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.

Motion That Debate Be Not Further Adjourned

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I very much appreciate the efforts of the minister and his staff in bringing forward what I believe is a substantial piece of legislation. It provides a sense of security for Canadians and at the same time provides rights that can be traced right back to our charter.

In the last federal election, we made some serious commitments to Canadians about making changes to Bill C-51. Bill C-59, in part, deals with Bill C-51. I look at the legislation before us as another way the government has delivered some of the tangible things it said it would.

Could the member comment regarding that aspect of the legislation, which I know is important to all Canadians? As a personal thought, it is nice to see the legislation going through this final process.

National Security Act, 2017

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, I was here when the minister made his statements in regard to the necessity of this legislation and explained exceptionally well why we are at the stage we are at.

My question is related to the bigger picture. The member made reference to Bill C-51. There were a series of changes that were required. We are seeing part of that in the legislation; it is only a component of it. The legislation also addressed one of the biggest things lacking in Bill C-51, and that was the parliamentary oversight committee, which put us on par with other Five Eyes nations. I think this is good, substantive legislation that is in Canadians' best interests, from a security and privacy perspective. Both issues are being addressed.

Would the member not agree that it is time we actually saw this legislation passed?

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Madam Speaker, I rise this morning to speak to Bill C-59, an omnibus bill that is over 260 pages long and has nine major parts. I listened to the minister's speech, which addressed the Senate amendments, but I would first like to focus on Bill C-59 itself.

As I have been saying from the outset, the problem is that most parts of Bill C-59 are administrative in nature. They make changes to the various intelligence and communications agencies. That is fine, but the main goal of Bill C-59 was to respond to Bill C-51, which was implemented by the Conservatives following the attacks that took place here in Ottawa. Bill C-51 was specifically designed to counter terrorism and ensure that anyone seeking to commit terrorist acts in Canada was stopped to avert disaster.

Overall, the omnibus bill has some parts that are fine. They contain the sort of changes that need to be made from time to time. However, other parts are very administratively heavy and will be very costly for the public purse. Essentially, this is a bill on national security. The public expects the government to protect people properly and ensure that the offenders and would-be terrorists of this world are stopped.

Despite what the minister says, we believe that Bill C-59 limits CSIS's ability to reduce terrorist threats. It also limits the departments' ability to share information in order to protect national security. It removes the offence of advocating or promoting the commission of terrorism offences in general and raises the threshold for obtaining terrorism peace bonds and recognizance with conditions.

At the end of the day, Bill C-59 is going to make life difficult for CSIS agents and telecommunications services people. The bill makes it harder to exchange information. It will once again clog up a system that is already burdensome. People working on the ground every day to ensure Canada's security and safety will be under even more restrictions, which will prevent them from doing their jobs.

Here is a snapshot of the nine parts. Part 1 establishes the national security and intelligence review agency.

Part 2 enacts the intelligence commissioner act. It deals with everything pertaining to the commissioner and the various tasks he or she will have, but abolishes the position of the Commissioner of the Communications Security Establishment and provides for that commissioner to become the intelligence commissioner. It transfers the employees of the former commissioner to the office of the new commissioner and makes related and consequential amendments to other acts. In other words, it shuffles things around.

Part 3 enacts the Communications Security Establishment act. CSE's new mandate includes the ability to conduct preventive attacks against threats in addition to its role in signals intelligence and cyber defence. We really do not have a problem with that, provided it remains effective. That is an important point.

Part 4 amends the Canadian Security Intelligence Service Act. It changes the threat reduction powers by limiting them to seven types of measures, one of which gives rise to the issue of whether non-invasive actions require a warrant. The measure in question is described as interfering with the movement of any person. This could mean that a CSIS officer requires a warrant to give misleading information to someone on the way to meeting with co-conspirators.

During operations, officers will sometimes provide individuals with false information to be passed on to those organizing terrorist or other plots. That is one of the work methods used in the field. Henceforth, warrants will have to be obtained, making the work more complicated. The officers will have to spend more time in the office doing paperwork and submitting applications instead of participating in operations.

Part 5 amends the Security of Canada Information Sharing Act, which was enacted by the Conservative government's Bill C-51. Individuals and privacy groups were unhappy that government institutions could, on their own initiative or at the request of another institution, share information on activities that undermine the security of Canada. Bill C-51 was criticized for permitting the sharing of citizens' personal information.

Although Bill C-59 maintains part of the departments' ability to share information, it is much more restrictive. This means that the departments operate in silos, which was harshly criticized by the national security experts who testified.

Part 6 is the most positive part, and we fully support it. This part deals with the Secure Air Travel Act and the problems with the no-fly list. When travellers have the same name as a terrorist, they encounter major problems, especially when it happens to children and they are not allowed to travel. This part will help fix this problem, and we fully support it.

Part 7 amends the Criminal Code by changing the offence of advocating or promoting terrorism offences in general to one of counselling the commission of a terrorism offence, which carries a maximum sentence of five years.

I will read the next part, which does not pose any problems:

Part 8 amends the Youth Criminal Justice Act to, among other things, ensure that the protections that are afforded to young persons apply in respect of proceedings in relation to recognizance orders, including those related to terrorism, and give employees of a department or agency of the Government of Canada access to youth records, for the purpose of administering the Canadian Passport Order.

Finally, here is the last part:

Part 9 requires that a comprehensive review of the provisions and operation of this enactment take place during the sixth year after section 168 of this enactment comes into force.

These are additional administrative measures.

In short, of the nine parts of Bill C-59, we fully support part 6 on the no-fly list. The other parts contain a lot administrative provisions that will make the system more cumbersome. Part 7 is the most problematic.

We believe that the Prime Minister and the minister are weakening Canada's national security agencies and their ability to keep Canadians safe. This legislative measure will make it more difficult for law enforcement and security agencies to prevent attacks on Canadian soil because it takes away their authority to counter threats. The information silos this bill will create within our federal agencies are dangerous and foolish. Rather than countering radicalization, the Liberals are creating loopholes that could be exploited by those who want to radicalize our young people.

The Conservatives take the safety of Canadians very seriously. That is why the previous government brought Canada's national security laws into the 21st century and aligned them with those of our allies. While all of the Five Eyes allies are taking measures to strengthen national security, this government is bringing in legislation that will eliminate our intelligence service's ability to reduce terrorist threats. The Liberals' irresponsible approach will put Canadians' safety at risk.

I was pleased with the four amendments proposed by the senators, who also took the time to work on Bill C-59 and hear witnesses. We know that the independent Liberals have a majority in the the Senate, so we would not normally expect to see amendments that reflect the Conservatives' views. This time, however, we think all four amendments are excellent and deserve our support. We waited for the government's response.

Two of the amendments had been proposed by me and my Conservative colleagues on the Standing Committee on Public Safety and National Security, but the Liberals had rejected them. One of them sought to clarify the definition of the phrase “counselling commission of terrorism offence”. This short phrase really embodies the problem we have with Bill C-59. For the benefit of our viewers, I would like to quote the specific wording.

The bill would amend the Criminal Code by changing the following existing definition:

Every person who knowingly instructs, directly or indirectly, any person to carry out a terrorist activity is guilty....

The bill would change it to the following:

Every person who counsels another person to commit a terrorism offence...is guilty....

What is the Liberals' real goal here, if not to just strike out the Conservative government's Bill C-51 so they can say they made a change?

Did they make this change with the intention of improving the legislation? No. Even the senators advised the government to preserve the essence of the definition set out in the Conservatives' Bill C-51.

The minister says that in 2015, when Bill C-51 was introduced by the Conservative government, no charges were ever laid. Is it not possible that no charges were laid because people got scared and decided not to run any risks, in light of the legislation and resources that were in place, as well as the enforcement capability?

Maybe that was why nothing happened. Does watering down and changing this—

[Ralph Goodale, Liberal, Regina—Wascana, SK]

Madam Speaker, the purposes of Bill C-59 are threefold.

First, it would address the deficiencies that existed in previous legislation, including not only Bill C-51 but other pieces of legislation as well. There were errors or omissions that needed to be fixed, and Bill C-59 would do that.

Second, Bill C-59 introduces a broad range of new accountability mechanisms through the new national security and intelligence review agency, the creation of the new intelligence commissioner and a number of other procedures in Bill C-59 to improve transparency and accountability throughout our national security architecture.

Third, the legislation seeks to clarify and confirm legal and constitutional authorities so our security and intelligence agencies, whether that is CSIS, or the CSE, or the RCMP, or the CBSA or any others in the Government of Canada that deal with national security and intelligence issues, know explicitly where they stand, what their authorities are, where the fences are and what they can and cannot do.

This legislation works very hard to accomplish all three of those objectives.

Bill C-51—Time Allocation Motion

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

Madam Speaker, again I am pleased to stand up and speak to the charter statement, which is a very substantial part of Bill C-51. I have, as the Minister of Justice, introduced charter statements with each piece of government legislation that I have introduced in this place. I will say that charter statements are meant to be informative. Charter statements are meant to make the thoughts and the thinking behind government legislation accessible to Canadians, not to provide legal advice to Canadians or legal advice to this place. As the Minister of Justice and the Attorney General and the chief law officer of the government, I provide legal advice to the government.

What I believe is incredibly useful, and I have had feedback in this regard, is to have a discussion about where the charter is engaged with respect to specific pieces of legislation and to reference case law that has considered the issues in terms of specific charter sections to give an idea or window into government legislation and where the charter may or may not be implicated. This is the idea behind this. Again, it is not legal advice.

I will not comment on comments that were made by the hon. members of the other place, but I take great pride in ensuring that our charter statements provide the information and the accessibility not only to members in Parliament but to Canadians generally. This is a practice that will continue. This is a practice that has assisted in terms of getting a window into the eyes of where the charter is implicated in terms of government legislation.

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

Madam Speaker, I appreciate the member for Durham raising charter statements because one of the significant pieces of Bill C-51, when hopefully it becomes law, is it will be a direct responsibility of the government to introduce a charter statement with each piece of government legislation.

I would be happy to speak with the member for Durham at any time, not necessarily in the House, about the robust legislation and activities of the Department of Justice. I would extend that invitation to him.

In terms of charter statements, they are the responsibility of the Minister of Justice to look at government legislation. Charter statements are not legal opinions, but they detail where the charter is potentially engaged by a piece of legislation that the government is putting forward. It provides a window into how government decisions are made or the thought processes that government went through in terms of putting forward a piece of legislation. This is something that has not been done before. This is something that is contained within Bill C-51. With the coming into force of that bill, the charter statements will be applicable to all pieces of government legislation.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, one of the things we need to emphasize is that in preparation for bringing forward Bill C-51 and previous legislation, there has been a great deal of background work with many stakeholders in different jurisdictions. I wonder if the minister could provide her thoughts on the importance of having done a lot of the preliminary work and give us a sense of some of the background work leading to the introduction of the legislation itself. Not only has there been a thorough debate, with questions and answers, in committee and in debates inside the chamber, there was also a great deal of consultation prior to the legislation even being introduced.

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

Madam Speaker, in terms of reintroducing the Criminal Code, I am incredibly proud to be part of a government that has taken action, which has not been taken for decades, as the member mentioned, to ensure that we have a modernized Criminal Code, that we remove the unconstitutional provisions, the zombie provisions, that we update the laws around sexual assault and intimate partner violence and that we look at the victim fine surcharge as well as section 159. All of these are issues raised in government bills the member opposite has spoken to.

We are moving forward with comprehensive reform of the criminal justice system, and that starts with looking, in a substantial manner, at the Criminal Code. This is what we have sought to do and what is contained in Bill C-51 and also in Bill C-75.

I look forward these two pieces of proposed legislation becoming law so that we can do what has not been done for far too long, which is modernize the Criminal Code.

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

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

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

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

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

[John Nater, Conservative, Perth—Wellington, ON]

Madam Speaker, Bill C-51, Bill C-57, Bill C-87, Bill C-88, and Bill C-21, all of these bills have had notice given of time allocation in the last week we are sitting before the Christmas break. Is this not just another indictment of the failure of the Liberal government when it comes to managing the business of the House?

The Liberal government said it was going to do things differently. All of a sudden, like the kid who spent the entire semester at school partying, when that final assignment comes due, it is a rush to try to get it in, in the nick of time, before the deadline. Is this not just another example of the Liberals' failure to manage the business of this place?

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

Madam Speaker, I would like to unequivocally state that I do not agree with the member opposite's characterization of the work we are doing.

I will say, with respect to his comments about shutting down debate and discussion, that with respect to the issue at hand, Bill C-51, this House has debated Bill C-51 for a total of 10 and a half hours, including three hours of debate on the message from the other place. The Senate debated Bill C-51 for four hours. It benefited from a total of 19.5 hours of study at committee, between the House and the Senate, which heard from 63 witnesses.

We are talking about Bill C-51. I look forward to having this become law so we can ensure that we codify the Supreme Court of Canada decision in R. v. J.A., that we further support sexual assault victims and that we ensure that we can move forward with charter statements that will be introduced with all government legislation once this bill becomes law.

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

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

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

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

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

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

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

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

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

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

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

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

Madam Speaker, I acknowledge the comments by my friend and colleague across the way. My favourite parliamentary procedure, one of the favourite duties I have in this place, is passing good laws that are informed by robust consultation.

I believe the member for Winnipeg North would agree with me that we have had substantial debate on Bill C-51. The bill benefited from the very direct engagement of the hon. members in the other place. We have taken serious account of their message back and have recognized that their proposed amendment is well intentioned. We are committed to continuing to work with the hon. senators and Canadians generally, as we seek to move forward and look at the law of consent and the incapacity to consent. This is something on which there will be ongoing discussion, dialogue and commitment by our government.