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.

[Cara Zwibel, Acting General Counsel, Canadian Civil Liberties Association]

Good afternoon, Mr. Chair and members of the committee.

My name is Cara Zwibel, and I'm the acting general counsel of the Canadian Civil Liberties Association. My colleague Victoria Cichalewska is with me. She's our articling fellow.

On behalf of the CCLA, I would like to thank the committee for the opportunity to appear before you in relation to your study of Bill C-51, a bill with a number of important ramifications for our justice system and in particular on rights and freedoms that are protected by the charter.

CCLA has recently put in written submissions to the committee, which will set out our position on a number of aspects of the bill, some of which I will not have the opportunity to address in detail today. I intend to focus the few minutes I have on two of the proposed changes to the sexual assault provisions of the Criminal Code and on the proposed change to the Department of Justice Act.

Before doing so, I want to acknowledge that CCLA is very supportive of the government's efforts to bring the Criminal Code up to date and to get rid of laws that are obsolete and archaic, particularly those that violate the rights and freedoms of Canadians and that have been struck down by our courts.

On this point, CCLA supports the bill's repeal of the blasphemous libel offence that submits that seditious libel and defamatory libel also give rise to significant freedom of expression concerns. Defamatory libel, in particular, has frequently been used to silence critics of police officers, correctional officers, judges, and lawyers. In our view, those offences should be added to the list of repealed provisions included in Bill C-51.

Moving on to the sexual assault provisions, CCLA shares the government's concern for the treatment of sexual assault complainants and victims, and we understand that the purpose of these provisions, according to the government, is to ensure that victims of sexual assault and gender-based violence are treated with the utmost compassion and respect.

However, it is not at all clear, in our view, that amendments to the Criminal Code are the best way to achieve this goal. Indeed, there are limits on what the criminal law can be expected to do. In a criminal trial, it is the accused that faces a loss of liberty at the hands of the state, and the accused who must have the benefit of the presumption of innocence and the right to make full answer and defence. We cannot dilute those protections in the hopes of showing victims more compassion.

I first want to deal briefly with clause 21 of the bill, which would amend section 276 of the code, commonly known as the rape shield provisions, by expanding the definition of “sexual activity” to include “communication made for a sexual purpose or whose content is of a sexual nature.”

While we appreciate the rationale underlying this proposed expansion, we have some concerns about the breadth of the language and how a broad interpretation might infringe the accused's right to make full answer and defence, as well as require the accused to disclose significant pieces of the defence case and strategy in advance of the trial. That's addressed more fully in our written submission, but we propose that one helpful amendment would be to clarify that communications between the accused and the complainant regarding the sexual activity at issue in the case should be explicitly excluded from the rape shield provisions.

I want to deal with clause 25 of the bill in a bit more detail. This clause creates a new provision, proposed section 278.92, which would require the accused to apply to the court to adduce certain records relating to the complainant or a witness where those records are already in the accused's possession. This is an expansion of the existing third party records regime, which seeks to balance the accused's right to make full answer and defence with the rights of complainants and witnesses to privacy, personal security, and equality. In our view, the addition of records in the accused's own possession to this special evidentiary regime tips the balance too far and unreasonably limits the constitutionally entrenched rights of the accused.

This amendment clearly places disclosure obligations on the accused, a novel departure in the Criminal Code and one of which we should be very wary. The disclosure will have to be made in advance, before the defendant has heard the crown's case against him or her. In recognition of the right to silence, the presumption of innocence, and the fact that the crown bears the burden of proof in a criminal prosecution, there has never been reciprocal disclosure obligations on the accused in this way.

The government has suggested that this change would be upheld by our courts on the same basis as the third party records regime in R. v. Mills . In our view, this argument is fundamentally flawed. First, there's no seizure involved under section 8 when the records are already in the accused's possession. This is something that was considered significant in the Mills case. Second, the concern about using the third party regime to go on a fishing expedition into the private life of the complainant or witness does not arise.

The definition of records is broad, particularly as applied to both complainants and witnesses, and is likely to give rise to significant litigation. In our view, this addition to the evidentiary rules at play in sexual assault cases violates the accused's constitutional rights to silence and to make full answer and defence, in a manner that cannot be justified.

In our view, the government should be focusing on other ways of protecting and respecting complainants rather than amending what is already a progressive and protective law. The flaw may be in the application rather than in the text itself.

Finally, I would like to address clause 73 of the bill, which amends the Department of Justice Act. The CCLA has been involved in advocacy related to section 4.1 of the Department of Justice Act for several years, including through our intervention in the case of Edgar Schmidt v. The Attorney General of Canada at both the Federal Court and the Federal Court of Appeal.

We also undertook a substantial project to consider what new checks and balances could be introduced into our federal legislative process to raise the standard of charter compliance of bills tabled and passed in Parliament. In our written submissions, I've included a link to our full “Charter First” report, which sets out our recommendations in detail.

At present, section 4.1 of the Department of Justice Act requires the minister of justice to report to Parliament when he or she finds government legislation to be inconsistent with the charter. However, the current interpretation of that provision is that the minister need only report when there is no credible argument to support a bill's constitutionality. In practice, this has meant that not a single report relaying concerns about charter compliance has ever been made to Parliament.

Significantly, the government has sometimes used the provision as a shield during the legislative process, suggesting that the absence of a report by the minister indicates that a bill is charter compliant.

The proposal contained in Bill C-51 is that a new section 4.2 would be added to the act, requiring the minister to issue a charter statement in relation to all government bills tabled in Parliament. The statement would identify any charter rights and freedoms that might be engaged by a bill, briefly explain the nature of the engagement, and identify any potential justifications for any limits a bill may impose on charter rights and freedoms.

The CCLA has recommended that charter statements be tabled in Parliament. However, we've called for a much more detailed statement than is contemplated in this bill. In our view, the statement should set out the government's principled position that each new bill proposed is, on a balance of probabilities, in compliance with the purposes and provisions of the charter. The statement should include a discussion of the legal tests, factors, and reasonable alternatives that were considered to reach the conclusions drawn, and should include references to any relevant or contradictory precedents and norms.

Absent this kind of requirement, charter statements will amount to little more than public relations exercises for the government. While we appreciate that the current Minister of Justice has issued charter statements in relation to a number of recent bills, with respect, these statements have lacked the rigour, detail, and depth of analysis required by members of Parliament and the public in order to meaningfully consider the constitutional implications of proposed legislation.

I will refer the committee to our “Charter First” report to see our other, more wide-reaching recommendations, including items that would touch on private members' bills and Senate public bills in addition to government bills. We continue to believe that significant reform on this issue is needed, and we would welcome the opportunity to continue to engage with the government and this committee on this issue.

While we do not believe that proposed section 4.2 is sufficient, it would be substantially improved if it were amended to ensure that charter statements are much more detailed, in order to truly assist Parliament and the public in assessing the constitutional implications of proposed legislation.

I look forward to answering your questions. Thank you again for the opportunity to appear.

[André Schutten, Legal Counsel and Director of Law and Policy, Association for Reformed Political Action Canada]

Good evening, everyone. Thank you so much for having us.

My name is André Schutten. I'm the director of law and policy with ARPA Canada. With me is Tabitha Ewert, my articling student.

It's a pleasure and a privilege to be able to speak to you this afternoon. I want to thank you, honourable members of the committee, for the hard work you do. It's very much appreciated by the community I represent.

Our concern lies with section 176 in clause 14 of Bill C-51. Perhaps there is a bit of ignorance here, and I don't mean that in a derogatory sense; I mean it simply in the sense that there is a lack of familiarity with what happens in a religious service. Perhaps that's what's motivating the recommendation to remove this section from the Criminal Code.

What actually happens in a religious service, I submit, is that it's an encounter with the divine at a time of vulnerability, which sets it apart as being different in kind from any other public encounter or event, such as a university lecture, a rally in a public park, or, dare I say, even a hockey game here in Canada. A reading from Torah in the synagogue, a prayer service in a mosque, a song in a Sikh temple, or a worship service in a church—all are communal events that involve an encounter with the transcendent that sets these kinds of events as apart, as being different in kind from university lectures and so on.

Some have suggested that causing a disturbance is already covered by the Criminal Code. Section 175 has been brought up a few times already today. That causes me some concern. Surely the members of this honourable committee are familiar enough with the protests happening at university lectures across this country where a lecturer is shouted down because people disagree with the opinions he or she might be sharing in this lecture. Police or security will happily sit back and watch that protest disrupt the university lecturer for 10, 15, or 20 minutes, or perhaps for an hour or more. We submit that if that were to happen in a religious service, that would be a massive blow to religious freedom in this country. Certainly it would be a huge harm to religious worship across the board.

Perhaps it would be helpful to give you an analogy. It's not a perfect analogy, but it's one that I have found helpful. Imagine somebody came to this committee and said, “You know, we really do have to simply the Criminal Code. It is a bit cumbersome. It's pretty long. Why don't we get rid of all of those other types of assaults in the Criminal Code? We already have assaults prohibited in section 265. Let's get rid of sexual assault law as prohibited in sections 271, 272, and 273. We don't need it. It's already covered under assault. Sexual assault is a type of assault. No biggie. Let's just clean up the code.”

Obviously, I think everyone here would right away agree with me that, no, there's something different in kind with sexual assault. Sexual assault is different in kind from assault simpliciter, and therefore we need both provisions to be in the Criminal Code. We're deterring two different things here.

It's not a perfect analogy, but I think it is analogous to what we're talking about here with section 176. Religious services are different in kind from a university lecture or a rally in a public park.

We've been talking with other faith communities across the board here in Canada. We've talked with Muslim leaders, Jewish leaders, Buddhist leaders, and Coptic, Catholic, and Protestant. We worked on drafting an open letter to the justice minister sharing our concerns. I respectfully request that we be able to table that letter with this committee, once we have sent it to the justice minister, if the committee would be willing to consider it as well.

We'll try to get it to you before noon on Friday, Mr. Chair, if that's okay. I can certainly forward that as soon as it's available.

I have two other points. One is that in the written submission we provided earlier to the clerk of the committee, we made some line-by-line recommendations for amending section 176 to address some of the concerns the justice minister raised when she was interviewed by this committee. I think the section can be cleaned up. We recommend cleaning it up and not keeping it as is. I'd be happy to entertain any questions from the members on our recommendations.

Finally, I want to address the question that came up today about equality in section 15 of the charter. The charter protects equality, obviously, but it does not mean that the law, that Parliament, needs to treat everybody exactly the same all of the time. That would be called “formal” equality, and that doctrine was rejected by the Supreme Court under a section 15 jurisprudence. Instead, section 15 protects something called “substantive” equality.

We have a case in our case law going back to the 1960s or 1970s in which a woman was denied unemployment benefits because she was pregnant. The Supreme Court at that time said, “Well, you're not being discriminated against; you got yourself pregnant and the law is actually even. As long as you're not pregnant you get the unemployment benefits.” The Supreme Court actually ruled against the pregnant woman. Post section 15 being implemented in 1985—actually, it was implemented a few years after the charter was passed in 1982—the Supreme Court rejected that idea. It said we need substantive equality, which is different from this formal equality.

If some people in Canada do not identify as religious, if they do not encounter the divine in religious celebrations and services, that's fine. But that does not mean that we have to delete section 176 so that they feel equal to the rest of us who do encounter the divine in religious worship. Instead, what we do is still protect those who have religious experiences in community through religious worship, and for those who don't use it, that's fine. If they don't need that kind of protection, then it's there for those who need it.

Subject to any questions from the committee, those are my submissions.

Thank you, Mr. Chair.

[Brian Herman, Director, Government Relations, B'nai Brith Canada]

Mr. Chairman, we thank the committee for inviting us to appear. My colleague David Matas, our senior legal counsel, will elaborate on some of our key points, particularly on the legal issues.

B’nai Brith Canada is this country’s oldest national Jewish organization, founded in 1875, with a proud history of defending the human rights of Canadian Jews and all Canadians across the country. We advocate for the interests of the grassroots Jewish community in Canada, and for their rights, such as freedom of conscience and freedom of religion.

I want to provide some context. On October 18, we testified before the Standing Committee on Canadian Heritage in its study of Motion M-103 on systemic racism and religious discrimination. We noted that since 1982, B’nai Brith Canada has published the “Annual Audit of Antisemitic Incidents” in Canada, copies of which I understand are available to the committee.

Over a five-year period, anti-Semitism has been on the rise. Statistics Canada has reported that in 2015, the most recent year with complete figures, Jews were the most targeted group in this country for hate crimes, a serious trend that has been ongoing for nine years. Our hope is that the committee will continue to bear in mind that Canada’s most targeted religious minority in terms of hate speech and hate crimes is the Jewish community.

We have followed closely the government’s initiative to modernize the Criminal Code, including its plans to deal with provisions that are considered out of date or redundant. Our focus has been, as you've heard this afternoon from other groups, on the intention to repeal section 176. We have received approaches from Jewish community members about this, and we seek to represent them. They have raised questions about this intended repeal of section 176 and whether it represents a weakening of provisions in the Criminal Code that protect faith leaders, religious gatherings, and places of worship.

Section 176, although not perfect in language, provides clear penalties for those who threaten or interfere with faith leaders during religious ceremonies, or who interrupt or disrupt religious gatherings. We have concerns over repeal of section 176, in the context of the signal that such a step would convey in today’s environment where anti-Semitism remains a serious challenge, and where Canadians have been witness to acts of intimidation directed at religious institutions and leaders, and not just those from the Jewish community.

We've had very productive exchanges with officials who have been working on Bill C-51's provisions. We have welcomed their assurances that there is no intention to decriminalize the behaviour set forth in section 176 of the Criminal Code. It has been explained to us carefully that there are other Criminal Code sections that would apply with equal penalties, and we have noted the assurances expressed carefully by the Minister of Justice on this point. We acknowledge these assurances, but believe that, in today’s context, we must exercise great care in taking actions that can be misinterpreted, however well intentioned. In short, we believe it is in the interests of Canadians that there be no vacuum.

We believe that the protections and the penalties for actions captured in section 176 must remain clear and unequivocal, such that they meet the requirements of contemporary Canadian society. One option we believe could be considered is to retain section 176 with modernized language. There could also be examination of strengthening and amplifying the applicable sentencing guidelines. I believe Mr. MacGregor raised this in the last section.

My colleague David Matas will elaborate on our position, but I want to thank you, Mr. Chairman.

B’nai Brith Canada assures the committee members that we wish to contribute constructively as your work proceeds. Thank you.

[The Chair, Liberal, Anthony Housefather]

We are reconvening with our third panel of the day. I would like to thank the witnesses for coming forward.

Before we begin, I want to advise members of the committee of our deadlines for amendments for Bill C-51. I see that Mr. Nicholson is not here, so I will speak to him privately. The deadline for amendments will be Friday, November 3, at noon. Everybody will receive the amendments on Monday, and we'll do our clause-by-clause consideration next Wednesday.

I want everyone to know the deadlines. I'll repeat them at the end of the meeting. It's Friday by noon for amendments, distribution on Monday, and clause-by-clause study next Wednesday.

On the third panel of the day, I am very pleased to welcome, from B'nai Brith Canada, Mr. Brian Herman, the director of government relations; and Mr. David Matas, senior legal counsel.

We also have with us the Association for Reformed Political Action, represented by Mr. André Schutten, legal counsel and director of law and policy; and Ms. Tabitha Ewert, who is an articling fellow. Welcome.

By video conference we have the Canadian Civil Liberties Association, represented by Ms. Cara Zwibel, the acting general counsel; and Ms. Victoria Cichalewska.

Finally, we have the Church Council on Justice and Corrections, represented by Rebecca Bromwich, president; and Melanie Younger, coordinator. Welcome.

We're going to go in the order of the agenda, starting with B'nai Brith Canada.

Mr. Herman and Mr. Matas, the floor is yours.

[H.E. Lionel Gendron]

Good afternoon.

The Catholic Bishops are troubled by clause 14 of Bill C-51, which proposes to repeal section 176 of the Criminal Code. What gives rise to this concern? As mentioned in our submission, we believe attacks on religion are not like other attacks against public safety. They are not only more grave but threaten the essence of democracy itself.

This is because religious freedom is the cornerstone of human rights. We all ask questions about the meaning and purpose of life. Sometimes this includes questions about God or the divine. In all cases, we want to know the truth and, when we believe we have found it, we want to hold on to it and even to speak about it. The human person understood as a seeker of truth is the basis, thus, for religious freedom, for freedom of conscience, and indeed for freedom of speech. Where religious freedom abounds, democracy flourishes.

While religious freedom has special protection in Canada thanks to the Canadian Charter of Rights and Freedoms, section 176 of the Criminal Code is a deterrent and educator concerning particular threats with which faith communities can be faced. If the recent rise of hate crimes and prejudice against religious believers in Canada is any indication of the dangers that lie ahead, the removal of this clear and unequivocal section of the Criminal Code will make it harder to protect millions of Canadians who are active members of their faith communities.

Section 176 emphasizes and reinforces our shared belief in and respect for the freedom of religion and maintains an indispensable link between the Criminal Code and the protection of fundamental human rights.

Are other sections of the Criminal Code capable of providing the protections that section 176 extends? I would answer no. Even section 175, which prohibits causing a disturbance in a public place, fails to do so adequately. The very specific items named in that section actually exclude a whole range of conceivable acts that could constitute the disruption of a religious service.

Furthermore, as regards ministers of religion, to protect them from being obstructed in the performance of their duties or from assault is not to protect some ostensible elite status; it is to protect the community of faith by ensuring that the exercise of religious freedom is not impeded by acts of violence or threats that are directed against its faith leaders.

In Canada, people of many different faiths can live together and gather for worship without threat, hindrance, or intimidation. In order to preserve this kind of society, the Canadian Conference of Catholic Bishops urges Parliament to amend Bill C-51 so as to retain section 176 of the Criminal Code.

I am not a lawyer, but Bruce Simpson is here with me today, and he is a criminal lawyer who can shed a lot of light on all those points.

Thank you.

[Dr. Janet Buckingham, Professor, Laurentian Leadership Centre, Trinity Western University, As an Individual]

First of all, thank you very much to the committee for inviting me. I think this is a very important topic, and I'm very pleased to participate.

I'm a university professor with a research specialization in religious freedom. I have to admit that when I first saw clause 14 of Bill C-51, I thought it made sense and that section 176 isn't really needed that much in Canadian society. However, I just came from a meeting at the other end of the hall, with the heritage committee, where they're considering private member's motion M-103. That resulted from six men being murdered after Friday prayers at a mosque in Quebec City in January of this year. This incident provoked widespread shock and concern, particularly because it was at a religious service.

This section of the Criminal Code was not used in that particular case, because obviously the crime was much more egregious than disrupting a religious service. The point is, down the hall, a committee is considering what recommendations to make for a national strategy to combat systemic racism and religious discrimination, while this committee is considering dismantling a part of the Canadian law that might be a part of that strategy.

When someone wants to target religion, he or she does not spray-paint anti-Jewish comments on a bridge but on a synagogue. This happened in the city of Ottawa just last year. A mosque and a United Church were also targeted. The church was particularly targeted because its pastor is black, so it was an issue of racism in that case. If someone wants to target a religious group, it is the house of worship, be it a synagogue, a mosque, a church, or a temple.

Let me be clear. The freedom to worship is protected by section 2(a) of the charter, guarantee for religious freedom, and it is important to protect sacred spaces. If there are people or groups who seek to protest a religious group, they will demonstrate or protest near a house of worship, potentially disrupting a religious service. Do worshippers and sacred spaces not deserve protection?

We have seen a rise in hate crimes on the basis of religion in Canada. The most recently reported hate crimes on the basis of religion are from 2015. Those against Muslims increased by 60%, an increase from 99 to 159. Catholics also experienced an almost 60% increase, from 25 to 55. However, the number of police-reported hate crimes motivated by religion remains highest for Jews in Canada. With close to 500 reported hate crimes on the basis of religion, why would Parliament remove protection for religious services? It does not make sense.

I also note the new legislation in Quebec, BIll 62, that bans Muslim religious practice. Women who wear a niqab, a face veil, will not be able to access public services, including riding on public transit. In the face of government intolerance toward a particular religion, it is particularly incumbent on this government to maintain protection for religious services.

I note that this section of the Criminal Code faced a charter challenge in a case decided in 1985. The challenge was on the basis that this section violates freedom of expression and freedom of religion. Joseph Reed disrupted a Jehovah's Witness service and was charged under this section. He claimed a violation of his freedom of conscience and religion and freedom of expression. The British Columbia Court of Appeal said, “ In my opinion, recognizing as it does the competing nature of the demands for religious freedom, freedom of conscience and freedom of expression, s. 172(2)”—as it was then; it's been renumbered since—“meets those competing interests in a balanced way and I am not persuaded that it is unconstitutional or that it should not apply to Mr. Reed in the circumstances of this case.”

The Minister of Justice appeared before this committee a couple of weeks ago and argued that this section is outdated because it refers to Christians. I do not see any reference to Christianity or churches in this section, and I further humbly suggest that it is within the power of Parliament to amend outdated wording. There is no need to remove the section in its entirety because the language is antiquated. There are many sections of legislation that use outdated language. It is a worthwhile project to amend these sections, but I urge you not to repeal all legislative provisions that use outdated, non-inclusive language.

The courts seem to have been able to broaden Christian language without difficulty. In 1993, the Supreme Court of Canada addressed an issue that involved what was called priest-penitent privilege. The Supreme Court used the terminology “religious communication” throughout the ruling. The court had no difficulty in adapting rules developed for the Roman Catholic confessional to a different religious context.

In its IT bulletin regarding the clergy residence deduction, the Canada Revenue Agency includes priests, pastors, ministers, rabbis, imams, and others formally recognized for religious leadership in its definition of clergy.

This section has not been struck down by the courts as offending the charter. It is still in use. There are reported cases from 1999 and 2005, and you've already heard about the current charge in Ottawa earlier this year. It is still relevant. It is still needed. I would urge you to consider an amendment to this legislation to remove clause14. I also have some recommended language should you choose to recommend that section 176 of the Criminal Code be amended.

Thank you.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Okay. Thank you very much.

To the Canadian Council of Churches, you were taken a little bit by surprise, I take it, by the removal in Bill C-51 of section 176; I can tell you that I was myself. To be fair, I watched very clearly, and in the press releases, the scrums, etc., there was no reference whatsoever to the fact that the protection of religious ceremonies was being taken out of the Criminal Code. I had to find it for myself, quite frankly.

A number of your members were taken by surprise, but basically, you still support the idea that disrupting a religious service and threatening those who conduct religious services is a serious matter that should be protected within our Criminal Code?

[Bruce Clemenger]

Finally, and significantly for many faith communities in Canada, the removal of section 176 would communicate a lack of understanding and appreciation for the value and uniqueness of religious gatherings. Religious gatherings are distinct in character and purpose. They're not just like any other public gatherings or assemblies of persons, and an attack on a religious official or religious gathering is also distinct in nature and purpose.

We submit therefore that it's not only valid but an important objective for Parliament and the Criminal Code to continue to treat them as such. As the “Rapporteur's Digest on the Freedom of Religion and Belief” notes, “members of religious communities or communities of belief, whenever they find themselves in places of worship, are in a situation of special vulnerability given the nature of their activity.”

An offence against people at worship reverberates through the community and touches every member. An offence against one faith at worship has an impact on all religious adherents. The Special Rapporteur on Freedom of Religion and Belief also notes “attacks or other forms of restriction on places of worship or other religious sites and shrines in many cases violate the right not only of a single individual, but the rights of a group of individuals forming the community that is attached to the place in question.” Our faith and every other faith expresses a specific vision of how life should be lived. For many, it is the ultimate commitment to a divine being or force that provides personal and communal direction to life. For many believers, part of living out that faith includes gathering corporately with like-minded believers for reflection, contemplation, communion, teaching, and worship. This matters.

The specific protection offered by section 176 recognizes that there is something different, distinct, and valuable about religious practice. It recognizes that there is a good that is worthy of specific and explicit protection. To remove this protection would erode that recognition and undermine the value and place of religious belief and practice in Canada. The minister has expressed concern that the language of subsection 176(1) is specific to the Christian faith or Christian clergy. We believe it should be made clear that this protection is extended to all faith communities. We have two recommendations to the committee.

The first is that Bill C-51 be amended to retain section 176, and the second is that the language of paragraphs 176(1)(a) and 176(1)(b) be amended to make it clear that this specific protection is extended to leaders of all faith communities. Hence, the words “clergyman or minister” could be replaced with a term such as religious official or religious leader.

Section 176 is not redundant. It provides unique protection and a unique form of expression. We urge you to amend Bill C-51, to fulfill the charter's guarantee of religious freedom, and to maintain the protection of the integrity and security of religious worship in Canada.

Thank you.

[Bruce Clemenger, President, Evangelical Fellowship of Canada]

Good afternoon. The Evangelical Fellowship of Canada welcomes this opportunity to address this committee on Bill C-51.

Established in 1964, the EFC provides a national forum for the leaders and institutions of Canada's four million evangelicals and a constructive voice for biblical principles in life and society.

Religious freedom, expression, and collaboration have been hallmarks of our work for decades. We work together with interfaith partners on issues of common concern, sharing in conversations about the role of religion in a pluralistic society.

We have addressed religious discrimination and supported religious freedom in more than 20 court interventions over the years, including in support of non-evangelicals.

Our concern is with clause 14 of Bill C-51, which would remove section 176 of the Criminal Code of Canada. It is being argued that section 175 and other general prohibitions on assault make section 176 redundant. With respect, we disagree.

[Prof. Steve Coughlan, Professor, Schulich School of Law, Dalhousie University, As an Individual]

Thank you for the invitation to address the committee with regard to Bill C-51. In particular, I'm going to be speaking to the provisions that are intended to remove various provisions from the Criminal Code, as well as various reverse onus portions of them.

I am in favour of this bill, but I'd like to explain that support by situating this bill within the broader endeavour of which it should be seen as only a small part.

I'd like to begin with a quote from a minister of justice:

I believe that the time has come to undertake a fundamental review of the Criminal Code. The code has become unwieldy, very difficult to follow and outdated in many of its provisions.

That's not a quote from the current Minister of Justice. That's a quote from Senator Jacques Flynn when he was the minister of justice in 1979. It's nearly 40 years since it was recognized that our code has been fundamentally flawed for a long time. Piecemeal reform since then has made the situation worse.

That's why I want to urge the committee to have a broader vision than just the proposals in this bill. Obviously this is the matter that's before you, and these are in themselves worthwhile, but to look at the task as only this is to ignore fundamental problems which have existed for decades. The last time there was a fundamental review of our Criminal Code was before I was born.

Let me make a statement that's going to sound like hyperbole, but it isn't. Canada doesn't have a criminal code. A code is a statute that sets out all the relevant law on a particular topic, and our Criminal Code, since it was first created in 1892, has never even pretended to do that.

Given the limits of time, I'm going to focus on only one particular issue there. There are many, in fact, but I'm going to focus just on one. It is that a code ought to tell us the elements that the crown needs to prove in order to prove someone guilty of an offence. Looked at another way, it ought to clearly tell people what behaviour is against the law, so that they are able to not break the law.

Our code doesn't do that. It has never tried to do that. In fact, the way it is currently drafted makes it more difficult, not less, to determine the elements of many offences. This is the direct cause of ambiguity, which is inconsistent with the rule of law.

Because of the limits on time, I'm going to focus only on one particular issue, the lack of what is referred to as a general part in our Criminal Code. Now, a general part is a common feature of criminal codes around the world. Among other things, it sets out the mental states that are required before a person can be found guilty of a crime. The notion that crime requires a guilty act and a guilty mind is very well known. As a general practice, our Criminal Code doesn't tell us what the guilty mind requirements of offences are. It doesn't have anything similar, for example, to section 15 of the German criminal code, which says that unless the law expressly provides for criminal liability based on negligence, only intentional conduct shall attract criminal liability. The failure of our code to take this basic and obvious step has very real consequences.

I'm going to take section 176 as an example, simply because it's the section that other people are here to talk about. From my perspective, it is a random section which is not particularly worse or better than any other. It is simply illustrative of the kinds of issues that arise.

Here's a very basic question. It's about offences related to clergymen in the language of the section. For an accused to be guilty of one of those offences, does the crown have to prove the accused knew that her actions were directed toward a clergyman? In paragraph 176(1)(b), the answer is clearly yes. That subsection says, “knowing that a clergyman”, so it tells us that knowledge is required. On the other hand, paragraph 176(1)(a) just refers to obstructing a clergyman, without talking about whether knowledge is required or not.

Is it sufficient that the person obstructed was in fact a clergyman, or does the crown have to prove that the accused knew that? On the one hand, we might say that one section talks about knowledge and the other doesn't, so that's an obvious difference between the two. The trouble is that the Supreme Court of Canada has told us to assume that every section of the Criminal Code requires knowledge, so that leads to the conclusion that both of them require knowledge. But if both of them require knowledge, then why did one of them bother to say that knowledge was required when we were going to assume that knowledge was required even if it hadn't said that?

No matter how the section is looked at, there's going to be some inconsistency there, making it impossible to be sure in advance what the section means. Exacerbating the problem that most of the time the code doesn't tell us mental states is that sometimes it does, but when it does, it uses inconsistent and contradictory language to do so.

Another part of section 176 talks about “wilfully” disturbing religious worship. As someone who has closely studied the Criminal Code for 30 years, I say with confidence I have no idea what that means. Sometimes when the Criminal Code uses the word “wilfully”, it means that the person's act was intentional. Sometimes it means that it wasn't the act that was intentional, but the consequence of that act that was intentional. Sometimes it means that whether the act was intentional or not, or whether the consequence was intentional or not, the accused was reckless with regard to that, and then sometimes the word “wilfully” means that the accused didn't think about something when it would have been appropriate to think about something.

The code itself uses exactly the same word to mean at least five different things, depending on which section of the code you're looking at, and that, from my perspective, illustrates the insidious nature of the problem. If you simply read section 176, on the face of it there's nothing wrong with it. This problem isn't obvious in looking at section 176; it's a problem that becomes apparent only when you look at the code as a whole and see the inconsistencies in the way in which things are done.

Now, as I say, I picked section 176 largely at random. It's an obscure provision and obviously doesn't have a huge impact on the day-to-day workings of the criminal justice system, but this problem and similar problems arise virtually throughout the code, and they arise for such routine and common offences as assault and theft, which, between the two of them, make up about 20% of the business of the criminal justice system. These problems have a very real impact.

Here's another example of problems caused by the absence of a general part. Let's say a person is asked to help smuggle cigarettes into the country without paying duty, which is a relatively minor offence, but in fact unknowingly assists in smuggling cocaine into the country, which is a much more serious offence. Which one should that person be guilty of? The offence they actually committed, or the less serious offence that they thought they were committing?

Well, again, whether you think it should be the more serious or the less serious offence, it would at least be nice to know what the law in Canada is. Now, the German Criminal Code, in subsection 16(2), says the person is only guilty of the less serious offence. In Canada...? Well, in 1965 the Yukon Territory's Court of Appeal seemed to suggest that the person would be guilty of the more serious one. In 1971, the British Columbia Court of Appeal seemed to suggest that the person would be guilty of only the less serious one.

In 1976, the Supreme Court of Canada had a chance to settle the issue, but actually didn't settle the issue, so we just don't know. There is no answer to that question in Canadian law. It comes up, and you just have to guess.

The Supreme Court of Canada has said:

If an accused must wait “until a court decides what the contours and parameters of the offence are then the accused is being treated unfairly and contrary to the principles of fundamental justice”....

The fact is, however, that most of the time the Criminal Code does not set out the contours and parameters of the offences and we have to wait for a court to do it. This is just a blind spot; we just all struggle along, pretending that this isn't true.

This is why I say that a much larger task than simply removing some particular sections from the code is necessary. The major systemic problems we face cannot be solved by tinkering.

Yes, it's worth removing these sections, but doing that is going to have only a minor impact on bringing our code up to date. It is now literally impossible to add any new provision to this code in a way that does not contradict and create inconsistencies with some other part of the Criminal Code.

Only a large-scale review, including the inclusion of a general part, can solve that problem.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Good afternoon, ladies and gentlemen. It is a pleasure to welcome our panel of witnesses on our study of Bill C-51 and to bring this meeting of the Standing Committee on Justice and Human Rights to order.

It's a pleasure to welcome Mr. Kmiec to one of his first justice committee meetings. He's been to a couple before, but it's nice to have him here. He always contributes very well when he's here.

It's a pleasure to welcome Mr. MacGregor back to our committee.

Today we welcome our first panel of witnesses: as an individual, Mr. Steve Coughlan, a professor at the Schulich school of law at Dalhousie University; the Canadian Council of Churches, represented by Peter Noteboom, the acting general secretary, and Mike Hogeterp, the executive committee member responsible for the commission on justice and peace; and from the Evangelical Fellowship of Canada, Mr. Bruce Clemenger, president, and Ms. Julia Beazley, director of public policy.

Welcome. We'll go in the order in which your names appear on the agenda, so we'll start with Mr. Coughlan.

Mr. Coughlan, the floor is yours.

Physician-Assisted Dying

[Diane Finley, Conservative, Haldimand—Norfolk, ON]

Mr. Speaker, I am pleased to present a petition on behalf of constituents in my riding of Haldimand—Norfolk who are concerned about the lack of religious protection for medical professionals in Bill C-14, medical assistance in dying, and Bill C-51, clause 14. As it stands, clause 14 would remove the only provision in the Criminal Code that directly protects the rights of individuals to freely practise their religion, whatever that religion may be.

The petition calls on the government to enact a policy that would provide the review of any legislation, ensuring it does not impinge upon the religious rights of Christians.

Religious Freedom

[Diane Finley, Conservative, Haldimand—Norfolk, ON]

Mr. Speaker, I present a petition on behalf of people in riding of Haldimand—Norfolk. They are deeply concerned with clause 14 of Bill C-51. As it stands, clause 14 would remove the only provision in the Criminal Code that would directly protect the rights of individuals to freely practice their religion, whatever that religion may be.

The petitioners call on the government to remove clause 14 from the legislation and protect the religious freedoms of all Canadians.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Thank you very much for that very specific recommendation.

I have a more general question. While Bill C-51 would create a better legal regime around issues of sexual assault, I wonder what the concerns are in terms of women being able to make use of that improved legal regime in a context where legal aid isn't sufficiently available. What are your thoughts on what government ought to be doing in order to make sure that we don't just improve the law on the books and then find we have situations in which women aren't able to make use of those laws?

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Thank you very much.

Thank you both for being here tonight and for your remarks.

One of the aspects of Bill C-51 is to introduce a new procedure to govern the use of trial records relating to the complainant that are already in the hands of the defence. We touched on that a little bit already.

On Monday the committee heard from the Criminal Lawyers' Association, who were saying there's some clarification needed in the bill around the type of use of the records that would trigger this new mechanism. Professor Cunliffe, you were speaking to this before, so I'm wondering if you could elaborate a little on that theme.