Mr. Speaker, Bill C-51 is a broad and complex bill. If I have the time, I will entertain further discussion of the merits of the bill, which I feel is a good bill.
Bill C-51 proposes many different things in clarifying provisions relating to sexual assault, repealing unconstitutional provisions of the Criminal Code, clarifying and strengthening our charter by ensuring the government prevents charter statements for every piece of government legislation and seeking to avoid unnecessary litigation by enhancing our understanding of the criminal law.
This debate is essentially about the Senate amendments to the bill with respect to the issue of sexual assault.
As these issues were covered by the House of Commons Standing Committee on Justice and Human Rights when it debated the bill, this is an interesting analogy to bring to the attention of the House. We did not support the amendments that were brought forward by Senator Pate, amendments that were adopted by the Senate.
When we were debating the sexual assault provisions in the bill, there was enormous discussion.
The bill's intent is to codify the decisions of the Supreme Court of Canada in J.A. and Ewanchuk.
In the decision in J.A., the intent was to set out and make it clear that someone would not be capable of providing consent when unconscious, but also that there were other instances in which the individual might be unable to provide consent.
In the case of Ewanchuk, the issue related to a misunderstanding of the law, clarifying that a mistake of law was not a defence to sexual assault.
When the legislation came to the Standing Committee on Justice and Human Rights, we introduced amendments to clarify what people were concerned about when they came to testify about the bill. We heard from a wide range of witnesses, representing groups on all sides of the spectrum, from defence counsels and prosecutors to women's groups, victims' groups, etc.
We wanted to ensure that it was very clear that unconsciousness was not a bright light, meaning that anything short of unconsciousness would be seen as potentially not allowing one to say that consent was not extended.
As such, the Standing Committee on Justice and Human Rights made an amendment to make clear that consent had to be contemporaneous at the time of the sexual activity, that it must be ongoing, that it would not be valid if made in advance and that the person engaging in sexual activity was allowed to withdraw consent at any time. That amendment was supported by all members of the committee.
We also had an amendment to clarify Ewanchuk with respect to the mistake of law defence. We were concerned that the bill as originally drafted would possibly allow people to conclude that a mistake as to fact would no longer be a defence. We clarified that portion of the bin the bill to make it clear that it was only a mistake in belief as to what the law was that would no longer provide a defence allowing a mistaken belief as to fact to continue to constitute a limited defence.
For clarity, that means if someone who erroneously believes that when married, a spouse has to consent and that there cannot be sexual assault in marriage, that is a mistake as to law and it is not permitted anymore as a defence. That clarifies the Supreme Court decision in Ewanchuk within the Criminal Code.
That was what our committee had done, but the Senate went far beyond that and made amendments that sought to set out an additional framework of what type of capacity was required for consent.
The Senate added that lines 17 to 20 be replaced to say:
(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;”, and...
(3.1) For greater certainty, capacity to consent at the time of the sexual activity that forms the subject-matter of the charge cannot be inferred from evidence on capacity to consent at the time of another sexual activity
These are all very well-meaning amendments. They are amendments that seek to clarify capacity, but I am afraid that these amendments may have unintended consequences, could prolong cases a great deal by leading to enhanced questioning in all of these areas and, in fact, go way beyond what the Supreme Court said in J.A. and go beyond the intention given to the legislation, which was to codify the decision in J.A.
The Minister of Justice has advised us that she will be undertaking further consultations with relevant groups across the country and may come back to us with further clarifications to the legislation on capacity. However, I believe that putting forward these very detailed amendments that were not considered by the witnesses who appeared at the House committee or Senate committee because these were not on the table in the legislation, so we did not hear from the wide spectrum of witnesses on their thoughts about the draft language, leads to us using very specific draft language that the legal community across Canada was not consulted on.
I would also draw the attention of the House to the fact that the committee considered amendments very similar to this that were brought forward by my colleague from Cowichan—Malahat—Langford in the New Democratic Party who sat on the committee at the time. When those amendments were brought forward, I found them to be confusing. I asked a question of the officials from the Department of Justice that I would like to put on the House record. This is from the record of the justice committee. I asked the following:
Can I ask a question, either to [the member for Cowichan—Malahat—Langford] or the officials, or maybe to both? I have two questions, actually.
One, with the fact that we have “unconscious” and then a general provision saying for anything else, is there any potential that by adding two specific examples into the second paragraph, the courts may then narrow the scope of what it's intended to mean?
Two, would somebody not being aware that they are not obliged to consent to the activity not be a mistake of law, a misunderstanding of the law, as opposed to incapacity?
The official from the Department of Justice who answered the question, Nathalie Levman, counsel for the criminal law policy section, stated the following:
Regarding your second point, I agree with you. I'm concerned that this doesn't necessarily speak to the capacity issue that proposed paragraph 153.1(3)(b) speaks to.
That raises a number of different points about your first question, which is that the law on when a person is so incapacitated that no consent is obtained in law is complex. The case law is difficult and there may be a number of different factors that are relevant. Singling out two factors, one of which may not relate to capacity, may have some unintended effects. As to what those effects could be, I cannot speculate, but I just point out that it is a complex issue of law, this particular paragraph, proposed paragraph 273.1(2)(b).
That brings me back to my argument. The fact that the Department of Justice was unable to say clearly what the intended amendment would even mean and talk to us about the ambiguity that the amendment potentially offered leads me to conclude, as I believe my Conservative and Liberal colleagues all concluded at committee, that adding these words into the law, while well intentioned, may have factors that we had not considered. I think this would certainly render a provision to the law that the courts have now interpreted for a considerable amount of time even more complex than it needs to be, leading to multiple questions that I could see being asked now to deal with the all of the different situations put forward by the Senate amendment.
I applaud Senator Pate for her decision to be an advocate on this issue, but I regret that I cannot agree with the position that she took in terms of proposing the amendment to go forward at this time.
I would prefer seeing the Minister of Justice do wide consultation, which would then allow, when a bill comes forward, the Standing Committee on Justice and Human Rights to have the benefit of the draft language to share with all of the different witnesses coming before committee, so that all of them could expound on whether or not they find that language to be helpful or problematic, etc.
That being said, I would also like to speak to another amendment that the House of Commons Standing Committee on Justice and Human Rights made to the bill. There has been a lot of discussion about the provisions that the bill removed from the Criminal Code that had been ruled either unconstitutional or inoperative; inoperative ones, such as challenging someone to a duel. We would all agree that is no longer an issue for many Canadians, and that that was properly removed from the legislation.
Another one that would be removed as inoperative is possessing, printing, distributing or publishing crime comics. Again, I think most of us would agree that there is no need for a specific provision as to that. Fraudulently pretending to practise witchcraft is another one. While it is comforting to know that if someone actually does practise witchcraft and is not being fraudulent about it, they are allowed to do so in Canada. I do believe that removing the potential of fraudulently practising witchcraft is definitely a good step.
Another is issuing trading stamps, who knew it was illegal to issue trading stamps? However, I am pleased that we removed that from the Criminal Code. I am also very pleased that we worked with—