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.

Criminal Code

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

Mr. Speaker, as I alluded to before question period, the most substantive part of Bill C-51 deals with amendments to the Criminal Code related to Canada's sexual assault laws. I support many of the amendments to the Criminal Code brought forward in Bill C-51, including those amendments that clean up the Criminal Code by codifying law determined by the Supreme Court of Canada, including the Regina v. J.A. and Regina v. Ewanchuk decisions.

That being said, there is one area of Bill C-51, in terms of changes to sexual assault laws, that causes me some concern. That area of concern relates to the defence disclosure requirements. Bill C-51 would require that in order for the defence to tender evidence in terms of records that relate to the complainant, it would have to bring an application to the court. In other words, records that relate to the complainant would be deemed inadmissible unless the court determined otherwise. Such an application would have to be brought prior to the trial. Moreover, the complainant would have the right to counsel and would be a party to that application.

I have a number of concerns with that. First, the definition of “records” is very broad. The type and scope of records that would be captured are just about any records related to the complainant. That would potentially include joint records, records that both the accused and the complainant otherwise have a right to access, records that are subject to crown disclosure that are in the control of the crown, and records that were ordered subject to a third-party application. When we talk about the breadth of records that would be captured, we could be talking, in some trials, about thousands and thousands of records that would be subject to such an application.

That would potentially result in delay. In addition to the potential for delay, the timing of the application is of some concern. The application would have to be brought prior to a trial. What is the problem with that? One problem is that there are often issues that arise in trials that are not necessarily foreseeable prior to the trial. Therefore, from a practical standpoint, that would mean there could be records that do not appear to be relevant prior to a trial, but could become very relevant as a result of an issue that arises in the course of a trial. That would mean inevitably that there would be applications brought prior to trial. However, in those instances where records become relevant that were not necessarily obvious or apparent prior to trial, it would result in the need for mid-trial applications. That would mean the adjournment of trials and delay in the administration of justice.

That is particularly concerning in light of the Jordan decision. In Jordan, the Supreme Court determined that delay is presumptively unreasonable where 18 months pass between the laying of charges and a trial in matters before provincial courts, and 30 months in the case of matters before superior courts.

Over the last while, since the Jordan decision was rendered, we have seen dozens and dozens of serious criminal cases thrown out of court, cases involving everything from murder, to sexual assault, to other violent offences. In addition to that, we have seen hundreds, if not thousands, of cases that would otherwise be perfectly prosecutable, but for the Jordan decision, dropped as a result of delay.

The prospect of adding further delay to a system that is stretched to the limit is problematic. What it will potentially mean is more sexual assault cases being thrown out than otherwise would be the case. That is less than comforting to victims of sexual assault. Frankly, it is unacceptable that we could be opening that possibility, and certainly runs counter to the purported objectives of the Jordan decision, which include ensuring that the victims see justice.

I believe that some legitimate questions have been raised about the appropriateness of a complainant being party to such an application with the right of counsel. Very often in sexual assault cases, the outcome of the case rests on the credibility of the complainant. The fact is that most complainants are truthful, but not all complainants are truthful, and in some exceptional circumstances, complainants are not truthful. The effect of this would be that a complainant would gain insight into the defence's case and potential lines of cross-examination. This in turn could undermine trial fairness in a significant way.

In closing, I would like to quote the recent caution of Ontario Superior Court Justice Molloy in the Nyznik case, at paragraph 17, where she stated:

Although the slogan “Believe the victim” has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence.

That pronouncement of Justice Molloy is something that we as members of Parliament need to be mindful of as we try to strike the right balance between ensuring that victims of sexual assault are protected and that their dignity and privacy are upheld with the right of the accused to make full answer in defence.

[Celina Caesar-Chavannes, Liberal, Parliamentary Secretary to the Minister of International Development]

Mr. Speaker, I think we could all agree on the merits of the bill, and I do appreciate the member's insight when it comes to talking about the legalities. I was somewhat disappointed that at the opening of his speech, the member took the opportunity to be partisan and to attack our government, particularly on this very sensitive and important bill as it relates to consent and victims' rights.

In this debate, we have heard members on both sides of the House talk about how the bill would give women the confidence to come forward. We have demonstrated our capacity to work together in the House. We unanimously passed a motion put forward by the interim opposition leader.

I wonder what the member would say to women in his riding about the benefits of the bill as it pertains to them specifically.

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

Mr. Speaker, there are a number of good components of this bill relating to changes in the sexual assault laws, including codifying the Ewanchuk decision to make it absolutely clear that the defence of mistaken belief based upon a mistake of law cannot be put forward. The bill is also positive in that it codifies the J.A. decision to make it clear that under no circumstances can a complainant be found to have given her consent when in an unconscious state. These and other changes are positive aspects of the bill.

That said, I do have serious concerns about the defence disclosure requirements. These are very real concerns. They are substantive concerns. They raise charter issues. They go to the heart of trial fairness.

At the end of the day, it is fundamental that complainants be protected in our system. However, it is also fundamental to our justice system that accused persons have the right to make a full answer in defence. That is fundamental to getting to the heart of the proof in a particular case, and to guard against wrongful convictions.

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

Mr. Speaker, I wonder if the member could speak a bit to section 176, which this bill had initially proposed removing, and on which there now seems a willingness on the part of the government to back away from doing. This was not a concession that came easily. Obviously, the member will know that he and other members of our official opposition worked very hard, and many Canadians became active and mobilized across faith communities, to show the government that it does not make much sense to, on the one hand, talk about a rising climate of hate and fear and the risks that faith communities might face, but on the other hand to propose removing the one section of the Criminal Code that specifically provides protection for the practice of faith in Canada.

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

Mr. Speaker, I thank my friend and colleague, the member for Sherwood Park—Fort Saskatchewan, for that important question. I want to acknowledge the work he did as one of the first members to flag the government's proposed removal of section 176 in its initial draft of Bill C-51.

The member is quite right that it took a lot of pressure for the government to come around to do the common-sense and right thing with respect to a section of the Criminal Code that is not unconstitutional, that is not redundant, and that has been used in several cases, including most recently in the case of an Ottawa woman who vandalized a religious statue. He is quite right when he speaks about a climate of fear and hate, in which persons, churches, synagogues, and mosques have been targeted by hateful people. We have seen that recently with a number of acts of vandalism at Ottawa area synagogues and mosques. We have seen many instances of this.

Not only was the proposed removal of section 176 substantively the wrong thing to do, the timing could not have been worse. It is really inconsistent with the government's purported commitment to ensuring that measures are taken to deal with and address serious issues around hate being perpetrated and individuals being targeted on the basis of their religion or other characteristics.

[Sean Fraser, Liberal, Central Nova, NS]

Mr. Speaker, I enjoyed the very legalistic approach taken in my hon. colleague's remarks. I come from a similar professional background and a similar vintage as the hon. member.

However, one of the things I have been privileged to do since I arrived in this place is to serve on the status of women committee. When we did the study on ending violence against women, particularly against young women and girls, some of the testimony that we heard was about the dramatic under-reporting of sexual assault in Canada, and how ill-equipped our legal system is to deal with those who do muster the courage to come forward.

I view this bill as a positive step that will both encourage more young women who have been victimized by and survived sexual violence to report it and potentially result in more convictions when sexual assault is reported. Does my hon. colleague agree or disagree that it will lead to more convictions in circumstances where sexual assault has been committed?

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

Mr. Speaker, I believe that certain parts of Bill C-51 help clarify the law around sexual assault.

One example of that is the evidence tendered with respect to the twin myths. In that regard, the bill makes it clear that evidence cannot be tendered under any circumstances. That is good because there has been some confusion in the case law with respect to subsection 276(1) and then another subsection, 276(2), and subsection (3), which has resulted in trial judges basically having a balancing test in some cases. This bill would eliminate that and make it clear that under no circumstances can evidence be tendered on the basis that a complainant, as a result of her sexual history, is less believable or more likely to consent. That is a positive step.

The problem with this bill is that it is an omnibus bill. It relates to matters that are unrelated to each another. Therefore, there are parts of this bill that are very positive, but there are other sections that, frankly, are very problematic, including with respect to defence disclosure.

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

Mr. Speaker, I would like to pick up on the comment by my colleague across the way that this is an omnibus bill.

We have a number of changes before us in the bill. Those changes come, in good part, as a result of court decisions and reviews that have been done of the Criminal Act. When we take a holistic approach in making some of these changes, would it not be best to incorporate them into one bill in order to have these changes take effect?

Some of these changes deal with completely vain and unnecessary things. For example, who duels nowadays? That is an example of what is being repealed.

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

Mr. Speaker, it might have made sense for the government to introduce one bill related to changes to the sexual assault laws. However, this bill does more than that. It would, among other things, require the Minister of Justice to introduce a charter statement with any bill a minister introduces in this House. It would remove unconstitutional sections of the Criminal Code, something that I fully support. It would remove sections of the Criminal Code that are redundant, which I fully support, but again that is totally unrelated to the changes to sexual assault laws. Also, it would remove sections like section 49 dealing with protecting Canada's head of state, Her Majesty the Queen, which is again totally unrelated to sexual assault laws.

Therefore, this is an omnibus bill. It is exactly what this government campaigned it would not do, and here we are debating an omnibus bill.

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

Mr. Speaker, I rise to speak to Bill C-51, which is important legislation. I do not necessarily agree with my colleague across the way when he talks about the omnibus nature of legislation. In fact, a very thorough review has taken place. This legislation is a reflection, as I made reference to in my question, of court decisions that have been made. along with a review from bureaucrats and others who have been involved in trying to update or modernize our Criminal Code.

I have had the opportunity to look at the Criminal Code, and it is a fairly wordy document. We need to modernize it or make a genuine attempt to make changes like these. Sometimes legislation or law needs to change. I cannot recall the details right off hand, other than the fact that one of the changes would get rid of duelling. I am sure people would have to look long and hard to find the last time there was an actual duelling of swords in Canada. There is legislation that, because it is never repealed or taken out of the Criminal Code, just becomes somewhat dated. Therefore, it is necessary for us to take a look at it and make changes.

My colleague across the way made a couple of references on which I want to pick up, for example, the charter statement. For years I sat in the opposition benches. We would look at government legislation and quite often question if it was charter proof, or if there was a legal opinion with regard to legislation, that it would go through the court system and meet the charter. On many occasions, I have stood in the House and talked about the importance of the charter and different perspectives. Canadians have responded, over three decades-plus of having the charter, that the charter is part of our Canadian values. Often, when I sat in opposition, the government would talk a fairly tough line on criminal matters.

At times, the government would bring in ideas and we questioned whether it had a legal opinion on whether it would be successful if it went to a Supreme Court. We would challenge the government to ensure legislation would be vetted to ensure it would be in compliance, as much as possible, if not all of the time, with the Charter of Rights and Freedoms. A very positive aspect of the legislation before us is the charter statement. It would require government to have that charter statement for legislation it introduced to the House. That is a very strong positive, and I am very supportive of it being in the legislation.

I want to pick up on an issue about which the Conservatives have spoken. The Conservatives are leaving the impression that a change to the legislation with respect to the repeal of section 176, as originally suggested in the legislation and is no longer happening, is because of the fine work of the Conservative Party. That is a false impression. I too had had constituents of mine in Winnipeg North and others express genuine concern about why section 176 of the Criminal Code would be repealed.

For those following the debate, like me, who were not part of the committee discussions but may be interested in exactly what members have already said today, section 176 was originally going to be repealed. When the bill was introduced to the House at second reading, it was proposed that section 176 of the Criminal Code be repealed. It currently states:

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...

The response to the proposal to the repeal of that section, which many individuals came to know somewhere between first reading and second reading, was brought to my attention. I was really quite glad to see the system works. I do not believe I was alone. I suspect other members of Parliament on both sides of the House were approached on this issue. From my perspective, that demonstrates the system works.

After second reading, the bill went to committee. Members on all sides of the House recognized, whether it was through the committee chair or the committee membership, that high sense of co-operation and understanding of the things that needed to be done. Presenters came forward and recommended, in essence, what many of us were hearing in our constituencies.

I was not surprised that an amendment brought forward to keep section 176. In fact, I believe it was improved upon in the Criminal Code. The standing committee addressed the concerns to repeal section 176 and amended it. It also added more strength to it by expanding it so it went beyond only ministers to include spiritual leaders and so forth, which was a positive change. Had it not even been in the original legislation, that aspect would not have been changed. Therefore, we have a stronger section 176 of the Criminal Code.

I want to emphasize that clause, because it gives me room to let my constituents know that when we talk about trying to improve legislation, we have a process that allows for that. Bill C-51 is a very good example of this.

From what I understand, at least one opposition amendment was approved. As well, a number of government members brought forward amendments to improve the legislation. That clearly demonstrates that second reading is a great opportunity to get a good understanding in principle of what the legislation is about. It then goes to committee where experts are afforded the opportunity to provide their thoughts. Members of Parliament are able to reflect on the clauses, and caucuses, either directly or indirectly, are able to feed their thoughts into the need for change, and we saw amendments. This amendment was a very strong positive, because constituents of mine wanted to see that happen.

I applaud the efforts of the standing committee and the fine work it did in returning the legislation to where we are today. Today we have fairly good support for it coming from all political parties. I understand that many inside and outside the chamber see this as strong legislation, which will further advance the important issue of sexual assault.

We often underestimate just how serious sexual assault is in Canada. In 2016, some 20,000-plus incidents were reported. Those number are far too high. I do not know how it compares to previous years, all I know is that it is an unacceptable number.

When we look at the 20,000-plus incidents reported in 2016, we can anticipate that for every one reported, many others were not. We need to talked about this more. The government and the House need to look at ways in which we can ensure individuals who are victims feel comfortable in knowing society as a whole encourages them to come forward. We all understand and can appreciate the consequences of this type of violent crime. The numbers are significant and very upsetting. It affects all communities.

We can talk about bringing in the legislation and trying to improve it, but it is going to take more than just legislation. There needs to be a national-led approach on how we can deal with the issue sexual assault. I am very happy to hear that different departments, in particular Public Safety and Status of Women, are engaged and are on top of this. We need to promote this dialogue.

I have always thought we vastly underestimate the roles our school divisions throughout the country can play on the issue of violence, in particular sexual assault. I would like to see different stakeholders provide more ideas and have more dialogue. What takes place in our schools is of critical importance.

I used to be the education critic in Manitoba. We often talked about setting the curriculum for our schools and the important role the provincial government had with respect to that curriculum. Likely some areas in the country have better practices. This is where a national government can play a leadership role by looking for better practices and trying as much as possible to encourage and promote those practices in other jurisdictions. That is one of the reasons why I believe in the importance of having interprovincial discussion groups, having a government and its ministers taking these important issues to the many different tables they sit around.

The legislation is important, we recognize that, which brings me right to the bill itself. It proposes to remove and repeal the passage of provisions of the code that have been ruled unconstitutional in many ways by our courts or raise concerns under the Canadian Charter of Rights and Freedoms, as well as the passage of provisions that are obsolete, redundant and/or quite frankly no longer in place in criminal law itself.

I want to clarify that strengthening the criminal law of sexual assault is expected to assist in enhancing a better understanding of the law and addressing concerns about the law's application. I believe that the better the understanding of the law, the simpler it is made known to victims, the greater the likelihood that we would have victims approving and coming forward to report what has taken place in their particular situation.

I would suggest that the proposed changes to the Department of Justice Act and Criminal Code reflect the government's unwavering commitment to promote respect for the charter and the rule of law. I made reference to the years we sat in opposition and how important it was that when government brought forward legislation that we in the opposition ensured there was a charter test applied to it. This legislation does just that.

Repealing provisions that are very similar to those found unconstitutional by the courts will help avoid expensive and time-consuming litigation. Avoiding unnecessary litigation will also help to prevent court delays and backlogs, which is so critically important.

We can see that the members of the Standing Committee on Justice and Human Rights did an outstanding job in reviewing the bill, and making the amendments I have made reference to, which were of the utmost importance.

The government is committed to ensuring that our criminal justice system protects Canadians, and holds offenders to account for their actions, that it upholds the Charter of Rights and Freedoms, and shows compassion to victims. We have to ensure that the confidentiality and privacy of victims are protected as much as humanly possible. It is critically important. This includes the unwavering commitment to ensuring that victims of sexual assault are treated with the utmost dignity and level of respect.

During the study, we heard from many individuals who came before the committee on the importance of clarity of what sexual assault laws are. The feedback provided was most welcomed for us to have a better understanding of how a person has given consent, and the need to recognize that if someone is unconscious that person is not capable of giving consent. Therefore, it provides more definition and clarity in that area.

Based on what I am hearing from the members opposite, I believe there is fairly good support for the legislation. With respect to those areas that were repealed, for the most part, with one or possibly two exceptions, the House seems to be fairly supportive. The one greatest exception, section 176, has been dealt with in an appropriate fashion. I know I was quite grateful that it was repealed.

I see that my time has expired. I appreciate the opportunity to share a few thoughts on this piece of legislation.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Speaker, oftentimes we see the arms waving and flailing but the fact that there is all-party support for the changes in this legislation perhaps led to the tempered comments that we heard today.

I want to bring up section 176 because it is important to understand that it was the member for Niagara Falls who really highlighted the fact that the changes were not in the bill, that there were significant issues with religious freedoms and religious institutions practising. The member for Niagara Falls brought up that it was not in fact advertised as part of the changes to this piece of legislation. Why was it not highlighted when the bill was tabled? In all the press releases and the correspondence that were put out by the government subsequent to the releasing of this piece of legislation, it neglected to put these changes with section 176 of the act, and again it was the member for Niagara Falls who highlighted those.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, that is one of the reasons why I started the speech in the manner in which I did, focusing specifically on section 176. There have been a number of my colleagues, members across the way, who have talked about Bill C-51 and the many different advantages of the passage of this piece of legislation, especially when it comes to sexual assault. There is no way I can articulate in the same manner in which some of our colleagues have in terms of the actual benefits in that whole area, so that is why I focused a good part of my comments on talking about the issue of process.

I looked at the section 176 as a fairly positive experience. What we saw was not just one member of the House because I believe this thing was being driven, in most part, by Canadians to say, “Let us just wait a minute here.” I know I have had calls on it, and people felt that this was an important aspect of the Criminal Code. Whether or not it was being used very rarely, it definitely provided a disincentive for individuals to go into a mosque, a gurdwara, a Christian church, or whatever it might be, in an attempt to disrupt. It was a positive aspect to the Criminal Code.

How it ultimately came into being and appearing in Bill C-51, I suspect had a lot more to do with reviews that were being conducted. As I indicated, some of the stuff that is within Bill C-51 is because of court decisions; others are because of bureaucratic decisions; others would be because of other stakeholders' decisions. Which category that one falls under, I'm going to choose to believe, was the bureaucratic review in terms of how many times possibly it was being utilized in our courts and as a result it appeared there.

However, the good news is that we have a process in place, we have individuals who were listening to the constituents, and we were able not only to get rid of the repeal but we also amended it in the Criminal Code so that it went to include faith and spiritual leaders. I think that would make the Criminal Code that much better.

[Karine Trudel, NDP, Jonquière, QC]

Mr. Speaker, during one of my visits in my riding, Jonquière, I had the honour of visiting La Chambrée, a women and children's shelter. It welcomes women who are victims of domestic violence and sexual assault. I had the opportunity to speak with some of them. There were women from all walks of life there; it is a safe haven.

Of course we want to support the amendments relating to sexual assault, but let us be clear: they cannot be simply symbolic. We need to provide legal aid funding for victims of sexual assault, most of whom are women, so that they can exercise their rights.

I would like to know what my colleague thinks about that.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, for me, personally, this legislation is important. It is the sexual assault aspect of the legislation that I believe makes it so very important, and one of the reasons why this government needs to move forward with it as soon as possible. I suspect that's the reason why most individuals are getting onside supporting that aspect of the legislation.

What it does, at least in part, is to amend section 273(1) to clarify that an unconscious person is incapable of consenting, which reflects the Supreme Court of Canada's decision in R. v. J.A., 2011. It amends section 273.2 to clarify the defence of mistaken belief and that consent is not available if the mistake is based on the mistake of law, for example, if the accused believed that the complainant's failure to resist or protest meant that the complainant consented. This will codify aspects of the Supreme Court of Canada's decision in R. v. Ewanchuk back in 1999.

More specifically, in terms of the importance of our shelters, I think that if the member was to look at the national housing strategy which is, from my perspective, a historical document that the minister of housing has done an incredible job on, he will find that there are significant amounts of money being allocated to ensure that we continue to support an area in which there is a need.

It is also important that we work with provincial entities. In my area it is Osborne House, which does a fantastic job at meeting many of the needs of women and others in our community who unfortunately have had to endure sexual assault and many other harms.

[Sean Fraser, Liberal, Central Nova, NS]

Mr. Speaker, just before I pose my question, a comment was made earlier about my hon. colleague waving his arms on occasion. When he spends as much time in the chamber as this member does, there is very little time for exercise. I know where he comes from.

I do want to ask something on a more serious note. This bill includes important measures dealing with the importance of consent in terms of criminal law around sexual assault. I want to recognize some of the points made from different members from different parties on the issue of the circumstances across different sectors of society and the battle that we need to fight to ensure the victims have the support that they need.

In addition to those systemic supports, this particular bill proposes certain revisions that clarify the importance of consent in sexual assault cases. They ensure that, for example, communications are now subject to the rape shield laws that have long protected the use of a person's sexual history to impugn their credibility, for example, or imply consent in a certain circumstance.

Does the hon. member think that this particular bill is going to enhance the number of women who actually are able to come forward and restore their faith in the justice system to report a crime of sexual assault when it takes place in our communities?