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

This bill was last introduced in the 42nd Parliament, 1st Session, which ended in September 2019.

Sponsor

Status

This bill has received Royal Assent and is now law.

Summary

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.

Elsewhere

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.

Votes

Dec. 10, 2018 Passed Motion respecting Senate amendments to Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act
Dec. 10, 2018 Passed Time allocation for Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act

Public SafetyOral Questions

February 8th, 2024 / 2:30 p.m.
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Etobicoke—Lakeshore Ontario

Liberal

James Maloney LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

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

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

JusticeOral Questions

April 27th, 2023 / 3:05 p.m.
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LaSalle—Émard—Verdun Québec

Liberal

David Lametti LiberalMinister of Justice and Attorney General of Canada

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

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

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

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

March 6th, 2023 / 4:30 p.m.
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Liberal

David Lametti Liberal LaSalle—Émard—Verdun, QC

Former Bill C‑75 introduced a reverse onus provision to help victims and make it harder for accused to access bail.

We were looking into other options as well, so we also provided more clarity around certain definitions of sexual violence in former Bill C‑51. In addition, through former Bill C‑3, we ensured that judges would receive better training on how to deal with matters involving intimate partner violence and sexual assault.

We fully support victims all over the country through our programming, and we remain open to making further changes to address intimate partner violence. I know that one of the members here today put forward a bill on coercive control, and I announced publicly my support for the bill. It's also very important to define offences in a way that is understandable to the victims in those situations.

JusticeOral Questions

February 16th, 2023 / 2:25 p.m.
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LaSalle—Émard—Verdun Québec

Liberal

David Lametti LiberalMinister of Justice and Attorney General of Canada

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

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

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

JusticeOral Questions

January 31st, 2023 / 3 p.m.
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LaSalle—Émard—Verdun Québec

Liberal

David Lametti LiberalMinister of Justice and Attorney General of Canada

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

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

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

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

We will keep working to protect victims of sexual assault.

March 29th, 2022 / 4:05 p.m.
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Stéphanie Bouchard Senior Legal Counsel and Director, Policy Centre for Victim Issues, Criminal Law Policy Section, Department of Justice

Thank you for the opportunity to provide information on Justice Canada's measures that support the implementation of the Canadian Victims Bill of Rights.

Former Bill C-32, an act to enact the Canadian Victims Bill of Rights, came into force in 2015. It gives victims of crime statutory rights to information, protection and participation and to seek restitution at the federal level. The 2015 amendments included related law reforms on testimonial aids, victim impact statements and restitution, and introduced a new community impact statement provision.

As required by the Canadian Victims Bill of Rights, Justice Canada has established a complaint process to address any alleged breaches of victims' rights, and prepares annual reports on this process.

The development of the Canadian Victims Bill of Rights Act was informed by significant input from the provinces, territories and broad public engagement, reflecting the shared responsibility for the criminal justice system. As the committee knows, the federal government is responsible for the development of criminal law and procedure, much of which is set out in the Criminal Code. Provincial and territorial governments are principally responsible for the administration of justice, which includes enforcing and prosecuting offences and providing victims services.

Justice Canada supports work on victims issues through several key initiatives. The department leads the federal victims strategy, which seeks to improve the justice system for victims through funding, law reform and policy initiatives. Since 2015 almost $78 million in federal funding through the victims fund has been invested in provinces and territories to assist them with implementation of the Canadian Victims Bill of Rights and victim-related legislation, and to develop or enhance victims services. For example, funding has been used to support restitution recovery programs, testimonial aids for adult and child victims and witnesses, training on victims' rights, public legal education materials, and building victims services capacity and accessibility.

Justice Canada is also supporting innovative victims service models, such as the family information liaison units. These are culturally grounded and trauma-informed teams that work with family members of missing and murdered indigenous women. Justice Canada funding is also supporting expanded access to independent legal advice for victims and survivors of sexual assault and intimate partner violence.

Criminal Code reforms since 2015 have furthered the implementation of the Canadian Victims Bills of Rights. A few examples include that in 2018, former Bill C-51 amended the Criminal Code to clarify and strengthen Canada’s sexual assault regime, including building on former Bill C-32 by providing a complainant with the right to counsel during a rape-shield provision. In 2019 former Bill C-75 enhanced measures to better protect against and reflect the serious nature of intimate partner violence, and strengthened the victim surcharge provisions.

Most recently, following the adoption of former Bill C-3 in 2021, in order to be eligible for appointment to a provincial superior court, candidates must agree to participate in continuing education on matters related to sexual assault law and social context.

Justice Canada continues to support broad research to identify trends as well as take note of how victims' rights are exercised in the criminal justice system and the impacts of the Canadian Victims Bill of Rights. This research informs our ongoing work.

Information-sharing and awareness-raising play a key role in justice system transformation. To that end, the department continues to support various public legal education opportunities and collaboration with partners. In addition to publishing fact sheets on victims' rights and designing new tools for police and other professionals, Justice Canada hosts the national Victims and Survivors of Crime Week, as well as webinars and knowledge exchanges. The victims week has been a huge success. It brings experts together to discuss ways to make our collective commitments to victims more effective.

Lastly, I would note that the Office of the Federal Ombudsman for Victims of Crime was created in 2007. It is at arm’s length from the federal government. The ombudsman’s mandate is focused on areas of federal jurisdiction. There have been three ombudspersons appointed to date. A new GIC appointment process is currently under way.

In conclusion, I would say that Justice Canada continues to prioritize work to support victims of crime. Implementing the Canadian Victims Bill of Rights is an ongoing process, requiring actions from all levels of government working within their areas of responsibility in relation to victims' issues and victims' rights, and significant collaboration takes place across federal–provincial–territorial networks to ensure that their measures are coordinated.

We look forward to answering any questions you may have.

February 8th, 2022 / 12:30 p.m.
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Assistant Clinical Professor, Department of Medicine, McMaster University, As an Individual

Dr. Caillin Langmann

Yes, that's correct. There doesn't seem to be any association with reductions in homicide from any of the legislative efforts that have been produced by Canada's C-51, Bill C-17 and Bill C-68.

Public SafetyOral Questions

June 9th, 2021 / 2:35 p.m.
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Papineau Québec

Liberal

Justin Trudeau LiberalPrime Minister

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

June 8th, 2021 / 12:30 p.m.
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Liberal

Mike Kelloway Liberal Cape Breton—Canso, NS

It does. I really appreciate that feedback.

Dr. Wemmers, Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act, recently amended the Criminal Code to provide complainants in sexual assault cases with the right to participate and be represented in proceedings to determine the admissibility of evidence about their sexual history. Our government considers this an important change to support victims of sexual assault.

Again, along the same lines as the last one, are there further ways, through the Canadian Victims Bill of Rights or otherwise, in which our government could support victims of sexual assault?

June 8th, 2021 / 11:10 a.m.
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Jody Berkes Chair, Criminal Justice Section, The Canadian Bar Association

Good morning, Madam Chair and honourable members of the committee.

My name is Jody Berkes, and I am chair of the Canadian Bar Association's criminal justice section.

I join you today from the traditional territory of the Wendat, the Anishinabek Nation, the Haudenosaunee Confederacy, the Mississaugas of the Credit First Nation and the Métis Nation. This land is covered by the Dish With One Spoon treaty.

Thank you for inviting the CBA to participate in the committee's study of the Canadian Victims Bill of Rights, which I will refer to as the CVBR. One of the things that the CBA's criminal justice section prides itself on is that its members come from both the Crown and defence bars. As such, we can bring a unique, comprehensive perspective to how legislation is implemented in the criminal justice system.

The Canadian Bar Association, the CBA, is a national association representing 36,000 jurists across Canada. The CBA's primary objective is to improve the law and the administration of justice, which is why we are here this morning on behalf of our Criminal Justice Section.

Although the CVBR uses the term “victim”, the CBA prefers to use the neutral term “complainant” prior to any finding of guilt. Therefore, when discussing the pretrial and trial process, I will use the term “complainant”. I will use the term “victim” when discussing sentencing and post-sentencing issues.

The section supports, as a general proposition, increasing resources to allow complainants to receive independent legal advice on the criminal justice process. Independent legal advice assists proper functioning of the criminal justice process by respecting the Crown's role as an independent minister of justice and not as an advocate for the complainant, as well as the court's role as an adjudicator rather than as a party that assists the participants in understanding and navigating the legal system.

Additionally, the section supports complainants being provided information with respect to all areas outlined in sections 6 through 8 of the CVBR, with the caveat that confidentiality is needed while criminal investigations are ongoing. Similarly, the section supports sections 9 through 13 of the CVBR regarding complainant protection. For the most part, these were already dealt with through the sections of the Criminal Code regarding bail, obstruction of justice offences, publication bans, third party records applications and testimony accommodations such as screens, remote testimony and the use of support persons while giving testimony.

On the other hand, the section is concerned about expanding the role for complainants in criminal prosecutions, which can result in the creation of unreasonable expectations or conflicts between Crown prosecutors and complainants. For example, section 14 of the CVBR states, “Every victim has the right to convey their views about decisions to be made by appropriate authorities in the criminal justice system that affect the victim's rights under this Act and to have those views considered.”

The Crown's legal and ethical obligation is not to secure a conviction but to ensure that all relevant facts are placed before judge and jury so that justice may be done. Therefore, the Crown must be allowed unfettered discretion in choosing how to prosecute offences. Similarly, decisions on whether to continue or to withdraw prosecutions must remain within the Crown's discretion. While it is appropriate to solicit a complainant's views on procedural issues and in determining whether to continue a prosecution, the Crown cannot be bound by those wishes. This operates the same way regardless of whether the complainant's desire is to continue or to withdraw a prosecution.

The section acknowledges that the CVBR requires the Crown to discuss and inform complainants about trial applications. However, we voiced concern about the amendments to the Criminal Code in Bill C-51, which granted standing to complainants for certain trial applications in sexual assault prosecutions. The addition of a third party with a right to make submissions about the law is problematic for two reasons. One, it has the potential to create friction between the Crown—the party in charge of prosecuting offences—and the complainant, who would likely be the main Crown witness. Two, it has the potential to complicate and lengthen pretrial applications as well as to cause mistrials, which squander judicial resources.

In summary, the CBA criminal justice section welcomes additional resources to support providing complainants with information and assistance in the criminal process. On the other hand, we suggest that prosecution decisions, including responding to legal arguments, be left in the capable hands of Crown prosecutors.

Madam Chair, I know I am out of time but I hope you can indulge me for a few more seconds. This is my third appearance before this committee, and I want to thank you for the opportunity. I have found your questions thoughtful and engaging, and I wish every Canadian had the opportunity to experience their democracy in this way.

Last, I want to thank each and every member of the committee staff and technical support. All of you exemplify the highest standards of professionalism.

Thank you.

Sex-Selective Abortion ActPrivate Members' Business

May 28th, 2021 / 2:15 p.m.
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Ottawa West—Nepean Ontario

Liberal

Anita Vandenbeld LiberalParliamentary Secretary to the Minister of National Defence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judges ActGovernment Orders

November 16th, 2020 / 6 p.m.
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Conservative

Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB

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

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

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

Judges ActGovernment Orders

November 16th, 2020 / 6 p.m.
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Yukon Yukon

Liberal

Larry Bagnell LiberalParliamentary Secretary to the Minister of Economic Development and Official Languages (Canadian Northern Economic Development Agency)

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

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

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

Judges ActGovernment Orders

November 16th, 2020 / 5:25 p.m.
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Liberal

Peter Fonseca Liberal Mississauga East—Cooksville, ON

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judges ActGovernment Orders

October 8th, 2020 / 11 a.m.
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Liberal

Jennifer O'Connell Liberal Pickering—Uxbridge, ON

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

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

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

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