This bill was last introduced in the 42nd Parliament, 1st Session, which ended in September 2019.
Jody Wilson-Raybould Liberal
This bill has received Royal Assent and is now law.
This is from the published bill. The Library of Parliament often publishes better independent summaries.
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.
All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.
The Assistant Deputy Speaker Liberal Anthony Rota
Questions and comments, the hon. member for Lanark—Frontenac—Kingston.
Scott Reid Conservative Lanark—Frontenac—Kingston, ON
Mr. Speaker, this spring, we debated and voted in favour of a motion dealing with the issue of Islamophobia. The provision of the law to which the member draws attention, the disturbance of religious services, was designed at a time when Protestants and Catholics were bad neighbours and would disrupt each other. Is it not the case that today those groups that are perhaps newer to our society and perhaps not as accepted as they should be, for example Jews and Muslims, who want to practise their religion in peace, whether in a mosque, a synagogue, or in a public place, where the law of trespass does not provide additional protection, ought to have some form of legislative protection for their sacred rights, even when they occur in public places? For example, funerals can happen in a public place at memorials.
Rob Nicholson Conservative Niagara Falls, ON
Of course they should have that, Mr. Speaker. This section of the Criminal Code does that. This section protects all individuals performing religious services. It makes a specific reference to anyone who might try to disrupt a religious service.
I have never heard of anyone ever having a problem with this section. If we sit down with people and talk to them about different possibilities of a disturbance or anything like that, many would agree on the seriousness of anybody disrupting a religious service or threatening somebody who practises his or her religion.
The member mentioned the motion. We heard again and again how concerned the Liberals were about people having the right to practise their religion without fear, without hate, without prejudice, without any disruption whatsoever. Therefore, I was surprised when I picked up the bill. After the Queen, this is one of the first things the Liberals wanted to get rid of. I do not get it, getting rid of the specific protection that our head of state has. What is the problem with that?
The timing of this is terrible in my opinion. It is the 65th anniversary of the Queen's reign, and now members decide to get rid of the specific protection that is accorded to her. However, the other section is the only area of the Criminal Code that specifically delineates religious services and those who perform those religious services. Why would they get rid of it? I wanted to have a motion here to have these separated. I hope the Liberals will reconsider this.
I think there is great consensus on a lot of the different sections in here. A lot of the sections make the Criminal Code gender neutral. A lot of the sections update the wording and get rid of sections that have long had no relevance. Most important, the area with respect to sexual consent and the other laws, like the rape shield laws, are extremely important. The Liberals should have had this as a separate bill rather than toss this all into it, but we on this side of the House do not run the show.
Again, I have invited my colleagues to mention it to their constituents and ask them how they feel about the the Liberal Party getting rid of the section that protects people in the practice of their religion. I am going to look forward to getting some feedback from them in the fall.
David McGuinty Liberal Ottawa South, ON
Mr. Speaker, I want to come back to a theme the member touched on earlier, the theme of anniversaries. This is the 30th anniversary of Canada's Charter of Rights and Freedoms.
One of the things our government has been practising, which I think he would admit in fairness, as a former minister of justice, his government did not do, is our Minister of Justice, since becoming the minister, has been tabling with every justice bill a statement of the bill's potential effects on the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms. This bill would codify it. It would formalize it. It would require, going forward, any government to provide that statement so we could get a better sense as Canadians, as legislators, to what extent the bill would or would not be at variance with the charter rights, which are guaranteed and have evolved through our court system.
Could he take a minute to explain what his party's position is with respect to this? In the past, the Conservative Party's position was not to do so. I remember asking the member, the former minister of justice, on repeated occasions why he would not give Canadians assurances that when justice matters came forward to the floor of the House, they would in fact be in compliance with the Canadian Charter of Rights and Freedoms.
Rob Nicholson Conservative Niagara Falls, ON
Mr. Speaker, that is a fair comment. We were very cognizant and compliant with all the laws, including the Charter of Rights and Freedoms and the Canadian Bill of Rights. The minister of justice was always advised on these, and we certainly took that advice.
The details of it are solicitor-client privilege, and the parliamentary secretary to the justice minister mentioned that. I have said right here, if the minister wants to put out a charter statement, she should go right ahead and say it complies with the charter. I have no problem with that. Say it complies with the Canadian Bill of Rights as well. That is a wonderful thing. However, to make this a part of every piece of legislation is absolutely unnecessary.
Again, I do not see why the Liberals are doing this. There is some sort of statement or something. However, nonetheless, and I pointed this out, if people feel the bills are unconstitutional, for whatever reason, they have the ability to challenge that. This has been going on for the last 35 years, and John Diefenbaker's Bill of Rights has been here for almost 60 years now.
The rights of our country have been protected by every Conservative government. No one has a better record of standing up for rights and freedoms of Canadians than the Conservative Party.
Linda Duncan NDP Edmonton Strathcona, AB
Mr. Speaker, this is a matter that has troubled me deeply in the eight, almost nine years I have been elected. There was a concern in the last government, the Harper Conservative government, that they would come forward and say they had reviewed these bills for charter compliance. As I understand it, the policy put in place by the Liberals was that as long as it was thought there was a 2% chance of charter compliance, people could say it was charter compliant. If the intention of this provision is to make available the analysis by the Department of Justice on whether it is charter compliant, I am all for it.
Rob Nicholson Conservative Niagara Falls, ON
Mr. Speaker, that would be fascinating. I would like to hear from the Liberals if they will table the solicitor-client advice that is given to the justice minister.
Under the Conservative government, we were very consistent. We were very compliant with all the constitutional provisions. It is true, we were always worried about victims of crime and law-abiding citizens who had the right to live in the country and not be victimized. I am very proud of that record. Stephen Harper was always consistent. Anything that was brought before the House in the area of justice, he was interested in knowing whether victims were being protected and whether law-abiding Canadians and their interests were being heard. I am confident all our bills were legitimately compliant with the rules.
People can challenge these things if they like, but for the Minister of Justice to start putting this extra thing into every bill is not necessary. I am not quite sure why the Liberals are doing it. However, if the minister wants to put out a statement that she is confident that it complies with the Charter of Rights and Freedoms and the Canadian Bill of Rights, go ahead. However, having this as part of every piece of justice legislation is completely unnecessary.
The Assistant Deputy Speaker Liberal Anthony Rota
It being 5:30 p.m., the House will now proceed to the consideration of private members' business, as listed on today's Order Paper.
Christine Moore NDP Abitibi—Témiscamingue, QC
Madam Speaker, I am pleased to rise in the House today.
We just decided to see the clock as 6:30 p.m. As a member of Parliament I always find it fascinating and somewhat magical to see how this place works.
That segues nicely into the bill before us. There are several parts to this bill, but one part seeks to remove outdated provisions from the Criminal Code, including a provision on magic. I find that especially interesting as a matter of discussion.
One example of an outdated section of the Criminal Code is the provision under which it is prohibited to fraudulently pretend to practise witchcraft. It is not hard to see that these measures are no longer of any real use. Over the past few years, only one case of fraudulent practice of witchcraft was prosecuted under section 375. When the person being prosecuted agreed to reimburse their clients, the charges were dropped.
Another example of an outdated measure that will be removed through this bill is the ban on challenging another person to a duel. It will therefore now be permissible to challenge someone to a duel.
As a former fencer, a sabre fighter, I find it particularly interesting to know that I could now challenge someone to a duel. That is interesting. All kidding aside, those types of provisions in the Criminal Code have not been used in a very long time and are no longer really relevant. It makes complete sense to remove them from the law and it is something that could have been done quite quickly.
Before we move on to private members' business, I just want to mention that the former Conservative justice minister proposed that the bill be divided so that we could study the different measures separately. This would have enabled us to get through these outdated Criminal Code provisions very quickly.
For the sake of the debate, I will list a few other sections that will be withdrawn. Many of us have probably done this without knowing it was against the law, but it is prohibited to offer a reward without questions for the return of a stolen item. We see this occasionally, especially for items with sentimental value. For example, it might be a camera containing all our vacation photos and the birth of our children, so photos that are very important and meaningful. It is the photos that give value to the device. Many people who really wanted their photos back often said that they would not ask questions if the camera was returned because all they wanted was to get their pictures. Most people did not know that under the Criminal Code it was illegal to do that. I think it is appropriate to remove those measures.
Possessing a crime comic is also a criminal offence. It was believed that reading a comic showing a crime could lead young people to criminal behaviour. We have moved well past that, in any case. Young people still read comics, but society has moved on to more advanced technologies like video.
It is a good thing to remove these outdated measures. Unfortunately, eliminating all these provisions from the Criminal Code will not solve the problem set out in Jordan, namely that our courts are bogged down and that proceedings must move more quickly if we want to provide better justice. Neither will it prevent the release of criminals due to overly long delays.
This situation will not be fixed because unused sections are being removed. Even if they are taken out of the Criminal Code, there will not be fewer cases before the courts, because these sections were not being used anyway.
The bill will ensure that, with respect to government bills, the Minister of Justice will table a notice of compliance with the charter of rights. That is fine, because it is important to have access to that information.
The rest of my speech will focus on one of the other provisions of the bill, a particularly interesting one. It will clarify the notion of consent with respect to sexual assault. This is particularly important, and I believe that when the bill is examined in committee it would be worthwhile to seriously think about further clarifying some of the other aspects.
As for sexual assault, the bill clarifies the fact that someone who is unconscious is unable to give consent. I know that this seems like common sense for most people, but this will be explicitly clarified. Consider what happened recently when a taxi driver was caught with his pants down with an unconscious victim in his taxi. Unfortunately, he managed to win in court because he said that when the act began, the individual was conscious and then lost unconsciousness afterward. By explicitly setting out that an unconscious individual is unable to give consent, this avoids having victims not being recognized as such, and it prevents perpetrators from getting away with assault through what, for goodness’ sake, is some offensive legal trickery. To any reasonable person, it is patently clear that someone who is unconscious cannot give consent and that, by extension, someone who becomes unconscious withdraws consent.
So the defence of mistaken belief will no longer be available. The bill clarifies that a person must have confirmation of consent and cannot simply say that they were certain of having obtained it; that line of defence will no longer be sufficient. That is also important, because it specifies that you cannot simply say that you are sure to have obtained consent, and that is it. The bill goes much further in the notion of consent. It says that you must be really sure and that you cannot simply rely on your own judgment to deem that a person is consenting.
That broadens the scope of the rape shield provisions. For instance, it prevents the use of communications of a sexual nature. The courts have already demonstrated that it is not possible to use a victim's sexual history to undermine her credibility. What is being added is the electronic version of all that. For instance, you cannot use text messages, messages sent by the victim to her Messenger contacts or by email to suggest that she is promiscuous. The prohibition on using a victim's prior sexual history is being updated with the addition of new technologies. That is a useful aspect.
Right now, I would like to talk about another concept, which is all too often ignored and truly deserves serious consideration. When we do the study in committee, I would very much like to see this concept corrected as well. Much like in the bill, this revolves around consent.
What I will be talking about also revolves around consent. I am talking about stealthing, the act of deliberately and secretly removing a condom during sex without consent from the other person. Often people do not realize that it is a crime, but it is. According to some articles I read, this practice is on the rise. It is important to state clearly in the bill that this is a criminal offence.
When someone consents to having protected sex with another person, then removing the condom without discussing it first amounts to withdrawing consent. It is sexual assault. Victims find that they are not taken seriously when they report this assault to the police. They are told that if they are not pregnant and did not catch an STD, then they have no reason to complain because they consented to the act in the first place. The victims feel extremely bad, dirty, and very misunderstood. They are often told that it is not a crime.
Police officers need to be better educated, but we also have to amend the bill in committee to clarify the concept of sexual consent. We must make it clear that when someone consents to having sexual relations under certain conditions, using a condom for example, and another person secretly removes the condom, that constitutes sexual assault. This would help make the victims feel better understood and would avoid minimizing what they went through. That clarifies consent.
Moreover, just because someone consents to sexual relations that does not mean they have consented to anything and everything. Partners have the right to set their limits. There are some things that people do not want to do. Just because someone consents to having sexual relations with another person that does not mean that they are agreeing to engage in sodomy. If a person does that against their will, even though they may have consented at the beginning to the sexual relations, any action that goes beyond that consent becomes sexual assault.
Unfortunately, this is poorly interpreted. When victims complain to the police, they are told that it is partly their fault because they consented at the outset, that nothing can be proven, and it will be their word against their partner's. Therefore, people do not complain and, since there are no complaints, there are no convictions. As a result, in people's minds, this may or may not be a criminal act.
On the subject of stealthing, in January, a French man was convicted of rape in Switzerland, because he had removed the condom during sex. I have not found any case law on the subject here, but this might apply to some cases.
For example, there is the case where the male partner intentionally put holes in the condoms so that his partner would become pregnant. He was afraid of a breakup and believed that his spouse would not leave him if he made her pregnant. The court eventually recognized that this was sexual assault, because she had not consented to unprotected or unsafe sex. She had consented to sexual relations with a condom.
With regard to consent, we must take the opportunity afforded to us by Bill C-51 to broaden the scope and add amendments to really clarify this concept. That way, there will no longer be any doubt when the courts have to interpret consent in sexual assault cases.
If all of the amendments are passed, the concept of sexual consent will eventually be clarified. I think it is a good idea to ensure that this information is passed on to police officers. We also need to ensure that the police have more training so that they have a better understanding of what constitutes sexual assault, because in some cases they may think that a person has not been sexually assaulted when in fact he or she has and they should be investigating. Crown prosecutors who analyze these cases and police investigations must also receive training, obviously.
Another important thing to point out about sexual consent and sexual assault is that, although legal measures can be taken to clarify these concepts, funding is also necessary to help victims. We need to ensure that they are properly represented and have the help they need to cope with this ordeal. We need to be logical about this. If we really want to help victims of sexual assault, we cannot just look at this issue from a legal perspective. We also need to look at it from a financial one. Victims need access to legal programs and support programs.
Sexual assault has an enormous impact on victims and their ability to contribute to society. I think we would be wise to invest in better support for them so they can recover more easily. Recently, there has been a lot of talk about post-traumatic stress disorder. However, we need to bear in mind that many people suffering from it are victims of sexual assault. Too often they stay silent or avoid talking about it much. We must be able to support victims and provide them with the necessary care. When looking at compensating victims of crime, we need to avoid subjecting them to a never-ending administrative process. They have already gone through enough psychological trauma. They do not have the energy to fight to be recognized as victims. For many of them, just saying that they are victims of rape or assault is very difficult.
We still have a lot of work to do. I sincerely hope that the committee will study this bill carefully. I also hope that we will accept amendments to explicitly clarify consent by including “stealthing” and by clearly explaining that consent can be withdrawn at any time during sex. Even during the act, a person can withdraw consent if things are not happening the way they should. If the individual withdraws consent but the partner does not respect this decision, this is sexual assault.
I hope we will do the work required for the sake of victims. The concept of consent must be clarified to avoid such cases in court. In some cases, if we had used common sense, we would have clearly seen that this did not make sense, that the individual could not have given consent. I believe that, if we clarify this concept, we will be able to avoid traumatizing victims going through the legal process and having them come out of it in worse shape than they were at the beginning.
I look forward to answering my colleague’s questions.
Tom Kmiec Conservative Calgary Shepard, AB
Madam Speaker, I would like to thank the hon. member for her remarks.
As I see it, we all agree that the provisions in the bill dealing with sexual assault are good ones. Good amendments have been proposed and they will provide assistance for the victims of this shameful crime.
I would like to ask my colleague a question. When the Parliamentary Secretary to the Minister of Justice gave his presentation on the bill, I asked him why we were taking out section 176 of the Criminal Code. He replied that one of the reasons why some sections of the code were being removed was that they were no longer being used. I gave him an example of one case in Ottawa, on June 9, 2017, in which one of the sections was used in the criminal proceedings that are currently going on.
Why does the hon. member think that the parliamentary secretary was not aware of that fact?
Christine Moore NDP Abitibi—Témiscamingue, QC
Madam Speaker, I am afraid that I do not have a very good head for figures. Perhaps the hon. member could tell me what he is referring to. I would like to know what specific section he is talking about.
Tom Kmiec Conservative Calgary Shepard, AB
Madam Speaker, I should have said that it was specifically about clause 14 of the bill. That clause refers to section 176 of the Criminal Code. It reads as follows:
176 (1) Every one who (a) by threats or force, unlawfully obstructs or prevents or endeavours to obstruct or prevent a clergyman or minister from celebrating divine service or performing any other function in connection with his calling…
It continues along the same lines. I therefore wanted to ask my colleague why she thinks the parliamentary secretary was not aware of the fact that, as of June 9, 2017, there has been a criminal case going through the courts, right here in Ottawa, that involves this same section, which prohibits a person from interrupting divine service or a funeral officiated by a clergyman.
Christine Moore NDP Abitibi—Témiscamingue, QC
Madam Speaker, I think it would be a good idea to research when and where all these sections were used.
They were applied recently in some cases, as in the example I gave earlier of using magic. Sometimes sections are removed from the Criminal Code because it is felt that other statutes might offer the same protection. For example, while there is a Criminal Code provision on preventing clergymen from celebrating divine service, other sections might talk about religious discrimination and could apply, meaning there would be no need to look specifically for the first section. Another more generic provision might apply. That may be the parliamentary secretary's interpretation, but I must say that I did not do his work for him. It is up to him to do his research. I have no idea why he was unaware of this case.
Marjolaine Boutin-Sweet NDP Hochelaga, QC
Madam Speaker, in her speech, my colleague spoke quite a bit about consent during sexual relations and sexual assault. Currently in the United States, there is a case in the headlines involving Bill Cosby. He said that a person he had sex with had given her consent, but she had been drugged. I would like my colleague to comment on a situation where the alleged attacker says that the person consented because she was conscious, when she was in fact drugged.
Christine Moore NDP Abitibi—Témiscamingue, QC
Madam Speaker, the concept of consent implies that the individual is capable of giving it when he or she is asked. I will give an example that is not really related, but nevertheless shows how pertinent this is.
Before patients are taken to the operating room, as a nurse, I have to have them sign a consent form indicating that they consent to the surgery. If we realize that a patient has not signed the consent after he is already in the OR and under sedation, it is too late to have him sign the form. We have to wait for the effects of the medication to wear off and seek consent once we are sure that he is fully lucid.
If drugs are involved, even if the person is capable of giving consent, that means absolutely nothing, in my view. In the medical field, we do not allow patients to give their consent to any care or treatment if they are already under the effects of a substance that might prevent them from giving their free and informed consent.