Bill C-51 (Historical)

An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act

This enactment amends the Criminal Code to amend, remove or repeal passages and provisions that have been ruled unconstitutional or that raise risks with regard to the Canadian Charter of Rights and Freedoms, as well as passages and provisions that are obsolete, redundant or that no longer have a place in criminal law. It also modifies certain provisions of the Code relating to sexual assault in order to clarify their application and to provide a procedure applicable to the admissibility and use of a complainant’s record when in the possession of the accused.
This enactment also amends the Department of Justice Act to require that the Minister of Justice cause to be tabled, for every government Bill introduced in either House of Parliament, a statement of the Bill’s potential effects on the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms.
Finally, it makes consequential amendments to the Criminal Records Act.

Public Safety

[James Maloney, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, this is a serious issue that requires a serious response. It is not something that should be highlighted in a negative way in the House of Commons.

The Liberal government has taken steps through Bill S-12, Bill C-3 and Bill C-51. We have taken serious measures to address sexual assault crimes, including sexual assault offenders being included on the sex offender registry.

Justice

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Mr. Speaker, as I have said several times, serious crimes deserve serious consequences.

Our government has taken action on several fronts to ensure that victims of sexual assault are treated with dignity and respect.

Yesterday, I tabled in the Senate Bill S‑12, which will strengthen the Sex Offender Information Registration Act and will also give victims more powers. I hope that all parties in the House will support it.

This is in addition to other measures we have introduced such as Bill C‑3 and Bill C‑51, which will protect victims of sexual assault.

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Mr. Speaker, as a government, we have acted on several fronts to ensure that victims of sexual assault are treated with dignity and respect.

Several bills, including Bill C-3 and Bill C-51, have made substantial reforms to Canada's sexual assault laws to do just that, protect victims. These are some of the most progressive laws in the world. We have invested in programs that help victims of sexual assault.

That is our priority. We will continue to support victims of sexual assault.

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Mr. Speaker, what our hon. colleague is saying is just wrong.

Our government has taken action on several fronts to support victims of sexual assault and to ensure they are treated with dignity and respect.

Ever since Bill C‑3 was passed, all new federally appointed judges must participate in sexual assault training.

Our government also made significant changes to Canadian sexual assault law with Bill C‑51, one of the most progressive pieces of legislation in the world.

We will keep working to protect victims of sexual assault.

Public Safety

[Justin Trudeau, Liberal, Prime Minister]

Mr. Speaker, the member who asked the question was a part of Stephen Harper's Conservative government, which regularly refused to allow any oversight whatsoever on issues of national security. Many Canadians will remember the excesses of Bill C-51 that the Harper government put forward, which is why we made changes to Bill C-51 when we got into office, which is also why we created the National Security and Intelligence Committee of Parliamentarians, to provide a forum for parliamentarians to oversee national security work. That is an improvement we made that Conservatives voted against.

Sex-Selective Abortion Act

[Anita Vandenbeld, Liberal, Parliamentary Secretary to the Minister of National Defence]

Madam Speaker, I am here today to speak to private member's bill, Bill C-233, an act to amend the Criminal Code, sex-selective abortion, at second reading.

I really wish I did not have to do this. I am, quite frankly, disappointed that I have to spend time in the year 2021 on the abortion debate in Canada, when a woman's right to choose has been law for over 30 years. It really is unfortunate that members of Parliament are still seeking to restrict that right.

The sponsor claims that this bill is to address sex-based discrimination. To achieve that goal, this bill would create a new Criminal Code offence prohibiting doctors from performing an abortion when they know it is being sought solely on the grounds of the genetic sex of the fetus.

While I note that the offence is ostensibly aimed at doctors, I must point out that it would also criminalize women as parties to the offence. Make no mistake, Bill C-233 will limit a woman's right to choose by doing this. Criminalizing a woman for seeking an abortion is a violation of the fundamental rights of women in Canada, and it is just plain wrong.

I would like to speak to what we know about the impact of using criminal law to regulate abortion. We need not look further than Canada's own legal history of abortion regulation and its impact on Canadian women. That history reflects what the international evidence tells us. Criminal restrictions on abortion result in women having less access to them, and having less access negatively impacts women's equality rights.

Let us take a look at how we got to where we are today. Currently, no criminal offences apply to abortion, and the provinces and territories are responsible for providing safe abortion services to Canadian women. However, we must not forget that, until 1969, abortion was absolutely prohibited in Canada. That meant that very few, if any, safe options were available to women. Women were forced to either bring an unwanted pregnancy to term or access unsafe and unregulated methods such as back alley abortions, which often led to infection and death.

Women who sought abortions also risked criminal sanctions, and doctors who provided safe abortions risked punishment. Many of us will remember Dr. Morgentaler. He was incarcerated for saving women's lives. He risked his own safety to champion women's rights and for that he was awarded the Order of Canada in 2008.

I cannot emphasize enough how much we do not want to return to that era. I am proud to live in a country where women have safe access to abortion and do not need to worry about criminal reprisals. Again, I am very disappointed to be here today having to fight against an attempt to limit these hard-earned and important rights.

The evidence before the court in the Morgentaler case highlighted the medical risks and psychological trauma restricting access to abortion caused women seeking abortion services in Canada, and the importance of affording women autonomy to make decisions about their own bodies. The provisions were found to violate women's security of the person rights.

This is because, and I quote Justice Bertha Wilson, the first woman justice of the Supreme Court, who said that those provisions asserted that, “the woman's capacity to reproduce is to be subject, not to her own control, but to that of the state.”

The court found the violation of women's rights by limiting access to abortion to be completely unacceptable, and so do I. The court has been very clear on this front, and I think that a court could also find this legislation unconstitutional for the same reasons, should it pass.

The 1969 provisions remained in the Criminal Code, but were unenforceable until they were repealed in 2019 by our government in the former Bill C-75. Other related abortion offences were repealed by our government in 2018 in former Bill C-51. Even though they were inoperable, I am proud that our government took the important step to remove these discriminatory provisions.

It took more than 100 years to remove abortion-related criminal offences from our Criminal Code, which is, frankly, a shameful mark. However, again, I am quite proud to be part of the government that finally removed them from the books, and I have no intention of supporting any attempt to add them back.

Consistent with the Canadian experience, international research has shown that using the criminal law to regulate any aspect of abortion results in barriers to accessing abortion services, which contributes to gender inequality. For example, international research indicates that laws restricting the use of technology for sex selection purposes, as well as sex-selective abortions, are likely to have harmful impacts on women. These impacts include women seeking unsafe procedures that fall outside regulations, protocols and monitoring.

I fail to see how criminalizing women who choose sex-selection abortion, perhaps because of familial pressure to do so, protects them, or other women for that matter, from discrimination. Rather, a criminal law response is more likely to detract from women's equality rights by creating barriers to accessing abortion.

The United Nations recommends combatting this form of discrimination by addressing the root causes of gender inequality. This includes focusing on advancing access to education, health services and economic resources for women and girls. I am pleased to note that our government has made significant investments to advance gender equality, guided by women and the framework for assessing gender equality results, introduced in budget 2018.

Criminalizing women seeking abortion is not the solution to this problem and would be a massive step backwards for this country. I cannot emphasize enough how disappointed I am to see that there is yet another attempt in this bill to limit a woman's right to choose.

In Canada, I am proud to say that abortion is treated like the medical service that it is and falls within the responsibility of the provincial and territorial health sector. All medical procedures are subject to medical professional standards.

Ultimately, what could happen if we were to enact an offence such as this? Perhaps doctors would refuse to provide abortion services out of fear of criminalization, because they believe their patient may be choosing abortion for the wrong reasons. Perhaps a woman who needs access to an abortion would be afraid to seek it out in case she is reported and charged for having done so. Perhaps women from certain communities would be denied access to abortion based on discriminatory views about their reason for seeking it. In short, I fear that this bill could undo decades of arduous work to ensure that women never face these barriers again.

I was really disappointed to see the Leader of the Opposition indicate that his caucus will be allowed a free vote on such a fundamental issue as protecting women's right to choose.

I hope that members of the Conservative Party who are currently heckling me will recognize, as all other members of this House do, how important it is to protect equality rights for women in Canada and join me and the government in voting against this proposed legislation.

Judges Act

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Mr. Speaker, I thank the member for Yukon for his kind words.

He mentioned Bill C-51, which was an omnibus justice bill from the last Parliament. If I recall rightly, it contained many different elements about many different issues. To the member's point, sometimes when we have these kinds of omnibus bills, there are particular elements of it that get relatively less discussion.

What the member is pointing out with respect to indigenous communities is something I was talking about in a slightly different context. I was talking a bit about our engagement internationally and the link we sometimes see between violence against women and violence against minority communities and that women from minority communities are sometimes particularly targeted. The member is speaking about something in a similar context in Canada. That is an important complement to some of the points I was making more broadly, that we need to understand human rights and the dignity of the person in an integrated way.

[Larry Bagnell, Liberal, Parliamentary Secretary to the Minister of Economic Development and Official Languages (Canadian Northern Economic Development Agency)]

Madam Speaker, the member always has very erudite speeches. Like the member, I am very passionate in my support of this bill. I will probably not ask a question, but let him carry on because I know he always has a lot of very important input. However, I want to make a couple of comments.

One was mentioned earlier this afternoon. Over and above the bill, which is very important, Bill C-51 added some very important steps. I want to ensure that all the elements of Bill C-51 are implemented so we can get the full benefit of the bill to deal with this.

The second point I want to make is that I am very strongly in support of indigenous involvement in designing the training. Indigenous women and girls, who are often the targets and victims, come from a different culture and a different history of their own unique legal systems. They are different social structures of which we just cannot understand—

[Peter Fonseca, Liberal, Mississauga East—Cooksville, ON]

Madam Speaker, I know that technology can always be a challenge, and we want to make sure that our interpreters are able to hear what we have to say so that it can be provided in both official languages.

Today I will be sharing my time with the member for Vaughan—Woodbridge.

I am very pleased to speak in support of Bill C-3, an act to amend the Judges Act and the Criminal Code. This is a critical piece of legislation that is necessary to ensure that judges understand the context in which offending occurs.

Bill C-3 would amend the Judges Act to require candidates seeking appointment to a provincial superior court to commit to participating in training related to sexual assault law and social context. Thanks to amendments made by the Standing Committee on Justice and Human Rights, candidates must also commit to participate in training on systemic racism and systemic discrimination. The bill would also require the Canadian Judicial Council to ensure that those knowledgeable in the field, potentially including sexual assault survivor organizations, are consulted in the development of this new training.

The bill would also assist in ensuring transparency in judicial decision-making by amending the Criminal Code's sexual assault provisions to include a requirement that judges provide reasons for their decisions, either in writing or in the record of the proceedings. This requirement complements existing legal requirements for reasons including specific obligations for judges to provide reasons in sexual history evidence and third-party records application hearings.

Allow me to explain why these amendments are so critical to a fair and effective response to sexual assault, which we know disproportionately impacts women and girls. Canada has come a long way in this regard. We have one of the most robust sexual assault legal frameworks in the world, but we must not forget the myths and stereotypes to which Canada's existing legal regime responds, nor the fact that those very same myths and stereotypes persist to this day. For example, pre-1983 sexual offending laws were repealed and replaced with “affirmative consent”, the model we have in place today.

The previous laws accepted as a fact, first, that a complainant who fails to resist is consenting and, second, that a complainant who consented to sexual activity with the accused before an alleged sexual assault likely also consented to any subsequent sexual activity. It is hard to believe that this was in place before 1983 until changes started to be made, like the changes that we are looking to make through this bill.

We now know that myths and stereotypes like these are false and distort the court's ability to seek the truth. We also know that these myths and stereotypes have a detrimental impact on victims, who are overwhelmingly women and girls, and that their impact is compounded when they intersect with other discriminatory stereotypes. In particular, they deter women and girls from coming forward to denounce their assailants, which means that those assailants cannot be held accountable.

Statutory rules of law and Supreme Court of Canada jurisprudence now clarify that myths and stereotypes about sexual assault victims have no place in the courtroom, yet we continue to hear that such myths and stereotypes persist. Allow me to expand on examples I have just noted.

We have known for quite some time that a failure to resist is not the equivalent of consent. More than 20 years ago now, in its 1999 Ewanchuk decision, the Supreme Court of Canada clarified that the accused's belief that “silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence”. That can be found at paragraph 51.

That rule is reflected in all of the Criminal Code's provisions that relate to consent, sections 273.1 and 273.2. Thanks to former Bill C-51's sexual assault amendments, which were enacted in 2018, this important principle has been further clarified. The provision that limits when an accused can raise the defence of honest but mistaken belief in consent is now clearly limited to situations where there is some evidence that the complainant communicated consent affirmatively through words or conduct. That is found at paragraph 273.2(c).

More recently, in its 2019 Barton decision, the Supreme Court of Canada aptly renamed this defence as the “defence of honest but mistaken belief in communicated consent”. I understand that many now refer to Canada's sexual assault framework as an “affirmative consent” model. This means that failing to resist is not relevant to the issue of whether the complainant consented or whether the accused believed the complainant consented. However, in 2014, the Alberta case of Wager, a trial court judge asked a sexual assault complainant why she did not squeeze her legs together if she did not want to engage in sexual activity she alleged was a sexual assault. This is unbelievable. It is unheard of that someone would make a comment like that and that we would hear it from a judge.

We have also known for quite some time that a complainant's prior sexual conduct is not relevant to the question of whether she consented to sexual activity that she alleges is a sexual assault. Originally enacted in 1983, the sexual history evidence provisions, sometimes called the “rape shield provisions”, were amended in 1992, almost 30 years ago, to ensure charter compliance. These provisions were upheld as constitutional in the Supreme Court of Canada's 2000 Darrach decision. They directly target two myths. The first of these is that a complainant who is sexually active is more likely to have consented to an alleged sexual assault. The second is that she is less worthy to be believed in respect of her claim that the sexual activity was non-consensual. These are sometimes called the “twin myths”.

The sexual history evidence provisions require an accused who wants to adduce evidence of the complainant's prior sexual conduct to bring an admissibility application to the court. The court then plays a gatekeeper function at the admissibility hearing to prevent the evidence from being admitted to infer one of the twin myths. Former Bill C-51 strengthened these provisions. Specifically, it clarified that communications for a sexual purpose or whose content is of a sexual nature constitutes sexual history evidence, which is found in subsection 276(4).

In the Barton case, the trial court had to determine whether the sexual activity that caused the death of the victim, Ms. Gladue, was consensual. In this case, evidence of prior sexual activity with the accused was admitted without the judge holding a hearing on whether it was appropriate to admit this evidence as would usually happen. In addition, numerous statements about the complainant's status as a person who provides commercial sexual services were admitted, as were statements about her ethnicity. I want to be clear that both the Wager and the Barton trial court decisions were overturned on appeal because errors of law were made. It provides a measure of comfort to know that such errors are corrected on appeal. However, that fact may not offer much comfort to the victims in such cases, or in the case of Ms. Gladue, her loved ones. When the law is misapplied, appeals follow and perhaps even a new trial will be ordered. This can significantly lengthen the criminal justice process.

What can we do about this problem? How can we help our criminal justice system function fairly when addressing one of the most complex human interactions? We can support Bill C-3, which would assist in ensuring that judges have the education they need to understand sexual assault law, those most impacted by sexual offending and the social contexts in which sexual offending occurs.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Madam Speaker, the way that legislation should be done in the House is not like the former Conservatives with omnibus bills.

In fact, we have made changes on issues around human trafficking. We have had public safety bills and measures. As I mentioned, Bill C-51 talked about changing the Criminal Code.

The bill before us is specifically around superior court justices being trained in sexual assault laws and myths. It is important and we need to move forward with it. Also, we need to ensure that we have broad support, which we have, except I do not understand the Conservative senators who blocked it from moving forward.

However, there is no one silver bullet. If we are serious about gender-based violence, then we need to look at it in multiple ways and put forward legislation like this government has done in multiple areas.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Madam Speaker, I rise in support of this legislation. I hope that in this Parliament it will not be blocked again in the Senate and that we can finally implement this important legislation.

Bill C-3 is important. It would ensure that provincial superior court justices would be trained in sexual assault law and in practice with respect to getting rid of the myths that exist in our society around sexual assault, particularly with women. However, this certainly impacts men and the LGBTQ2I community. It would ensure that our legal systems are safe places for victims to share their experiences, that predators are held accountable and that in the future victimization of people can be avoided.

I have been listening to this debate and a number of members have spoken about the statistics. I think most members in the House do so because the statistics are pretty stark. When 30% of women and 8% of men have been sexually assaulted at least once since the age of 15, what kind of society do we live in when this is okay?

When we compare that to the conviction rate of something like 2%, how can we allow women, boys and others in our society to be assaulted from the time they are 15? If this were any other crime, there would be mass outrage in the country about how this was even possible. I suspect the conviction rate is even lower, because sexual assaults and sexually based assaults are so under-reported in this country and around the world, mainly because of the low conviction rates and because of the re-victimization of victims in the justice system and having to defend that they are not at fault for what happened to them. I would argue that these statistics do not paint the full picture.

As a young woman, I certainly know too many stories of other women being victimized and how often that is ignored or accepted. It is not worth it for them to share their stories, bring their family into it and have others hear about what happened to them. The shame is put on victims instead of on the assailants, where it should be.

In addition to why this training is important and why the conviction rates need to be dramatically increased, I want to share some of the comments that justices in Canada, as well as in the U.S., have made in sexual assault cases and why training and getting rid of the myths need to happen as quickly as possible.

Here are some quotes from justices about victims in cases that they were supposed to be adjudicating: “If you wouldn’t have been there that night, none of this would have happened”; the victim “wasn’t the victim she claimed to be”; “Why couldn't you just keep your knees together?”; the victim was “probably as much in control of the situation“ as the assailant; the body can “shut the whole thing down”; and “It's open season” for intoxicated “women”.

These myths continue to victimize women, continue to keep sexual assault of all genders in the shadows and, more dangerous, continue to allow perpetrators to victimize more people and place fear in those whom they have already victimized.

Human trafficking is a huge issue in this country and around the world. I have often heard from survivors and about their experiences. When the process has gone to court, there has been very little protections with respect to being re-victimized. They have been questioned as to why they are there or how they got into the situation. The defendants in a lot of these cases are still able to contact these victims and pressure them. Therefore, many do not bother moving forward because they have to relive their stories, the assault and the trauma they have gone through in a public way and the re-victimizing.

This bill also talks about making changes to the court process. This was brought up in the earlier question and answer period of this debate, and I am very pleased about that.

It is also important that part of the bill relates not only to the training, but also to the written decisions that will be on the record. There needs to be some public naming and shaming of decisions that have been based on old stereotypes and myths to ensure we have a judicial process that protects victims, not puts them on trial. When it comes to sexual assault, we have seen this far too often.

A big myth in sexual assault cases is the notion of who the real victim is. There are very few other areas of law or criminality where the victim is questioned like in the quotes I read earlier, such as why she was there, or why she drank too much, or why she just could not stop it or she should not have been out so late. It is not a crime for women to wear what they want or be where they want to be. It is as if women have to protect themselves from sexual assault when they need to be protected from predators.

Victims need to be protected from sexual assault. This should be a basic principle in our country and our judiciary should respect that, understand that and should not put the lives of sexual assault victims on trial. Only those who have been accused should be put on trial. They have every right to put up a defence if they have been wrongly accused, but it is not the victims who should have to prove they did not deserve the sexual assault or “had it coming”, which is often attributed to sexual assault victims.

With Bill C-51, as my colleague also brought up in the last round of debate, some of the important changes to amend the Criminal Code have been spoken about in the House, but it is really important to raise such things as an unconscious person being incapable of consenting to sexual activity. This might seem like a basic legal principle. We would not have a valid contract if it had been signed by an unconscious person, yet there was a time in our country where an individual could agree or give consent to sexual activity.

Therefore, it is incredibly important that other changes be made to criminal law as well. This is why continual training is so important, so judges can be kept up to date on our most current laws, that we can ensure that these myths and stereotypes are not repeated, that they are formalized in law, that victims can stop being re-victimized and that people feel safe to come forward, to speak out and to stand up against these predators to help stop further victims from being victimized.

I am very appreciative that the former interim Conservative leader Rona Ambrose brought forward a bill on this. I hope that after this second round of debate, we can pass it and have real and substantial change in our country.

[Randeep Sarai, Liberal, Surrey Centre, BC]

Madam Speaker, I will be sharing my time with the member for Pickering—Uxbridge.

I am pleased to contribute to today's second reading debate of Bill C-3, an act to amend the Judges Act and the Criminal Code, which aims at ensuring all newly appointed provincial superior court judges participate in continuing education in sexual assault law and social context.

It would further require the Canadian Judicial Council to report the participation of all sitting superior court judges in sexual assault law education. Finally, the bill would also require judges to provide reasons, in writing or on the record, for decisions in sexual assault matters.

I would like to focus my remarks today on the challenges the criminal justice system is facing in responding to sexual assault in Canada. Further, I would like to discuss how Bill C-3 aims to address these issues by building on recent measures our government has undertaken.

Sexual assault is a gendered crime. Women are almost four times more likely to be sexually assaulted than men. Statistics Canada has reported that 30% of women in Canada, compared with 8% of men, have been sexually assaulted at least once since the age of 15. That is 4.7 million women and 1.2 million men who have been victims of sexual assault.

It is estimated that only 5% of sexual assaults are reported to police. In 2017, only 32% of sexual assault charges proceeded to trial and only 41% of those resulted in a conviction. In other words, less than 2% of sexual assaults in Canada resulted in a conviction in 2017. I would like to note that the number is likely much lower.

In 2018, it was estimated that only 35% of reported sexual assault cases resulted in charges being laid. If we apply this number to the 2017 data, the result is that only 0.23% of sexual assaults in Canada result in a conviction. The data paints a bleak picture and illustrates the challenges our criminal justice system is facing in responding to sexual assaults.

In recent years, this government has made important changes to sexual assault law. These reforms were aimed at enhancing the equality, privacy and security rights of complainants by countering the myths and stereotypes that have persisted in our criminal justice system, while also balancing the rights of the accused in a manner consistent with relevant Supreme Court of Canada jurisprudence. These myths include deeply rooted beliefs of how so-called real victims react to sexual assault and myths concerning the reliability of women's testimony when they make sexual assault complaints.

In June 2017, our government launched its action plan to combat gender-based violence. The plan is called “It's Time: Canada's Strategy to Prevent and Address Gender-Based Violence”. It is a coordinated, multisectoral strategy based on the three pillars of prevention, support for survivors and their families, and promotion of responsive legal and justice systems. The government has invested substantial sums to support the implementation of this government-wide initiative, which aims to combat gender-based violence, coordinate existing programs and lay the foundation for a broader package of measures.

Additionally, through former Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act, which received royal assent in 2018, we amended the Criminal Code to clarify and strengthen Canada's sexual assault laws.

For instance, these reforms clarified that an unconscious person is incapable of consenting to sexual activity; an accused cannot rely on the defence of mistaken belief in consent if there is no evidence that the complainant voluntarily and affirmatively expressed consent; sexual history evidence must never be adduced to infer one the twin myths, namely, that the complainant is more likely to have consented or is less worthy of belief based on the sexual nature of that evidence; and the admissibility of the complainant's private records that are in the possession of the accused, such as counselling records or private journals, is determined through a special procedure similar to what applies to the admissibility of sexual history evidence and the production of third party records.

In addition, our government has funded the creation of pilot programs in various provinces to provide independent legal advice, and in some cases, legal representation to survivors of sexual assault. The provinces of Newfoundland and Labrador, Saskatchewan, Nova Scotia and Ontario, as well as Yukon Territory, have reported that these programs have been beneficial to survivors of sexual assault. Our government has also provided funding to the National Judicial Institute to develop judicial education on gender-based violence, including sexual assault.

Finally, through former 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, which received royal assent in June 2019, we restricted the availability of preliminary inquiries to offences punishable by 14 years or more imprisonment. This means that preliminary inquiries are no longer available for many sexual assault offences so that many complainants will not have to testify twice, once at the preliminary inquiry and again at trial. We know that testifying in court is often a harrowing experience because it requires victims to relive the trauma they have experienced.

As such, the criminal justice system has become more compassionate to survivors of sexual assault. Although we have made significant progress in recent years, we must continue our efforts to ensure that survivors of sexual assault are treated with respect and dignity in their interactions with the criminal justice system. It is imperative that judges have the necessary training regarding the complex nature of sexual assault law and the myths that too often surround it. Bill C-3 aims to ensure that decisions in sexual assault matters are not influenced by myths and stereotypes about sexual assault victims and how they have behaved, which the Supreme Court of Canada has found distorts the truth-seeking function of the court.

Through this bill, we hope to enhance the confidence of the public and survivors in the handling of sexual assault matters by our criminal justice system. This is why the bill would require all candidates seeking appointment to a provincial superior court to agree to participate in continuing education in sexual assault law and social context, and to require judges to provide reasons in writing or on the record for decisions in sexual assault matters.

The proposal in Bill C-3 to require candidates to commit to continuing education after appointment would ensure that newly appointed provincial superior court judges fully understand the complex nature of sexual assault law. It would also require that the training created by the Canadian Judicial Council be developed in consultation with survivors of sexual assault, their support groups, and other individuals or groups the council considers appropriate.

The bill also provides for the introduction of a requirement that the Canadian Judicial Council report on the participation of all current superior court judges in sexual assault law education. This measure would increase accountability for sexual assault law education and act as an incentive to encourage the participation of current superior court judges in sexual assault law education.

Bill C-3's specific proposal to require judges to provide reasons in a determination of sexual assault matters would be included in part VIII of the Criminal Code with other sexual assault provisions to ensure that provisions relating to sexual offences are clear and accessible to those applying them. Essentially, this will create almost a mini sexual assault code within the Criminal Code and will help to prevent the misapplication of sexual assault law. Further, it would help improve the transparency of sexual assault decisions because recorded and written decisions can be reviewed.

Improving the handling of sexual assault cases in our criminal justice system goes beyond partisan politics. This bill, originally a private member's bill introduced by the hon. Rona Ambrose, the former interim leader of the Conservative Party, will help to increase the confidence of sexual assault survivors and the public in our criminal justice system. We must work together to transform the criminal justice system into a fair, more effective, accessible and efficient system for all Canadians. I urge members of the House to support the passage of this bill.

[Pam Damoff, Liberal, Parliamentary Secretary to the Minister of Indigenous Services]

Mr. Speaker, I will be sharing my time with the member for Saint-Laurent.

Today I speak in support of Bill C-3, an act to amend the Judges Act and the Criminal Code.

This bill has had the support of the House on two previous occasions, but despite all-party support has not yet become law. Listening to debate last Friday, it was obvious the bill continues to serve as an example of ongoing parliamentary collaboration and one which we should all take pride.

I want to start by recognizing and thanking the Hon. Rona Ambrose for her initiative on this critical issue. Her bill was the first legislation to be studied at the Standing Committee on the Status of Women. The collaborative work we did at committee made the bill stronger, and I am happy to see that the government has incorporated amendments from that study into this bill.

At the time Ms. Ambrose introduced her private member’s bill, several high-profile rulings had shown Canadians some judges did not understand sexual assault law and were relying on myths and stereotypes when issuing their rulings.

Members of the House will recall when former Alberta Federal Court Justice Robin Camp asked a sexual assault complainant why she could not “keep [her] knees together” during her alleged rape. Because of his comments, the Canadian Judicial Council launched a review into Justice Camp’s conduct and concluded that he “acted in a manner that seriously undermined public confidence in the judiciary.” Following the review, Justice Camp resigned.

Ultimately, Bill C-3 is about assuring Canadians that judges who are elevated to federally appointed positions have a desire to understand the myths and stereotypes that have been present in Canadian society for far too long. The federal government should appoint judges who acknowledge that learning is a lifelong process and value continuing education. This is a bill created to ensure that no other sexual assault complainant will be subject to condescending, humiliating and disrespectful conduct from a federally appointed judge.

Bill C-3 would amend the Judges Act to require that a candidate seeking appointment to a federally appointed judicial position attest to participating in training related to sexual assault law and its social context. The bill would also require the Canadian Judicial Council to ensure this training is developed after consultation with those knowledgeable in the field or other individuals or groups it considers appropriate, including sexual assault survivor organizations.

These amendments are designed to ensure that newly appointed superior court judges are fully apprised of the law in relation to sexual assault and on social context. Moreover, the bill is possible because of the already outstanding work the National Judicial Institute, the body responsible for creating judicial education in our country, has done, with help through federal investment, in developing comprehensive continuing education for judges on sexual assault law and its social context.

Finally, the bill would amend the Criminal Code to require that judges provide written reasons or enter them into the record of the proceeding for decisions in sexual assault proceedings.

I have talked about the social context of sexual assault, and I would like to provide a clearer definition of social context.

Quite simply, social context means the immediate social or physical environment in which one lives affects how one sees the world. The experience of an affluent woman who has survived sexual violence will be different than the experience of a woman who is homeless. The experience of a white trans-woman will be different than the experience of a cisgender indigenous woman. The experience of a gay man from Toronto will be different than the experience of a straight woman living with a disability in Amherst, Nova Scotia. The experience of a judge trained in myths and stereotypes about sexual assault will be different than a judge who has never received such training.

Importantly, in the context of the debate on the bill, social context affects how different people view the criminal justice system and how the criminal justice system views them. This is why it is my hope that at committee the bill can be expanded to clearly articulate the need for training, not just on sexual assault law and social context but on the need for training on anti-racism.

This summer, our country came to understand that systemic racism existed in all our institutions. In 2017, at the beginning of the #MeToo Movement, our country came to understand that systemic sexism existed within all our institutions as well.

Jennifer Koshan, professor of law at the University of Calgary, made clear in her testimony at the Standing Committee on the Status of Women that “not only does the law change, but social context can change”. This is why requiring that a candidate seeking appointment to a federally appointed judicial position attest to participating in training related to sexual assault law and its social context is so important.

Bill C-3 addresses a long-standing problem: the influence of myths and stereotypes in sexual assault law. As hard as it is today to imagine, prior to the reforms that began in 1983, a husband could not be convicted of sexually assaulting his wife. Sexual assault convictions required testimony from someone other than the victim. Victims had to raise a hue and cry before the assault and report it shortly afterward or they would not be believed. Victims' sexual reputation and prior sexual activity could be used to attack their credibility.

Reforms were enacted to address these and other evidentiary rules through the 1980s and 1990s. For instance, in response to concerns from survivors and women's organizations, amendments commonly referred to as the “rape shield” provisions, which govern the admissibility of the complainant's prior sexual activity, were first introduced in 1983 and then amended in 1992. These provisions are designed to protect survivors from the introduction of evidence of their sexual history, which had been used to infer that they were more likely to have consented to the sexual activity in question or were less worthy of belief. The provisions also place restrictions on the use of sexual history evidence for other purposes unless specific criteria are met.

Also in 1992, a clear definition of “consent” in the context of sexual activity was introduced in the Criminal Code and limitations on the accused’s ability to raise a defence of mistaken belief in consent were enacted. The Supreme Court of Canada has provided guidance on the application of the sexual assault provisions, making it clear that consent must be affirmatively expressed through words or conduct and cannot be implied by submission, passivity or a failure to protest.

However, despite the robust legislation in place and the clear rulings from the highest court, myths and stereotypes about sexual assault survivors still creep into the courtroom and into judicial decisions. Identifying solutions to these ongoing challenges has been a priority for our government and, indeed, a matter of ongoing concern in Canada.

Our government introduced Bill C-51 in 2018. With its passage, the changes clarified a number of principles that were already covered in the law, notably, that an unconscious person cannot consent to sexual activity; an accused cannot rely on a mistaken belief in consent where that belief is based on a mistake in law, such as consent obtained through force; sexual history evidence must never be used to infer consent; and, finally, the admissibility of evidence of a victim’s private communications made for a sexual purpose must be determined through the rape shield provisions.

In addition, Bill C-51 provided that victims could make submissions and be represented by counsel in sexual history evidence or rape shield proceedings and that the admissibility of victims’ private records that were in the hands of the accused be determined through a process similar to that of the rape shield and third party records proceedings.

Our government has also modernized the judicial appointment process to bring greater diversity to the bench. During testimony in 2017 at the status of women committee, Professor Carissima Mathen said, “That's been a somewhat unheralded earthquake in the world of judicial appointments.... The innovations that have been done around judicial appointments...have been quite remarkable.”

Canada’s—

Resumption of Debate on Address in Reply

[Matthew Green, NDP, Hamilton Centre, ON]

Madam Speaker, we heard good words about reconciliation, yet 45 minutes from my house, on Six Nations territory, Haudenosaunee land defenders are being criminalized by both the OPP and crown prosecutors.

Does the member believe that indigenous land defenders who are peacefully protecting their land claims are terrorists, as defined under Bill C-51?

Criminal Code

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

Mr. Speaker, it is a pleasure to rise in the House to speak. This could quite possibly be the last speech I make in the 42nd Parliament. I certainly have a number of things to say about Bill C-75.

Bill C-75 amends criminal law. It is a justice bill. When we look at bills that fall into this area, it is important to remember what we are trying to achieve with bills in the criminal justice system. The first thing we are trying to do is define for Canadians what unacceptable behaviour is. Once we have set that standard, then we are trying to assign penalties suitable to deter people from committing that crime. In Canadian federal prisons, we do not do a lot of rehabilitation, so really the main part of the criminal justice system is to assign a penalty that both is commensurate with the crime that was committed and also is a deterrent to keep people from committing that crime, and then to prosecute that charge in court with a fair and due process.

I would like to look at Bill C-75 and compare it to those criteria to see how it measures up.

First, I will talk about defining unacceptable behaviour. I am not sure that the Liberals understand what unacceptable behaviour is. I say that because we are talking about a Prime Minister who is the first prime minister to break a law, which he did when he took a private helicopter to billionaire island. The member for Brampton East was involved in allegations of money laundering. We are currently seeing the member for Steveston—Richmond East in several instances of money laundering, as well as being disbarred. There have been multiple ethical lapses and cases of sexual harassment that caused some members to be out of the caucus, but I would argue there are still some members within the caucus. There is a tolerance for things that, in the minds of Canadians, shows that maybe there is not a good moral compass in the Liberal Party to define what unacceptable behaviour is.

With respect to assigning penalties suitable to deter people from committing the crime, one of the most egregious things about the changes in Bill C-75 is that the Liberals have taken a number of crimes that Canadians would consider to be very heinous and reduced them to a summary conviction of two years or a fine. It is important to look at the list of the kinds of crimes we are talking about, so that people can convince themselves whether this is appropriate.

The most heinous crime on the list has to be the forcible confinement of a minor. In the minds of all Canadians, we value our children and we want to protect our children. If somebody kidnapped and forcibly confined a child, I do not think most Canadians would think it is okay to get off with a fine for doing that. That is unacceptable.

Also on the list is forced marriage and forced marriage of children. I am not sure this should be allowed at all in Canada, but I know one thing. If we are talking about forced marriage and marriage for people who are under 16, that is rape. It is clear that it is rape. Therefore, to put that as a summary conviction of less than two years or a fine is unacceptable. We can see in this country that rape is on the increase. One in three women will experience sexual violence in her lifetime. Therefore, it is clear that we do not have the right deterrent to reduce the crime that is happening.

I was the chair of the status of women committee when we studied violence against women and girls in Canada. We had testimony from quite a number of countries, and I was interested to look around and see which countries were doing a better job in the area of rape. There are countries that do not have a big issue with rape. I asked the witnesses why that was, and they said the penalty for the crime was 10 to 15 years in prison, so they have a deterrent for people not to commit that crime. There is also an awareness of the fact that it is illegal. We have a lot of people coming to Canada from places that have a different culture in many cases and have a different tolerance for things like rape. It is important that we educate people who come to this country about those issues. We should be setting punishment for this crime that is commensurate with it, and a fine is not acceptable.

Assault with a weapon is on the list. We sadly saw what happened today at the Raptors parade with people getting shot. This seems to be an event that is on the rise. I think about the Danforth shooting. I think about a number of shootings that have happened. Assault with a weapon should not be less than two years in prison or a fine. That is not acceptable. That is not a deterrent, and I think most Canadians would agree with that.

Originally, there were a number of items on the list that had to do with participating in terrorism activities, or leaving Canada to participate in the activities of terrorist groups. There was some walk-back within Bill C-75 on that issue, but we are still not in the place we need to be on that.

Canadians are concerned about terrorism. A number of events happen but we do not receive any information. I am thinking about the two fellows in Ontario who were caught with explosives and the FBI was investigating. Everyone says there is nothing to see here; all is fine. There is the Danforth shooting, the guy who drove a van and killed multiple people in Toronto. There is the return of ISIS fighters and people not knowing what is happening with them. Are they walking around? How do we know that the public is safe? There is a concern among Canadians that we should take a hard line on terrorism. I am glad to see some walk-back on that, but I want to keep an eye on it.

Another thing on the list is municipal corruption. Corruption in government of any kind is not something that should ever be reduced to a fine. We have seen lots of corruption in the existing Liberal government, lots of scandal. The fact that the Liberals have reduced the severity of the crimes on this list is indicative of the lack of moral compass on the other side.

Maybe “assisting prisoner of war to escape” is not a current issue, but how about “obstructing or violence to or arrest of an officiating clergyman”? This one is particularly egregious to me. I remember when Bill C-51 came from the Liberal government and tried to take what is today considered a crime, to attack or threaten a clergyperson, and remove that altogether. I remember the concern from churches in Sarnia—Lambton and across the country. They wondered why the Liberals wanted to take a protection away from the clergy, especially when cases of that nature had been prosecuted.

As a result of the public outcry and a swing in the polls, the Liberals backed off that, but here it is, showing up again, and this should be a flag to people who are watching tonight. What we see with the Liberals again and again is that they try something and when there is a public outcry, they back off, but as soon as they get another chance to sneak it in, it comes back.

A number of things have been like that. I am thinking of the tax that the Liberals were going to put on dental and health care. They backed off, but I bet it will reappear. It is the same thing with the small business tax on passive assets. As soon as there was an outcry, the Liberals backed off, but this is something to watch for if they get another chance.

Impaired driving causing bodily harm is on the list. This is quite concerning as well. We can think about the amount of work that organizations like Mothers Against Drunk Driving have done to raise awareness, to try to get stiffer penalties for impaired driving causing bodily harm. We can think of the tragedy of many parents who have lost children or loved ones who have been killed by somebody driving impaired. To reduce this to a conviction of less than two years or a fine is totally unacceptable, especially from a government that legalized marijuana, knowing that Colorado and Washington saw a doubling of traffic deaths due to impaired driving. This is a step in the wrong direction and should be reconsidered.

There is another one in the bill that talks about polygamy, and I am not sure why this one made the list. Polygamy has been illegal in Canada for quite some time and culturally, we would like to preserve that. I am not sure why we would want to lessen the severity of the crime for that.

There is arson for fraudulent purposes. These acts are clearly serious crimes. If I go back to the original premise that says the reason we have a criminal justice system is to assign penalties suitable to deter people from committing a crime, I think we could admit that diluting the penalty in the way Bill C-75 does is not going to help us move forward or deter crime in this country.

I want to read quotes of what people have said about Bill C-75. Ms. Markita Kaulius, the president of Families for Justice, said, “Bill C-75 is a terrible bill for victims and for public safety.” Stephanie DiGiuseppe, a litigation lawyer in Toronto specializing in criminal and constitutional law, said, “Bill C-75 is a massive step backwards for justice reform in Canada.” Christian Leuprecht, a professor at the Royal Military College of Canada, said, “the signal that [Bill C-75 is] sending is that these offences are no longer as serious as they were before.” It has been recognized across the country that this bill is not going to be good for the criminal justice system and it is not going to accomplish what we need to accomplish.

If I were a criminal in Canada, I would be saying it is a great time to be a criminal with the Liberal government in place because it always protects the rights of criminals instead of the rights of victims. There is a move to decrease punishments. We talk about some of the things that Bill C-75 was hoping to accomplish. One was that the court system is overloaded right now. One way of offloading the courts is to get rid of all the people in line by fining them instead of making them go through the court process. One way to prevent the courts from being clogged up is to hire enough judges to adjudicate the cases.

In the four years the Liberal government has been in place, the court is missing about 60 judges, at last count. That never happened under the previous Conservative government. There was always an adequate number of judges to process the cases in the courts. Therefore, reducing sentences and letting everybody off the hook is not the answer. We do not say that since there are too many people in line, we should allow the murderers and rapists go free, but that is essentially what is happening now because there are cases are waiting too long. According to Jordan's principle, after two years, those cases are thrown out of court. During the reign of the Liberals, murderers and rapists have gone free in Canada. Clearly, understaffing the judiciary is part of the problem and part of the solution is replacing them.

When it comes to enforcing punishments, there has been a bit of a lackadaisical attitude. I remember when we first heard that Terri-Lynne McClintic had been sent to a healing lodge that had no security. She had been convicted of brutally murdering a child and was supposed to be imprisoned with a lot of security until 2030. When we raised the issue, those on the other side did not understand why we were raising it because they thought it was no big deal. It took a public outcry for the government to recognize that this was a big mistake and people who commit serious crimes, like murdering a child, need to be behind bars. The punishment needs to fit the crime. Again, there is lack of a moral compass on the other side.

However, there are lots of protections for people in prison. Mental health supports were announced in the budget for folks in prison. I am not saying that criminals do not deserve mental health supports. I am just saying that since mental health supports are very much lacking for the rest of Canadians, why are we putting prisoners first? There is a program to provide free needles and we are moving to providing free illegal drugs to prisoners. I am not sure why the government is in the business of doling out illegal drugs; we do not provide free syringes and drugs to people with diabetes or everyone who has cancer.

I would certainly argue that when it comes to priorities, the government appears to be putting a priority on criminals, instead of victims and the rest of Canadians. I do not think that is the right priority, and the government should re-evaluate it.

The current Minister of Justice talked about the Senate amendments and the ones that should be included. He talked about the victim surcharge in one of the amendments. The victims surcharge was put in place because victims services were expensive. This was a way of recouping some of the costs, people who had done the harm had to do some remediation of the harm.

I am not sure, then, why the government would remove the requirement to have this victims service charge and to leave it to the discretion of judges. First, they have to remember that they can apply a victims surcharge. Then we leave it to their discretion as to whether they will apply it.

My experience has always been that when it is left to the discretion of judges, we see sentences becoming smaller and smaller over time. It is heartbreaking to me. I think about some of the stories I have heard of rape and been involved with them. In Sarnia—Lambton, for example, there was a case recently, where a 13-year-old girl was gang raped by two men who received prison sentences of months. We absolutely cannot have this kind of thing.

I think of Rehtaeh Parsons who was raped by multiple people. As a result of the ensuing shame that was put on her for over a year and a half, she took her life. It was a wrist slap for the people who were involved in that crime.

We do not have the right balance, and Bill C-75 does nothing to address it.

I want to talk about the previous Conservative government and its record on crime. The Conservatives are known, in general, to uphold criminal justice, to take the rights of the victim, rather than the rights of the criminal, and to try to impose stiff penalties for violent and heinous crimes. People will have a choice in the fall election. They will have a choice to move away from protecting the criminals' rights and move into the space of protecting the victims' rights. That will be important.

One of the interesting parts of the Senate amendments was the Senate trying to add different offences. The Senate decided it would add neglect or interference with a dead body to the list of things we might want to give a fine for or a summary conviction. The Senate wanted to make infanticide, killing a baby, a less than two years sentence or a fine. I do not think that is where Canadians are.

Setting traps, obtaining credit from false pretense, stock manipulation, gaming, fraud, falsification of documents, dealing in counterfeit money, on all of these things, the everyday Canadian would say they are crimes and people should go to prison when they do these things. They should not be given a fine or a summary conviction. I do not think it is right.

The government promised to uphold the rights of Canadians and to protect them. This is another example of where the government has not kept its promise to Canadians. It promised a lot of things. The Liberals promised small deficits. They promised to balance the budget by 2019, and here we are in 2019. They promised open and transparent government, but we have seen gag orders and cover-ups. The privacy legislation, which we just talked about, clearly is not hitting the mark.

We were told 2015 would be the last election under first past the post, another broken promise. We were told there would be no omnibus bills, another broken promise. We were told they would restore home mail delivery. The Liberals have broken 75% of their promises. When people are listening to what Liberals are promising this year, they should keep that in mind, that three-quarters of what is going to be said is never going to happen. We have seen that with the pharmacare promise. The Liberals promised that in 1997, 2004 election and again in the last election.

Then there is the wrong approach to guns. Assault with a weapon has been added to the list in Bill C-75 that will get a slap on the wrist. However, we see an increasing number of crimes involving guns. In fact, 95% of the gun crime in Canada is caused by illegal guns or guns used illegally. The government has not come up with a plan to address that. Our leader has come with a comprehensive plan that will address the real problem, which is guns used illegally by gangs, and bring the right penalties to deter bad behaviour. However, the Liberals are not on that page. They are as always taking the side of the criminals on these things, and we see a further move to decriminalize other behaviours.

I know there is a real push on for the Liberals to decriminalize all drugs. We just did a study at the health committee on the meth problem. We visited across the country. When we went to Winnipeg, we saw the problem with methamphetamine addiction. The response of the Liberals was to decriminalize it and give people free methamphetamine. Police officers are saying that these people are committing a lot of crimes, they are breaking into people's houses and there are all kinds of violent acts going on. Therefore, we have to be doing something that balances the protection of Canadians with the care that we have for folks who are addicted. However, that has not been addressed.

On Bill C-75, I received numerous petitions. I know people across the country are paying attention to this. I received a lot of information from the member for Niagara Falls, who was a former justice minister, as well as the member for Milton, who is very educated in these areas.

I heard the current Minister of Justice talk about indigenous people being overrepresented in the criminal justice system, and that is true. We need to get to the root cause of that, but I do not think reducing penalties for serious crime is the way to go about it.

I looked at some of the points that were made on reducing intimate partner violence. It is a great thing to reduce intimate partner violence, but forced marriage is intimate partner violence, especially when it is a child. There is a bit of hypocrisy in the way the bill was brought forward.

I did not hear a lot of conversation from the Minister of Justice on the modernization and simplification of the bail system and I would like to hear more. There is definitely room for improvement, but, again, modernization and simplification cannot mean abdication of responsibility in the criminal justice system.

On allowing a preliminary inquiry, which originally was allowed for serious crimes that carried life imprisonment, and I believe 70 infractions would meet that criteria, the bill would open that up to another 393 that could have access to a preliminary inquiry if one party or the other demanded it. Again, this will take more court resources. If the whole purpose of Bill C-75 is to try to help offload the courts and if the Liberals would let some more serious crimes go with a less than two-year conviction or a fine but then load up the court system again with a bunch of preliminary inquiries for a greater realm of offences, I am not sure that would achieve what they want to achieve.

Overall, when I look back to what we want to do in the criminal justice system, we want to define unacceptable behaviour, and certainly there is a good list, but we also want to assign penalties suitable to deter people from committing the crime. The Liberals missed the mark on that with Bill C-75.

We want to prosecute in court with a fair and due process. I do not think Bill C-75 would do that. I do not think it is fair to the victims to have these very serious crimes punished with a slap on the wrist, which is essentially what a fine or a less than two year summary conviction is. I do not think we will increase the cycle time through the courts, because, again, judges are still missing, which is a key part of it. Now the bill would increase the number of preliminary inquiries. Therefore, I do not believe Bill C-75 will hit the target.

The bill should not go forward. I know the government is rushing it through in the dying days of of the 42nd Parliament, but I will not support Bill C-75 and I know my constituents and those across the country will not support the bill or the government.