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.

Indigenous Peoples and Canada's Justice System

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

Mr. Speaker, it is a privilege to rise on this day, a day on which the Prime Minister stood in this House to announce that we will introduce legislation to enshrine, finally, the recognition and implementation of the rights of indigenous peoples as the basis for all relations between indigenous peoples and the Government of Canada.

I was also proud to join the Minister of Justice in this take-note debate as she described in detail the hard work and great progress we have made on criminal justice reform. The many examples include Bill C-51, which would strengthen sexual assault laws; Bill C-46, which would strengthen our impaired driving laws; and Bill C-16, which would protect gender expression and identity under the charter. We have also made significant progress in renewing our relationship with indigenous peoples, one that is based on respect and the right to self-govern.

How are we doing this? We are doing it in a number of ways: one, by implementing the RCAP recommendation to create two separate departments, one that is mandated to focus on indigenous-crown relations and the other a department to focus on the provision of indigenous services; two, by embracing the UNDRIP principles; three, by the creation of the working group, which is currently reviewing all federal laws and policies to ensure that Canada is fulfilling its constitutional obligation with indigenous peoples; and four, by creating and enshrining 10 principles which inform our relationship. This is merely a starting point, in a renewed approach, where we are supporting the rebuilding of indigenous governments and nations while, in turn, reducing the use of the courts to resolve conflict.

Ultimately, this work will help assist Canada to overcome the legacy of colonization and achieve true reconciliation with indigenous peoples. This is a historic moment, one for which indigenous peoples have been advocating for many decades. As we move toward the next 150 years of Canada, we envision a country that is more inclusive of first nations, Inuit, and Métis peoples. Making the shift is fundamental to the growth and prosperity of Canada.

In terms of this take-note debate, let me say a few words.

Indigenous peoples are concerned because they do not know if the criminal justice system will treat them fairly, whether they are victim or accused. As the government strives to establish a nation-to-nation relationship with indigenous peoples, we must recognize and resolve these problems.

Let me speak for a few moments about the very well-documented, systemic challenges which currently exist in our criminal justice system. In this regard, the statistics reveal a number of concerning trends.

Indigenous people are more likely than any other Canadian to be victims of crime. Indigenous people are more than twice as likely to be victims of violent crimes than non-indigenous people. Indigenous women are also three times more likely to experience sexual assault.

Over 1,200 indigenous women and girls have gone missing or have been murdered. Sixteen per cent of all women murdered in Canada from 1980 to 2014 were indigenous, although they make up 4% of Canada's female population.

In 2015-16, indigenous adults accounted for 27% of admissions to custody in provincial and territorial institutions, and 28% of admissions to federal institutions. This is about seven times higher than the proportion of indigenous adults in the Canadian adult population. The overrepresentation is more pronounced for indigenous women than it is for indigenous men. In 2014-15, 38% of female admissions to provincial custody and 31% of female admissions to federal custody were indigenous women. Indigenous youth are also overrepresented in our jails. They are only 7.5% of the Canadian youth population, but they account for 35% of admissions to provincial and territorial correctional services.

These statistics are telling, and they call on us to do the important work that is before us now. What is that work?

In light of these trends, we are taking action to improve the experience of indigenous people in the criminal justice system. Specifically, we have taken steps to strengthen programming to improve outcomes for indigenous people when they come in contact with the criminal justice system as both victims and accused.

The 2017 budget set aside approximately $11 million in permanent funding for the indigenous justice program, and the 2016 budget boosted permanent funding for the indigenous courtwork program by $4 million. These programs offer support to reduce recidivism and tackle the root causes of delinquency among indigenous individuals in an effort to reduce their contact with the criminal justice system.

Alongside the National Inquiry into Missing and Murdered Indigenous Women and Girls, the Department of Justice has also undertaken two new victim service initiatives to provide direct assistance to families. The first is funding the creation of family information liaison units, a new service to help families access available information about their loved ones from multiple government sources. Second, the department is providing additional funding for indigenous community-based organizations, non-governmental organizations, and victim services to support the delivery of culturally responsive and trauma-informed services for families of missing or murdered indigenous women and girls.

Of course, we know that funding alone is not enough. That is why our government has also been engaging with indigenous people and with all Canadians to assess the problems faced by indigenous people in the criminal justice system. This engagement has taken place through round tables on our indigenous justice program. I have been privileged to participate in that broad national round table engagement process along with the Minister of Justice.

More broadly, under the leadership of the Minister of Justice, our government has also undertaken a review of Canada's criminal justice system to ensure that it is just, compassionate, and fair, and promotes a safe, peaceful, and prosperous society.

What we are hearing is that the challenges facing Canada's indigenous community, including overrepresentation, which I have already alluded to, are top of mind when it comes to this government's agenda, when it comes to consultations and reform.

As our government continues the important work towards reconciliation with indigenous peoples, we have also developed 10 principles respecting Canada's relationship with indigenous peoples, principles which base the relationship between indigenous peoples and the federal government on the right of self-determination, and relationships based on recognition and implementation of rights. The 10 principles are intended to be a starting point for a recognition-based approach to changing federal laws, policies, and operational practices that recognize indigenous peoples.

Lastly, the national inquiry into missing and murdered indigenous women and girls was established in December 2015, and work began in September 2016.

The independent commission was tasked with examining the systemic causes behind the violence that indigenous women and girls experience and their vulnerability to violence, as well as the institutional policies and practices put in place as a response to violence, including those that have been effective in reducing violence and increasing safety. The commission was then asked to make recommendations on concrete measures to end this national tragedy and honour and commemorate missing and murdered individuals.

What are the steps moving forward? While the important initiatives I have described are critical to improving the experience of indigenous peoples, our government recognizes that we can and must do better for all Canadians. While it would be inappropriate for me to speak about the specific circumstances around the Stanley case, we must recognize the historic patterns that exclude and victimize indigenous Canadians. Part of our work in understanding and recognizing victimization is to meet with and listen to indigenous Canadians. Listening to Canadians in this way and expressing our empathy does not undermine the operation of the criminal justice system; rather, it will serve to strengthen it. Some of the concerns we have heard this week relate to the jury selection process, and the Minister of Justice has indicated our government's willingness to look at those provisions as part of our overall criminal justice review.

More broadly, our government, led by the Department of Justice, is currently developing an action plan to reduce the overrepresentation of indigenous peoples in the criminal justice system, both as victims and as offenders. The goal of this action plan is to advance federal efforts toward responding to the Truth and Reconciliation Commission's calls to action respecting adult and youth indigenous overrepresentation. We will continue to develop the action plan through engagement with indigenous partners and collaboration with provincial and territorial governments.

In conclusion, all Canadians know that we can and must do more to reshape the experience of indigenous Canadians in our criminal justice system. We must do this work in partnership with indigenous peoples, recognizing our role and our efforts to continue on the path of reconciliation.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Speaker, I am pleased to have this opportunity to speak in the House on the experience of indigenous peoples within Canada's justice system.

First, I would like to reiterate that our thoughts and prayers continue to go to the members of the Boushie family on the tragic loss of their son, their nephew, their brother. No family should ever have to endure such pain. Our hearts are united with the Boushie family at this most difficult time.

I want to spend a bit of time talking about the Conservative Party's record in supporting victims of crime.

My colleague from Kamloops—Thompson—Cariboo, who has shown leadership on this issue, pointed out something very important. and that was that our colleague, the Hon. Peter MacKay, introduced the Victims Bill of Rights. Again, this is completely consistent with where the Conservative Party is, has been at in the past and continues to be. It became law in 2015. That was not the only thing we had done.

We passed Bill C-2, the Fair and Efficient Criminal Trials Act, which among other things amended the Criminal Code to allow the swearing in of up to 14 jurors to ensure a trial could be completed. It also had other provisions. One of them was special protections for aboriginal women under the threat of domestic violence. This is known as the Family Homes on Reserves and Matrimonial Interests Rights Act. Again, this is an important step forward to updating Canada's laws.

Another example is that the Human Rights Code in our country did not include indigenous peoples. They did not have the protections that all Canadians deserve. Our government did that. We said that it was important for everyone in the country have those protections.

I want to be clear that the Conservative Party is always interested in ways to improve Canada's justice system.

We talked about Bill C-51, the only bill the government did bring forward, but we supported it. We will not take the position the Liberals took with the previous government when they basically opposed everything we did. We will look at any way to improve Canada's justice system.

This past week, the heartbreaking death of Colten Boushie warrants discussions about the challenges first nations people face. All Canadians want to have fair and equitable treatment for all indigenous people. In fact, if we look at what we did in government over 10 years, they were all consistent with helping to support victims and people in the criminal justice system. One of the significant resources was to expand the aboriginal justice strategy, which enabled aboriginal communities to have increased involvement in the local administration of justice.

During the 2008 fiscal year, as an example, approximately 113 programs were funded and they served nearly 400 indigenous communities. We continued to renew that as part of our economic plan. In fact, in 2014, we renewed it for another two years. Why? Because we believed it was important.

One of my colleagues on the other side said that the native courtroom program had ended. It certainly did not end under our government. It was one of those programs in which I was very interested. It was known as the aboriginal court workers program. It assisted indigenous people to understand their right to speak on their own behalf or to request legal counsel, and to better understand the nature of the charges against them. It was very important. It assisted indigenous people with the administration of the criminal justice system, with special awareness given to the values, customs, languages, socio-economic conditions of indigenous people, and ensured there were no communication barriers between indigenous people and those involved with the administration of the criminal justice system.

Let me be clear. The Conservative Party of Canada has always been interested in hearing from Canadians on ways that we can improve the criminal justice system. Certainly the heartbreaking death of Colten Boushie warrants a discussion about the challenges faced by first nations people. We would welcome and carefully consider proposed legislation that would improve the justice system, while maintaining the independence of our justice system.

Judicial independence is protected in our Constitution, and it guarantees anyone accused of a crime that his or her case will be heard by an independent and impartial tribunal. Independence is necessary for public confidence in the fairness and impartiality of our justice system. It is a cornerstone of Canadian democracy. Fairness for all Canadians includes everyone, indigenous and non-indigenous. We all deserve that protection.

As I have stated, I am in favour of seeing more indigenous jurors and working with the indigenous community with other justice-related issues, including indigenous policing. Just two weeks ago, I was honoured to meet with the Association of Iroquois and Allied Indians on indigenous policing and law-related issues. We discussed how we could support indigenous police services. One way of doing that would be to ensure they would be listed as first responders.

I hope the government will act on the recommendations of this group. It is extremely important that we give it assistance. The government must bring first nation policing in line with other police services. There is nothing wrong with that, and it makes sense. Those forces need to be protected under strong legislative frameworks, and afforded the same resources and support as federal and provincial police forces.

Underfunding jeopardizes the adequacy of policing in indigenous communities, and there have been examples, which I was told about, among the nine first nation police services in Ontario. For instance, I was told that they were not legislated under the Police Services Act and therefore were not required to meet the adequacy standards of other local police services. There have been a couple of articles on how this can work to the disadvantage of people who need the help.

Therefore, if the government is looking for ways to help out indigenous communities, certainly this is one way. Ensure they get the same protection and the same resources as other policing services do. Again, I heard this about a week ago from groups in Ontario that this was what they should have. If the government is looking for ways to do this, this is something on which it could move forward.

We continue to be prepared to encourage more indigenous representation and input into our justice system. That is important. As I have stated already, politicians, regardless of how powerful they are, must also respect the independence of our judicial system. If it is interfered with, it may have the unfortunate effect of impeding the crown's ability to launch an appeal.

On the weekend, I made a statement about the Boushie case. I recognized that the verdict in this case must have been difficult for all those involved, especially for the family members. However, I am pleased they are in Ottawa this week.

Again, we are open to suggestions on these things. I believe you will get more support from us for worthwhile initiatives. You will probably get more support from us than we received from you in the last Parliament. However, we have to work together.

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

Mr. Speaker, I would like to be able to thank my hon. colleague for her remarks, but there was one glaring passage within her presentation that drew some concern from the government side of the aisle. She suggested that this government has not taken any concrete steps whatsoever when it comes to criminal justice reform. We have to respectfully disagree.

Where was the hon. member and her colleagues on that side of the House when this government introduced Bill C-51 to address sexual assault and take down the systemic barriers that have for far too long stopped victims, who are disproportionately represented in the indigenous community? Where was her support? Where was her colleagues' support? Why does she not make mention of that?

To be very particular about it with regard to that legislation, in that context we have ensured that we are going to codify Supreme Court of Canada jurisprudence. We are going to ensure that we are shoring up rape shield laws, which are aimed precisely at taking down the twin myths that have served as systemic barriers, and which would enable victims to step forward to get the justice they deserve.

I ask my hon. colleague in good faith to turn her attention to the good work that is being done on this side of the House. Will she agree?

[Malcolm Brown, Deputy Minister, Department of Public Safety and Emergency Preparedness]

Thank you very much, Mr. Chair.

I'll make a few opening comments, and then I think my colleague Shelly from the Communications Security Establishment will also have some opening comments.

I'm pleased to have the opportunity to appear with my colleagues today to discuss Bill C-59, the proposed National Security Act, 2017.

As you can see, I'm joined by officials from the Public Safety portfolio, including the RCMP and CSIS, the Communications Security Establishment, and the Department of Justice.

I want to begin by thanking all the members of this committee for reviewing this bill.

As you know, this bill is the focal point of Minister Goodale's mandate with regard to national security. It is also the result of an unprecedented nationwide public consultation, one in which this committee played an important role.

The consultations undertaken by Public Safety Canada and the Department of Justice involved an online questionnaire, in-person town halls across the country, social media engagement, and much more. In total, tens of thousands of views were heard, collected, documented, and analyzed.

Of course, this committee held numerous meetings of its own on the topic of national security.

The proposed legislation reflects all of this input - from citizens, parliamentarians, community leaders, national security experts, and academics.

Bill C-59 has three core themes.

Number one is to enhance accountability and transparency. This would be done through the proposed creation of an intelligence commissioner and a national security and intelligence review agency, both of which would complement the work of the newly established National Security and Intelligence Committee of Parliamentarians.

Number two is to fulfill mandate commitments with respect to the former Bill C-51. This includes proposed revisions to threat reduction activities under the CSIS Act, amendments to the Criminal Code, improvements to the Secure Air Travel Act, and revisions to the Security of Canada Information Sharing Act.

Number three is to ensure that our national security and intelligence agencies can keep pace with the evolving nature of security threats. This includes measures such as modernizing the CSIS Act, establishing the proposed Communications Security Establishment Act, and making other legislative updates.

In short, bill C-59 is designed to update and modernize Canada's national security framework to reflect current realities. Its overall objectice is to keep Canadians safe, while safeguaring our rights and freedoms.

To ensure that this bill achieves this objective, Minister Goodale signalled his intention for a thorough review and analysis of its contents as it proceeds through the parliamentary process.

Beginning this past summer and continuing through to the new year, officials from Public Safety Canada and from across the security and intelligence community have engaged key stakeholders. In many ways, this has been a continuation of conversations that began with the national security consultations in 2016, which I mentioned earlier.

The aim of these discussions and interactions has been not only to respond to technical questions about the content of the bill, but also, and mainly, to obtain feedback and input about how to improve the bill.

We've had meetings and exchanges with the Office of the Privacy Commissioner of Canada, the Security Intelligence Review Committee, the Office of the Communications Security Establishment Commissioner, and the Civilian Review and Complaints Commission for the RCMP.

We also had a number of exchanges with prominent academics in the field of national security in order to obtain constructive feedback to help ensure the bill achieve its objectives. I can assure you that these discussions were very helpful.

Similarly, we have taken a keen interest in the deliberations of this committee, including the testimony of witnesses and the detailed written briefs made available on the committee's website. I should note that, although separate from Bill C-59, the government announced in June that it would be adopting a national security transparency commitment to be applied across Canada's federal national security apparatus. Public Safety Canada is exercising a leadership and coordination role for implementing that commitment and supporting the establishment and operation of an advisory group. This work will complement the ultimate objectives of Bill C-59.

It is Minister Goodale's aim to have an open and thorough conversation in order to ensure that this bill is the best it can be.

It is in this spirit that my colleagues and I appear before you today. We look forward to responding to any questions the committee may have about the bill.

Thank you very much, Mr. Chair.

Religious Freedom

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Speaker, I am tabling a petition on behalf of 25 petitioners. They are drawing the attention of the House to Bill C-51, an amendment that was proposed to section 176 of the Criminal Code that would eliminate protection for members of the clergy and other religious leaders.

They specifically draw attention to private member's Bill C-305, which was passed unanimously in the House. In that particular section, extra protection was given to a building or structure primarily used for religious worship, including a church, mosque, synagogue, or temple. They think the protections in section 176 should be maintained. They ask the House of Commons to abandon any attempt to repeal section 176 of the Criminal Code and to stand up for the rights of all Canadians, including all those included in the charter. They also mention that the practice of religion should be done without fear of recrimination, violence, or disturbance.

Criminal Code

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

Madam Speaker, I will start my speech on Bill C-365 by acknowledging its sponsor, the member for North Okanagan—Shuswap. I very much appreciate the reasons behind the bill and why it was introduced.

I am a fellow British Columbian. Everyone in B.C. is very well aware of the wildfire risk, particularly with what last year represented. We had an absolutely terrible fire season.

I have had previous career experience working in the bush. I had eight years serving as a tree planter. I have worked throughout the interior. My brother was a wildfire fighter for about three years. He had seen another difficult year in 2003. I also have many friends who serve as volunteer firefighters, so I very much understand the risk they put themselves in to protect us and that their equipment is vital to the job that they do.

The media has reported on several occasions some of the theft that has happened. In 2016, the Vancouver Sun published a story about a communication tower's equipment that had been intentionally vandalized, which caused between 80,000 and 100,000 dollars' worth of damage. In 2017, CTV News covered a story about a water pump and hoses that were stolen from the Harrop Creek wildfire northeast of Nelson. The theft of the pump and 10 hoses really impacted the effectiveness of the firefighting activities, and posed safety risks to the public and to the first responders working to contain the fires. I want to underline the seriousness of the crime when someone intentionally vandalizes or steals firefighting equipment.

I want to get three main points across as I talk about the bill.

First of all, I want to acknowledge that firefighting is extremely important work and that we support first responders, but I feel that giving the judiciary power for life in prison for theft and vandalism is extremely excessive.

The second point I want to make is that stronger penalties do not necessarily provide a deterrent. While this equipment is used in a life-saving situation, a 25-year prison sentence for a non-violent offence is unjustified and it is not in keeping with the current penalties for such an offence.

The third point I want to make is that, instead of focusing on increasingly harsher penalties, I think we should be committed to crime prevention. With reasonable, measured, and effective actions, we could shift the focus from crime and punishment into more collaborative ways to make our communities and those serving them safer.

Last year, 2017, I had the honour of serving as our party's justice critic and serving on the Standing Committee on Justice and Human Rights. One of the major pieces of government legislation that we reviewed on that committee was Bill C-51, a major Criminal Code cleanup. One of the things I learned last year is that when one becomes a student of the Criminal Code, one learns just how many redundancies and inoperative provisions exist within the code, and that, really, as an entire document, it is in need of a serious overhaul. Bill C-51 spent much of its effort trying to eliminate many of these redundant and obsolete sections, particularly the redundant sections. It tried to get those redundant sections that were otherwise covered in other sections of the Criminal Code and that, if left in there, would simply add to confusion for those who work in the judicial process.

If we look at what Bill C-365 provides for, a life in prison is very much an excessive penalty. I would draw hon. members' attention, as it has been mentioned in many of the speeches, to the many sections in the Criminal Code that can already be used to severely punish someone who is guilty of such a crime. One of the main sections I would draw hon. members to is section 718.1, which states quite clearly:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

If someone is before a court on a charge of vandalism or theft of firefighting equipment, and it can be properly determined that it caused injury to persons because the firefighters were unable to use that equipment, there is no doubt in my mind that a judge and/or jury would look at the gravity of the offence, the harm caused by the offence, and would lay down the appropriate sentence.

By no means do I want to say that such a crime should go unpunished. I am simply stating the fact that the Criminal Code already has provisions to allow for proper sentencing measures.

The other point I want to get across is that there is a wide body of evidence out there that shows that strong penalties do not necessarily provide a deterrent. We want to make sure that the crime in question is prevented in the first place. That is in everyone's interest.

I want to read a quote from the The Economist, which states:

A review by Steven Durlauf of the University of Wisconsin and Daniel Nagin at Carnegie Mellon University found little evidence that criminals responded to harsher sentencing, and much stronger evidence that increasing the certainty of punishment deterred crime. This matters for policy, as it suggests that locking vast numbers of people in jail is not only expensive, but useless as a deterrent.

Another quote I have comes from a study by professors Doob, Webster, and Gartner, which is titled “Issues Related to Harsh Sentences and Mandatory Minimum Sentences: General Deterrence and Incapacitation”. It states:

At this point, we think it is fair to say that we know of no reputable criminologist who has looked carefully at the overall body of research literature on “deterrence through sentencing” who believes that crime rates will be reduced, through deterrence, by raising the severity of sentences handed down in criminal courts.

If we all use our common sense, we know that most people who commit criminal acts are not pausing in the middle of the act thinking that if they break a certain section of the Criminal Code they are going to get such and such a sentence. Most people who commit crimes are not even aware of the sections of the Criminal Code they are breaking. Therefore, the suggestion that by adding this section we are actually going to deter the crime is not backed up by evidence. There are much better ways to safeguard equipment and the people who are using it.

What exactly do we want to achieve with this debate? We can have a more measured and effective approach to solving the problem. If we focus on prevention, we can solve the problem proactively. People should be made aware, through public awareness campaigns, of the impact that vandalizing or stealing equipment can have. We already know that public awareness campaigns for drinking and driving have led to a national decline in such instances. Therefore, there is evidence that such campaigns work.

We should consider other options to reduce the theft and vandalism of firefighting equipment. They could consist of educational materials or awareness campaigns, investing in better security and surveillance systems, and making sure that the equipment has proper lock-up procedures in place for firefighters to use.

I want to end by reiterating that my colleagues and I, and I am sure everyone in this House, not only the friends I have and the people I have known through my career as a tree planter, very much commit to supporting firefighters and all first responders. I want to work with all first responders to make sure that we have policies that find effective, measured solutions to problems of equipment theft and vandalism.

Fellow British Columbians lost homes in the B.C. wildfires. We have to acknowledge the terrible loss they went through. They very much need help in rebuilding their lives, and we should all work together to have that as a laudable goal.

I do not dispute the seriousness of the crime, but I feel very much that there are better measures we can employ to stop it from happening in the first place. I do not think Bill C-365 is that answer.

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

Mr. Speaker, it is indeed a great honour to be the last speaker today on this particular bill. I want to start by thanking several of my colleagues who had to cover for me in the earlier part of the session when, due to a family situation, I was unable to be here for the first sitting weeks of Parliament and unable to participate in the Standing Committee on Justice and Human Rights. That was during the time when Bill C-51 came before the committee, and I just want to signify my appreciation for the colleagues who did that important work on my behalf.

I have heard comments in this House referring to Bill C-51 as an omnibus bill. With respect, I would have to disagree with those comments. The true sense of omnibus legislation refers to a bill that amends multiple different federal statutes, whereas with Bill C-51, we see all the amendments grouped thematically and really centred on cleaning up the Criminal Code, those redundant and obsolete sections, clarifying the language, and also providing direction to the Minister of Justice in providing a charter statement. Of course, there are consequential amendments to other acts and transitional provisions, but on the face of it, Bill C-51 is an appropriate bill. Some may balk at the length of the bill, but I would say to those members that just underlines the state our Criminal Code is in.

The Criminal Code is a very massive federal statute. It has been added to over the decades, and is a law that needs a lot of cleanup. In fact, legal scholars have been calling for us to act on these provisions for decades now. They have resulted in some real problems in case law. Unless Parliament provides for the amendments, the Criminal Code gets faithfully reproduced with all of its mistakes year after year.

It is heartening to see the charter statement contained in the bill. I will commend the government on starting that process, where the government at least puts forward its arguments with respect to why it thinks a particular piece of legislation infringes on the charter and why it thinks it is going to be okay. That is a starting place for us to have a fulsome debate in this place. As to whether we will always agree with it, that of course remains another question.

We are encouraged that the sections that help clarify Canada's sexual assault laws are in there. When we talk about our sexual assault laws, the big topic of conversation in Canadian political and public discourse is on consent. We need a lot of education among our youth and all members of society on what consent actually means. It is one thing to codify it in the Criminal Code, but not many people outside this chamber and the court system have the opportunity to read the Criminal Code. We also need to have that robust public education campaign to make sure everyone in society knows exactly what consent means and what the ramifications are of it.

On the sexual assault provisions, I will go over a few of the things the legislation is aiming to do. It is aiming to clarify specifically section 273.1, which is going to reflect the Supreme Court's decision in R. v. J.A. It is amending section 273.2, which clarifies the defence of a mistaken belief of consent. It is not available if the mistake is based on a mistake of law, for example, if an accused believed that the complainant's failure to resist or protest meant that the complainant consented.

This was a pretty heavy part of the committee's study. This part of the bill is quite complex, where a slight turn of the phrase or a different word used can certainly have some big ramifications. When I was on that committee, a lot of that testimony really informed some of the amendments the NDP made at that committee. Of course, thanks to my colleagues who took my place during some of the important testimony we heard.

We moved three main amendments that, unfortunately, were not passed at committee. While I respect my Liberal colleagues' arguments against those provisions, I think the law is an organic thing. We do our best to write the law in this place, but of course it will have to withstand the test of time within our courts, and those ultimately will be the judge of who was right and who was wrong in this case.

At committee, we tried to amend clause 10 to clean up the language to include the reason that a complainant would not have the capacity to understand the nature of the activity or would not be aware that she or he was obliged to consent to the activity. Therefore, we were concerned that the definition of incapacity might not have been entirely clear. There were some questions over whether the law was relying too heavily on a person's being unconscious and not looking at other forms of incapacity such as being drugged or something like that. Someone may not necessarily be unconscious, but could still be incapable of consenting to the activity that is going on.

We also heard of a complainant's expectation of privacy. We moved an amendment that reflected the need to clarify the admissibility of a complainant's private records at trial that would be in the hands of the accused. We heard some really great testimony from Professor Emma Cunliffe from the Peter A. Allard School of Law at UBC.

I was proud to move those amendments and argued as forcefully as I could, ultimately to no avail, but I still respect the work we did at committee and that we are finally at a stage now where Bill C-51 is on the launching pad and ready to go to the other place.

This bill also seeks to clarify and amend a number of sections of the Criminal Code that are redundant and obsolete. Some of those sections, I can go over. It would repeal section 71, provoking a person to fight in a duel or accepting such a challenge. Of course, in modern Canadian society that is no longer going on. It would repeal advertising a reward for the return of stolen property no questions asked, under section 43; and, of course, it would repeal the section on the possession of crime comics, from another age in Canada when people thought these would corrupt our youth. Of course, we know that to be a bit outdated in this day and age. One of my favourite clauses repeals the section on people fraudulently pretending to practise witchcraft. These sections serve to show how out of date many sections of our Criminal Code are and, of course, why we need this particular clause.

I will end on one of the most positive parts of our study of this bill, and that had to do with section 176. When members first read the bill at second reading, the proposed repeal of section 176 was simply a line item. It became obvious over the summer months that this particular section had deep symbolic value to many religious communities across Canada. I know that many of my colleagues and I received a lot of correspondence from people who felt that the section should be kept in the Criminal Code because of today's climate of religious intolerance. I believe that repealing it would have sent the wrong message. I am very pleased that we as a committee, indeed all parties, came together to keep that section and the fact that we reached consensus to modernize the language and so on and so forth.

With that, I will end on the fact that the bill is an important first step. We in the NDP are eagerly awaiting news from the Liberal government on when it will move ahead with Bill C-39, because that bill includes some very important provisions of the Criminal Code that need to be dealt with. I hope that the current government, with its emphasis on criminal justice reform, heeds those requests and moves forward with that particular bill.

With that, I will conclude my speech. I appreciate this opportunity to speak to this bill.

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

Mr. Speaker, I have the great honour of serving as one of the vice-chairs on the Standing Committee on Justice and Human Rights. I have been on a few committees, but I have to honestly say that I have never had a better experience than being on the Standing Committee on Justice and Human Rights in this Parliament. Everyone who serves on the committee approaches their job with a lot of care, compassion, and responsibility, and it is because of the nature of the subject matter that comes before committee.

My experience, whether dealing with various studies on access to justice or criminal justice bills, has always been a positive one and I feel there are always good conversations in that respect. We made some good amendments that reflected the popular will of the people, notably with section 176. I received an avalanche of correspondence from people all across the country, for whom section 176 had deep, symbolic value. I am glad that all parties could come to an agreement on leaving that section in.

The Minister of Justice has stated many times that criminal justice reform is very important to the Liberal government. As we are about to send Bill C-51 off to the other place, I wonder if the parliamentary secretary could comment on the status of Bill C-39, because that has some incredibly important provisions that need to be amended in the Criminal Code. We have heard reference to the Vader case, in which an incorrect verdict was rendered because of an obsolete section of the Criminal Code. It also deals with a section that still criminalizes abortion.

If criminal justice reform is so important to the government and we are now past the two-year mark, can he offer any insight as to when we will see further steps in the government's agenda on criminal justice reform?

[Ted Falk, Conservative, Provencher, MB]

Mr. Speaker, I want to thank the member, who is the chair of the Standing Committee on Justice and Human Rights. I was very pleased to serve with him as the vice-chair for two years, and I respect his leadership and his chairmanship of that committee. He does an awesome job, and he takes a balanced approach. He is willing to listen, so I commend him on his role there.

I was happy to participate in the debate on Bill C-51 at his committee. He gave me the opportunity to ask questions to the witnesses in regard to leaving in section 176 of the Criminal Code.

I am disappointed that the justice minister even presented the bill with the removal of section 176. I do not know what in the world she was thinking, but it was a disappointment. When Canadians recognized that it was in there, when we as politicians brought it to their attention, they overwhelmingly responded to the justice committee, to the justice minister, to the Prime Minister. The committee listened and realized it is hugely important to Canadians that protection for religious services, for clergy, for religious officiants be enshrined in the Criminal Code. We need that protection. It is important to all Canadians that we have that freedom, and we want to protect that.

[Ted Falk, Conservative, Provencher, MB]

Mr. Speaker, I thank my colleague, the member for Peace River—Westlock, who I think did a great job of expanding on this bill. It is indeed a real privilege for me to stand and speak about Bill C-51.

I think the last time I spoke about Bill C-51 was about two years ago when the Minister of Public Safety introduced it as an anti-terrorism measure. I was very happy to work on the public safety committee at that time and to be part of the committee work that brought that bill forward. It was indeed a wonderful piece of legislation, which I may remind the Liberals they wholeheartedly supported.

Today, Bill C-51 is an omnibus bill, as was previously mentioned. I Googled it just for the sake of understanding maybe what an omnibus is. It could be a four-wheeled bus. That is not the case here. It says “items previously published separately” is what constitutes a bill as being omnibus. Certainly this is an omnibus piece of legislation, something that the Liberals railed against during their time as the third party in this House.

From that perspective, we are going to talk about it a little more. It means that we are going to have to cover a bunch of unrelated items, but they are all stuck in this bill. The first part of the bill I would like to speak about is found in clause 14 of Bill C-51. It was introduced to remove section 176 of the Criminal Code.

For the benefit of the folks watching these proceedings, I would like to read the section as it is being presented. Subsection 176 (1) of the Criminal Code says:

(a) by threats or force, unlawfully obstructs or prevents or endeavours to obstruct or prevent a clergyman or minister from celebrating divine service or performing any other function in connection with his calling, or

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

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

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

Section 176 provides explicit protection in the Criminal Code. It makes it a crime to unlawfully obstruct, threaten, or harm a religious official, before, during, or after they perform a religious service. It also makes interrupting or disturbing a religious service a crime.

In a time when there is an increasing amount of violence directed against religious groups and religious gatherings, removing this section made little sense. Yet, for some reason, the Liberal government wanted to get rid of the only protection for Canadians performing and participating in a religious service.

The Liberals said that attending a religious service was no different than attending a lecture. However, the many and varied religious groups which exist in Canada came forward in one collective voice, speaking one collective message. The message was simple: religious services and members of the clergy require protection under the law because they are different in kind from other sorts of public gatherings.

Removing section 176 would treat the disruption of a religious service as a mere mischief charge. To religious Canadians, a religious service is more than just an event to attend; it is a formative experience to their individual and community identities. Disrupting such a ceremony is not a small matter, but an act which offends their most fundamental right to gather in a peaceful assembly while sharing their most cherished beliefs.

A mere mischief charge in a time of growing intolerance would not have been sufficient. Indeed, repealing section 176 seems to show an intellectual disconnect on the part of the Liberals.

I am wondering what they were thinking by removing section 176, at a time when we see religious persecution all over our globe. We have seen attacks on religious institutions here in Canada, and the Liberals want to remove the only explicit protection that members of faith institutions have while they are conducting a worship service.

I want to talk a little about my own personal experience, because I grew up as the son of a clergyman. I have a pretty good idea, at least in the Christian faith, of what a clergyman does, and what part of his duties are. I am sure it is similar in all faiths.

That is the beauty of section 176. It is not explicit to the Christian faith. This is protection for clergy and for worship services that applies to all faiths. Whether they are Christian, Jewish, Sikh or Hindu or Muslim, this provides protection for members of the clergy. It provides protection in the Criminal Code for all forms of worship services.

I remember clearly as a young person, growing up and into my early adulthood, the time when my father was a pastor. My father died at the age of 51 from the same rare throat cancer that one of our colleagues passed away from earlier this year. He too had a son by the name of Theodore, as did my father. My father passed away at an early age, but I do remember the work that my father was engaged in and some of the things he did. One of the things he was obviously called upon to do as a pastor was to conduct worship services on a Sunday morning for his congregation, and that is something that section 176 of the Criminal Code clearly identifies will be protected.

Some of the other things were that when he had parishioners or members in the community who had experienced tragedy in their lives, who maybe had encountered some personal difficulties, found themselves in the hospital with a debilitating or life-threatening disease or facing death, often the clergy are called to administer comfort to those individuals. In my father's case, he was able to share the saving grace and power of the knowledge of knowing Jesus Christ with the individuals who were facing imminent death. It gave them reassurance and comfort to know they could put their faith in Jesus and have security and eternal life. These were functions that my father performed on a regular basis. I remember hospital visitation was very important to my father. Section 176 is something that would provide protection for clergy as they go to visit their parishioners, or members in their community who may be suffering from illness, or the illness of a family member.

Something else my father did was to conduct marriage ceremonies. It is an important part of everyday life when a man and woman decide they are in love and want to commit to spend the rest of their lives with each other. They call a member of their clergy and say that they would like to get married.

It is an exciting part of life, a new part of life, so the clergy are called upon to perform marriage counselling, which is part of the work that clergy do. They give marriage counselling, and it is a very important part of the work of the clergy. In the coming and going of their particular duties in performing marriage counselling, but also in performing the actual ceremony, the Criminal Code, through section 176, would provide protection.

One could ask how often that protection is required. People have been successfully prosecuted under section 176 for interfering in a religious or worship service, or also interfering with or obstructing clergymen in the dispatch of their duties. It is kind of like an insurance policy. The comfort of knowing it is there to provide protection for people and their loved ones is very reassuring, even though they obviously hope they do not need it. Certainly our hope, as Conservatives, would be that we would never have to experience a situation where section 176 of the Criminal Code is used. However, it certainly provides a deterrent for individuals from seeking to disrupt clergymen in the dispatch of their duties, disrupting a worship service, or disrupting worshippers and parishioners as they are in a gathering where they are encouraging one another and expressing their deeply held faith convictions, and worshipping the creator they serve.

There are lots of good reasons to support Bill C-51. Through many efforts of Canadians right across our country, who made their voices heard and their opinions known to the committee, to the justice minister, and to the Prime Minister, the Liberals listened. and they amended the bill. They are going to keep section 176 in Bill C-51. I am happy, as a Conservative, to support that bill.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Speaker, it is my privilege to rise today to speak to Bill C-51. The very words of Bill C-51 hearkens back to the last election. As I recall, the opposition at the time, which is now the government party, had made a lot of noise about a particular Bill C-51 in the last Parliament. I know the Liberals also made a lot of noise about omnibus bills. I heard a lot about that one thing.

It is ironic today that two things, which are forever burned in my memory, are now coming up again today, as we discuss the current Bill C-51 and this omnibus bill.

Before I go any further, Mr. Speaker, I will be sharing my time with the member from Provencher.

Getting back to the omnibus bill, as far as I am aware, the Conservative party used omnibus bills when in power. They were a tool that was available to the governing party at the time. We made no apologies for it. I was not here at the time, but I know that was a practice and it was loudly protested by the Liberals in particular. I heard about that in the faraway place of the promised land, up in northern Alberta where I am from. I heard about it repeatedly on the campaign trail, that the Conservatives used omnibus legislation.

I had to do some research as to what omnibus legislation was. It turns out that it is legislation that affects more than one bill or one act of the Parliament of Canada. It seemed logical to me, but for some reason the Liberals seem to make this out to be evil and wrong. To their credit, “omnibus” sounds kind of ominous. That is what the Liberals were going after with that whole line of attack.

It is kind of ironic that we are here today discussing an omnibus bill with much ado about some of the bill, while we are in vast agreement on many parts of it.

Over and over members have stood and have said that it is ridiculous, that the party over here is asking about omnibus bills, that it had no problem using them. However, that is precisely the point. The Conservatives did not promise not use omnibus legislation. The Liberals were accusing us of doing all kinds of things with omnibus legislation, saying that there was something inherently wrong with it.

Now the Liberals are the ones using omnibus legislation to roll out their agenda, which is perfectly within their right. However, the fact that they ran on the platform of not using omnibus legislation proves to me how the Liberals were willing to say whatever it took to get elected. It never had to be anything of substance. It was just omnibus legislation sounded terrible so it must be terrible, and they ran on the fact they would not use omnibus legislation. It was absolutely ridiculous.

It just goes to show that the Liberals can make a promise about something during an election and then they say that we did it too. This is what elections are won and fought over. If people say they will do something, then they have to live up to that. The consequences will be borne out over what was said.

The Conservatives understand that sometimes omnibus legislation is needed to change several different acts when trying to implement a particular idea. While that seems to make sense, the Liberals ran on the promise in the last election not to introduce omnibus legislation.

That brings me to the substance of the bill. I am pleased to say that section 176 was removed from the bill at committee. I am quite perturbed that this section was in the bill in the first place. It indicates to me that the Liberals are completely out of touch with Canadian culture and Canadian society when every day the media shows that crimes against religious institutions or people are on the uptick around the world. Section 176 was put in the bill as a cleanup measure, that it was obsolete legislation that we no longer needed in Canadian society.

This calls into question a number of the Liberal priorities. Why are Liberals saying this is not needed? Why is the protection of clergy or religious institutions not needed in modern-day society? They said that it was only one particular religion. We checked if imams claimed some of the tax credits available to the clergy, and they did. We asked if rabbis were classified as clergy under Canadian law, and they were. This seemed to be completely unrelated to reality.

We also checked as to whether there had been changes in crimes being perpetrated across the country. We discovered that religion accounted for 35% of targeted hate crimes in 2015. Introducing section 176 in this so-called cleanup bill is completely out of touch, when the reality is quite the opposite.

I received a significant amount of mail and emails from 176 constituents across my riding concerned about this section being removed. Even committee members mentioned that this section of the bill seemed to spark a significant amount of feedback. I am happy the Conservative members at committee were able to convince other members that this was not necessary, that it should remain in the Criminal Code, and it will remain in the code.

Once again, we need to ensure that religious communities across the country are not prevented from worshipping. One of the pieces to be removed from the Criminal Code was preventing clergy from getting to their places of worship to hold services. It is very important that clergy can fulfill their duties and do their jobs without harassment or worry of being detained along the roadway. I am not sure how often this section of the law has been used in the past or if the clergy were even aware they had this protection in criminal law. After this bill was introduced, there was a dramatic uptick in education on this and the realization that these protections existed in law.

I have a graph of all the hate crimes in the country. Religion is one of the highest motivations for hate crimes across the country. It ranks between race and ethnicity. It is a significant part of motivation and we need to ensure religious communities feel safe and are protected by the Criminal Code.

I had more to say about sexual assault, but I have concerns with the way the bill is going. The duty for evidence needs to come from the accused. We need to ensure that all evidence, regardless of when or where it is acquired, can been seen and heard at trial. I have some concerns with that, but at this point I am supportive of the bill.

[Vance Badawey, Liberal, Niagara Centre, ON]

Mr. Speaker, it seems the Conservatives are putting a lot of emphasis on the omnibus bills of this government when in fact they did the same when they were in government.

I have to say that our government is committed to ensuring that our criminal justice system protects all Canadians, holds offenders to account, upholds the Charter of Rights and Freedoms, and shows compassion for victims. This includes an unwavering commitment to ensuring that victims of sexual assault, as contained within Bill C-51, are treated with the utmost dignity and respect.

Bill C-51, although defined as “omnibus” by the members across the way, deals with the issues that I have highlighted were to be dealt with in the bill. Sexual assault and ensuring that victims are treated with the utmost dignity and respect is a priority for this government. What the Conservatives are calling “omnibus”, we call a responsibility that deals with our values as Canadians.

[Vance Badawey, Liberal, Niagara Centre, ON]

Mr. Speaker, I am pleased to speak today to Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act. This legislation proposes to make various changes to the Criminal Code that seek to make the criminal law modern, relevant, and consistent with the applicable charter case law. It would also make important clarifications to the law of sexual assault.

The justice and human rights committee has now concluded its study of the bill. The committee heard from a number of important witnesses and stakeholders representing diverse viewpoints. In particular, witnesses were most interested in sharing their perspectives and recommendations with committee members on issues relating to the proposed sexual assault reforms.

The committee considered a number of amendments to those proposed reforms and adopted two that responded to what they heard from the many witnesses and that seek to bring even greater clarity to the law.

The committee also heard from witnesses in relation to the proposed repeal of an offence that targets disrupting religious officiants and ceremonies. The bill proposes to repeal this offence because, to the degree that it prohibits conduct that merits a criminal sanction, it is in fact a duplication of other more general offences.

During the study of Bill C-51 at the Standing Committee on Justice and Human Rights, committee members also heard from witnesses and constituents who were concerned about the proposed repeal of section 176, as mentioned earlier by one of my colleagues.

Our government listened to these concerns. The Liberal MP and committee member from West Nova put forward an amendment to retain and modernize the section to ensure it is in fact gender-neutral and make clear that the section applies to all religions and spiritual faiths. The government supports this amendment. We believe that all Canadians, regardless of which religious or spiritual faith they adhere to, must be able to practise that faith without fear of violence or disturbance.

There are other proposed amendments contained in Bill C-51 that may not garner as much attention but that are nonetheless very important for the proper functioning of our criminal law and to the overall coherence of the Criminal Code.

For instance, Bill C-51 proposes to amend a large number of offences by removing what is called a reverse onus. A reverse onus is a rule of law that places the burden on the accused to prove that something is more likely than not to be true. This is contrary to a long-standing and fundamental principle of criminal law, namely, that the prosecution bears the burden of proving guilt beyond a reasonable doubt. It is also contrary to the presumption of innocence as enshrined in our Charter of Rights and Freedoms.

Under these normal rules of criminal law, the fact that the prosecution has to prove guilt beyond a reasonable doubt means that the accused, to be acquitted, needs only to raise a reasonable doubt about his or her guilt.

A reverse onus, by contrast, says that the accused must do more than raise a reasonable doubt. He or she must convince the judge or jury that it is more likely than not that he or she is innocent.

There are special circumstances in which the burden can be reversed, such as when an accused raises the special defence of mental disorder. This burden is reversed because mental disorder is really a question of what was happening inside the mind of the accused, information to which he or she has the best access, and it is also a defence that can be easily feigned.

Absent compelling reasons, the burden must always be with the prosecution. Yet it seems that in the 1953-54 consolidation of the Criminal Code, a reverse onus was introduced into numerous offences, defences, and evidentiary presumptions.

These have remained in law until the present time, with the exception of a number that have been challenged under the charter as violating the presumption of innocence. Most such challenges have resulted in the courts finding the reverse onuses to be unconstitutional.

Bill C-51 would remove the reverse onuses that have been struck down and it would remove all the others that, while they have not yet been subject to challenge, do not appear to have any meaningful justification.

These changes would not have a negative effect on public safety, would better reflect long-standing principles of criminal law, would eliminate the potential for new charter challenges, and would thereby avoid the need for accused persons, prosecution services, and courts to waste precious time and resources examining these provisions. The consensus view among legal professionals and associations is that these amendments form part of the kinds of reforms that our criminal justice system needs to work more effectively and efficiently.

Other types of amendments that may not generate a lot of attention, but are still important include the proposed repeal of a number of offences in the Criminal Code that were enacted long ago, in many cases more than 100 years ago. Many of these offences reflect forms of conduct or values that are no longer relevant to our society. For example, Bill C-51 would repeal offences such as alarming Her Majesty, in section 49; challenging someone to a duel, in section 71; and blasphemous libel, in section 296. Another example of an offence to be repealed is one related to making or publishing what are called “crime comics”, which are exactly what they sound like, namely graphic depictions of criminal activity and violence. While there once was a time of great public concern for the potential for these materials to corrupt children, those days are long past. While not everyone will support this type of material or entertainment, we no longer believe as a society that people should be labelled as criminals for making it.

There are also offences in our Criminal Code that are overly specific, and duplicate other offences that are more general in nature. A number of these would be repealed as well. A good example is the proposed repeal of section 365, pretending to practise witchcraft, as was mentioned earlier by my colleague across the floor. Section 365 makes it an offence to fraudulently pretend to exercise or use any sort of conjurations, tell fortunes, or pretend to use one's skill or knowledge of an occult or crafty science to find lost or stolen goods. This conduct is really just a small subset of fraud. Fraud involves some kind of deception or dishonesty, combined with a risk of economic loss to another person. Fraud can occur in an infinite variety of circumstances. There is mortgage fraud, home renovation fraud, health insurance fraud, and securities fraud. Basically, any other situation in which a person voluntarily gives over money in response to something deceptive or dishonest also amounts to fraud. There is no good reason to have offences in the Criminal Code that spell out what fraud looks like in each of these circumstances. One offence of fraud gets the job done and is in fact defined within Bill C-51.

Archaic offences, such as those with overly specific duplicative offences, take up many pages in the Criminal Code. I know some commentators might consider these reforms, the parts of Bill C-51 that do not get headlines or generate passionate presentations before committee, of little importance. In fact, I take a different view. We should not underestimate the importance of this kind of reform. The Criminal Code is a reflection of Canadian values and what we as a society deem to be blameworthy conduct deserving of punishment and denunciation. It is, to be clear, the moral code of our society. It is our job, as legislators in the House, to ensure this code reflects our current values and priorities, that it does not overreach, and that it be rational and orderly.

I support the minister and our government in undertaking this routine but vitally important maintenance and updating of our Criminal Code to make it clearer and more accessible to Canadians, more relevant and modern, and more consistent with our human rights and freedoms.

[Sean Fraser, Liberal, Central Nova, NS]

Mr. Speaker, I will be sharing my time with the hon. member for Niagara Centre.

Bill C-51 deals with certain revisions to our Criminal Code that would impact our charter. These are two extraordinarily important laws in our country that have a direct impact on the lives of Canadians. Like anything worth keeping, they require maintenance over time, so to speak. Bill C-51 would perform some of that much-needed maintenance.

The bill attempts to do three main categories of things. First and most important, in my opinion, it would provide much-needed clarity on the concept of consent when it comes to the criminal law with respect to sexual assault. It would also address certain zombie laws, as I have heard them referred to previously, that have been deemed unconstitutional by our nation's highest court or have become obsolete because of the social context in which we find our country today. Finally, it would require the justice minister to introduce a charter statement to declare compliance with our charter of any government bills introduced through that portfolio.

I will first go to the crux of the matter, in my opinion. Bill C-51 would provide desperately needed clarity on the criminal law on sexual assault. Before I deal with the specifics, I would like to share with the House that this is a social problem that is endemic in Canadian society. It impacts every community. I have had the good fortune of sitting on the Standing Committee on the Status of Women and have heard directly from witnesses who have been impacted by and survived sexual assault what it has done to them personally. To the extent we in the House can help stamp it out, that is the very least we owe Canadians.

There are a number of measures the government has taken outside of the bill to help fight gender-based violence once and for all, including over $100 million introduced for a gender-based violence strategy. What the committee heard during its study on ending gender-based violence against young women and girls is that it is not simply about supporting victims. It is also about legislative reform, particularly in the criminal context.

We have a criminal law system that discriminates against complainants at every turn. We are so ill-equipped to deal with these kinds of cases that a vast majority of complainants choose not to report incidents of sexual assault at all, and those who do muster the courage do so knowing that the rate of conviction, the rate at which justice is granted, is small. It is hard to imagine why they would put themselves in the position of being questioned and re-victimized in the first place.

We have an opportunity to better our system, encourage more people to come forward, and ensure that justice is indeed granted in circumstances where that is possible. One way this may be achieved is through proposed section 273.1. It confirms the Regina v. J.A. decision, which explains quite simply that consent is required on an ongoing basis. Essentially, someone who is unconscious is not able to provide consent. The simplest message to anyone who might be listening at home is that if someone is having sexual relations with a person who is too drunk to consent or who is unconscious, that is not sex. That is rape, and we need to acknowledge it for what it is.

Proposed section 273.2 of this legislation would provide additional protections, reflecting the Supreme Court decision in Regina v. Ewanchuk in 1999, by making it absolutely clear in our criminal law that mistaken belief of the law cannot constitute consent. It is not okay to assume that a person has consented because someone else gave consent for the person. There needs to be a positive affirmation. One cannot assume that because a person consented in advance, the consent is ongoing. One cannot assume that a failure to resist a sexual advance constitutes consent. If those are the only lines of defence in a sexual assault case, a person should be found guilty under our law.

Importantly, Bill C-51 also deals with our well-established rape shield provisions. The twin myths I have heard discussed by different members in the House today explain that we cannot rely on the sexual history of a complainant to make findings as to his or her credibility or whether he or she has given consent in a given instance. Bill C-51 would expand this protection to ensure that communications sent with sexual content or for a sexual purpose were not used to perpetuate those same myths.

This is an added layer of protection that reflects the world we live in. In the 21st century, if consenting adults wish to send each other communications of a sexual nature or for a sexual purpose, that is their decision. However, the fact that someone has demonstrated that he or she was interested in sexual activity before cannot be used by a court to make a finding that he or she has given consent.

If I transposed this logic to any other social circumstance, I feel that just about everyone would get it. Without being flippant about an extraordinarily serious issue, after work I may join a colleague for a beer or have a glass of wine or two over dinner. However, if I am asked to go out for a drink on a given night and I say no, my friends understand that. I do not know why the same logic cannot be applied to sexual assault. Particularly for young men, again, if they are listening, just because a person has demonstrated a willingness to engage in sexual relations in the past, they should not assume that it is consent forever thereafter.

Some of the other themes touched on that I would like to address while I have the floor include these zombie laws. These laws create uncertainty and unnecessary expense in litigation and should be removed from the books. They largely reflect decisions of the Supreme Court of Canada. Cases of defamatory libel and cases involving evidentiary burdens and the reverse onus that have been dealt with by the Supreme Court will be reflected in law. I think, although I do not want to speak for everyone, that those provisions are unanimously supported by members of this House.

There are other matters that are completely obsolete in this day and age. I notice the provisions on challenging a person to a duel, which has a very interesting backstory in Nova Scotia involving our third premier, Joseph Howe, if anyone wants to take the time to read it. There is the crime of publishing crime comics. There is fraudulently pretending to practise witchcraft. I think we will leave the discussion on people who are actually practising witchcraft for another day. I think members get the point. There are many laws that exist in our Criminal Code that really should be removed from the books.

The government has a responsibility to ensure that its laws comply with the charter. That brings me to the last theme addressed by Bill C-51. That is the obligation of the Minister of Justice to introduce a compliance statement, a charter statement, with new pieces of government legislation that impact that portfolio. This is a very positive exercise, in my opinion, and it is one that will enhance openness and transparency. It will allow Canadians to see that the government is stating, for the record, why it believes its laws are in compliance with the charter.

We sometimes fall into the trap, in different governments, in different parts of our nation's history, of putting forward laws that may seem popular to a voter base but may be contrary to the rights that are included, constitutionally, in Canadian law. This practice of introducing a statement on compliance with the charter is going to ensure that our government is subject to Canadian laws and that people are protected by it, not the other way around.

This proposed legislation has my full support, whether it is for making clear the provisions on consent in cases of sexual assault, whether it is removing from our charter specific provisions that should not be there, either because they are unconstitutional or obsolete, or whether it is the introduction of a charter statement. These are positive developments that are going to help make our criminal system more efficient and will help protect the charter rights of Canadians.

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

Do not worry, because I intend to be here a long time.

The particular focus of public debate on the legislation concerned section 176 of the Criminal Code, which presently still exists. Section 176 specifically made it illegal to disrupt a worship service, or attack a “clergyman or minister”. The original version of Bill C-51 sought to remove that section. That would have removed the only section in the Criminal Code that provided specific protection by criminalizing attacks on religious services or religious leaders. We heard a number of arguments in the course of the debate. Of course, the general thrust of the legislation, from the government's communications about it, was that the bill removes redundant or unnecessary sections of the Criminal Code. Some argue that these specific protections for religious officials and religious services were not necessary, because any of the things that are identified within that section in particular are already illegal. Disrupting a worship service might have been captured under trespassing provisions. Vandalism, obviously, is illegal anyway. Assaulting someone, whether a religious figure or not, is illegal anyway. Therefore, the argument was that section 176 of the Criminal Code is redundant.

Why do we disagree with that on this side of the House? We recognize in law that even things that are already illegal may need extra legal recognition to ensure that they are treated by the law in a proportionate way. That is, after all, why we have laws with respect to hate crimes. Anything that is not permitted under hate crimes legislation is probably something that is in fact already illegal, but I think all members of the House agree that it is still important to have hate crimes legislation recognize the proportionality of an offence, recognize that there is something much more serious, that should be treated more seriously, when individuals are targeted because of their background or identity.

There is something more serious about that than a purely random act of vandalism or violence. That is not to downplay the seriousness with which the law should treat a random act, but when individuals, institutions, or groups are targeted specifically because of their identity, that has a different and arguably much greater social effect, because it seeks to impede the practice of that faith, impede the living-out of that identity, and to create a climate of fear for people who are part of that identity. Therefore, when we have specific sections that deal with crimes that target specific groups, they help us to ensure that the law is treating crimes in a proportionate way that reflects the social effects of those actions. We can see on that basis that section 176 is not redundant at all but reflects an important social purpose of the law, which is to ensure proportionality.

Another reason why section 176 was not redundant is the that fact of this being in the Criminal Code sends a clear message that the law not only has practical effects but also pedagogic effects in demonstrating our commitment to religious freedom and to the protection of the practice of faith in Canada.

We also had people objecting to the section on the basis that the language implied that the section might only apply to certain faith communities. The section uses the language “clergyman” or “minister”, which obviously is gender specific but also implies that it only refers to a particular faith. Those who raised this objection were being somewhat disingenuous, because the reality is that this section is clearly interpreted as applying to men and women and to people of all faiths. Certainly, it probably makes sense to update and clarify the language with respect to that, to change the wording to ensure that there is no misunderstanding, but in reality there never really was a misunderstanding the way in which the law applies. Therefore, those objections were incorrect.

Many people over the course of the summer and early fall were actively engaged on this issue, signing petitions, and lobbying their MPs. I was involved in Edmonton in organizing a round table for our leader to meet with religious leaders from different faith communities. It was a great opportunity to get leaders from different faith communities together as part of a common round table talking about the issues in Bill C-51.

Of course, we were glad to see the government's backing down on this. However, it is important to ask the question, why was the removal of section 176 in this bill in the first place? Whose idea was it to put it in there, buried in a long list of provisions with respect to all kinds of other issues? The government, in certain instances, maybe talks the talk about protecting certain minority communities, at least, and certain faith communities, but when it comes to walking the walk, in the initial draft of the legislation, the Liberals tried to remove this critical protection for faith communities. When they were caught and communities became engaged, the government eventually backed down.

This speaks to the importance of vigilance. The government talks the talk on the one hand, but when it thinks people are not looking, and the changes involve small provisions within large omnibus bills, it tries to get away with things that most Canadians would see as unacceptable. This is then a call for continuing vigilance on the part of members of Parliament and Canadians to hold the Liberal government accountable.