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

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

Mr. Speaker, it is a pleasure to have the opportunity today to join the debate on Bill C-51. It is quite clearly an omnibus bill dealing with a wide range of different provisions with respect to justice. I am going to comment on some of those provisions, but at the outset let me quickly comment on the fact that what we have before the House is an omnibus bill.

I am not one of those people who says that any omnibus bill represents the end of the world, but there are some people on the other side of the House who took at least something close to that position in the last Parliament. I remember being asked about this during election forums in my riding. I said very clearly that there is an appropriate use of bills containing a number of different kinds of provisions, but also an inappropriate use of them, and that, ultimately, we cannot necessarily codify exactly what these will look like in every case. It is the kind of thing that reasonable people should look at it and judge.

The principle is that as many opportunities as possible should be created for debate and votes that are particular to specific individual issues. We should not have a situation in which we have a whole bunch of different, contrary, unrelated things in the same bill that are not in any way part of an overall plan moving in the same direction.

When the government does that it creates a situation in which there may be some aspects of the bill that are positive and some not, which creates a particular challenge for members of Parliament who are trying to decide how to express their support for certain provisions in the bill they may like, and their opposition to things they may have concerns about. However, it also creates an opportunity for the government to bury things in the legislation that actually deserve particular scrutiny.

I am going to talk about the changes to section 176 of the Criminal Code that were proposed. That provision was an example of one that would have had a very substantial impact, but was buried within a larger bill. It did not figure prominently in the government's communications about the bill. It was only because of the activism of the opposition raising awareness about this section that we were able to have it discussed at committee and, ultimately, see what seems like the willingness of the House to remove that proposed provision. However, regardless of one's views on the principle of omnibus legislation, we should hold the government accountable for the fact it has failed to live up to the standard it set for itself with respect omnibus legislation.

One of the provisions we see in the bill, I understand, removes the sections from the Criminal Code dealing with witchcraft. It makes sense for the government to do this. Witchcraft may be its only chance at balancing the budget in the near term. Some members may think this is uncontroversial. I actually discussed it with Mackenzie King this morning, and he has some concerns about this section of the bill. Ultimately, we decided it would only have a medium impact going forward, so I think we will just leave it there.

[Kevin Sorenson, Conservative, Battle River—Crowfoot, AB]

Mr. Speaker, it is an honour to rise in this place once again to speak in the debate around another Liberal omnibus bill, which this time happens to be a justice bill. I will be splitting my time with the member for Sherwood Park—Fort Saskatchewan

It has been mentioned already today that in the past election campaign, the Liberals promised there would be no more omnibus bills. They also campaigned against the use of time allocation, and yet time after time the government has used time allocation to move legislation forward.

I am pleased to speak to a bill that received so much input from my constituents over the summer, especially those with strong religious beliefs. The bill does not pick and choose one religion; it will affect all religions.

Bill C-51 was originally introduced by a Liberal government with a section containing what many people thought was an assault on religious freedom and beliefs. As we have heard today, the Liberal government planned to repeal section 176 of the Criminal Code pertaining to the protection of religious officials and the freedom to worship peacefully without disturbance.

Canadians know that Conservative members have always supported religious freedom, and the protection of those freedoms. It was the Conservative government that brought forward the office of religious freedom. That office promoted religious freedom around the world. Andrew Bennett served as ambassador after a long period of time with Foreign Affairs, and he did amazing work for our country and for the whole concept of religious freedom.

In Bill C-51, the Liberal government proposes to repeal section 176 of the Criminal Code pertaining to the protection of religious officials. There was a response in my constituency office and across the country, and pastors and others involved in religious freedom expressed their deepest concerns.

I am very pleased with the work of Conservative members of Parliament who sat on justice committee during the hearings on Bill C-51, including the member for St. Albert—Edmonton and the member for Niagara Falls. Many other Conservative colleagues put considerable effort into the issue of protection of all religious officials and the freedom to worship peacefully without fear of disturbance during religious services. The member of Parliament for Cypress Hills—Grasslands does great work on the whole religious freedom file. I want to thank the many witnesses who testified before committee and provided submissions. I want to thank them for standing up and defending religious freedom in Canada. Their voices were heard.

I commend the Liberal government for backing down on its attempt to repeal section 176. The government realized where amendments should be brought forward and accepted them, so we commend it for that.

It was disconcerting to note that the current government included in Bill C-51 a dismissal of the importance of religious freedom in Canada. The Liberals announced their belief that the disruption of a religious service was not serious enough that it should be protected in this legislation. Consequently, people responded again. At committee, the government tried to ignore it and said it was not going to happen. By November of this year, Liberal members on the justice committee agreed to allow section 176 of the Criminal Code to remain operable.

This was a victory for all faith communities in Canada. It was an important victory, because hate crimes with respect to religious communities happen all around the world.

Hate crimes are on the increase and, unfortunately it is the same here in Canada, whether it is the Jewish faith, Judaism, attacks on synagogues, the Christian faith, or the Muslim faith.

Bill C-51 was introduced by the Minister of Justice and Attorney General of Canada just days before the parliamentary recess, on June 6, 2017. Clause 14 of Bill C-51 proposed to repeal section 176 of the Criminal Code of Canada, which makes it a crime to unlawfully obstruct, threaten, or harm a religious official, before, during, or after performing a religious service. Again, we heard about it all summer. Later, I will read what section 176 did.

Why is this important? I want to go back to a quote from former Prime Minister John G. Diefenbaker. It is a quote that all of us should take note of and appreciate. He stated:

I am a Canadian, free to speak without fear, free to worship in my own way, free to stand for what I think right, free to oppose what I believe wrong, or free to choose those who shall govern my country. This heritage of freedom I pledge to uphold for myself and all mankind.

His pledge was to stand up, not just for direct assaults on religious freedom, but against the erosion of religious freedom. This is the way that Canadians have lived for decades.

The Liberal government has been very selective of its new sunny ways in who it respects. Worse, the Liberal government tried to reduce the security of religious Canadians by burying its repeal of section 176 deep in an omnibus justice bill. More than 65 interfaith fellowships or leaders, including the Evangelical Fellowship of Canada, one of the 65, sent a joint letter to the Minister of Justice on October 31, 2017. It very much brought forward the concerns it had.

I will very quickly read part of section 176 in the act, because it is important for Canadians to get the perspective of it. It 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, or

(b) knowing that a clergyman or minister is about to perform, is on his way to perform or is returning from the performance of any of the duties or functions mentioned in paragraph (a)

(i) assaults or offers any violence to him, or

(ii) arrests him on a civil process, or under the pretence of executing a civil process

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Disturbing religious worship or certain meetings

(2) Every one who wilfully disturbs or interrupts an assemblage of persons met for religious worship or for a moral, social or benevolent purpose is guilty of an offence punishable on summary conviction.

This provision protects the pastor, the clergyman, the rabbi, the imam in leading, and it protects the individuals who participate in such services. It is important to note, again, that Liberals felt this was unacceptable. In unison, members from all faiths came together.

Bill C-51 has other points. First, it deals with sexual assault provisions. It would clarify and strengthen certain aspects of sexual assault related to consent, admissibility of evidence, and legal representation for the complainant. It would repeal or amend a number of provisions in the Criminal Code that have been found unconstitutional by appellate courts. It is a housekeeping measure. As the previous member suggested, it is good to see that there is support in this place for some of those measures.

I will close by saying that this is the way it should end up. It should end up where Canadians first of all stand up for what they believe is an assault on their way of life, where we take it to committee, make those amendments, and where governments are then willing to allow those amendments to come forward.

I thank the Conservatives for bringing forward the amendments, and all other parties for accepting them. Although the bill may not be perfect, we hope that the measures that have been amended and are coming forward will pass.

[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.

[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.

[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.

[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.

[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.

The House resumed consideration of the motion that Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, be read the third time and passed.

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

Madam Speaker, I rise to speak on Bill C-51, the latest omnibus bill from the government. I have to say it is a bit ironic that we are debating an omnibus bill, given the fact that when the Liberals were in opposition, they made so much noise and such a fuss about omnibus bills introduced by the previous Conservative government.

The Prime Minister and the Liberal platform called omnibus bills undemocratic and the Prime Minister pledged that a Liberal government would undo the practice of introducing omnibus bills. I guess, like so many promises made by the Prime Minister during the last election campaign, this is just another broken promise in a string of broken promises made by him. It really illustrates that the Prime Minister's platform for real change was not worth the paper it was written on.

This omnibus bill contains a number of different sections and parts that are unrelated and given the fact that it contains a number of sections that are unrelated, it then comes as no surprise that parts of Bill C-51 I strongly support and other parts I have real concerns with. I will start with some of the positives.

One aspect of Bill C-51 that I strongly support is the removal of unconstitutional sections of the Criminal Code. Canadians should be able to expect that the Criminal Code accurately reflects the state of the law, and yet Canadians who make that common-sense assumption would be wrong. They would be wrong because the Criminal Code contains dozens and dozens of sections that have been found to be unconstitutional.

The consequences of leaving sections in the Criminal Code that are unconstitutional can be very serious. That was most recently illustrated last year when Travis Vader's conviction for two counts of the second-degree murder of Lyle and Marie McCann was vacated after the trial judge applied a section of the Criminal Code that had been found to be unconstitutional 26 years earlier, all the way back in 1990, and yet there was the section in black and white in the Criminal Code purporting to represent the law on its face.

Lyle and Marie McCann, who were murdered, resided in St. Albert and members of the McCann family live in my community of St. Albert. I can say that the case really did have a profound impact on the community. It further strengthened the impact of the case after the family waited six years for justice. At the moment it seemed that justice had been finally achieved, we saw the injustice of having those two convictions for second-degree murder vacated.

What happened to the McCann family should never have happened. It was completely preventable. That is why, in December of 2016, I joined Bret McCann, the son of Lyle and Marie McCann, at a press conference to call on the government and the Minister of Justice to introduce legislation to repeal unconstitutional sections of the Criminal Code, often referred to as zombie laws.

To that end, I am pleased that Bill C-51 would remove sections of the Criminal Code that have been found to be unconstitutional by appellate courts. I am also pleased that the government introduced Bill C-39, which would remove sections of the Criminal Code that have been found to be unconstitutional by the Supreme Court of Canada.

However, I am very disappointed with the lack of progress the government has made in the passage of Bill C-39. Bill C-39 was introduced by the Minister of Justice on March 8. Nearly a year later, absolutely no legislative progress has been made. Indeed, it remains stuck at first reading. Bill C-39 is straightforward legislation, it is not controversial, and it could be passed easily, yet the minister continues to drag her feet.

I am baffled and the McCann family is baffled and frustrated about the failure of the Liberal government to move Bill C-39 forward so unconstitutional sections, as determined by the Supreme Court, can be removed from the Criminal Code, including the section wrongfully applied in the Vader case. The inaction from the minister and the government increases the likelihood that something like what happened to the McCann family can happen again. In the event that it does, as the result of the Liberal government's inaction, the government will bear partial responsibility. I urge the government to move forward with Bill C-39 in addition to Bill C-51.

One other positive aspect about Bill C-51 is the fact that the government has finally backed down from the removal of section 176 from the Criminal Code. One of the parts of the bill is to remove unconstitutional sections, as well as sections of the Criminal Code that, in the opinion of the government, are redundant or obsolete.

Section 176 of the criminal code makes it a criminal offence to obstruct or threaten a religious official or to disrupt a religious service or ceremony. Simply put, section 176 is not unconstitutional, has never been challenged in court, and is not obsolete. Indeed, a number of individuals have been successfully prosecuted under section 176. Also, it is not redundant in as much as it is the only section of the Criminal Code that expressly protects the rights and freedoms of Canadians to practise their religion without fear or intimidation, a freedom that, by the way, is not just any freedom. When we are talking about freedom of religion, we are talking about a fundamental freedom guaranteed under the Charter of Rights and Freedoms.

I am glad the government listened to the official opposition. More important, it listened to thousands and thousands of Canadians who signed a petition, wrote letters and emails, and made phone calls to MPs and the government to keep section 176 in the Criminal Code.

Bill C-51 would remove another section of the Criminal Code that I believe should not be removed, and that is section 49. Section 49 makes it an offence to attack or harm the head of state, Her Majesty the Queen. The government has not been able to provide any meaningful rationale as to why section 49 would be removed. It has not been able to provide a rationale in debate. It has not been able to provide a rationale at committee. It could not come at a worse time. This year marks the 65th anniversary that Queen Elizabeth was ascended to the throne. It makes no sense why the Liberal government seems intent on removing section 49 from the Criminal Code.

Perhaps the most substantive part of Bill C-51 deals with amendments to the Criminal Code related to sexual assault laws in Canada. There are a number of parts of the code that Bill C-51 would amend with respect to sexual assault provisions of the code. A number of the changes in Bill C-51 would clean up the Criminal Code with respect to codifying certain Supreme Court decisions, including the J.A. decision and the Ewanchuk decisions of the Supreme Court. I fully support the parts of the bill that would clean up the Criminal Code with respect to that.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Madam Speaker, I appreciate the opportunity to participate in today's debate on Bill C-51. It is fair to say that the bill has enjoyed broad and bipartisan support from all members in the House. I wish to acknowledge this support and to thank members from all parties for the collaborative, constructive, and focused discussions that have taken place so far, including before the Standing Committee on Justice and Human Rights. I expect that this approach will continue and hope that we can quickly move this important legislation forward.

As is well known, Bill C-51 reflects the mandate of the Minister of Justice to review the criminal justice system. It proposes changes that would make the criminal law fairer, clearer, more relevant, and more accessible. These changes are critically important.

The Criminal Code provides the anchor for the criminal justice system and the actions taken within it. As such, these changes would help to advance the minister's ongoing work to transform the criminal justice system and ensure that it continues to promote public safety, hold offenders to account, and meet the needs of victims.

Bill C-51 proposes changes to the Criminal Code and to the Department of Justice Act. I am particularly proud to be part of a government that has shown a consistent and unwavering commitment to promoting the greatest possible respect for the Charter of Rights and Freedoms. This commitment is reflected in Bill C-51 in many ways. Notably, it proposes changes that would require the Minister of Justice to table a charter statement in Parliament for every government bill. These statements are already being tabled by the minister in respect of her bills. Under Bill C-51, this would be mandatory for the current and future governments.

Some have suggested that this type of change is unnecessary, given the minister's current statutory responsibility to examine every bill introduced in Parliament to determine if any of its proposed changes are inconsistent with the charter. However, we can go further, and that is what Bill C-51 would do. By providing Parliament, the public, and all stakeholders with information on the effects of all government legislation on our constitutionally protected rights, these changes would contribute to a more informed debate on government legislation and a more informed justice system. It is in all of our interests to ensure that those responsible for administering the justice system understand how federal laws implicate our charter rights. This is particularly true for the criminal justice system.

Bill C-51's proposed changes to the Criminal Code can be said to fall into three broad categories. First, Bill C-51 would repeal a number of offences in the Criminal Code that are obsolete or are otherwise redundant. Next, Bill C-51 would build on the work started by the Minister of Justice in Bill C-39, which proposes to repeal provisions that have been found unconstitutional by the courts. It also seeks to amend provisions that have been identified as raising charter risks but that have not been constitutionally considered.

I see the proposed changes in Bill C-51 as reflecting a recognition by the Minister of Justice that, for far too long, we have not been engaging in the kind of modernizing, clarifying, and rationalizing necessary to ensure that our Criminal Code remains coherent and contemporary. Criminal law academics from across Canada, as well as justice system stakeholders, have been calling for this kind of law reform for years. The public also deserves nothing less than a Criminal Code that reflects modern society and that is an accurate reflection of the law in force today. Bill C-51 seeks to make these kinds of changes, and I congratulate the Minister of Justice for making this kind of criminal law reform a priority.

Bill C-51 has generated a lively and important debate. Much of the focus of the debates and the concerns expressed to date have been centred on the bill's proposed changes to sexual assault law, an area that many recognize as complex and for which we would all agree clarity is particularly important. It is an area of particular interest to me as vice-chair of the Status of Women Committee.

I will focus the remainder of my remarks on this section of the bill. I think this area is important for a number of reasons, especially in light of what we have seen in Canada and elsewhere as an ever-expanding dialogue and discussion about gender-based violence and inappropriate and unacceptable sexualized conduct. This violence is almost universally perpetrated by men toward women or toward LGBTQ2 individuals. We know that many survivors of sexual violence in Canada believe that the criminal justice system is not well equipped to address their needs and that if they do come forward to report a crime, they will not see justice.

We do have to do better in addressing these realities, and within our own responsibility can make positive contributions in this regard. Bill C-51 would clarify and strengthen the law on sexual assault, and would help address concerns about how the law is applied in practice. I was particularly pleased to see the changes to consent that are included in this bill.

I had the opportunity to sit in on the justice committee's hearings during testimony on consent. I am pleased to see that at report stage these definitions have been further clarified. We know that no means no and that someone who is incapacitated by alcohol or otherwise or is unconscious is not able to provide informed consent. Now the Criminal Code would reflect these realities.

These changes are, however, only one part of the solution. I am proud of the work of our status of women committee, reflected in our government's commitment to tackling gender-based violence and promoting gender equality as a priority. Efforts like the establishment of a national strategy to address gender-based violence and the allocation of $12 million through the victims fund for projects are designed to improve the criminal justice system's response to sexual assault against adults. This funding is going toward initiatives pursued by the provinces and territories to support victims of sexual assault to receive independent legal advice or the development of awareness raising for the judiciary on gender-based violence. These initiative are important and will contribute to making the justice system more responsive to the needs of survivors of sexual assault.

Furthermore, our government has made judicial education a priority. In April 2017, we announced nearly $100,000 in new funding to the National Judicial Institute to develop training for federally and provincially appointed judges that will focus on gender-based violence, including sexual assault and domestic violence. Additionally, budget 2017 provided funding to the Canadian Judicial Council to support judicial education and training. This funding will ensure that more judges have access to professional development with a greater focus on gender and diversity training.

I urge all members of the chamber to support Bill C-51. I believe this bill is critically important in ensuring that survivors of sexual assault are treated with the respect and dignity they deserve.

[Ali Ehsassi, Liberal, Willowdale, ON]

Madam Speaker, before I begin, I would like to inform the House that I will be splitting my time with the member for Oakville North—Burlington.

It is a great honour and privilege for me to fellow in the footsteps of my learned friend from Victoria and the chair of our committee, the member for Mount Royal.

I am grateful for the opportunity to rise today to speak about Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act. I was honoured to study and vote for Bill C-51 at the Standing Committee on Justice and Human Rights. The bill would strengthen the Criminal Code and other related legislation to ensure that laws are clear, up to date, show fairness to victims, and are in line with the Canadian Charter of Rights and Freedoms. Our government is committed to making progress on addressing sexual assault and gender-based violence. I am very proud that Bill C-51 is an important part of our effort to attain that goal.

Sexual assault and gender-based violence are a tragic reality for Canadian women and men, and we need our laws and criminal justice system to be responsive and to treat victims with respect and compassion. There have been major reforms to sexual offences in the Criminal Code ever since the 1970s, and the changes in Bill C-51 are logical next steps on that critical path.

At committee we heard from women's groups and members of the legal community that the current legal framework under the Criminal Code could be strengthened, especially on the question of consent. Bill C-51 would add clarification to existing law that no consent can be obtained if a complainant is unconscious, as outlined in the Supreme Court decision in J.A. This does not mean that someone just short of unconsciousness is able to consent, even though the person is otherwise incapacitated. Bill C-51 makes it clear that an inability to consent can be for reasons other than being unconscious. The committee also adopted an amendment proposed by one of my Liberal colleagues to further codify the J.A. decision in Bill C-51 by clarifying that consent cannot be given in advance and that it can be withdrawn at any time. As our understanding of consent changes, our laws obviously have to keep pace.

Bill C-51 also proposes to strengthen consent in the Criminal Code by codifying aspects of the Supreme Court's decision in Ewanchuk, notably that an accused is not able to rely on the defence of an honest but mistaken belief in consent if said belief was based on the passivity of the complainant. It is vital that the Criminal Code is clear, to avoid any misapplications of the law.

The witnesses at committee also spoke at length about how a sexual assault trial can be very difficult for the complainant and how unfortunate stereotypes and myths about sexual assault victims continue to pervade our society. Bill C-51 would make important changes in the safeguarding of the privacy of victims. To ensure that the justice system does not perpetuate such stereotypes, the bill would strengthen the rape shield provisions that protect complainants.

Clarity is paramount for any criminal code to be fair, accessible, and comprehensible. From time to time, we must clean up the code to remove provisions deemed redundant, obsolete, or indeed unconstitutional. In the committee's study of the bill, we had numerous legal scholars and experts voice their support for the government's repeal of sections of the Criminal Code that are no longer necessary. In a modern Criminal Code, there is no need for an obsolete provision such as the offence of fraudulently pretending to practice witchcraft. Likewise, we heard from witnesses such as Greg Oliver, of the Canadian Secular Alliance, that Canada's blasphemy law is obsolete and potentially in violation of the charter guarantee of freedom of expression. I was honoured to have sponsored the petition started by Mr. Oliver on this issue and am gratified to see that Bill C-51 would repeal section 296 of the Criminal Code, the prohibition on publishing blasphemous libel.

Although Bill C-51 proposed the repeal of section 176, given that it is rarely used and that other areas of the Criminal Code cover the relevant offences, the committee listened to the concerns of religious groups and constituents. They told us that they believed that this provision was important to send a clear message about Canada's commitment to the protection of religious freedom. For this reason, the committee adopted an amendment put forward by a Liberal member to reinstate section 176. This amendment would also change the language to make it inclusive of all religious and spiritual faiths and to make it gender neutral. Our laws must make sure that all Canadians, regardless of their religious affiliation or gender identity, are free to practise their faith.

During the committee's study of Bill C-51, I was also pleased to support the bill's proposed changes to the Department of Justice Act that would create a new requirement for charter statements. This new section would mandate that the Minister of Justice table a statement outlining the potential effects of all government bills on charter-protected rights and freedoms. The charter is the most fundamental way in which the basic rights and freedoms of all Canadians are enshrined in law. It is imperative that proposed laws are clear in their relationship to these basic rights and freedoms. I applaud the government for taking this pivotal step to ensure transparency and respect for our charter.

I am proud to have participated in the study of Bill C-51 by the Standing Committee on Justice and Human Rights. It is clear to me that this bill would strengthen sexual assault law. It would also modernize the Criminal Code and make it clear and accessible, while also placing the Charter of Rights and Freedoms at the centre of our focus when crafting new laws.

[Murray Rankin, NDP, Victoria, BC]

Madam Speaker, it is an honour to rise to speak to Bill C-51 today. I want to begin by, I suppose apologizing to my colleague from Mount Royal, who is the excellent chair of the justice and human rights committee, and who runs it in a fashion that is non-partisan, to his credit. However, from the perspective of an opposition member, it is passing strange that amendments from our side are so rarely taken up by any committee in this place.

On Bill C-58, the bill that the government calls the “access to information bill”, which I call the “denying access to information bill”, I brought forth 20 amendments, and each and every one was rejected. In this case, the chronology is as my friend suggested, and is correctly stated, but each of the amendments from the opposition was defeated. I think each of the amendments from the Liberals was accepted on this particular bill. That is the way it works in committees. I think that Canadians should know that. I find it disappointing.

On the merits of it, and in the collegiality of how the committee proceeds, I am grateful to the member for Mount Royal for the way he runs this committee. It is exemplary, and I salute him for it.

This is a non-partisan issue, and if I got off on the wrong footing by suggesting anything to the contrary, I owe this place an apology. Reform of the criminal law for all Canadians cannot be partisan. We have to get it right. We have to get the balance between the rights of the accused and the rights of victims correct, because the law is constantly evolving, as technology, for example, is constantly evolving. I will have more to say about that in a moment, in respect to sexual assault provisions.

It is to the government's credit that it is taking a number of sections of this very long Criminal Code and trying to update it, in light of what the courts have done and in light of where society is going. That is as it should be.

The NDP wants to say at the outset of this debate that New Democrats are entirely in support of the bill and will be voting for it without hesitation.

Therefore, I want to say a few things for those who might be listening about the nature of the bill. Some have called it an omnibus bill. I think one of the Conservative speakers, in June, when it was in second reading, termed it that. It is not that way. It is a comprehensive reform initiative to do four types of things.

The first is to clarify the laws on sexual assault, because there has been a lot of Supreme Court jurisprudence that requires us to restate the law to make sure we are keeping up with the times. Second, the bill would remove or amend provisions that have been found unconstitutional by the courts. That obviously has to be done. Third, a number of obsolete or duplicative offences would be removed. Fourth, there is another bill that would be amended, the Department of Justice Act, which would create a new statutory duty for the Minister of Justice to table a charter statement for every government bill.

The fourth issue is laudatory, but quite ineffective. The fact that the government tables a few sentences about why a finance initiative is consistent with the charter seems to me to be much ado about nothing. I am not sure it is of any relevance in a court of law. I think the House can assume, without having a statement, that government bills will in fact be consistent with the charter. We hardly need a statement to do that. Indeed, the charter statements that the Minister of Justice has been releasing to date add very little, in my judgment, to the issues before the House. However, I suppose one can never fault too much information, even information that is of dubious utility.

I want to start with the most significant number of amendments to the bill, which is on sexual assault. However, before doing that, I want to put it in the context of an excellent summary of the bill that was provided in the Canadian Bar Association's journal, National, that was done by Omar Ha-Redeye in the fall, just a few weeks ago. It is quite amusing how the author describes the bill. He says:

The federal government is finally doing some housekeeping of the Criminal Code with Bill C-51. It may find some hidden cobwebs--and according to some, there may even be monsters under the bed.

The Criminal Code is a place where old, obsolete, or even unconstitutional laws languish in purgatory. Most governments have been content to simply ignore these outdated provisions, knowing that most would never actually be used. The result is a long, rambling and sometimes unnecessarily confusing statute.

Amen to that.

Sometimes the code is sufficiently complicated to confuse even the judges. This is where I pause to talk about poor Mr. Justice Denny Thomas of the Alberta Court of Queen's Bench, who a few years ago convicted a gentleman named Travis Vader of second degree murder. He relied on section 230 of the Criminal Code, which had a provision called “culpable homicide” that was introduced way back in 1892.

Unfortunately, the judge was not made aware of the fact that the Supreme Court of Canada had previously repealed a part of that provision in a 1987 decision. Then it had ruled, in another decision, that the section was contrary to the charter and could not be saved under section 1. The judge had convicted this individual when the provision “allowed for a conviction of murder without the requirement for proof of subjective foresight of the mental elements for moral blameworthiness”. There it was, sitting and gathering dust, in section 230 in the Criminal Code. They had to do the whole trial again, at unknowing cost, both psychological and financial, to the system of justice in the province of Alberta, and brought the Criminal Code, frankly into disrepute as a consequence.

One has to salute the government for its efforts to bring it up to date and sweep away these cobwebs, as the author so correctly said.

There are provisions in here that are simply obsolete for other reasons, such as those relating to the prohibition on duels, which the House will be pleased to know is no longer a problem under the Criminal Code, pretending to practice witchcraft, offences dealing with trading stamps, archaic sections that no longer serve the needs of contemporary Canada. Again, the government is correctly trying to remove these cobwebs from our criminal law.

That takes me to the main event, if I can call it that—and there are a number of others that I will come to—which are the sections dealing with reform of the sexual assault provisions of the code. The minister talked about making it, “more compassionate towards complainants in sexual assault matters.”

Many of the sections in the code address changes that the courts have made, using the charter, to address problems they saw with these provisions. These sections expand the code's rape shield provisions to expressly include communications for a sexual purpose or of a sexual nature. The rape shield provisions that were introduced after the Seaboyer case in 1991 limit the types of questions that defence counsel can pose, and evidence it can introduce concerning a complainant's sexual history.

This information had sadly been used in our legal system to promote a stereotype, that a complainant is more likely to have consented, or is less credible, because of past sexual history. In 2000, the court upheld the rape shield provisions as being constitutional.

The new changes in this bill appear to stem from criticism rising in the famous Jian Ghomeshi case, which attracted a lot of media attention and dealt with societal discussions about sexual assault prosecutions in Canada. As members may recall, that case involved text messages and social media content by the complainants.

Some defence counsel are concerned that this bill will limit the evidence they can use to offer a full and complete defence. Others believe that those concerns are overrated.

Lise Gotell, national chair of the Women's Legal Education and Action Fund, LEAF, stated that the amendments simply recognized more contemporary forms of sexual communication. I agree with her. If the evidence is used for the purpose of demonstrating inconsistencies, it can still be included if it is only used to perpetuate sexual stereotypes.

I want to quote Ms. Gotell, directly, “There is no implied consent in Canadian law...and so previous sexual activity should be irrelevant to a belief that someone is consenting to the sexual activity in question.”

That is the key. There is no implied consent in Canadian law with respect to sexual assault. Past sexual history or communications on the Internet or Facebook or the like do not imply any kind of consent to the specific activity at that specific time. The courts have made that clear, and I am pleased that Bill C-51 now makes that clear as well.

More than 20 years ago, in the case R. v. O'Connor, the court ruled that medical and counselling records of a sexual assault case could be disclosed by judicial order. The government limited these productions through amendments, and that was upheld. In 1999, the court stated in R. v. Mills that the judiciary had adequate discretion to preserve a complainant's right to privacy and also still allow for a full and complete defence for the accused.

Although the nature of electronic communications today might be different, the concepts remain the same. Sexual assault complainants, who are almost exclusively women, are still subject to widespread stereotypes and prejudice based on their sexual history. Salacious texts and steamy graphics may be communicated differently today, but they are just as dangerous to the balance of justice.

These provisions that deal with the sexual assault measures of a court make a number of specific changes in addition to the ones I outlined a moment ago. The bill would amend the section to clarify that an unconscious person is incapable of consenting. Most of us would have thought that would be self-evident, but there was court case that clarified that. To the government's credit, it has brought in a clarification to the same effect.

What about incapacity to consent short of full unconsciousness, such as when a complainant is very drunk or maybe only semi-conscious? There are those who have said that somehow by putting this in, we would be creating uncertainty over those sorts of situations: severe intoxication and semi-consciousness. I am not concerned about that, because I believe there are other provisions that would address those in the code. That is one point that was made in debate at committee and elsewhere about this legislation.

Then there is the other clarification brought into the bill, which would clarify that the defence of mistaken belief in consent is not available if the mistake is based on a mistake of law, for example, if the accused believed that the complainant's failure to resist or protest meant that the complainant consented. The court clarified that in a case that was decided in 1999. Let us say that the consent was extorted, for example, someone threatens to show the world nude pictures unless the individual consents to having sex. That is not consent, and that needs to be clear . It is now increasingly clear in this case.

One thing that is fascinating in this legislation, and very positive as well, is the ability of the complainant to have legal representation in rape shield proceedings. She, as it is normally a she, can then retain counsel to be present and debate before the court the admissibility of diaries, text messages, or the like. That sounds great, and it is a positive step, but the practical reality for most Canadians is that they will not be able to take advantage of that, because sadly we do not have the money to do so. There is a dearth of legal aid in most provinces. We have a crisis in legal aid. Therefore, it is nice to have that, but I have to ask a practical question on whether people will be able to avail themselves of that. Will women be able to participate as has been suggested?

Again, to give credit to justice committee, on October 30 of this year, an excellent report on legal aid was produced. I would commend members in this place to read that report, because it talks about legal aid in very stirring terms. It talks about a service that “breathes life into the democratic principle of the rule of law by ensuring that low-income Canadians have access to the courts.”

Once again, all three parties worked collaboratively to produce this excellent report. Of course, it is an acknowledgement that most of this is provincial jurisdiction, but, nevertheless, the leadership and best practices were suggested, and I commend the committee for that.

However, unless the Government of Canada assists provinces with more legal aid funding, this laudable section that allows women for the first time to actually participate in and have a right of natural justice in criminal proceedings involving the disclosure of intimate information in situations where sexual assault is at issue, most of the time it will be irrelevant unless those women have legal aid. Canadians need to understand that reality.

I am here to make sure that this place and the government look favourably at the excellent legal aid report that was produced, so it will not just be another report gathering dust on the shelves of Parliament. I believe that the provisions at issue were dealt with very thoughtfully and are not simply symbolic. I think the report includes meaningful changes and hope that the government will move on them and put its money where its mouth has been.

A number of people are in agreement with the provisions in the report. I speak, for example, of Professor Elizabeth Sheehy of the University of Ottawa, and Emma Cunliffe of the University of British Columbia. They talked about the right of legal representation in rape shield hearings as an important step, but said it would be largely ineffectual unless provincial legal aid programs provide financial support to complainants seeking to retain a lawyer. I agree.

On the streets where these amazing workers in rape relief and women's shelters work day in and day out, tirelessly with victims of sexual assault, they also have concerns. Hilla Kerner spoke for the Vancouver Rape Relief and Women's Shelter when saying, “Women who work with us were very discouraged after what we saw in the Ghomeshi case." The provisions in the bill will send a message, Kerner continued, that "your past, the things you did before the attack and after the attack, will not deter the criminal justice system from actually dealing with the attack and holding men accountable.”

That is a very good indication that the message will be received by those who were so involved in counselling women after sexual assault. However, the law has changed. It's better now. People can come forward and do not have to be afraid. That has to be the number one objective of these amendments, namely, that women will not be afraid will not not think it is a waste of time to come forward.

The Globe and Mail is doing excellent work in showing how few sexual assaults are actually processed seriously by police departments across the land. They did an update this past weekend of an earlier award-winning series.

We are at the very heart of that issue with this bill, making it easier for women to come forward because they know there will be fairness. They will be taken seriously and the laws will not work against them. I think that is excellent.

Not everyone has applauded Bill C-51 in its entirety, in these glowing terms. Michael Spratt, the vice-president of the Defence Counsel Association of Ottawa, refers to this bill as “another half-hearted attempt to reform the justice system by grabbing the lowest of the low-hanging fruit.”

It is true that the government's mandate letter for the Minister of Justice speaks to a comprehensive reform of the Criminal Code. It is so overdue. Nevertheless, I do not fault the government for going after low-hanging fruit, in addressing duelling and trade stamps, for example, or these sorts of provisions, because it is also doing real work in the sexual assault provisions. We have to support it and give credit where credit is due.

One hopes that there will be the comprehensive reform of the Criminal Code that Professor Coughlan of the Dalhousie University, Schulich School of Law, has been seeking. I think and am confident we will get there.

On the issue of sexual assault, I commend the government for what it is doing. On the issue of charter statements, I say ho-hum, nice, but so what? However, on this stuff, this key change to our Criminal Code to give women in this country the confidence that it is worth coming forward, the government needs to be commended. We will support this bill without reservation.

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

Madam Speaker, I am not so sure that I have a question, but rather a comment. I want to thank the hon. member for Niagara Falls for the work he did specifically with respect to section 176. I myself had notified over 30 churches within my riding of Barrie—Innisfil on the urging of the hon. member for Niagara Falls. Many of them were grateful for the fact that I notified them because they were not aware of the changes that were indicated in Bill C-51, specifically as it relates to religious services and religious officials. Therefore, I want to thank the hon. member for that.

I am not sure that I have a question. I know he is a humble man, and he would not want to accept any level of thanks for the work he has done in bringing this to light and making sure that all members of Parliament were able to bring it to the attention of the religious officials within their ridings as well.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Madam Speaker, I am pleased to rise in the House today to speak to Bill C-51. The stated purpose of the bill is to streamline the Criminal Code of Canada by removing certain provisions that no longer have any relevance in contemporary society.

I agree with many of the revisions, such as the removal of clause 41 of section 365 of the Criminal Code, which states, “Every one who fraudulently (a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration”; and clause 4, the removal of section 71 pertaining to duelling in the streets, “Every one who (a) challenges or attempts by any means to provoke another person to fight a duel, (b) attempts to provoke a person to challenge another person to fight a duel, or (c) accepts a challenge to fight a duel”. These are a number of the provisions to be removed.

I suppose the government may argue that the provisions against duelling have worked, because it has disappeared from our streets. Therefore, people certainly got the message a long time ago. Witchcraft and neighbourhood duelling no longer have any bearing on our society today. That is one point on which we can agree.

The Conservative Party is also aligned with the strengthening of the provisions of the sexual assault legislation and, indeed, has led the way for supporting victims of sexual assaults by, among other things, the private member's bill introduced by former Conservative leader, Rona Ambrose, Bill C-337. The bill would make it mandatory for judges to participate in sexual assault training and ensure awareness in the judiciary in addition to education about the challenges sexual assault victims face. Her bill was designed to hold the Canadian judiciary responsible for the ongoing training of judges and the application of law in sexual assault trials.

Essentially, Bill C-337 would ensure the following. It would require that lawyers receive training in sexual assault as a criterion of eligibility for a federally appointed judicial position; that the Canadian Judicial Council provide an annual report to Parliament on the details of the type of sexual assault training offered and judicial attendance at the training, as well as the number of sexual assault cases heard by a judge before having received adequate sexual assault training; and that judges provide written reasons on decisions with regard to sexual assault.

As we will remember, this bill was passed in the House of Commons, and we were all very grateful to see it passed. It is now in the Senate and I hope the Senate will get the message and move forward on the bill, which has the support of this chamber and, I believe, Canadians across the country.

We are pleased the Liberals have followed our lead with regard to strengthening sexual assault provisions in the Criminal Code surrounding consent, legal representation, and expanding the rape shield provisions. The Conservative Party always stands up for the rights of victims of crime and have done so consistently, among other things, including the Canadian Victims Bills of Rights passed in 2015.

Bill C-51 would amend, among other things, section 273.1 to clarify that an unconscious person is incapable of consenting. Again, as my colleague pointed out, this is a reflection of the Supreme Court of Canada's decision in Regina v. J.A. It proposes to amend section 273.2 to clarify the defence of mistaken belief if consent is not available and if the mistake is based on a mistake of law, for example, if the accused believed that the complainant's failure to resist or protest meant the complainant consented. This, as was pointed out in the earlier speech of the parliamentary secretary, codifies a number of aspects of the Supreme Court of Canada's decision in R v. Ewanchuk from 1999.

As well, the bill would expand the rape shield provisions to include communications of a sexual nature or communications for a sexual purpose. These provisions provide that evidence of a complainant's prior sexual history cannot be used to support the inference that the complainant was more likely to have consented to the sexual activity in issue or that the complainant is less worthy of belief.

In addition, the bill would provide that a complainant would have a right to legal representation in rape shield cases, which I believe is very important. It would create a regime to determine whether an accused could introduce a complainant's private records at trial, which would be in his or her possession. This would complement the existing regime governing an accused's ability to obtain a complainant's private records when those records would be in the hands of a third party.

As I mentioned at the outset, some proposed changes we were adamantly against. As it turns out, thousands of Canadians were also adamantly against the removal of section 176 of the Criminal Code, the section of the Criminal Code that provides protection for religious services.

I would be hard-pressed in my career to know when I have received more emails, or more petitions or correspondence than on this section. When Bill C-51 was first introduced, the government interestingly enough made no mention whatsoever of the fact that it would remove the section that directly protected religious services and those who performed those services.

I was a little taken aback when I read legislation and I saw the removal of section 176. Even though I have practised some criminal law in my career, I had to check exactly what section we were talking about and, indeed, this was the section that said among other things:

(1) Every one who (a) by threats or force, unlawfully obstructs or prevents or endeavours to obstruct or prevent a clergyman or minister from celebrating divine service or performing any other function in connection with his calling, or (b) knowing that a clergyman or minister is about to perform, is on his way to perform or is returning from the performance of any of the duties or functions mentioned in paragraph (a) (i) assaults or offers any violence to him, or (ii) arrests him on a civil process, or under the pretence of executing a civil process, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. (2) Every one who wilfully disturbs or interrupts an assemblage of persons met for religious worship or for a moral, social or benevolent purpose is guilty of an offence punishable on summary conviction. (3) Every one who, at or near a meeting referred to in subsection (2), wilfully does anything that disturbs the order or solemnity of the meeting is guilty of an offence punishable on summary conviction.

When the government did not mention this was what it would remove, I remember very clearly saying to my colleagues, when this first came up for second reading debate in June, that they should talk to their constituents and ask them if they thought this was a good idea to remove the section of the Criminal Code that directly protected religious services and if they were aware of the fact that the government now wanted to remove the special protection that members of the clergy had. I asked them see what the response was.

I think my colleagues in the Liberal Party must have heard the message. They would have heard the same things I heard when we brought this to everyone's attention. Interrupting a religious service is not the same as a scuffle, or yelling at a hockey game, or disruption of a meeting. Even people who do not attend religious services would agree that this is more serious. This is the message I certainly hoped the Liberals would get, that this section was and remained critical and removing it would have eliminated the provision that completely protected the rights of individuals to freely practise their religion, whatever that religion may be.

Ironically enough during the very week the justice committee was reviewing the government's plans to remove this, the worst mass shooting in Texas history struck an otherwise quaint small town in that state. Gunman Devin Kelley stormed the First Baptist Church in Sutherland Springs and killed more than two dozen people. The following Sunday, a funeral service was held at the church. The original plan was to hold a small service, but so many people were outraged and moved by this horrible incident that hundreds and hundreds of people came out to show their support for the people of the community. It reiterates the fact that religious freedom is part of the constitution of the United States and it is contained in the First Amendment.

In Canada, our religious freedoms are protected and section 176 of the Criminal Code is part of that protection. Religious freedoms are fundamental to Canadians as well, and the Conservatives are proud to be among the first to stand and support religious freedoms for all faiths.

Faisal Mirza, the chair of the Canadian Muslim Lawyers Association, made a point when he appeared before the committee. He said, “We cannot be blind that the current climate of increased incidents of hate, specifically at places of worship, supports that religious leaders may be in need of more, not less, focused protection.” He was referring to the deadly shooting at a Quebec mosque in January, when the lives of six people came to a violent end. Among the victims were parents, civil servants, academics, and people who had left their countries of war to seek a better life in Canada.

Religious crime knows no borders and has no respect of persons. This is why I am pleased to say that, after hearing testimony from faith communities across the country, justice committee members voted to keep section 176 of the Criminal Code in place.

I would like to thank those thousands of Canadians who wrote or emailed their respective members of Parliament. I indicated in my opening comments that I did not remember receiving as much feedback as did on this. I think all members have experienced the same kind of push-back on this, that the protections provided in section 176 are there for a particular purpose.

Again, I disagree with the comments made by my colleague, the parliamentary secretary, when he pointed out that the Minister of Justice said that these things were still offences under the Criminal Code. It is not the same thing. Disrupting a religious service is not the same as creating mischief somewhere and it is not the same as causing a disruption at a hockey game. Most Canadians would agree with us on this side of the House that this is more serious, and that it should continue to have protection within the Criminal Code.

Again, I find it ironic that when this bill was presented to the public, there was mention of duelling and witchcraft, but not one mention of the fact the government would remove the specific protection for religious services and religious officials.

There was one other section of the Criminal Code I did not agree with the Liberals removing. This is the section that has specific protection if someone attempts to attack the Queen. Some of my colleagues said that these sections were not used very often, or one of my colleagues said that the Queen would not be visiting here very much in the future. Again, I believed this was a bad idea.

When I was at the University of Windsor, I will always remember that one of my law professors pointed out the sections in the Criminal Code with respect to treason. He said that it was great this section was very seldom ever used in Canada, but it did not mean it should be removed. I do not go along with the thinking that if nobody commits treason, then we better get rid of that section in the Criminal Code. That is not how it works. This is still a very serious crime. Again, if anyone attempts to attack the Queen, as Canada's head of state, in my opinion it is not the same as getting into a fist fight at a bar some night. It is important; it has significant aspects.

I have to point out that the timing of this is terrible. This is the 65th anniversary of when the Queen took the throne. Nobody has a better record anywhere of public service in the world today than she has.

It has been consistently going on since before she assumed her reign in 1952 and in her service during World War II. That is what she has done, and again this is the year the Liberals decided they would remove this specific protection against someone who is attempting to attack her.

That being said, I am pleased that the government caved on section 176. I am very pleased with respect to the clarifications with respect to sexual consent. I am very pleased as well that a number of the sections that are taking up space in the Criminal Code that no longer have any particular relevance are being removed. However, one of the things that something like this has taught us on this side is we have to be very careful. This is the lawyer in me. We have to read the fine print, and the fine print removing the protection for religious services and religious officials is something that we have to be very aware of. I can assure my colleagues on the other side that we will look at all legislation to see if what are supposed to be unintended consequences are in fact consequences of a very serious nature. Again, my heartfelt thanks go out to all those religious institutions, all those Canadians, and all those individuals who spoke up in support of section 176.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Madam Speaker, what Bill C-51 does is to clarify that there are two separate sets of circumstances wherein consent to sexual activity cannot be obtained: first, when the complainant is unconscious; and, second, when the complainant is incapable of consenting for any other reason. This is entirely consistent with the Supreme Court of Canada's decision in the J.A. case, and it is backed by the experts who testified before the committee. The committee heard that evidence. It carefully debated it. It has referred all of its deliberations back to this House, with the adoption of the amendments that had been put forward.

I appreciate my colleague's question. However, I want to assure him and all members of the House that Bill C-51 codifies carefully enunciated principles by the Supreme Court of Canada in the decision of J.A., which clarify when consent is provided and, most importantly, when it is not.