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

[Wayne Stetski, NDP, Kootenay—Columbia, BC]

Mr. Speaker, I want to start by clarifying for the people of Kootenay—Columbia and those watching across Canada that this Bill C-51 is not Bill C-51 from the 41st Parliament, which was called the anti-terrorism bill. That bill led to widespread protests across my riding of Kootenay—Columbia. People were concerned about the potential to make peaceful protests illegal and the potential impact on their personal privacy rights. Because the NDP is going to support this Bill C-51, in the 42nd Parliament, I did not want there to be any confusion back home.

Regarding the bill before us, we are pleased to support this legislation. We believe that it would provide many overdue protections, particularly for victims of sexual assault. One of the most important provisions in this legislation would clarify the definition of consent. Some of this should be obvious. It should be common sense. In fact, I am appalled that we need to entrench this in law, but here it is. With this amendment, an unconscious person could not be considered to have given consent. There it would be now, spelled out in black and white in the Criminal Code of Canada: someone who was passed out from intoxication, from a blow to the head, or for whatever reason would not be able to consent to sexual activity. Good. While it is outrageous that any other interpretation was ever understood, at least we, as lawmakers, are now making it perfectly clear.

The bill also takes another important step on the issue of consent. A person who is passive during sexual assault, that is, does not scream, “no”, or fight or otherwise resist, cannot be considered to be automatically giving consent. This is necessary and it is overdue. Too often, an individual, unduly pressured or even physically overcome during a sexual assault, will feel fear, confusion, or even peer pressure and will be unable to enunciate his or her refusal. This amendment shifts the burden to the other person to get clear and active consent. To quote University of Ottawa associate professor of law Carissima Mathen, “Passivity is not consent. Consent has to be communicated to you in some meaningful way, not from being quiet.”

That statement is borne out by statistics in a Global News/Ipsos Reid poll. The most recent common reason women gave for not reporting a sexual assault to the police was feeling young and powerless; 56% of victims said so. Forty per cent of respondents said they stayed silent because of the shame they felt, and 29% said they blamed themselves for the assault. Others worried that reporting would bring dishonour to their families, feared retaliation from their attacker, or said they did not have faith in the criminal justice system. New definitions will help clarify the term for the courts, but they do not do enough.

Too often, victims of sexual assault find themselves isolated by the courts. They have no one to protect them from aggressive questioning by a defence attorney and no one to be their advocate. Sometimes there are poorly trained judges, as we learned last year when a judge demanded of a victim why she could not just keep her knees together while she was sexually assaulted. That horrific and shocking statement led to condemnation across the country and the resignation, rightfully, of the judge who made that statement.

Rather than treating victims with care and compassion, our justice system sometimes victimizes them all over again. The solution would be to ensure that victims have access to legal aid as they go through the court process. The current Liberal government must not choose to ignore that essential element in protecting victims.

This legislation also includes the removal of some so-called zombie laws. Those laws, which have become redundant because of other laws that cover the same subject or because they have been overturned by the courts, are an interesting collection. As a former mayor, I know that there are many municipalities with zombie bylaws that need cleaning up as well. Federally, we now no longer have to worry about the detrimental effect of crime comics on our youth. We have many other negative influences to worry about. Similarly, a law banning Canadians from offering a reward for the return of stolen property, no questions asked, seems unnecessary and even detrimental in its own right. I know I personally used that approach to get back my son's stolen mountain bike once, without even knowing it was against the law, as is the case, I am sure, for many Canadians.

One must wonder about the existing laws regarding the practice of witchcraft, sorcery, enchantment, or conjuration. In addition to the fact that it impinges on the rights of some religions, and would confuse the U.S. President who is certain that he is the target of a witch hunt, this might also hurt Harry Potter cosplayers; Dungeons and Dragons "larpers", which I do not know much about but which my staff assure me is a thing; and others for whom sorcery is an entertainment. This is a good law to be rid of.

My favourite among this group of zombie laws is the prohibition on duelling. After all, we stand in a place where the two sides of the House are separated by two sword lengths to ensure we fence only with words and not with rapiers. Still, the last public duelling in Canada took place not far from here in Perth, Ontario, in June 1833, when 23-year-old law student John Wilson shot and killed his friend Robert Lyon, age 20, during a duel over the honour of Elizabeth Hughes, a young school teacher.

Wilson successfully pleaded his case in court, had a lengthy law career, married Miss Hughes, and eventually became a member of the legislative assembly of the Province Of Canada, the precursor of the House of Commons. In case some members of the House or the public believe that duelling will now be legal, it is worth noting that our homicide laws still apply.

The bill offers some good amendments to the Criminal Code. My biggest concern with the bill is not with its content, but with what is missing.

Across Canada, the Supreme Court decision known as the Jordan ruling has allowed many indicted suspects to go free because of the length of time it has taken to bring them to trial.

Just this week, a judge in Quebec City freed a man accused of sexually assaulting his adolescent stepdaughter. Last November, an Ottawa judge freed a murder suspect under the same terms. In fact, across Canada dozens of suspects, people who have been charged with crimes ranging from first degree homicide to sexual assault, have been freed because our courts do not have the capacity or the will to ensure a speedy trial.

While eliminating zombie laws is important, the government's first priority should be to ensure that our existing criminal laws are upheld by the courts. This means more federal and provincial resources and it may mean new laws to reverse the Jordan ruling.

Another item missing from the bill is a long-promised review of damaging and disingenuous amendments introduced by the previous government. The Conservatives' belief that mandatory minimum sentences will somehow reduce crime has been ridiculed by members of the justice system, from lawyers to judges. We have seen over and over the mandatory minimums getting tossed by judges as unworkable and unconstitutional, just as the New Democratic Party's justice critic warned them would happen during debates over those amendments.

Let us look at recent news.

In 2013, a Manitoba judge heard the case of a young man who lashed out at his bullies. The judge refused to apply the mandatory minimum sentence, saying:

A four-year term would clearly place the accused in the heart of the federal penitentiary system normally reserved for hardened criminals. To say that the conditions of a federal penitentiary would be harsh for someone of the accused’s background is an understatement.

(Court of Queen's Bench, Justice John Menzies, October 2013)

In 2016, the Supreme Court of Canada threw out mandatory sentences for repeat drug dealers, concerned that the harsh penalties applied to:

the addict who is charged for sharing a small amount of drugs with a friend or spouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marihuana in a social occasion nine years before.

Just this week, in British Columbia, a judge refused to apply mandatory minimum sentences in the case of a young man who was found employed at a small marijuana farm.

All these decisions took the view that judges must have the flexibility to apply their experience, their knowledge, and, their judgment on a case-by-case basis.

We are glad the government intends to review these unconstitutional sentences, and we look forward to the day that the justice minister keeps her promise. If only the Liberal justice minister would, at the same time, expunge the criminal records of those who had been convicted of carrying small amounts of marijuana in the past, we could see true justice done.

I mentioned the other Bill C-51 when I began speaking. As soon as the election was over, the Prime Minister became silent on Bill C-51 after saying his government would make changes to it. Canadians truly hope the Liberal government keeps its word and does revoke sections of that act soon. Thousands of Canadians, including many of my constituents in Kootenay—Columbia, demanded change and they expect this promised on the former Bill C-51 to be kept.

[Erin O'Toole, Conservative, Durham, ON]

Mr. Speaker, I am very proud to follow my colleague's remarks on Bill C-51 and join the debate today. I am going to be expressing my concerns with respect to the bill. Once again, I cannot resist dwelling on the lack of priority to our public policy of the government, specifically justice policies. The lack of ambition in some areas is striking.

The Liberals' use of time allocation motions is equally striking, and we have before us a bill that is much ado about nothing in many ways. It is an omnibus bill on which they are using closure. They are time-allocating, ending debate, on a very large justice bill that contains one very important area that is critical for us to discuss in this Parliament. It is also critical for us as parliamentarians to discuss the elements contained in this specific part of the bill outside of this chamber in our communities, in consultations with victims groups, with law enforcement, and with students, and that is the zero tolerance toward sexual assault in our society. There are clear rules on consent and that consent cannot be given when someone is intoxicated, an approach that most of us think would be common sense but has been confirmed in this legislation, but it has already been confirmed by our common law and the outrage that occasionally happens when some judges have not followed that approach to our common law.

There are various provisions in Bill C-51 related to the important work on consent, on evidence in sexual assault trials. I would like to commend the MP for Sturgeon River—Parkland, our former interim leader of the Conservative Party, for her exceptional work on judicial training. I am highlighting that because it shows that, while the bill is well intentioned on this provision with respect to sexual assault consent and evidence at trial, our common law should actually take care of this. While it is good for Parliament to clearly weigh in and amend the code with respect to this, our judges are on the front lines and they should be approaching this with zero tolerance with respect to sexual assault cases in which the victim has been intoxicated, in some cases by the person who then perpetrated the attack.

All members here have no patience for that type of conduct in our society. I am certainly very proud that our government passed the Victims Bill of Rights and, for a time in Canada, put victims at the core of our justice system. That one part of this omnibus bill is important for us to talk about, even though the common law is addressing the issues that this bill purports to address.

The other aspects of this are unnecessary. With respect to the charter statement to be attached to all bills, there are already opinions given on the charter application, with respect to legislation, by justice lawyers as part of the legislative process. Other groups outside Parliament can weigh in with their thoughts with respect to the charter. However, there is no need for this sort of charter stamp to come with each bill, because Parliament is supreme. If the court determines down the road that there is a provision that needs clarification as a result of the charter, it is up to this Parliament then to provide that clarity.

As you know better than most, Mr. Speaker, because you are someone who is a champion of our parliamentary democracy, no Parliament is held to the laws of a previous Parliament. That provision with respect to charter opinions or the charter statements in the bill is unnecessary and is being done for political posturing.

Finally, the last part of this omnibus bill is the so-called removal or amending of no-longer relevant Criminal Code provisions or seldom-used Criminal Code provisions. Some would call this a clean-up part of the omnibus bill. Is that so pressing that we are here using closure on debate to ram this through?

I am not sure when the last time was that there was a duel in Canada. I know there is two sword lengths separating the government from the opposition, but I do not suspect they are planning on us calling for a duel.

As for witchcraft, these are provisions that are historical curiosities. What is outrageous is that the government, and I am glad the government House leader is here, has passed 19 bills in its time in this Parliament. Nineteen have achieved royal assent, yet the government is hitting around the 30th time that it has limited debate in this chamber on such a low record.

I tried to highlight this in a previous speech last week. It is startling, the hypocrisy of the government. The government House leader who is mildly heckling me now, her deputy was the one who would feign outrage in the previous Parliament if time allocation was used or if omnibus legislation was used. In fact, the member for Winnipeg North, who has now joined in her heckling, called it “an assault on democracy”. That is how he referred to omnibus legislation.

The last week in the House, all I have seen is omnibus legislation, shepherded by the MP for Winnipeg North. The hypocrisy is stunning. The government House leader is using closure more times than the government has passed bills. The denominator is not matching up to show that the government is actually being productive. It is limiting parliamentary debate and really getting nothing done. It is startling.

I will remind my friend from Winnipeg North, because he is so verbose in this place, that he just gives me a wealth of information to draw on. When it comes to time allocation, what did he say? In November 2012, he said:

...never before have I ever experienced a government that is so persistent in using time allocation, a form of closure, using it as frequently as this particular Government House Leader does.

His government House leader is using it far more than the Conservative House leader did. I hope that at least behind closed doors he is expressing to her the same amount of outrage and indignation that we used to hear regularly in the last Parliament. Between the assaults on democracy and the limitation of debate, it is stunning that he can stand in this place and speak without a smile. It really is startling.

I will use the remainder of the time I have to show why this is hurting public policy development in Canada. We have an omnibus bill that is full of removing critical parts of our Criminal Code, like witchcraft, yet the government is not passing Bill S-3, in response to the Descheneaux decision of the Quebec Superior Court. The Liberal government's indigenous affairs minister did not even call Mr. Descheneaux to the Parliament to consult on the bill. It had until July 3 to pass legislation with respect to that court.

However, this government House leader puts froward omnibus bills full of witchcraft and other historical curiosities, a motion on Paris that was meaningless, and other motions, but it is not getting its own work done. If it wants to do an omnibus bill on justice, how about addressing the Jordan decision. Victims have seen accused murderers and accused sexual assault criminals being released as a result of judicial delays. That is the reform we need to see to justice. We have been asking, for a year and a half, for the minister to appoint judges. We have been pushing to get delays down.

The government is allowing accused criminals to be released because of its inaction, and its so-called justice omnibus bill is addressing duelling and witchcraft but not the Jordan decision. That speaks to the priorities of the Liberal government, a lot of talk on victims while it is not funding a registry for dangerous sexual offenders, while it is not addressing the Jordan decision. It talks about nation-to-nation dialogue with our first nations, yet does not even call Mr. Descheneaux to help pass important legislation.

I hope that, when we all go back to our ridings in the summer, the government House leader and her deputy reflect on the decline of our parliamentary democracy under their watch and that we come back in the fall to a full apology from them.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Mr. Speaker, in my remarks earlier this evening, I shared my fears and concerns about the many superior court judicial vacancies and the many repercussions that those vacancies can have on victims of crime.

I gave the example of some clauses in Bill C-51 that repeal some truly outdated provisions. Right now, the focus is more on eliminating provisions that prohibit witchcraft, say, rather than working on setting up an appointment system that will eventually lead to the appointment of judges.

Why not work now on appointing judges who will be able to really protect victims of crime?

In terms of the sexual assault cases, I mentioned that we agree with the new measures put in place to support and help victims. In addition, they will make it even harder for aggressors to act, and the ones that get caught will actually be punished for what they did. If there are no judges to apply those new measures, however, it will all have been for nothing. I would like to hear what my colleague has to say about this.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Speaker, that is one of our main questions. When the parliamentary secretary first spoke on Bill C-51, he said this section was obsolete, not necessary or useful anymore, that it was not being used. In fact, it is being used.

There was a case just this month, on June 9, where a charge was laid in a case right in Ottawa. My hope is that we do not have to use Criminal Code provisions, but that certain provisions remain in the code to serve as a deterrent against those types of activities.

In all the door knocking I have done in the past, whether for my nomination, during the election, and since then, I have never heard anyone say that section 176, that extra protection provided to clergymen, imams, members of all faiths, and funerals, should be removed, should not be there. Individuals have talked to me about the blasphemy laws in Canada, but not on this section.

It is interesting that the Liberals want to remove it, but they are removing it from a point that they simply have not done their homework.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Speaker, I appreciate the opportunity to be joining the debate on Bill C-51, this late in the night.

Before I go too far, I will be splitting my time with the hon. member for Durham, whom I am very pleased to be hearing from again today.

I was so pleased today to hear you, Mr. Speaker, mention in the House Yiddish for Pirates by Gary Barwin, who is one of my favourite authors.

Everybody in the House knows I am a big lover of Yiddish proverbs, and I have one also for this legislation. It speaks to our pinch points. Everyone knows where his or her shoes pinch. I will explain the pinch points I have in this legislation.

Many members on the Conservative side, including New Democratic members as well, have mentioned that they agree with the majority of the provisions in the bill having to do with increasing protection for victims of sexual assault. Nobody disagrees with it. It is a great idea. Clarifying the law is way overdue, but we do have pinch points.

There are proposed Criminal Code provisions that will be eliminated, and we simply disagree with that. Either we disagree or we think it is not in the right method. Abolishing laws in general, getting rid of Criminal Code statutes, and less government regulation is typically something I am all for. The less of it we have, the better. Not adding new laws to the statute books is a sign of restraint on the part of parliamentarians, and we would show greater restraint if we tabled more laws calling for the abolition of sections of different laws and reductions to the Criminal Code. That type of behaviour is laudable and it should be congratulated when it is practised in the House. Let us admit another thing too. This is an omnibus justice bill, and I have concerns about certain parts of it.

Why would we remove certain sections of the Criminal Code, like section 49? Why remove that part in the sesquicentennial of our country? That is Confederation, specifically, because Canada existed much before that. Is that not an odd provision to be eliminating during the 150th year of Confederation? The Crown is just as much a part of the history of Canada as the red ensign, the maple leaf, the Bill of Rights, Vimy, and countless other images and symbols we have in Canada. Section 49 only affects an incredibly small group of people, people who are intent on committing a malicious act against the Crown, in Her Majesty's presence of course.

As I said before, I completely support the amendments proposed in Bill C-51 to strengthen and protect the victims of sexual assault. They are timely and needed. As members heard from the Conservatives' justice critic, we are more than willing to expedite those portions to committee so they can be considered fully.

On removing the Criminal Code section on duelling, I have mixed feelings, not because I think duelling is right but simply because there is a long history in Canada of it being used as a deterrence tool. The last fatal duel in Canada was June 13, 1833, in Perth, between John Wilson and Robert Lyon, both law students. One was the son of a Scottish officer in the British army, the gentleman who passed away in this duel. John Wilson, who was acquitted of the crime, later was elected to the legislative assembly of the Province of Canada, became a Queen's Counsel, a QC, and was elected three times to that assembly. He was, of course, a Conservative.

There are also other provisions that covered those types of crimes, such as bodily harm, but it was also that extra prohibition on duelling and it was a big problem at the time. Nowadays, it is not so much. One of the members from Simcoe mentioned his views on duelling.

I understand the removal of section 143 of the Criminal Code, and I am surprised it is illegal. I see these types of ads all the time in my community, such as “Stolen bike, no questions asked, could you just return it to me”, or an open question about a lost cat, lost dog, or an RV is stolen. I have never known that this was an illegal act, that there was a prohibition on advertising the fact that someone would give a reward. Therefore, ending the prohibition on the use of such words in public advertising and offering a reward is probably very wise. It is eminently reasonable and wise for the House to do so.

The one I want to focus on, which has been the source of many questions I have asked in the House, is clause 14 on Criminal Code section 176, the prohibition against disrupting a religious service or interfering with a minister of a cult, a person who is in the service of others during a religious assembly of any sort.

I have serious concerns with removing this section. I have heard other members say we have other Criminal Code provisions that cover this. The difference is, section 176 gives extra protection. I will make a comparison in a bit between that and Bill C-305 because they are very much comparable.

Section 176 of the Criminal Code protects the clergy, and all those responsible for leading members of their faith in a service. Removing this particular provision is my pinch point in Bill C-51. It adds extra protection for individuals, serves as a deterrent, and protects religious services from disruption, including funerals. I am concerned what it could mean without this for those who are in the business of providing funeral services to others and the incentives therein.

I do not think anyone feels incented to disrupt a funeral. This type of provision serves as an additional deterrent. Subsections 176(1) and 176(2) also protect religious assemblies from wilful disturbance and interruptions. It does not talk about something accidental, it talks about something purposeful and wilful, when one is aiming to do something for the sole reason of disrupting a religious service. Most importantly, surprise.

As I mentioned before in a previous question, we went through the trouble in the House of passing a mischief improvement provision in Bill C-305, where we actually gave greater protection to property and communal spaces against vandalism motivated by hate. It was a very reasonable proposal as a private member's bill that was passed in this House. In that situation, we already had provisions to disincentivize and deter people from vandalising property. This was an additional charge on top of that which would be separate from it because we said communal spaces and crimes motivated by hate are special and deserve extra attention paid to them, and further punishment should one be found guilty of them.

We already have all those provisions on protecting property. The same idea in principle applies to section 176 of the Criminal Code that clause 14 proposes to eliminate; my pinch point in this piece of legislation.

We know there are other Criminal Code assault provisions to protect the person in the bill. There are provisions against interfering with persons and provisions preventing people from going into a sports match and disrupting it for the sole purpose of committing some type of mischief. I believe that clergy, Imams, leaders of any faith, deserve special protection. Why does the government not believe that as well?

Disrupting a sports match, an assembly for charity purposes, or a bingo game is mischief, most definitely. However, it is not the same as interfering with a religious service, not the same thing as interfering with persons who are leaders of a faith, and trying to look after members of their congregation, temple, mosque, or synagogue.

Just this week, Statistics Canada reported that there has been an uptick in certain hate crimes and crimes motivated against religions. Why would we then, two days later, consider Bill C-51, clause 14, which would eliminate that additional protection for leaders of a certain faith or religion who lead rituals, give services, and conduct funerals on behalf of community members?

The Charter of Rights and Freedoms, section 2 just lays it out. Fundamental freedoms include: freedom of conscience, freedom of belief, freedom of religion, freedom of association, and freedom of peaceful assembly.

Does section 176 not actually grant that extra protection for these freedoms to be practised in Canada? Why can we not have section 176 to assure ourselves that there will be an extra provision in the code to punish those who wilfully interfere with a leader of a faith conducting a service or a funeral?

I want to bring up one or two additional points. It was just this past May that an arsonist in Hamilton, who targeted a mosque, received 25 months in prison. Had the same person targeted the mosque during a service or had wilfully blocked assembly, section 176 could have been used in that particular case.

The last example is from my home province of Alberta. Father Gilbert Dasna was a Catholic priest who was murdered at his residence in St. Paul on May 11, 2014. Had Father Dasna survived and had there been an assembly at the local cathedral that had been disrupted by the gunman who murdered him, that person would have been eligible for an extra charge under section 176. Why is it so wrong to give individuals like Father Dansa extra protection from criminals?

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Speaker, I appreciate the additional information the hon. member provided.

I would also like to focus on other aspects of the bill. As other Conservative and NDP members have said, several parts of the bill provide extra protection to victims of sexual assault. Many changes are being proposed to clarify the legislation. We appreciate that.

The Conservative justice critic tried to spilt off the parts that we agree on so that they could be studied by the committee as soon as possible.

I would like the hon. member's opinion on the fact that we did not get the unanimous consent of the House on that. Also, we cannot study the parts of Bill C-51 that we agree on, although they are good and ready to be put into law. What does the member think of that?

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Mr. Speaker, I wish to commend my colleague for the eloquence of his speech, his knowledge of Canada’s history and, more specifically, the spirited way in which he made his case. Honestly, he managed to persuade me a little more. I completely agree with him on several points, particularly on the questions he raised about eliminating duels. He managed to show that there is no real reason to act on this subject.

I am here to speak to Bill C-51, an omnibus bill with four key parts. It amends, adds, or repeals many things. It includes provisions that we support and others that we oppose. Once again, as has been the case since the beginning of this Parliament, when the government wants to change things, it always arranges it so that the opposition cannot support what it does. It purposely includes provisions in its omnibus bills that will not be supported by an opposition party.

There are some good things in this bill and others that are less so. I will have the opportunity to talk a little bit about them. My justice critic colleague moved a motion that would have reached reasonable agreements with the government by splitting the bill. This would have allowed us to discuss certain components separately. We would have been able to show our support for the government’s proposed modernization of legislation, with respect to the parts that we have reasons to support.

As for the provisions concerning sexual assault, the bill clarifies certain aspects of the law pertaining to sexual assault involving consent, the admissibility of evidence and the representation of complainants by counsel. It is a good measure and we will support it. Sincerely, there is no problem in this regard.

The second part of the bill deals with provisions that have been deemed unconstitutional or that are similar to other provisions that were. In this respect, the bill repeals or amends certain Criminal Code provisions. These are administrative measures to ensure that the wording of the Criminal Code reflects current law. Here too there are good and bad aspects.

The third part is about obsolete or needless provisions and repeals several offences that are no longer relevant or required. My colleague did a good job of illustrating the kind of provisions that will be repealed.

The fourth part is about charter statements. I find this part a bit odd. It requires the Minister of Justice to table a charter statement identifying potential effects that each new government bill may have on rights and freedoms guaranteed by the charter.

As I understand it, the Charter of Rights and Freedoms applies, and the courts apply it, so I do not see why this measure is in here, unless it is a way of promoting the Charter of Rights and Freedoms, which is in force and is already doing the job that Parliament drafted and passed it to do.

The Conservative Party will always stand up for victims of crime. We will always support reducing undue delays in our justice system. Bill C-51 contains some very reasonable measures that we can support, such as repealing provisions that courts have found unconstitutional. However, we need to be careful when it comes to repealing provisions similar to those found unconstitutional because the courts have not yet ruled on them, and this could by a sneaky way for the government to advance its own political agenda. That is why we cannot blindly agree to all of the measures in Bill C-51.

We can also support most of the measures in the bill about repealing obsolete and redundant offences. This does make us question the Liberals' priorities, though. What is more important to them: repealing a provision that prohibits sorcery or filling empty seats on benches in superior courts and advisory committees across Canada?

We can amend all the sections of the Criminal Code and make all the improvements we want, but if there are no judges to hear cases, all these amendments will go for naught.

I had the opportunity to read part of the Standing Senate Committee on Legal and Constitutional Affairs’ final report, “An Urgent Need to Address Lengthy Court Delays in Canada”. This report was tabled by the Senate, and my colleague, the hon. Senator Pierre-Hugues Boisvenu, provided me with a copy. There are certain aspects I would like to speak to tonight, particularly the delays in judicial appointments.

In its recommendation no. 17, the committee believes that the failure to appoint superior court judges in Canada in a timely manner is contributing to unreasonable delays. It does not see anything to prevent implementing a systematic recruitment process instead of waiting for judges to retire before starting to consider candidates to replace them.

This needs to be considered so that there are no delays, no vacancies in superior courts and no more cases like that of Dannick Lessard. The individual charged with attempted murder for riddling him with bullets saw the charges against him dropped because of the Jordan decision and long court delays. Dannick Lessard felt betrayed and abandoned by the justice system. This is what the government should give priority to. It needs to proceed quickly with appointing the missing judges.

The report includes a quote from the Ontario Crown Attorneys' Association, which describes a sexual assault trial:

It was a sexual assault trial, and the delay was actually the victim's fault. She had a significant heart condition that required her to have open heart surgery twice post-arrest....Ultimately, it was well over four years by the time we got to a trial where she was well enough to testify. She was a very sympathetic person. She didn't have an axe to grind. She wasn't doing anything nefarious or wrong, but we lost it on the 11(b), and it was a strange one because it actually happened to be her “fault” that we lost it....

That is the sort of unacceptable situation that the Minister of Justice should rectify as soon as possible to ensure that it does not happen again.

In this report, there are plenty of other recommendations that I would like to talk about, but, instead, I would invite my colleagues to take a few minutes to read it, because it contains a lot of good recommendations. I hope that we will be able to use its best parts in order to improve access to the justice system, and, above all, to make the system fairer for all victims.

However, I really must mention the Liberals' doublespeak about the freedom to practise one's religion. The Liberals, who were very much in favour of motion No. 103, are, with this bill, going to eliminate the only provision in the Criminal Code that protects religious celebrations and the clergy or ministers who celebrate them.

In a world that is increasingly hostile to religion and where intolerance is becoming increasingly prevalent, I do not understand the signal that the Liberal government wants to send by wanting to abolish these provisions that criminalize the people who attack religious ceremonies of any faith.

As we saw in Quebec City, attacks can happen everywhere. It is absolutely essential to continue to preserve people's right to practise their faith where they want and how they want. We have to demonstrate that it is still fine in our society to practise one's religion and to have faith, and that everyone has the right to go to church without fear of being harassed or attacked.

As I mentioned before, this is an omnibus bill containing a number of provisions that should be amended.

I would have liked members to listen to my colleague the justice critic and to divide the bill into several parts. That would have allowed us to express our opinions clearly on each of the four parts I have just mentioned.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Madam Speaker, earlier this session, and I think it was just a month ago, this Parliament passed Bill C-305, which actually increased penalties for vandalism motivated by hate of sacred property and property used by religious institutions. We already had provisions that covered it, but we felt that even more protection, a special protection, was needed from that particular crime.

I think that is the same point my colleague, the member for Yorkton—Melville was trying to make, that section 176 offers an extra protection for members of the clergy and spiritual leaders. I would just like the member to expand on that. Could the member give us a further explanation on the comparison of Bill C-305 and the provision of Bill C-51 on—

[Cathay Wagantall, Conservative, Yorkton—Melville, SK]

Madam Speaker, on June 5 the Minister of Justice and Attorney General of Canada introduced Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act.

Bill C-51 seeks to make changes to a number of matters within the context of this one bill. This justice omnibus bill seeks to amend or remove or repeal passages and provisions that have been ruled unconstitutional or that raise risks with respect to the Canadian Charter of Rights and Freedoms, as well as passages and provisions that are obsolete or redundant or no longer have a place in the Criminal Code. I would suggest that this seems fairly subjective to the government's agenda when we are saying “no longer have a place in the Criminal Code” at this point in time.

It would also modify certain provisions of the Criminal Code relating to sexual assault in order to clarify their application and provide a procedure applicable to the admissibility and use of the complainant's or a witness's record when in the possession of the accused.

It would also require, for any bill tabled in either the House of Commons or the Senate, a charter statement outlining each bill's potential effects on the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms.

The government House leader has called for major reforms on the introduction of omnibus bills by government, yet here we have the justice minister introducing just that.

The portion that clarifies and strengthens the sexual assault provisions in the Criminal Code, helping to support victims of horrific sexual assault crimes, is certainly the right thing to do. I am very pleased with that portion of this bill. Unfortunately, it puts many of us in an angst situation, because although we support that portion of the bill, other sections make it very difficult to support the rest.

This provision is victim-centric. That portion of the bill is good. It is sensible and reasonable, and it is certainly appropriate.

It is unfortunate that Bill C-51 is attempting to require a charter statement for all future government justice legislation. This would be a redundant process that is not necessary.

The Charter of Rights and Freedoms has been in force for 35 years now. Many governments, both Liberal and Conservative, have introduced justice legislation without a charter statement. To require charter statements on all new bills would not, nor should it, pre-empt controversial legislation from being challenged in our courts by groups and everyday citizens. After all, it is the responsibility of legislators to create law, the courts to interpret law, and the right of Canadians to challenge that law.

The Liberals were very supportive of Motion No. 103, which protects Muslims from an undefined term, “Islamophobia”, yet Bill C-51 proposes to remove the only provision in the Criminal Code that protects all religious communities and all religious officials. I am very concerned that the government has decided to remove section 176, which specifically states:

(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 this 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.

This section protects the rights of religious clergy and their members to practise their faith at an event or ceremony in safety without interference or disruption.

Last evening, I attended the sixth annual Iftar dinner at Ottawa City Hall, hosted by the Progressive Muslims of Canada. President Mobeen, whom I met at an Embassy Connections Canada event earlier on, kindly invited me, and I was really pleased to attend.

I am a Christian, not a Muslim. My faith does not celebrate Ramadan or Iftar dinners. However, we do fast and pray, gather together for mutual encouragement, teaching, worshipping, prayer, and meeting the needs of those who are marginalized or hurting in our midst, our communities, and the world.

My question is this. Why would the government want to remove a piece of legislation that speaks to all faiths' right to the freedom to worship and to gather without fear of reprisal? Why would the Minister of Justice want to take away legislation that affirms the safety of all clergy and protects from the disturbance those who gather in mosques, gurdwaras, synagogues, sweat lodges, churches, schools, homes, camps, cemeteries, prayer rooms, and chapels in hospitals, and in public spaces, like Ottawa City Hall, and want to replace it with a singularly focused no trespassing at night law?

I cannot fathom the rationale behind this decision. It makes no sense to me. Have the Liberals consulted their constituents, the faith communities in their ridings, to hear what their feelings are on removing section 176 from the Canadian Criminal Code?

I am very confident that this is not what Canadians or landed immigrants in our country expect from the government. This should not be part of Bill C-51. It should be removed. That being said, to make sure that I am not just expressing my own views, I will be sharing this with faith leaders in my communities and through social media, and I will make them aware of what this section says and what the government is expecting to do. I will ensure that they have every opportunity to express their concerns over what I see as a dangerous and dismissive decision to remove section 176 through Bill C-51. I will be encouraging them to contact directly the Minister of Justice.

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

Madam Speaker, I will be splitting my time with the member for Yorkton—Melville.

I am pleased to speak in support of Bill C-51, and will focus my remarks on proposed amendments to the Criminal Code that pertain to sexual assault.

In light of testimony we heard at our status of women committee during our recent work on violence against women, this is extremely welcome legislation. I am pleased to see the work of our committee reflected in Bill C-51.

At the heart of the legislation, there is better protection for survivors of sexual assault. These proposed reforms flow from the complex legislative history in this area and must be understood in that context.

Major reform of the criminal law's approach to sexual violence began in 1983 and continued throughout the 1990s. These reforms were in response to concerns expressed by women and survivors groups, and to certain court decisions that were viewed as failing to adequately protect survivors of sexual assault, who were disproportionately women and girls. These legal reforms were intended to encourage reporting, improve the criminal justice system's response to reports, and change discriminatory views of complainants that resulted from myths and stereotypes about survivors of sexual violence and how a “true victim” was meant to behave.

The 1983 reforms introduced new gender-neutral sexual offences that captured a broader range of conduct, which focused on the level of violence used by the assailant, rather than the type of sexual act committed. Specifically, these reforms brought into force the three general sexual offences that we have in the Criminal Code today.

The 1983 legal reforms also brought into force Canada's first “rape shield” law that was designed to prevent the admission of evidence of a complainant's sexual history for an improper purpose.

Prior to 1983, evidence of the complainant's prior sexual activity was admissible in court to show that she was more likely to have consented to sexual activity or that she was less worthy of belief. Additionally, an accused was permitted to interpret a complainant's passivity as consent. These inferences, which were being applied in the courts, were based on harmful and discriminatory stereotypes about how women and survivors of sexual assault were meant to behave.

In 1991, the Supreme Court of Canada struck down the 1983 version of our rape shield law. In 1992, Parliament responded to the court by enacted the charter-compliant rape shield law that we have today. Specifically, then minister of justice, the Right Hon. Kim Campbell, amended the rape shield provisions to create two distinct rules. One categorically excluded evidence of a complainant's sexual history when it was introduced to infer one of the rape myths. The other presumptively excluded evidence of a complainant's sexual history when introduced for other purposes, unless specific criteria were met.

The 1992 amendments also included a clear and affirmative definition of consent as the “voluntary agreement of the complainant to engage in the sexual activity in question”, as well as the non-exhaustive list of circumstances in which no consent could be obtained in law, for example, where the complainant was incapable of consenting, or where she expressed a lack of agreement.

The 1992 amendments also limited the accused's ability to advance the defence known as “mistaken belief in consent”. The law is now clear that the defence is not available where the accused's belief in consent arose from self-induced intoxication, recklessness or wilful blindness. Nor is the defence available where the accused failed to take reasonable steps to ascertain that the complainant was consenting.

In 1997, the Criminal Code was again amended to prevent the accused from engaging in so-called fishing expeditions by seeking production of complainants' private records in order to undermine their credibility. The third party records regime was enacted as a specific response to the Supreme Court of Canada's 1995 O'Connor decision, which did not require consideration of sexual assault complainants' privacy rights in determining whether their private records that were in the possession of third parties should be produced in a sexual assault trial.

This “third party records regime” enacted by Parliament limits the accused's access to the complainant's private records. Consideration of the complainant's right to privacy must be considered when determining whether her private records should be produced to the accused, in addition to the accused's right to make full answer and defence.

Crucially, the Supreme Court upheld the third party records regime as constitutional in its 1999 Mills decision. The Supreme Court also clarified our existing sexual assault provisions in its 1999 Ewanchuk decision. In that case, the survivor was a 17-year-old woman who was sexually assaulted in a van by a man purporting to interview her for a job. The accused was acquitted at trial, and his acquittal was upheld by the Alberta Court of Appeal in an infamous decision involving a finding that consent was implied because the complainant failed to resist, she was sexually experienced, and she did not present herself to the accused, as one of the judges called it, in a bonnet and crinolines. Both the lower and upper courts acquitted the accused of sexual assault, despite the fact that the trial court found that the survivor clearly expressed her lack of consent a number of times.

The Supreme Court's decision in Ewanchuk overturned these findings and continues to state the law on sexual assault to this day. Specifically, the court held that there is no defence of implied consent to sexual assault. An accused is not entitled to interpret passivity as “yes”. Consent requires an affirmative communication of “yes” through either words or conduct, and “no” can never mean “yes”. The Ewanchuk standard of consent is often expressed as “only yes means yes”. In other words, there is no consent unless it is voluntary and clear and given without coercion, and it can be withdrawn at any time.

In clarifying the law in this regard, the Supreme Court found that the lower courts had improperly relied upon myths and stereotypes about sexual assault complainants that are not valid in Canadian law.

Finally, in the 2011 J.A. decision, the Supreme Court held that consent “requires the complainant to provide actual active consent through every phase of the sexual activity”, and that therefore it is not possible for an unconscious person to satisfy this requirement.

Unfortunately, we know that some of these myths and stereotypes have persisted despite these Supreme Court decisions. The proposed amendments in this bill are therefore aimed at clarifying the law to assist in avoiding its misapplication.

Consistent with previous Supreme Court decisions, they would clarify that no consent is obtained if the complainant is unconscious; that the accused cannot advance the defence of mistaken belief in consent where that belief is based on a mistake of law—for example, because the accused believed that valid consent can be obtained even when the complainant expresses lack of consent; that the rape shield provisions never allow an accused to adduce evidence of a complainant's prior sexual activity to support any of the rape myths; and that for the purposes of the rape shield provisions, prior sexual activity includes communications made for a sexual purpose or whose content is of a sexual nature, which would include emails or text messages that involve sexualized texts or images, often referred to as “sexting”.

The proposed amendments in this bill would also clarify that a complainant has a standing and a right to counsel in rape shield proceedings, just as the complainant already has a right in the context of third party records proceedings, and the amendments would create a new regime that would apply to the admissibility of the complainant's private records that are in the possession of the accused, just as the current rape shield provisions apply to the admissibility of evidence of the complainant's sexual history.

These proposed amendments strengthen our already robust sexual assault provisions by clarifying and bolstering the law and facilitating its proper application. This is just one response to a complex issue that has raised significant concern over the past decades. Complainants continue to lack confidence in the criminal justice system, as reflected in the fact that the vast majority of sexual assaults go unreported, and when they are reported to the police, the vast majority never make it to trial.

Recent media reports have brought this critical issue to the forefront, and I urge all members to join me in supporting this important step toward ensuring that the criminal justice system responds effectively and appropriately to this gendered crime by giving survivors of sexual assault the respect and dignity they deserve.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Madam Speaker, I am pleased to rise in the House today.

We just decided to see the clock as 6:30 p.m. As a member of Parliament I always find it fascinating and somewhat magical to see how this place works.

That segues nicely into the bill before us. There are several parts to this bill, but one part seeks to remove outdated provisions from the Criminal Code, including a provision on magic. I find that especially interesting as a matter of discussion.

One example of an outdated section of the Criminal Code is the provision under which it is prohibited to fraudulently pretend to practise witchcraft. It is not hard to see that these measures are no longer of any real use. Over the past few years, only one case of fraudulent practice of witchcraft was prosecuted under section 375. When the person being prosecuted agreed to reimburse their clients, the charges were dropped.

Another example of an outdated measure that will be removed through this bill is the ban on challenging another person to a duel. It will therefore now be permissible to challenge someone to a duel.

As a former fencer, a sabre fighter, I find it particularly interesting to know that I could now challenge someone to a duel. That is interesting. All kidding aside, those types of provisions in the Criminal Code have not been used in a very long time and are no longer really relevant. It makes complete sense to remove them from the law and it is something that could have been done quite quickly.

Before we move on to private members' business, I just want to mention that the former Conservative justice minister proposed that the bill be divided so that we could study the different measures separately. This would have enabled us to get through these outdated Criminal Code provisions very quickly.

For the sake of the debate, I will list a few other sections that will be withdrawn. Many of us have probably done this without knowing it was against the law, but it is prohibited to offer a reward without questions for the return of a stolen item. We see this occasionally, especially for items with sentimental value. For example, it might be a camera containing all our vacation photos and the birth of our children, so photos that are very important and meaningful. It is the photos that give value to the device. Many people who really wanted their photos back often said that they would not ask questions if the camera was returned because all they wanted was to get their pictures. Most people did not know that under the Criminal Code it was illegal to do that. I think it is appropriate to remove those measures.

Possessing a crime comic is also a criminal offence. It was believed that reading a comic showing a crime could lead young people to criminal behaviour. We have moved well past that, in any case. Young people still read comics, but society has moved on to more advanced technologies like video.

It is a good thing to remove these outdated measures. Unfortunately, eliminating all these provisions from the Criminal Code will not solve the problem set out in Jordan, namely that our courts are bogged down and that proceedings must move more quickly if we want to provide better justice. Neither will it prevent the release of criminals due to overly long delays.

This situation will not be fixed because unused sections are being removed. Even if they are taken out of the Criminal Code, there will not be fewer cases before the courts, because these sections were not being used anyway.

The bill will ensure that, with respect to government bills, the Minister of Justice will table a notice of compliance with the charter of rights. That is fine, because it is important to have access to that information.

The rest of my speech will focus on one of the other provisions of the bill, a particularly interesting one. It will clarify the notion of consent with respect to sexual assault. This is particularly important, and I believe that when the bill is examined in committee it would be worthwhile to seriously think about further clarifying some of the other aspects.

As for sexual assault, the bill clarifies the fact that someone who is unconscious is unable to give consent. I know that this seems like common sense for most people, but this will be explicitly clarified. Consider what happened recently when a taxi driver was caught with his pants down with an unconscious victim in his taxi. Unfortunately, he managed to win in court because he said that when the act began, the individual was conscious and then lost unconsciousness afterward. By explicitly setting out that an unconscious individual is unable to give consent, this avoids having victims not being recognized as such, and it prevents perpetrators from getting away with assault through what, for goodness’ sake, is some offensive legal trickery. To any reasonable person, it is patently clear that someone who is unconscious cannot give consent and that, by extension, someone who becomes unconscious withdraws consent.

So the defence of mistaken belief will no longer be available. The bill clarifies that a person must have confirmation of consent and cannot simply say that they were certain of having obtained it; that line of defence will no longer be sufficient. That is also important, because it specifies that you cannot simply say that you are sure to have obtained consent, and that is it. The bill goes much further in the notion of consent. It says that you must be really sure and that you cannot simply rely on your own judgment to deem that a person is consenting.

That broadens the scope of the rape shield provisions. For instance, it prevents the use of communications of a sexual nature. The courts have already demonstrated that it is not possible to use a victim's sexual history to undermine her credibility. What is being added is the electronic version of all that. For instance, you cannot use text messages, messages sent by the victim to her Messenger contacts or by email to suggest that she is promiscuous. The prohibition on using a victim's prior sexual history is being updated with the addition of new technologies. That is a useful aspect.

Right now, I would like to talk about another concept, which is all too often ignored and truly deserves serious consideration. When we do the study in committee, I would very much like to see this concept corrected as well. Much like in the bill, this revolves around consent.

What I will be talking about also revolves around consent. I am talking about stealthing, the act of deliberately and secretly removing a condom during sex without consent from the other person. Often people do not realize that it is a crime, but it is. According to some articles I read, this practice is on the rise. It is important to state clearly in the bill that this is a criminal offence.

When someone consents to having protected sex with another person, then removing the condom without discussing it first amounts to withdrawing consent. It is sexual assault. Victims find that they are not taken seriously when they report this assault to the police. They are told that if they are not pregnant and did not catch an STD, then they have no reason to complain because they consented to the act in the first place. The victims feel extremely bad, dirty, and very misunderstood. They are often told that it is not a crime.

Police officers need to be better educated, but we also have to amend the bill in committee to clarify the concept of sexual consent. We must make it clear that when someone consents to having sexual relations under certain conditions, using a condom for example, and another person secretly removes the condom, that constitutes sexual assault. This would help make the victims feel better understood and would avoid minimizing what they went through. That clarifies consent.

Moreover, just because someone consents to sexual relations that does not mean they have consented to anything and everything. Partners have the right to set their limits. There are some things that people do not want to do. Just because someone consents to having sexual relations with another person that does not mean that they are agreeing to engage in sodomy. If a person does that against their will, even though they may have consented at the beginning to the sexual relations, any action that goes beyond that consent becomes sexual assault.

Unfortunately, this is poorly interpreted. When victims complain to the police, they are told that it is partly their fault because they consented at the outset, that nothing can be proven, and it will be their word against their partner's. Therefore, people do not complain and, since there are no complaints, there are no convictions. As a result, in people's minds, this may or may not be a criminal act.

On the subject of stealthing, in January, a French man was convicted of rape in Switzerland, because he had removed the condom during sex. I have not found any case law on the subject here, but this might apply to some cases.

For example, there is the case where the male partner intentionally put holes in the condoms so that his partner would become pregnant. He was afraid of a breakup and believed that his spouse would not leave him if he made her pregnant. The court eventually recognized that this was sexual assault, because she had not consented to unprotected or unsafe sex. She had consented to sexual relations with a condom.

With regard to consent, we must take the opportunity afforded to us by Bill C-51 to broaden the scope and add amendments to really clarify this concept. That way, there will no longer be any doubt when the courts have to interpret consent in sexual assault cases.

If all of the amendments are passed, the concept of sexual consent will eventually be clarified. I think it is a good idea to ensure that this information is passed on to police officers. We also need to ensure that the police have more training so that they have a better understanding of what constitutes sexual assault, because in some cases they may think that a person has not been sexually assaulted when in fact he or she has and they should be investigating. Crown prosecutors who analyze these cases and police investigations must also receive training, obviously.

Another important thing to point out about sexual consent and sexual assault is that, although legal measures can be taken to clarify these concepts, funding is also necessary to help victims. We need to ensure that they are properly represented and have the help they need to cope with this ordeal. We need to be logical about this. If we really want to help victims of sexual assault, we cannot just look at this issue from a legal perspective. We also need to look at it from a financial one. Victims need access to legal programs and support programs.

Sexual assault has an enormous impact on victims and their ability to contribute to society. I think we would be wise to invest in better support for them so they can recover more easily. Recently, there has been a lot of talk about post-traumatic stress disorder. However, we need to bear in mind that many people suffering from it are victims of sexual assault. Too often they stay silent or avoid talking about it much. We must be able to support victims and provide them with the necessary care. When looking at compensating victims of crime, we need to avoid subjecting them to a never-ending administrative process. They have already gone through enough psychological trauma. They do not have the energy to fight to be recognized as victims. For many of them, just saying that they are victims of rape or assault is very difficult.

We still have a lot of work to do. I sincerely hope that the committee will study this bill carefully. I also hope that we will accept amendments to explicitly clarify consent by including “stealthing” and by clearly explaining that consent can be withdrawn at any time during sex. Even during the act, a person can withdraw consent if things are not happening the way they should. If the individual withdraws consent but the partner does not respect this decision, this is sexual assault.

I hope we will do the work required for the sake of victims. The concept of consent must be clarified to avoid such cases in court. In some cases, if we had used common sense, we would have clearly seen that this did not make sense, that the individual could not have given consent. I believe that, if we clarify this concept, we will be able to avoid traumatizing victims going through the legal process and having them come out of it in worse shape than they were at the beginning.

I look forward to answering my colleague’s questions.

[Continuation of proceedings from part A]

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 second time and referred to a committee.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Speaker, I am pleased to rise in the House to speak to this latest bill introduced by the Minister of Justice, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act. Our colleagues are right when they call this the justice omnibus bill, and this is one of the discussions I have had with my colleague, the member for St. Albert—Edmonton, on all the different areas that are covered by this bill.

One of the things I have notice in question period is that any time Liberal cabinet ministers get up, they always thank the members of the Liberal Party for all their hard work and support. I wanted to use that precedent to thank the hon. member for St. Albert—Edmonton for all the work he has done in the justice area.

He is correct, and my colleagues are correct when they call this an omnibus bill. I believe it was in March of this year, the government House leader introduced a paper on the whole subject of omnibus bills, and stated:

Omnibus bills can be defined as a bill that contains separate and unrelated themes packaged into one bill. Members are then forced to vote for or against a bill that could have elements that Members would support or oppose. The only recourse for Members has been to seek to divide omnibus bills in committee, but these motions rarely come to a vote or are agreed to by way of unanimous consent.

Bill C-51 fits that description, because rather than dealing with one issue, the bill proposes to tackle at least four different matters at once. First, the bill sets out to clarify and strengthen certain aspects of sexual assault, relating to consent, admissibility of evidence, and legal representation for the complainant; second, the bill repeals a number of provisions in the Criminal Code that have been found unconstitutional by appellate courts, and other provisions that, in their opinion, might likely be found unconstitutional; third, the bill repeals several obsolete or redundant criminal offences; and fourth, it introduces a requirement of a charter statement to go along with any new government bill proposed by the Minister of Justice in the future.

In addition, as the government House leader's paper reads, “Members are then forced to vote for or against a bill that could have elements that Members would support or oppose.”

The bill has elements that we support, but there are some elements that we oppose. First, let me be very clear. We strongly support what Bill C-51 does in terms of clarifying and strengthening the sexual assault provisions. I appreciate the comments from the parliamentary secretary when he said that Kim Campbell introduced these in the early nineties, when I had the privilege of being her parliamentary secretary. It was great to work with her. There were so many different elements that we had to move on in the Criminal Code, and of course, this had the support of the Right Hon. Brian Mulroney throughout, and our efforts to stand up for victims and to protect law-abiding Canadians.

We support the provisions that the government has put in, among other things: to clarify that an unconscious person is incapable of consenting; to clarify that the defence of mistaken belief in consent is not available if the mistake is based on a mistake of law; to expand the rape shield provisions to include communications of a sexual nature or sexual purpose; to provide that a complainant has a right to legal representation in rape shield proceedings, that is an excellent idea; to ensure that an individual's previous sexual history has no bearing on questions of consent; and to create a regime to determine whether an accused can introduce a complainant's private records at trial that are in their possession. These are all very important. I believe they are all changes that we as Conservatives support.

In addition, we are supportive of Bill C-51 where it repeals and amends a number of provisions of the Criminal Code that have been found unconstitutional by appellate courts . We have seen before the risks and hurt that can be caused when sections of the Criminal Code have been ruled unconstitutional and are not removed.

One does not have to look any further than the Travis Vader murder in Alberta, during which the judge convicted the accused under an unconstitutional provision. Consequently, and unfortunately, the case had to be re-tried, causing difficult hardship, and unnecessary pain for the victims' families. Removing provisions that had been ruled unconstitutional by the courts is an important measure to take.

With that said, we take issue with some parts of this legislation. For one, we disagree the government needs to introduce a charter statement for every new piece of government legislation that is introduced by the Minister of Justice and Attorney General of Canada. Although the required charter statement sounds like it might be a good idea, Canadians know that many safeguards already exist. First and foremost is the Charter of Rights and Freedoms itself. Coming into effect 35 years ago, the charter's objective is laid out in section 1:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Canadian governments, both Liberal and Conservative, have been introducing justice legislation since 1982, after the charter came into effect. It has never been a requirement that the government create a charter statement for every justice legislation. It is simply not necessary.

Any legislation that is controversial can be challenged by citizens or groups in court. This will always happen regardless of this new charter statement. I have no problem with the idea of charter statements in general. In fact, if this minister so desires, I would welcome her attaching this to all the legislation that she puts forward. However, to require these as statements by law is another matter. I think it is unnecessary.

If she wants to put out a statement that she believes it complies with the Charter of Rights and Freedoms, she should also include that it complies with the Canadian Bill of Rights that has been in place in this country since 1960, since John Diefenbaker was prime minister. She could do that, but it is unnecessary to bind all future governments and justice ministers by putting that in.

Lastly and most importantly, the Conservatives disagree with some of the sections that the government claims are obsolete. In particular, I want to bring to the attention of the House our opposition to clauses 1 and 14 in Bill C-51.

First of all, in clause 1 of Bill C-51, the government is proposing to repeal section 49 of the Criminal Code. This is what that section currently says:

Every one who wilfully, in the presence of Her Majesty,

(a) does an act with intent to alarm Her Majesty or to break the public peace, or

(b) does an act that is intended or is likely to cause bodily harm to Her Majesty, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

I do not really get why the Liberals are doing this. I was thinking about this on Sunday. I was in Niagara-on-the-Lake for the 225th anniversary of St. Mark's Church. The sermon was given by Bishop David Ralph Spence, who said there were three themes he wanted to talk about. One was the 225th anniversary of St. Mark's Church, and all the good that that church has done, and all the good that has come from the people who attend that church, and what an asset that has been. That church goes right back to when Governor Simcoe was the governor of Upper Canada, back in 1792. That was one of the themes he wanted to talk about.

Then he said he wanted to talk about the 150th anniversary of Canada, and what an asset our country has been since Confederation in 1867. Then he also made a very interesting point. He said that this year is also the 65th anniversary of Her Majesty Queen Elizabeth's accession to the throne. He talked about, and I was thinking about it at the same time, what a wonderful individual she has been in terms of public service to this country as our head of state. Why would the Liberals decide in her 65th anniversary on the throne that it is a good idea to get rid of the section that specifically protects our head of state against anyone threatening or attacking her? It makes no sense to me.

I am also disappointed about the proposed clause 14 in Bill C-51, which would repeal a number of sections and replaces them with something entitled “Trespassing at night”. In short, that clause would get rid of section 176. One of my colleagues raised this matter with the parliamentary secretary.

This section does nothing other than protect the safety and well-being of religious clergy and ministers against dangers and threats. This section also deters someone from disturbing or interfering with a religious worship and ceremony. By repealing this section, the government would be removing the only provision in the Criminal Code that directly protects the rights of individuals to freely conduct the practice of their religion, whatever that religion may be. At a time when news stories are increasingly reporting attacks on religious communities, this concerns me. I have to stand up for the rights of my constituents and all Canadians to practise their religion without fear, recrimination, violence, or disturbance.

The irony of this is that we had a number of debates in the House when the Liberals were telling us how concerned they were about people's right to practise their religion without fear, intimidation, hatred, or prejudice. That is what they said. I did not get into the debate with the parliamentary secretary. This is not obsolete, it is not unconstitutional, it is very important. It is important enough, I can tell the House, that just this year a woman was charged under this offence for allegedly breaking the statue of Jesus at Saint Patrick's Basilica in downtown Ottawa. That section is being used right now, so I cannot imagine why the Liberals would want to repeal it.

I suggest to the Liberals that when they go home this summer, they should tell members of their clergy and people in their ridings that they are removing the section that protects people's right to conduct religious ceremonies, and getting rid of the section that specifically outlaws people who disrupt a religious service. I would be very interested in the feedback they will get on this.

I will be talking to my constituents about this, because they have a right to know that this is the proposal from the Liberal Party. In September, I am going to ask my colleagues what their constituents said and whether they thought it was something they have to get rid of, that anybody who causes a disturbance or threatens somebody is the same thing as a fight in a bar somewhere. I am willing to bet that their constituents will say that it is very serious for anybody to threaten a member of the religious community, or in any way disturb a religious service.

I am hoping the Liberals will reconsider both of those provisions. They are both important to continue. In keeping with the comments I made earlier with respect to this omnibus legislation about how we support some sections and do not support others, I move that notwithstanding any Standing Order or usual practices of the House, when Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act, is referred to the Standing Committee on Justice and Human Rights, it be an instruction to the committee that during its consideration of the bill, the committee be granted the power to divide the bill into three pieces of legislation, one bill containing clauses 1 and 14, one bill containing sexual assault provisions, and one bill containing the remaining provisions of Bill C-51.

[Marco Mendicino, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, it is with great pleasure that I take the floor to discuss Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act. This legislation reflects our government's deep commitment to ensuring that our criminal justice system protects Canadians, holds offenders to account, upholds the Charter of Rights and Freedoms, and shows the utmost compassion for victims.

By amending the Criminal Code and related legislation, we can contribute to a fairer, clearer, and more accessible criminal justice system. We are committed to changes that will have a positive and lasting impact on victims' experiences in the criminal justice system and that affirm the charter rights of all Canadians. This bill would do just that. These changes reflect our government's deep respect for the charter. The bill also represents another deliverable flowing from the ongoing review of the criminal justice system that the Minister of Justice has been mandated by the Prime Minister to carry out.

Broadly speaking, the bill's proposals fall into four categories, the majority of which involve amendments to the Criminal Code. First, there are amendments to clarify and strengthen the law of sexual assault. Second, there are amendments to remove or amend provisions that have been found unconstitutional by the courts, building on the amendments set out in Bill C-39, which the Minister of Justice introduced on March 8. Third, a number of obsolete or duplicative offences would be removed. Finally, the bill would amend the Department of Justice Act to create a new statutory duty for the minister of justice to table a charter statement for every government bill, setting out any potential effects a bill may have on the rights and freedoms of Canadians.

Let me begin by addressing the proposed sexual assault amendments. As is well known, in the past few years we have seen a dramatic increase in public interest in and concerns about sexual assault and how the criminal justice system responds to it. The Minister of Justice and her department continue to collaborate with partners and stakeholders to learn, share, and discuss a broad range of issues and ideas for improving how we, as a society, address the ongoing problem of sexual assault. One of the most important roles of the federal government is to ensure that we have the best possible legal framework in place to ensure our communities are protected and victims are treated with respect.

The measures proposed in this legislation today are one step in this process. They seek to ensure that the law is as clear as it can be, in order to minimize the possibility of the law being misunderstood or applied improperly. The bill seeks to amend the Criminal Code to clarify certain circumstances where consent is not obtained and where the defence of mistaken belief in consent is not available to the accused. It would also introduce stricter rules for the admissibility of complainants' prior sexual history, as well as their private records. In addition, the bill would provide that the complainant has standing and is entitled to be represented by legal counsel during rape shield proceedings.

The Criminal Code already clearly defines consent as voluntary agreement to the sexual activity in question. It also sets out a list of circumstances when consent has not been obtained as a matter of law. For example, the Criminal Code currently states that no consent is obtained where the complainant is incapable of consenting. One of the proposed amendments to the bill would make it clear that there is no consent when the complainant is unconscious, as set out by the Supreme Court of Canada decision in J.A. As the court reminded us there, consent must be contemporaneous or received at the time of the sexual activity in question. To most of us, it seems obvious that an unconscious person cannot consent to sexual activity. Nevertheless, providing for this additional clarity in the Criminal Code promises greater protection for victims of sexual assault.

While many have welcomed these amendments, some have also expressed concern. Specifically, some have noted that this amendment may pose a risk of being interpreted in a way that would disadvantage victims. They argue that codifying the rule that consent cannot be obtained from an unconscious person could lead to defence counsel arguing in court that the law no longer recognizes incapacity to consent short of full unconsciousness, such as when a complainant is extremely intoxicated or only semi-conscious. While our government shares the viewpoint of these critics—that consent must be ongoing and affirmatively given—respectfully, the government does not believe that this is a legitimate concern. Our government agrees entirely that the law should remain clear on this point. Consent cannot be obtained from an unconscious person, and the law also remains that consent cannot be obtained from a person who is conscious but incapable of consenting, for other reasons.

However, this is already clearly reflected in the bill. Unconsciousness is set out in a different subsection from the one that refers to incapacity generally, and new language is proposed to make it abundantly clear that incapacity to consent can be for reasons other than unconsciousness. This demonstrates that the unconsciousness provision is not intended to preclude or replace the many other situations that may be captured by the incapacity provision. Simply put, unconsciousness does not subsume all of the existing circumstances of incapacity to consent. Both would be reflected in the text of the Criminal Code.

The legislation would also amend the defence of mistaken belief in consent. This defence operates where it has been proved as a matter of fact that there was no consent, but the accused asserts that he genuinely, albeit mistakenly, believed that the complainant consented. The law already sets out restrictions on the accused's ability to use this defence. The accused cannot raise the defence if the accused's belief was due to the accused own recklessness, willful blindness, intoxication, or failure to take reasonable steps to confirm consent.

Bill C-51 would amend the law to clarify, in accordance with the Supreme Court of Canada decision in Ewanchuk, that this defence is also not available if the accused's belief is based on a mistake of law. For example, if the accused believed that the complainant consented, even though she was unconscious, or if the accused believed that the complainant's silence or passivity meant that she consented, there would be mistakes of law, and the defence, therefore, would not be available. I believe these changes would help to minimize errors by making the code clearer, more accessible, and easier to apply.

Another amendment concerns the rape shield provisions, which regulate the admissibility of evidence of a complainant's past sexual activity in a manner that balances the complainant's dignity and privacy interests with the fair trial rights of the accused. These provisions were introduced by then minister of justice the Right Hon. Kim Campbell in the early 1990s in order to guard against courts relying on what are known as the twin myths, those being that a complainant's past sexual activity is evidence that she is more likely to have consented to the activity in question, or that she is less worthy of belief.

Bill C-51 would amend the rape shield provisions to clarify that they apply not only to past sexual activity but also to communications made by the complainant that are of a sexual nature or are made for a sexual purpose. Just as it would be inappropriate to infer complainants were more likely to have consented based on their past sexual activities, it is equally inappropriate to find that they are more likely to have consented because of the sexual nature of their past communications. Some courts are already applying the rape shield process to such communications. Bill C-51 would standardize this procedure.

The bill would also fill a gap in the law by introducing a specific procedure for determining the admissibility of private records relating to the complainant, such as private journals or therapeutic records, which are in the possession of the accused. Specifically, if those accused seek to adduce complainants' private records, they must bring an application under the new provisions. As is the case under the existing rape shield provisions, such records would be admissible if the judge determines that they are relevant to an issue at trial and have significant probative value that is not outweighed by the danger of prejudice to the proper administration of justice.

It is worth noting that these changes would implement a recommendation of the Senate Standing Committee on Legal and Constitutional Affairs from its 2012 report on the third party records regime.

Other changes to the sexual assault regime include expressly clarifying that complainants must be informed of their right to be represented by a lawyer in the course of rape shield proceedings, as well as an extension of the notice period associated with such proceedings, to ensure that all parties have adequate time to prepare.

I would like to briefly address some comments that have been made regarding these last two proposals and their impact on charter rights. Our government respects the charter rights of all Canadians, including those accused of crimes. This holds no less true in the context of sexual assault proceedings. We believe that these amendments maintain the fair trial rights of the accused, and at the same time, they recognize the privacy rights of victims. Indeed, the amendments' objectives are largely the same as those that underpin the rape shield provisions, which were found to be charter compliant by the Supreme Court.

More information on the charter compliance of these changes can be seen in the charter statement, which was tabled in this House on June 6.

Ultimately, these important amendments to the law of sexual assault would help ensure that victims are treated with the utmost respect and the compassion they deserve, and that offenders are held to account.

I would now like to address the other Criminal Code amendments proposed in this bill. In keeping with the Minister of Justice's mandate, this diverse set of changes would make the law more relevant, more modern, and more consistent with the charter.

One cluster of amendments involves the repeal of Criminal Code provisions that have been found unconstitutional by appellate courts. For instance, the bill proposes to remove the restriction that prevents sentencing courts from giving enhanced credit to those detained prior to trial because they had breached a condition of bail. This part of the provision was found unconstitutional by the Manitoba Court of Appeal last year in Regina v. Bittern. This amendment would complement the change proposed in Bill C-39 that would remove the restriction on giving enhanced credit to those who were detained due to a previous conviction. This was found unconstitutional last year by the Supreme Court of Canada.

The bill also proposes to remove a variety of evidentiary presumptions that have been found unconstitutional by appellate courts, including presumptions related to gambling offences. Presumptions are shortcuts designed to help the prosecution prove an element of the offence by instead proving a different but related fact. These provisions may sometimes violate the presumption of innocence, which is a fundamental precept of our criminal justice system and one we are committed to upholding.

Another set of amendments would repeal what is known as a “reverse onus”, which refers to placing a burden on the accused to prove a fact. Normally the presumption of innocence places the burden of proof on the crown throughout the trial, and any transfer of that burden of proof to the accused may unjustifiably violate the presumption of innocence. Some reversals can be upheld constitutionally; an example is the reversal of the burden of proof associated with the defence of mental disorder. However, numerous other reverse onuses are likely to violate the rights of Canadians and should therefore be removed from the Criminal Code.

This bill would amend 32 offences that contain the phrase “without lawful excuse, the proof of which lies on him”. The second part of this phrase, “the proof of which lies on him”, is generally interpreted to create a reverse onus such that any time the accused wanted to raise a lawful excuse in defence against a charge, the accused would need to prove it on a balance of probabilities rather than just raise a reasonable doubt.

Our government does not believe that accused persons charged with these offences should be put to the task of challenging the constitutionality of these clauses, which present avoidable charter risks. Forcing people to challenge unconstitutional laws or laws that are likely unconstitutional delays criminal trials and burdens the justice system. This is not in the interests of victims, accused persons, or justice. Instead, our government is committed to continued leadership on proactive criminal justice reform while defending the rule of law.

I want to be clear that these amendments will not negatively impact public safety. These provisions being removed are either already found to be unconstitutional or likely to be found so, and as such they would not be operative in any case.

The bill also proposes to repeal offences that are outdated or otherwise redundant. It would repeal 20 such offences. Many Canadians may not know that the criminal law currently prohibits conduct such as challenging someone to a duel, posting a reward for the return of a stolen item with no questions asked, possessing crime comics, advertising a drug to enhance sexual virility, publishing a blasphemous libel, and fraudulently practising witchcraft.

Canadians are far better served by a Criminal Code that is focused on conduct that actually causes harms or risks causing harms to Canadians and our fundamental values.

Finally, the bill would amend the Department of Justice Act to create a new statutory duty for the Minister of Justice. This duty would require the minister, and future ministers, to table a charter statement for every government bill that is introduced. That statement will set out any potential effects a bill may have on the charter rights and freedoms of Canadians.

The Minister of Justice has already been tabling these statements in relation to bills that she has introduced. The proposed amendment to the Department of Justice Act would formalize this practice and extend it to all government bills. This would complement the existing duty on the Minister of Justice to examine every government bill for inconsistency with the charter.

Going forward, charter statements will identify and highlight key charter rights and freedoms that are engaged by any government bill tabled after this legislation comes in force. They will also set out considerations that support the justification of any limits that a bill may have on a charter right or freedom.

That said, charter statements are not the same as the legal advice provided by a minister of justice or his or her officials during the course of a bill's development. That advice will remain confidential and protected by solicitor-client privilege.

Rather, charter statements are intended to provide Parliament and the public with legal information about the charter implications of proposed legislation. They are meant to flag key charter issues and to be a resource to Parliament and the public for the purposes of enriching debate.

This initiative is motivated by the Minister of Justice's commitment to openness and transparency and is intended to further the commitment in relation to one of our government's core responsibilities: enacting legislation that respects the Constitution, including the rights and freedoms guaranteed by the charter.

This amendment is particularly timely, as 2017 marks the 35th anniversary of the Charter of Rights and Freedoms. This initiative recognizes the essential role the charter plays in our free and democratic society, and our government is very proud to propose it.

I urge all members to support this important legislation, which represents one more step in the minister's review of the criminal justice system, one more step in our government's commitment to the charter, and one more step toward ensuring that our laws are relevant, fair, and accessible to all Canadians.

The House resumed from June 6 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 second time and referred to a committee.