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.

National Security Act, 2017

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

Madam Speaker, I thank the minister for his speech.

We are told that these changes to the provisions regarding Canadian Security Intelligence Service agents are about finding a balance between the Canadian Charter of Rights and Freedoms and the actions that agents can carry out under Bill C-51.

I would like the minister to explain to me how he thinks that the Canadian Charter of Rights and Freedoms might impact potential terrorists as compared to honest citizens. In his opinion, why is it important for such a balance to be achieved?

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

Thank you, Chair.

In the summer, when I first read through Bill C-51, my eyes passed right over section 176 being repealed. It didn't really cause much of an issue until I started receiving a trickle of correspondence, which has now evolved into an absolute avalanche.

At first, I was prepared to accept the government's argument that the offences in this part of the Criminal Code can most certainly be covered in other sections, but I think I've been absolutely convinced that it needs to be kept in the Criminal Code, simply because it has very significant symbolic value for the people involved. I have a pile of letters in my hand right now that were written to me by children who obviously feel this is very important to them. I'm really heartened by Mr. Fraser's amendment, because I think that as a committee we've listened to the evidence, the testimony, and I believe we've reached a consensus on this.

With respect to Mr. Nicholson's amendment, in looking at his and Mr. Fraser's, I do find Mr. Fraser's language a bit more inclusive, but I just love the fact, colleagues, that both of your amendments were reached in the same spirit. Thank you.

[Nathalie Levman]

This amendment codifies the legal principle that the defence of honest but mistaken belief in consent is not available if there is no evidence that a complainant has positively expressed agreement to the sexual activity, which can be done through words or conduct. The principle is clearly articulated in Supreme Court of Canada jurisprudence, which informed the drafting of this amendment.

Here are the examples that I would like to share with you today.

First, Ewanchuk clarifies that a belief that silence, passivity, or ambiguous conduct constitutes consent is a mistake of law and provides no defence. That's at paragraph 51. This principle, expressed in another way, requires the accused's belief to be based on something positive the complainant said or did. Ewanchuk also cites commentators who observed that the notion of consent connotes active behaviour. That's at paragraph 27.

Also, Ewanchuk notes that, as you've pointed out, for the purposes of the honest but mistaken belief in consent defence, consent means that the complainant has affirmatively communicated by words or conduct her agreement to engage in sexual activity. As you noted, that's at paragraph 49.

Furthermore, in R. v. J.A., the Supreme Court of Canada's 2011 case, the court noted that the definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity, and that's at paragraph 66.

The court's various articulations of the overarching principle that consent must be expressed positively inform the way in which this proposed amendment is drafted. Its objective is to codify with clear meaning.

It should also be noted that English and French versions of statutes are both authoritative but are not translations of each other. The French version uses the verb manifester, which is also the verb used in paragraph 49 of the French version of Ewanchuk. Unlike “express” or “communicate”—that verb in English—manifester clearly implies positive action or expression. The notion of positive expression is further highlighted by the phrase de façon explicite in the French version of C-51.

“Affirmatively expressed by words or actively expressed by conduct” conveys the same meaning, the meaning that the Supreme Court of Canada has articulated in various places throughout the jurisprudence—not just paragraph 49 of Ewanchuk—as well as in the French version, which is equally authoritative.

I would also note that in the LEAF submission, the Women's Legal Education and Action Fund, they have noted that it is their view that this does reflect a codification of this principle.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone.

It gives me great pleasure to welcome everyone today.

We are going to move now to our amendments to Bill C-51.

Today we have with us as a witness, Ms. Carole Morency, who is the director general and senior general counsel, from the Department of Justice's criminal law policy section, policy sector.

Welcome again. You're here almost every week now.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Okay, I don't have much time. In Bill C-51, the provisions in section 176, you said you'd like to see them left in the legislation. Is that all you need to say about that?

[Julia Beazley, Director, Public Policy, Evangelical Fellowship of Canada]

Our first recommendation for a whole-of-government approach is to take religious differences seriously. There are a number of ways to do this.

Study systemic racism and religious discrimination independently, and study their intersectionality. Race, religion, and culture are distinct, and yet they overlap. It is important to understand them discretely as well as how they intersect.

The government should make a sustained and transparent commitment to freedom of religion and to upholding it specifically rather than letting it be subsumed under the more general category of human rights.

Allow religious groups and religious adherents to hold their beliefs and to practise their faith without marginalization or penalty for doing so. This is a charter guarantee, but it is fleshed out in legislation, regulations, and policy. There will be pressure for governments to withhold services or benefits from individuals or organizations who dissent from common beliefs or who are out of step with mainstream attitudes. The government's task is to ensure that all are treated fairly and equitably. We need to have a robust conversation in Canada about whether government or government agencies should penalize individuals or institutions for beliefs or practices that are otherwise legal. Examples would include the ongoing debate over accreditation of Trinity Western's law school and over the wearing of the niqab in Quebec.

We shouldn't minimize differences of religious belief, because significant differences do exist. When we work together as multi-faith groups on issues of common concern, we each approach the initiative out of our own religious perspective. We find consensus for collaborative action drawn from the resources of our respective faiths. Tolerance and respect, for example, for evangelicals are not secular values. They are principles taught by our faith. This is true of other faiths as well.

Allow faith groups to bring their perspective to bear in public debate. This is an important part of what it means to be a free and democratic society. Government should not compel or coerce Canadians to act against their beliefs or to celebrate beliefs that are counter to their faith. We recommend that robust conscience protection be legislated so that no one is forced to act against their conscience or deeply held beliefs.

Pursue legislation that protects religious belief and practice. One example of legislation that provides this kind of protection is section 176 of the Criminal Code. This section should not be deleted, as Bill C-51 proposes, but rather maintained and amended to clearly protect all faith groups.

Second, a whole-of-government approach means engaging with religious groups directly. We encourage you, as parliamentarians, to make an effort to engage with faith communities directly and to listen to their perspective. You will find many points of consensus, and on many issues you will find them to be co-labourers. Consider establishing a forum for dialogue and co-operation to help foster relationships, improve co-operation, and dispel the stereotypes that cause misunderstandings. This might take the form of an annual dialogue between parliamentarians, ministers, and faith leaders, or establishing a multi-faith advisory group or council.

Encourage departments and ministers to seek advice and input on areas that intersect with religious beliefs in Canada from the faith groups who are involved in the policy arena. Recognize the breadth of these overlapping spheres of engagement, for example, caring for seniors, child and youth advocacy, refugee settlement, and caring for those experiencing poverty or homelessness, just to name a few. People who regularly attend religious services tend to be more generous in time and money to charitable causes. Regular worship service attendees are the backbone of charitable service. One task of a multi-faith council could be to advise on a range of issues.

Party leaders and representatives of government must model and promote respect. It is inappropriate to belittle or deride the beliefs of others. They should regularly meet with representatives of faith communities to help foster greater understanding and respect.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

We have not had a lot of testimony about Bill C-51 and clause 14. Now, you reference that.

Can you just give us a little more information about what you're talking about there? Bill C-51 has come before the House. I think it's at the justice committee right now.

Could you just reference your concerns about what's going on there?

[Don Hutchinson, Author, As an Individual]

Thank you, Madam Chair, for the opportunity to participate today. My comments will follow my written submission, which I understand was circulated last week.

Anti-religious discrimination in Canada has not been confined to any one religious community, and such incidents cannot be considered to be of greater or lesser significance based simply on which religious community is targeted.

While it is unfortunate that motion 103 highlighted one religious community, the motion did spark national debate and provided a mandate for this committee that goes beyond the concerns of or for any one religious community.

I will set aside comment on the use of the uncertain term “lslamophobia” except to suggest that the concern of this committee ought to be in regard to mistreatment of people from any and all religious communities. Islam is not a race. Muslims and people in any other religious community are from a variety of races. My comments will address the committee's study in regard to mistreatment of people based on their religion and reducing systemic discrimination based on religion.

Canada is a nation with a history steeped in religious tension, religious accommodation, and the development of robust political, legal, and constitutional principles in regard to freedom of religion, including prohibitions on discrimination based on religion.

A brief history of that religious tension and accommodation is set out in paragraphs 8 to 16 of my written submission, particularly noting the Constitution Act, 1867, did not assign responsibility for religion to either the federal or provincial governments, although both jurisdictions impact on religion. The federal government assumed a role in regard to religion through its criminal law and taxation powers. The provinces, through constitutional jurisdiction over civil rights, enacted human rights legislation that includes recognition of religious rights to belief, association, assembly, teaching, practice, and worship.

The Canadian Charter of Rights and Freedoms was included in the Constitution Act, 1982. The charter applies to all levels of government—federal, provincial, territorial, municipal, school boards, other government agencies—and Canadians.

The first freedom in the charter is freedom of conscience and religion.

In decisions on charter cases, the Supreme Court of Canada has affirmed several pre-charter legal concepts in regard to freedom of religion and religious accommodation, which are briefly described in paragraphs 17 to 20 of my written submission. In the charter, freedom of religion is intimately connected with the freedoms that follow in section 2.

Religion is also a stated ground on which discrimination is prohibited under section 15, equality rights. Section 27 requires the charter to “be interpreted in a manner consistent with the...multicultural heritage of Canadians”, which necessarily means a multi-religious heritage as well.

The Supreme Court has asserted a robust definition of freedom of religion that aligns with the UN Universal Declaration of Human Rights, stating:

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct.... The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

The court continues:

Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

The right applies to individuals, groups, and institutions because religion is practised both individually and in community.

Canada does not have a doctrine of separation of church and state, a constitutional concept in the U.S.A. The Supreme Court has ruled that the Canadian state is to be neutral in regard to religion, not permitted to act as arbiter of religious beliefs or to favour one religion over another. Nor is government permitted to require no religion in its relationship with Canadians. All Canadians are constitutionally welcome to participate in Canadian life from the perspective or world view that informs the way they choose to live, without fear of mistreatment or punishment for doing so.

Statistics Canada confirms that our nation's largest identifiable religious community comprises simply the largest minority religious community in the country. Catholics, including Roman Catholics, comprise under 40% of Canadians. We are a nation of minorities.

Data on hate crimes from 2015 notes that 35% of reported incidents were motivated by anti-religious bias. Of anti-religious incidents, 37% were directed against the Jewish community, which comprises 1.1% of the Canadian population, and 34% were directed against the Muslim community, which comprises 3.2% of the Canadian population.

This brief historical tour and commentary is offered in a context expressed by a Mi'kmaq friend. Look back to learn how the issue has been considered in the past, assess the status today, and then look forward seven generations to consider the future impact of actions taken today. Looking forward seven generations would take us from Canada 150 to Canada 300. If that seems a stretch, at least look to Canada 200—which will take place within the lifetimes of many in this room—rather than be overly concerned about scheduled federal elections in 2019 or 2023.

The following recommendations are made in the spirit of the Constitution Act, 1867's provision that the federal government “make Laws for the Peace, Order, and good Government of Canada”; the Constitution Act, 1982's description of Canada as “a free and democratic society”; and a whole-of-government approach.

Parliamentarians are encouraged to engage openly with people of various religious beliefs, and this includes connecting with faith-based organizations in the community and those participating in the process of policy development.

Continue to protect. Remove from Bill C-51 its clause 14, the proposal to remove section 176 from the Criminal Code. Section 176 protects the ability of religious officiants and congregations to celebrate religious services without threat, interference, or disruption. If the Criminal Code did not already contain such a provision, adding it would be the kind of recommendation anticipated from this committee.

Retain clause 30 of Bill C-51, the proposal to remove section 296, the Criminal Code's blasphemy section. Blasphemy laws in other nations have led to persecution of religious and non-religious minorities, counter to the values of a free and democratic society. In Canada, all beliefs and practices, religious and non-religious, must be open to critical evaluation and peaceful dialogue, debate, and dissension.

Retain Criminal Code provisions dealing with hate propaganda and with mischief relating to religious property.

Move from protection to promotion. Seek opportunities to educate Canadians about our constitutional and legislated positions on religious freedom. It is important to move from the protection of rights to the promotion of understanding rights.

Ensure religious representatives are participants in appropriate government activities, including public events and situations such as donation matching for emergency disaster relief. Continue working with religious organizations whose work provides public benefit. Maintain and develop appropriate historical markers that recognize the contribution of religious individuals and communities to the development of the nation. Continue to collect and share data in regard to religious observance by Canadians.

The Government of Canada is encouraged to hold a first ministers conference with an agenda committed to the promotion of religious freedom.

The Government of Canada is encouraged to establish guidelines that facilitate faith-based activities across the public service with consistent application within all government departments. Encourage Canadians to continue support of religious and religiously based organizations that provide public benefit, including by means of the personal tax credit.

Continue to provide a well-funded chaplaincy for inmates in Canadian prisons and members of Canada's military. Continue military briefing on religion relevant to their theatres of engagement.

Re-establish the Office of Religious Freedom or a similar dedicated office. Matters of political theology and religious literacy are essential to global engagement.

Re-establish the annual Global Affairs consultations, where representatives from religious and other communities of concern may comment on developing global situations.

Canadians are affected by religious freedom challenges and systemic religious discrimination that happens in Canada and globally, requiring a whole-of-government approach.

Thank you, Madam Chair.

Criminal Code

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Speaker, I rise in the House today to address the importance of religious freedom in Canada. I am concerned, because the government has introduced Bill C-51, and while I generally agree with many of the revisions to the Criminal Code, repealing section 176 is not one of them.

Section 176 is the only section of the code that directly protects the rights of individuals to freely practice their religion, whatever that religion may be. I am reminded of Prime Minister John Diefenbaker, who proudly said:

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.

I call upon all Canadians to join me in asking the government to keep section 176 in the Criminal Code. The unhindered right to worship is one of the foundations of our democracy and should have the support of everyone.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair. I'll be sharing my time with Mr. McKinnon.

I have one quick question for the Canadian Civil Liberties Association. Most of the discussion today is about section 176 of the Criminal Code, but of course I'd appreciate your comments with regard to other provisions in Bill C-51, including the sexual assault provisions and changing the process for a records hearing.

I want to challenge you on something, though. You said that the obligation on the accused would now require disclosure made in advance of actually hearing the crown's case. I don't know where you get that from. I've heard similar arguments from other witnesses who were before this committee.

As far as I can tell, proposed subsection 278.93(4), where it deals with that section, indicates that there would need to be seven days advance notice or a “shorter interval” if the judge deems it necessary, but in no way would that cause the accused to not be able to hear the crown's case before being able to decide to make such an application.

Maybe you can help me understand why you have indicated that.

[André Schutten]

I'd say it's both/and. I would submit that most Canadians don't know what's in most of the Criminal Code. We're not going to toss out most of the Criminal Code just because people don't know about it.

I have been advising pastors who have called me about this. It doesn't happen often, but just in the last year I've had probably two or three call with concerns about people protesting their worship service, and I've pointed them to section 176. Even though they don't know the Criminal Code, there are lawyers who do, and they can assist in that way.

Certainly, I think this hearing on Bill C-51 has raised awareness about the reality of section 176, so now the question is, because so many people and so many religious leaders do know about it, what is the signal going to be if this committee deems not to amend section 176?

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

You had a very clear briefing note, and you indicated in your testimony all the sections that your organization believes covers off section 176, should it be repealed. I'm interested in how your organization came to the conclusion that, with all the other provisions you mentioned, it's okay for Bill C-51 to take section 176 out of the Criminal Code.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Having heard from the Church Council on Justice and Corrections on all the other sections in the Criminal Code that provide protection, and given the fact that section 2(a) of the charter protects religious freedom, what specifically would put Jewish religious leaders or Jewish communities at risk if section 176, as it is now, were repealed as is proposed in Bill C-51?

[Ted Falk, Conservative, Provencher, MB]

Not of an actual service. Regardless, I would like to move on.

This is an issue that my constituents have spoken really clearly to me about. It comes broadly from across my constituency. I've received a lot of correspondence from outside of my constituency as well on this issue. Folks are just not happy with repealing this particular section of the Criminal Code. They believe it's the one explicit protection that all faiths have under our Criminal Code, that all clergyman or ministers of a faith have.

I would just like to ask Mr. Schutten something briefly.

I know you support section 176. You would like to see it excluded from Bill C-51 moving forward. Are there any amendments you would suggest?

[Dr. Rebecca Bromwich, President, Church Council on Justice and Corrections]

My name is Rebecca Bromwich. I am appearing on behalf of the CCJC, the Church Council on Justice and Corrections. My colleague Melanie Younger is here with me.

I'd like to thank the honourable members of this committee for providing us the opportunity to appear this afternoon.

We have provided a written submission, which I will touch on in overview form, but I will not get to all aspects of it. Primarily, we are here to strongly support the changes to sexual assault law proposed by Bill C-51.

We are an organization founded in 1972 by 11 Christian denominations, and we operate independently from any one of our bodies. We welcome multi-faith and secular-minded participation, and we are an ecumenical organization. It is our mandate to shine a light on restorative justice. It is our understanding that the job of justice is a community responsibility, and members of the community, including complainants, are important to be considered in the context of any criminal proceeding.

It is in this thematic trend that we strongly support changes that are put forth in Bill C-51 to amend the Criminal Code to clarify and codify what was rendered in the J.A. decision of the Supreme Court in 2011, that an unconscious person is incapable of consenting to sexual relations, and to clarify that the defence of mistaken belief in consent is unavailable in instances of mistake of law, and again, this properly codifies aspects of the Supreme Court's decision in Ewanchuk, decided in 1999. The expansion of rape shield provisions is something we also support. We also support the expanded rights to legal representation for the complainant in sexual assault proceedings.

Again, we feel it is of crucial importance that compassion for all members of Canadian society and community, including complainants, whether they be children, men, or women, is of value, and their interests and views need to be brought to the attention of the court. We contend or submit that this legislative proposal strikes the appropriate balance with the rights protection for accused persons who continue to have the presumption of innocence and the right to full answer in defence. We would submit that this is minimal impairment upon those rights that is very much justified in a free and democratic society under section 1 of the charter in the interests of fairness and compassion to complainants.

On the other provisions put forth in Bill C-51, we also support and are in agreement with the justice minister that the articulated provisions are redundant or obsolete, including specifically—as I've heard mention in an earlier panel this afternoon—section 296, with respect to publishing blasphemous libel. We certainly support the removal of that provision.

In addition, and this is a position we take to some degree in dissent from some faith-based commentators who have spoken as witnesses this afternoon, we are in support of the removal of section 176 from the Criminal Code for essentially three reasons. Section 176 provides relief that is otherwise covered in the Criminal Code by section 175, which prohibits public mischief; sections 265 through 268, which are the assault provisions; and sections 318 and 319, which deal with hate speech.

It is a concern that, second, section 176 potentially criminalizes forms of dissent that fall short of mischief. I would submit that it would have, for example, criminalized the conduct of Martin Luther when he nailed his 95 theses to the wall 500 years ago tomorrow. So it is problematic that we continue to have a criminal prohibition that would criminalize forms of dissent within a religious context. Dissent is not necessarily anathema to religious practice.

Third, section 2(a) of the charter requires that the Christian paradigm not necessarily be the template for our protection of freedom of religion. For example, my colleague Melanie and I were discussing it in the context of other forms of faith-based practice, for example, indigenous celebrations or Wiccan celebrations or other forms of celebrations. Even among Quakers, for example, there isn't necessarily an officially designated officiant who has that ongoing job or role, so the protection in subsection 176(2) of an officiant is not necessarily applicable across the board.

Rather than amend a seriously flawed provision, we would submit that it is appropriate to protect religious communities and their services. An entirely new provision or, as has been submitted by Mr. Matas on behalf of B'nai Brith, provisions with respect to sentencing would be appropriate in this context. However, we do not believe that a provision so seriously flawed should be retained, and we agree with the justice minister that it is appropriate for that provision to be removed.

Finally, we applaud the provision in C-51 that would amend the Department of Justice Act to require the justice minister to table a charter statement. We would like to go beyond that. We would like the scrutiny that has been undertaken with respect to the Criminal Code in this bill to be formalized and regular rather than ad hoc. We submit that it would be appropriate to reinstitute a law reform commission in some form so that this process will continue.

I will have to amend my textbook when the provisions with respect to blasphemous libel and crime comics are taken out, but I'm happy to do that work. I would rather have our Criminal Code be right than to criticize it.

Thank you.