearing to deal with administration of justice offences involving a failure to comply with conditions of release or failure to appear as required.

Finally, modernizing the language used in the Criminal Code to make it non-discriminatory is also a very good thing.

The Prime Minister played the part of the grasshopper who travelled here, there and everywhere around the world singing and dancing. Time has become a critical factor for this Prime Minister, who claims that his government is introducing an omnibus bill so that it can fulfill multiple election promises at once, since this is the final sprint before the next election in a few months.

This is deplorable and a fait accompli. Introducing a big bill such as this one leaves the opposition little time for careful and in-depth study. For most of the session, Bill C-45 on marijuana legalization and Bill C-46 on drug-impaired driving kept the Senate busy.

They are two major pieces of legislation that make good on the Liberals' immoral promise to legalize marijuana, a promise made during the 2015 election campaign.

These delays and poor management of the legislative agenda have left the government short on time to fulfill its mandate. It will be hard pressed to achieve its goals with Bill C-75 and other pieces of legislation that have been languishing for months.

We criticized the government for failing to do anything up to this point to reduce delays in our legal system and we were critical in particular about its approach to judicial appointments.

Can members believe that as of April 1, 2018, or three years after he was elected as Prime Minister, there were 59 vacant judicial positions at the federal level? We believe that it takes less time and is more effective to appoint judges than to impose an omnibus bill on Parliament.

In closing, under no circumstances should checking off an item on their list of election promises compromise the safety of honest Canadians and our borders or weaken Canada's justice system.

It is not just the Prime Minister who will be adversely impacted, but an entire generation that we have been honourably defending for more than 150 years.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Mr. Speaker, it is an honour to rise today to speak to Bill C-84. I would first like to mention that I will be sharing my time with the member for Markham—Unionville.

Bill C-84 seems to be another example of the government striking a valiant attempt to make a change, yet it is an incomplete attempt, much like most of the legislation we have seen coming forward from the government. Some of these previous shortcomings include Bill C-45, the cannabis bill, which just came into effect a few days ago. Even though that legislation was debated in the House and passed roughly a year ago, there still remain multiple enforcement agencies, municipalities, regional districts and first nations that agree it simply was not complete or ready. It did not give the provinces or municipalities time to prepare.

After that was Bill C-46, the bill that dealt with impaired driving, which was tied to Bill C-45. We have now heard that because of the way Bill C-46 was drafted, there is no proof that the systems in place and the science and technology around identifying impairment, which was fairly standardized when it came to alcohol, are going to be effective when it comes to drugs. Not only do we have another piece of flawed legislation out there, but we have communities and enforcement agencies trying to scramble to figure out how to deal with that.

The next piece of legislation I am familiar with is Bill C-71, the government's firearms legislation, which, in listening to its rhetoric, is aimed at reducing gun violence, gangs and so on. However, the bill does not mention gangs or gun violence at any point in time. All it talks about is registering firearms and making things worse for law-abiding firearms owners.

The most current is probably Bill C-75, an act to amend the Criminal Code. That is a bill the government introduced to bring modernization to the Criminal Code. That bill has been bantered back and forth many times, but it is now at committee stage. My colleague from St. Albert—Edmonton is currently on the committee studying that bill, and members are looking at stacks and stacks of amendments to another government bill. I experienced the same thing when I sat in on the discussion on Bill C-69, when I happened to be substituting on that committee. I believe there were 600 amendments to that government bill. The bill was 300 pages long, and I believe 300 or 350 of those amendments came from the government side.

I continuously see the government putting forward draft legislation for debate in this House that it has not thought through or consulted on properly, and it just ends up being hashed about at committee. We have seen the Senate return a number of bills to this House with amendments. Worst of all, we see communities, enforcement agencies and the public trying to figure out how they are going to manage or work around this poorly drafted legislation from the government.

Turning back to Bill C-84, an act to amend the Criminal Code with respect to bestiality and animal fighting, I praise the government for bringing forward legislation to deal with this. I agree we need to do what we can, as legislators, to bring in legislation to protect people, protect the innocent and protect animals from the abuses we have seen. Also, to protect them from the ways criminals have been able to skirt the laws through definitions, different interpretations in the courts and so on. On that point, I will give the government credit for at least attempting to do something right.

When I look at this bill, I also see where it comes up short in some cases. I compare it to an insurance policy. I think everyone here has had an insurance policy and has taken a close look at it. Some have possibly made a claim through that insurance policy only to find out that the claim is denied because in the fine print something was excluded.

We may get a chance to amend this bill in committee. Even though it is a short bill and one would not think it needs much amendment, I do not believe it is perfect and I will be talking to committee members about possible amendments going forward.

When I see that the bill includes a phrase that basically bans the fighting or baiting of animals or birds, I question whether that is going to impact our provincial hunting regulations. I have not yet been able to have full discussion with anyone to determine this. In some provinces, it is completely legal and within ethical standards to plant crops to attract wildlife, such as deer and elk, to certain areas for hunting purposes. Those are perfectly accepted standards that continue to this day. In fact, many of those standards actually improve the chances of correct and humane harvest of those animals because they are at a baiting station.

That is why I question the wording in this bill. I will be following through further on this to make sure that this bill, like many other bills the government has put forward, is not flawed after it gets through committee. I want to make sure we are protected in those ways.

Another thing that troubles me with this bill is why it took the government almost a year to introduce its own bill that is identical in most ways to a bill introduced by a member from our side of the House, the member for Calgary Nose Hill. Her bill was introduced in December 2017, and yet the government sat on it and did not move it forward for debate. The government could have had this process done by now and given credit where credit was due, to the person who brought the issue forward.

It seems to be a continuous mantra of the government to not do anything until it is caught not doing anything. We see it when we have witnesses appear at committee to give testimony. We see it in the Auditor General reports. It just seems to be a continuing theme.

In fact, I had the same experience myself. I introduced a private member's bill a couple of years ago to recognize volunteers in search and rescue situations. Just a few weeks later the government announced that it was going to create service medals for search and rescue volunteers. Again, it was not doing anything until it got caught not doing anything.

That is the case here. It is disappointing that the government has to be shown the way forward by members on our side. We see this quite often with the opposition day motions we bring forward. In fact, we had another one just last week. We put forward an opposition day motion that the Liberals could have easily acted on much sooner, but we had to force their hand by forcing the argument and putting it to them to make them step up to the plate. It is just another case of, as I said, not doing anything until they are caught not doing anything. Then they get caught in a bind and have to put out something that is not complete, not well-thought-out and not well-processed.

With that, I am finished my comments. I know I will be receiving questions on this.

[Carole Morency]

One, it's a drafting protocol. In terms of why Bill C-75, as introduced, does not propose to increase the maximum to two years less a day for those over 16, it would have involved repealing the provision that is there now and then re-enacting the provision with the mandatory minimum penalty. In this case, as the minister has said before and as I answered before as well, this bill is not addressing mandatory minimum penalties, pending a broader review of sentencing issues writ large.

In Bill C-46, there were some mandatory minimum penalties that were omitted and that this committee adopted, again, to put back into the package. Those mandatory minimum penalties, including $1,000 fines, are everywhere in the impaired driving provisions and have not been subject to charter challenges in the way that higher MMPs in the other areas are.

This committee may also know that under the previous government, Bill C-26 had increased all of the maximum penalties for all child sexual offences to two years less a day. At that time, that was done knowing that it was at a different maximum than it was for adults as well, in section 271.

The chair is correct in the sense that it's there already, but as a drafting protocol, that would be a factor that influences government bills in terms of how they're prepared and produced.

[The Chair, Liberal, Anthony Housefather]

It's only a political question of re-enacting, but in Bill C-46, did we not re-enact mandatory minimums in different places?

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

I echo the words of my colleagues Mr. Fraser and Mr. McKinnon in saying that we worked very hard through Bill C-46 to ensure that our roads are safe. I spent a lot of time on it.

I will reiterate what I've said—and what my colleagues have said—over the past number of days as we've gone through clause-by-clause, specifically in dealing with hybridization. We have to take a more contextual approach to how we deal with the challenges that our court system is facing, including delays. I believe that hybridization is going to be one of the factors to ensure that delays are cut down within our court system by making our system more efficient and actually more fair as well.

Thank you, Mr. Chair.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

With regard to this offence in particular, I note that impaired driving is a problem in Canada. Bill C-46, which this committee dealt with not long ago, includes a number of measures to deal with impaired driving on our roads caused by alcohol or other substances. It provides a whole host of measures that will actually have the impact of deterring people from driving while impaired, as well as having resources available for police in order to get convictions for those offences.

My friend references the terrorism-related offences and advocating genocide, which were the subject of a good discussion at the last committee meeting. I would note that there were a number of reasons why Liberal members decided that those ones should not be hybridized and were distinguishable in many respects from the other offences that are not to be de-hybridized, so to speak.

The rationale for the hybridization of offences is to allow Crowns proper discretion, in the appropriate cases, to proceed by way of summary offence. The sentencing principles remain the same. It allows Crowns more discretion in order to judge on a case-by-case basis the appropriate procedures to use and to actually help deal with delay.

That was the purpose of hybridizing offences. There's no question that there is a distinction from other offences that this committee has already debated. I note that Bill C-46 deals in a comprehensive and effective way with the scourge that is impaired driving on our roads. That's why I will not be voting in favour of this amendment.

[Sheri Arsenault, Director, Alberta, Families For Justice]

First off, I will mention my father George Marrinier. He submitted a brief statement to the committee earlier.

Thanks for the invite to speak today. Everybody here knows my personal tragedy, the horrific death of my son Brad and his two friends. I'm not a legal expert, and I know there are some at this table who are, but where my expertise lies is that I'm a victim. My tragedy alone involved over 30 court dates, and I've spent countless hours in courtrooms supporting victims all over Alberta.

Bill C-75 is an enormous bill, and it's intended to address the Jordan decision to reduce court delays.

I'm speaking specifically today to the reclassification of offences, the hybridization of 136 serious crimes, crimes that are identified as indictable offences such as terrorism, assault with a weapon, arson, advocating genocide, human trafficking, abduction of children, and that's just to name a very few.

The sentences for indictable offences range from two to 10 years, but when changed to summary convictions, sentences would be reduced to a maximum of two years with the real possibility of a mere fine. It's a simple fact that by hybridizing indictable offences sentences would be much more lenient.

With all due respect to our prosecutors, bad decisions on these offences will set precedents and case law. Once precedent is set for lower sentences regarding serious crimes, our justice system goes officially backwards. This would weaken public confidence in our justice system and it would also be a colossal change that would take decades to correct.

Bill C-75 also proposes to reduce impaired driving causing bodily harm, refusing to blow, and blood alcohol over the legal limit causing bodily harm from indictable offences to summary conviction.

Why would this government, which just recently passed Bill C-46, which increased penalties for dangerous driving causing bodily harm from 10 to 14 years, now be weakening penalties for impaired driving causing bodily harm?

This government bill is telling Canadians loud and clear that impaired driving is not considered serious and, in fact, it's not even considered dangerous. As a victim and a voice for thousands of victimized families, I find that our government, instead of improving the Criminal Code by holding offenders accountable for serious offences, would be reducing and watering down penalties.

To reduce these offences to summary convictions sends an unthinkable message to victims and the general public, and it holds absolutely no accountability or responsibility to the offenders. When it comes to impaired driving, this bill is taking Canada's justice system 10 steps backwards.

We're all aware there's a high percentage of serious criminal cases before our courts, and that is troubling to everyone, but it's not because of inappropriate laws. It's more likely because of other government priorities. If more resources are allocated to our justice system, the prosecution of offenders could be much more timely.

It's beyond my comprehension as to how transferring indictable offences, which currently have a 30-month timeline, to summary offences, which only have an 18-month timeline, would help address the Jordan decision. Our already congested provincial courts' overworked prosecutors would be burdened with a greater number of cases and required to act in a much shorter time frame. As a result, many more lenient plea deals will occur and even more offenders will walk free.

The impact this bill would have on our overall justice system is unbelievable when applied to all 136 indictable offences. All crimes should be treated the same throughout the population regardless of race, religion, ethnic origin, age, gender, economic or social status. Judges, not prosecutors, are best to judge sentencing options, making adjustments for mitigating and aggregating factors, Gladue reports, etc.

Two of the most important sentencing principles are being ignored: deterrents, general and specific; and rehabilitation. The opportunity for rehabilitation of criminals, especially for substance abuse, will almost be non-existent. There would simply be no time with summary convictions.

To me, that would add to the revolving door and create even more victims, and it would crush existing victims. Clearing up the backlog in the criminal justice system should never be done at the expense of victims and public safety. Criminals should never take precedence over victims. It's the victims and law-abiding citizens who will suffer, certainly not the offenders.

[Carole Morency]

Sure. I can start, and then I'll ask my colleague to continue.

I'll just give you some background as to why the Criminal Code currently restricts who can appear as an agent in a proceeding. It flows from an Ontario Court of Appeal decision in Romanowicz and concerns—from the judiciary in particular, but also from the Ontario government and the Ontario law society—about agents being able to appear for the accused, particularly in cases where it attracts serious consequences, as six months' imprisonment would. Currently, there are already offences in the Criminal Code on summary conviction that carry a maximum of 12 months; some have 18 months. Bill C-46, as I just mentioned, would increase that for all impaired transportation offences to two years less a day.

So yes, as we worked through this with our provincial–territorial colleagues, thought was given to what impact it might have. There is also a provision in there saying that if there is a concern about who appears as an agent and in what capacity—and, as you've described, the effect is that it would prevent them—then each province and territory can address that immediately, if they haven't already, through an approved program that would allow an agent to appear.

For example, in Ontario, the Law Society of Upper Canada will have practice directions for articling students working under the direction of a lawyer. However, you still have those criteria in the Criminal Code unless a province chooses to do otherwise.

I don't know if my colleague would like to add more on hybridization and the agents.