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.

Public Safety

[James Maloney, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, this is a serious issue that requires a serious response. It is not something that should be highlighted in a negative way in the House of Commons.

The Liberal government has taken steps through Bill S-12, Bill C-3 and Bill C-51. We have taken serious measures to address sexual assault crimes, including sexual assault offenders being included on the sex offender registry.

Justice

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Mr. Speaker, as I have said several times, serious crimes deserve serious consequences.

Our government has taken action on several fronts to ensure that victims of sexual assault are treated with dignity and respect.

Yesterday, I tabled in the Senate Bill S‑12, which will strengthen the Sex Offender Information Registration Act and will also give victims more powers. I hope that all parties in the House will support it.

This is in addition to other measures we have introduced such as Bill C‑3 and Bill C‑51, which will protect victims of sexual assault.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Former Bill C‑75 introduced a reverse onus provision to help victims and make it harder for accused to access bail.

We were looking into other options as well, so we also provided more clarity around certain definitions of sexual violence in former Bill C‑51. In addition, through former Bill C‑3, we ensured that judges would receive better training on how to deal with matters involving intimate partner violence and sexual assault.

We fully support victims all over the country through our programming, and we remain open to making further changes to address intimate partner violence. I know that one of the members here today put forward a bill on coercive control, and I announced publicly my support for the bill. It's also very important to define offences in a way that is understandable to the victims in those situations.

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Mr. Speaker, as a government, we have acted on several fronts to ensure that victims of sexual assault are treated with dignity and respect.

Several bills, including Bill C-3 and Bill C-51, have made substantial reforms to Canada's sexual assault laws to do just that, protect victims. These are some of the most progressive laws in the world. We have invested in programs that help victims of sexual assault.

That is our priority. We will continue to support victims of sexual assault.

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Mr. Speaker, what our hon. colleague is saying is just wrong.

Our government has taken action on several fronts to support victims of sexual assault and to ensure they are treated with dignity and respect.

Ever since Bill C‑3 was passed, all new federally appointed judges must participate in sexual assault training.

Our government also made significant changes to Canadian sexual assault law with Bill C‑51, one of the most progressive pieces of legislation in the world.

We will keep working to protect victims of sexual assault.

[Stéphanie Bouchard, Senior Legal Counsel and Director, Policy Centre for Victim Issues, Criminal Law Policy Section, Department of Justice]

Thank you for the opportunity to provide information on Justice Canada's measures that support the implementation of the Canadian Victims Bill of Rights.

Former Bill C-32, an act to enact the Canadian Victims Bill of Rights, came into force in 2015. It gives victims of crime statutory rights to information, protection and participation and to seek restitution at the federal level. The 2015 amendments included related law reforms on testimonial aids, victim impact statements and restitution, and introduced a new community impact statement provision.

As required by the Canadian Victims Bill of Rights, Justice Canada has established a complaint process to address any alleged breaches of victims' rights, and prepares annual reports on this process.

The development of the Canadian Victims Bill of Rights Act was informed by significant input from the provinces, territories and broad public engagement, reflecting the shared responsibility for the criminal justice system. As the committee knows, the federal government is responsible for the development of criminal law and procedure, much of which is set out in the Criminal Code. Provincial and territorial governments are principally responsible for the administration of justice, which includes enforcing and prosecuting offences and providing victims services.

Justice Canada supports work on victims issues through several key initiatives. The department leads the federal victims strategy, which seeks to improve the justice system for victims through funding, law reform and policy initiatives. Since 2015 almost $78 million in federal funding through the victims fund has been invested in provinces and territories to assist them with implementation of the Canadian Victims Bill of Rights and victim-related legislation, and to develop or enhance victims services. For example, funding has been used to support restitution recovery programs, testimonial aids for adult and child victims and witnesses, training on victims' rights, public legal education materials, and building victims services capacity and accessibility.

Justice Canada is also supporting innovative victims service models, such as the family information liaison units. These are culturally grounded and trauma-informed teams that work with family members of missing and murdered indigenous women. Justice Canada funding is also supporting expanded access to independent legal advice for victims and survivors of sexual assault and intimate partner violence.

Criminal Code reforms since 2015 have furthered the implementation of the Canadian Victims Bills of Rights. A few examples include that in 2018, former Bill C-51 amended the Criminal Code to clarify and strengthen Canada’s sexual assault regime, including building on former Bill C-32 by providing a complainant with the right to counsel during a rape-shield provision. In 2019 former Bill C-75 enhanced measures to better protect against and reflect the serious nature of intimate partner violence, and strengthened the victim surcharge provisions.

Most recently, following the adoption of former Bill C-3 in 2021, in order to be eligible for appointment to a provincial superior court, candidates must agree to participate in continuing education on matters related to sexual assault law and social context.

Justice Canada continues to support broad research to identify trends as well as take note of how victims' rights are exercised in the criminal justice system and the impacts of the Canadian Victims Bill of Rights. This research informs our ongoing work.

Information-sharing and awareness-raising play a key role in justice system transformation. To that end, the department continues to support various public legal education opportunities and collaboration with partners. In addition to publishing fact sheets on victims' rights and designing new tools for police and other professionals, Justice Canada hosts the national Victims and Survivors of Crime Week, as well as webinars and knowledge exchanges. The victims week has been a huge success. It brings experts together to discuss ways to make our collective commitments to victims more effective.

Lastly, I would note that the Office of the Federal Ombudsman for Victims of Crime was created in 2007. It is at arm’s length from the federal government. The ombudsman’s mandate is focused on areas of federal jurisdiction. There have been three ombudspersons appointed to date. A new GIC appointment process is currently under way.

In conclusion, I would say that Justice Canada continues to prioritize work to support victims of crime. Implementing the Canadian Victims Bill of Rights is an ongoing process, requiring actions from all levels of government working within their areas of responsibility in relation to victims' issues and victims' rights, and significant collaboration takes place across federal–provincial–territorial networks to ensure that their measures are coordinated.

We look forward to answering any questions you may have.

[Dr. Caillin Langmann]

Yes, that's correct. There doesn't seem to be any association with reductions in homicide from any of the legislative efforts that have been produced by Canada's C-51, Bill C-17 and Bill C-68.

Public Safety

[Justin Trudeau, Liberal, Prime Minister]

Mr. Speaker, the member who asked the question was a part of Stephen Harper's Conservative government, which regularly refused to allow any oversight whatsoever on issues of national security. Many Canadians will remember the excesses of Bill C-51 that the Harper government put forward, which is why we made changes to Bill C-51 when we got into office, which is also why we created the National Security and Intelligence Committee of Parliamentarians, to provide a forum for parliamentarians to oversee national security work. That is an improvement we made that Conservatives voted against.

[Mike Kelloway, Liberal, Cape Breton—Canso, NS]

It does. I really appreciate that feedback.

Dr. Wemmers, Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act, recently amended the Criminal Code to provide complainants in sexual assault cases with the right to participate and be represented in proceedings to determine the admissibility of evidence about their sexual history. Our government considers this an important change to support victims of sexual assault.

Again, along the same lines as the last one, are there further ways, through the Canadian Victims Bill of Rights or otherwise, in which our government could support victims of sexual assault?

[Jody Berkes, Chair, Criminal Justice Section, The Canadian Bar Association]

Good morning, Madam Chair and honourable members of the committee.

My name is Jody Berkes, and I am chair of the Canadian Bar Association's criminal justice section.

I join you today from the traditional territory of the Wendat, the Anishinabek Nation, the Haudenosaunee Confederacy, the Mississaugas of the Credit First Nation and the Métis Nation. This land is covered by the Dish With One Spoon treaty.

Thank you for inviting the CBA to participate in the committee's study of the Canadian Victims Bill of Rights, which I will refer to as the CVBR. One of the things that the CBA's criminal justice section prides itself on is that its members come from both the Crown and defence bars. As such, we can bring a unique, comprehensive perspective to how legislation is implemented in the criminal justice system.

The Canadian Bar Association, the CBA, is a national association representing 36,000 jurists across Canada. The CBA's primary objective is to improve the law and the administration of justice, which is why we are here this morning on behalf of our Criminal Justice Section.

Although the CVBR uses the term “victim”, the CBA prefers to use the neutral term “complainant” prior to any finding of guilt. Therefore, when discussing the pretrial and trial process, I will use the term “complainant”. I will use the term “victim” when discussing sentencing and post-sentencing issues.

The section supports, as a general proposition, increasing resources to allow complainants to receive independent legal advice on the criminal justice process. Independent legal advice assists proper functioning of the criminal justice process by respecting the Crown's role as an independent minister of justice and not as an advocate for the complainant, as well as the court's role as an adjudicator rather than as a party that assists the participants in understanding and navigating the legal system.

Additionally, the section supports complainants being provided information with respect to all areas outlined in sections 6 through 8 of the CVBR, with the caveat that confidentiality is needed while criminal investigations are ongoing. Similarly, the section supports sections 9 through 13 of the CVBR regarding complainant protection. For the most part, these were already dealt with through the sections of the Criminal Code regarding bail, obstruction of justice offences, publication bans, third party records applications and testimony accommodations such as screens, remote testimony and the use of support persons while giving testimony.

On the other hand, the section is concerned about expanding the role for complainants in criminal prosecutions, which can result in the creation of unreasonable expectations or conflicts between Crown prosecutors and complainants. For example, section 14 of the CVBR states, “Every victim has the right to convey their views about decisions to be made by appropriate authorities in the criminal justice system that affect the victim's rights under this Act and to have those views considered.”

The Crown's legal and ethical obligation is not to secure a conviction but to ensure that all relevant facts are placed before judge and jury so that justice may be done. Therefore, the Crown must be allowed unfettered discretion in choosing how to prosecute offences. Similarly, decisions on whether to continue or to withdraw prosecutions must remain within the Crown's discretion. While it is appropriate to solicit a complainant's views on procedural issues and in determining whether to continue a prosecution, the Crown cannot be bound by those wishes. This operates the same way regardless of whether the complainant's desire is to continue or to withdraw a prosecution.

The section acknowledges that the CVBR requires the Crown to discuss and inform complainants about trial applications. However, we voiced concern about the amendments to the Criminal Code in Bill C-51, which granted standing to complainants for certain trial applications in sexual assault prosecutions. The addition of a third party with a right to make submissions about the law is problematic for two reasons. One, it has the potential to create friction between the Crown—the party in charge of prosecuting offences—and the complainant, who would likely be the main Crown witness. Two, it has the potential to complicate and lengthen pretrial applications as well as to cause mistrials, which squander judicial resources.

In summary, the CBA criminal justice section welcomes additional resources to support providing complainants with information and assistance in the criminal process. On the other hand, we suggest that prosecution decisions, including responding to legal arguments, be left in the capable hands of Crown prosecutors.

Madam Chair, I know I am out of time but I hope you can indulge me for a few more seconds. This is my third appearance before this committee, and I want to thank you for the opportunity. I have found your questions thoughtful and engaging, and I wish every Canadian had the opportunity to experience their democracy in this way.

Last, I want to thank each and every member of the committee staff and technical support. All of you exemplify the highest standards of professionalism.

Thank you.

Sex-Selective Abortion Act

[Anita Vandenbeld, Liberal, Parliamentary Secretary to the Minister of National Defence]

Madam Speaker, I am here today to speak to private member's bill, Bill C-233, an act to amend the Criminal Code, sex-selective abortion, at second reading.

I really wish I did not have to do this. I am, quite frankly, disappointed that I have to spend time in the year 2021 on the abortion debate in Canada, when a woman's right to choose has been law for over 30 years. It really is unfortunate that members of Parliament are still seeking to restrict that right.

The sponsor claims that this bill is to address sex-based discrimination. To achieve that goal, this bill would create a new Criminal Code offence prohibiting doctors from performing an abortion when they know it is being sought solely on the grounds of the genetic sex of the fetus.

While I note that the offence is ostensibly aimed at doctors, I must point out that it would also criminalize women as parties to the offence. Make no mistake, Bill C-233 will limit a woman's right to choose by doing this. Criminalizing a woman for seeking an abortion is a violation of the fundamental rights of women in Canada, and it is just plain wrong.

I would like to speak to what we know about the impact of using criminal law to regulate abortion. We need not look further than Canada's own legal history of abortion regulation and its impact on Canadian women. That history reflects what the international evidence tells us. Criminal restrictions on abortion result in women having less access to them, and having less access negatively impacts women's equality rights.

Let us take a look at how we got to where we are today. Currently, no criminal offences apply to abortion, and the provinces and territories are responsible for providing safe abortion services to Canadian women. However, we must not forget that, until 1969, abortion was absolutely prohibited in Canada. That meant that very few, if any, safe options were available to women. Women were forced to either bring an unwanted pregnancy to term or access unsafe and unregulated methods such as back alley abortions, which often led to infection and death.

Women who sought abortions also risked criminal sanctions, and doctors who provided safe abortions risked punishment. Many of us will remember Dr. Morgentaler. He was incarcerated for saving women's lives. He risked his own safety to champion women's rights and for that he was awarded the Order of Canada in 2008.

I cannot emphasize enough how much we do not want to return to that era. I am proud to live in a country where women have safe access to abortion and do not need to worry about criminal reprisals. Again, I am very disappointed to be here today having to fight against an attempt to limit these hard-earned and important rights.

The evidence before the court in the Morgentaler case highlighted the medical risks and psychological trauma restricting access to abortion caused women seeking abortion services in Canada, and the importance of affording women autonomy to make decisions about their own bodies. The provisions were found to violate women's security of the person rights.

This is because, and I quote Justice Bertha Wilson, the first woman justice of the Supreme Court, who said that those provisions asserted that, “the woman's capacity to reproduce is to be subject, not to her own control, but to that of the state.”

The court found the violation of women's rights by limiting access to abortion to be completely unacceptable, and so do I. The court has been very clear on this front, and I think that a court could also find this legislation unconstitutional for the same reasons, should it pass.

The 1969 provisions remained in the Criminal Code, but were unenforceable until they were repealed in 2019 by our government in the former Bill C-75. Other related abortion offences were repealed by our government in 2018 in former Bill C-51. Even though they were inoperable, I am proud that our government took the important step to remove these discriminatory provisions.

It took more than 100 years to remove abortion-related criminal offences from our Criminal Code, which is, frankly, a shameful mark. However, again, I am quite proud to be part of the government that finally removed them from the books, and I have no intention of supporting any attempt to add them back.

Consistent with the Canadian experience, international research has shown that using the criminal law to regulate any aspect of abortion results in barriers to accessing abortion services, which contributes to gender inequality. For example, international research indicates that laws restricting the use of technology for sex selection purposes, as well as sex-selective abortions, are likely to have harmful impacts on women. These impacts include women seeking unsafe procedures that fall outside regulations, protocols and monitoring.

I fail to see how criminalizing women who choose sex-selection abortion, perhaps because of familial pressure to do so, protects them, or other women for that matter, from discrimination. Rather, a criminal law response is more likely to detract from women's equality rights by creating barriers to accessing abortion.

The United Nations recommends combatting this form of discrimination by addressing the root causes of gender inequality. This includes focusing on advancing access to education, health services and economic resources for women and girls. I am pleased to note that our government has made significant investments to advance gender equality, guided by women and the framework for assessing gender equality results, introduced in budget 2018.

Criminalizing women seeking abortion is not the solution to this problem and would be a massive step backwards for this country. I cannot emphasize enough how disappointed I am to see that there is yet another attempt in this bill to limit a woman's right to choose.

In Canada, I am proud to say that abortion is treated like the medical service that it is and falls within the responsibility of the provincial and territorial health sector. All medical procedures are subject to medical professional standards.

Ultimately, what could happen if we were to enact an offence such as this? Perhaps doctors would refuse to provide abortion services out of fear of criminalization, because they believe their patient may be choosing abortion for the wrong reasons. Perhaps a woman who needs access to an abortion would be afraid to seek it out in case she is reported and charged for having done so. Perhaps women from certain communities would be denied access to abortion based on discriminatory views about their reason for seeking it. In short, I fear that this bill could undo decades of arduous work to ensure that women never face these barriers again.

I was really disappointed to see the Leader of the Opposition indicate that his caucus will be allowed a free vote on such a fundamental issue as protecting women's right to choose.

I hope that members of the Conservative Party who are currently heckling me will recognize, as all other members of this House do, how important it is to protect equality rights for women in Canada and join me and the government in voting against this proposed legislation.

Judges Act

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

Mr. Speaker, I thank the member for Yukon for his kind words.

He mentioned Bill C-51, which was an omnibus justice bill from the last Parliament. If I recall rightly, it contained many different elements about many different issues. To the member's point, sometimes when we have these kinds of omnibus bills, there are particular elements of it that get relatively less discussion.

What the member is pointing out with respect to indigenous communities is something I was talking about in a slightly different context. I was talking a bit about our engagement internationally and the link we sometimes see between violence against women and violence against minority communities and that women from minority communities are sometimes particularly targeted. The member is speaking about something in a similar context in Canada. That is an important complement to some of the points I was making more broadly, that we need to understand human rights and the dignity of the person in an integrated way.

[Larry Bagnell, Liberal, Parliamentary Secretary to the Minister of Economic Development and Official Languages (Canadian Northern Economic Development Agency)]

Madam Speaker, the member always has very erudite speeches. Like the member, I am very passionate in my support of this bill. I will probably not ask a question, but let him carry on because I know he always has a lot of very important input. However, I want to make a couple of comments.

One was mentioned earlier this afternoon. Over and above the bill, which is very important, Bill C-51 added some very important steps. I want to ensure that all the elements of Bill C-51 are implemented so we can get the full benefit of the bill to deal with this.

The second point I want to make is that I am very strongly in support of indigenous involvement in designing the training. Indigenous women and girls, who are often the targets and victims, come from a different culture and a different history of their own unique legal systems. They are different social structures of which we just cannot understand—

[Peter Fonseca, Liberal, Mississauga East—Cooksville, ON]

Madam Speaker, I know that technology can always be a challenge, and we want to make sure that our interpreters are able to hear what we have to say so that it can be provided in both official languages.

Today I will be sharing my time with the member for Vaughan—Woodbridge.

I am very pleased to speak in support of Bill C-3, an act to amend the Judges Act and the Criminal Code. This is a critical piece of legislation that is necessary to ensure that judges understand the context in which offending occurs.

Bill C-3 would amend the Judges Act to require candidates seeking appointment to a provincial superior court to commit to participating in training related to sexual assault law and social context. Thanks to amendments made by the Standing Committee on Justice and Human Rights, candidates must also commit to participate in training on systemic racism and systemic discrimination. The bill would also require the Canadian Judicial Council to ensure that those knowledgeable in the field, potentially including sexual assault survivor organizations, are consulted in the development of this new training.

The bill would also assist in ensuring transparency in judicial decision-making by amending the Criminal Code's sexual assault provisions to include a requirement that judges provide reasons for their decisions, either in writing or in the record of the proceedings. This requirement complements existing legal requirements for reasons including specific obligations for judges to provide reasons in sexual history evidence and third-party records application hearings.

Allow me to explain why these amendments are so critical to a fair and effective response to sexual assault, which we know disproportionately impacts women and girls. Canada has come a long way in this regard. We have one of the most robust sexual assault legal frameworks in the world, but we must not forget the myths and stereotypes to which Canada's existing legal regime responds, nor the fact that those very same myths and stereotypes persist to this day. For example, pre-1983 sexual offending laws were repealed and replaced with “affirmative consent”, the model we have in place today.

The previous laws accepted as a fact, first, that a complainant who fails to resist is consenting and, second, that a complainant who consented to sexual activity with the accused before an alleged sexual assault likely also consented to any subsequent sexual activity. It is hard to believe that this was in place before 1983 until changes started to be made, like the changes that we are looking to make through this bill.

We now know that myths and stereotypes like these are false and distort the court's ability to seek the truth. We also know that these myths and stereotypes have a detrimental impact on victims, who are overwhelmingly women and girls, and that their impact is compounded when they intersect with other discriminatory stereotypes. In particular, they deter women and girls from coming forward to denounce their assailants, which means that those assailants cannot be held accountable.

Statutory rules of law and Supreme Court of Canada jurisprudence now clarify that myths and stereotypes about sexual assault victims have no place in the courtroom, yet we continue to hear that such myths and stereotypes persist. Allow me to expand on examples I have just noted.

We have known for quite some time that a failure to resist is not the equivalent of consent. More than 20 years ago now, in its 1999 Ewanchuk decision, the Supreme Court of Canada clarified that the accused's belief that “silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence”. That can be found at paragraph 51.

That rule is reflected in all of the Criminal Code's provisions that relate to consent, sections 273.1 and 273.2. Thanks to former Bill C-51's sexual assault amendments, which were enacted in 2018, this important principle has been further clarified. The provision that limits when an accused can raise the defence of honest but mistaken belief in consent is now clearly limited to situations where there is some evidence that the complainant communicated consent affirmatively through words or conduct. That is found at paragraph 273.2(c).

More recently, in its 2019 Barton decision, the Supreme Court of Canada aptly renamed this defence as the “defence of honest but mistaken belief in communicated consent”. I understand that many now refer to Canada's sexual assault framework as an “affirmative consent” model. This means that failing to resist is not relevant to the issue of whether the complainant consented or whether the accused believed the complainant consented. However, in 2014, the Alberta case of Wager, a trial court judge asked a sexual assault complainant why she did not squeeze her legs together if she did not want to engage in sexual activity she alleged was a sexual assault. This is unbelievable. It is unheard of that someone would make a comment like that and that we would hear it from a judge.

We have also known for quite some time that a complainant's prior sexual conduct is not relevant to the question of whether she consented to sexual activity that she alleges is a sexual assault. Originally enacted in 1983, the sexual history evidence provisions, sometimes called the “rape shield provisions”, were amended in 1992, almost 30 years ago, to ensure charter compliance. These provisions were upheld as constitutional in the Supreme Court of Canada's 2000 Darrach decision. They directly target two myths. The first of these is that a complainant who is sexually active is more likely to have consented to an alleged sexual assault. The second is that she is less worthy to be believed in respect of her claim that the sexual activity was non-consensual. These are sometimes called the “twin myths”.

The sexual history evidence provisions require an accused who wants to adduce evidence of the complainant's prior sexual conduct to bring an admissibility application to the court. The court then plays a gatekeeper function at the admissibility hearing to prevent the evidence from being admitted to infer one of the twin myths. Former Bill C-51 strengthened these provisions. Specifically, it clarified that communications for a sexual purpose or whose content is of a sexual nature constitutes sexual history evidence, which is found in subsection 276(4).

In the Barton case, the trial court had to determine whether the sexual activity that caused the death of the victim, Ms. Gladue, was consensual. In this case, evidence of prior sexual activity with the accused was admitted without the judge holding a hearing on whether it was appropriate to admit this evidence as would usually happen. In addition, numerous statements about the complainant's status as a person who provides commercial sexual services were admitted, as were statements about her ethnicity. I want to be clear that both the Wager and the Barton trial court decisions were overturned on appeal because errors of law were made. It provides a measure of comfort to know that such errors are corrected on appeal. However, that fact may not offer much comfort to the victims in such cases, or in the case of Ms. Gladue, her loved ones. When the law is misapplied, appeals follow and perhaps even a new trial will be ordered. This can significantly lengthen the criminal justice process.

What can we do about this problem? How can we help our criminal justice system function fairly when addressing one of the most complex human interactions? We can support Bill C-3, which would assist in ensuring that judges have the education they need to understand sexual assault law, those most impacted by sexual offending and the social contexts in which sexual offending occurs.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Madam Speaker, the way that legislation should be done in the House is not like the former Conservatives with omnibus bills.

In fact, we have made changes on issues around human trafficking. We have had public safety bills and measures. As I mentioned, Bill C-51 talked about changing the Criminal Code.

The bill before us is specifically around superior court justices being trained in sexual assault laws and myths. It is important and we need to move forward with it. Also, we need to ensure that we have broad support, which we have, except I do not understand the Conservative senators who blocked it from moving forward.

However, there is no one silver bullet. If we are serious about gender-based violence, then we need to look at it in multiple ways and put forward legislation like this government has done in multiple areas.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Madam Speaker, I rise in support of this legislation. I hope that in this Parliament it will not be blocked again in the Senate and that we can finally implement this important legislation.

Bill C-3 is important. It would ensure that provincial superior court justices would be trained in sexual assault law and in practice with respect to getting rid of the myths that exist in our society around sexual assault, particularly with women. However, this certainly impacts men and the LGBTQ2I community. It would ensure that our legal systems are safe places for victims to share their experiences, that predators are held accountable and that in the future victimization of people can be avoided.

I have been listening to this debate and a number of members have spoken about the statistics. I think most members in the House do so because the statistics are pretty stark. When 30% of women and 8% of men have been sexually assaulted at least once since the age of 15, what kind of society do we live in when this is okay?]

When we compare that to the conviction rate of something like 2%, how can we allow women, boys and others in our society to be assaulted from the time they are 15? If this were any other crime, there would be mass outrage in the country about how this was even possible. I suspect the conviction rate is even lower, because sexual assaults and sexually based assaults are so under-reported in this country and around the world, mainly because of the low conviction rates and because of the re-victimization of victims in the justice system and having to defend that they are not at fault for what happened to them. I would argue that these statistics do not paint the full picture.

As a young woman, I certainly know too many stories of other women being victimized and how often that is ignored or accepted. It is not worth it for them to share their stories, bring their family into it and have others hear about what happened to them. The shame is put on victims instead of on the assailants, where it should be.

In addition to why this training is important and why the conviction rates need to be dramatically increased, I want to share some of the comments that justices in Canada, as well as in the U.S., have made in sexual assault cases and why training and getting rid of the myths need to happen as quickly as possible.

Here are some quotes from justices about victims in cases that they were supposed to be adjudicating: “If you wouldn’t have been there that night, none of this would have happened”; the victim “wasn’t the victim she claimed to be”; “Why couldn't you just keep your knees together?”; the victim was “probably as much in control of the situation“ as the assailant; the body can “shut the whole thing down”; and “It's open season” for intoxicated “women”.

These myths continue to victimize women, continue to keep sexual assault of all genders in the shadows and, more dangerous, continue to allow perpetrators to victimize more people and place fear in those whom they have already victimized.

Human trafficking is a huge issue in this country and around the world. I have often heard from survivors and about their experiences. When the process has gone to court, there has been very little protections with respect to being re-victimized. They have been questioned as to why they are there or how they got into the situation. The defendants in a lot of these cases are still able to contact these victims and pressure them. Therefore, many do not bother moving forward because they have to relive their stories, the assault and the trauma they have gone through in a public way and the re-victimizing.

This bill also talks about making changes to the court process. This was brought up in the earlier question and answer period of this debate, and I am very pleased about that.

It is also important that part of the bill relates not only to the training, but also to the written decisions that will be on the record. There needs to be some public naming and shaming of decisions that have been based on old stereotypes and myths to ensure we have a judicial process that protects victims, not puts them on trial. When it comes to sexual assault, we have seen this far too often.

A big myth in sexual assault cases is the notion of who the real victim is. There are very few other areas of law or criminality where the victim is questioned like in the quotes I read earlier, such as why she was there, or why she drank too much, or why she just could not stop it or she should not have been out so late. It is not a crime for women to wear what they want or be where they want to be. It is as if women have to protect themselves from sexual assault when they need to be protected from predators.

Victims need to be protected from sexual assault. This should be a basic principle in our country and our judiciary should respect that, understand that and should not put the lives of sexual assault victims on trial. Only those who have been accused should be put on trial. They have every right to put up a defence if they have been wrongly accused, but it is not the victims who should have to prove they did not deserve the sexual assault or “had it coming”, which is often attributed to sexual assault victims.

With Bill C-51, as my colleague also brought up in the last round of debate, some of the important changes to amend the Criminal Code have been spoken about in the House, but it is really important to raise such things as an unconscious person being incapable of consenting to sexual activity. This might seem like a basic legal principle. We would not have a valid contract if it had been signed by an unconscious person, yet there was a time in our country where an individual could agree or give consent to sexual activity.

Therefore, it is incredibly important that other changes be made to criminal law as well. This is why continual training is so important, so judges can be kept up to date on our most current laws, that we can ensure that these myths and stereotypes are not repeated, that they are formalized in law, that victims can stop being re-victimized and that people feel safe to come forward, to speak out and to stand up against these predators to help stop further victims from being victimized.

I am very appreciative that the former interim Conservative leader Rona Ambrose brought forward a bill on this. I hope that after this second round of debate, we can pass it and have real and substantial change in our country.

[Randeep Sarai, Liberal, Surrey Centre, BC]

Madam Speaker, I will be sharing my time with the member for Pickering—Uxbridge.

I am pleased to contribute to today's second reading debate of Bill C-3, an act to amend the Judges Act and the Criminal Code, which aims at ensuring all newly appointed provincial superior court judges participate in continuing education in sexual assault law and social context.

It would further require the Canadian Judicial Council to report the participation of all sitting superior court judges in sexual assault law education. Finally, the bill would also require judges to provide reasons, in writing or on the record, for decisions in sexual assault matters.

I would like to focus my remarks today on the challenges the criminal justice system is facing in responding to sexual assault in Canada. Further, I would like to discuss how Bill C-3 aims to address these issues by building on recent measures our government has undertaken.

Sexual assault is a gendered crime. Women are almost four times more likely to be sexually assaulted than men. Statistics Canada has reported that 30% of women in Canada, compared with 8% of men, have been sexually assaulted at least once since the age of 15. That is 4.7 million women and 1.2 million men who have been victims of sexual assault.

It is estimated that only 5% of sexual assaults are reported to police. In 2017, only 32% of sexual assault charges proceeded to trial and only 41% of those resulted in a conviction. In other words, less than 2% of sexual assaults in Canada resulted in a conviction in 2017. I would like to note that the number is likely much lower.

In 2018, it was estimated that only 35% of reported sexual assault cases resulted in charges being laid. If we apply this number to the 2017 data, the result is that only 0.23% of sexual assaults in Canada result in a conviction. The data paints a bleak picture and illustrates the challenges our criminal justice system is facing in responding to sexual assaults.

In recent years, this government has made important changes to sexual assault law. These reforms were aimed at enhancing the equality, privacy and security rights of complainants by countering the myths and stereotypes that have persisted in our criminal justice system, while also balancing the rights of the accused in a manner consistent with relevant Supreme Court of Canada jurisprudence. These myths include deeply rooted beliefs of how so-called real victims react to sexual assault and myths concerning the reliability of women's testimony when they make sexual assault complaints.

In June 2017, our government launched its action plan to combat gender-based violence. The plan is called “It's Time: Canada's Strategy to Prevent and Address Gender-Based Violence”. It is a coordinated, multisectoral strategy based on the three pillars of prevention, support for survivors and their families, and promotion of responsive legal and justice systems. The government has invested substantial sums to support the implementation of this government-wide initiative, which aims to combat gender-based violence, coordinate existing programs and lay the foundation for a broader package of measures.

Additionally, through former Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act, which received royal assent in 2018, we amended the Criminal Code to clarify and strengthen Canada's sexual assault laws.

For instance, these reforms clarified that an unconscious person is incapable of consenting to sexual activity; an accused cannot rely on the defence of mistaken belief in consent if there is no evidence that the complainant voluntarily and affirmatively expressed consent; sexual history evidence must never be adduced to infer one the twin myths, namely, that the complainant is more likely to have consented or is less worthy of belief based on the sexual nature of that evidence; and the admissibility of the complainant's private records that are in the possession of the accused, such as counselling records or private journals, is determined through a special procedure similar to what applies to the admissibility of sexual history evidence and the production of third party records.

In addition, our government has funded the creation of pilot programs in various provinces to provide independent legal advice, and in some cases, legal representation to survivors of sexual assault. The provinces of Newfoundland and Labrador, Saskatchewan, Nova Scotia and Ontario, as well as Yukon Territory, have reported that these programs have been beneficial to survivors of sexual assault. Our government has also provided funding to the National Judicial Institute to develop judicial education on gender-based violence, including sexual assault.

Finally, through former Bill C-75, an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts, which received royal assent in June 2019, we restricted the availability of preliminary inquiries to offences punishable by 14 years or more imprisonment. This means that preliminary inquiries are no longer available for many sexual assault offences so that many complainants will not have to testify twice, once at the preliminary inquiry and again at trial. We know that testifying in court is often a harrowing experience because it requires victims to relive the trauma they have experienced.

As such, the criminal justice system has become more compassionate to survivors of sexual assault. Although we have made significant progress in recent years, we must continue our efforts to ensure that survivors of sexual assault are treated with respect and dignity in their interactions with the criminal justice system. It is imperative that judges have the necessary training regarding the complex nature of sexual assault law and the myths that too often surround it. Bill C-3 aims to ensure that decisions in sexual assault matters are not influenced by myths and stereotypes about sexual assault victims and how they have behaved, which the Supreme Court of Canada has found distorts the truth-seeking function of the court.

Through this bill, we hope to enhance the confidence of the public and survivors in the handling of sexual assault matters by our criminal justice system. This is why the bill would require all candidates seeking appointment to a provincial superior court to agree to participate in continuing education in sexual assault law and social context, and to require judges to provide reasons in writing or on the record for decisions in sexual assault matters.

The proposal in Bill C-3 to require candidates to commit to continuing education after appointment would ensure that newly appointed provincial superior court judges fully understand the complex nature of sexual assault law. It would also require that the training created by the Canadian Judicial Council be developed in consultation with survivors of sexual assault, their support groups, and other individuals or groups the council considers appropriate.

The bill also provides for the introduction of a requirement that the Canadian Judicial Council report on the participation of all current superior court judges in sexual assault law education. This measure would increase accountability for sexual assault law education and act as an incentive to encourage the participation of current superior court judges in sexual assault law education.

Bill C-3's specific proposal to require judges to provide reasons in a determination of sexual assault matters would be included in part VIII of the Criminal Code with other sexual assault provisions to ensure that provisions relating to sexual offences are clear and accessible to those applying them. Essentially, this will create almost a mini sexual assault code within the Criminal Code and will help to prevent the misapplication of sexual assault law. Further, it would help improve the transparency of sexual assault decisions because recorded and written decisions can be reviewed.

Improving the handling of sexual assault cases in our criminal justice system goes beyond partisan politics. This bill, originally a private member's bill introduced by the hon. Rona Ambrose, the former interim leader of the Conservative Party, will help to increase the confidence of sexual assault survivors and the public in our criminal justice system. We must work together to transform the criminal justice system into a fair, more effective, accessible and efficient system for all Canadians. I urge members of the House to support the passage of this bill.

[Pam Damoff, Liberal, Parliamentary Secretary to the Minister of Indigenous Services]

Mr. Speaker, I will be sharing my time with the member for Saint-Laurent.

Today I speak in support of Bill C-3, an act to amend the Judges Act and the Criminal Code.

This bill has had the support of the House on two previous occasions, but despite all-party support has not yet become law. Listening to debate last Friday, it was obvious the bill continues to serve as an example of ongoing parliamentary collaboration and one which we should all take pride.

I want to start by recognizing and thanking the Hon. Rona Ambrose for her initiative on this critical issue. Her bill was the first legislation to be studied at the Standing Committee on the Status of Women. The collaborative work we did at committee made the bill stronger, and I am happy to see that the government has incorporated amendments from that study into this bill.

At the time Ms. Ambrose introduced her private member’s bill, several high-profile rulings had shown Canadians some judges did not understand sexual assault law and were relying on myths and stereotypes when issuing their rulings.

Members of the House will recall when former Alberta Federal Court Justice Robin Camp asked a sexual assault complainant why she could not “keep [her] knees together” during her alleged rape. Because of his comments, the Canadian Judicial Council launched a review into Justice Camp’s conduct and concluded that he “acted in a manner that seriously undermined public confidence in the judiciary.” Following the review, Justice Camp resigned.

Ultimately, Bill C-3 is about assuring Canadians that judges who are elevated to federally appointed positions have a desire to understand the myths and stereotypes that have been present in Canadian society for far too long. The federal government should appoint judges who acknowledge that learning is a lifelong process and value continuing education. This is a bill created to ensure that no other sexual assault complainant will be subject to condescending, humiliating and disrespectful conduct from a federally appointed judge.

Bill C-3 would amend the Judges Act to require that a candidate seeking appointment to a federally appointed judicial position attest to participating in training related to sexual assault law and its social context. The bill would also require the Canadian Judicial Council to ensure this training is developed after consultation with those knowledgeable in the field or other individuals or groups it considers appropriate, including sexual assault survivor organizations.

These amendments are designed to ensure that newly appointed superior court judges are fully apprised of the law in relation to sexual assault and on social context. Moreover, the bill is possible because of the already outstanding work the National Judicial Institute, the body responsible for creating judicial education in our country, has done, with help through federal investment, in developing comprehensive continuing education for judges on sexual assault law and its social context.

Finally, the bill would amend the Criminal Code to require that judges provide written reasons or enter them into the record of the proceeding for decisions in sexual assault proceedings.

I have talked about the social context of sexual assault, and I would like to provide a clearer definition of social context.

Quite simply, social context means the immediate social or physical environment in which one lives affects how one sees the world. The experience of an affluent woman who has survived sexual violence will be different than the experience of a woman who is homeless. The experience of a white trans-woman will be different than the experience of a cisgender indigenous woman. The experience of a gay man from Toronto will be different than the experience of a straight woman living with a disability in Amherst, Nova Scotia. The experience of a judge trained in myths and stereotypes about sexual assault will be different than a judge who has never received such training.

Importantly, in the context of the debate on the bill, social context affects how different people view the criminal justice system and how the criminal justice system views them. This is why it is my hope that at committee the bill can be expanded to clearly articulate the need for training, not just on sexual assault law and social context but on the need for training on anti-racism.

This summer, our country came to understand that systemic racism existed in all our institutions. In 2017, at the beginning of the #MeToo Movement, our country came to understand that systemic sexism existed within all our institutions as well.

Jennifer Koshan, professor of law at the University of Calgary, made clear in her testimony at the Standing Committee on the Status of Women that “not only does the law change, but social context can change”. This is why requiring that a candidate seeking appointment to a federally appointed judicial position attest to participating in training related to sexual assault law and its social context is so important.

Bill C-3 addresses a long-standing problem: the influence of myths and stereotypes in sexual assault law. As hard as it is today to imagine, prior to the reforms that began in 1983, a husband could not be convicted of sexually assaulting his wife. Sexual assault convictions required testimony from someone other than the victim. Victims had to raise a hue and cry before the assault and report it shortly afterward or they would not be believed. Victims' sexual reputation and prior sexual activity could be used to attack their credibility.

Reforms were enacted to address these and other evidentiary rules through the 1980s and 1990s. For instance, in response to concerns from survivors and women's organizations, amendments commonly referred to as the ”rape shield” provisions, which govern the admissibility of the complainant's prior sexual activity, were first introduced in 1983 and then amended in 1992. These provisions are designed to protect survivors from the introduction of evidence of their sexual history, which had been used to infer that they were more likely to have consented to the sexual activity in question or were less worthy of belief. The provisions also place restrictions on the use of sexual history evidence for other purposes unless specific criteria are met.

Also in 1992, a clear definition of “consent” in the context of sexual activity was introduced in the Criminal Code and limitations on the accused’s ability to raise a defence of mistaken belief in consent were enacted. The Supreme Court of Canada has provided guidance on the application of the sexual assault provisions, making it clear that consent must be affirmatively expressed through words or conduct and cannot be implied by submission, passivity or a failure to protest.

However, despite the robust legislation in place and the clear rulings from the highest court, myths and stereotypes about sexual assault survivors still creep into the courtroom and into judicial decisions. Identifying solutions to these ongoing challenges has been a priority for our government and, indeed, a matter of ongoing concern in Canada.

Our government introduced Bill C-51 in 2018. With its passage, the changes clarified a number of principles that were already covered in the law, notably, that an unconscious person cannot consent to sexual activity; an accused cannot rely on a mistaken belief in consent where that belief is based on a mistake in law, such as consent obtained through force; sexual history evidence must never be used to infer consent; and, finally, the admissibility of evidence of a victim’s private communications made for a sexual purpose must be determined through the rape shield provisions.

In addition, Bill C-51 provided that victims could make submissions and be represented by counsel in sexual history evidence or rape shield proceedings and that the admissibility of victims’ private records that were in the hands of the accused be determined through a process similar to that of the rape shield and third party records proceedings.

Our government has also modernized the judicial appointment process to bring greater diversity to the bench. During testimony in 2017 at the status of women committee, Professor Carissima Mathen said, “That's been a somewhat unheralded earthquake in the world of judicial appointments.... The innovations that have been done around judicial appointments...have been quite remarkable.”

Canada’s—

Resumption of Debate on Address in Reply

[Matthew Green, NDP, Hamilton Centre, ON]

Madam Speaker, we heard good words about reconciliation, yet 45 minutes from my house, on Six Nations territory, Haudenosaunee land defenders are being criminalized by both the OPP and crown prosecutors.

Does the member believe that indigenous land defenders who are peacefully protecting their land claims are terrorists, as defined under Bill C-51?

Criminal Code

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, it is a pleasure to rise in the House to speak. This could quite possibly be the last speech I make in the 42nd Parliament. I certainly have a number of things to say about Bill C-75.

Bill C-75 amends criminal law. It is a justice bill. When we look at bills that fall into this area, it is important to remember what we are trying to achieve with bills in the criminal justice system. The first thing we are trying to do is define for Canadians what unacceptable behaviour is. Once we have set that standard, then we are trying to assign penalties suitable to deter people from committing that crime. In Canadian federal prisons, we do not do a lot of rehabilitation, so really the main part of the criminal justice system is to assign a penalty that both is commensurate with the crime that was committed and also is a deterrent to keep people from committing that crime, and then to prosecute that charge in court with a fair and due process.

I would like to look at Bill C-75 and compare it to those criteria to see how it measures up.

First, I will talk about defining unacceptable behaviour. I am not sure that the Liberals understand what unacceptable behaviour is. I say that because we are talking about a Prime Minister who is the first prime minister to break a law, which he did when he took a private helicopter to billionaire island. The member for Brampton East was involved in allegations of money laundering. We are currently seeing the member for Steveston—Richmond East in several instances of money laundering, as well as being disbarred. There have been multiple ethical lapses and cases of sexual harassment that caused some members to be out of the caucus, but I would argue there are still some members within the caucus. There is a tolerance for things that, in the minds of Canadians, shows that maybe there is not a good moral compass in the Liberal Party to define what unacceptable behaviour is.

With respect to assigning penalties suitable to deter people from committing the crime, one of the most egregious things about the changes in Bill C-75 is that the Liberals have taken a number of crimes that Canadians would consider to be very heinous and reduced them to a summary conviction of two years or a fine. It is important to look at the list of the kinds of crimes we are talking about, so that people can convince themselves whether this is appropriate.

The most heinous crime on the list has to be the forcible confinement of a minor. In the minds of all Canadians, we value our children and we want to protect our children. If somebody kidnapped and forcibly confined a child, I do not think most Canadians would think it is okay to get off with a fine for doing that. That is unacceptable.

Also on the list is forced marriage and forced marriage of children. I am not sure this should be allowed at all in Canada, but I know one thing. If we are talking about forced marriage and marriage for people who are under 16, that is rape. It is clear that it is rape. Therefore, to put that as a summary conviction of less than two years or a fine is unacceptable. We can see in this country that rape is on the increase. One in three women will experience sexual violence in her lifetime. Therefore, it is clear that we do not have the right deterrent to reduce the crime that is happening.

I was the chair of the status of women committee when we studied violence against women and girls in Canada. We had testimony from quite a number of countries, and I was interested to look around and see which countries were doing a better job in the area of rape. There are countries that do not have a big issue with rape. I asked the witnesses why that was, and they said the penalty for the crime was 10 to 15 years in prison, so they have a deterrent for people not to commit that crime. There is also an awareness of the fact that it is illegal. We have a lot of people coming to Canada from places that have a different culture in many cases and have a different tolerance for things like rape. It is important that we educate people who come to this country about those issues. We should be setting punishment for this crime that is commensurate with it, and a fine is not acceptable.

Assault with a weapon is on the list. We sadly saw what happened today at the Raptors parade with people getting shot. This seems to be an event that is on the rise. I think about the Danforth shooting. I think about a number of shootings that have happened. Assault with a weapon should not be less than two years in prison or a fine. That is not acceptable. That is not a deterrent, and I think most Canadians would agree with that.

Originally, there were a number of items on the list that had to do with participating in terrorism activities, or leaving Canada to participate in the activities of terrorist groups. There was some walk-back within Bill C-75 on that issue, but we are still not in the place we need to be on that.

Canadians are concerned about terrorism. A number of events happen but we do not receive any information. I am thinking about the two fellows in Ontario who were caught with explosives and the FBI was investigating. Everyone says there is nothing to see here; all is fine. There is the Danforth shooting, the guy who drove a van and killed multiple people in Toronto. There is the return of ISIS fighters and people not knowing what is happening with them. Are they walking around? How do we know that the public is safe? There is a concern among Canadians that we should take a hard line on terrorism. I am glad to see some walk-back on that, but I want to keep an eye on it.

Another thing on the list is municipal corruption. Corruption in government of any kind is not something that should ever be reduced to a fine. We have seen lots of corruption in the existing Liberal government, lots of scandal. The fact that the Liberals have reduced the severity of the crimes on this list is indicative of the lack of moral compass on the other side.

Maybe “assisting prisoner of war to escape” is not a current issue, but how about “obstructing or violence to or arrest of an officiating clergyman”? This one is particularly egregious to me. I remember when Bill C-51 came from the Liberal government and tried to take what is today considered a crime, to attack or threaten a clergyperson, and remove that altogether. I remember the concern from churches in Sarnia—Lambton and across the country. They wondered why the Liberals wanted to take a protection away from the clergy, especially when cases of that nature had been prosecuted.

As a result of the public outcry and a swing in the polls, the Liberals backed off that, but here it is, showing up again, and this should be a flag to people who are watching tonight. What we see with the Liberals again and again is that they try something and when there is a public outcry, they back off, but as soon as they get another chance to sneak it in, it comes back.

A number of things have been like that. I am thinking of the tax that the Liberals were going to put on dental and health care. They backed off, but I bet it will reappear. It is the same thing with the small business tax on passive assets. As soon as there was an outcry, the Liberals backed off, but this is something to watch for if they get another chance.

Impaired driving causing bodily harm is on the list. This is quite concerning as well. We can think about the amount of work that organizations like Mothers Against Drunk Driving have done to raise awareness, to try to get stiffer penalties for impaired driving causing bodily harm. We can think of the tragedy of many parents who have lost children or loved ones who have been killed by somebody driving impaired. To reduce this to a conviction of less than two years or a fine is totally unacceptable, especially from a government that legalized marijuana, knowing that Colorado and Washington saw a doubling of traffic deaths due to impaired driving. This is a step in the wrong direction and should be reconsidered.

There is another one in the bill that talks about polygamy, and I am not sure why this one made the list. Polygamy has been illegal in Canada for quite some time and culturally, we would like to preserve that. I am not sure why we would want to lessen the severity of the crime for that.

There is arson for fraudulent purposes. These acts are clearly serious crimes. If I go back to the original premise that says the reason we have a criminal justice system is to assign penalties suitable to deter people from committing a crime, I think we could admit that diluting the penalty in the way Bill C-75 does is not going to help us move forward or deter crime in this country.

I want to read quotes of what people have said about Bill C-75. Ms. Markita Kaulius, the president of Families for Justice, said, “Bill C-75 is a terrible bill for victims and for public safety.” Stephanie DiGiuseppe, a litigation lawyer in Toronto specializing in criminal and constitutional law, said, “Bill C-75 is a massive step backwards for justice reform in Canada.” Christian Leuprecht, a professor at the Royal Military College of Canada, said, “the signal that [Bill C-75 is] sending is that these offences are no longer as serious as they were before.” It has been recognized across the country that this bill is not going to be good for the criminal justice system and it is not going to accomplish what we need to accomplish.

If I were a criminal in Canada, I would be saying it is a great time to be a criminal with the Liberal government in place because it always protects the rights of criminals instead of the rights of victims. There is a move to decrease punishments. We talk about some of the things that Bill C-75 was hoping to accomplish. One was that the court system is overloaded right now. One way of offloading the courts is to get rid of all the people in line by fining them instead of making them go through the court process. One way to prevent the courts from being clogged up is to hire enough judges to adjudicate the cases.

In the four years the Liberal government has been in place, the court is missing about 60 judges, at last count. That never happened under the previous Conservative government. There was always an adequate number of judges to process the cases in the courts. Therefore, reducing sentences and letting everybody off the hook is not the answer. We do not say that since there are too many people in line, we should allow the murderers and rapists go free, but that is essentially what is happening now because there are cases are waiting too long. According to Jordan's principle, after two years, those cases are thrown out of court. During the reign of the Liberals, murderers and rapists have gone free in Canada. Clearly, understaffing the judiciary is part of the problem and part of the solution is replacing them.

When it comes to enforcing punishments, there has been a bit of a lackadaisical attitude. I remember when we first heard that Terri-Lynne McClintic had been sent to a healing lodge that had no security. She had been convicted of brutally murdering a child and was supposed to be imprisoned with a lot of security until 2030. When we raised the issue, those on the other side did not understand why we were raising it because they thought it was no big deal. It took a public outcry for the government to recognize that this was a big mistake and people who commit serious crimes, like murdering a child, need to be behind bars. The punishment needs to fit the crime. Again, there is lack of a moral compass on the other side.

However, there are lots of protections for people in prison. Mental health supports were announced in the budget for folks in prison. I am not saying that criminals do not deserve mental health supports. I am just saying that since mental health supports are very much lacking for the rest of Canadians, why are we putting prisoners first? There is a program to provide free needles and we are moving to providing free illegal drugs to prisoners. I am not sure why the government is in the business of doling out illegal drugs; we do not provide free syringes and drugs to people with diabetes or everyone who has cancer.

I would certainly argue that when it comes to priorities, the government appears to be putting a priority on criminals, instead of victims and the rest of Canadians. I do not think that is the right priority, and the government should re-evaluate it.

The current Minister of Justice talked about the Senate amendments and the ones that should be included. He talked about the victim surcharge in one of the amendments. The victims surcharge was put in place because victims services were expensive. This was a way of recouping some of the costs, people who had done the harm had to do some remediation of the harm.

I am not sure, then, why the government would remove the requirement to have this victims service charge and to leave it to the discretion of judges. First, they have to remember that they can apply a victims surcharge. Then we leave it to their discretion as to whether they will apply it.

My experience has always been that when it is left to the discretion of judges, we see sentences becoming smaller and smaller over time. It is heartbreaking to me. I think about some of the stories I have heard of rape and been involved with them. In Sarnia—Lambton, for example, there was a case recently, where a 13-year-old girl was gang raped by two men who received prison sentences of months. We absolutely cannot have this kind of thing.

I think of Rehtaeh Parsons who was raped by multiple people. As a result of the ensuing shame that was put on her for over a year and a half, she took her life. It was a wrist slap for the people who were involved in that crime.

We do not have the right balance, and Bill C-75 does nothing to address it.

I want to talk about the previous Conservative government and its record on crime. The Conservatives are known, in general, to uphold criminal justice, to take the rights of the victim, rather than the rights of the criminal, and to try to impose stiff penalties for violent and heinous crimes. People will have a choice in the fall election. They will have a choice to move away from protecting the criminals' rights and move into the space of protecting the victims' rights. That will be important.

One of the interesting parts of the Senate amendments was the Senate trying to add different offences. The Senate decided it would add neglect or interference with a dead body to the list of things we might want to give a fine for or a summary conviction. The Senate wanted to make infanticide, killing a baby, a less than two years sentence or a fine. I do not think that is where Canadians are.

Setting traps, obtaining credit from false pretense, stock manipulation, gaming, fraud, falsification of documents, dealing in counterfeit money, on all of these things, the everyday Canadian would say they are crimes and people should go to prison when they do these things. They should not be given a fine or a summary conviction. I do not think it is right.

The government promised to uphold the rights of Canadians and to protect them. This is another example of where the government has not kept its promise to Canadians. It promised a lot of things. The Liberals promised small deficits. They promised to balance the budget by 2019, and here we are in 2019. They promised open and transparent government, but we have seen gag orders and cover-ups. The privacy legislation, which we just talked about, clearly is not hitting the mark.

We were told 2015 would be the last election under first past the post, another broken promise. We were told there would be no omnibus bills, another broken promise. We were told they would restore home mail delivery. The Liberals have broken 75% of their promises. When people are listening to what Liberals are promising this year, they should keep that in mind, that three-quarters of what is going to be said is never going to happen. We have seen that with the pharmacare promise. The Liberals promised that in 1997, 2004 election and again in the last election.

Then there is the wrong approach to guns. Assault with a weapon has been added to the list in Bill C-75 that will get a slap on the wrist. However, we see an increasing number of crimes involving guns. In fact, 95% of the gun crime in Canada is caused by illegal guns or guns used illegally. The government has not come up with a plan to address that. Our leader has come with a comprehensive plan that will address the real problem, which is guns used illegally by gangs, and bring the right penalties to deter bad behaviour. However, the Liberals are not on that page. They are as always taking the side of the criminals on these things, and we see a further move to decriminalize other behaviours.

I know there is a real push on for the Liberals to decriminalize all drugs. We just did a study at the health committee on the meth problem. We visited across the country. When we went to Winnipeg, we saw the problem with methamphetamine addiction. The response of the Liberals was to decriminalize it and give people free methamphetamine. Police officers are saying that these people are committing a lot of crimes, they are breaking into people's houses and there are all kinds of violent acts going on. Therefore, we have to be doing something that balances the protection of Canadians with the care that we have for folks who are addicted. However, that has not been addressed.

On Bill C-75, I received numerous petitions. I know people across the country are paying attention to this. I received a lot of information from the member for Niagara Falls, who was a former justice minister, as well as the member for Milton, who is very educated in these areas.

I heard the current Minister of Justice talk about indigenous people being overrepresented in the criminal justice system, and that is true. We need to get to the root cause of that, but I do not think reducing penalties for serious crime is the way to go about it.

I looked at some of the points that were made on reducing intimate partner violence. It is a great thing to reduce intimate partner violence, but forced marriage is intimate partner violence, especially when it is a child. There is a bit of hypocrisy in the way the bill was brought forward.

I did not hear a lot of conversation from the Minister of Justice on the modernization and simplification of the bail system and I would like to hear more. There is definitely room for improvement, but, again, modernization and simplification cannot mean abdication of responsibility in the criminal justice system.

On allowing a preliminary inquiry, which originally was allowed for serious crimes that carried life imprisonment, and I believe 70 infractions would meet that criteria, the bill would open that up to another 393 that could have access to a preliminary inquiry if one party or the other demanded it. Again, this will take more court resources. If the whole purpose of Bill C-75 is to try to help offload the courts and if the Liberals would let some more serious crimes go with a less than two-year conviction or a fine but then load up the court system again with a bunch of preliminary inquiries for a greater realm of offences, I am not sure that would achieve what they want to achieve.

Overall, when I look back to what we want to do in the criminal justice system, we want to define unacceptable behaviour, and certainly there is a good list, but we also want to assign penalties suitable to deter people from committing the crime. The Liberals missed the mark on that with Bill C-75.

We want to prosecute in court with a fair and due process. I do not think Bill C-75 would do that. I do not think it is fair to the victims to have these very serious crimes punished with a slap on the wrist, which is essentially what a fine or a less than two year summary conviction is. I do not think we will increase the cycle time through the courts, because, again, judges are still missing, which is a key part of it. Now the bill would increase the number of preliminary inquiries. Therefore, I do not believe Bill C-75 will hit the target.

The bill should not go forward. I know the government is rushing it through in the dying days of of the 42nd Parliament, but I will not support Bill C-75 and I know my constituents and those across the country will not support the bill or the government.

Motion That Debate Be Not Further Adjourned

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I very much appreciate the efforts of the minister and his staff in bringing forward what I believe is a substantial piece of legislation. It provides a sense of security for Canadians and at the same time provides rights that can be traced right back to our charter.

In the last federal election, we made some serious commitments to Canadians about making changes to Bill C-51. Bill C-59, in part, deals with Bill C-51. I look at the legislation before us as another way the government has delivered some of the tangible things it said it would.

Could the member comment regarding that aspect of the legislation, which I know is important to all Canadians? As a personal thought, it is nice to see the legislation going through this final process.

National Security Act, 2017

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, I was here when the minister made his statements in regard to the necessity of this legislation and explained exceptionally well why we are at the stage we are at.

My question is related to the bigger picture. The member made reference to Bill C-51. There were a series of changes that were required. We are seeing part of that in the legislation; it is only a component of it. The legislation also addressed one of the biggest things lacking in Bill C-51, and that was the parliamentary oversight committee, which put us on par with other Five Eyes nations. I think this is good, substantive legislation that is in Canadians' best interests, from a security and privacy perspective. Both issues are being addressed.

Would the member not agree that it is time we actually saw this legislation passed?

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

Madam Speaker, I rise this morning to speak to Bill C-59, an omnibus bill that is over 260 pages long and has nine major parts. I listened to the minister's speech, which addressed the Senate amendments, but I would first like to focus on Bill C-59 itself.

As I have been saying from the outset, the problem is that most parts of Bill C-59 are administrative in nature. They make changes to the various intelligence and communications agencies. That is fine, but the main goal of Bill C-59 was to respond to Bill C-51, which was implemented by the Conservatives following the attacks that took place here in Ottawa. Bill C-51 was specifically designed to counter terrorism and ensure that anyone seeking to commit terrorist acts in Canada was stopped to avert disaster.

Overall, the omnibus bill has some parts that are fine. They contain the sort of changes that need to be made from time to time. However, other parts are very administratively heavy and will be very costly for the public purse. Essentially, this is a bill on national security. The public expects the government to protect people properly and ensure that the offenders and would-be terrorists of this world are stopped.

Despite what the minister says, we believe that Bill C-59 limits CSIS's ability to reduce terrorist threats. It also limits the departments' ability to share information in order to protect national security. It removes the offence of advocating or promoting the commission of terrorism offences in general and raises the threshold for obtaining terrorism peace bonds and recognizance with conditions.

At the end of the day, Bill C-59 is going to make life difficult for CSIS agents and telecommunications services people. The bill makes it harder to exchange information. It will once again clog up a system that is already burdensome. People working on the ground every day to ensure Canada's security and safety will be under even more restrictions, which will prevent them from doing their jobs.

Here is a snapshot of the nine parts. Part 1 establishes the national security and intelligence review agency.

Part 2 enacts the intelligence commissioner act. It deals with everything pertaining to the commissioner and the various tasks he or she will have, but abolishes the position of the Commissioner of the Communications Security Establishment and provides for that commissioner to become the intelligence commissioner. It transfers the employees of the former commissioner to the office of the new commissioner and makes related and consequential amendments to other acts. In other words, it shuffles things around.

Part 3 enacts the Communications Security Establishment act. CSE's new mandate includes the ability to conduct preventive attacks against threats in addition to its role in signals intelligence and cyber defence. We really do not have a problem with that, provided it remains effective. That is an important point.

Part 4 amends the Canadian Security Intelligence Service Act. It changes the threat reduction powers by limiting them to seven types of measures, one of which gives rise to the issue of whether non-invasive actions require a warrant. The measure in question is described as interfering with the movement of any person. This could mean that a CSIS officer requires a warrant to give misleading information to someone on the way to meeting with co-conspirators.

During operations, officers will sometimes provide individuals with false information to be passed on to those organizing terrorist or other plots. That is one of the work methods used in the field. Henceforth, warrants will have to be obtained, making the work more complicated. The officers will have to spend more time in the office doing paperwork and submitting applications instead of participating in operations.

Part 5 amends the Security of Canada Information Sharing Act, which was enacted by the Conservative government's Bill C-51. Individuals and privacy groups were unhappy that government institutions could, on their own initiative or at the request of another institution, share information on activities that undermine the security of Canada. Bill C-51 was criticized for permitting the sharing of citizens' personal information.

Although Bill C-59 maintains part of the departments' ability to share information, it is much more restrictive. This means that the departments operate in silos, which was harshly criticized by the national security experts who testified.

Part 6 is the most positive part, and we fully support it. This part deals with the Secure Air Travel Act and the problems with the no-fly list. When travellers have the same name as a terrorist, they encounter major problems, especially when it happens to children and they are not allowed to travel. This part will help fix this problem, and we fully support it.

Part 7 amends the Criminal Code by changing the offence of advocating or promoting terrorism offences in general to one of counselling the commission of a terrorism offence, which carries a maximum sentence of five years.

I will read the next part, which does not pose any problems:

Part 8 amends the Youth Criminal Justice Act to, among other things, ensure that the protections that are afforded to young persons apply in respect of proceedings in relation to recognizance orders, including those related to terrorism, and give employees of a department or agency of the Government of Canada access to youth records, for the purpose of administering the Canadian Passport Order.

Finally, here is the last part:

Part 9 requires that a comprehensive review of the provisions and operation of this enactment take place during the sixth year after section 168 of this enactment comes into force.

These are additional administrative measures.

In short, of the nine parts of Bill C-59, we fully support part 6 on the no-fly list. The other parts contain a lot administrative provisions that will make the system more cumbersome. Part 7 is the most problematic.

We believe that the Prime Minister and the minister are weakening Canada's national security agencies and their ability to keep Canadians safe. This legislative measure will make it more difficult for law enforcement and security agencies to prevent attacks on Canadian soil because it takes away their authority to counter threats. The information silos this bill will create within our federal agencies are dangerous and foolish. Rather than countering radicalization, the Liberals are creating loopholes that could be exploited by those who want to radicalize our young people.

The Conservatives take the safety of Canadians very seriously. That is why the previous government brought Canada's national security laws into the 21st century and aligned them with those of our allies. While all of the Five Eyes allies are taking measures to strengthen national security, this government is bringing in legislation that will eliminate our intelligence service's ability to reduce terrorist threats. The Liberals' irresponsible approach will put Canadians' safety at risk.

I was pleased with the four amendments proposed by the senators, who also took the time to work on Bill C-59 and hear witnesses. We know that the independent Liberals have a majority in the the Senate, so we would not normally expect to see amendments that reflect the Conservatives' views. This time, however, we think all four amendments are excellent and deserve our support. We waited for the government's response.

Two of the amendments had been proposed by me and my Conservative colleagues on the Standing Committee on Public Safety and National Security, but the Liberals had rejected them. One of them sought to clarify the definition of the phrase “counselling commission of terrorism offence”. This short phrase really embodies the problem we have with Bill C-59. For the benefit of our viewers, I would like to quote the specific wording.

The bill would amend the Criminal Code by changing the following existing definition:

Every person who...knowingly instructs, directly or indirectly, any person to commit [a terrorist] offence...is guilty....

The bill would change it to the following:

Every person who counsels another person to commit a terrorism offence...is guilty....

What is the Liberals' real goal here, if not to just strike out the Conservative government's Bill C-51 so they can say they made a change?

Did they make this change with the intention of improving the legislation? No. Even the senators advised the government to preserve the essence of the definition set out in the Conservatives' Bill C-51.

The minister says that in 2015, when Bill C-51 was introduced by the Conservative government, no charges were ever laid. Is it not possible that no charges were laid because people got scared and decided not to run any risks, in light of the legislation and resources that were in place, as well as the enforcement capability?

Maybe that was why nothing happened. Does watering down and changing this—

[Ralph Goodale, Liberal, Regina—Wascana, SK]

Madam Speaker, the purposes of Bill C-59 are threefold.

First, it would address the deficiencies that existed in previous legislation, including not only Bill C-51 but other pieces of legislation as well. There were errors or omissions that needed to be fixed, and Bill C-59 would do that.

Second, Bill C-59 introduces a broad range of new accountability mechanisms through the new national security and intelligence review agency, the creation of the new intelligence commissioner and a number of other procedures in Bill C-59 to improve transparency and accountability throughout our national security architecture.

Third, the legislation seeks to clarify and confirm legal and constitutional authorities so our security and intelligence agencies, whether that is CSIS, or the CSE, or the RCMP, or the CBSA or any others in the Government of Canada that deal with national security and intelligence issues, know explicitly where they stand, what their authorities are, where the fences are and what they can and cannot do.

This legislation works very hard to accomplish all three of those objectives.

[Maryam Monsef, Liberal, Minister for Women and Gender Equality]

Good morning, and thank you, Madam Chair.

Boozhoo. Aaniin.

As-salaam alaikum. Ramadan kareem to my Muslim colleagues in this space and beyond.

We are on traditional territory that the Algonquin peoples have called home for generations upon generations.

This is my first time meeting with you in this room. I'm thankful to be here to speak with you about the main estimates and how they're going to allow Women and Gender Equality to better implement the mandate that it has been given.

As you know, the focus of our government on advancing gender equality is based on two premises. One, it's the right thing to do. It's the fair thing to do. Two, it's also the smart thing to do. It's the economically advantageous thing to do. When women succeed, everyone benefits.

That pillar, our gender equality pillar, has been a big driver for economic growth for us since we formed government. This plan that we've put together is working: one million jobs, the lowest poverty rate on record and the lowest unemployment rate we've had in over four decades. We have lifted out of poverty 300,000 children who are not going to bed hungry anymore. Also, we've been able to sign three trade agreements. This is all a sign that our plan is working.

I want to thank the members of this committee for your important work. When you collaborated and you worked together, you had tremendous results. As the minister responsible for this file, I tell the stories, especially around gender-based violence, of how you came together and how you made a world of difference for a lot of people. You've eased a lot of suffering, for example, with the conversations you had with Facebook around revenge porn.

When women have choices, when they have a voice, opportunity and the right skills, when they have safety, and when they have role models and social safety nets, they move mountains. Every single one of us knows women in our lives—and those women are around this table as well—who are able to do big things because of those choices, opportunities and means.

Our government has worked to apply an intersectional gendered lens throughout everything we do and every decision in cabinet. Now it's the law to apply that lens to budgets. More and more, we're seeing committees do a really good job of that. There are still some inconsistencies around the application of GBA+, but we intend to make sure that we get better.

I do want to thank my parliamentary secretary, Terry Duguid, who has been working very hard with other parliamentary secretaries to make sure that the GBA+ is something that committees apply as well.

The Canada child benefit is giving more money to single moms and helping them make ends meet. The lower taxes for the middle class and the raised taxes for the 1%, along with lower taxes for small businesses, mean that Canadians have more money in their pockets. For seniors, especially for women—I know you've done a study on this—the guaranteed income supplement and the fact that we brought the eligibility age back to 65 is lifting tens of thousands of seniors out of poverty, many of whom are women.

There's the national housing strategy, with over $50 billion now over 10 years to stabilize the housing market in communities across the country. In Peterborough, my own community, the rental vacancy rate is 1.1%. We know that women are the first to lose housing and the last to get housing.

We know that housing is a social determinant of health, but it's also a determinant of gender-based violence. To have a carveout in the gender-based violence strategy—about a third—designed specifically for women-led families is a solution that's going to make a world of difference. There are 7,000 shelter units either being renovated or built anew. That's going to mean that she has a place to turn to when she works up the courage to leave an awful situation.

If we're applying an intersectional gendered lens, talking about feminist governments and working to ensure that we bring others along with us, it's because there has been a women's movement, an equality-seeking movement, that existed long before any of us got here. It will be here long after we're gone. The sustainability of that movement is my number one priority; we know, and results show, that the most effective way to advance gender equality is by investing in them.

For the first time ever, they've received funding over five years, capacity-building funding, with over $50 million as part of the gender-based violence strategy. The point here is that they don't always have to look inward, applying for grants one year at a time. They can have some predictability and stability with five-year grants that go beyond an election cycle.

We also know there are barriers for those women who choose to enter STEM fields, or trades. We're working to remove them. We know that only 16% of Canadian entrepreneurs' businesses are majority-owned by women—16%. Surely we can do better than that in Canada. We have a strategy to double that number by 2025.

We know that care work is most often a big responsibility for women. What if that responsibility and privilege were shared with the second parent, often the father? We have new shared parental leave that allows for just that. Child care is very much in line with that. Our investment in child care means there will be at least 40,000 new child care spaces. Importantly, there are spaces, through a distinctions-based approach, for indigenous children. We have a new child care framework for indigenous kids—Métis, Inuit and first nations. That's been a smart collaboration between our governments in a nation-to-nation way.

Over half the boil water advisories have been lifted, and we know there's a direct link between women and water. We know that in indigenous cultures and in many others women are the keepers of the water. Water is sacred; water is life. To have lifted half the advisories and be on track to lift the rest of them by 2021—in the next two years—is a big step forward. What that means for those communities, too, is that they suddenly become open for economic development. It's hard to invest if there's no clean drinking water in a community, but we're changing that.

Evidence matters. Data matters, so bringing back the census, and the ability of scientists to do what they need to do.... For example, the shelter survey results from a couple of weeks ago indicated where the gaps and opportunities are. Also, the fact that Stats Canada has a centre for diversity and inclusion statistics, a one-stop shop for all the data we're working on, to create better intersectional, gendered lenses, is really important. That's something that stays long after we're gone. Data and evidence anchor the progress we have made.

The billions we are providing to support education, infrastructure, skills, housing and leadership in indigenous communities mean that we are in this era of reconciliation and that we will not be turning back. Communities have more opportunities to self-determine the paths they want to take.

These accomplishments are significant, and many of them have been happening ahead of schedule—for example, the indexation of the Canada child benefit, not once, but twice, and the lifting of people out of poverty. We are ahead of schedule, with one million jobs. Who would have thought, when we formed a government in a recession, that we'd be talking about a million jobs and three trade agreements three years later? This is happening because our government isn't alone, but is working with our partners to do this.

We know that for all the progress that's been made, more work remains, and we're committed to that work. There are some institutional challenges that we're working to address. The fact that GBA+ is now in law for gender budgeting is an important way that we're addressing some systemic barriers.

Indeed, we are taking that diversity lens to the appointments that the federal government makes, and we have instituted a new appointment process. Thousands have been appointed to really important roles in federally regulated jurisdictions. Now, 47% of those who sit around those important tables, and who make decisions, whether it's port authorities, VIA rail or other important agencies and bodies, are women. The Senate of Canada is also at parity right now, at a time when on corporate boards in Canada, only one in five seats is filled by a woman. Again, surely we can do better in Canada.

We have a gender results framework that provinces and territories have agreed to use with us—a common set of indicators to measure our progress. We have proactive pay equity legislation, Bill C-65 and Bill C-51.

Of course, come June 3, the inquiry on missing and murdered indigenous women wraps up its work.

I wanted to give you an overview. Thank you again for all the ways you've been a part of this work.

Madam Chair, I'm happy to take any questions colleagues may have.

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

Thank you very much.

The honourable members of this committee are studying online hatred and what, if anything, the federal government can do to restrict it.

Before we can address how to fix the problem, we first need to ask where the problem comes from and who is best suited to fix it. In a certain sense, the dark corners of the web are a window into the dark corners of the human heart. Greed, lust, hatred, anarchy, covetousness and lies infect the Internet and our hearts as well.

Aleksandr Solzhenitsyn, writing in The Gulag Archipelago, said this:

...the line separating good and evil passes not through states, nor between classes, nor between political parties either—but right through every human heart—and through all human hearts.... And even in the best of all hearts, there remains...an un-uprooted small corner of evil.

Since then I have come to understand the truth of all the religions of the world: They struggle with the evil inside a human being (inside every human being). It is impossible to expel evil from the world in its entirety, but it is possible to constrict it within each person.

Charles Colson, the founder of Prison Fellowship International, builds on this idea in his book Justice That Restores. He writes that there is no more urgent task than to restore the sense of community cohesion and to build a virtuous character into common life and that "without individual virtue, one cannot achieve a virtuous culture; without a virtuous culture, one cannot hire enough policemen to keep order.”

As Michael Novak has trenchantly observed, adapted to a Canadian audience, “in a virtuous culture” we have 37 million policemen and “in a culture that mocks virtue, we cannot hire enough policemen.”

Who is best suited to offer solutions to the problem of online hatred? I don't think the honourable members of this committee realize it, but you have already made a big step in the right direction when, just over a year ago, you amended Bill C-51 to preserve the protections afforded to houses of worship in section 176 of the Criminal Code.

Not only did you signal, rightly, that you care about the protection of vulnerable citizens in a state of prayer and worship, whether in a mosque, synagogue, temple or church, but you also preserved protections for the institutions that can inculcate that virtue in individuals so that we can have a virtuous society. If we want that virtuous society, we need to protect churches, mosques and synagogues to continue to preach peace, shalom, shalam. That's where the work against online hate starts. It is absolutely necessary for this committee, indeed all of Parliament, to understand this. Do not undermine houses of worship; protect them and expect good things from them.

However, I'm not suggesting that the state has no other role in combatting violence and the senseless slaughter resulting from seething hatred, as witnessed in New Zealand and Pittsburgh. The Hebrew psalms speak to the proper role of the state. Psalm 72 says of the king:

For he will deliver the needy who cry out, the afflicted who have no one to help. He will take pity on the weak and the needy and save the needy from death. He will rescue them from oppression and violence, for precious is their blood in his sight.

This psalm points to the God-given role of the state to protect from bloodshed and violence the weak and the needy, the vulnerable citizen.

The Apostle Paul, in his letter to the Romans builds on this command. He says:

...the one in authority is God's servant for your good. But if you do wrong, be afraid, for rulers do not bear the sword for no reason. They are God's servants, agents of wrath to bring punishment on the wrongdoer.

A clear application of this biblical passage to online hatred would be that the government does have a role in enacting swift justice to punish a wrongdoer seeking violence against another person or group of people. So where the vitriol of online hatred rises to the level of incitement to violence threats of violence, which are crimes under Criminal Code sections 264.1 on threats, 318 on advocating genocide, and 319 on public incitement to hatred, then the police must act swiftly to investigate, to arrest, to charge and then to prosecute.

Perhaps—and I put this out there as a thought experiment—one impediment to swift action and swift justice on the crimes of advocating genocide and public incitement to hatred are the unusual requirements that the attorney general's consent is needed to proceed. Perhaps, by removing those two subsections, we could increase the ability of police to pursue, without delay, action to stop such crimes from happening.

However, one word of warning that ARPA Canada wants to share is that we are very concerned about overzealous attempts to fix the problem of online hate. We co-signed a letter requesting the justice committee to study this issue with a good faith understanding that we would be able to raise legitimate concerns about what would constitute going too far.

We are very concerned about any attempt to reinstate a hate speech provision in the Canadian Human Rights Act. These provisions have been shown to be ineffective and often abused. They chill freedom of expression and are applied in demonstrably unfair way. Let me give you one example of what some commentators have described as politically correct double standards.

In 2003, in a case called Johnson v. Music World Ltd., a complaint was made against a record label for a song called Kill the Christian. The lyrics of the song were read into the record by the complainant, and included the following, referring to Christians:

You are the one we despise

Day in day out your words [comprise lies]

I will love watching you die

Soon it will be and by your own demise

...Satan wants you dead

Kill the Christian, kill the Christian

Kill the Christian, kill the Christian

...The death of prediction

Kill the Christian

Kill the Christian, dead!

The panel found that while the content and tone of the communication appeared on their face to be discriminatory, there was “very little vulnerability of the target group”, so there was no violation constituting hate speech. Yet three years later, in a case called Lund v. Boissoin, a panel found that a letter published in a mainstream newspaper in Red Deer, Alberta, that made disparaging remarks about homosexuality was in fact hate speech and ordered the writer to cease publishing in future in newspapers, in email, on the radio, in public speeches—including sermons—or on the Internet. The panel chair for both of those decisions was the same person: Lori Andreachuk.

Public policy discussions, I would argue, require as broad and as open an access to expression as is possible. Freedom of expression ought to be such that all citizens feel free to speak about all public policy issues as best they can. We can preserve that freedom, and we must preserve that freedom. By putting finite resources into hate speech codes other than the Criminal Code, the government potentially will distract from true hate speech that leads to violence. That’s a distraction that will not do much to curb the kind of violence we saw in Pittsburgh or in New Zealand.

To conclude, my requests would be as follows.

One, take seriously the protection of other institutions in society that can inculcate virtue in our citizens, including religious institutions.

Two, the state needs to demonstrate swift justice against these crimes. Ecclesiastes 8:11 says, “When the sentence for a crime is not quickly carried out, people’s hearts are filled with schemes to do wrong.” This committee should consider removing the requirement for the attorney general’s consent to prosecute incitements to genocide and public hatred in subsections 318(3) and 319(6) of the Criminal Code.

Finally, we ask that we do not entertain incorporating hate speech measures into the Canadian Human Rights Act. This distracts resources from the more pressing work of preventing violence against vulnerable citizens.

Thank you very much.

[Ralph Goodale, Liberal, Regina—Wascana, SK]

One thing that Bill C-59 does with respect to the threat reduction measures is to create a very clear procedural, as well as legal and constitutional, frame that will ensure more transparency and more accountability. Exactly how the powers can be used is laid out now more explicitly in legislation than ever before.

The one major criticism of the old Bill C-51 was that the way those powers were worded in the old law implied that you could somehow exercise those powers in violation of the charter. We have clarified in the law explicitly that it is not the case, and that indeed, if and when those powers are ever exercised, they must be exercised in a manner consistent with the charter, not in violation of the charter.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Yes, Minister, of course.

With the announcement that was made, I believe the threat disruption powers that were first conferred by what was then Bill C-51 in the previous Parliament are one tool that CSIS may use in that event, and even with CSE's role will obviously significantly change once Bill C-59 gets royal assent. They have a large role to play in the election interference piece as well.

What happens for the whole-of-government approach if and when Bill C-59 gets royal assent, just with regard to the elections?

Criminal Code

[The Deputy Speaker, Conservative, Bruce Stanton]

It being 6:45 p.m., pursuant to an order made earlier today, it is my duty to interrupt the proceedings and put forthwith every question necessary to dispose of the consideration of the Senate amendments to Bill C-51 now before the House.

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Mr. Speaker, I have been here for three plus years and this will be the last week for many of us in this beautiful building. I hope all 338 of us take the time to walk around each of the sections of this wonderful building and soak them in: the Railway Committee Room, the Reading Room, the Library of Parliament and the House of Commons. This is one of the great institutions of our country. We all felt it coming to the House of Commons tonight, with the Christmas lights. We are so privileged, over 300 of us, to call this our home.

A good number of us will not be here when it reopens, whether it is in 12 years, 15 years, 20 years, whatever the case may be. Hopefully, we all take pictures. This is a great facility and such an honour. I had a distinguished 40-year career in broadcasting. The iconic curtains in the House of Commons have been here for so long. Come Wednesday or Thursday, we should treat this place like a basketball court, cut them down and each get a piece of the curtains.

I am here tonight to speak on Bill C-51. The stated purpose of this bill is to streamline the Criminal Code of Canada by removing certain provisions that no longer have any relevance in contemporary society. The Conservative Party is very supportive of Bill C-51 strengthening the provisions of the sexual assault legislation and has led the way for supporting victims of sexual assault by, among other things, Bill C-337 by my former Conservative colleague Rona Ambrose, which is one such measure.

Bill C-337 would make it mandatory, as we have heard in the House throughout the day, for judges to participate in sexual assault training and be aware of the challenges sexual assault victims face. The bill was designed to hold the Canadian judiciary responsible for the ongoing training of judges and the application of law in sexual assault trials. It would require that lawyers also receive training in sexual assault as a criterion of eligibility for a federally appointed judicial position. As members will recall, Bill C-337 was passed in the House of Commons and appears to be well on its way to royal assent in the Senate, although Ms. Ambrose, like the rest of us, is waiting patiently for the results.

Bill C-51 would expand the rape shield provisions to include communications of a sexual nature or communications for a sexual purpose. These provisions would provide that evidence of a complainant's prior sexual history cannot be used to support the inference that the complainant was more likely to have consented to the sexual activity in issue or that the complainant is less worthy of belief. The bill also provides that a complainant would have the right to legal representation in rape shield cases, which I believe is very important, but also creates a regime to determine whether an accused could introduce a complainant's private records at trial that would be in his or her possession. This would complement the existing regime governing the accused person's ability to obtain complainants' private records when those records would be in the hands of a third party.

There are some aspects of Bill C-51 that Conservatives were opposed to, such as the removal of section 176 of the Criminal Code, the section of the code that provides protection for religious services and those who perform religious services. It was absolutely ludicrous to remove this section of the Criminal Code when we have seen such a startling increase in attacks on mosques, synagogues and even churches as of late.

It should be noted that, according to Statistics Canada, over one-third of reported hate crimes in this country are motivated by hatred of religion, and removing section 176 would remove valuable protection for our faith leaders in this country.

I received many calls in my riding of Saskatoon—Grasswood over the removal of this section from the Criminal Code. This was brought up on June 5 here in the House, and a couple of weeks later when we recessed for the summer, I had many phone calls in my office in Saskatoon. I remember one phone call came from Pastor Eldon Boldt of Circle Drive Alliance Church. He was terribly concerned by this and was going to start a petition. He wanted the current government to know that this was wrong. He was concerned not only for his own well-being but for other religious leaders across the country.

In Quebec City, we had six people killed in a mosque attack. Our Conservative caucus at the time of that attack was just leaving Quebec City and returning to Ottawa. Also, 26 people were killed at the First Baptist Church in Texas. This is just a short list of what has gone on in this world.

Our religious freedoms are protected, and section 176 of the Criminal Code is certainly part of that protection. Religious freedoms are fundamental to all Canadians, and Conservatives are clearly proud to be among the first to stand and support religious freedoms of all faith.

I should add some words from the Right Hon. John G. Diefenbaker, Canada's prime minister from 1958 to 1962, who hails from my province of Saskatchewan, in fact, Prince Albert. He said:

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

If members come to my city of Saskatoon, I will take them to the Diefenbaker Centre where these words are etched onto the wall. It is very important, and these are great words from former prime minister John G. Diefenbaker.

There was a large public outcry against this amendment, and, thankfully, the Liberal members of the justice committee listened to all Canadians and voted to keep section 176 of the Criminal Code.

To summarize, I am pleased to participate in this debate on Bill C-51, which covers a broad range of amendments to the Criminal Code. Our current Prime Minister, of course, talked about omnibus bills being undemocratic. We talked about this in the House. I remember door-knocking back in 2015 as our former Conservative government was blamed, and maybe rightfully so at times, for the omnibus bills created in the House from 2011 to 2015. However, we see now that the bill before us, introduced by the current government, could also be considered an omnibus bill, because it has so many sections to the Criminal Code that we are dealing with. It is a promise, actually a pattern of promises, not kept by the Liberal government.

However, there are some amendments to the Criminal Code addressed in Bill C-51 that are quite necessary and really common sense. For example, we fully support all changes in the bill that clarify and even strengthen the sexual assault provisions in the Criminal Code. These changes would help support all victims of sexual assault crimes.

Conservatives have always stood up for the rights of victims in this country. We have a proud record of introducing the Canadian Victims Bill of Rights and the passing of Bill C-337, which would make it mandatory for all judges to participate in sexual assault training. Both of these actions are in support of victims. Sometimes we forget all too much about the victims in this country, and they certainly need to be supported.

I think the Conservative Party has supported victims very well in the past number of decades.

Additionally, we support repealing or amending sections of the code that have been ruled unconstitutional by the courts. The removal of obsolete or even redundant provisions makes common sense. There is really no need for provisions about witchcraft or duelling in the streets. They are just not part of today's society.

However, an area of this bill which caused great concern for all Canadians was the government's removal of section 176 of the Criminal Code. We have talked about that. Thanks to the work of an effective opposition on this side, and the voices of all Canadians who spoke up in the summer of 2017 to challenge the government, the Liberals have decided to back down from these changes.

That just about wraps up my time. I just want to wish everyone who is in the House and who is watching the House of Commons on CPAC tonight all the best in the holiday season. As this could be the final time that I rise in 2018, I wish everyone a merry Christmas and a happy new year.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, I am here to speak tonight to Bill C-51. For those who are not aware, this bill is intended to clean up clauses in the law that are no longer useful or applicable and to strengthen some of the language.

First, Bill C-51 is another omnibus bill. The Prime Minister said that the Liberals would not have omnibus bills, but we continue to see them in the House day after day. I may have gotten used to the fact that the Prime Minister always breaks his promise. However, I want people to be aware of this so they understand, as we approach next year's election, that the Prime Minister does not keep his promises and if he makes new promises, Canadians can expect that behaviour to continue. The promises really are not worth the paper on which they are written. Therefore, I object to this being an omnibus bill.

Usually when we think of justice bills, we think about what the government is trying to achieve in the country with respect to justice. Normally, we try to define what behaviour would be considered criminal, sentences that would be appropriate and commensurate with the crimes and that they are enforced in a timely way. However, I have to question what the justice minister is thinking with these pieces of legislation and actions that have been taken.

The government is in the fourth year of its mandate and what priority has the justice minister been giving time to? First, she has not put enough judges in place to keep murderers and rapists from going free because time has passed and the Jordan principle applies. That should have been a priority for the government, but clearly was not.

We heard earlier in the debate about how the government was pursuing veterans and indigenous people in court. That is obviously a priority for it, but one would think that other things would make the list. The Liberals prioritized the legalization of marijuana and the legalization of assisted suicide. Then it introduced Bill C-75, which took a number of serious crimes and reduced them to summary convictions of two years or a fine, things like forcible confinement of a minor, forced child marriage, belonging to a criminal organization, bribing an official and a lot of things like that. Those were the priorities of the government.

Then there is Bill C-83 regarding solitary confinement and impacts on 340 Canadians.

I am not sure what the priority of the government is when we consider the crime that has hit the streets. There is the increase in unlawful guns and gangs and huge issues with drug trafficking. I was just in Winnipeg and saw the meth addiction problem occupying the police and law enforcement there. I would have thought there would be other priorities.

If I think specifically about some of the measures in Bill C-51, the most egregious one to me is that the government tried to remove section 176, which protects religious officials and puts punishments in place for disrupting religious ceremonies.

Eighty-three churches in Sarnia—Lambton wrote letters and submitted petitions. There was an immediate outcry. It was nice that the government was eventually shamed into changing its mind and kept that section the way it was. However, why is there no moral compass with the government? We have had to shame it into doing the right thing many times, and this was one of them.

Terri-Lynne McClintic was moved to a healing lodge. I remember hearing the Minister of Public Safety talk day after day about how there was nothing he could do. I looked at section 6(1) of the Corrections and Conditional Release Act. It says that the minister has full authority over his department. Eventually, of course, we shamed the government into the right thing. We heard today there may be a similar opportunity with Michael Rafferty, the other killer of Tori Stafford.

There is the Chris Garnier situation. He brutally murdered a police officer. He has PTSD and is getting veterans benefits when he was never a veteran. Again, we had to shame the government into taking action.

Then there was Statistics Canada. The government had a plan to allow it to take the personal financial transactional information of people's bank accounts and credit cards without their consent. Again, there was a total out-of-touch-with-Canadians response from the government, asking why it was a problem. Eventually, ruling by the polls, Canadians again shamed the government into changing its mind on that one.

Finally, there was the Canada summer jobs situation, which was very egregious to me. In my riding, numerous organizations were not able to access funding because of this values test that the government had put in place. The hospice, which delivers palliative care, was not even able to apply. It is under the Catholic diocese of Canada, which objected to the attestation. It has taken a very long time, but again, the government has been shamed into saying that the people are right and that maybe it will change it up for next year. Why does the government always have to be shamed into these things instead of having a moral compass to know what is right and what is not?

Bill C-51 would clean up a lot of things that were obviously a big priority for the government, like comic books causing crime. We know there have been huge issues about that in Canada. It would remove offences such as challenging someone to a dual. It would clean up the section on people fraudulently using witchcraft and sorcery. It would clean up a number of things. I do not object to it; I just do not see it as a priority when people are dying because of serious crimes.

Then there is the issue of sexual assault. The government spends a lot of word count talking about the fact that it cares about this. However, does it really care about sexual assault and strengthening the language on consent when it does not appoint enough judges to keep rapists from going free?

I was the chair of the status of women and we studied violence against women and girls. We know that one out of every thousand sexual assault cases actually goes to court and gets a conviction. If we want to talk about the sentences applied, they are measured in months and not years, when the victims struggle on forever.

Although there has been an attempt to make it clear what consent really means, there has been discussion in the debate today that it is still not clear. If people are interested to see what consent really means, there is a little video clip that can be googled. It is called Tea Consent. It is a very good way of demonstrating what consent is. I encourage everyone to take a look at that.

When it comes to the justice system and the priorities of the government, I cannot believe it has not addressed the more serious things facing our nation. We can think about what the justice minister ought to do, such as putting enough judges in place so we can have timely processing of events, and prioritize. If we do not have enough judges for the number of cases occurring, it is an indication of too much crime. However, it is also an opportunity to put the priority on processing murderers and rapists ahead of people being charged with petty crimes of less importance.

When it comes to looking at some of the actions the government should be taking going forward, it should be focusing on the issue of illegal gun activity happening right now. Ninety-five per cent of homicides is happening with unlawful guns or guns that are used unlawfully. There is a huge opportunity to do something about that. This should be a priority for the justice minister.

Our leader has put together a very cohesive plan that would reduce gun and gang violence. It is a great, well-thought out plan. I wish the Liberal government had some plan to try to do something to reduce crime in the country and to ensure that the people who commit crimes are actually held to account. I do not see that in Bill C-51. I have to wonder why it took so long to bring the bill forward.

As I said, the government is in the fourth year of its mandate and Bill C-39 would have made a lot of these fixes. It was introduced in March of 2017. Here we are at the end of 2018 and still none of this has gone through.

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

Mr. Speaker, my colleague from Oxford, who I have the privilege of serving with on justice committee, noted that in Bill C-51 the government initially sought to remove section 176 of the Criminal Code. This is the only section of the Criminal Code that protects religious officiants.

We have seen recently a significant spike in anti-Semitic, anti-Muslim vandalism and hate at churches, synagogues, mosques and community centres. In the face of this climate of hate in which persons of religious faith are targeted because of the fact they are practising their faith really speaks to how ill-timed and ill-thought out it was for the government to consider removing section 176.

Could the member speak a little more on that?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, before I begin with my prepared text, I would like to read a Facebook post by Mr. Rodney Stafford, who is from my riding. It starts with “Rodney Stafford is feeling angry”. His post reads:

I'm really trying to find the words to say right now. There are so many questions that have been unanswered regarding Terri-Lynne, and I'm NEVER going to rest until justice is upheld. NOW, knowing what all we have [all] been fighting for over the last three months, and the questions asked without real answers and run around, it has come to my knowledge as of today that MICHAEL RAFFERTY--THE MAN RESPONSIBLE FOR ALL ACTIONS THE DAY OF APRIL 8TH, 2009. THE ABDUCTION, BRUTAL RAPE, MURDER, AND CONCEALING OF EVIDENCE, WAS TRANSFERRED FROM HIS MAXIMUM SECURITY FACILITY TO A MEDIUM SECURITY FACILITY IN MARCH!!!!!! This means that ALL THIS TIME over the last three months, CORRECTIONS SERVICE CANADA AND OUR CANADIAN GOVERNMENT have been hiding the fact that NOT ONE, BUT BOTH people responsible for stealing the life of Victoria have been working their way to luxury. Where in the world does it make sense that the worst of the worst of criminals, not petty thieves, THE WORST OF THE WORST, CHILD KILLERS!!!, even get the opportunity at a better life. So now there are two child killers living in Medium Security penitentiaries, with frequent day passes, medical, dental, schooling, and access to air!!! I NEED CANADIANS EVERYWHERE TO HELP WITH THIS FIGHT!!! Our children and lost loved ones deserve justice and security within our country. I am so ashamed to be Canadian right now. During our meeting with Anne Kelly, Commissioner of Corrections, she was blatantly asked by Petrina if there was information about Rafferty that we didn't know about. Another dodged question. Corrections Service Canada NEEDS AN IMMEDIATE OVERHAUL if this is what they consider justice. Three, NOT ONE, but three appeal judges on October 24th, 2016 looked Michael Rafferty's lawyer in the face as they ALL stated he was right where he belongs. SAME AS THE TRIAL JUDGE!! So Corrections Service Canada, a year and a half later, says ha, no you're not. And lowers his security and transfers him. YET AGAIN WITHOUT MAKING CONTACT WITH ME regarding his transfer. Think about it??? That means, during the rallies and all this time that Canada has been fighting for real justice for Victoria and all our loved ones regarding the lowering of Security and transfer of Terri-Lynne, CSC has withheld this information about Michael Rafferty. I only received the information because I had requested it even though I was asked "There really hasn't been much activity on Michael Rafferty's file, would you still like me to send the information to you".??? "Oh ya", I said. Glad I did.

Thank you for taking the time to read this and please share the snot out of this. If Commissioner Anne Kelly is willing to sit and slap me in the face over and over again with the tragedy having lost Victoria to two brutal killers the way we all did, who is she willing to screw over??? THIS IS COMPLETELY UNACCEPTABLE ON EVERY LEVEL!!!! CHILD KILLERS!!!!!!

That was written by Rodney Stafford, the father of Tori Stafford. It shows there is a justice issue at stake here that all Canadians feel is very important, and in this case, a father has made his feelings very clear.

Now, I would like to share my time with the member for Sarnia—Lambton.

I am pleased to rise in the House to speak to Bill C-51. The purpose of this bill is to streamline the Criminal Code of Canada by removing certain provisions that are no longer relevant to contemporary society. Bill C-51 is a justice omnibus bill. It is one bill containing many changes on a variety of different matters.

The Prime Minister and his Liberals call omnibus bills “undemocratic”, and the Prime Minister pledged that the Liberal government would undo the practice of introducing omnibus bills. Regardless, my Conservative colleagues and I are aligned with the need to strengthen the provisions of the sexual assault legislation.

Former Conservative leader Rona Ambrose led the way for supporting victims of sexual assault by introducing a private members' bill, Bill C-337. This bill would make it mandatory for judges to participate in sexual assault training and education to ensure that the judiciary is aware of the challenges that sexual assault victims face. Her bill is designed to hold the Canadian judiciary responsible for the ongoing training of judges and the application of law in sexual assault trials. As we all remember, this bill was passed by the House of Commons and we were hopeful that it would pass the Senate. It has not passed yet.

We are pleased that the Liberals are planning to strengthen the sexual assault provisions in the Criminal Code surrounding consent and legal representation, and expanding the rape shield provisions. The Conservative Party stood up for the rights of victims of crime when the Canadian Victims Bill of Rights passed in 2015, and will continue to do so in the future.

Bill C-51 would amend, among other things, section 273.1 to clarify that an unconscious person is incapable of consenting. This is a reflection of the Supreme Court of Canada's decision in R. v. J.A. It proposes to amend section 273.2 to clarify the defence of mistaken belief if consent is not available and if the mistake is based on a mistake of law—for example, if the accused believed that the complainant's failure to resist or protest meant the complainant consented.

This bill would expand the rape shield provisions to include communications of a sexual nature or communications for a sexual purpose. These provisions prevent evidence of a complainant's prior sexual history being used to support the inference that the complainant was more likely to have consented to the sexual activity at issue, or that a complainant is less worthy of belief.

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

Another aspect of Bill C-51 that I strongly support is the removal of unconstitutional sections of the Criminal Code. Canadians should be able to expect that the Criminal Code accurately reflects the state of law, and, yes, Canadians who made that common-sense assumption could be wrong.

I agree with a few other revisions, for example, clause 41's removal of section 365 of the Criminal Code, which states, “Every one who fraudulently (a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration”, and clause 4's removal of section 71 pertaining to duelling in the streets, which states:

Every one who

(a) challenges or attempts by any means to provoke another person to fight a duel,

(b) attempts to provoke a person to challenge another person to fight a duel, or

(c) accepts a challenge to fight a duel

There are a number of provisions to be removed. Obviously, it is long overdue that the sections dealing with duelling are removed.

One other positive aspect of Bill C-51 is the fact the government has finally backed down from removing section 176 from the Criminal Code.

One of the parts of the bill removes unconstitutional sections, as well as sections of the Criminal Code that, in the opinion of the government, are redundant or obsolete.

There has been much discussion on section 176. What is most interesting is that minister brought this bill before Parliament on June 5, 2017. Ironically, on June 9, 2017, a criminal court case in Ottawa dealt with the bill. It would seem that there was not a great deal of research done by the government on what that particular section of the code really meant. It is fair to say that section 176 of the Criminal Code makes it a criminal offence to obstruct or threaten a religious official, or to disrupt a religious service or ceremony. Section 176 is not unconstitutional, it has never been challenged in court, and it is not obsolete. Actually a number of individuals have been successfully prosecuted under it. Also, it is not redundant, as it is the only section of the Criminal Code that expressly protects the rights and freedoms of Canadians to practise their religion without fear or intimidation. Religious prejudice knows no borders and has no respect of persons. That is why I am glad that the government listened to the thousands of Canadians who signed petitions, wrote letters and emails, and made phone calls to MPs and the government to keep section 176 in the Criminal Code.

There was one other section of the code I did not agree with the government removing. That section has specific protection if someone attempts to attack the Queen. We all know this section is not used often. In fact, it has probably never been used. However, as state visits are rare, it should still remain in the code because it protects the person who represents the monarchy in Canada. It is still a very serious crime. Attempting to attack royalty, as Canada's head of state, is not the same as getting into a bar fight. The section is important and it has significant aspects.

I am pleased the government is no longer scrapping section 176. I am pleased with the clarification with respect to sexual assault. I am also pleased that a number of sections that are taking up space in the Criminal Code and no longer have any particular relevance are being removed.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, as always, it is a great honour to rise in this House and represent the people of Timmins—James Bay. This may be one of the last times I rise in this incredible institution before it is closed for renovations. It makes me reflect on why we are here. It is because this is the centre of power in Canada. Are we here to be apologists for power, are we here to mimic the power or are we here, sent by the ordinary people who work hard and pay their taxes, to be a voice to power, to speak truth to power, to speak for those who have no access to the insiders and the powerful? Our position in this House does matter when we rise on issues.

Therefore, tonight I will be rising to speak on Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act. I find it ironic that we are discussing this bill that is going to drop from the Criminal Code comic books that may cause people to commit crimes. That is something that is considered a priority of the current government, when this week, at the B.C. Court of Appeal, the Attorney General for this country, the Minister of Justice, had her lawyers attempt to deny basic issues of justice for survivors of residential school abuse.

Speaking of people who come into this place to be a voice to speak to power, they come across all party lines. Therefore, when the Prime Minister appointed the Minister of Justice, I thought there was finally a moment of historic change, because very little attention is ever paid to the work of the justice department, which is the absolute brass knuckles at denying indigenous rights across this country. I thought that having an indigenous justice minister was dramatic and that it would bring change. However, what I have seen over the last three years is a pitifully poor standing.

Instead of moving hard and clear on UNDRIP on refusing the recent UN call to deal with the forced sterilization of indigenous women that meets the test of both torture and genocide, instead of standing up for the Indian residential settlement agreement, we are here with a minister who has her priorities focused on the issue of people who fraudulently practise witchcraft. I did not know that was a major crime in this country, but I am glad the justice minister noticed it. The possession of comic books that may cause crime is another great priority for her. For the folks back home, we no longer have to worry about the rules around duelling, because it has not happened in 200 years, and our justice minister thinks that is a priority. Meanwhile, this week, she is sending her lawyers against survivors of some of the most horrific abuse in the Indian residential school settlement agreement to argue in those hearings that the basic notion of procedural fairness does not apply to survivors of Indian residential school.

The issue of procedural fairness is a fundamental legal principle. It applies everywhere. It applies to criminals who have committed sexual abuse. They get the principle of procedural fairness. However, our justice minister says that survivors of residential school abuse do not have that right. I find that really disturbing.

We will be talking about and we have talked about the changes in the bill with respect to issues of consent and sexual consent. I think that is an important discussion. However, it is something the justice minister has sent her lawyers to argue. The children who had their genitals grabbed by adults in Indian residential schools could not prove that was sexual in nature. The government's position that survivors of child sexual abuse in residential schools had to prove the sexual intent of the adult is contrary to all the principles of justice, unless of course one is an Indian residential school settlement survivor. The current government will talk about its commitment to reconciliation, but it will not talk about how the justice minister has given her officials whatever tools they need to deny the basic legal rights of survivors of some of the most horrific crimes that have ever been committed in this country.

I am looking at Bill C-51, an act to amend the Criminal Code. The Liberals are changing the laws on advertising a reward for the return of stolen property. They dealt with blasphemy, finally. It has only been 300 years.

However, this week at the B.C. Court of Appeal, the minister instructed her lawyers to go in and attack the fundamental principle of the Indian Residential Schools Settlement Agreement which former prime minister Stephen Harper signed with Phil Fontaine and the guilty churches. In that agreement, the government agreed that it would set up a process to adjudicate claims in a non-adversarial manner, which saved the government millions and millions and millions of dollars from class action lawsuits, and as part of that, the government would have the obligation to bring forward the evidence of the known crimes and give the survivors a chance to speak.

We know what happened in the case of St. Anne's Indian Residential School. Justice department lawyers suppressed thousands of pages of police testimony. They suppressed the names of the perpetrators. They went into those hearings and told the survivors at the court hearing that there was no evidence to prove the horrific crimes of sexual assault, sexual torture, rape and forced abortions that were committed against those children in St. Anne's residential school. When it was exposed that the government had done this, the justice department and the justice minister opted to spend $2.3 million fighting against people. They are in my region and I have met some of these brave survivors, people who did not even have the bus fare to go to their own hearings to stand up against that justice minister.

She states in these hearings her rejection of an incredible affidavit that was brought forward by Phil Fontaine who signed the original agreement with the previous Conservative government. Phil Fontaine said that procedural fairness in the independent assessment process is a “fundamental principle”. The Indian Residential Schools Settlement Agreement and the IAP were designed to be “fair, reasonable and in the best interests of IAP claimants.” He said, “I understand procedural fairness to mean whether the same rules that guarantee a fair hearing that a litigant would expect from the courts or another similar tribunal would apply to the adjudication of a claim under the IAP.”

He further stated that the Assembly of First Nations would never have signed an agreement that gave away the basic legal rights of the survivors to the Government of Canada, if the Government of Canada was not willing to defend that basic legal principle; that if it failed, as the defendant and as the Government of Canada, to provide the documents that named the perpetrators of the crimes and then went in and had those cases thrown out, to say that those survivors did not have the right to procedural fairness to have those cases reopened is a complete attack on the Indian Residential Schools Settlement Agreement that was signed in this House, which we saw the previous prime minister make that incredible statement for. That is what the justice minister is doing this week in British Columbia.

She also states through her lawyers that one should not give any attention to the statement brought forward by Phil Fontaine on the position of the AFN. She said, “Little evidentiary weight ought to be accorded to the affidavit of Larry Philip Fontaine”, and “Canada takes issue with the section of the Fontaine Affidavit entitled 'Procedural Fairness'”, that the paragraphs are largely subjective, speculative and that in hindsight, it is of no assistance to receive theoretical views of subjective intent.

There is nothing theoretical about it. We are talking about two fundamental cases in particular, not a thousand cases, but they spent $2 million against two survivors: H-15019 and C-14114. H-15019 suffered some of the most horrific sexual torture that one could not even begin to imagine. He went into the hearing, and lawyers for the justice department said that his evidence was not credible because he could not prove where the perpetrator was because they were sitting on the person of interest report of the perpetrator, who was a serial abuser. After that case was thrown out, they were forced to turn over the person of interest report, which revealed that this survivor had told the truth, and they are fighting against the principle that he has a right to procedural fairness.

In fact, the government is patting itself on the back because it claims in one of its affidavits that it is not trying to force him to give back the money that was finally awarded to him. It is trying to fight against the principle that it lied, suppressed evidence and that it has no legal obligation to the survivors whose cases were thrown out. I find the actions of the justice minister absolutely appalling. The justice minister stands in the House and has us address issues such as a bill regarding the issuance of trading stamps, a bill that has been pretty much redundant since 1905.

We have the first indigenous justice minister in Canadian history and she has spent $2.3 million fighting survivors of some of the most horrific abuse while the Prime Minister talks about the most important relationship being reconciliation with indigenous people. Her officials are going into the IAP to have the cases thrown out of family members of people who suffered the abuse. The Liberals say it is completely unacceptable that the IAP was not set up to address family members of the original survivors, and yet all along the adjudication secretariat had forms for those family members of survivors who had died and they had that right. This is a fundamental issue of case law. This is a fundamental issue of legal right. Yet the government says that none of these rights apply within the agreement that it signed with the Assembly of First Nations, and the perpetrators, the defendants, the churches.

If we are going to do anything in this House, we need to be willing to stand up and face the fact that for 150 years, Canada has allowed the horrific abuse of Indian children and now it is allowing the abuse of their most basic legal rights. In a B.C. court this week, the justice minister, who will use the endless dollars of Canadian taxpayers to fight people who have no funding, to go after their pro bono lawyer. The government will fight this case in B.C. superior court because it knows the survivors are in Ontario and they cannot even afford the fare to get there to defend themselves. That is the malevolence that has happened under the justice minister, and I say shame on her. If this is what she came to do in Ottawa as the first indigenous justice minister, to oversee the attack on people whose only crime was that they were indigenous children and whose only crime today is that they continue to speak up against the horrific abuse they suffered, then this country fails if it does not call this injustice out.

We could speak all night about how the justice minister is getting rid of bills on witchcraft, how she is dealing with blasphemy and that trading comic books makes kids commit crimes. We could debate that all night, but what we are debating is a sideshow for the real intent of the government to undermine the Indian residential schools settlement agreement, to make a complete mockery of any of the Prime Minister's words on reconciliation and to abuse the trust of the Canadian taxpayers by spending millions of dollars against survivors, who only want justice and only want this attack on their legal rights closed.

[Dean Allison, Conservative, Niagara West, ON]

Mr. Speaker, the member for Bow River mentioned that this is the last week we are going to be in the House. I never really thought about that in terms of this being maybe the last time I rise in this building before it is shut down for what could be the next decade or so. I want to just comment on what the member for Bow River said.

It is an honour and a privilege for all of us to serve in this place. This building is certainly historic, and the fact that we have an opportunity this one last week to rise is not lost on me. As I said, I do not know if any of us will make it back here 10 years from now. Who knows? Some of my younger colleagues over there may.

It is great to get a chance to stand and talk about Bill C-51, the justice omnibus bill. It contains a number of changes on a variety of matters. One of the things I find interesting, and I know it has been mentioned before, is that the Liberal government railed on and on about how omnibus bills were so bad and the fact that Conservatives would put so many things in them and how the Liberal government was going to be different and would not behave this way.

I find it interesting and somewhat comical that the Liberals railed about what the Conservative government did in the past, yet here they are, and some of the Liberal omnibus bills are actually greater in size than the ones we moved forward during our time in government. I needed to mention that. I think there is some irony there. I know the Liberals campaigned on that.

I am here to talk about Bill C-51, but I would love to talk about how the Liberal government said it would act differently when it got into government, yet we see that this has not necessarily been the case.

I will give credit where credit is due. I know there are some things in the bill we were encouraged to see the Liberals move on. There was some strengthening of penalties for sexual assault. These are definitely important things. I will talk about that briefly. The Liberals got rid of some obsolete laws as well. There is some cleanup there.

There are some things we still have concerns about. My colleague from Bow River and other colleagues have mentioned it, but it is somewhat troubling that the Liberals would even consider the removal of section 176. This is something that is very near and dear to the hearts of a lot of my constituents in the Niagara West area. I come from an area where there are a tremendous number of churches, a number of Dutch Reform churches, but not just Dutch Reform. There are all denominations. The fact that the Liberal government would actually consider removing that just shows how out of touch the government is sometimes when it comes to some of these issues. I will get to that in a second.

I want to talk about the sexual assault piece. I want to say that I am pleased. As I said, I will give credit where credit is due. The Liberals followed our lead to strengthen the sexual assault provisions in the Criminal Code around consent, legal representation and expanding rape shield provisions. Standing up for the rights of victims of crime is something our party has always been very serious about. We are aligned with the provisions the Liberals have in this legislation in terms of strengthening those issues.

Among other things, there is a private member's bill introduced by our former Conservative leader, Rona Ambrose, Bill C-337. This bill would make it mandatory for judges to participate in sexual assault training and ensure awareness among the judiciary, in addition to education about the challenges sexual assaults create. The bill was designed to hold the Canadian judiciary responsible for the ongoing training of judges. We were pleased to see this bill passed in the House. Now that it is in the Senate, we hope it will move it forward.

I want to talk a bit about section 176. That the government would consider removing it is certainly troubling. It is good to see that it backed away, as has been mentioned. This was the only section of the Criminal Code that directly protected the rights of individuals to freely practise their religion, whatever that religion happened to be.

In fact, section 176 was recently used, on June 9, 2017, in a criminal case here in Ottawa. It is imperative to see that interrupting a religion service is really not the same as interrupting other services. If we think about the various religions that are practised in this country, with the Sabbath maybe being on Saturday for some and on Sunday for others, the fact remains that people are there to worship. That fact that it would even be considered that they would not have the ability to do that or that it would be okay to interrupt is very troubling.

It is good to see they have backed off on this, but we are still concerned with the message the government sent to religious communities, that they are not important.

My colleague, the member for Bow River, mentioned last summer's summer jobs program, which was a concern. I had a number of churches in my riding that did great stuff. They were running day camps for disabled, helping to feed people and doing a ton of things that I thought were great in nature, just for the overall encouragement of the community. A lot of these organizations were not even considered. We will see how it works this summer. I see there have been some changes.

I really believe that churches, especially in my community, regardless of the denomination, are great community leaders. I always say we have a great community spirit in Niagara West. It has a lot to do with the people in my community of Niagara West, but also there are a number of churches that encourage volunteerism and that give back, feed the poor and do a number of these things that are all very fundamental to healthy communities.

A safer Canada is certainly a concern. It is a government's responsibility to make sure its citizens are kept safe. We see what is happening with gang violence in Canada. When we soften penalties for gang crimes and reduce them to administrative fines, we are not only doing ourselves a disservice, but there are real consequences for Canadians when gang members are being let off in our streets.

One of the things we want to do as a Conservative government is put an end to the revolving door for gang members. Now, even if someone is a known notorious gang member they are entitled to bail. We would make sure repeat gang offenders are held without bail. I think that is reasonable when we look at what gang members may do in a community, how they might terrorize a community. We would also make sure it is easier for police to target and arrest gang members.

Canada's Conservatives always put the safety and security of Canadians ahead of the interests and comfort of violent criminals. We would work hard to impose tougher federal prison sentences for the leaders who order others to do their dirty work for them.

The other thing that is important is we want to make sure we are recognizing and supporting the rights of victims over the rights of criminals. We have seen some troubling things that have happened in recent days in the country. We saw issues with Terri-Lynne McClintic and with Christopher Garnier, and the fact that Tori Stafford's killer was in a healing lodge instead of behind bars. We have seen cop killers who have not served a day in the military getting services. These are things that are all troubling, not just to us as Conservatives, but to Canadians at large. We just learned recently that Tori Stafford's father is now reporting that her co-conspirator, Michael Rafferty was transferred to a medium-security prison in March. He was just informed about this happening.

We can see some of the things we are dealing with in the country. We realize violent repeat offenders are people who probably should have a harder time getting bail if these are things they are doing on an ongoing basis.

As we look at what is going on right now in our justice system, I think there are opportunities to make sure we are looking at returning terrorists from ISIS. That is another issue. I realize I am almost out of time, but I could spend a lot of time on that. We realize that some of these individuals who have gone over purposely to kill and destroy are people we should be looking at, and making sure we are doing our job to keep them behind bars to ensure they are not a threat to society here in Canada.

In conclusion, the government is failing to protect victims of crime. The Prime Minister did nothing after learning of Catherine Campbell's killer receiving taxpayer funds, having never served a day in the military. We have pushed and pushed the Liberals to put Tori Stafford's killer back behind bars, and to transfer her from the healing lodge. We believe we need to continue to work to protect the rights of those who need it.

[Martin Shields, Conservative, Bow River, AB]

Mr. Speaker, it is always a privilege to stand in this place, especially as we approach the time when it will be closed and the last week we will be here.

It is an august place, a place where many interesting debates have happened since it reopened after the fire. As for the one before the fire, we are coming up the 100th anniversary of Prime Minister Laurier, who was a leader of note. He established Alberta and Saskatchewan as provinces, and passed away the following year. Not only did he establish Alberta and Saskatchewan, he was in favour of free trade agreements. In 1911, he lost an election on a free trade agreement. We may see that happen again in 2019.

Also I remember well the debates on the flag issue, which was a focus for the country in the sixties. The debates between Diefenbaker and Pearson are legendary in this place. The flag issue is one that had a lot of Canadians focused on this place and on the debates, which resulted in the maple flag we have today.

I also remember when we had a loyal opposition party leading a charge to leave the country. A lot of people were a little confused about the debates that went on in this place when the leader of the loyal opposition wanted to split up the country.

Many debates have happened in this place, with many people who are orators, intelligent people expressing their opinions and representing Canadians. At this time, I am one of 338 who has the honour and privilege to stand in this place, but not for much longer as this building will close this week and we will move to another place. Again, it is a privilege to look around and see the magnificent edifice and beautiful place in which we get to work.

Today I rise to speak to C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act. Since it was introduced the first time, and again as it has come back from the Senate, there have been learned people standing and speaking to this. It is an omnibus bill. It is very complicated and one some people in the House are able to understand, comprehend and speak very clearly about. Others speak of its broad issues, but not as intelligently as some of the members in the House who have legal backgrounds.

However, it should not be a surprise there are issues when we get a bill this big, although many people would agree with some of the things in it.

I will be sharing my time, Mr. Speaker, with my colleague from Niagara West.

We agree with some things in this omnibus bill. It contains some worthy provisions. Clarifying the law in relation to sexual consent is very important. Repealing unconstitutional provisions in the Criminal Code is a positive aspect. I was also very happy the government backed down, as we have heard many times, on the removal of section 176 of the code. I heard a lot about this one from my constituents. Many faith groups, including those in my riding of Bow River, were deeply concerned about that section.

The section provides protection to those practising their religion. We have freedom of religion in Canada. One of thing I may not agree with everybody on is religion, but I would fight to the death for those people to be able to express their religious beliefs. Religious communities need to be able to worship without fear of interference and disruption. This is truer now than ever. Hate crimes against religious groups are on the rise in Canada. A section of the code that gives these groups clear, unambiguous confidence in their right to worship as they please is far from redundant.

When we were talking about the inoperative sections of the Criminal Code and Bill C-51, it was the unfortunate decision by the government to initially include section 176 of the Criminal Code among the sections it deemed to be obsolete. Section 176 is hardly redundant, hardly obsolete and certainly not unconstitutional. Indeed, section 176 is the only section in the Criminal Code that protects clergy from having their services disrupted, something which is very serious and goes to the heart of religious freedom.

The government turned a blind eye when it introduced this, and the Conservatives called them out on it. As a result, tens of thousands of Canadians spoke out, telling the government that it was wrong.

My learned colleague on the other side previously mentioned that a committee was able to resolve this. It was one of the outstanding features of the committee that it unanimously came to that. However, it is my belief that there was such push-back in religious communities that the people sitting on that committee realized the mistake in that initial document and changed it.

Municipal governments must react much sooner when they may have made a mistake. If in coffee shops they hear about something, they pass it the next day, and at the next meeting, they can fix it. This is a much longer process, but at the committee level, members heard from religious people of faith in our country that this was not the appropriate thing to do.

I will move on. Clause 14 of Bill C-51 proposed to repeal section 176 of the Criminal Code, which makes it a crime to unlawfully obstruct a religious official. Conservatives were the first to identify this clause. As a result of the public backlash, the Liberals on the justice committee amended Bill C-51 to remove it.

However, only months later, the Liberals hybridized section 176 in Bill C-75. Currently, it is a solely indictable offence, which is reserved for the most serious offences. However, by hybridizing section 176, it could be prosecuted as a summary conviction offence, which is reserved for less serious offences. That means that offenders could just get a fine, and I think that would downgrade the importance of religious freedom. For people who practice it and leaders of religion, this would be downgraded to a less serious offence. That is not right.

While the specific changes would not have a significant impact on the maximum sentence, unlike some of the other offences the government is hybridizing, it would send a message. I would submit that it would send exactly the wrong message. It would send the message that disrupting a religious service and infringing on the freedom of religion of Canadians, which is not just any freedom but a fundamental freedom in our Charter of Rights and Freedoms, is not that serious. That is just wrong. It is why the Conservatives opposed it and stood up to fight Bill C-75.

Then there were amendments that came back from the Senate. The Senate put forward amendments because there was concern that this would add confusion in cases where a person was not unconscious but was, for example, highly intoxicated. Unfortunately, while the Senate amendments may have been well intentioned, they would simply cause more problems and solve a problem that really does not exist. We would support voting against these amendments, because we believe that they do not clarify; they just make things more confusing.

Conservatives fully support all changes in the bill to clarify and strengthen sexual assault provisions in the Criminal Code. These changes would help support victims of horrific sexual assault crimes. Conservatives also support repealing or amending sections of the code that have been ruled unconstitutional by the courts.

It is important to keep the code clean and up to date for efficient and effective justice for victims and their families. Bill C-51 would merely clarify that consent can never occur when an individual is unconscious. That is consistent with the J.A. decision.

Bill C-51 would not, as the Senate amendment argues, potentially create a bright line for consent on the basis of consciousness. In that regard, proposed paragraph 273.1(2)(b) provides that “no consent is obtained...for any reason other than [unconsciousness].” This language clearly acknowledges that there are many possible reasons a person may be incapable of consent, despite being conscious.

The Senate amendment would likely lead to additional complexity and confusion over what evidence was relevant to determine consent. Instead of adding certainty to the law, it would lead to further litigation involving these factors. For those reasons, we oppose this amendment.

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

Mr. Speaker, on that point, the government proceeded with hybridizing offences under section 176 in Bill C-75. Although members of the standing committee chose to make that change with respect to Bill C-51, we saw new government legislation in the form of Bill C-75 that again showed a lack of appreciation for this important section.

It would have been great if the same standing committee had shown the alleged independence that the member speaks of by fixing it the second time around as well. Unfortunately, sometimes, even on relatively independent committees, the PMO's hammer comes down and we do not see that change.

It is frustrating to see repeated attempts by the government in its legislation to weaken section 176. Yes, there was an amendment the first time around on this bill, but there was not an amendment the second time around.

In so many different areas, the government tries to do something, there is a public backlash, it waits a while and then we see it do something similar. Talking about the impact on faith communities, the Canada summer jobs issue has been in the news recently. I do not think Canadians are going to be fooled by the fact that the government is trying to make what looks like a change in an election year. Many faith communities have seen what the government's intentions are with respect to their freedoms and liberties. To change the tone of the discussion in an election year is not the best indication of what it has in mind or what it would likely do if it were re-elected.

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

Mr. Speaker, I hope my colleague and his party will consider the arguments I made with respect to advance consent and its other application as well. It is important to reflect on that. I know they have been very clear on the issue of advance consent in this case, but it is important to consider in the other context that it can be asserted as well.

With respect to the Senate amendments, the existing language in Bill C-51, as proposed when it was sent to the Senate, was, “For the purpose of subsection (1), no consent is obtained if...(a.1), the complainant is unconscious; (b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1).”

This clearly sets out the conditions in which a person is unable to consent. The proposed amendment from the Senate says, “For greater certainty, capacity to consent at the time of the sexual activity that forms the subject-matter of the charge cannot be inferred from evidence on capacity to consent at the time of another sexual activity.”

The question is whether that addition adds anything, given the certainty already established under the new section 2. We agree with the principle. It is just a question of the practical legal application. My judgment at present is that the existing language in Bill C-51 is sufficient.

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

Mr. Speaker, when I look at the existing text of Bill C-51, where it attempts to amend the Criminal Code with respect to consent, some of the main issues that the senators had, and I very much agree with them, was that while we had a clear definition of what consent meant, where the vagueness became problematic was in no consent.

The existing text of Bill C-51, under section (2.1), it has “(a.1) the complainant is unconscious” and then follows up with “(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1)”, which is kind of vague. I know a lot of senators had problems with that.

Given the concerns that experts in sexual assault law have, what does my colleague think about the Senate's attempts to clarify that part of the Criminal Code? If the Senate amendments were allowed, we would basically have no consent defined as being unable to understand the nature, circumstances or risks, unable to understand that a person has a choice and unable to affirmatively express agreement to the sexual activity.

My colleague talked about judicial discretion. Certainly we have different opinions on that when it comes to sentencing. However, it seems to me that in the interpretation of this very important part of the Criminal Code, given the problems we have had with case law in sexual assault, this is perhaps one area of the Criminal Code where we do not really want to have too much judicial discretion, where perhaps it is good to have a very clear road map of what precisely no consent means. Would my hon. friend comment on that part?

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

Mr. Speaker, it is a pleasure to rise today to participate in the debate on Bill C-51 and, in particular, the Senate amendments.

My intention in my remarks today is to focus on two issues that arise out of this bill. One is the question of advance consent in general, at a philosophical and practical level, and whether we think that a person ought to be able to consent in advance to something happening in the future and some of the issues related to that in this bill. The other is I want to talk about section 176 and the way in which the government approaches our response to potential acts of hate and violence and disruption that are perpetrated against faith communities in Canada.

The issue of advance consent is very much one that has been discussed back and forth and from different perspectives. I note that with respect to the idea of someone consenting in advance to sexual activity, this is a subject on which the Supreme Court of Canada and the Ontario Court of Appeal, at certain points in time, disagreed. There was a court decision in R. v. J.A. in which the person accused of sexual assault argued in the context of that particular case that sexual assault had not taken place because the complainant had consented to being rendered unconscious, allegedly, and consented, allegedly, to engaging in sexual activity. The Ontario Court of Appeal actually agreed with the arguments of the accused in this case, and said the “only state of mind ever experienced by the person is that of consent”.

I think the Ontario Court of Appeal got it wrong. Many people would say that it is not only wrong but deeply offensive to suggest that a sexual act could be performed without a person's explicit consent in the moment, on the basis of alleged prior consent in advance.

In my view, the Supreme Court got it right when it said:

It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.

Bill C-51 puts that legal court decision into the Criminal Code by noting that there is never consent when a person is unconscious. Proposed paragraph 273.1(2)(a.1) states:

For the purpose of subsection (1), no consent is obtained if

(a.1) the complainant is unconscious;

The decision of the Supreme Court in this case is the right decision. It is one that I agree with and it is one that is reflected in the law.

It is noteworthy at the same time that the Ontario Court of Appeal thought differently and indeed advanced arguments for the idea that a person could provide so-called advance consent in this case. It reflects the fact that in different contexts around different debates, people have made arguments about the supposed legitimacy of advance consent. We see in another case the use of that argument, and I will get to that in a few moments.

The cases against so-called advance consent as something we should allow or accept are myriad. One of the obvious arguments against it is that one's past self, in one's wishes and inclinations, might disagree substantively from one's future self. One might think that at such and such a point in the future under certain circumstances one will want this or feel this or accept this. However, in reality, when one experiences those things, one feels totally differently in the context of that new situation. The idea of a past self irrevocably dictating the conditions and events that are going to occur with a future self is unjust to the future self and it violates the autonomy of the individual at that point in time in the future. Our past selves differ from our future selves, and perceptions about how we will experience certain events in the past might differ from how we actually experience them in the moment when they are taking place.

It is on this basis of recognizing the importance of autonomy, not in the sense of a past self-binding and future self-binding but autonomy in the sense of individuals making determinations about themselves in the moment and being able to ensure that they are comfortable with and accepting of everything that is happening while that thing is happening, that the court, the House, and this legislation recognize the fundamental wrongness of advance consent in the context of sexual activity.

I develop this point in spite of the perhaps pre-existing agreement in the House because it has some relevance to our discussion of other issues with respect to consent. In particular, some members would like to see us allow advance consent in the case of euthanasia or assisted suicide. It is important for members to reflect on the argument for and against allowing advance consent in the one case when we consider the possible application of that same principle in a different case.

Questions were asked in the House, for example, about the case of Ms. Audrey Parker, a tragic situation for her, and other cases, where the idea of advance consent was brought up. Some have argued, especially some of my friends in the NDP, that people should be able to provide consent in advance that their life be taken if their condition advances to a certain point and if certain conditions are met.

I find that prospect very troubling, that a present self could irrevocably bind a future self, especially that the person could establish parameters under which that future self would be bound even in a case where that future self might, in the moment in terms of practical expression, not want that to happen.

The particular context in euthanasia of providing advance consent is, of course, that people have to imagine how they would experience certain conditions, certain development of a disease, and how they would feel about it, how they would respond and what they would want in the moment. The idea and the argument that some advocates have made is that the person should be able to issue an advance directive, so that even if they in that moment do not have the capacity to make a decision, their past self would decide for them in the present.

This can create a situation, though, where one might ask what happens if a person with somewhat lost capacity, but nonetheless with a condition set out by their past self, then says he does not want his life taken. His past self had established this living will, this advance directive of sorts, that would then theoretically involve the state and medical professionals taking his life in a case where he did not want that to happen in the moment based on something his past self said.

This is not a purely hypothetical case. There is currently a case before the Dutch courts in which a patient was held down by family members while a physician injected her with lethal medication. The doctor was acting based on an interpretation of an advance directive and of past statements made by the patient.

We do have cases where there is an application of the idea of advance consent to euthanasia, and we have a very scary situation, frankly, where a person's life is taken when he or she is saying in the moment, “No, I don't want this to happen”, but someone else is interpreting something the individual said in the past as overruling the individual's expression in the moment.

The present self who is facing this kind of violence, I would argue, is maybe at a point of lower capacity than the person previously had, but I still think it is a very scary situation or proposition.

I would encourage members to reflect on the question of advance consent and to take a consistent position on it. I would suggest that members set a similar standard for consent in these cases. It does not seem, to me, to make sense to have a lower bar for the consent required to die than consent required for sexual activity, to abhor advance consent in the case of sexual activity, and yet to support it in the case of death and dying. We do not know exactly where the debate on advance consent in the context of death and dying is going to go. I know there is an expert panel the government has put forward that we expect to hear a report back from relatively soon. I know there are members of the government caucus who have said that they are supportive of the idea of advance consent.

However, if we think about the case that I spoke about in particular and how we would feel if a past version of ourselves had said we wanted something, which all of a sudden, in the moment, in a situation, we really do not want to have happen, and yet we are told that we had said we had wanted this in the past, so our past self can dictate to our present self. I would see that as really going against a pretty basic principle of autonomy that I know is important to many members.

I leave that for the consideration of the House. It is very relevant to our discussion of Bill C-51, in terms of the way in which the bill codifies the point that in the context of sexual consent, one cannot consent in advance, that a person who is unconscious can never consent, regardless of what they said beforehand. Again, to underline this, I very much agree with that particular change to Bill C-51. I want to encourage members to think about what that means for some of the other conversations that are happening.

This bill deals with Senate amendments. There is a proposed Senate amendment that provides some specific language around that section. I know that some of my colleagues are favourably disposed towards the intent of the senator who brought this forward, but are concerned about some of the unintended legal implications of it, namely, that if certain things are spelled out explicitly, there might also be things that are not spelled out in the section. The sense, and I think it is a good sense, is that the existing language in that particular section of Bill C-51 does the trick in hitting the particular point on the mark. That is what I wanted to say about the issue of advance consent.

I would like to make a few comments about section 176 of the Criminal Code and the back and forth we have seen in our discussions on that section and on some of the other actions the government has taken in this regard.

Section 176 deals with the disruption of a religious service and vandalism against church property, and so forth. Our caucus has done a great deal of work with civil society to bring attention to the importance and value of this section, and to oppose initial efforts by the government to remove this section.

The government argued that section 176 could be removed, because it was redundant. Clearly the offences that are covered by section 176 are things that other charges could apply to, but that does not mean that the offence, in terms of putting a particular emphasis on it and ensuring fulsome prosecution in these cases, is redundant. By analogy, our Criminal Code speaks specifically of hate crimes, and I have never heard anyone argue that hate crimes legislation is redundant because the violence associated with hate crimes, namely, vandalism, but more particularly assault and those sorts of things, are already illegal.

I have never heard anyone ask why we need hate crime provisions because those things are already illegal. I think all of us accept that the message sent by having a particular category of prosecution associated with hate crimes is appropriate, because hate crimes are not just aimed at doing violence to a particular individual but also at making an entire community feel threatened and unsafe in living their lives as they do, including the practice of their faith and the public actions they take that are associated with their identity, and so forth.

Hate crimes legislation is about ensuring that groups of people are not targeted on the basis of their identity. That is why we treat a hate crime as something distinct from an act of assault on its own. If members accept that principle with respect to hate crimes and hate crimes in prosecution, it would seem to me that the same principle goes to section 176. Someone who actively disrupts a church service or commits acts of vandalism or violence against religious clergy are not just trying to enact specific violence against an individual or place. It is not merely an act of trespassing or vandalism, rather an action that carries with it a real chill for the ability of people of faith to live freely and confidently without worry of that kind of violence. That is why section 176 is not redundant. It is critically important.

Another argument the government used was to say that the language in section 176 is outdated because it refers to a clergyman and is not, in its textual implications, inclusive of all faiths and genders. However, in reality, the section was clearly being applied in a way that was fully inclusive. It really was an odd argument to make that we should take the section out completely because it was not, in its language, inclusive when all that was really required was to change the language. Even changing the language did not change the actual practical effects of the law.

In the end, in response to a really strong reaction and groundswell from different communities working collaboratively with our party, the proposed deletion of section 176 by Bill C-51 was abandoned. We were pleased to see that.

At the same time, we then saw the government, in Bill C-75, proposing to hybridize offences under section 176, effectively reducing the sentence for these offences. In the previous discussion in the House on this issue, my friend from Winnipeg North offered a defence of the idea of hybridized offences. I do not think anyone has argued there should not be any cases where the level of available discretion would not cover a spectrum associated with hybridized offences.

However, I think a lot of those who advocated significantly for section 176 to be preserved, and were initially pleased by the government's stepping back from their decision, kind of saw in the hybridization of this particular offence yet another indication that the government does not really understand the importance of this and does not accept the value of having strong, clear language with appropriate associated sentences in the Criminal Code to protect the practice of faith in this country.

It is ironic because the government talks a good game a lot of the time when it comes to fighting hate. When it comes to motions or statements around these kinds of issues, the government always seems to be ready.

We had considerable debate in the House on Motion No. 103 on the question of “Islamophobia”. All of us in the House should read that it is important for us to take a strong stand against, in this case, anti-Muslim violence or hatred, and that it is important for us to take a strong stand against those who express bigotry against any community. However, we wanted the government to provide a definition of what it meant by “Islamophobia”, and it refused to do that. Unfortunately, the House was not able to come together in a way that might have been desirable to send a clear unified statement on that issue.

Despite the specific language of Motion No. 103 speaking of the need to “quell the increasing public climate of hate and fear”, the government's actions with respect to section 176, an actual section of the Criminal Code that provides real legal protection for those practising their faith, show that in so many cases, it is only interested in the statement and not the substance.

For faith communities and leaders across the board who wonder what substantive protections exist, they should look to and expect the government to underline the importance of section 176, not to be weakening its application as we are seeing.

[Bradley Trost, Conservative, Saskatoon—University, SK]

Mr. Speaker, it is my pleasure to discuss Bill C-51, an act involving a variety of issues that have been put together. I will not deal with the entirety of the bill, but I will give a brief summary and deal with certain sections that are of particular concern.

This legislation has been described as consisting of four separate parts. The first part is provisions that deal with sexual assault and rules around that. I do not pretend to be an expert on this, and my speech will not concentrate on those areas of the bill, but what I am hearing from some of my colleagues is how certain sexual assault offences would be treated less seriously in this legislation than in previous legislation. That does concern me. I wonder why the government is making these changes. I do not see any reason to treat sexual assault offences less seriously in the future than we have in the past.

There are a couple of other provisions where it makes sense that they are grouped together. They are dealing with things that may be obsolete, or provisions that have been found to be unconstitutional. It makes sense those two would be together in this legislation, as they are sort of a cleanup in the legislation. They are no longer functional, and it is a housecleaning bill in that sense.

Then, for some strange reason, the government has put a provision in the bill about charter statements. It would require that statements and legal opinions about the Charter of Rights and Freedoms be attached to all government bills.

If I could give some advice to the government for the future, perhaps it should not try to package these four separate areas together. Issues around sexual assault in particular need their own legislation to be dealt with so members can properly discuss it and look for ways to provide justice both to the accused and to victims going forward. As has been mentioned, this is a criminal offence that has very profound life-changing consequences for those affected by it.

I am particularly interested in a couple of things the government has put together as far as obsolete provisions or provisions that have been found to be unconstitutional or are similar to other provisions that have been found to be unconstitutional. I understand the government's reason for putting in clause 28, where it repeals the offence to supply or procure a drug or instruments used to cause the miscarriage of a female person. I understand why it is putting that clause in to get rid of that element of the legislation.

Let me express my disappointment with it, because what that is doing is cleaning out what is left of the abortion legislation that we have in Canada. I know with the Morgentaler rulings and so forth it was struck down, so I can understand the government's legal reasoning on this makes sense. If I shared its philosophical perspective I would do this as a matter of housecleaning, but it does bring to the notice of the House that Canada is the only democratic country in the whole world that does not have legislation dealing with abortion. I, and I know other members of the House find that to be an absolute disgrace. This is really the last housecleaning aspect to get rid of what is left of legislation in our Criminal Code dealing with abortion.

Members of the House, particularly members who agree with me that this is a disgrace, should contemplate on this final bit of housecleaning to get rid of what is left of legislation that protected the life of the unborn and should actually think about possibly opposing this legislation on the final vote to send a message that we think something needs to be done to defend the life of the unborn. Again, I understand the government's legal reasoning behind it. I am not questioning it. However, I think the duty of the House is not just to always rubber-stamp what the courts have said. It also needs to send a message about what we feel is right and moral, even when the courts, in my view, usurp the role of the House.

The other change in this legislation that has caught the attention of a considerable number of people, including me, is regarding obstructing or violence to or arrest of officiating clergymen. Originally the government was arguing that this was an obsolete provision that needed to be taken out. However, I think what has happened in regard to this clause actually demonstrates that our democratic processes do work well in this country. Many Canadians were very concerned, because this clause has actually been used. I have been informed that not that many years ago it was used, I believe, with respect to St. Patrick's here in Ottawa. Members can understand why this would be of major concern.

I think the government was right to expand the definition beyond Christian clergy, such as a Roman Catholic priest. One can see very clearly how a rabbi conducting a service in a Jewish house of worship could be very concerned if someone came in to do a demonstration with respect to Israel, or if at a Muslim service something were to take place. A lot of foreign policy questions are, in some people's minds, now tied to religion. I think it was very important that the public spoke out and clearly said to the government that it is unacceptable to remove this and that it is something they want protected.

All forms of freedom of speech need to be protected and are of importance. Religious freedom of speech is not a singular, individual one, but rather it is done collectively. When a clergyman is officiating a service that is interfered with, it is interfering with something that is very profound and sacred to a group of people. It is invading their privacy. It is taking away from them an intimate, special moment, an act of connection with their god. The government's original suggestion was that this was redundant to other pieces of legislation, but I think it is clearly understood that is not the case. This is something special and distinct. The government did a wise thing by backing down under public pressure and to understand what this means to many Canadians.

My final concern with this legislation has to do with the requirement for charter statements being put into this bill. The bill is suggesting that every time the government brings forward a piece of legislation, it must table a charter statement in Parliament with the bill. If the current government wants to do that, that is its choice. I understand it has been done eight times. However, I have a couple of concerns with this.

When a legal statement involving the Charter of Rights and Freedoms is attached to a bill, it may very well give the public an incorrect impression as to the legality or illegality of the bill. I would expect all governments to check and be very thorough about whether or not a bill or a piece of legislation they are putting forward is just. However, a legal opinion from one, two or even three lawyers in the Department of Justice may be seen as something more than it is, something more consequential and more powerful.

My other concern about this is it could very easily be a way for the Department of Justice to steer, through its own opinions, political opinions of the government. Governments have the right to disagree with their own lawyers. They have the right to put forward legislation that pushes the grey line of charter rights. We have a notwithstanding clause. Governments do not even have to universally follow the Charter of Rights and Freedoms. That is the way it is construed. That is a concern I have. Again, if the government wishes to do it, it should feel free to do so. However, this is something that is creating an extra hurdle or perception that I am not sure members of this House would universally agree with.

Those are my concerns. I understand the basis for the legislation. However, there are things about this bill that I cannot support.

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

Mr. Speaker, one of the happier moments in the deliberations on Bill C-51 was the decision by the committee to reinstate section 176 of the Criminal Code that goes after people who, by threat or force, unlawfully obstruct or prevent an officiant from celebrating a religious or spiritual service. The committee heard from a lot of witnesses that this was very important to keep in the Criminal Code. I am wondering if my colleague has any thoughts about the all-party consensus to keep that in the bill and what it may mean for constituents in her riding.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Mr. Speaker, I thank my colleague for his question. He is right. It does send a strange message. On the one hand, they want to clarify a situation, but on the other, they make it impossible to clarify.

I have always advocated for victims of crime. What bothers me the most about Bill C-51 is that it mentions the Charter of Rights and Freedoms a lot but does not mention the Victims Bill of Rights at all, even though it is supposed to help victims. Plus, the Victims Bill of Rights takes precedence over the Charter of Rights and Freedoms.

Unlike their attackers, victims of crime get life sentences. In many cases, there is no minimum sentence for perpetrators. A judge may hand down a maximum sentence knowing full well that the offender will never serve it in its entirety. Many offenders get out of jail after serving a third of their sentence, and that is what makes victims of crime nervous. Sexual assault and rape are life sentences for victims. We have no idea what those women and young boys go through. Yes, boys can be victims too.

For those people, and as far as I am concerned, Bill C-51 does not go far enough. I would have liked an explanation as to why Bill C-75 was scrapped when it should have been kept. I would also like someone to mention the bill introduced by our former leader, Rona Ambrose, that addressed this problem.

Bill C-51 is a good bill, but there is still more work to be done.

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

Mr. Speaker, the member is right that there are a number of aspects of Bill C-51 that are welcome in clarifying, in some cases, the law around sexual assault.

I think everyone in this House would agree that sexual assault is an extremely serious offence. The lives of those who are victims of sexual assault are forever changed. It is why I have to say I am very disturbed that, on the one hand, there are some positive aspects to Bill C-51 but, on the other hand, the government would turn around in Bill C-75 and hybridize the offence of administering a date-rape drug. The government is actually reclassifying that offence from what is now a solely indictable offence, the most serious type of offence in the Criminal Code, to an offence that could be prosecutable by way of summary conviction.

I was wondering if my hon. colleague could comment on what kind of a message it sends to water down sentencing for administering a date-rape drug. I would submit it sends exactly the wrong message.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Mr. Speaker, I wish to inform you that I will be sharing my time with the member for Saskatoon—University.

I find it very impressive that my colleague opposite hopes to have a second mandate. I hope that will not be the case.

I am rising today in the House to speak 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 bill has sparked lively discussions and important debates because it deals with sensitive subjects both for parliamentarians and the general public.

The bill has some value because Canada's Criminal Code needs to be updated. Passages or provisions that have been deemed to be unconstitutional or that could result in challenges based on the Canadian Charter of Rights and Freedoms need to be amended, removed or repealed, as do any passages or provisions that are obsolete or unnecessary or that no longer have a place in today's criminal law.

Bill C-51 has four main sections, namely the provisions pertaining to sexual assault, the provisions that have been deemed unconstitutional or that are similar to other provisions that were, the obsolete or needless provisions, and the charter statements.

I would like to focus on the part of the bill that would amend certain provisions of the Criminal Code pertaining to sexual assault in order to clarify their application and to establish a regime concerning the admissibility and use of a plaintiff's or witness's private records in possession of the accused.

In light of all the much-needed efforts made by all parties concerning the reporting of sexual assault, I agree with the provisions of Bill C—51 pertaining to sexual assault because they are very reasonable, and the Conservative Party has always advocated and voted for improving laws when they strengthen the rights of victims of crime, including victims of sexual assault.

The changes proposed by Bill C-51 are necessary if we are to be consistent in our efforts to support victims of sexual assault.

As a woman, a mother of two daughters and an advocate for enhancing the rights of victims of crime, I fully support the changes proposed by the bill, which would clarify and strengthen the sexual assault provisions of the Criminal Code.

It is obvious that these changes will help the government provide solid support to victims of the serious and deeply traumatizing crime of sexual assault.

Despite this positive step forward, it is vital that we also amend the Canadian Criminal Code to toughen penalties for criminals convicted of sexual assault, so that victims feel supported from the moment they decide to report their attackers.

Furthermore, the Criminal Code should have significant minimum sentences for perpetrators; otherwise, victims will never feel like justice has been done.

It is indeed important to modernize the Criminal Code and keep it up to date in order to ensure that justice is done, eloquently and effectively, for the sake of victims and their loved ones. However, as I was saying earlier, the Criminal Code needs to have significant minimum sentences, not maximum sentences. We already know that in most cases, these sentences are rarely imposed by judges. A minimum sentence is a stronger and far more effective deterrent for perpetrators and also sends a positive message to victims.

Parliament has adopted clear provisions that define the concept of consent in the context of sexual assault.

Section 273.1 includes an exhaustive list of factors pertaining to situations where no consent is obtained. I am pleased that Senator Pate's amendments on this were not adopted. It is essential to keep the concept of consent intact. Consent can never be obtained when a person is unconscious.

The wording in Bill C-51 clearly recognizes the many possible reasons why a person cannot provide consent even if they are conscious.

We had to preserve one of the primary objectives of this bill, namely to ensure that we did not make legislative measures more complicated than they already are or make the concept of consent contentious. Far too often, in court, defence attorneys use the concept of consent against victims.

For the victims, nothing must undermine the definition of consent, which requires the complainant to provide actual active consent through every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if they express their consent in advance.

I can only imagine what state sexual assault victims would be in, if, during an evening, they provided consent to “normal” sexual relations but were drugged with the date-rape drug and violently sexually assaulted.

If the government wants to better protect victims of sexual assault, it is vital that it keep this provision, especially since we also support former MP Rona Ambrose's private member's bill, Bill C-337, an act to amend the Judges Act and the Criminal Code with regard to sexual assault. This bill would restrict eligibility for judicial appointment to individuals who have completed comprehensive education in respect to matters related to sexual assault. Furthermore, it amends the Criminal Code to require that reasons provided by a judge in sexual assault decisions be in writing.

In closing, I would like to add that this bill, if it were serious about this matter, could have proposed that the Department of Justice be required to assess the impact of any change to the Criminal Code on the rights of victims of crime contained in the Canadian Victims Bill of Rights. That is the only reason for my strong reluctance to vote for this bill. I believe that, without this provision, we run the risk of passing legislation that could negate the rights contained in the Canadian Victims Bill of Rights.

However, I will agree to vote for Bill C-51 because, on the whole, it is a good bill.

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

Mr. Speaker, one issue I want to ask the parliamentary secretary to the government House leader a question about is the defence disclosure requirements in Bill C-51. This would mark the first time there would be a positive obligation on the part of the defence to turn over evidence, other than a few minor exceptions that are not in the least bit controversial and are well accepted. In this regard, for a defence counsel to tender evidence and records that in any way related to the complainant, it would have to bring forward an application at least 60 days before the trial.

We are not talking about records relating to the sexual activity of the complainant. Those are addressed in section 276. We are not talking about records in which there would be a reasonable expectation of privacy on the part of the complainant, such as therapeutic records. Those are dealt with in section 278. We are talking about any record relating to the complainant.

I would submit that this expansive definition would create an unwieldy process that would result in significant delays, not to mention the real risk of mid-trial applications, and therefore adjournments, and would do much to undermine trial fairness. Could the hon. parliamentary secretary comment?

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

Mr. Speaker, I recognize the deliberations that were made in favour of keeping the bill as is. However, when I was doing research for my speech on the bill today, I had the opportunity to look at the transcripts from the Senate's third reading debate on it. I was very moved by Senator McPhedran's deliberations on it.

More than 30 years ago, she was one of the co-founders of LEAF, the Women's Legal Education and Action Fund. She knows many people in the legal community, especially feminist scholars of criminal law. I was very moved by her comments that without Senator Pate's amendments to Bill C-51, we would have failed to capture the scope of consent as laid out for us by the Supreme Court.

While, ultimately, the New Democrats support Bill C-51 as is, I support what the Senate has attempted to do, and was very much moved by the senator's arguments in favour of it.

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

Mr. Speaker, I did. I was not there for most of the committee's deliberations on Bill C-51 because of a family matter I had to deal with at home, but I was there for the clause-by-clause consideration.

I moved an amendment at committee stage, which my Conservative colleagues supported. It sought to clarify some of the language. The hon. member for Saanich—Gulf Islands, the leader of the Green Party, also moved an amendment that was very much in line with what the Senate has attempted to do. I voted in favour of that one as well.

My short answer to the member is, yes, we in the NDP did support Bill C-51, with the constructive criticism that more could have been done. Now the bill has come back to the House with Senate amendments. While I still support the bill in principle, I will be voting against the government's motion. I very much agree with what the Senate has attempted to do to add more clarification to this part of the Criminal Code, which is warranted. With many sexual assault cases, the judicial discretion has sometimes left much to be desired. This is a crime in Canada that goes unreported much of the time. Adding more clarity to what does and does not constitute consent will be very valuable for Canadian society going forward.

The House resumed consideration of the motion in relation to the amendments made by the Senate 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.

Consideration of Senate Amendments

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

Madam Speaker, with respect, I will have to disagree with my colleague. Yes, I agree there are some very substantive provisions in Bill C-75 and Bill C-51 which we do support. The problem is that in Bill C-75, the government rolled in those changes with other more contentious issues and therefore has forced the legislation down to a snail's pace where it now has been sent to the Senate.

Three years into the Liberal government's mandate, when we look at its accomplishments at cleaning up the Criminal Code, so far nothing has been done. The zombie provisions of the Criminal Code are still on the books. The Criminal Code is reprinted every single year. The 2016 edition, 2017 edition and 2018 edition all contain those mistakes. If I am going to look at the government's performance based on its amendments to the Criminal Code, I am sorry but it is a failing grade.

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

Madam Speaker, I am very happy to be participating in today's debate on Bill C-51. I find it unfortunate, however, that the government has again had to resort to time allocation on a justice bill. The bill passed the House of Commons. I was certainly one of the members who voted in favour of it. However, I find myself in the awkward position of actually agreeing with what the Senate has done to the bill, because it very much mirrors the attempt I made at the justice committee last year to codify the nature of consent and provide a bit more definition in the Criminal Code.

Before I get to the Senate amendments more specifically, I want to talk more generally about the government's record on justice bills. While I do have a great deal of respect for the Minister of Justice and I very much agreed at the start of the government's mandate with what she was attempting to do, the pace of legislative change from the Minister of Justice has been anything but satisfactory. We started off with Bill C-14. It received a lot of attention and debate in Canada, as it should have, but we have to remember that the only reason the government moved ahead with Bill C-14 and we passed it in 2016 was that the government was operating under a Supreme Court imposed deadline. There was really no choice in the matter. Furthermore, when Bill C-14 was passed, we very nearly had a standoff with the Senate because of the provision in the bill about reasonable death occurring in a predetermined amount of time. We knew that that particular section would be challenged in the court system.

The other substantive piece of legislation the government has passed is Bill C-46, which was designed to move in conjunction with Bill C-45. Of course, Bill C-46 was problematic because the government has now removed the need for reasonable suspicion for police officers to administer a Breathalyzer test. They can basically do it whenever a person is legally stopped, whether it be for a broken tail light or for not stopping completely at a stop sign. If an officer has a Breathalyzer test on their person, they can demand a breath sample right then and there, without the need for reasonable suspicion. I have seen mandatory alcohol screening operate in other countries, notably Australia.

In my attempt to amend that bill, I stated that if we were going to apply such a draconian measure, it should be applied equally, because if we start giving police officers the ability to decide when or where to test someone, we know from the statistics, notably from the City of Toronto, that people of a certain skin colour are more apt to be stopped by the police than others. If such a provision were to be implemented, it should be applied equally at all times.

Moving on, there is Bill C-28, which deals with the victim surcharge, but is still languishing in purgatory at first reading.

The government then moved forward with a number of cleanups of the Criminal Code, the so-called zombie or inoperative provisions and the many redundant sections of the Criminal Code. That is the thing about the Criminal Code: It is littered with out-of-date provisions that are inoperable because of Supreme Court or appellate court rulings, but they are still faithfully reprinted every single year because Parliament has not done its work to clean up the Criminal Code. As my college the member for St. Albert—Edmonton has noted, it has led to some very bad consequences, notably in the Travis Vader case, where the judge used an inoperative section of the Criminal Code to convict someone. That conviction was then overturned. So these section do have very real consequences.

My contention has always been with section 159, which was brought forward in Bill C-32. Bill C-32 was then swallowed up by Bill C-39. Then Bill C-39 was swallowed up by Bill C-75, which has only just passed the House and now has to clear the Senate. We have no idea how much longer that is going to take. The House is about to rise for the Christmas break. We will be back functioning at the end of January, but Bill C-75 is a gigantic omnibus bill and full of provisions that make it a very contentious bill.

My argument has always been that for such an ambitious legislative agenda, especially if we are going to clean up the Criminal Code as Bill C-51 proposes to do, I contend that the Minister of Justice, had she had a good strategy in dealing with the parliamentary timetable and calendar and how this place actually works, would have bundled up the non-contentious issues in Bill C-39 and Bill C-32, which was morphed into Bill C-75, together with the non-contentious issues of Bill C-51 and made it a stand-alone bill, and we could have done that work.

These are issues that we cannot really argue against because it is a moot point; the Supreme Court has already ruled, so keeping them in the Criminal Code just leads to further confusion. Here we are, three years into the government's mandate, and the Criminal Code has still not been cleaned up to this day. For an ambitious legislative agenda, that leaves a lot to be desired. I heard Michael Spratt, who regularly appears as a witness before the justice committee, describe Bill C-51 as dealing with the lowest of the low-hanging fruit. Therefore, if we had been serious, we could have made some very reasonable progress on that. Be that as it may, we have Bill C-51 before us and we have to go over it.

Before I get into the specific amendments brought forward by the Senate, I think it is worth going over some of the things we are talking about. Among the things Bill C-51 would repeal is the offence of challenging someone to a duel. It used to be illegal to provoke someone to fight a duel or to accept the challenge. We will get rid of that section because it obviously reflects an earlier time in Canada's history. It is the reason why in this place we are two sword lengths apart. Members of parliament in the U.K. used to go into that place with swords on their hips. The bill would also get rid of section 143 dealing with advertizing a reward for the return of stolen property. It would get rid of section 163, dealing with the possession of crime comics, a legacy of a 1948 bill by a member who thought that crime comics negatively influenced kids by encouraging them to commit crimes, and that they were not a part of a good upbringing. The section on blasphemous libel would be dropped. Fraudulently pretending to practise witchcraft is probably one of my favourite ones.

While Bill C-51 is making some much needed changes to sections of the Criminal Code, as I said earlier, we would not be arguing these cases in the House three years into the mandate of the current government if the bills had been bundled up into a single bill, which I am sure could have had royal assent by now.

We did have a very interesting discussion at the justice committee on section 176. When I first read Bill C-51 and it mentioned that this section would be repealed, I read right over it. However, when hearing witnesses at committee, it became quite apparent that section 176 had a lot of very deep meaning to select religious groups. After hearing all of that testimony about the importance of having section 176 remain in the code, I am glad to see that the committee members were able to work together to polish the language to ensure that it would now be applicable to all religious faiths, and not just single out the Christian faith. Now, if someone were to interrupt the religious proceedings of any faith, that would be dealt with appropriately under section 176.

The heart of the matter before us is the Senate amendments to Bill C-51. As I mentioned, it is kind of awkward for a New Democrat to be recognizing the work of the Senate. I value the people who sit as senators. I know there are some very determined people who certainly try to do their best there. My problem has always been with a 21st century democracy like Canada having an unelected and unaccountable upper house. I have to face the electorate for the decisions I make and the words I say in this place, and for what the Senate as a whole does.

I am going to be rejecting the government's motion on Bill C-51, because I agree with the substance of what the Senate was attempting to do in Bill C-51. It very much reflects some of the testimony that I heard at committee, and I have also reviewed some of the Senate Hansard transcripts of the debates it had on Bill C-51. While it is true that the amendments were not passed at the legal and constitutional affairs committee of the Senate, they were passed at the third reading stage. When we see the transcripts, we can see that the hon. senators in the other place were trying to codify what they saw as some missing aspects of the bill.

If we look at the heart of the matter, it comes down to the Supreme Court decision in R. v. J.A. The Supreme Court ruling reads:

When the complainant loses consciousness, she loses the ability to either oppose or consent to the sexual activity that occurs. Finding that such a person is consenting would effectively negate the right of the complainant to change her mind at any point in the sexual encounter.

In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it would be inappropriate for this Court to carve out exceptions to the concept of consent when doing so would undermine Parliament’s choice. This concept of consent produces just results in the vast majority of cases and has proved to be of great value in combating stereotypes that have historically existed. In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary.

The court in a sense is recognizing the very important part that Parliament plays in this. One thing I have learned during my time as our party's justice critic is that, in looking at the Criminal Code, ultimately, we in this place are responsible for drafting and implementing the law and it comes down to the courts to interpret it. There is this kind of back and forth. When the justice aspect of the government and the parliamentary part of it work in tandem like that, we hopefully arrive at a place where the law is reflective of today's society.

However, it is not only the J.A. decision that we should be looking at. On October 30, which coincidentally was the very same day that the Senate sent the bill back to the House, there was a decision in the Alberta Court of Appeal, R. v. W.L.S. In that particular case, an acquittal on sexual assault charges was overturned by the Court of Appeal. The Court of Appeal acknowledged in its decision that the complainant was incapable of consenting.

Senator Kim Pate provided us with a message. She said:

In regard to our discussions concerning Bill C-51, I write to draw your attention to the recent case of the Alberta Court of Appeal, concerning the law of incapacity to consent to sexual activity. Please find a copy of this case attached.

The Alberta Court of Appeal heard this case on October 30, the same day the Senate passed the amendments to Bill C-51. The court overturned the trial decision on the grounds that the trial judge had wrongly held that nothing short of unconsciousness was sufficient to establish incapacity. While this erroneous understanding of the law was rectified on appeal in this case, as we know, the vast majority of cases are never appealed. The trial judge's decision demonstrates the very error, fed by harmful stereotypes about victims of sexual assault, that many of us are concerned the original words of Bill C-51 risks encouraging.

Senator Kim Pate is basically acknowledging that there is a role for Parliament to play in providing a more explicit definition of consent, what it means and when consent is not given. While I am certainly one of those people who trusts in the power and ability of judges to make decisions, the judicial discretion, I align that thinking more with the decisions that they make and not in the interpretation of the Criminal Code. There is room in some parts of the Criminal Code to be very specific so that there is no judicial discretion, and that we are very clear on what consent means and what it does not mean.

Turning to the actual Senate amendments, they would be adding specificity in both clause 10 and clause 19. Basically, those particular aspects want to ensure:

(b) the complainant is incapable of consenting to the activity in question for any reason, including, but not limited to, the fact that they are

(i) unable to understand the nature, circumstances, risks and consequences of the sexual activity in question,

(ii) unable to understand that they have the choice to engage in the sexual activity in question or not, or

(iii) unable to affirmatively express agreement to the sexual activity in question by words or by active conduct;

Adding this kind of specificity to the Criminal Code is very much a good thing. In paragraph (b), it says “including, but not limited to”. I think adding that kind of specificity will help with certain cases. From the very interesting Senate deliberations on this subject at third reading, we can see that senators were not very happy with how Bill C-51 left a bit of a hole.

We have made much of the witness testimony at the Standing Committee on Justice and Human Rights. Professor Janine Benedet did look at this particular aspect of the Criminal Code. As I said in my exchange with the member for Mount Royal, one thing she stated was:

Any clarification we can give will be beneficial. It doesn't have to be an exhaustive list, but there has to be the idea that consent has to be informed, that you have to have the ability to understand that you can refuse—because some individuals with intellectual disabilities do not know they can say no to sexual activity—and that it has to be your actual agreement. Those are all things that can be read into the code as it's currently written, but sometimes are not fully realized in the cases we see.

Adding that specific part would be very much in line with what Professor Benedet was saying at the committee. That is why I will be rejecting the government's motion and voting in favour of the Senate amendments.

Turning to the Senate deliberations on this bill, in some of that debate it was said that R. v. J.A. outlines the requirement for active consent. However, the Senate very much found that without the specific amendment by Senator Pate to Bill C-51, we would have failed to capture the scope of consent laid out for us by the Supreme Court, supported by experts in the law of sexual assault in Canada.

Feminist experts in sexual assault law have advised that the inclusion of the word “unconscious” risks creating a false threshold for the capacity to consent. There were also deliberations that the current wording in Bill C-51 poses a serious risk that women who are intoxicated would be blamed if they are sexually assaulted. They would not be protected by this bill.

Further, some have noted that the weakness is in the definition of what constitutes non-consent. According to a legal expert who provides sexual consent training to judges, there is not enough precedent or awareness among judges to believe that the proposed wording in clause 10 and clause 19 of the bill is clear enough.

I see my time is running out, but I will end with some of the really scary statistics we face as a country. Statistics Canada estimates that some 636,000 self-reported sexual assaults took place in Canada in 2014. Shockingly, it also estimates that as few as one in 20 were actually reported to police. Those are statistics which should give us great pause and lead us to ask ourselves what more we could be doing. The Senate amendments are very much in faith with trying to keep that.

I would also note that this is probably one of the last opportunities I will have to rise in this particular chamber to give a speech. I want to acknowledge the history of this place and what an honour it has been for me, in my short three years here, to have served in this House of Commons chamber. I know we will be going forward to West Block, and an admirable job has been done there.

I finish by wishing all my colleagues a merry Christmas. I hope they have a fantastic holiday season with friends and family, and that we come back in 2019 refreshed and ready to do our work on behalf of Canadians.

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

Madam Speaker, I would like to thank my Liberal friend for his speech and for entertaining our brief heckles at one point in the speech.

I am going to ask the member the same question I asked the Minister of Justice this morning about charter statements that are explored within Bill C-51, an approach of the government, in terms of giving a statement that the charter has been considered and the government feels there is no violation or question of a constitutional nature.

I would ask the member to contrast that with the editorial in The Globe and Mail today by Chief Fox, an indigenous leader from Alberta who said that they were not properly consulted with respect to Bill C-69. We have an anti-resource to market bill by the government, where clearly indigenous leaders say that the duty to consult was not met.

In a charter statement environment, how is the government consulting indigenous Canadians? It is clear that there is legislation before Parliament right now that first nations leaders say they have not been consulted on. My concern with the charter statement is it is a way of the government putting out “chill”, saying that it has considered all arguments about charter or constitutional provisions, and therefore this legislation is okay.

Is the member aware of how the government is consulting indigenous peoples as a part of the charter statement preparation?

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Speaker, Bill C-51 is a broad and complex bill. If I have the time, I will entertain further discussion of the merits of the bill, which I feel is a good bill.

Bill C-51 proposes many different things in clarifying provisions relating to sexual assault, repealing unconstitutional provisions of the Criminal Code, clarifying and strengthening our charter by ensuring the government prevents charter statements for every piece of government legislation and seeking to avoid unnecessary litigation by enhancing our understanding of the criminal law.

This debate is essentially about the Senate amendments to the bill with respect to the issue of sexual assault.

As these issues were covered by the House of Commons Standing Committee on Justice and Human Rights when it debated the bill, this is an interesting analogy to bring to the attention of the House. We did not support the amendments that were brought forward by Senator Pate, amendments that were adopted by the Senate.

When we were debating the sexual assault provisions in the bill, there was enormous discussion.

The bill's intent is to codify the decisions of the Supreme Court of Canada in J.A. and Ewanchuk.

In the decision in J.A., the intent was to set out and make it clear that someone would not be capable of providing consent when unconscious, but also that there were other instances in which the individual might be unable to provide consent.

In the case of Ewanchuk, the issue related to a misunderstanding of the law, clarifying that a mistake of law was not a defence to sexual assault.

When the legislation came to the Standing Committee on Justice and Human Rights, we introduced amendments to clarify what people were concerned about when they came to testify about the bill. We heard from a wide range of witnesses, representing groups on all sides of the spectrum, from defence counsels and prosecutors to women's groups, victims' groups, etc.

We wanted to ensure that it was very clear that unconsciousness was not a bright light, meaning that anything short of unconsciousness would be seen as potentially not allowing one to say that consent was not extended.

As such, the Standing Committee on Justice and Human Rights made an amendment to make clear that consent had to be contemporaneous at the time of the sexual activity, that it must be ongoing, that it would not be valid if made in advance and that the person engaging in sexual activity was allowed to withdraw consent at any time. That amendment was supported by all members of the committee.

We also had an amendment to clarify Ewanchuk with respect to the mistake of law defence. We were concerned that the bill as originally drafted would possibly allow people to conclude that a mistake as to fact would no longer be a defence. We clarified that portion of the bin the bill to make it clear that it was only a mistake in belief as to what the law was that would no longer provide a defence allowing a mistaken belief as to fact to continue to constitute a limited defence.

For clarity, that means if someone who erroneously believes that when married, a spouse has to consent and that there cannot be sexual assault in marriage, that is a mistake as to law and it is not permitted anymore as a defence. That clarifies the Supreme Court decision in Ewanchuk within the Criminal Code.

That was what our committee had done, but the Senate went far beyond that and made amendments that sought to set out an additional framework of what type of capacity was required for consent.

The Senate added that lines 17 to 20 be replaced to say:

(b) the complainant is incapable of consenting to the activity in question for any reason, including, but not limited to, the fact that they are

(i) unable to understand the nature, circumstances, risks and consequences of the sexual activity in question,

(ii) unable to understand that they have the choice to engage in the sexual activity in question or not, or

(iii) unable to affirmatively express agreement to the sexual activity in question by words or by active conduct;”, and...

(3.1) For greater certainty, capacity to consent at the time of the sexual activity that forms the subject-matter of the charge cannot be inferred from evidence on capacity to consent at the time of another sexual activity

These are all very well-meaning amendments. They are amendments that seek to clarify capacity, but I am afraid that these amendments may have unintended consequences, could prolong cases a great deal by leading to enhanced questioning in all of these areas and, in fact, go way beyond what the Supreme Court said in J.A. and go beyond the intention given to the legislation, which was to codify the decision in J.A.

The Minister of Justice has advised us that she will be undertaking further consultations with relevant groups across the country and may come back to us with further clarifications to the legislation on capacity. However, I believe that putting forward these very detailed amendments that were not considered by the witnesses who appeared at the House committee or Senate committee because these were not on the table in the legislation, so we did not hear from the wide spectrum of witnesses on their thoughts about the draft language, leads to us using very specific draft language that the legal community across Canada was not consulted on.

I would also draw the attention of the House to the fact that the committee considered amendments very similar to this that were brought forward by my colleague from Cowichan—Malahat—Langford in the New Democratic Party who sat on the committee at the time. When those amendments were brought forward, I found them to be confusing. I asked a question of the officials from the Department of Justice that I would like to put on the House record. This is from the record of the justice committee. I asked the following:

Can I ask a question, either to [the member for Cowichan—Malahat—Langford] or the officials, or maybe to both? I have two questions, actually.

One, with the fact that we have “unconscious” and then a general provision saying for anything else, is there any potential that by adding two specific examples into the second paragraph, the courts may then narrow the scope of what it's intended to mean?

Two, would somebody not being aware that they are not obliged to consent to the activity not be a mistake of law, a misunderstanding of the law, as opposed to incapacity?

The official from the Department of Justice who answered the question, Nathalie Levman, counsel for the criminal law policy section, stated the following:

Regarding your second point, I agree with you. I'm concerned that this doesn't necessarily speak to the capacity issue that proposed paragraph 153.1(3)(b) speaks to.

That raises a number of different points about your first question, which is that the law on when a person is so incapacitated that no consent is obtained in law is complex. The case law is difficult and there may be a number of different factors that are relevant. Singling out two factors, one of which may not relate to capacity, may have some unintended effects. As to what those effects could be, I cannot speculate, but I just point out that it is a complex issue of law, this particular paragraph, proposed paragraph 273.1(2)(b).

That brings me back to my argument. The fact that the Department of Justice was unable to say clearly what the intended amendment would even mean and talk to us about the ambiguity that the amendment potentially offered leads me to conclude, as I believe my Conservative and Liberal colleagues all concluded at committee, that adding these words into the law, while well intentioned, may have factors that we had not considered. I think this would certainly render a provision to the law that the courts have now interpreted for a considerable amount of time even more complex than it needs to be, leading to multiple questions that I could see being asked now to deal with the all of the different situations put forward by the Senate amendment.

I applaud Senator Pate for her decision to be an advocate on this issue, but I regret that I cannot agree with the position that she took in terms of proposing the amendment to go forward at this time.

I would prefer seeing the Minister of Justice do wide consultation, which would then allow, when a bill comes forward, the Standing Committee on Justice and Human Rights to have the benefit of the draft language to share with all of the different witnesses coming before committee, so that all of them could expound on whether or not they find that language to be helpful or problematic, etc.

That being said, I would also like to speak to another amendment that the House of Commons Standing Committee on Justice and Human Rights made to the bill. There has been a lot of discussion about the provisions that the bill removed from the Criminal Code that had been ruled either unconstitutional or inoperative; inoperative ones, such as challenging someone to a duel. We would all agree that is no longer an issue for many Canadians, and that that was properly removed from the legislation.

Another one that would be removed as inoperative is possessing, printing, distributing or publishing crime comics. Again, I think most of us would agree that there is no need for a specific provision as to that. Fraudulently pretending to practise witchcraft is another one. While it is comforting to know that if someone actually does practise witchcraft and is not being fraudulent about it, they are allowed to do so in Canada. I do believe that removing the potential of fraudulently practising witchcraft is definitely a good step.

Another is issuing trading stamps, who knew it was illegal to issue trading stamps? However, I am pleased that we removed that from the Criminal Code. I am also very pleased that we worked with—

The House resumed from December 6 consideration of the motion in relation to the amendments made by the Senate 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.

Bill C-51—Time Allocation Motion

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Madam Speaker, again I am pleased to stand up and speak to the charter statement, which is a very substantial part of Bill C-51. I have, as the Minister of Justice, introduced charter statements with each piece of government legislation that I have introduced in this place. I will say that charter statements are meant to be informative. Charter statements are meant to make the thoughts and the thinking behind government legislation accessible to Canadians, not to provide legal advice to Canadians or legal advice to this place. As the Minister of Justice and the Attorney General and the chief law officer of the government, I provide legal advice to the government.

What I believe is incredibly useful, and I have had feedback in this regard, is to have a discussion about where the charter is engaged with respect to specific pieces of legislation and to reference case law that has considered the issues in terms of specific charter sections to give an idea or window into government legislation and where the charter may or may not be implicated. This is the idea behind this. Again, it is not legal advice.

I will not comment on comments that were made by the hon. members of the other place, but I take great pride in ensuring that our charter statements provide the information and the accessibility not only to members in Parliament but to Canadians generally. This is a practice that will continue. This is a practice that has assisted in terms of getting a window into the eyes of where the charter is implicated in terms of government legislation.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Madam Speaker, I appreciate the member for Durham raising charter statements because one of the significant pieces of Bill C-51, when hopefully it becomes law, is it will be a direct responsibility of the government to introduce a charter statement with each piece of government legislation.

I would be happy to speak with the member for Durham at any time, not necessarily in the House, about the robust legislation and activities of the Department of Justice. I would extend that invitation to him.

In terms of charter statements, they are the responsibility of the Minister of Justice to look at government legislation. Charter statements are not legal opinions, but they detail where the charter is potentially engaged by a piece of legislation that the government is putting forward. It provides a window into how government decisions are made or the thought processes that government went through in terms of putting forward a piece of legislation. This is something that has not been done before. This is something that is contained within Bill C-51. With the coming into force of that bill, the charter statements will be applicable to all pieces of government legislation.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, one of the things we need to emphasize is that in preparation for bringing forward Bill C-51 and previous legislation, there has been a great deal of background work with many stakeholders in different jurisdictions. I wonder if the minister could provide her thoughts on the importance of having done a lot of the preliminary work and give us a sense of some of the background work leading to the introduction of the legislation itself. Not only has there been a thorough debate, with questions and answers, in committee and in debates inside the chamber, there was also a great deal of consultation prior to the legislation even being introduced.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Madam Speaker, in terms of reintroducing the Criminal Code, I am incredibly proud to be part of a government that has taken action, which has not been taken for decades, as the member mentioned, to ensure that we have a modernized Criminal Code, that we remove the unconstitutional provisions, the zombie provisions, that we update the laws around sexual assault and intimate partner violence and that we look at the victim fine surcharge as well as section 159. All of these are issues raised in government bills the member opposite has spoken to.

We are moving forward with comprehensive reform of the criminal justice system, and that starts with looking, in a substantial manner, at the Criminal Code. This is what we have sought to do and what is contained in Bill C-51 and also in Bill C-75.

I look forward these two pieces of proposed legislation becoming law so that we can do what has not been done for far too long, which is modernize the Criminal Code.

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

Madam Speaker, I am not satisfied with the minister's previous response to my question. We can look at the legislative track record of the Minister of Justice, starting with Bill C-28, the victim surcharge bill, which was rolled into Bill C-75. We had Bill C-32, which was rolled into Bill C-39, which was then rolled into Bill C-75, and now we have Bill C-51.

I talked about tactics. Time allocation is a tactic. It would have been an unnecessary one if we could have dealt with the substantive provisions in all those bills, but instead, the government's strategy was to basically string us along with the introduction of these justice bills that would clean up the inoperative provisions of the Criminal Code and then leave them in some kind of purgatory stuck at first reading.

When the Minister of Justice took office, everyone knew that there were zombie provisions in the Criminal Code that had to be cleaned up. This has been a topic of discussion for decades, and every year, the Criminal Code is faithfully reproduced with all of these mistakes.

Again, why did the Minister of Justice, in 2016, the first year of her mandate, not take the provisions in Bill C-32 and Bill C-39 and elements of Bill C-51 and package them in one bill? We could have had that passed, done and dusted by now, but instead, they were rolled up with contentious provisions, and they are still being debated. Bill C-75 has only just been sent to the Senate. Who knows how long it is going to take there?

[John Nater, Conservative, Perth—Wellington, ON]

Madam Speaker, Bill C-51, Bill C-57, Bill C-87, Bill C-88, and Bill C-21, all of these bills have had notice given of time allocation in the last week we are sitting before the Christmas break. Is this not just another indictment of the failure of the Liberal government when it comes to managing the business of the House?

The Liberal government said it was going to do things differently. All of a sudden, like the kid who spent the entire semester at school partying, when that final assignment comes due, it is a rush to try to get it in, in the nick of time, before the deadline. Is this not just another example of the Liberals' failure to manage the business of this place?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Madam Speaker, I would like to unequivocally state that I do not agree with the member opposite's characterization of the work we are doing.

I will say, with respect to his comments about shutting down debate and discussion, that with respect to the issue at hand, Bill C-51, this House has debated Bill C-51 for a total of 10 and a half hours, including three hours of debate on the message from the other place. The Senate debated Bill C-51 for four hours. It benefited from a total of 19.5 hours of study at committee, between the House and the Senate, which heard from 63 witnesses.

We are talking about Bill C-51. I look forward to having this become law so we can ensure that we codify the Supreme Court of Canada decision in R. v. J.A., that we further support sexual assault victims and that we ensure that we can move forward with charter statements that will be introduced with all government legislation once this bill becomes law.

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

Madam Speaker, it is encouraging that in Bill C-51 there are provisions that would remove sections of the Criminal Code that have been found to be unconstitutional by appellate courts. However, following up on the question put by my friend for Cowichan—Malahat—Langford, it is disappointing that the government still has not removed unconstitutional sections, sections the Supreme Court of Canada has found to be of no force or effect.

It has now been over two years since Travis Vader had his conviction on two counts of second degree murder overturned as a result of the application of an inoperative section. Two years later, Bill C-39 remains stuck at first reading. The only thing preventing inoperative sections of the Criminal Code from being removed is the government. Can the minister explain to the McCann family why, after two years, they are still waiting for section 230 and other inoperative sections of the Criminal Code to be removed?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Madam Speaker, my colleague across the way sat on the justice and human rights committee, which has debated many justice bills.

As for the member's characterization of parliamentary tactics, the only parliamentary tactic I employ and that our government employs is to work as co-operatively as we can with all members in the House to have informed debate about particular bills the government puts forward, seeking feedback from hon. members in this place and the other place and valuing the work done at committee.

With respect to all the justice bills that have been advanced, we have been working expeditiously to move forward with Bill C-39, Bill C-51 and Bill C-75 so that we clean up the so-called zombie provisions and the unconstitutional provisions. I would look to all hon. colleagues in this place to work with us to make sure that these pieces of legislation move forward as expeditiously as possible.

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

Madam Speaker, I have found myself, as a New Democrat, in the awkward position of agreeing with the work the Senate has done. I was one of those who voted in favour of Bill C-51, because I agree with the focus of the bill and the provisions in it. Ultimately, what the Senate has attempted to do reflects very much what I attempted to do at the Standing Committee on Justice and Human Rights.

My issue with the government's approach and its parliamentary tactics comes from the fact that for the various justice bills, Bill C-32, Bill C-39, Bill C-51 and Bill C-75, the Minister of Justice could very well have packaged many of the inoperative provisions of the Criminal Code in Bill C-39 and Bill C-51 in one bill that would have passed through Parliament relatively quickly. Instead, she packaged in some other provisions that have been more contentious, and therefore, has forced the government to use extraordinary measures like time allocation.

With all the evidence from legal experts over the years who have talked about the inoperative provisions of the Criminal Code, why could the Minister of Justice not have packaged the provisions in Bill C-39 and Bill C-51, which would not have had any argument, in one bill? Instead, three years into the government's mandate, we find ourselves still deliberating on these provisions, and nothing has changed.

[Jody Wilson-Raybould, Liberal, Minister of Justice and Attorney General of Canada]

Madam Speaker, I acknowledge the comments by my friend and colleague across the way. My favourite parliamentary procedure, one of the favourite duties I have in this place, is passing good laws that are informed by robust consultation.

I believe the member for Winnipeg North would agree with me that we have had substantial debate on Bill C-51. The bill benefited from the very direct engagement of the hon. members in the other place. We have taken serious account of their message back and have recognized that their proposed amendment is well intentioned. We are committed to continuing to work with the hon. senators and Canadians generally, as we seek to move forward and look at the law of consent and the incapacity to consent. This is something on which there will be ongoing discussion, dialogue and commitment by our government.

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

Madam Speaker, I guess it is fitting for this government that we, in the final days of sitting in this chamber, are again talking about its favourite parliamentary procedure, time allocation, something that the Liberals said that they would never use when they were in opposition. Today we have time allocation on Bill C-51, particularly on the amendments by the Senate, the same Senate the Prime Minister said he was liberating by appointing independent senators to, because he wanted their feedback. He wanted additional debate. Today, they are once again shutting down that additional debate in the House.

This once again is an example of the Liberal government ramming things through. I am going to remind my friend from Winnipeg North that in 2011, the first time he spoke about time allocation, the first of many times he complained about it, he said that its use would mean he was “abandoning every principle I have on parliamentary tradition”. Abandoning principles seems to be all they have done in government.

My question is for either the minister or the member for Winnipeg North regarding the desire to have independent input from the Senate, with the changes made to the other place by the Prime Minister. Bill C-51 is an example of that additional insight from the Senate. I spoke last week on it. Why is the government curtailing debate on Bill C-51 through the use of time allocation? Once again, the Liberals are not adhering to their promises on omnibus bills or time allocation, nor are they keeping with the Prime Minister's promise to have an independent Senate that could provide input on bills. Why are they using time allocation and discounting the input from Senator Pate and others?

[Bardish Chagger, Liberal, Waterloo, ON]

moved:

That in relation to the Senate amendments for Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, not more than one further sitting day shall be allotted to the consideration of Senate amendments to the bill; and

That fifteen minutes before the expiry to the time provided for Government Orders on the day allotted to the consideration of the Senate amendments of said bill, any proceedings before the House shall be interrupted, if required, for the purpose of this Order, and in turn every question necessary for the disposal of the state of the bill then under consideration shall be put forthwith and successively without further debate or amendment.

Customs Act

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Madam Speaker, I am pleased to rise today to speak to the motion dealing with the Senate's amendments to Bill C-21.

The story of Bill C-21 is long and highly problematic, not to say sordid. I will read some excerpts, but first I would like to say that I am naturally in favour of the Senate's amendment. I will explain why.

The story of Bill C-21 is an interesting one, because it was a bill tabled almost three years ago.

It is unfortunate. I am thinking in particular of the No Fly List Kids, a group well known to members of this house. It is a group of parents who have children on the no-fly list who are false positives, because they share a name with an individual on this list who has been flagged.

The reason I raise this issue is that when these parents originally came to Parliament Hill and asked the government to respect commitments that had been made to fix this issue, they were told by the government, and the Minister of Public Safety more specifically, that they would have to lobby the Minister of Finance, because it needed money to the redress system. They did that. They talked to the Minister of Finance. It was fantastic. The money was announced in the last budget. It was a non-partisan effort I was proud to be part of.

Then what happened? We heard that Bill C-59 needed to be adopted, an omnibus piece of legislation dealing with a whole slew of national security elements, one chapter of which, in a bill hundreds of pages long, dealt with the no-fly list. Conveniently, we were saying that the bill needed to be facilitated at the time the bill arrived in the Senate, and it was being held up there.

How does this connect to Bill C-21? Allow me to explain. The Minister of Public Safety's press secretary made one thing clear to the media: the money is there, and Bill C-59 must be passed.

As the months passed, Bill C-21, which was introduced in the House nearly three years ago, also got held up in the Senate. A month or two ago, at the same time the parents of the no-fly list kids were lobbying the Senate to quickly pass Bill C-59 and fix this horrible problem, the same spokesperson for the Minister of Public Safety said that Bill C-21 also needed to be passed more quickly. After three years, and one year in the Senate, the bill finally passed.

I do not want to cast doubt on anyone's good faith, but there is a problem, because I see nothing in Bill C-21 to address this scourge, which has been around for too long and makes life hard for these parents whenever they take their kids to the airport. This debate gives me the opportunity to say this to the House, because even though these parents are a non-partisan group, I am a partisan politician, and so I have no qualms about criticizing the government for trying to exploit this problem to rush its legislative agenda through. If it had done its work properly, the bill would not have gotten held up in the Senate the way it has.

With that point made, I want to address more specifically the amendments from the Senate. I am pleased to see that the Senate has improved on an amendment I presented at the public safety committee that was supported by all colleagues. My amendment was to actually prescribe a retention period for the data Bill C-21 would deal with at the border.

Just to give the background on this, the New Democrats opposed Bill C-21, despite some things in the media I read in June saying that the bill quietly passed in the House. No, we opposed this bill, and we raised some serious concerns about it at committee.

One of the concerns raised by the Privacy Commissioner was the fact that we would be collecting entry and exit data at the border and sharing with the Americans “tombstone“ data, as the Minister of Public Safety morbidly calls it. That data is concerning, because what we are seeing in the national security field, and CBSA is no exception, is a larger net being cast over the type of data we collect. The minister listed a bunch of laudable goals for collecting data dealing with kidnapped children in, for example, horrible custody cases, dealing with human trafficking and cracking down on people who are abusing EI and the OAS system. We will get back to that in a moment.

These goals, certainly on paper, sound laudable. However, that should not diminish the privacy concerns being raised, particularly with respect to the current administration we see in the U.S. collecting this type of information. What civil society tells us about these issues is that there is a web of inference. In this large net being cast in the national security field, data that might seem innocuous, collected for legitimate purposes, can be easily shared with other agencies through this information-sharing regime for a variety of objectives that might not necessarily be the intent of the legislation.

In that context, we heard the concerns that the Privacy Commissioner raised about the data retention period, which was essentially unlimited. The amendment I presented set a time limit of 15 years and was based on a recommendation from the commissioner himself. I read in the media that civil society felt that period was too long. I understand their concerns, but ultimately, we relied on the Privacy Commissioner's expertise.

After my amendment was adopted and the bill was passed by the House, in spite of the NDP's opposition, the Senate heard testimony from the Privacy Commissioner. He pointed out that the wording of the amendment as adopted could be interpreted to mean a minimum of 15 years rather than what we actually intended, which was a maximum of 15 years. He himself said that this might not have been the committee's intent.

The Senate therefore made a correction and improved an amendment that I was pleased to present. I was also pleased to have the support of the other parties on the committee. Obviously, we support the Senate amendment.

The amendment put forward by the government today also supports that amendment. Accordingly, although we oppose the bill, we do support today's motion to adopt the Senate's amendment.

I want to take a moment to address this. I raised some of the concerns at the time on Bill C-21. Earlier I enumerated some of the things the minister said. However, there is another piece, and that is the issue of OAS and EI.

We had the appropriate ministry representatives at committee. They talked about all the great savings they were going to see and about the abuse of the EI and OAS systems. I find it fundamentally offensive to talk about savings in systems and programs that are there to help the most vulnerable in our society. The officials at committee even acknowledged that they believe in the good faith of the people who are claiming EI and receiving OAS.

Here is the problem. I will refer to some news articles that appeared in June of this year. For example, the Canadian Snowbird Association talked about its concern about the kind of information, or lack thereof, being shared, the personal information being shared, in an effort to potentially crack down on supposed abuses. For example, a situation as innocuous as people overstaying a day in a condo they own in the U.S. could mean that they would have their OAS payments or other government programs docked when they came back to Canada, in some cases. On the flip side, with the IRS in the U.S., people are being turned away at the border when they try to return to the U.S. to visit friends or family or to stay in a secondary residence they might have there. Certainly, there are concerns being raised.

I want to open some parentheses here and say that the NDP certainly understands and agrees that we do not want to see these systems abused, because essentially that would mean money is being stolen from those who actually need it. However, we also have to understand that when we are talking about information-sharing in an effort to crack down, I think there need to be more robust parameters in place with respect to how we are communicating with those individuals who could be affected.

Another concern I have obviously has to do with the employment insurance system. I am sure my colleague from Saint-Hyacinthe—Bagot and my colleague from Churchill—I apologize, but I forget her riding's full name, which is long—can attest to how badly the EI system needs to be improved.

We are talking about the spring gap, the notorious 15 weeks, the problems that still have not been solved despite the government's rhetoric. What does the government do? It sends officials from the department in question to the Standing Committee on Public Safety and National Security so they can boast about all the money being saved by sharing additional information on travellers with the Americans.

I do not mean any disrespect to our interpreters, but I am going to repeat what I said earlier in English. I completely understand that the government wants to stop the abuse of the system and make sure that the money is going to the right recipients. At the same time, I also understand that priorities seem to be a problem for this government.

It is funny that I talked about the no-fly list at the beginning of my speech. The minister was bragging about the fact that very few identifiers are shared in the system that Bill C-21 is proposing. He talked about basic information and said that that information appears on page 2 of the passport. This creates another problem, because when there are not enough identifiers, it can be very difficult to identify an individual in the context of a government program, the Canada Revenue Agency, and so on.

I need to look no further than in my own family. My younger brother's spouse has a twin sister with the same first initial, but a different social insurance number. They have the same surname, the same birth date and the same first initial, but a different SIN. What happens? They have to fight on a regular basis to have their identity recognized when undergoing a credit or background check. They have all kinds of problems with the CRA, government programs and banks. In short, they have had problems in the past. Unfortunately for them, they will continue to have these problems throughout their lives. Still, I hope they will not.

I am pointing this out because having only a few identifiers, as the minister reassures us, can create problems. For example, someone receiving EI who has not travelled to the United States, but who shares the same name and date of birth with another person who has, could be incorrectly identified by the department, which is not even the same one that receives the information. The Canada Border Services Agency receives the information, which it then passes on to the Department of Employment. As members, we work often enough with government agencies to know that mistakes can be made along the way. I say this with all due respect for our great public service.

Those mistakes are even more troubling for a variety of reasons. First, I specifically asked those representatives in committee about EI, OAS and other payments. I asked them what they would do if there was a mistake, or what if people had their EI cut off because they were told they had gone to the U.S., but they had not. The response I got, if people can believe it, was that they would need to take it up with CBSA.

What happens with CBSA? It is the only national security agency in the country that does not have a dedicated oversight body. Is that not convenient? That is extremely problematic and a far from satisfying response when the most vulnerable, who desperately need EI benefits, are cut off all because of a mistake was made in an effort to share even more information with the U.S., at its request. This whole system stems from that.

Moreover, I pointed out that there was a complaint system built into the law, but CBSA needed the proper oversight. The minister has promised that time and again over the last three years, since he has responsibility for this portfolio, and it has not happened.

Bill C-59, for example, would result in the biggest overhaul to our national security in the last 30 years. Despite all the reassurances about the National Security and Intelligence Committee of Parliamentarians, the new oversight body, colloquially called the super-SIRC, would only deal with CBSA in the specific context of national security. CBSA is always deals with national security at our borders. However, the question could be posed whether it is an issue of national security when people have their EI cut off because of information collected by CBSA. That question remains unanswered. The fact that it is unanswered is exactly why we have a problem, among other things, with Bill C-51.

I want to raise one last point. Representatives of the Akwesasne First Nation came to both to the House committee and the Senate committee. The community lies across border. Representatives explained to us that they had children who were born in upstate New York and then lived in Canada. They had folks who sometimes worked in the U.S. Sometimes they needed to start in Canada, go through the U.S. and come back to Canada just for the commute home because of the geography of their location. I am pleased to hear they can cross those borders, because those borders should not be imposed on them as the first peoples of this land.

They already deal with certain difficulties, based on the information CBSA shares with appropriate ministries for different government benefits, with receiving the benefits to which they are entitled. Therefore, we can imagine that under a regime like that proposed in Bill C-21, those problems could be exacerbated. Unfortunately, there is no special dispensation for folks like that in the legislation, and that is also a concern.

In conclusion, I am glad I was able to reiterate the reasons for which the NDP opposes Bill C-21. We understand the desire to improve the flow at the border, work with our allies, and ensure that nobody abuses our social programs. However, we believe that Bill C-21 allows for yet more information sharing, despite inadequate protection for citizens' rights and privacy.

We should all be particularly concerned about the fact that Bill C-21 is the first stage of what could become a more extensive information sharing regime in the coming years. The Prime Minister and the U.S. President committed to enhancing border co-operation, but this is not going to make things better. This is about fingerprinting people, searching cell phones, and possibly even having our officers and theirs work in the same space. That came up during talks between the U.S. President and the Prime Minister.

All of these plans are still in their very early stages, and I do not want anyone telling me I am getting worked up and scared, but we have every reason to be concerned, especially considering how the current U.S. President behaves and how we protect our citizens at the border and on our own soil when they need social programs they are entitled to.

The bill's intentions are honourable, but the execution is poor. We support the Senate's amendment, but we still oppose Bill C-21.

Bill C-51--Notice of time allocation motion

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

Madam Speaker, it is with regret that I advise that agreement could not be reached under the provisions of Standing Order 78(1) or 78(2) with respect to certain amendments 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.

Under the provisions of Standing Order 78(3), I give notice that a minister of the Crown will propose at the next sitting a motion to allot a specific number of days or hours for the consideration and disposal of proceedings at the said stage.

Criminal Code

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Mr. Speaker, thank you for giving me a chance to speak to Bill C-51, which we are debating today.

First of all, I want to thank my colleague from Durham for doing such a great job of explaining the Conservative position, which is unequivocal in both the House and the other place. Our position is that we are in favour of a clear bill that benefits victims.

Sadly, 29 years ago, there were too many victims at the engineering school of the Université de Montréal, known as the École Polytechnique. Today is the 29th anniversary of this tragedy, which occurred in a learning institution where women were targeted. Today, we condemn violence against women, and all the members of the House believe that we need to take meaningful action and look to the future, but also look back on this extremely tragic event.

At the time, I was just graduating from the engineering school in Sherbrooke, and some of my female engineer friends, who have very successful careers today, came within a hair of getting shot by this killer. I want to salute these women, who have been working in engineering for 30 years, and all the women who followed in their footsteps by studying engineering. I think they responded to this killer in the best possible way by showing that women have a place in any sphere of our society where their talent leads them. In particular, I am thinking of my colleague in the House who also used to work as an engineer and now has an amazing career. I want to commemorate this tragic event, but I also want to salute the remarkable work these women have done.

The justice bill before us today targets one of the worst forms of violence against women: rape. That is more or less why the bill was returned to the House, and that is also why our position has not changed. We support legislative clarity.

Bill C-51 has been the subject of much debate by some of our colleagues, who are experts. The bill would simplify Canada's Criminal Code and remove redundancies. It is a housecleaning bill. It was passed in the House and sent to the Senate, and now it has been sent back to us. To maintain the bill's clarity, we intend to support the bill in its original form, as it was sent to the Senate. We want to ensure that it is crystal clear on the subject of violence against women.

Several provisions in the bill serve to remove outdated measures. This reminds me of our former justice minister. At the time, there were outdated provisions in the Criminal Code dealing with witchcraft and duelling. We are always drafting new legislation but sometimes forget to take out the old parts that are no longer relevant, so that is what this bill does.

What matters most to our party is bringing forward legislation that always put victims first and at the core of our initiatives. This bill pertains to sexual assault provisions in the Criminal Code surrounding consent, legal representation and expanding the rape shield provisions.

As members know, thanks to the efforts of our colleague in the other chamber, Senator Boisvenu, the Conservative Party created the Canadian Victims Bills of Rights and we intend to continue our work in that regard.

One provision in Bill C-51 is at the heart of today's debate. Clause 273.1 states that individuals cannot give consent if they are unconscious. It is very clear. Someone who is unconscious cannot give consent.

As my colleague from Durham just said, we need clear laws, not confusing ones. That is the purpose of this section. We want the version of the bill that we originally sent to the Senate to be passed. This is what my colleague from Durham and I are advocating for. I should point out that our Conservative colleagues in the Senate agree and do not want the bill to create confusion or create a grey area. This is why, and I repeat, we want section 273.1 to remain as is, meaning that a person who is unconscious is unable to give consent.

Some may say that this is obvious and goes without saying. If it is so obvious, why not put it in the act, so it will be clear to legal experts? This way, when they are dealing with these situations, they cannot submit various excuses. Sometimes, unfortunately, defence lawyers are good at using tricks to get the accused out of the charges. What we want is an act that supports victims, which is why we want the bill to remain unaltered.

This bill touches on other provisions that seem equally valid to us, such as section 176. Thanks to public support, we managed to save section 176. This section essentially provides protection for religious services.

The reason I bring it up today is that thanks to the work and dedication of my colleagues on the Standing Committee on Justice and Human Rights, our justice critic and his team, we succeeded in reintroducing section 176, which the Liberals had tried to repeal. They put it back in, but then they diluted it by making it a lesser offence.

The government seems to have a systematic bias in favour of criminals and against victims. That is what we saw with section 176, which made it an offence to disturb a religious service. Ironically, as we were debating that bill, tragedy struck in a small town. A shooter burst in on a religious service and shot worshippers. Closer to home, in Quebec City, members will recall the tragedy at the Quebec City mosque. That is why we feel it is important to keep these provisions in the bill and strenuously defend them. I will continue my remarks after question period.

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

Mr. Speaker, I thank my colleague for the question. I will answer in English because this subject matter is too complicated for my level of French.

The sexual assault provisions in the bill specifically adopt the approach taken by the Supreme Court of Canada. I would refer the member to those remarks in my speech. The Supreme Court's position was that it is not possible for anyone who is unconscious to provide consent. The Conservatives agree with the Liberals with respect to section 273.1.

Senator Pate has put forward additional provisions, and I respect the fact she wants clarity. I know she has been an advocate for women and people in our justice system for many years. To me, as a lawyer, having a four-part consideration adds additional complexity where all of those things will subsequently be assessed or considered by a court. Having a very clear statement by the Supreme Court of Canada in case law then adopted in legislation like Bill C-51 sets a clear expectation in two ways. It is crystal clear that someone who is unconscious cannot provide consent, and the second element is that previous consent is not sufficient for acts later on, whether with respect to the mental state or issues of the complainant or the accused. That consent needs to be continuous. I think it is really addressed better by the bill than by the amendments which would make it more complicated.

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

Mr. Speaker, I would like to thank my colleague from London who spoke earlier and all members for their comments on Bill C-51 today.

At the outset, because I have some time today to give a bit of a longer speech, I want to address the fact that I am troubled that in government, the Liberals are doing exactly what they said they would not do when they were in opposition. In fact, this is our second omnibus justice bill.

I know my friend from Winnipeg, the deputy House leader of the Liberal caucus, likes when I quote some of his outrage in the past Parliament about the use of omnibus bills. However, when it comes to justice omnibus bills in particular, I think the need for a lot of these provisions to be considered independently is the best way to go.

Although the bill is certainly not as long as the government's latest budget implementation act, at 850 pages or more, weaving together a variety of unrelated things in the form of one bill, here we have another substantive piece of justice legislation being presented in an omnibus bill.

Breaking it down, there are some good parts and some parts we certainly have some challenges with. I would like to use my opportunity, if I may, to highlight both the good and the bad.

The good is that as a Parliament, we need to show that we can speak with a united voice with respect to zero tolerance for sexual assault and not respecting the consent of an individual in the case of sexual relations of any kind. Therefore, I think it is good that we are having a fulsome discussion on this part of the bill today. In fact, several members have quoted from some of the case law that has led to the need for Parliament to weigh in and be very clear that people cannot provide the consent necessary to engage in sexual activities when they are unconscious. We need to send a clear signal from Parliament. I think the Senate amendments actually take away that clarity somewhat, and I am glad we are having the debate here on proposed section 273.1 in the bill.

The Supreme Court case that drove clarity in this area was very clear. It said that it was not possible for people to provide consent if they were not conscious, even if express consent had been provided ahead of time, when they were conscious. I think Parliament needs to be crystal clear that consent evolves and that there has to be the constant presence of consent and respect. That is what this bill is intended to do. In fact, some of the Senate amendments, which would almost create tests with respect to the standards, confuse the issue. There needs to be a clear signal sent that consent has to be constant. I think that is a signal that, as parliamentarians, we have to send.

I can say, as someone of my generation, that the debate on campuses about no means no and all these sorts of things was not taken seriously in the early 1990s. We are still having debates today about it. An accused will try to suggest that consent was provided sometime earlier. If consent was provided in the context of alcohol or substances, and if someone was unconscious, consent could not be provided.

The Supreme Court was clear. I think Bill C-51 and our updates to the Criminal Code send a very clear message. There is no test to be performed. It is a bright line. Everyone, all Canadians, need to show respect and a commitment to consent in the context of sexual assault cases. It is basic respect. We are in the era of the #MeToo movement and discussions about unsafe workplaces. All these things have been positive in making sure that one has a positive obligation, with respect to one's relations with someone else, to make sure that there is always consent present. I think that is clear.

I am also glad that a number of speakers from several parties have referenced Bill C-337, the bill of the former interim Conservative leader, Rona Ambrose, on judicial training in the context of sexual assault trials. The bench comprises a cross-section of society, and those attitudes need education to make sure that judicial standards adhere to the expectations we have as a society of respecting consent.

We know, in Ms. Ambrose's home province of Alberta, the case of Justice Camp, where attitudes toward a victim by the bench showed just how disconnected some may be. The vast majority of the bench would be explicitly mindful of the complainant in those cases, but we have seen cases in recent years that show that judicial training with respect to consent, in the context of sexual assault trials, is needed, as is education for all members of the bar.

As a member of the bar, I am glad that a few years ago, law societies across the country incorporated continuing legal education requirements for lawyers to make sure that they are aware of expectations with respect to consent and the law. The very fact that there would be some reluctance to have same continual legal education for judges in the context of sexual assault cases is troubling. I know that most justices demand that level of CLE, so I hope that the government, in the context of my starting off my speech by talking about some of the positive elements of Bill C-51, pushes Bill C-337 through. It should not matter that it came from a former Conservative member of Parliament, Rona Ambrose. It should not matter that it came from this side of the chamber if it addresses the same elements I am saying I support in Bill C-51 today. Let us hope there is some movement in the Senate so that in the spring, we can ensure that it is an expectation that all members of the bench have that training so they can guarantee an environment of respect for all complainants who come forward.

The provisions in proposed section 273.1 also show that Parliament is clear in its direction with respect to consent always being a requirement, and if there is any uncertainty, we err on the side of complainants. Everyone should know that if circumstances change, be they the context, consciousness, alcohol or these sort of things, prior consent is not sufficient. We have to be crystal clear on that.

This is also similar to Bill C-75, an omnibus justice bill, which I have spoken to in Parliament. I have also spoken to Bill C-77, on modernizing criminal justice within the context of the National Defence Act. I supported a number of measures in that bill. In fact, the previous government introduced Bill C-71 in the last Parliament to try to update the National Defence Act and the treatment of criminal conduct by members of the Canadian Armed Forces. That is still in a state of flux. All these bills, particularly because they deal with the rights of the accused and the rights of the victims or complainants in these cases, should be given specific attention and not be put into omnibus bills.

I would like to speak for a moment about the fact that this bill is part of the process of requiring a charter statement from the government with respect to legislation before the House of Commons. I have some concerns about that approach, in two ways. First, I am worried that it may send some sort of chill to suggest that the government is trying to innoculate itself by saying that it reviewed the bill ahead of time and has a charter opinion on it, meaning, therefore, that we cannot raise charter concerns or that there is no reasonable basis to have concerns about its validity under the charter by groups that may be impacted by the decision of this Parliament.

The very nature of the charter itself was to give a back and forth test with respect to the will of Parliament, and the ability for the court to determine whether fundamental charter rights were breached directly or indirectly by legislation in the context of enumerated groups under section 15 of the charter, are expressly contained within the charter, or are analogous ground groups, provided by subsequent court decisions.

The balancing test under section 1 of the charter, the Oakes test, which I learned in law school and is some of the first charter jurisprudence, is that balancing of the charter. By issuing a charter statement, I am quite concerned the government is trying to suggest it is doing its own Oakes test, its own charter examination of issues at the time it is passing legislation. I am not suggesting it will cause chill, but I have not have heard an argument from a member of the government bench to suggest this is any different than any government since the mid-1980s, when the charter came into effect.

Suggesting that the seal of approval for the charter is granted by one of these statements is simply ridiculous. It is up to the court to provide that reasonableness and those limitation tests under the provision of section 1 of the charter, which allows a charter right to be violated by legislation, but applies a reasonableness and balancing test to it since the Oakes jurisprudence started.

I will give a couple of examples of why I have this concern. In this Parliament, we have seen many instances of the government acting in a way I firmly believe violates the charter rights of many Canadians. This is germane because just today, shortly before we rise for Christmas, the government is reversing its position on the so-called values screen for Canada summer jobs.

We all know the controversial values test was applied for the first time in the history of this summer employment plan for youth as a clear way the government intended to exclude faith-based organizations and other service organizations from funding related to students. There were concerns from a charter basis expressed from day one when it came to the values test. Is the government suggesting, with its charter statements, that its actions on a whole range of decisions are somehow inoculated because it is providing a charter assessment? That is political theatre. It cannot provide its own charter assessment. It tries to craft legislation that it feels strikes the right balance, but the actual charter determination is not made in this chamber, which writes the laws, but in other courts.

We bow to the Speaker. We have a bar. This is a court. We write the laws, but we do not adjudicate our own laws. This is a very big distinction I have not heard the government express any clear indication on yet.

I will use another example. There have been several violations, in my view, of indigenous peoples' rights with respect to the duty to consult. In fact, I believe Bill C-69 violates that duty. We can look at the approach the government has taken on the cancellation of the northern gateway pipeline, which is one-third owned by indigenous groups. The duty to consult is not frozen in time. It does not exist 10 years before one develops a pipeline or cuts trees in a forest. If one decides to change the circumstances of that consultation, or cancel something that indigenous peoples are a one-third owner of, one has a duty to consult them on the cancellation. This is an ongoing duty.

The fact that the government may have a piece of paper that says this is our charter statement, this is our validation that the bill conforms with the charter, is political and inappropriate, because the government is suggesting this legislation will withstand any judicial scrutiny before the judicial scrutiny is applied. The government is suggesting that this is A-okay. That is not the way it works.

I invite the Minister of Justice and Attorney General and the parliamentary secretary to walk a little past the Confederation Building on the Hill to a building called the Supreme Court of Canada. It is there that the Oakes test was born, the Oakes test where the section 1 charter clause was.

As I have said, the values test that the government did to politicize the Canada summer jobs program would not be inoculated because of a government-produced charter statement nor would some of its actions with respect to Bill C-69, Bill C-75, Bill C-77. These are court determinations.

I do not have any proof because the charter statement concept is part of the government's justice reforms, including in this legislation, but I do have serious concerns that it will send a chill to suggest that the government will not consider valid concerns people have with respect to their charter rights.

I would like subsequent members of the Liberal caucus, particularly the ministers or the parliamentary secretaries, to provide a substantive rationale for their approach with respect to the charter statements. Are they somehow suggesting that previous governments, both Conservative and Liberal, have somehow not conformed to the charter by doing exactly what we are supposed to do as a Parliament, which is to try and find the right balance between the will of the people and certain provisions within the charter? That is done by a court using the Oakes test, doing the balancing. Producing a charter statement does not protect the government from criticism.

As I said today, days before Christmas, the government suddenly admits that its approach on the values test for summer jobs is wrong. This is much like days before Christmas last year, when it broke its promise to veterans on the return to the Pension Act. The Liberals make very good use of the pre-Christmas period not just for parties, but for dumping out their dirty laundry.

I would like to thank the thousands of Canadians from across the country and many of my colleagues in this chamber for representing the charter rights of millions of Canadians with respect to the conduct of the Canada summer jobs program.

Why I am focusing on this part of the bill is because we have to make sure that Canadians, members of the media and members of both Houses of Parliament do not get fooled by the fact that the government validating its own legislation under the guise of charter approval is not actually charter approval.

I am hoping in the remaining debate we can actually hear a cogent argument from the Liberal caucus on this. Otherwise, it seems to be more of the sort of media spin that we hear from the government.

The Prime Minister just yesterday, while leaning on his desk acting like a professor, told the opposition what we should ask and what we should criticize. We know full well what we should ask and we know where our criticisms and critiques are warranted.

Quietly, when the House does not sit, the Liberals backtrack on things, like they did today on the summer jobs values test, like when we rose for Remembrance week, and Miss McClintic, another justice consideration, was quietly transferred to a prison as we had been demanding, and as the break week happened Statistics Canada suddenly pulled back its program.

Like the Chris Garnier criticism, the non-veteran murderer who is receiving treatment funds from Veterans Affairs Canada, on most of the criticisms we have been raising even though they make the Prime Minister uncomfortable, the Liberals have backtracked. We have been doing our job quite effectively.

In the remaining time for debate, I would like one of the Liberal members to stand up and provide a context and a rationale addressing my concerns in regard to charter statements with respect to the bill before us and others.

As I said at the outset, we support the amendments and update of our Criminal Code with respect to sexual assault.

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

Mr. Speaker, I would like to thank the member for St. Albert—Edmonton for leading our Conservative caucus, the House and all Canadians through this legislative process to make the Canadian Criminal Code better.

This opportunity has provided me a chance to read, research and develop a much better understanding of the Criminal Code and its importance to all Canadians. I have read that one of the conveniences of the code is that it constitutes the principle that no person can be convicted of a crime unless otherwise specifically outlined and stated in a statute.

Today, we are discussing section 273.1 of the Criminal Code, which the bill would amend to clarify that an unconscious person is incapable of consenting. This reflects the Supreme Court decision in R. v. J.A. in 2011. The bill would also amend section 273.2 to clarify that the defence of mistaken belief in consent is not available if the mistake is based on a mistake of law, for example, if the accused believed that the complainant's failure to resist or protest meant that the complainant consented. This provision would codify aspects of the Supreme Court of Canada's decision in R. v. Ewanchuk in 1999.

Currently, the Criminal Code of Canada states that no consent is obtained where “the complainant is incapable of consenting”. Bill C-51, in subclauses 10(2) and 19(2), would amend this to clarify that unconsciousness is not the only situation in which an individual could lack capacity to give consent to sexual activity.

As indicated in the legislative summary of the bill, the amendment takes into account the Supreme Court judgment that was made in R. v. J.A., requiring active consent throughout every phase of the sexual activity. This is important to note, as this amendment would protect Canadian men and women against sexual exploitation.

I will relate a news story we heard back in 2017. When we were going through the bill put forward by our former colleague, Rona Ambrose, we talked about sexual consent and unconsciousness, and about judges being trained to understand sexual exploitation and assault.

This newspaper story told of a Nova Scotia judge who acquitted a Halifax taxi driver of raping a female fare. She was found unconscious in the back of his cab, partially naked and having urinated on herself. The woman, whose blood alcohol level was found to be three times the legal limit, had hailed the cab just 11 minutes earlier. The Crown has announced it will appeal Justice Gregory Lenehan's verdict, in part over concerns the judge did not properly apply the test for capacity to consent.

The proposed legislation also focuses on a Supreme Court case in 2011. It was very interesting to read the original case in the Court of Appeal in Ontario, and the appeal in the Supreme Court of Canada.

The case before the Supreme Court of Canada was Her Majesty The Queen appellant, and J.A. respondent, and Attorney General of Canada and Women's Legal Education and Action Fund on appeal from the Court of Appeal for Ontario. It reads:

Criminal law—Sexual assault—Consent—Accused and complainant consensually engaging in erotic asphyxiation—Accused...penetrating complainant during period of unconsciousness—Whether Criminal Code defines consent as requiring conscious, operating mind throughout sexual activity—Whether consent to sexual activity may be given prior to period of unconsciousness

For anyone who has a daughter or son, we want to make sure the laws are there to help and protect Canadians.

While I was going through the information regarding the Supreme Court decision, I read some of the background to the decision. I would like to put it on the record. This is from the Supreme Court ruling:

One evening, in the course of sexual relations, J.A. placed his hands around the throat of his long-term partner K.D. and choked her until she was unconscious. At trial, K.D. estimated that she was unconscious for “less than three minutes”. She testified that she consented to J.A. choking her, and understood that she might lose consciousness. She stated that she and J.A. had experimented with erotic asphyxiation, and that she had lost consciousness before. When K.D. regained consciousness, her hands were tied behind her back, and J.A. was inserting—

I will omit the details here, but suffice it to say that it was something a person should have a choice in, and it was not an act the complainant was prepared for. K.D. gave conflicting testimony about whether this was the first time J.A. had performed this act. Ten seconds after K.D. regained consciousness, J.A. ceased doing what he had been doing.

At the end of the day, we have to look at this and understand why there is an issue here. K.D. made a complaint to the police two months later and stated that while she had consented to the choking, she had not consented to the sexual activity that had occurred.

Chief Justice McLachlin and Justices Deschamps, Abella, Charron, Rothstein and Cromwell ruled, “The legislation requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.”

Sharing the background to the Supreme Court's decision and the story of the woman in Nova Scotia provides a great illustration of the challenges and the need for changes to the Criminal Code. With regard to the amendments proposed by the Senate, I support our party's position and the government's decision not to accept these amendments.

This is a very complex issue. The complexity can be seen from Statistics Canada figures from 2009-14. In that period of time, 93,501 sexual assault incidents were reported to the police. Charges were laid in 43% of those, or 40,490 incidents; 49% or 19,806 incidents went to court, and 15,804 cases were completed in court, of which 55% or 8,742 resulted in guilty decisions. Of those, the number of adult cases sentenced to custody was 3,846, or 56%.

I want to look at the first number, the gross number, and the fact that over 93,000 sexual assaults occurred from 2009-15. Many of us would say that is extraordinary. If we think of the population of Canada and the fact that almost 100,000 Canadians have been sexually assaulted in that five-year period, we would be in total awe.

Sexual assault is a problem here in Canada. It is a very complex problem, and there are many key factors that must be assessed. One of the most critical ones, I believe, is consent. According to Planned Parenthood, sexual consent is an agreement to participate in a sexual activity. It states:

Consent is never implied by things like your past behavior, what you wear, or where you go. Sexual consent is always clearly communicated—there should be no question or mystery. Silence is not consent. And it's not just important the first time you're with someone. Couples who've had sex before or even ones who've been together for a long time also need to consent before sex—every time.

This past summer, I had the opportunity to listen to members of the community at the 519 Centre in Toronto, where I spoke to Glen Canning, the father of Rehtaeh Parsons. Although Rehtaeh is no longer with us, Glen advocates for education focusing on sexual consent. In a blog, he writes:

My years without Rehtaeh taught me that kids need to know consent. In the past three years l've learned that the most powerful tool to combat violence against women could very well be the minds of young men. l've learned that if we don't fill those minds with examples of virtue, empathy, affection, tolerance, trust, kindness, courage, and bravery, then those minds will end up being filled with ignorance, racism, sexism, hate, and anger. What would have happened to Rehtaeh Parsons if just one of the boys with her that night was informed about consent and his role in preventing sexual violence?

In summary, I am very glad that we are moving forward and reviewing the information in the Criminal Code, specifically when it comes to consent. This is an area where, as I indicated, a look at the statistics shows we can do better and we must do better. We cannot just be virtue signalling. We cannot just talk about what we should not do, yet do it in the privacy of our homes, or not own up to things we did years ago.

At the same time, as other members have indicated, a lot of the information and a lot of the things we are studying are in conflict with what we see in Bill C-75, specifically with regard to the sexual exploitation of women.

It is wonderful to go ahead with consent, expanding it and having a better understanding to make sure more people are convicted of sexual assault when necessary. However, when it comes to Bill C-75, a slap on the wrist is not enough.

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

Mr. Speaker, it is a privilege to stand in the House to debate Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act.

I would first like to highlight the fact that this is an omnibus bill, containing many changes to a variety of different matters. Similar to many other Liberal promises we have heard in the House, or before the last election, the introduction of this bill breaks another promise not to table legislation of this nature. In debate in the lead-up to the election we had that commitment, just like we had a commitment on the deficit. However, it is another broken promise.

Ironically, Bill C-51 was introduced on June 5, 2017, just after the government House leader called for major reforms that, among other things, aimed to limit a government's ability to introduce omnibus bills. Just a couple of days later, it introduced an omnibus bill.

Second, it would remove a number of sections of the Criminal Code that no longer have any particular relevance. This includes section 365, some of which deals with witchcraft and sorcery; and section 71, related to duelling in the streets. Much of this we can support. Other aspects may be a little more problematic.

It also originally proposed to repeal section 176 of the Criminal Code, which makes it a crime to unlawfully obstruct, threaten or harm a religious official before, during or after he or she performs a religious service. It also makes interrupting or disturbing a religious service a crime. We have voiced our concerns in regard to that in the House many times.

As a number of my colleagues, including the former minister of justice and attorney general of Canada, pointed out during debate on the bill, the Conservatives were the first to identify this grave mistake of the Liberal Justice Minister and to draw the attention of Canadians to this flagrant attack on their freedom to worship without fear in their own way.

I will be splitting my time, Mr. Speaker, with the member for Elgin—Middlesex—London.

Our highlighting of Bill C-51 and this offensive Criminal Code amendment resulted in significant backlash from tens of thousands of Canadians who signed petitions urging the Liberals to back down on minimizing an obstruction or disturbance of a worship service. The government finally relented, and as such, Liberal members of the justice committee were instructed to introduce an amendment that effectively stopped the repeal of section 176.

That is one of those times where Parliament works, when the Conservatives can bring forward a concern like that. Unfortunately, sometimes it takes the outcry of tens of thousands of Canadians speaking up about what the Liberals were trying to do to our worship services of all different faiths.

While many of my constituents of Battle River—Crowfoot are thankful the Liberals finally saw the light, I still remain stunned by the fact they even contemplated the removal of section 176 of the Criminal Code, let alone attempting to do it.

After steady but relatively small increases since 2014, in 2017, hate crimes in Canada rose sharply. We can see that on the front pages of most papers. It is up 47% over the previous year. For the year, police reported 2,073 hate crimes, 664 more than in 2016. Higher numbers were seen across most types of hate crimes, with incidents targeting Muslim, Jewish and black populations, as well as Christians. These increases were largely in Ontario and Quebec.

Barbara Perry, an expert on hate crimes and professor of criminology at the University of Ontario Institute of Technology, was quoted in The Globe and Mail, on November 29, saying, “This is staggering. You don’t see this kind of increase in any sort of crime data”, adding that “the numbers should be a wake-up call for provincial and federal leaders.” She went on to say, “It’s an assault on our core values of inclusion and equity.”

In the same article, Leila Nasr, a spokesman for the National Council of Canadian Muslims, said, “We’re devastated to see the numbers go up yet again.”

As revealed in the Globe and Mail article:

Hate crimes also rose across all categories of religion, with those targeting the Jewish population accounting for 18 per cent of all hate crimes in the country. The surge echos B’nai Brith Canada’s tracking of anti-Semitic incidents, which saw a record last year.

Chief executive Michael Mostyn, in a release that recommended an action plan to counter online hate, as well as enhanced training for police officers, said, “We need real and effective measures to extinguish this rise in hatred”.

The Canadian Race Relations Foundation called the numbers:

....a warning against complacency and....a stark reminder that hate crimes are an attack not only on individuals and their communities but on the very fabric of our society.

As I pointed out, those remarks were issued or reported on just a week ago today regarding the 2017 hate crime statistics, the year in which the Liberals introduced the bill. Again, whatever motivated them to repeal section 176 Criminal Code?

What has motivated the government to retreat on the one hand, while still sending the wrong message that the disruption of religious service is not a serious offence? That is exactly what they have done by taking it out of this legislation and moving it into Bill C-75. Currently, it is a solely indictable offence which, as we know, are for the most serious offences. However, in Bill C-75, by hybridizing it, this offence could be prosecuted as a summary conviction offence which is reserved for less serious offences.

It is important to note that the maximum sentence under section 176, if prosecuted as an indictable offence, is two years. Making it a hybrid offence, the maximum sentence as a summary conviction offence would be reduced by only one day. It would fall into the two years less a day, with the indictable offence being much more than that. Therefore, why the change?

Again, we really have to question why, at a time when hate crimes against religious communities across Canada are significantly increasing, are the Liberals trying to downgrade the seriousness of these offences?

Section 176 is not unconstitutional, has never been challenged in court and is not obsolete. Furthermore, a number of individuals have been successfully prosecuted under section 176. It is the only section of the Criminal Code that expressly protects the rights and freedoms of Canadians to practice their religion without fear or intimidation, a freedom that is a fundamental freedom guaranteed under the Charter of Rights and Freedoms.

One can only surmise that despite the outcry from all across the country and them retreating on repealing this offence, the Liberals really do not believe it is a serious crime, just like they do not believe impaired driving causing bodily harm is a serious offence. That is what they have changed again in Bill C-75.

This past Tuesday, the Minister of Justice and the newly appointed Minister of Border Security and Organized Crime Reduction took to the air waves to remind Canadians that in two weeks they would be subject to mandatory alcohol screening if they were stopped by the police, something I support, as I want the horrific loss of life and injury due to impaired driving stopped.

While one minister bragged this was a game charger and another defended the change because impaired driving remained the leading cause of criminal death in Canada, both were being disingenuous in that they failed to reveal the fact they had downgraded the offence of impaired driving causing bodily harm. Under Bill C-75, this offence, which is currently solely an indictable offence, becomes a hybrid offence and as such, if proceeded summarily, may result in two years less a day of prison time or worse, a monetary fine.

I would like to state my support for the government motion to reject a Senate amendment to the bill before us today, Bill C-51. Bill C-51 clarifies that consent can never occur when an individual is unconscious, which is consistent with the J.A. decision. The Senate amendment would only lead to added complexity and confusion over what evidence would be relevant to determine consent in sexual assault cases. Instead of adding certainty to the law, it would lead to further litigation.

We cannot afford further delays in our courts due to prolonged cases. Sexual assault victims should be supported, not subjected to undue delays, so for that we commend those measures within Bill C-51.

I thank you, Mr. Speaker, for allowing me a bit of opportunity to veer off and go to some of the things that were pulled out of this bill. I recognize that.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Mr. Speaker, I appreciate the opportunity to join this portion of the debate and speak 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. Before turning to the specific issue of the amendments passed in the other place, I want to take a few minutes to remind all colleagues about what this important piece of legislation seeks to address and why it is critically important that we support its swift passage into law.

As all members will recall, Bill C-51 was introduced by the Minister of Justice on June 6, 2017. Bill C-51 was not the first criminal law reform bill introduced by the minister that seeks to make our criminal justice and laws fairer, clearer, more relevant and more accessible.

Since its introduction, the minister has introduced other critically important legislation that continues to seek those objectives. Considering also Bill C-75, it is clear that the minister has thought long and hard about the challenges facing our system and has proposed concrete measures to address them. I strongly support the minister's legislative proposals, and I understand that many of her provincial and territorial counterparts, legal academics and criminal justice system actors also support these measures.

Colleagues will recall that Bill C-51 would amend the Criminal Code in three broad ways. First, it proposes amendments that would remove unconstitutional laws. This reflects our government's unwavering commitment to the Charter of Rights and Freedoms. The risks of leaving unconstitutional laws on our books are grave, and in a constitutional democracy like Canada that is grounded in the rule of law, it is important we take the steps necessary to prevent those risks from manifesting, as unfortunately occurred in the 2016 Alberta trial of Travis Vader.

Second, Bill C-51 proposes to remove laws from our Criminal Code that are vestiges of a bygone era and are no longer relevant in modern Canadian society, as well as laws that are redundant and capture conduct addressed by other offences of general application. We should not underestimate the importance of amendments of this nature. Criminal law is a reflection of our values. Offences like blasphemous libel, which targeted criticism against the king and Christianity, have been criticized as contrary to free expression, and have been used by certain regimes to repress free speech. Canada should not be held up as an example by repressive governments that seek to justify their own blasphemy offences as a means of curtailing criticism by pointing to the example of Canada's Criminal Code. I strongly support these amendments.

Turning to the other critically important aspect of Bill C-51, the proposed changes to modernize and clarify Canada's sexual assault laws, it is in this area that amendments were passed by the Senate that necessitate our looking at Bill C-51 again.

As introduced, Bill C-51 brings forward important and welcome changes to our sexual assault laws. One area where it does so is in respect of consent to sexual activity. First, Bill C-51 proposes to clarify the important legal principle confirmed by the Supreme Court of Canada in its 2011 decision in R v. J.A. that no consent is obtained where a person is unconscious. This amendment has been well received by many, but some stakeholders suggested that it should go further to codify another important principle from the J.A. decision, that consent must also be contemporaneous to the sexual activity in question. I recall this well during the Standing Committee on Justice and Human Rights' study, which amended Bill C-51 to address this very point.

During our committee's study of the bill, additional amendments were proposed in the area of consent to sexual activity. These amendments were, I believe, inspired by the submissions of the Women's Legal Education and Action Fund, LEAF. It suggested that Bill C-51 might extend beyond the scope of its original objective, and proposed amendments that would seek to define when a person is incapable of consenting to sexual activity due to impairment that falls short of unconsciousness, such as cases involving intoxication. To my knowledge, no defence lawyer, Crown prosecutor or victims' organization spoke specifically to this proposal.

As may be recalled, the amendment proposed before the justice committee on this point was defeated due to concerns that it could have had unintended and negative consequences. For instance, concerns were expressed that by focusing entirely on the subjective state of mind of the complainant, the courts might ignore other important objective evidence that might help to establish that the complainant was incapable of consenting.

When Bill C-51 went to the other place for consideration, the legal and constitutional affairs committee there heard from only a handful of witnesses. Nevertheless, much of the discussion at that committee again centred on the issue of consent to sexual activity. Much of the testimony provided was motivated by concerns about sexual assault involving intoxication and the need to have clarity in this area. To be sure, these are legitimate concerns, and I am not trying to minimize the importance of looking closely at this issue.

As a result of these concerns, an amendment was proposed at the Senate committee to again try to specify the circumstances under which a person is incapable of consenting for reasons of impairment that fall short of unconsciousness. After a vigorous debate, those amendments were not passed. Again, the reasons for this related to concerns about the unintended consequences. Nevertheless, when the bill was returned to the Senate at third reading, amendments were made, notwithstanding the calls for caution and concern about the practical implications.

I greatly appreciate and respect the spirit behind the proposed amendments. I agree that it is critically important that we consider changes to our sexual assault laws that would help clarify the law. On the other hand, because of the very sensitive and difficult nature of sexual assault, I believe it is imperative that we only pass laws when we are 100% certain they will not create more challenges for victims and for the accused.

Unfortunately, I am not 100% certain. I am deeply concerned that passing these amendments at this late stage, and without the benefit of greater consultation and consideration, would not provide the clarity that is assumed to result from them. I am concerned that this change could lead judges to ignore other important evidence respecting capacity to consent. I am concerned that these charges focus too squarely on intoxication and do not consider the impact on individuals with cognitive impairments.

For these reasons, I must respectfully oppose the amendments passed in the other place. In so doing, I encourage the government to look closely at the issues raised by these amendments in collaboration with key partners and stakeholders. I support the message to be sent to the other place.

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

Mr. Speaker, the member for Abitibi—Témiscamingue spoke at some length about cases involving consent by trickery as the basis upon which she supports the amendments brought forward by Senator Pate. I would be interested in her comments though, due to the position taken by the government that while Bill C-51 does include the word “unconscious”, paragraph (b) of the amendment also refers to consenting to the activity for any reason other than unconsciousness. Clearly, one could not consent if one was tricked in that situation.

What does the member say about that language and the concern that she has expressed?

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

Mr. Speaker, in my speech, I will focus on the two Senate amendments that, unfortunately, the government rejected. That is the motion before us now.

I think it is very important to point out that the Senate amendments to the bill were proposed by Senator Kim Pate.

Senator Pate was appointed through the independent selection process. She has been on the job for over a year. According to the government, the purpose of the process is to appoint distinguished senators, citizens who can make a unique contribution to the Senate.

In theory, it would seem that the Senate selection committee chose Senator Pate because she is a distinguished jurist whose opinion is highly respected.

Interestingly, the amendments she proposed are very similar to the NDP's amendments, and I think they carry considerable weight. The amendments are about sexual consent. The government bill refers to circumstances under which a person cannot give consent, such as unconsciousness and other reasons.

The Senate amendments refer to a person who is unable to understand the nature, circumstances, risks and consequences of the sexual activity in question, unable to understand that they have the choice to engage in the sexual activity in question or not, or unable to affirmatively express agreement to the sexual activity in question by words or by active conduct. When it comes to the ability to consent, I think that unconsciousness clearly falls under the third point.

I think that is very important, because one of the problems that victims are currently having with sexual consent is the difficulty of proving that they did not give consent in situations that fall in somewhat of a grey area. I want to speak specifically to that.

Often, when we talk about sexual consent, we are talking about voluntary consent. The problem is that consent may be vitiated. I will give a few examples that will help members understand.

A person can freely consent to a sexual activity without understanding the risks or circumstances that are involved. The first case that I want to talk about is the Hutchinson case, which is very important in understanding what follows.

This man poked holes in the condom he was going to use with his partner so that she would get pregnant. If I remember correctly, he was worried she would leave him, and he wanted to get her pregnant so that she would stay with him. Unfortunately, the partner did get pregnant, and she ended up finding out the truth about the pierced condoms. She pressed charges against him, and the case went all the way to the Supreme Court.

The Supreme Court had to study this case specifically to determine whether there had been a problem. Ultimately, the Supreme Court ruled that the consent had been vitiated because, in this specific case, there was a risk of bodily harm, and harm did actually result because she got pregnant. The consent had therefore been vitiated, so this constituted sexual assault.

The complainant had to take her case all the way to the Supreme Court to prove that she had been sexually assaulted. This was not a case where the justice system worked swiftly. If the concept of sexual consent had been clarified from the outset, including the ability to understand the risks of a sexual activity, it could have been immediately established that the complainant was unable to understand the risks of the sexual activity because her partner had not informed her that the condom was pierced. She was therefore unable to properly assess the risk that a pregnancy would result from the sexual activity.

Unfortunately, in this ruling, the problem is that we are really talking about the risk associated with pregnancy as major bodily harm.

However, if someone were to remove the condom without telling his partner, but she was unable to become pregnant because of sterility or menopause, the jurisprudence would not necessarily apply. That is according to experts who refer to Hutchinson to determine whether stealthing—removing a condom without the partner's knowledge—is a form of assault.

In cases involving women who can become pregnant, experts believe that the precedent set in Hutchinson may apply because there is a risk of significant bodily harm. However, in cases involving women who cannot become pregnant because of menopause or for some other reason, and if the partner does not have a sexually transmitted infection, there is no clear risk of sexual harm, and the jurisprudence may not apply.

The same is true of homosexual relationships unless the partner is, say, HIV positive. In such cases, it is possible to prove that a person was exposed to a risk of bodily harm when the partner removed the condom without the person's knowledge. In every other case, the jurisprudence does not provide grounds for proving the existence of risk, and it is not clear there would be grounds for sexual assault.

When people report cases of stealthing to the police, they are not taken seriously. The police tell them that they have not been sexually assaulted and so they are sorry but there is nothing they can do, despite the enormous stress this puts on victims.

According to victims' testimonies, this causes a lot of stress about potentially being exposed to disease. Victims may also have to take emergency contraceptives because they do not want to get pregnant. There is also the stress of waiting for the test results to come back. Stealthing can also affect relationships. Victims may have a hard time trusting others after something like this happens.

One victim recounted the following story in an article in the Journal de Montréal. She said, “After a night of drinking, I had sex with a guy I was seeing. A few days later, while doing some cleaning, I found the condom that he had supposedly used behind my bed. It was still in the torn wrapper. I realized that he had just pretended to put it on and that I had not noticed. I had to get tested for STIs.”

When we read these stories, we realize that this could be a form of assault because there was vitiated consent. When someone consents to having protected sex, it is because that person has assessed the risk and decided that she is willing to have protected sex but not unprotected sex because of the risk of disease or pregnancy. From a public health perspective, there is currently an epidemic of sexually transmitted infections, and yet there have been delays in bringing the legislation into line with the jurisprudence for these kinds of cases.

If it were clearly illegal and criminal to engage in such an activity because it vitiates consent, I think that much more immediate action could be taken. In the few cases where a victim actually has the courage to report what happened, the police would not have to tell her that what she experienced was not a sexual assault, despite the risk of bodily harm.

There is currently a problem with sexual consent as there are grey areas where consent was vitiated. Bill C-51 does not address all the issues of vitiated sexual consent. Yes, the person voluntarily consents to a sexual activity, but does so under certain conditions. If these conditions are intentionally disregarded, the consent is vitiated and this could constitute an assault. If the justice system is incapable of recognizing that fact, it is turning its back on these victims.

The Senate amendment directly addressed that case. It could have settled the issue once and for all. The judges could have relied on a new, much clearer law and such cases would not have to go all the way to the Supreme Court to be recognized as assault. I seriously believe that the government is making a mistake with its motion and that the Senate amendments, which resemble those moved by the NDP, should have been adopted.

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

Madam Speaker, I rise to speak to Bill C-51, a massive omnibus bill. Perhaps it is not surprising that when we are talking about a massive omnibus bill, there are some positive aspects in it and other aspects with which I and my colleagues on this side of the House have some concerns.

One of the positives of Bill C-51 is that it seeks to remove sections of the Criminal Code that have been found to be unconstitutional by appellate courts. This is a welcomed effort to help clean up the Criminal Code. Likewise, it seeks to remove sections of the Criminal Code that are obsolete or redundant, which again is a welcome effort to clean up the Criminal Code.

As I alluded to in the question that I posed to the minister a few moments ago, while the government is moving forward with the removal of obsolete sections and sections of the Criminal Code that have been found unconstitutional by appellate courts, it is disappointing that the government has still failed to move forward with the removal of sections of the Criminal Code that have been found unconstitutional by the Supreme Court.

The minister is quite right that Bill C-75 does include the removal of those unconstitutional sections. However, as I pointed out to the minister, it was all the way back in March 2017 that the government introduced Bill C-39.

Bill C-39 is a very straightforward bill. It is not controversial. There is support on all sides of the House for the passage of Bill C-39, and yet for whatever reason, after the minister introduced the bill on March 8, 2017, it remains stuck at first reading. It is stuck at first reading with really no explanation. This is an issue that I have spoken to on a number of occasions because it really hits home in the community of St. Albert which I am very fortunate to represent.

When we talk about unconstitutional sections of the Criminal Code, zombie sections, and their removal from the Criminal Code, perhaps it sounds a little abstract and academic. However, the consequences of failing to keep the Criminal Code up to date can be very serious.

We saw that in the case of Travis Vader, who was charged and convicted of two counts of second-degree murder of Lyle and Marie McCann, an elderly couple from St. Albert. They were murdered in 2010. It was a very complicated case. The family waited a number of years for justice to arrive. Just at the moment they thought justice had arrived, they found out that, in fact, it had not because the trial judge applied a section of the Criminal Code that is inoperative as the basis for convicting Travis Vader of two counts of second-degree murder. I am referring to section 230 of the Criminal Code, a section that had been found to be unconstitutional going back to 1990, and yet there it was in the Criminal Code.

That prompted the justice committee, on which I serve as a member, to write a letter to the minister calling on her to introduce legislation to repeal these unconstitutional sections. It was a letter that was sent by the chair of the committee, the hon. member for Mount Royal, all the way back in October 2016.

Following that, I stood with the McCann family in December 2016, when we had a press conference in St. Albert to urge the minister to move forward with legislation. Again, to the minister's credit, she did move forward in a relatively quick fashion because the bill was introduced, as I mentioned, on March 8, 2017. Then nothing happened. It stalled.

I have been in touch with the McCann family. They just cannot understand why, on something as simple as removing unconstitutional sections of the Criminal Code, sections that are of no force or effect yet remain there in black and white purporting on their face to represent the law, remain in the Criminal Code.

The minister has not been able to explain why the government could not pass Bill C-39, why that bill is stuck at first reading, why it needed to be copied and pasted into Bill C-75, an omnibus bill. Bill C-75 is a massive bill which, frankly, is controversial in many respects. It saw a number of amendments at the justice committee and is, undoubtedly, going to receive a whole lot of scrutiny when it goes to the Senate. It will likely be months and months and months before the Senate is able to address Bill C-75. Meanwhile, those unconstitutional sections of the Criminal Code are going to be there.

While the Vader case is one case, it is not the only case that a section of the Criminal Code, an inoperative section, has been applied with real and significant consequences to the administration of justice. There was a case in British Columbia back in 2005 in which the trial judge in a murder trial left a copy of a section of the Criminal Code that was inoperative with the jurors. On that basis, the conviction of the accused was appealed. The British Columbia Court of Appeal ultimately upheld the conviction but only because of the fact that the trial judge's instructions to the jury were deemed impeccable by the Court of Appeal.

That is another case, so it is not just the McCann case. We have seen other cases, including the case in British Columbia.

To say that we will just get around to this whenever is not an excuse. It opens the door to another Vader situation, and if that happens, the government will be to blame. It certainly was not to blame for what happened in the Vader case but once that became apparent about the serious consequences that can come through inaction, the fact that it has been now two years, I think, just does not hold water and there really is no excuse. However, it does speak more broadly to the fact that the government, on the big things and the small things, just cannot get it done time and time again.

Another aspect of Bill C-51 when we are talking about inoperative sections of the Criminal Code was the unfortunate decision by the government initially to include section 176 of the Criminal Code among the sections that the government deemed to be obsolete. Section 176 is hardly redundant. It is hardly obsolete. It certainly is not unconstitutional.

Indeed, section 176 is the only section of the Criminal Code to protect clergy from having their services disrupted, something that is very serious and goes to the heart of religious freedom. The government turned a blind eye, the Conservatives called them on it and, as a result, tens of thousands of Canadians spoke out, telling the government that it was wrong.

To the government's credit, it backed down at the justice committee a year ago and agreed to remove the repeal of section 176, and rightfully so. However, not long after backing down on the removal of section 176, the government, in Bill C-75, hybridized section 176, so that instead of its being treated as a solely indictable offence, it would potentially be treated as a summary conviction offence.

While this specific change does not have a significant impact on the maximum sentence, unlike some of the other offences the government is hybridizing, it sends a message, and I would submit that it sends exactly the wrong message. It sends the message that disrupting a religious service, infringing on the freedom of religion of Canadians, not just any freedom but a fundamental freedom in our Charter of Rights and Freedoms, is not that serious. That is just wrong and why Conservatives have opposed it and stood up in fighting Bill C-75.

A lot of Bill C-51 relates to changes to sexual assault laws in Canada. As I indicated when I rose to ask the minister a question, many aspects of this bill include welcome changes to the Criminal Code with respect to sexual assault laws. Among the positives in Bill C-51 is that it would codify the Ewanchuk decision. That means it would make it absolutely clear that the defence of mistaken belief on the basis of a purported misapprehension or misunderstanding of the law cannot be advanced. It is a positive to have clarity on that and to have the Ewanchuk decision codified.

Another positive change the government is making with respect to sexual assault provisions is the codification of the J.A. decision. The J.A. decision makes clear that in no circumstances can a complainant be deemed to be giving their consent while unconscious. By way of background, in J.A., the accused said that no sexual assault took place on the basis that the unconscious complainant had consented to both being made unconscious and the sexual activity. That argument was successful before the Ontario Court of Appeal.

Fortunately, the Supreme Court overturned the decision of the Ontario Court of Appeal, holding that for there to be consent, that consent must at all times be contemporaneous; that consent must occur at all times at all stages of the sexual activity. Therefore, Bill C-51 would amend section 273 of the Criminal Code, which contains a list of non-exhaustive factors when consent is deemed not to have occurred. More particularly, Bill C-51 would amend that section to specifically include the word “unconscious” to make it crystal clear that in no circumstances will consent be deemed when the complainant is unconscious.

As the minister went into some detail about in her speech, there were some concerns raised by a number of witnesses, both before the justice committee when we heard from them about a year ago, as well as from witnesses who appeared before the Senate legal and constitutional affairs committee. Essentially, their argument was that codifying R. v. J.A. really would not do anything, that the whole issue of consciousness has never really been an issue, and that prior to R. v. J.A. the courts were never really finding there was consent when complainants were unconscious. In that regard, the concern was that by adding the word “unconscious”, an unintended bright line would be established whereby arguments would be put forward that consciousness or lack of consciousness would be a bright line in determining the issue of consent. That was the argument.

That was part of the reason why Senator Pate put forward her amendments, her concern being that there could be some added confusion in those cases where the person was not unconscious, but, for example, highly intoxicated. Unfortunately, while the Senate amendments may have been well intentioned, they would simply cause more problems and solve a problem that really does not exist. They would establish untested factors, which would be litigated, dealing exclusively with the mental state of the complainant. We know from some of the decisions, including the Al-Rawi decision, that it was not the mental state of the complainant that resulted in the acquittal of the accused, but rather the failure of the trial judge to consider some of the other evidence. Therefore, again, the amendments are problematic.

In terms of the language in Bill C-51, it is sufficiently clear, because it speaks of unconsciousness, but then it speaks to all other circumstances outside of that, so the language is broad. On that basis, I am not convinced that it would create the bright line that was said to be a concern by Senator Pate and by some of the other witnesses who appeared before the justice committee. As for whether or not it should be codified, I do think it is helpful. It does provide some additional clarity, and so on that basis I do support that aspect of Bill C-51.

Another area where I agree with the government is in respect to the applicability of the twin myths under section 276. Section 276 of the Criminal Code prohibits using evidence of a complainant's sexual activity for the purpose of advancing two discriminatory myths, namely that the sexual activity of the complainant makes the complainant less believable or most likely to consent. What Bill C-51 clarifies is that in no circumstances may evidence be tendered for the purpose of advancing those twin myths. That is a step in the right direction.

However, one of the areas I do have some questions about with respect to section 276 is an amendment proposed in the bill related to the definition of sexual activity. In that regard, Bill C-51 seeks to amend sexual activity to include “any communication made for a sexual purpose or whose content is of a sexual nature.” There is some concern that the definition may be overly broad. It is understandable why in this digital age, for the purpose of section 276, it makes sense to include communications in the form of text messages with photos or videos, etc. However, there was some concern expressed by the witnesses that it would be broad enough to encompass communications that were immediately before or after the alleged assault, which could be highly relevant in properly determining the case. Communications that might provide some context as to what in fact took place might no longer be admissible as a result of the wording of that section. Therefore, while I support the objective of the section, and the intent of the amendment is a good one, I do have some concerns about its breadth and how it might impact the types of cases I referenced.

On the whole, Bill C-51 is a good bill, but my biggest concern is with respect to the defence disclosure requirements. The defence disclosure requirements require the defence to bring forward an application in order to admit any record relating to the complainant. That application must be brought at least 60 days before trial. What is wrong with that? There are a number of problems I see with it. First, the definition is extremely broad. The wording is “no record relating to the complainant”. To be clear about what that means and what we are talking about, it is not about a record of the complainant involving their sexual activity. That is captured in section 276 of the Criminal Code, relating to the twin myths I just spoke of.

We are not talking about records for which there would be a reasonable expectation of privacy, such as health, therapeutic or educational records involving the complainant. They are already addressed in section 278.1 of the Criminal Code. What we are talking about is any record relating to the complainant. What type of record might that encompass? It could encompass just about anything, regardless of whether there was any connection to a reasonable privacy interest on the part of a complainant. We are talking about joint records. We are talking about Crown records. We are talking about records that might have been obtained by way of a third party application. So broad is the wording of this amendment, it could arguably relate to a record of the accused to the degree that the record was a basis upon which to cross-examine a complainant and therefore would relate to the complainant.

Why is that a problem when we are talking about all these records? We should just think about that for a minute. Let us think about it from a practical standpoint. Put aside issues of trial fairness. Put aside issues of the presumption of innocence. Think about it from a practical standpoint, the mechanics of how this is going to work. From that standpoint, there are very serious concerns.

If we are talking about any records, in most cases we could be talking about thousands of records the defence counsel would have to comb through and bring an application for, and a court would have to go through each record to determine its admissibility, not, by the way, on the basis of relevance and materiality but on the basis of eight factors provided for in Bill C-51, eight factors that have not been tested and have obviously not, to date, been litigated, because the bill has not been passed.

That would create a lot of uncertainty. It would create a lot of new litigation, and it would create the potential for real delay in our already backlogged courts. That would be an issue at the best of times, but it would particularly be an issue in light of the Jordan decision, where we have cases that are being thrown out due to delay, yet here is something that is likely to have a very significant impact on adding to delays. That is just if the defence counsel brings an application 60 days before the trial.

Again, thinking about how this might play out, there might be a record that does not seem to be that relevant, that does not seem to really assist the defence or relate to needing to be tendered as evidence, but an issue might arise at trial, and suddenly that record that did not seem very significant becomes extremely significant. Then what would we have? We would have a mid-trial application, with the possibility of a mid-trial adjournment, contributing to even more delay. That would slow things down. It would create delay, but for what purpose, what objective?

There are some who say that it would be consistent with the Mills decision of the Supreme Court in that this would guard against fishing expeditions on the part of an accused against a complainant, except for the fact that we are talking about records already in the control and possession of the accused. Therefore, there would be no fishing expedition to be had, because they would already be in the control of the accused. That argument that has been put forward does not hold a lot of water.

Another argument put forward is that it would protect the privacy of a complainant. A great deal of sensitivity is required to do what is possible to protect the privacy of complainants. I wholeheartedly agree with that. There is no question that victims are victimized when they go through the assault and can be victimized again as they go through the trial and the court process. There is no question that efforts need to be made to protect victims. However, again, we are talking about any record, regardless of whether the victim had a reasonable privacy interest and regardless of the nature of the document. As long as it related to the complainant in some way, one would need to go through this process. To the degree that it would protect complainants and the privacy of complainants, it would add a lot more than that due to the very broad wording of that section. That is a concern.

While it seems to go a lot further than necessary to protect a complainant, it would potentially have very significant consequences for the ability of an accused person to advance a defence, and ultimately, for the court to fulfill its role as a proof finder. It would significantly impact upon the presumption of innocence. It would significantly impact upon an accused person's right to make full answer and defence. When we speak about the right to make full answer and defence and how important it is, I cite the Supreme Court in R. v. La, wherein the court stated, at paragraph 43:

The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted.

How would this provision potentially impact the ability of an accused to make full answer and defence? In one significant way, it would impede the ability of an accused person to cross-examine a complainant. When we talk about cross-examination, I quote the Supreme Court again on the important role of proper, thorough cross-examination in getting to the truth. The Supreme Court said, in the Lyttle decision, that “without significant and unwarranted restraint” it is “an indispensable ally in the search for the truth.”

Cross-examination is an important tool to guard against wrongful convictions. One might ask how this disclosure would impact upon the ability of an accused to make a full answer and defence and undertake a thorough cross-examination of a complainant. It would in one very simple way. It would create a positive disclosure requirement ahead of a trial. This bill would mark the first time in the Criminal Code that there would be a disclosure requirement for an accused person to provide to the Crown in advance of a trial, aside from a handful of narrow exceptions that have been well accepted and are not in the least bit controversial. The bill would require not only that evidence be disclosed to the Crown before a trial but that the evidence be disclosed to a complainant. Not only that, under Bill C-51, a complainant would have the right to counsel at that application. Therefore, instead of two parties at the application, the Crown and the defence, there would now be three parties, the Crown, the defence and the complainant.

Let us think about what that would mean with respect to the trial. The defence would have records in its control. It would now be tendering them and having to argue why they were relevant and should be admitted. That would provide a whole lot of insight into potential lines of cross-examination and the strategy of the defence. That could have a huge impact when it came to trial.

There is no question that the vast majority of complainants are telling the truth, but not all complainants are telling the truth. I want to emphasize again that the vast majority are, but not every single complainant is. In those rare cases when a complainant was not telling the truth, this positive disclosure requirement would open the door to tipping off someone who was not telling the truth before it got to trial to understand the defence strategy and the potential lines of cross-examination. It would certainly give someone who was not telling the truth a huge advantage going into the trial. The person could change his or her story or address perceived shortcomings in the case against the accused.

It gets even more complicated than that because of what I referred to with respect to who the parties to the application would be, because it would not just be the Crown and the defence. It would also be the complainant's lawyer. The complainant would have the right to be represented through his or her lawyer.

However, if it was, for example, just the Crown that was a party to the application, and we did have a situation where a complainant was maybe not telling the whole truth on issues around preparation leading up to that application, those questions could be asked at the trial of the complainant, but because the complainant would be represented by counsel, suddenly those questions become subject to solicitor-client privilege. Again, it is another impediment to asking questions, to cross-examining a complainant.

Make no mistake, I fully support every step that is necessary to protect complainants, having regard for the sensitivity of sexual assault and the profound toll it can have on victims. However, the issue in this particular instance is that we are talking about something that is so broad, so unwieldy, that while the intention may have been a good one, it misses the mark when it comes to fully protecting complainants all the while doing much to undermine the ability of an accused person to make full answer and defence.

When I spoke previously on Bill C-51, I quoted Madam Justice Molloy of the Ontario Superior Court, which I think bears reading into the record again. Madam Justice Molloy, in the Nyznik decision in acquitting three individuals of sexual assault, stated that:

Although the slogan ‘Believe the victim’ has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our Constitution and the values underlying our free and democratic society.

Bill C-51, with respect to the defence disclosure requirements, does not strike the right balance of protecting the victim while guarding against the potential for wrongful convictions. Therefore, I flag that issue as a serious concern that I have. However, on the whole, there are positive aspects to the bill that we are happy to support.

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

Madam Speaker, it is positive that Bill C-51 seeks to remove redundant and obsolete sections of the Criminal Code. What is unfortunate is that the government still has not been able to move forward with the removal of the so-called zombie laws, the sections of the Criminal Code that have been deemed unconstitutional by the Supreme Court.

The minister mentioned Bill C-75, which includes the removal of those provisions. However, the minister neglected to note that Bill C-39 was introduced all the way back in March 2017, which would have removed those sections. Why did the government not pass Bill C-39, which could have been passed unanimously in this House almost two years ago?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Madam Speaker, this gives me an opportunity to acknowledge the parliamentary secretary's important work on advancing our justice legislation. His questions give me the opportunity to highlight broadly what our government continues to do with respect to addressing sexual assault and gender-based violence.

We have invested significant dollars in budget 2018 to combat gender-based violence, including sexual assault. We have provided $25 million over five years for legal aid for victims of workplace sexual harassment. We and the Minister of Status of Women are embarking on a national strategy to address gender-based violence and to support judicial education and training, among other initiatives, in the Department of Justice, such as the victims fund. We continue to work with my counterparts in the provinces and territories to continue to have a fulsome response to gender-based violence.

In terms of our legislative agenda on law reform, there is a direct connection between Bill C-51 and Bill C-75, which is the criminal justice reform bill that addresses efficiencies and effectiveness, all of which are intended to ensure that we are protecting and supporting victims of crime.

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

Madam Speaker, a number of aspects of Bill C-51 are positive. Among other things, Bill C-51 would clarify the scope of section 276 of the Criminal Code in respect to the twin myths. As the minister correctly pointed out, it would codify the Ewanchuk decision as well as the J.A. decision.

With respect to the Senate amendments, I wholeheartedly agree with the minister's comments and the reason for rejecting those amendments, however well-intentioned they are.

However, one area of concern that I do have is with respect to the defence disclosure requirements, whereby any record relating to the complainant would have to be disclosed and an application would have to be brought 60 days before trial. Again, we are not talking about records involving the sexual activity of a complainant, which are protected by section 276. We are not talking about therapeutic records, which are protected by subsection 278.1. We are talking about any record relating to the complainant. There was significant concern that this was overly broad and that the process would be unwieldily with respect to potentially thousands of records that would have to be litigated before a trial and how that might contribute to delay.

Could the hon. minister comment on that?

[Jody Wilson-Raybould, Liberal, Minister of Justice and Attorney General of Canada]

moved:

That a Message be sent to the Senate to acquaint Their Honours that the House respectfully disagrees with amendments 1 and 2 made by the Senate 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, as they are inconsistent with the Bill’s objective of codifying Supreme Court of Canada jurisprudence on a narrow aspect of the law on sexual assault and instead seek to legislate a different, much more complex legal issue, without the benefit of consistent guidance from appellate courts or a broad range of stakeholder perspectives.

Madam Speaker, I am pleased to stand to speak 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, and to respond to the amendments from the other place in this regard. It is a particular honour for me to stand to speak to the bill on white ribbon day, which, as we heard, commemorates the massacre that occurred in Montreal 29 years ago today.

As part of my mandate commitments I have been reviewing the criminal justice system with a view to ensuring that it is meeting its objectives and maintaining public safety. My review is also intended to ensure our criminal justice system is fair, relevant, efficient and accessible, that it meets the needs of its victims, respects an accused's right to a fair trial and is better able to respond to the causes and consequences of offending.

These are broad and important objectives, so our government has approached these tasks in phases. In Bill C-39, we removed passages and repealed provisions in the Criminal Code that had been ruled unconstitutional by the Supreme Court of Canada, so that the law as written reflected the law as applied.

In Bill C-46, we significantly modernized Canada's impaired driving laws in order to protect the health and safety of Canadians and to provide law enforcement with the resources they need to effectively detect and prosecute impaired driving.

In Bill C-75, we seek to tackle the delays that are encumbering our courts.

Today, with Bill C-51, we continue to build on our government's commitment to reviewing the criminal justice system and to making all aspects of the criminal law fairer, clearer and more accessible to Canadians. In particular, the bill seeks to modernize the Criminal Code by repealing or amending provisions that courts have found unconstitutional or that raise unavoidable charter risk.

The bill also aims to ensure that offences in the Criminal Code continue to reflect today's society and its values. To that end the bill removes a number of obsolete or redundant criminal offences that no longer have a place in our criminal law.

Further, the bill creates amendments to the Department of Justice Act. Pursuant to these amendments, the Minister of Justice would have a statutory duty for every government bill to table in Parliament a statement that sets out the bill's potential effects on the rights and freedoms guaranteed in the charter. For every one of the bills I have tabled, I have tabled charter statements. These amendments would provide greater openness and transparency about the effects of government legislation on charter rights.

Finally, the bill seeks to clarify and strengthen the law on sexual assault in order to prevent misapplication of the law and to help make the criminal justice system fairer and more compassionate toward complainants in sexual assault matters.

The importance of these reforms cannot be overstated, and I would like to recognize and acknowledge all those who have been subject to sexual assault and gender-based violence. Sexual assault is a serious problem in Canada. It affects communities across the country and across all social and economic barriers, and it remains a significant barrier to women's equality.

Addressing violence against women is an issue of the utmost importance to me and to our government as a whole. We remain deeply committed to ensuring that our criminal justice system is responsive to the needs of sexual assault victims. To that end, we have provided significant funding for judicial education relating to sexual assault law, so that judges are better educated on this crucial area of law.

We have also made millions of dollars available through the victims fund to enhance the criminal justice system's response to sexual violence. These resources support important work such as pilot projects in Ontario, Saskatchewan, Nova Scotia, and Newfoundland and Labrador to provide four free hours of independent legal advice to victims of sexual assault.

It is through efforts like these, as well as those contained in Bill C-51, that we are working to effect a culture shift in our criminal justice system and to foster an environment where sexual assault complainants feel empowered to come forward for justice and support.

We should be proud that Canadian laws around sexual assault are robust and comprehensive, even more so with the proposed steps set out in Bill C-51. However, we must also recognize that more work lies ahead, and we must continue to strive for further improvements. In short, we must continue to work to reduce the incidence of sexual assault in Canada and to ensure more victims feel encouraged to come forward and report their experiences to police.

To that end, Bill C-51 would make important changes to strengthen the law of sexual assault. These changes include creating a new regime governing the admissibility of evidence in the hands of an accused, where the evidence is a complainant's private record.

In addition to the strengthening the law of sexual assault, Bill C-51 would also clarify the law. It would do so by making clear that consent must be affirmatively expressed by words or actively expressed through conduct. This principle codifies the Supreme Court of Canada's 1999 Ewanchuk decision, and makes it explicit that there is no consent unless the complainant said “yes” through her words or her conduct. Passivity is not consent, and “no” does not mean “yes”.

Finally, as introduced, Bill C-51 proposes to clarify one aspect of the law pertaining to consent or capacity to consent to sexual activity by codifying the Supreme Court of Canada's 2011 decision in J.A. In J.A., the Supreme Court held that an unconscious person is not capable of providing consent to sexual activity. Therefore, the bill seeks to amend the Criminal Code to state explicitly that an unconscious person is incapable of consenting, but also to clarify that a person may be incapable of consenting for reasons other than unconsciousness.

To pause for a moment, I would like to express my sincere appreciation to the members of the other place for their very careful study of Bill C-51. While the other place supported most of the bill, it adopted amendments related to the determination of a complainant's incapacity to consent to sexual activity in the context of sexual assault.

By way of background, many stakeholders welcomed Bill C-51's proposed sexual assault reforms after its introduction. Some offered suggestions concerning the elaboration of the Criminal Code consent provisions to reflect J.A. In part, those witnesses argued that the J.A. decision stands for a broader proposition. They noted that the court held that our consent law requires ongoing conscious consent and that partners need to be capable of asking their partner to stop at any point.

In other words, they suggested that the bill should be amended to reflect an additional principle articulated by the Supreme Court in J.A. to the effect that consent must be contemporaneous with the sexual activity in question.

After hearing from a number of witnesses on the question, the Standing Committee on Justice and Human Rights agreed, and amended to clarify that consent must be present at the time the sexual activity in question takes place. Our government agreed with that point, and we were happy to see that the justice committee amended Bill C-51 at that time so it would codify this broader principle in J.A. Doing so was in keeping with the objectives of the bill, including to ensure that the criminal law is clear and reflects the law as applied.

However, some stakeholders offered additional suggestions concerning our proposed codification of the Supreme Court of Canada's decision in J.A. They suggested that the provision that would codify that no consent is obtained if a complainant is unconscious be entirely removed. While the House committee did not amend the legislation to this effect, the other place nonetheless proceeded to adopt amendments that would eliminate this provision.

In its stead, the other place proposed a list of factors to guide the court in determining when a complainant is incapable of consenting.

According to the proposed amendments, complainants are incapable of consenting if they are unable to: one, understand the nature, circumstances, risks and consequences of the sexual activity; two, understand they have the choice to engage in the sexual activity; or three, affirmatively express agreement to the sexual activity in words or active conduct.

I would like to be clear. I agree that courts could benefit from guidance in making determinations on a complainant's incapacity to consent when she or he is conscious. The proposed amendments underscore some very significant issues in the area of consent. I also agree that intoxication, short of unconsciousness, represents challenges in the adjudication of sexual assault cases.

For one, as Bill C-51 specifically recognizes, incapacity applies to a broad range of cases well beyond those in which intoxication is an issue. This is an important conversation that we must continue to have. It is for this reason that I plan to consult with a variety of stakeholders on this issue moving forward to determine whether further action is helpful with respect to our common goals and if so, how this might be effectively accomplished.

In taking the time we need to get this right, we recognize just how complex the law of consent is. There is no clear guidance from the Supreme Court or other appellate courts to which we can turn for an exhaustive definition of what incapacity means. In addition, because Bill C-51 proposes to legislate on a very narrow aspect of the law of consent, more detailed guidance and specific instructions on this further issue are needed from stakeholders, as well as those who would be impacted by the further changes in this area. Without this guidance, the risk of unintended consequences is very real.

Moreover, the amendments made in the other place on this issue, though very laudable in their aim, unfortunately do not assist courts in adjudicating incapacity cases. For one, the amendments focus on concerns that arise in cases where the complainant is conscious but intoxicated. As a result, our government has concerns about the potential impact of the amendments on the law governing incapacity to consent in other types of incapacity cases, including those where incapacity is due to a more stable state, such as individuals living with cognitive impairment.

I also wish to note a couple of points concerning the way the courts currently treat these issues.

First, appellate decisions show that a complainant's ability to understand that he or she has a choice to engage in sexual activity or not is determinative of incapacity. However, it is not clear from the existing case law whether the other elements proposed in the amendments are determinative of incapacity or merely factors to be taken into consideration, supported by circumstantial evidence in assessing capacity.

For example, in overturning the Al-Rawi trial decision earlier this year, the Nova Scotia Court of Appeal rejected incapacity to communicate as a determinative test for incapacity to consent. As a result, courts may well have difficulty interpreting the proposed provision.

Furthermore, the amendments' proposed factors focus solely on elements that are internal to the complainant and may lead some courts to overlook relevant circumstantial evidence in the determination of incapacity. Though the complainant's subjective state is important, there is a risk that the amendments will lead courts to overlook other evidence that bears on the complainant's capacity. This was also an error of the trial court in this case, as noted by the Nova Scotia Court of Appeal.

The amendments adopted in the other place would also prohibit drawing inferences about the complainant's capacity to consent to the sexual activity at issue from evidence of capacity to consent at the time of another sexual activity. These amendments simply restate a well-settled principle of law, which is already proposed for codification in Bill C-51. That principle is that consent must be contemporaneous with the sexual activity in question. This principle applies equally to capacity to consent. Each allegation of sexual assault must be considered on its own merits. The law is clear in this regard and the bill already proposes to codify it.

In short, the proposed changes are well-intentioned, but will not achieve their aim and, in fact, carry great risk of unintended consequences in what is a difficult yet critical area of law. Sexual assault law is too important to leave any room for error. If the definition of incapacity is to be provided, it is imperative we get it right.

If we are to alter this complex area of law in such a significant way, we must be informed by adequate analysis and debate in both chambers as well as by a broad range of stakeholder perspectives, including prosecutors from whom neither of the committees in this place or the other had the opportunity to hear. In addition, we need to consult with the defence bar, police associations and victims groups.

It is our obligation to ensure that the hundreds of sexual assault cases that are prosecuted every day in the country are not negatively affected by an amendment that has yet to be subject to full discussion and deliberation.

As I mentioned before, in order for these issues to receive the treatment they deserve and require, I will and have committed to study the issue of incapacity, with a view to striking the right balance on this important matter. I am grateful to the witnesses who appeared before the Senate committee for suggesting that this issue be the subject of further study. I look forward to consulting with them further as part of my future review.

Our government continues to work toward fostering an environment where survivors of sexual assault feel empowered to come forward and trust the system they turn to for justice and support. Consulting on and studying the issue of capacity to consent while conscious will form an integral part of that effort.

I am incredibly proud of our government's efforts to date within the area of sexual assault law. I am confident that our continued efforts will help to ensure that all victims are treated with compassion, dignity and the respect they deserve.

Bill C-51 is an important part of our work on this issue. It is also consistent with our broader efforts to ensure that our criminal law is responsible to the needs of all Canadians and that it reflects our values. Our government will continue to find ways to improve upon our criminal justice system so it keeps Canadians safe, respects victims, responds to the needs of vulnerable populations and addresses the underlying social causes of crime. I am proud of the role Bill C-51 will play in helping us to achieve these goals. I look forward to the bill's expeditious passage to ensure these important reforms are enacted without further delay.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you very much, Mr. Speaker. I appreciate that.

For his part, the Prime Minister has doled out taxpayer dollars for so-called de-radicalization programs for returning ISIS terrorists. In the meantime, he has told veterans they are asking for more than the government can give. Would it not be more appropriate to say that to returning ISIS terrorists instead of to the brave men and women who have defended our nation?

However, perhaps we should not be surprised. Indeed, after the Boston Marathon bombing, the now Prime Minister said of the terrorists responsible, “there is no question that this happened because of someone who feels completely excluded, someone who feels completely at war with innocence, at war with society.”

I believe it is this kind of foolish gentleness toward terrorists that caused the Liberals to propose weakening the penalties in Bill C-75. They spent months arguing for and defending the inclusion of that clause before finally backing down and supporting the Conservatives in removing it. It took months of pressure and hard work to make this one obvious change, but even with that change the bill remains deeply flawed.

Bill C-75 would still weaken the penalties to as little as a fine for many other serious crimes. Among those are serious sexual crimes, such as using the date rape drug, forced marriage, marriage under the age of 16, polygamy and acting as a pimp. I wonder how the Prime Minister can claim to be a feminist while simultaneously weakening the punishment for such terrible crimes.

In addition to the sexual crimes I mentioned, the Liberals are also weakening the punishment for corruption and fraud. A lighter penalty would be possible for those convicted of bribing municipal officials, insider trading, forging currency, using libel for extortion, fraud through the use of arson, or even illegally influencing political appointments.

Perhaps most shocking is the list of violent and gang-related crimes that would be eligible for a summary conviction: infanticide, hiding the body of a child, obstructing or assaulting an officiating clergyman, abduction of children under the ages of 16 and 14, conspiracy and participating in criminal gang activities.

While I know my time is nearly up, I would be remiss if I did not take the time to point out that this is the Liberals' second attempt to remove or amend section 176 of the Criminal Code after abandoning their changes to Bill C-51. Assault of officiants during a religious service is very serious and should remain an indictable offence, yet here the Liberals are breaking yet another promise despite the fact they committed to keeping full protections in place for religious officials.

There are many more serious crimes that we see a weakened response to. In fact, I find myself wondering if this is not the intent of the bill. The previous Conservative government passed the Victims Bill of Rights and this is the Liberals' response. Again and again, we see examples of the Liberals' obsession with making criminals lives easier.

As one final example, the Liberals recently introduced a plan to provide needles to prisoners who use drugs, despite a zero-tolerance policy on drugs in prisons. It would take a Liberal to square that circle. This ridiculous plan puts correctional officers in the line of danger, for no other reason than to assuage Liberal guilt. Jason Godin, president of the Union of Canadian Correctional Officers, said the following about this ridiculous idea: “It’s pretty obvious the policy changes the government is making are making it more dangerous for us, more dangerous for inmates and obviously more dangerous for the general public.”

Why does the government insist on placing the rights of criminals above the rights of victims, police, guards and of citizens overall? As I have said before, Canadians deserve better than a government that treats victims like criminals and criminals like family.

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, I am pleased to speak to Bill C-75, an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts. This omnibus bill is over 200 pages. It includes major reforms to our criminal justice system.

With a concerning level of rural crime in my riding, the safety of my constituents is a high priority for me. The safety of Canadians should be the number one priority of any government.

While there are some aspects of the bill that I agree will help to reduce delays in the court system, there are several problems associated with it with which I have concerns.

First, I want to talk about the bill itself. As I mentioned, this is a 204-page omnibus bill. I want to remind the Liberals that during the election, they promised they would never table omnibus bills, but here it is. However, 80 other promises have either been broken or have not even started.

This is still on the Liberal web page, which I looked it up the other day. It states that omnibus bills “prevent Parliament from properly reviewing and debating [the government's] proposals. We will change the House of Commons Standing Orders to bring an end to this undemocratic practice.” Yet here we are today discussing an omnibus bill.

It is a mixed bag that amends a total of 13 different acts in various ways. The bill needs to be split into more manageable portions so we can properly study it. What is more is that the government also has thrown in three bills that have already been tabled, Bill C-28, victim surcharge; Bill C-38, consecutive sentencing for human traffickers; and Bill C-39, repealing unconstitutional provisions. Perhaps if the government could manage its legislative agenda more effectively, it would not need to re-table its bills, push through omnibus bills or repeatedly force time allocation and limit debates.

The Liberals are failing to take criminal justice issues seriously. In March they tabled this bill the day before a two-week break period in our sitting schedule. Then they waited a half a year. Now they have returned it when there are only a few weeks left before our six-week break period. This does not give the image that justice is a high priority for the Liberal government.

The government's lack of judicial appointments has resulted in violent criminals walking away without a trial. As of November 2, 54 federal judicial vacancies remained. Appointing judges is an effective solution that is much faster than forcing an omnibus bill through Parliament. I remember in April when the minister talked about 54 more federal judges, yet here we are, almost the end of the year, and still no action.

I also want to talk about what is actually in the bill. Again, some parts of the bill I can support. For example, I agree with efforts to modernize and clarify interim release provisions and provide more onerous interim release requirements for offences involving violence against an intimate partner.

Modernizing and simplifying interim release provisions is an important step that will assist many rural communities across the country that do not have the resources to navigate lengthy procedures and paperwork. For that reason, I support this.

However, I wish the stricter release requirements were not limited to offences involving domestic abuse. With an alarming rate of rural crime in my riding and across Canada, which is often carried out by repeat offenders, we need to make it more difficult for all violent criminals to be released. Otherwise, we have a revolving door where they commit a crime, get arrested, get released and start all over again.

I was at a rural crime seminar in the city of Red Deer last Friday. A former police officer from Calgary city police told us about one of the cases he had worked on recently. An Alberta offender was charged with 130 offences, ranging from break and enter to car theft, equipment theft and possession of stolen property.

At the last sitting in Alberta the judge released him. Out the door he went. Where did he go? He took off to B.C. Now we understand they are looking for him in British Columbia, which has 100 similar outstanding charges against him in a very short period of time. This person should not have been released.

These criminals prey on farmers and elderly people. They know that RCMP resources are lacking in these areas and take full advantage of that. What the government needs to do is to provide our law enforcement agencies with the tools they need to stop the revolving door of criminals in and out of the courts. That is happening constantly.

Victims should be the central focus of the Canadian criminal justice system rather than special treatment for criminals, which is why our party introduced the Victims Bill of Rights. The government, unfortunately, does not agree since Bill C-75 would repeal our changes to the victim surcharge and reduce its overall use and effectiveness.

I believe in protecting victims of crime, which is why I introduced my own private member's bill, Bill C-206, that would ensure that criminals who take advantage of vulnerable people, specifically adults who depend on others for their care, are subject to harder, sure punishment.

Last month, a gentleman from my riding of Yellowhead was a witness before our public safety and national security committee. He shared with us his first-hand experience. It was a terrible story. This gentleman, whom I consider a friend, is aged 83. He heard his truck start up one day when he was having lunch with his wife. He walked outside to see his truck being driven out of his yard. He lives about 70 kilometres from the town of Edson where the local police office is located. He picked up his phone and was about to call when his vehicle returned to his yard. Two youths, one aged 18 and one aged 17, got out, knocked him to the ground, repeatedly kicked him in the face, the chest, the ribs, attempted to slash his throat, and then drove off again. This gentleman is 83. This is still being dealt with in the courts despite the fact it happened a year ago. This gentleman has had to attend court 10 times so far and the matter is still not over.

We on this side of the House will always work to strengthen the Criminal Code of Canada and make it harder for criminals to get out.

I am concerned that portions of Bill C-75 would weaken our justice system. Through the bill, the Liberals would reduce penalties for the following crimes: participating in criminal organizations, various acts of corruption, prison breach, impaired driving, abduction, human trafficking, forced marriage, and arson, just to name a few of many in the bill. Participation in terrorist activities and advocating genocide were deleted from this list only because a Conservative amendment was accepted at committee. Those are just a few examples of more than a hundred serious crimes that could be prosecuted by summary conviction and result in lighter sentencing, or even fines.

The government is failing to take criminal justice issues seriously. Reducing penalties for serious crimes sends the wrong message to victims, law-abiding Canadians and to criminals.

I am also concerned about the wording used in the section that would increase maximum sentences for repeat offences involving intimate partner violence. I support increasing these sentences but I do not support replacing the language of “spouse” with “intimate partner”. I believe both should be included. I understand that not all domestic abuse is within a spousal relationship, so there is a need to have "intimate partner" included. However, it should not replace "spouse". Rather, both terms should be included.

Another problem I have with Bill C-75 is the reversal of protections for religious officials.

When Bill C-51 was referred to the Standing Committee on Justice and Human Rights in January, two amendments were moved by my Conservative colleagues. The first amendment proposed keeping section 176 in the Criminal Code of Canada, while the second aimed to modernize the language of that section. The Liberals agreed to them and that was good, but they need to listen more.

Imagine my disappointment when I read in Bill C-75 that section 176 in the Criminal Code was once again under attack. Assault of officiants during a religious service is very serious and should remain an indictable offence.

Thank you for the opportunity to present my views.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, it is a pleasure to rise in the House and speak to Bill C-75, an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts.

It is disappointing to again see the Liberal government bring in a 300-page omnibus bill after the Liberals specifically said in their campaign promises that they were not going to do that. However, a broken promise a day seems to be the order of the Liberal government.

That said, let us think about what we are trying to accomplish in our judicial system and then look at how Bill C-75 may or may not fit into that.

What we first want to do in our criminal justice system is define the behaviour that is criminal. We want to say which things are not acceptable in Canadian society. That would be goal number one. Goal number two would be to make sure that appropriate punishments are established to deter people from perpetrating these crimes. We want to make sure that we have those appropriate punishments defined. We want to make sure that victims rights are protected, that we are not just focused on the criminal but we are also focused on making sure that victims rights are protected. Then we want to make sure that whatever rules we decide, we actually enforce them in a timely way.

I think that is really what we want to get out of the criminal justice system.

If we look at the Conservative record, everyone in Canada well knows that the Conservatives want to be tough on crime. We want to ensure that if people commit crimes, they do the time. We want to make sure that people are not just let off the hook.

If we look at the Liberals' record on this, it is not quite so clear. In fact, I would argue that the criminals seem to be making out very well under the Liberals.

The first issue is the Liberal government's failure to appoint judges so that cases could be tried in a timely way. According to the Jordan principle, if they are not tried in a timely way, within two years, those people will go free. We have seen murderers and rapists having their cases thrown out of court because there were not enough judges being appointed. Clearly, that is a failure of the Liberal government. We are in the fourth year of a four-year mandate and there are still vacancies, which is causing cases to continually be thrown out.

If the government were responsible, at some point it should have taken a look at perhaps more minor crimes. For example, if it thought that it was going to legalize marijuana, perhaps any of the charges with respect to possession of marijuana that were in the system could have been punted in order to focus on prosecuting more serious crimes, like murder and rape. However, that was not done.

The other thing we saw is that the Liberal government is continually trying to soften the penalties for crime.

Today, in Canadian society, it is a crime to disrupt a religious ceremony or to threaten a religious official or cleric. The Liberal government tried to put Bill C-51 in place to take away those protections with respect to worship and the clerics. There was a huge outcry across Canada. I know that all the churches in my riding wrote letters. There were many petitions that were brought forward. There was a huge outcry from Canadians, so the government backed off on that. Now we see that the government has brought this back under Bill C-75 as one of the things the government wants to reduce sentences on to a summary conviction, which would be less than two years in prison or a fine for obstructing or violence to or arrest of an officiating clergyman. It seems a little bit sneaky that the government heard a clear message from Canadians to back off and then it tried to slide it into another bill. That is not a good thing.

Let us look at some of the other crimes that are now considered in Bill C-75 to be minor and subject to a judge's decision on whether or not they get a fine or a summary conviction of up to a two-year maximum.

One is prison breach. Really, somebody who breaks out of prison is going to be given a fine. That should not even be an option. Municipal corruption is another thing on the list, as is influencing or negotiating appointments or dealing in offices. We have already talked about obstructing or violence to clergymen.

Another is impaired driving offences causing bodily harm. It is unbelievable that at this particular moment in time, when the Liberals have just legalized marijuana and every other jurisdiction has seen a tripling of traffic deaths due to impaired drug driving, they would decide that this crime is less serious and people might be able to get off with just a summary conviction or a fine.

Regarding abduction of a person under the age of 16 or abduction of a person under the age of 14, what is a more serious crime than kidnapping a child? I cannot imagine. To give that person a fine or a summary conviction just seems like there is no moral compass whatsoever.

It is interesting that polygamy is on the list. We have not had a lot of trouble. Polygamy has always been illegal in Canada. Why are we now saying that we would reduce the penalty for polygamy and make it a fine?

What about forced marriage? I was at the foreign affairs committee yesterday, and we had testimony from the Congo, Somalia and South Sudan about the dire situations there and 50% of girls being forced into child marriage and what a horrendous impact that had on their life. The Liberal members of the committee were sitting there saying, “Oh, this is a terrible thing.” However, here in our own country, we have decided that the penalty for forced marriage is going to be a fine or a less-than-two-years summary conviction. It is ridiculous.

Arson, for a number of reasons, is now on this list and is not considered that serious when in fact it drives up the cost of insurance and it takes people's homes. It is obviously a serious crime.

Participating in the activities of a criminal organization is now on here as not being that serious. The government members have been standing up, day after day, talking about trying to eliminate organized crime from Canada. Now if people are part of organized crime, apparently that is not a serious offence.

Therefore, Bill C-75 does not meet what we said we wanted to meet originally in our justice system. We wanted to talk about the appropriate punishments that need to be established to deter crime. That is not what is happening here.

In addition to all of those things, we see that there are other changes recommended in this bill. There is the repealing of the victim surcharge changes that were brought by the Conservatives. It is important that we protect victims' rights and that there is a fund that will help victims in some way after they have suffered a crime.

Removing the power to have a youth tried as an adult is a bit concerning to me. There are some very heinous crimes where the judges still need to have the ability to do that.

Delaying consecutive sentencing for human traffickers was an important law that was brought into place under the Conservative government. We have a huge issue with human trafficking. From my riding to Toronto, there is a huge ring. If someone were caught human trafficking, it would not be just one life that was impacted. There would be hundreds of girls involved. The consecutive sentence allowed individuals to be sentenced for each one of those victims and not get out of prison for a very long time, for what is a heinous crime.

I always like to say what the good things are that I like about the bill as well as the things that I do not like. I see in here that the only increases in penalties are for repeat offenders on intimate partner violence. I am glad to see that because the government has been totally inadequate in its response to violence against women. As the former chair of the status of women committee, we studied and found that one in three Canadian women suffers from violent acts in her lifetime. It has been disappointing to see that the current government, while pledging $400 million in the last budget for StatsCan to steal people's private information, gave $20 million a year to address the problem of violence against women. That has been totally inadequate. At least the Liberals have done something in this bill to try to move forward on that.

In summary, I would say that this bill has not met the objectives. It has not helped put penalties in place. In fact, I would argue that it would erode the penalties that people would receive.

I call on the justice minister to do her job, to appoint the justices who are missing and to put in place punishments that fit the crime. I have brought numerous petitions to the House on Bill C-75 to just eliminate it.

The Liberals talk about trying to get wait times down. They could get wait times down by not trying any criminals and not putting any of them in prison. That would get the wait times down, but it would not achieve what we want in our justice system, which is to define the crimes and to define adequate punishment and ensure that they are enforced in a timely way.

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

Mr. Speaker, kidnapping is kidnapping is kidnapping. I do not think anyone reasonable on a police force would describe grandparents having a child for an extra day as kidnapping or even be in a position to lay those charges. We are talking about kidnapping, where there is the option of getting them a much lighter sentence.

The Liberals say that they are going to be tough. The other day, we had the apology in the House for the terrible situation of the MS St. Louis, and the Prime Minister said that this kind of intolerance and bias should never be allowed to happen again, yet one of the Liberal government's very first actions was to eliminate the Office of Religious Freedom and bring in Bill C-51, which tried to take away protection for religious freedom for those who practise it.

On the one hand, the Liberals talk a good line, but when we watch their actions, it is a whole other thing.

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

I think we should have a recorded vote on this.

I would add, Mr. Chair, that the government tried to remove this particular section from the Criminal Code altogether, and it was only after considerable backlash that they had to re-evaluate. Their attitude is clearly consistent with what was initially in Bill C-51, which is that they don't seem to take this very seriously, despite the outcry from the faith community. They don't take it seriously is evidenced by the fact that they want to water down the sentence for this serious offence. It's really an insult.

Opposition Motion—Terrorism

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Madam Speaker, today we mark the fourth anniversary of the horrific attack here, on Parliament Hill. We lost corporal Nathan Cirillo. Two days ago was the anniversary of the attack in which Warrant Officer Patrice Vincent lost his life in Saint-Jean-sur-Richelieu, not too far from my riding. I think this is fitting, in light of today's debate on terrorism—a difficult, complex issue that too often leads to loss of life—and on Canada's response to terrorism in order to maintain public safety. We remember these two men who served their country and who lost their lives in horrible circumstances not too long ago.

I would also like to take this opportunity to remind the House that the NDP was proud to support the motion moved by the Conservatives just over a year ago to recognize that these horrific, heinous crimes committed by ISIS constitute genocide. There is no doubt about the real nature of this horrific violence perpetrated against minorities, women, the LGBT community and all other victims. We support the Conservatives' motion.

We know that all parties want the to achieve the same end. Regardless of what we say, regardless of our differences of opinion as to the means to that end, our objective is to put criminals, to put terrorists, behind bars.

The question before us today is how a democratic, law-based society should go about achieving that end. We are facing a number of challenges, which I will address during my speech. Obviously, the fact that we acknowledge those challenges and that we have no easy ways to overcome them does not mean we are being soft on the issue or that we want these individuals, who may be living in Canadian communities, to threaten public safety.

I think it is worth looking at the two key pieces here in this motion. However, before I go any further, I would be remiss to not congratulate Nadia Murad for receiving the Nobel Peace Prize for the extraordinary work that she has done to bring this issue to the forefront.

The one thing I can agree on with my colleague for Calgary Nose Hill, although we do not agree on everything, is that the deafening silence that sometimes follows this kind of advocacy, that someone like Nadia Murad engages in, is troubling. We always want to do better as parliamentarians and as a country.

In that vein, I think it is also important to recognize that we cannot even begin to imagine the strength and courage required to go through the type of ordeal and horror that she has witnessed. However, it takes even more courage to relive that horror, to be an advocate and be part of the political process in seeking justice and change in the way that different countries engage in these difficult issues.

With that being said, I do want to address the two parts of this motion. I want to start with part (a) that specifically goes into this issue relating to rehabilitation.

I think the issue here is that we have to look at the fight to combat radicalization. It has been made clear by many national security experts and many experts who have worked in connected fields that one of the key challenges that is facing this era of social media, for example, where it is easy for an individual and in many cases individuals with mental health issues who are easily being manipulated through social media and other means by different individuals related to ISIS and others, is that a proper, comprehensive anti-radicalization strategy is required to tackle this issue. It is not an issue that is exclusive to ISIS. It is also when we see white supremacists or when we see other extremism that leads to violence.

I think that is the key is to counter radicalization that leads to violence. That is the key piece of how we ensure public safety with regard to these matters.

It is something the New Democrats brought up in the previous Parliament when we were debating then Bill C-51. We said to the government of the day that although there was an issue of addressing public safety, rather than adopting new, draconian legislation that does not actually address the issue and keep communities safe, why not give additional resources to the policing community, for example?

In 2012, the police recruitment fund was cut. It allowed provinces and municipalities to have additional resources to hire police and, in some cases, put together special units that could tackle, for example, organized crime and street gangs. It provided the kinds of resources that could allow police to do their work and complement the efforts being deployed by the RCMP to tackle the issue of terrorism and other forms of extremism that we unfortunately see in Canada and other countries today. We raised that issue.

We also raised the issue of radicalization and being preventative. I know sometimes “preventative” has a certain meaning, and rhetoric can be construed around it to make it mean something that it does not. The reality is that prevention is not about trying to use kid gloves with individuals who may commit heinous crimes. It is about making sure Canadians are safe and that these crimes and terrorist attacks are not being committed in the first place. After all, we can deploy all of the resources and legislative tools we can after the fact, but there is already a failure when we talk about things after the fact. How do we avoid getting to that point whenever possible? Countering radicalization is one way to do so.

Of course there are challenges. For instance, Montreal's Centre for the Prevention of Radicalization Leading to Violence lacks funding. I will not get into detail because there is also an internal management issue related to Government of Quebec programs. However, Montreal's mayor, Valérie Plante, raised an important point in this debate. She said that Montreal's government is reluctant to provide ongoing funding to the centre because the population it serves extends well beyond the greater Montreal area. It is, after all, the only organization in North America whose mission is to prevent radicalization leading to violence.

As part of a study by the Standing Committee on Public Safety and National Security, we met with representatives of the Centre for the Prevention of Radicalization Leading to Violence. They told us they are getting calls from all across Canada and even the American east coast. For example, parents and members of a vulnerable community in New York have been calling the centre for assistance. This shows that there is a desperate need, not only in Canada but also in the U.S. and around the world. Strategies have been deployed in Europe to solve the problem, but here in Canada and North America, there is an appalling lack of initiatives.

Of course I welcome the funding allocated by the federal government to try to address the issue, but obviously, it is not enough. If that were the case, there would be more than just one centre. If I am not mistaken, the government will fund only individual projects. What we need are broad, generalized efforts.

Let us also not forget the importance of providing additional training to our police forces and especially the RCMP to support their work with communities that are vulnerable to all kinds of extremism, whether from ISIS or the far right. Right-wing extremism is a growing threat, according to an article published by the Toronto Star a few weeks ago. I encourage all my colleagues to read it.

All of this shows that we must not only do more, but also think about the types of strategies being used. This is essential to ensuring public safety. When we talk about crime and terrorism, some people and some political parties might think that the word “prevention” means being gentle with those who are about to commit the most horrendous crimes in the history of humanity. Let us be clear: prevention means ensuring public safety and avoiding the loss of more lives like that of Warrant Officer Patrice Vincent and Corporal Nathan Cirillo, whom we lost four years ago.

The other element of course concerns the intelligence-to-evidence gap, more specifically dealing with part (b) of this motion, which is the issue of how we prosecute these individuals, particularly those who are returning to Canada. It is a huge challenge that we face, and we are not alone in facing it.

There are different reasons why this intelligence-to-evidence gap exists. One of the reason is the additional powers given to CSIS. When we look at the threat-reduction powers given to CSIS under Bill C-51, they continue to exist despite the amendments I presented at the public safety committee during debate on Bill C-59, which essentially represents the Liberals' attempt at correcting and failing to correct many of the outstanding issues. The big issue is that those threat-reduction powers are, in a word, and I am sure some lawyers will cringe hearing me say this because it is probably not the correct terminology, essentially extra-constitutional powers. CSIS is going to judges and asking them for judicial authorization to use its threat-reduction powers in a way that can contravene the charter.

What we saw in Bill C-59 is that while those powers still exist, they have become, as I like to put it, less unconstitutional than they were under Bill C-51. However, the big problem in the debate today is the issue relating to information that is gleaned through the powers CSIS is using, because at the end of the day, the RCMP, in its responsibilities as a law enforcement entity in working with Crown prosecutors to bring these returning foreign fighters to justice and making sure they find themselves behind bars, cannot use the information CSIS has. Therefore, it is deploying its own own efforts. It cannot simply cherry-pick what CSIS has obtained through a whole different regime of judicial authorization than using its own powers as the RCMP under the Canada Evidence Act and, of course, nationally under the Constitution, first and foremost.

The other challenge relating to that is not just the powers being exercised by CSIS and the RCMP in their own individual silos but also how we use information obtained through international conflict, the consequences of that conflict, and how we use that in a constitutional way in fair trials. It is interesting when we say “fair trials”, because I am sure many Canadians listening to us and some members of other parties might say, “Who cares about fairness? These people have perpetrated some of the most horrible crimes known to humanity. They have committed genocide.” However, fairness is important in ensuring public safety, because it ensures the sanctity of the proceedings. Therefore, if we want successful proceedings that properly prosecute and convict these individuals, and hopefully in the cases where obviously it is appropriate and the findings are such, we need fairness, or else the proceedings will get thrown out and we will be right back to square one.

There are a few elements to that. One was brought up. Here I will refer my colleagues to the fantastic podcasts by Craig Forcese and Stephanie Carvin called “Intrepid”, where there was an interview with Solomon Friedman, a criminal defence attorney. As he put it in the interview, these people are not always the most popular individuals when it comes to considering the victims of horrible crimes. However, he brought up an important point. When we look at the fantastic reporting by Stewart Bell, for example, on what is going on with these fighters who have been detained in Kurdish facilities, we will see that those facilities have abhorrent conditions and that the RCMP cannot just walk into facilities that are potentially engaging in less-than-savoury practices, whether it is torture or other things, or where the conditions are far below the standards that Canadians would expect for incarcerated offenders in our corrections facilities. The big issue there is that it would be easy for a judge, as a result of the arguments of a defence attorney, to look at that Kurdish facility and say that there clearly is an argument to be made as to whether the information before the court is true or not, because it is a result of confessions obtained under duress. Certainly that is not for me to say, but I want to make sure, as a legislator, that we are ensuring the maximum fairness in a process to maximize the success rate so that we find ourselves in safer communities and achieve the public safety and the justice objectives of our system based on the rule of law.

I admit, that is not always what the public wants to hear.

Ultimately, we have to acknowledge that we all want the same thing. The big question is how to go about fixing this problem. It is a challenge.

A reporter asked me a question following an excellent Global News report by journalist Stuart Bell. The reporter asked me whether the government should be taking steps to bring these people back to Canada.

It is a question for which I have no answer. Obviously, as the minister mentioned, I do not want diplomats to put themselves in danger to bring back these individuals. Nor do I want individuals to come back to Canada and be a threat to public safety.

That said, we also have a responsibility towards those people who hold Canadian citizenship. If they have committed horrible crimes, we must ensure that they are prosecuted in Canada and put behind bars in Canada. Not only do we have a responsibility to protect law-abiding citizens, but we also must prosecute those who are not. It is not always a very popular concept, but it is one of the underlying principles of Canadian citizenship.

We are not just talking about the cartoonish characters the Conservatives have made up, usually frightening men in their twenties who return home and threaten our safety. There are also extremely complex cases, such as the women who went abroad. In some cases, because of their movements and activities with ISIS, they could be prosecuted.

Those kinds of cases are much more complicated, because they may involve women who have gone through rape, spousal violence, and all sorts of other, more nebulous situations abroad, which we may not have information about. These are highly complex cases. Women are, of course, one of the groups that has been victimized by ISIS. Why would we want to abdicate our responsibility towards Canadian women who have been victimized by ISIS?

I can understand how, in some cases, some women may be found guilty of certain offences under the Criminal Code provisions regarding travelling and supporting a terrorist group. However, we must not neglect the women who are victims.

The government has a job to do. It needs to use the information at its disposal to make sure everything possible is being done to protect victims who are Canadian citizens.

That goes for children as well. I think all Canadians, everyone tuning in at home and everyone here in the House, would agree that it is unacceptable for Canadian children, some under the age of five, to end up in camps in a conflict zone abroad. By failing to bring these women back to Canada, we are also leaving their children stranded in a foreign country under execrable conditions.

I will come back to the quote from Nadia Murad included in this motion. She mentions brainwashing. Children as young as five years old, sometimes younger, can be turned into child soldiers abroad, as we often see in war zones where genocide is committed. Radicalization can turn them into future threats to public safety in their own right, and we do not want that to happen.

Protecting a child and also protecting public safety are extremely commendable goals that anyone can get behind, even though this is happening in war zones where situations can become extremely tricky and difficult to handle.

In conclusion, while I certainly recognize Canadians' concerns in wanting to ensure public safety, let me be clear that while we might differ on the methods to be deployed and how we hone the tools that we have to prosecute returning foreign fighters and to counter radicalization, all in the House agree that more can be done to close the intelligence-to-evidence gap to ensure public safety. However, we do ourselves a disservice when we do so in a way that sometimes brushes aside the fact that not all of these individuals are coming from the same situation. There is a huge challenge when it comes to women and children, in particular, which cannot be ignored. For that reason, more needs to be done. We look forward to collaborating with the government as it tries to seek solutions to this issue.

It would be naive to say that this is not the most complicated public safety issue we are currently dealing with. We therefore have to tackle it head on. I am pleased to work with my colleagues from all parties to try to resolve this issue and keep the public safe.

Corrections and Conditional Release Act

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, I have a couple of concerns.

The member mentioned in her speech that extensive consultations were done, but my understanding is that the government did not consult with the union of correctional officers, who certainly will be impacted.

In addition to that, I am concerned about the Liberal direction of making life easier for criminals, beginning with Bill C-51 and then Bill C-75, where penalties for very serious crimes, such as forcible confinement of a minor and terrorism, were dropped. The government has brought ISIS terrorists back and now is trying to make life easier for criminals.

Why are the Liberals doing that as a priority?

[Brian Herman]

Thank you for the question, Mr. Rankin.

We have reflected on that. I must say that in all of this we do have a dialogue with Department of Justice officials where we sometimes discuss with them our concerns and some of the rationale for why they have drafted what they have.

This is where I go to the point that I made about the consistency of what we've been saying when it came to discussing amendments to Bill C-51 and to Bill C-59, and that is the signals that are sent and how in an effort to increase expediency in the system to deal with the charter concerns about efficiency and speed, sometimes there are certain provisions that get caught up in a broad basket of issues and that should not be there. We feel that these particular provisions are so serious as to warrant being kept strictly indicted.

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

Thank you very much, Mr. Chairman, and we thank the committee for allowing us to appear this evening.

My colleague Leo Adler, our senior legal counsel, will elaborate on some of our key points, particularly the legal issues. I just wanted to give a brief introduction.

You have our legal submission and some related documents, which I hope have made their way to all committee members.

I am not sure if everyone is acquainted with B'nai Brith Canada. We have been before your committee previously. It was founded in 1875, with a history of defending the human rights of Canada's Jewish community and Canadians all across the country. Together with our League for Human Rights, we advocate for the interests of the grassroots Jewish community and for their rights such as freedom of conscience and religion, rights that we know are important to all Canadians.

The point I wanted to make is that our comments will be consistent with testimony before several standing committees in the past year, including my own remarks to this committee on Bill C-51 on October 30 of last year.

We hope the committee will continue to bear in mind that Canada's most targeted religious minority, in terms of hate speech and hate crimes, is the Jewish community. Our comments are rooted in that fact. In particular, we are ever-mindful of the signals Parliament and the government send to our communities as amendments to various pieces of legislation take shape over time.

We followed the government's several initiatives to modernize both the Criminal Code and the national security framework, including plans to deal with provisions that are focused on expediency or efficiency. These aims must not supersede the essential prerequisites of fairness and balance, nor must they supersede the requirement for our publics to know, and for perpetrators to understand, the severity of penalties that would accompany advocating or promoting genocide or in any way supporting terrorism.

Our question remains a straightforward one: whether proposed changes taken holistically represent a weakening of essential provisions in the Criminal Code and other legislation that is perceived by the public and by law enforcement as meaning the government takes these offences less seriously. This is the context, and we have concerns with specific aspects of hybridization—as Mr. Adler will outline. Certain of these offences are very serious. Notwithstanding government assurances, how does this square with an implicit aim of affording Crown counsel greater discretion in how to proceed with less serious offences?

We believe that, in today's context, we must exercise great care in taking actions that can be misinterpreted, and the signal such a step would convey in today's environment where anti-Semitism, hate speech, and advocacy to serious crimes such as genocide remain serious challenges, if not in Canada then elsewhere.

Our hope is that the committee, in essence, will recommend that offences related to advocating genocide and offences that are terrorism-related are not hybridized and remain indictable. Mr. Ehsassi has already spoken eloquently today pertaining to the genocide point.

As opposed to hybridization, there are other steps that can be taken. Mr. Adler, again, will explain, but in April, B'nai Brith Canada published an “Eight-Point Plan to Tackle Antisemitism". Committee members will have that. One of our recommendations is to publish the Attorney General's guidelines for hate-related prosecutions. We believe more can be done in this area, including for other incitement offences.

While we recognize it falls outside the scope of this draft legislation, we must acknowledge that certain remedies that were contained in section 13 of the Canadian Human Rights Act are part of this overall equation. We accept that freedom of expression is important, but in the context of Bill C-75 the right of potential victims to be free from acts advocating genocide or terrorism and the threat of terrorism must be the greater priority.

Clear penalties help ensure this. We ask committee members to consider carefully the signals they would send by endorsing hybridization of those offences with which we are most concerned.

Thank you.

[Ali Ehsassi]

I am here this afternoon in my capacity as chair of the All-Party Parliamentary Group for the Prevention of Genocide and other Crimes against Humanity, hereafter referred to as GPG. I am here to discuss Bill C-75, in particular, the hybridization aspects of the bill impacting subsection 318(1) of the Criminal Code, incitement to genocide.

Before I continue I should stress that while I am here in my capacity as chair of the GPG, my views do not necessarily reflect the views of the GPG as a whole, nor the views of its individual members.

I also believe that a brief summary of the GPG's history, operations and mandate will provide some context to our approach to Bill C-75 and subsection 318(1) of the Criminal Code.

The GPG was founded in 2006 by Senator Roméo Dallaire to provide members of Parliament and senators with a non-partisan forum for co-operation on issues of pressing humanitarian concern. Currently comprised of 36 members from across party lines, the GPG works to inform parliamentarians about ongoing conflicts, and through close collaboration with partners, experts and stakeholders, crafts strategies to help prevent genocide and crimes against humanity.

Since its inception the GPG has conducted studies and meetings on humanitarian crises in Burundi, Darfur, the DRC, Myanmar and Yemen, and it has established close working relationships with Amnesty International, the Montreal Institute for Genocide and Human Rights Studies, the Stanley Foundation, the Roméo Dallaire Child Soldiers Initiative and the Digital Mass Atrocity Prevention Lab, to name a few.

The GPG, in other words, has largely been a forward-looking and globally oriented institution. The fields of human security, human rights and atrocity prevention have always, rightly or wrongly, been largely oriented toward studies of foreign policy and related fields such as security studies, international law, international trade and international development. It is somewhat unusual, therefore, that our group has been asked to comment on what is essentially domestic legislation and jurisprudence.

However, the changes in proposed section 318 of Bill C-75 clearly relate to domestic genocide prevention and incitement to hatred laws. Although such relatively minor modifications constitute only a small part of the sweeping changes included in Bill C-75, we have a duty to examine the potential impact and side effects. Moreover, given the leadership role Canada has always observed in matters of human rights and genocide prevention, it is imperative that our laws relating to genocide and atrocity prevention remain second to none.

As you are aware, Bill C-75 seeks to modify the wording of subsection 318(1). The existing wording of the section reads:

Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

The proposed revised wording would read:

Every person who advocates or promotes genocide is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

These changes are part of the hybridization efforts included in Bill C-75, which I broadly support, and which seeks to improve access to justice by giving the Crown the necessary discretion to elect the most efficient mode of prosecution evaluated on a case-by-case basis. Hybridization will reduce court time consumed by less serious offences while freeing up limited resources for more serious offences. Of course there are few offences more serious than advocating genocide, which is why these amendments must be taken very seriously.

The first of these changes, which substitutes “every one” with “every person” appears multiple times in Bill C-75 and merely appears to be part of a broader effort to modernize the language in the Criminal Code. It is difficult to see how this change would have any impact on Canada's genocide prevention regime.

The second and more substantive change seeks to hybridize incitement to genocide as punishable via summary conviction. This change, which represents one of approximately 170 clauses in the Criminal Code being hybridized or reclassified, will allow prosecutors to pursue summary convictions for offences that would have a shorter sentence.

The proposal hybridizes all straight indictable offences punishable by a maximum penalty of 10 years or less, which is why clause 318 was captured. It also increases the default maximum penalty to two years less a day of imprisonment for all summary offences and extends the limitation period for all summary conviction offences to 12 months from the current six months.

It is important to note that subsection 318(1) has rarely been invoked in Canadian courts. The practical impact of this modification may ultimately prove negligible. However, given the extremely serious nature of the issue at hand, as well as Canada's moral obligation to serve as a leader in the field of genocide prevention, this committee should support an amendment to Bill C-75 ensuring that incitement to genocide provisions are not included within the otherwise prudent attempts at hybridization and reclassification.

Moreover, there is precedent within this bill for not hybridizing specific elements of the Criminal Code. Offences that would be repealed in Bill C-39 and Bill C-51 are excluded from the hybridization process. Furthermore, nine other indictable offences that are currently punishable under mandatory minimum penalties would not be hybridized either.

To be more specific, I'm referring here to subsection 92(3), which relates to possession of firearms, knowing possession is unauthorized; section 99, which relates to weapons trafficking; section 100, which relates to possession for purposes of weapons trafficking; section 103, importing and exporting firearms; section 202, relating to bookmaking; section 203, placing bets on behalf of others; section 279.03, which relates to withholding documents; section 286, which relates to purchasing sexual services; and lastly section 467, which relates to the recruitment of criminal organizations.

Therefore, given both the practical importance and symbolic value of subsection 318(1), we feel that this section should be included amongst the carve-outs referenced above. The fact that section 318 has almost never been invoked in Canadian courts is a testament to our tremendous good fortune and our dedication to diversity, human rights and human security. This good fortune has allowed Canada to serve as a global beacon for genocide prevention efforts. While I have every faith that Canada will continue in this noble tradition regardless of the outcome of Bill C-75, amending the legislation before us to ensure that genocide advocacy remains an indictable offence would once again send a clear message that this heinous act is incompatible with Canadian values.

I thank you for your consideration of this matter. I look forward to any questions you may have.

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

Thank you, Mr. Chair and members of the committee, for the opportunity to participate in this study.

The Evangelical Fellowship of Canada is the national association of evangelical Christians in Canada. Our affiliates include 45 denominations, more than 65 ministry organizations and 35 post-secondary institutions. Established in 1964, EFC provides a national forum for Canada's four million evangelicals and a constructive voice for biblical principles in life and society.

Our approach to the issues we will address in Bill C-75 is based on biblical principles that teach respect for human life and dignity, care for the vulnerable, and freedom of religion, principles that are also reflected in Canadian law and policy.

Bill C-75 proposes a significant number of changes to the Criminal Code, including the hybridization of a number of Criminal Code offences. This would allow, as you know, some serious indictable offences to be treated as relatively minor summary offences at the discretion of the Crown. It's on this element of the bill that I have been asked to provide comments. Our concerns in this regard are limited to a few key areas.

Criminal laws give expression to the norms that undergird a society. They both express and reinforce the basic commitments that bind a society together. It is often said that the law is a teacher. Amendments to the Criminal Code can signal or imply a shift in our society's core principles or their interpretation, which is sometimes appropriate, but this also means we must carefully consider the implications of any changes we make.

The categorization of a criminal offence tends to indicate the seriousness of the conduct it addresses. Hybridization suggests that an offence can now be considered less of a violation of human dignity, less of a threat to society or social cohesion, and less harmful to the vulnerable among us. Respectfully, we submit that to hybridize some of the offences proposed in this bill would send the wrong message. We understand that one of the objectives of hybridization is to reduce delays in the criminal justice system, but to paraphrase what Mr. Geoff Cowper told this committee last week, our goal should be not to reduce delays but to deliver justice in a timely way that's responsive to the public interest, to the needs of the victim and to the community generally.

When Bill C-75 proposes a greater maximum penalty for repeated intimate partner violence—and I hear the concerns of my co-panellists about recidivism—this communicates that this is an offence the government considers to be very serious, that violence is unacceptable and is to be deterred with severe penalty. This is a good message.

Conversely, when the bill proposed to hybridize offences related to human trafficking, sexual exploitation, or the assault of religious officiants, it sends the message, whether intended or not, that these offences are of lesser concern. Bill C-75 proposes to hybridize subsection 176(1) of the Criminal Code, which deals with obstructing or violence to an officiating clergy. Obstructing or assaulting a religious official who is about to perform religious duties strikes directly at the heart of religious belief and practice. Religious officials are not merely acting as individuals when they're carrying out their religious duties; they are representatives of the broader community of faith.

Last year, more than 65 interfaith leaders wrote to the Minister of Justice expressing our deep concern with the repeal of the section 176 protections that were proposed in Bill C-51. We wrote, “The deliberate assault of a religious official outside a house of worship is a different kind of offence from other public disturbances, assaults, threats or incitement to hatred. An offence against a people at worship reverberates through the community and touches every member.”

Offences against religious officials and people at worship are unique in character, in significance and in motivation, and in a climate of increasing incidence of hate, specifically at and against places of worship, we believe it's essential to maintain the focused protection that section 176 offers religious leaders. We are grateful that this committee heard the concerns of religious Canadians and recommended that section 176 not be repealed but instead be revised to be more inclusive of all religious officials. We ask the committee, in keeping with that same understanding and responsiveness to the concerns of religious Canadians, to recommend that this offence not be hybridized in Bill C-75.

You heard compelling testimony last night of the realities of human trafficking and all forms of sexual exploitation, and the devastating impact of these crimes on their victims. These crimes constitute a grave violation of human rights, including the rights of women and children to live free from violence, and it's essential that the gravity of these offences be consistently reflected in our laws and policies. We know and have known for years that in Canada it is mainly Canadian women and girls who are trafficked, and they're being trafficked into the commercial sex trade.

Ninety-five per cent of all cases in Canada in which trafficking charges have been laid in the last 12 years were domestic and primarily involved sexual exploitation. StatsCan's latest report says that 95% of trafficking victims are female, 72% are under the age of 25 and one in four victims is under the age of 18.

We're pleased that this government is taking action on human trafficking and is consulting on the development of the new national action plan. We're also eagerly awaiting this committee's report out of its study on human trafficking.

We're disappointed that Bill C-75 proposes to hybridize certain offences related to human trafficking and sexual exploitation. These other initiatives demonstrate that this government rightly considers these crimes to be worthy of significant legislative and policy focus, but the proposed hybridization of related offences seems to send a conflicting message.

In particular, we note the bill's hybridization of the following:

The first is section 210 on keeping a common bawdy house. This provision allows law enforcement to address the ownership and operation of brothels, which are often loosely disguised as spas, holistic centres or massage parlours, in which individuals are frequently held, exploited or trafficked. The naming and continued inclusion in the Criminal Code of such a place is significant, because the existence and operation of these places can legitimize the hold, power and influence of a pimp, trafficker or exploiter over the exploited.

As I was preparing for this, I spoke with a friend and colleague who has first-hand experiential knowledge of how these facilities operate. She explained that pimps and traffickers use places like holistic centres and massage parlours with the full knowledge of the owner, and that placing their girls in a licensed facility legitimizes the pimp or trafficker as part of a business. Individuals who use these places to exploit do so with intention, forethought and planning.

The exploitation that occurs in these facilities is rampant. We need access points to these places, and we need to be careful that we don't limit or restrict the ability of law enforcement to monitor, to search and to prosecute where needed.

Rather than repealing this section, as some have called for, or hybridizing it, as this bill does, we suggest the committee consider clarifying the definition of “bawdy house” in the Criminal Code. The current definition is imprecise, and that imprecision actually cloaks the exploitation that concerns us. We would support a definition which makes it clear that the offence targets situations of sexual exploitation where individuals are held, kept or exploited in a place where someone else is in control of their movement, their activity and quite often their finances.

Next are subsection 279.02(1), on material benefit with trafficking, and subsection 279.03(1), on withholding or destroying documents. These offences as they relate to the trafficking of a person under the age of 18 remain indictable. Our laws rightfully extend particular protections to children who are uniquely vulnerable in a number of ways.

However, this bill would hybridize these same offences as they relate to adult victims. This is problematic because exploited adults are quite often just exploited children who happen to turn 18. In fact, often the only thing about their circumstances that has changed is that they are now 18 and the severity of the abuse they have suffered or continue to suffer does not lessen when they turn 18.

Victims who become adults in the eyes of the law may already feel a bit left behind, because the system offers them fewer supports and services and treats the crimes committed against them as less serious. I would argue that even in cases where the exploitation begins or occurs when the victim is an adult, we do not want to send the message that this conduct is less serious. Human trafficking and the criminal offences associated with it must be considered very serious and be dealt with accordingly. As such, we recommend that these offences not be hybridized.

Finally, we have subsection 286.2(1), on material benefit from sexual services. This provision is clearly aimed at and I suspect applied almost exclusively to individuals who are benefiting, as the law says, from the sale of someone else's sexual services. It is clear that what the current laws aim to do is prevent the exploitation of one individual by another.

This offence and others covered by the Protection of Communities and Exploited Persons Act should not be hybridized. This act established an incredibly important shift in how our country addresses prostitution. It refocused our laws on the buyers and those who profit from exploitation while decriminalizing those who are selling or being sold. We believe these laws are a critical tool in the fight against trafficking and sexual exploitation because they seek to curb the demand for paid sexual services, which is what fuels sex trafficking and funnels women into prostitution.

The act has a mandatory five-year review built in. We strongly recommend that the government keep the current prostitution laws in place as they are, and that when that five-year mark is reached it conduct a thorough review of the laws and their effectiveness in order to determine how they may be strengthened or improved, with the clear objective of eliminating sexual exploitation.

Thank you.

[Sarah Leamon]

I would like to elaborate on that.

I actually do have significant concerns about how this is going to impact people accused of sexual offences in this country. My concerns about that are exacerbated by Bill C-51, which I came and spoke to the committee about—it seems like a very long time ago, but it may have been just a few months. In any event, that bill does significantly limit an accused person's abilities to fully make answer and defence, in my view at least, when they are accused of crimes of a sexual nature.

Crimes of a sexual nature are the most stigmatizing things, arguably, that one can be accused of. If Bill C-51 passes in its current form, alongside this amendment under Bill C-75 to preliminary inquiries, it means that the only people who will have the preliminary inquiry process available to them, those who are charged with a sexual offence, are ones who have done so in an aggravated fashion or have caused bodily harm. That's a big concern for me.

I can tell you that in my practice as a defence lawyer, the vast majority of times that I use a preliminary inquiry process is for crimes of a sexual nature, because it is so useful in terms of an investigative or discovery tool. As Mr. Cooper pointed out, 87% of them actually resolve after the preliminary inquiry process. It saves the complainant, in the vast majority of circumstances, from having to testify again and from being re-traumatized.

[Matthew Taylor]

The only thing I would add is that, as you know, Bill C-51, which is in the Senate right now, proposes to repeal a number of offences that are obsolete or redundant to other offences of general application. I don't have the list in front of me. Those offences are not being hybridized in this bill either. If the committee is interested, we can give you the list of those specific offences that are being repealed in Bill C-51.

National Security Act, 2017

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

Madam Speaker, it is a real pleasure for me to rise and speak to an important bill and issues related to public safety and security in general.

I would like to begin my remarks with a positive word of thanks for those men and women who are charged with keeping our communities safe, certainly the front-line police officers and first responders, but a lot of the people in the intelligence networks from CSIS, to CSE, to think tanks that analyze these things, to engaged citizens who are constantly advocating on issues related to public safety and security. These are probably some of the most important debates we have in this chamber because we are charged with making sure we have a safe community and finding the right balance between the remarkable freedoms we enjoy in a democracy like ours and the responsibility to ensure that there is safety for Canadians. We thank those who are charged with doing that both in uniform and behind the scenes and sometimes under the cloak of secrecy. All Canadians respect that work.

I am going to talk about Bill C-59 from a few vantage points, some of the things that I thought were positive, but I am also going to express three areas of very serious concern I have with this legislation. In many ways, Bill C-59 is a huge step back. It is taking away tools that were responsibly provided to law enforcement agencies to be used in accordance with court supervision. In a lot of the rhetoric we hear on this, that part has been forgotten.

I am going to review some of it from my legal analysis of it, but I want to start by reminding the House, particularly because my friend from Winnipeg, the parliamentary secretary to the government House leader is here, that here we are debating yet another omnibus bill from the Liberal Party, something that was anathema to my friend when he was in opposition. Omnibus bills of this nature that cobbled together a range of things were an assault on democracy, in his words then, but here we are in late night sittings with time already allocated debating yet another Liberal omnibus bill. The irony in all of this is certainly not lost on me or many Canadians who used to see how the Liberals would howl with outrage whenever this happened.

Bill C-59 came out of some positive intentions. My friend from Victoria, the NDP's lead on the parliamentary security oversight committee of parliamentarians is here. I want to thank him for the work that we did together recommending some changes to the minister ahead of what became Bill C-59. The NDP member and I as the public safety critic for the Conservative Party sent two letters to the minister providing some general advice and an indication of our willingness to work with the government on establishing the committee of parliamentarians for security and intelligence oversight.

My friend from Victoria ably serves on that committee now and as a lawyer who has previously practised in the area of national security and finding the right balance between liberty and security, he is a perfect member for that committee as are my friends from the caucus serving alongside the Liberal members. That is very important work done by that committee and I wish them well in their work. We indicated pre Bill C-59 that we would be supportive of that effort.

In those letters we also indicated the need for a super-SIRC type of agency to help oversee some of the supervision of agencies like CSIS and CSE. We were advocating for an approach like that alongside a number of academics, such as Professor Forcese and others. We were happy to see an approach brought in that area as well.

It is important to show that on certain issues of national safety and security where we can drive consensus, we can say we will work with the government, because some of these issues should be beyond partisanship. I want to thank my NDP colleague for working alongside me on that. It took us some time to get the minister to even respond, so despite the sunny ways rhetoric, often we felt that some of our suggestions were falling on deaf ears.

I am going to commit the rest of my speech tonight to the three areas that I believe are risks for Canadians to consider with Bill C-59. I am going to use some real-world examples in the exploration of this, because we are not talking in abstract terms. There are real cases and real impacts on families that we should consider in our debate.

The first area I want to raise in reference to the fact that when Bill C-59 was introduced, it was one day after a Canadian was convicted in a Quebec court in a case involving travelling abroad from Canada to join and work with a terrorist organization. Mr. Ismael Habib was sentenced the day before the government tabled this omnibus security legislation, and I think there is a certain irony in that. In his judgment, Justice Délisle said, “Did Ismael Habib intend to participate in or knowingly contribute to a terrorist activity? The entirety of the evidence demonstrates the answer is yes.” There is such an irony in the fact that the day before this debate there was a conviction for someone who was leaving Canada to train and participate with a terrorist organization.

Only a short time before Mr. Habib left Canada to do this, the previous government criminalized that activity. Why? Really, there was no need to have in the Criminal Code a charge for leaving Canada to train or participate in a terrorist organization, but this was a reaction to a troubling and growing trend involving radicalized people and the ability for people to go and engage in conflicts far from home. Mr. Habib's case was the first of its kind, and the charge he was convicted of by a Quebec court was for an offence that just a few years before did not exist. This is why Parliament must be seized with real and tangible threats to public safety and security. Unfortunately, a lot of the elements of Bill C-59 are going to make it hard for law enforcement to do that, to catch the next Mr. Habib before he leaves, while he is gone, or before he returns and brings that risk back home.

The first area that I have serious concerns with in the bill relates to preventative arrest. This was a controversial but necessary part of Bill C-51 from the last Parliament. Essentially it moved a legal threshold from making it “necessary” to prevent a criminal activity or a terrorist act instead of “likely” to prevent. By changing the threshold to “necessary”, as we see in this bill, the government would make it much harder for law enforcement agencies to move in on suspects that they know present a risk yet do not feel they have enough proof to show that it is necessary to prevent an attack. I think most Canadians would think that the standard should be “likely”, which is on balance of probabilities. If we are to err on the reality of a threat that there is violence to be perpetrated or potential violence by someone, then err on the side of protection. We still have to have the evidentiary burden, but it is not too hard.

It is interesting who supported the preventative arrest portions of Bill C-51 in the last Parliament. The Prime Minister did as the MP for Papineau. I loved Bill C-51 in so many ways, because it showed the hypocrisy of the Liberal Party at its best. The Liberals were constantly critical of Bill C-51, but they voted for it. Now they are in a position that they actually have to change elements of it, and they are changing some elements that the Prime Minister praised when he was in opposition, and they had this muddled position. My friends in the NDP have referred to this muddled position before, because now they think their Liberal friends are abandoning the previous ground they stood on.

What did the Prime Minister, then the leader of the third party and MP for Papineau, say about preventative arrest in the House of Commons on February 18, 2015? He said:

I believe that Bill C-51, the government's anti-terrorism act, takes some proper steps in that direction. We welcome the measures in Bill C-51 that build on the powers of preventative arrest, make better use of no-fly lists, and allow for more coordinated information sharing by government departments and agencies.

What is ironic is that he is undoing all of those elements in Bill C-59, from information sharing to changing the standard for preventative arrest to a threshold that is unreasonably too high, in fact recklessly too high, and law enforcement agencies have told the minister and the Prime Minister this.

The Prime Minister, when he was MP for Papineau, thought these important powers were necessary but now he does not. Perhaps society is safer today. I would suggest we are not. We just have to be vigilant, vigilant but balanced. That is probably why in opposition he supported these measures and now is rolling them back.

Nothing illustrates the case and the need for this more than the case of Patrice Vincent. He was a Canadian Armed Forces soldier who was killed because of the uniform he wore. He was killed by a radicalized young man named Martin Couture-Rouleau. That radicalized young man was known to law enforcement before he took the life of one of our armed forces members. Law enforcement officers were not sure whether they could move in a preventative arrest public safety manner.

The stark and moving testimony from Patrice's sister, Louise Vincent, at committee in talking about Bill C-51 should be reflected upon by members of the Liberal Party listening to this debate, because many of them were not here in the last Parliament. These are real families impacted by public safety and security. Louise Vincent said this:

According to Bill C-51, focus should be shifted from “will commit” to “could commit”, and I think that's very important. That's why the RCMP could not obtain a warrant from the attorney general, despite all the information it had gathered and all the testimony from Martin Couture-Rouleau's family. The RCMP did its job and built a case, but unfortunately, the burden of proof was not met. That's unacceptable.

It is unacceptable. What is unacceptable is the Liberals are raising the bar even higher with respect to preventative arrest. It is like the government does not trust our law enforcement agencies. This cannot be preventative arrest on a whim. There has to be an evidentiary basis for the very significant use of this tool, but that evidentiary basis should not be so high that it does not use the tool, because we have seen what can happen.

This is not an isolated case. I can recite other names, such as Aaron Driver. Those in southwestern Ontario will remember that thanks to the United States, this gentleman was caught by police on his way to commit a terror attack in southwestern Ontario. He was already under one of the old peace bonds. This similar power could be used against someone like Alexandre Bissonnette before his horrendous attack on the mosque in Quebec City. This tool could be used in the most recent case of Alek Minassian, the horrific van attack in Toronto.

Preventative arrest is a tool that should be used but with an evidentiary burden, but if the burden is too high necessary to prevent an attack, that is reckless and it shows the Prime Minister should review his notes from his time in opposition when he supported these powers. I suggest he did not have notes then and probably does not have notes now.

The second issue I would like to speak about is the deletion of charges and the replacing with a blanket offence called counselling commission of a terrorism offence.

What would that change from BillC-51? It would remove charges that could be laid for someone who was advocating or promoting a terrorism attack or activity. Promotion and advocation are the tools of radicalization. If we are not allowing charges to be laid against someone who radicalized Mr. Couture-Rouleau, do we have to only catch someone who counsels him to go out and run down Patrice Vincent? Should we be charging the people who radicalized him, who promoted ISIS or a radical terrorist ideology, and then advocated for violence? That should be the case. That actually conforms with our legal test for hate speech, when individuals are advocating or promoting and indirectly radicalizing.

Therefore, the government members talk about the government's counter-radicalization strategy, and there is no strategy. They have tried to claim the Montreal centre, which was set up independently of the government, as its own. The government would not tour parliamentarians through it when I was public safety critic, but it tours visiting guests from the UN and other places. That was an initiative started in Montreal. It has nothing to do with the Liberals' strategy. I have seen nothing out of the government on counter-radicalization, and I would like to.

The same should be said with respect to peace bonds, another tool that law enforcement agencies need. These have been asked for by law enforcement officials that we trust with their mandate. They are peace officers, yet the government is showing it does not trust them because it is taking away tools. The peace bond standard is now in a similar fashion to the preventative arrest standard. Agencies have to prove that it is necessary to prevent violent activity or terrorism, as opposed to the Bill C-51 standard of “likely to prevent”. A protection order, better known as “a peace bond”, is a tool, like preventative arrest, that can set some constraints or limitations on the freedom of a Canadian because that person has demonstrated that he or she is a potential threat. To say the individuals have to be a certain threat, which a “necessary” standard promotes, is reckless and misguided.

I wish the MP for Papineau would remember what he said a few years ago about the reduction of the high burden on law enforcement in preventative arrest situations. Sadly, there are going to be more Aaron Drivers out there. I always use the case of Aaron Driver, because sometimes members of specific groups, some Muslim Canadians, have been unfairly targeted in discussions about radicalization. This is a threat that exists and not just in one community. Aaron Driver's father was in the Canadian Armed Forces, a career member of the military. Their son was radicalized by people who advocated and promoted radical ideology and violence. With this bill, we would remove the ability to charge those people who helped to radicalize Aaron Driver. However, this is a risk that exists.

Let us not overstate the risk. There is not a bogeyman around every corner, but as parliamentarians we need to be serious when we try to balance properly the freedom and liberties we all enjoy, and that people fought and died for, with the responsibility upon us as parliamentarians to give law enforcement agencies the tools they need to do the job. They do not want a situation where they are catching Aaron Driver in a car that is about to drive away. We have to find the right balance. The movement of standards to “necessary” to prevent the commission of a terrorism offence shows that the Liberals do not trust our law enforcement officers with the ability to collect evidence and lay charges, or provide a peace bond, when they think someone is “likely” to be a threat to public safety and security.

I started by saying that there were elements I was happy to see in Bill C-59, but I truly hope Canadians see that certain measures in this would take away tools that law enforcement agencies have responsibly asked for, and this would not make our communities any safer.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Speaker, there is nothing more arrogant than justifying a position by saying, “Don't worry, elect us, and we'll fix it”, because at the end of the day, taking a principled stand is not about what one will be able to do after one hopes to be elected. It is about standing up in the face of the very problems that are before us. That is what the then leader of the official opposition, the member for Outremont, did.

The fact is this. The Liberals have constantly, over the last number of years that I have been a parliamentarian, used the word “balance”, despite all the experts saying that it is not about balance, because balance means we are taking away from one side or the other: public safety and protecting rights and freedoms. I stood in the House and said that balance means that we are taking away from one or the other. What did I hear the minister say? He said those exact words today. The Liberals certainly like the NDP approach. I wish we would see it more in this legislation.

Let me get to the substance of my colleague's question. What is still on the books from Bill C-51 in this legislation? There is rampant information sharing between agencies that threatens Canadians' rights and freedoms, threat-reduction powers for CSIS that go against the very reason CSIS was created in the first place, and separating intelligence gathering and law enforcement.

Not only that, the Liberals have added new breaches of Canadians' privacy and rights and freedoms by expanding CSE's powers without sufficient accountability, despite our being happy with new accountability. There are poor definitions of “publicly available information” and offensive cyber-operations. What do these things mean? There are a lot of unanswered questions. They were unanswered at committee. They remain unanswered.

Unfortunately, the government is plowing ahead, despite the fact that these serious concerns have been raised by numerous people, such as the folks I mentioned who helped us craft the amendments we proposed that seemingly were not good enough for the Liberals.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Speaker, I thank my colleagues for their speeches. Here we are again, debating Bill C-59 at third reading, and I would like to start by talking about the process of debate surrounding a bill, which started not with this government, but rather during the last Parliament with the former Bill C-51.

Contrary to what we have been hearing from the other side today and at other times as well, the NDP and the Green Party were the only ones that opposed Bill C-51 in the previous Parliament. I have heard many people talk about how they were aware that Canadians had concerns about their security, about how a balanced approach was vital, and about how they understood the bill was flawed. They took it for granted that they would come to power and then fix the many, many, many flaws in the bill. Some of those flaws are so dangerous that they threaten the rights, freedoms, and privacy of Canadians. Of course, I am talking about the Liberal Party, which supported Bill C-51 even as it criticized it. I remember that when it was before committee, the member for Malpeque, who is still an MP, spend his time criticizing it and talking about its flaws. Then the Liberal Party supported it anyway.

That is problematic because now the government is trying to use the bill to position itself as the champion of nuanced perspectives. The government keeps trying to say that there are two objectives, namely to protect Canadians and to protect Canadians' rights. I myself remember a rather different situation, which developed in the wake of the 2014 attack on Parliament. The Conservative government tried to leverage people's fear following that terrible event to make unnecessary legislative changes. I will comment further on what was really necessary to protect Canadians.

A legislative change was therefore proposed to increase the powers given to national security agencies, but nothing was done to enhance the oversight system, which already falls short of where it needs to be to ensure that their work is done in full compliance with our laws and in line with Canadians' expectations regarding their rights and freedoms. Surveys showed that Canadians obviously welcomed those measures because, after all, we were in a situation where ISIS was on the rise, and we had the attack in Saint-Jean-sur-Richelieu, which is not far from my region. We also had the attack right here in Parliament. They took advantage of people's fear, so there was some support for the measures presented in the bill.

To the NDP, our reflection in caucus made it very clear that we needed to stand up. We are elected to this place not only to represent our constituents, but also to be leaders on extremely difficult issues and to make the right decision, the decision that will ensure that we protect the rights of Canadians, even when that does not appear to be a popular decision.

Despite the fact that it seemed to be an unpopular decision, and despite the fact that the Liberals, seeing the polls, came out saying “We are just going to go with the wind and try and denounce the measures in the bill so that we can simultaneously protect ourselves from Conservative attacks and also try and outflank the NDP on the progressive principled stand of protecting Canadians' rights and freedoms,” what happened? The polls changed. As the official opposition, we fought that fight here in Parliament. Unlike the Liberals, we stood up to Stephen Harper's draconian Bill C-51. We saw Canadians overwhelmingly oppose the measures that were in Bill C-51.

What happened after the election? We saw the Liberals try to square the circle they had created for themselves by denouncing and supporting legislation all at the same time. They said not to worry, because they were going to do what they do best, which is to consult. They consulted on election promises and things that were already debated in the previous Parliament.

The minister brought forward his green paper. The green paper was criticized, correctly and rightfully so, for going too far in one direction, for posing the question of how we could give more flexibility to law enforcement, how we could give them more tools to do their jobs, which is a complete misunderstanding of the concerns that Canadians had with Bill C-51 to begin with. It goes back to the earlier point I made. Instead of actually giving law enforcement the resources to create their tools, having a robust anti-radicalization strategy, and making sure that we do not see vulnerable young people falling through the cracks and being recruited by terrorist organizations like ISIS or the alt right that we see in these white supremacist groups, what happened?

We embarked on this consultation that was already going in one direction, and nearly two years after the Liberals coming into power, we finally see legislation tabled. The minister, in his speech earlier today, defended tabling that legislation in the dying days of a spring sitting of Parliament before the House rises for the summer by saying that we would have time to consider and contemplate the legislation over the summer. He neglected to mention that the very same powers that stood on shaky constitutional ground that were accorded to agencies like CSIS by the Conservatives' Bill C-51 remain on the books, and as Michel Coulombe, the then director of CSIS, now retired, said repeatedly in committee, they are powers that were being used at that time.

It is all well and good to consult. Certainly, no one is opposed to the principles behind consultation, but when the consultation is about promises that were made to the Canadian people to fix legislation that undermined their rights while the very powers that undermined their rights are still on the books and being used, then one has to recognize the urgency to act.

The story continues because after this consultation the Standing Committee on Public Safety and National Security conducted a consultation. We made recommendations and the NDP prepared an excellent supplementary report, which supports the committee's unanimous recommendations, but also includes our own, in support of the bill introduced by my colleague from Esquimalt—Saanich—Sooke, which is on the Order Paper. He was the public safety critic before me and he led the charge, along with the member for Outremont, who was then the leader of the official opposition, against Bill C-51. The bill introduced by my colleague from Esquimalt—Saanich—Sooke entirely repeals all of the legislation in Bill C-51.

Interestingly, the Minister of Public Safety and Emergency Preparedness defended the fact that he did not repeal it all by stating that several MPs, including the member for Spadina—Fort York, said that the reason not to do so was that it would be a highly complex legislative endeavour. My colleague introduced a bill that is on the Order Paper and that does exactly that. With due respect to my colleague, it cannot be all that complex if we were able to draft a bill that achieved those exact objectives.

Bill C-59 was sent to the Standing Committee on Public Safety and National Security before second reading, on the pretext that this would make it possible to adopt a wider range of amendments, give the opposition more opportunities to be heard, and allow for a robust study. What was the end result? A total of 55 amendments were adopted, and we are proud of that. However, of those 55 amendments, two come from the NDP, and one of those relates to the preamble to one part of the bill. While I have no desire to impugn the Liberals' motives, the second amendment was adopted only once the wording met their approval. None of the Conservatives' amendments were adopted. Ultimately, it is not the end of the world, because we disagree on several points, but I hear all this talk about collaboration, yet none of the Green Party's amendments were adopted. This goes to show that the process was rigged and that the government had already decided on its approach.

The government is going to brag about the new part 1.1 of the legislation that has been adopted. Contrary to what the minister said when answering my question earlier today in debate, that would not create any new legal obligation in terms of how the system currently works. The ministerial directives that are adopted to prohibit—despite loopholes, it is important to note—the use of information obtained under torture will remain just that, ministerial directives. The legal obligation that the minister or the Governor in Council “may” recommend the issuing of directives to deputy heads of departments is just not good enough. If it were, the Liberals would have had no problem voting for amendments that I read into record at committee. Time does not permit me to reread the amendments into the record, but I read them into the record in my question for the minister. The amendments would have explicitly and categorically prohibited acquiring, using, or, in way, shape, or form, interacting with information, from a public safety perspective, that may have been obtained under the use of torture. That is in keeping with our obligations under international law conventions that Canada has signed on to.

On a recorded vote, on every single one of those amendments, every member of the committee, Liberal and Conservative alike, voted against them. I invite Canadians to look at that record, and I invite Canadians to listen to what the minister said in response to me. When public safety may be at risk, there is no bigger admission that they are open to using information obtained under the use of torture than saying that they want to keep the flexibility when Canadians are at risk. Let Canadians be assured that it has been proven time and again that information obtained under the use of torture is of the most unreliable sort. It not only does nothing to protect Canadians and ensure public safety, but most of the time it does the opposite, by leading law enforcement on wild goose chases with erroneous information that could put their lives at risk, and Canadian lives at risk, not to mention the abhorrent and flagrant breach of human rights here and elsewhere through having those types of provisions. Therefore, I will let the Liberals explain why they voted against those amendments to explicitly prohibit torture, and why they feel that standing on ministerial directives and words like “may”, that are anything but binding, is good enough.

The Minister of Public Safety loves to boast that he has the support of various experts, and I have the utmost respect for those experts. I took the process in committee very seriously. I tried to unpack the extremely complex elements of the bill.

My Conservative colleague mentioned the Chair's decision to apply Standing Order 69.1. In my opinion, separating the votes on the different elements of the bill amounts to an acknowledgement that it is indeed an omnibus bill. A former director of CSIS, who served as a national security advisor to Prime Minister Harper and the current Prime Minister, said that the bill was beginning to rival the Income Tax Act in terms of complexity. Furthermore, several witnesses were forced to limit their testimony to just one part of the bill. In addition, elements were added concerning the Communications Security Establishment, or CSE, and those elements fall within the scope of national defence, yet they were never mentioned during the consultations held by the Standing Committee on Public Safety and National Security or by the Minister of Public Safety.

Before anyone jumps on me, I want to say that we realize the CSE's statutory mandate needs to be updated. We recognize that cybersecurity threats exist. However, when a government rams something through, as the government is doing with Bill C-59, we end up with flawed definitions, in particular with respect to the information available to the public, and with vague allocation of powers. Furthermore, the government is already announcing the position of a director of a new centre that is being created, under which everything will be consolidated, even though the act that is set out in the budget and, according to the minister, should be introduced this fall, has not yet been introduced.

This bill has many parts. The committee heard from some impressive experts, including professors Carvin, Forcese, and Wark, authors of some very important and interesting briefs, all of which are well thought out and attempt to break down all of the complicated aspects of the bill, including the ones I just mentioned. In their columns in The Globe and Mail, they say that some parts of the bill are positive and others require a more in-depth study. One of these parts has to do with information sharing.

Information sharing was one of the most problematic aspects of Bill C-51.

Information sharing is recognized by the experts whom the minister touts as those supporting his legislation, by civil liberties associations and others, as one of the most egregious elements of what was Bill C-51, and that is changed only in a cosmetic way in this legislation.

We changed “sharing” to “disclosure”, and what does that mean? When there are consequential amendments to changing “disclosure” everywhere else in all of these acts, it does not change anything. All experts recognize that. The problematic information-sharing regime that was brought in, which is a threat to Canadians' rights and freedoms, still exists.

If we want to talk about what happened to Maher Arar, the Liberals voted down one of my amendments to include Global Affairs as one of the governmental departments that Canadians could make a complaint about to the new review agency. Yet, when it comes to consular services, when it comes to human rights breaches happening to Canadians abroad, Global Affairs and consular services have a role to play, especially when we see stories in the news of CSIS undermining efforts of consular affairs to get Canadians out of countries with horrible human rights records and back here.

This has all fallen on deaf ears. The information-sharing regime remains in place. The new powers given to CSE, in clause 24, talk about how CSE has the ability to collect. Notwithstanding the prohibition on it being able to collect information on Canadians, it can, for the sake of research and other things, and all kinds of ill-defined terms, collect information on the information infrastructure related to Canadians.

Incidentally, as a matter of fact, it voted down my amendments to have a catch-and-release provision in place for information acquired incidentally on Canadians. What does that do? When we read clause 24 of part 3 of the bill related to CSE, it says that it is for the purposes of “disclosing”. Not only are they now exempt from the explicit prohibition that they normally have in their mandate, they can also disclose.

What have the Liberals done to the information-sharing regime brought in by the Conservatives under Bill C-51? It is called “disclosure” now. Members can do the math. We are perpetuating this regime that exists.

I know my time is very limited, so I want to address the issue of threat disruption by CSIS. As I said in my questions to my Conservative colleague, the very reason CSIS exists is that disruption is a police duty. As a result, leaving the power to disrupt threats granted in former Bill C-51 in the hands of CSIS still goes against the mandate of CSIS and its very purpose, even if the current government is making small improvements to the constitutionality of those powers. That is unacceptable.

I am not alone in saying this. As I said in my questions to my Conservative colleagues, I am talking about the excellent interview with former RCMP commissioner Paulson. He was interviewed by Professors Carvin and Forcese on their podcast. That interview raised concerns about that power.

In closing, I would like to talk about solutions. After all, I did begin my remarks by saying that we do not want to increase the legislative powers, which we believe are already sufficient. I am talking here about Bill C-51, which was introduced in the previous Parliament. We need to look at resources for police officers, which were cut by the previous government. The Conservatives eliminated the police recruitment fund, which allowed municipalities and provinces to recruit police officers and improve police services in their jurisdictions. I am thinking in particular of the Montreal police, or SPVM, and the Eclipse squad, which dealt with street gangs. It was a good thing the Government of Quebec was there to fill the gap left by the elimination of the funding that made it possible for the squad to exist. The current government is making some efforts in the fight against radicalization, but it needs to do more. The Conservatives are dumping on and ridiculing those efforts. The radicalization that we are seeing on social media and elsewhere targets vulnerable young people. Ridiculing and minimizing the government's efforts undermines the public safety objectives that we need to achieve.

We cannot support a bill that so deeply undermines the protection of Canadians' rights and privacy. Despite what they claim across the way, this bill does nothing to protect the safety of Canadians, which, let us be clear, is an objective all parliamentarians want to achieve. However, achieving that objective must not be done to the detriment of rights and freedoms, as was the case under the previous government and as is currently still the case with this bill.

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

Mr. Speaker, I would like to begin my speech this evening by talking about public safety and national security matters.

Whenever I stand up in this place, on whatever we are talking about, I always like to think about whether this is the job of the federal government. Typically, in broad sweeps, I can rarely get past the end of one hand when it comes to things the federal government should be dealing with. I usually think of things like border security, the justice system, and the military as things that definitely the federal government should be taking care of.

The issue we are dealing with tonight is one of those issues the federal government definitely needs to take care of. It is definitely something that is timely. Folks from where I come from, in Peace River—Westlock, in northern Alberta, often mention this to me when I am driving around meeting with folks. They are concerned about national security. They are concerned about terrorism issues. It is one of the top 10 things people talk to me about. Therefore, I think this is a timely debate.

I would hearken back to some of the speeches we heard earlier this evening. September 11 was a significant turning point in western civilization. I think every one of us in this place remembers that day. I remember listening to the news on 630 CHED in Alberta. My alarm clock had gone off, and I was listening to the news, when the normal broadcast was interrupted to tell us that the twin towers had been run into by an airplane. I remember that day well, as I am sure everyone in this place does. Since that day, the entire western world has had to look at how we defend our national security. Before that point, we were looking at our national security from the perspective of nation states. However, this brought a whole new protocol. We needed new laws. Frankly, I think we are still learning all of that.

I do not think the Liberals have necessarily taken serious consideration of public safety and national security in this bill. They basically looked at what we did when we were in government. They thought that the Conservatives were aggressive on this and took the bull by the horns, and they would just turn it back a notch. It does not seem to me that they are giving it adequate weight by saying that they just have to change a bunch of things in Bill C-51. The Liberals heard over and over again that Bill C-51 was bad, and they would just turn it back. That does not seem to me to be grappling with the issues we need to deal with.

Public safety and national security is hard work. We need to create a culture in Canada so that people feel safe. That is what I hear over and over again in my riding. They do not feel that the government is creating a culture in Canada where people feel safe. For example, advocating or promoting terrorism is something that has been touched on in this debate. We need to talk about that in terms of what it means when it comes to Bill C-75, which is another bill that will be debated tonight. I believe that in that particular bill, advocating or promoting terrorism, even if one is found guilty of it, would be downgraded as well.

When we look at the bill before us, I am disappointed that the Liberals have not grabbed the bull by the horns. Bill C-51 came out a number of years back, and the landscape has changed since then. I was looking forward to having a robust debate on this issue. I know that it was something in the LIberal campaign and something I was challenged on over and over again. I knew that after the election, Bill C-51 would be up for debate, and I was looking forward to having that debate on some substantive changes that could improve it.

I think we got it right with Bill C-51, but every piece of legislation is open to improvement and I was happy to come here to debate this. I do not think Bill C-59 improves on Bill C-51 at all. In fact, all it seems to do is to just turn everything back a few notches, which does not seem to make an effect. It is the exact same philosophy that we are seeing with Bill C-75. The Liberals say we have backlogs in the justice system, rather than their addressing some of the underlying causes and doing the hard work of digging into it. They say, turn the dial back a little, lower the thresholds, push people out of the system more easily rather than dealing with the actual justice system.

When I do surveys in my riding, people do not think the Liberals are taking our national security seriously. People do not think they are securing our borders properly. All of this plays into the world view of the Liberals.

Whenever I am discussing national security or justice issues, I say that people have the ability to do evil. That is a fact of life and we need to have a justice system that recognizes that. Most people lock their doors at night. Why? Because people are capable of evil. That is the truth. It would be great if we all could leave our doors open and nothing ever went missing. It would be great if we could all give up our firearms and everyone would be safe, but that is not the reality. That is the underlying philosophy that is lacking on the Liberal side. They are not convinced that people are capable of evil and they think that the justice system is being mean to people and that if we just hug the thug, so to speak, everything would be better.

There is a philosophy in this bill that if we just turn down the justice element, if we trusted people a little more, this country would be a safer place. That is definitely not the case. We need to ensure that our police officers and our intelligence community have the resources and tools they need to ensure that Canada is a safe place.

My riding is a long way from the border, and I cannot say that the border crossing issue has directly affected my riding, but it is amazing how many times people in my riding have asked, when is the government is going to do something about the border crossings? Why are the Liberals jeopardizing our public safety? We are seeing that here, as well with the terrorism issue.

One of the things people in my riding are concerned about is the growing threat of terrorism in the world. In this regard, in the bill we see that for advocating and promoting terrorism, the threshold is being lowered, and that in Bill C-75 the sentencing is being lowered. It is being taken from an indictable offence to a summary offence. The Liberals need to do the hard work that it takes to make sure that we have a national security regime that people in Canada trust. That is an important point that I wanted to make here tonight. Whatever the Liberals are doing, people need to have trust in that system that their safety is being upheld, that Canada will remain the safe place it has been in years past, and that people can sleep safely in their beds.

With that, I look forward to any questions that people may have.

[Robert Aubin, NDP, Trois-Rivières, QC]

Mr. Speaker, I wish I could say that I am pleased to rise to speak to Bill C-59 this evening. However, I have to admit that what I am really feeling is more a sense of disappointment.

That is because, first of all, there is very little difference between the previous Conservative government's Bill C-51 and the Liberal government's Bill C-59. They certainly have a lot in common. Not only do they look disturbingly alike, but they were also handled much the same way.

Those who were here in the previous Parliament will remember that Bill C-51 was kind of rushed through, the better to capitalize on Canadians' strong emotional response to an increasing number of terrorist attacks, which continue to this day. There was hardly what could be considered a full debate.

As I recall, when discussions were in their infancy, the NDP was the only party resolutely opposed to Bill C-51. The government was trying to sell the idea that we had to compromise between keeping Canadians safe, which is every government's top priority, and protecting the Charter rights and freedoms we are all entitled to.

From the outset, the NDP said we should not be seeking a compromise. Rather, we should bring about an evolution with respect to these two fundamental aspects of Canadian rights that belong to every individual.

I feel like the government is taking a similar approach with Bill C-59 now. When we are debating a bill as important as this one, there should be no reason for a time allocation motion that limits MPs' right to speak.

The 338 members of the House represent 35 million Canadians. Each one of those MPs has something to say about this. They are all concerned about the prospect of terrorist attacks here and elsewhere, in people's workplaces, or while they are on vacation. This issue is on the minds of all Canadians, and the best and only way for them to be heard by the government is here in the House. Even so, the government is limiting the time for debate.

Members will also recall that when the NDP took a firm stand against Bill C-51, the Liberals, who were in opposition at the time, pulled a rabbit out of their hat by essentially saying that they would vote in favour of Bill C-51 in order to replace it when they formed the government. If they want to replace a bill, they should vote against it. I may have been inexperienced at that time. The Conservatives' position was clear, the NDP's position was clear, and the Liberals' position was clear.

Over time, and in light of what the Liberal government has done in the past, I can clearly see that they tend to do things a certain way. For example, during the election campaign, this same government sincerely promised to reform our electoral system. As the months passed, this changed to a minor revision of certain election rules, but the overhaul of the electoral system was forgotten.

These same Liberals promised to cut taxes for the middle class. I admit that we may not have been in agreement on what the middle class is, because where I come from, the median salary is about $32,000 a year. To access the tax cuts, the threshold is at least $45,000 a year. Those who really benefit are people like me, who have a salary that is more than decent. How have middle-class taxes been cut? I am still struggling to understand that. These same Liberals promised to axe the EI reform that the Conservatives put in place to give people some time to recover when tragedy strikes.

At the moment, the figures are the same as during the Conservative era. Roughly six out of 10 Canadians who pay into EI do not qualify for benefits when times get tough. I could keep listing examples in almost every field. It is clear that this is a Liberal way to approach the big issues.

We could talk about greenhouse gas reduction, for example. “Canada is back” was the message trumpeted at the Paris conference. I thought that meant Canada was back on the world stage, but I later realized it meant Canada is at the back of the pack and staying there. That is the Liberal approach.

To sum up the issue at hand, Bill C-59 still has many flaws. I will give you some examples. The Liberals are using this bill to establish a legal framework that would allow the Canadian Security Intelligence Service, or CSIS, to store sensitive metadata on completely innocent Canadians. This is a practice that has already been rejected by the Federal Court. To back up my statements, and to show that this is not just my personal opinion, but based on testimony from people far better informed than me, allow me to quote Daniel Therrien. For those who have not heard of him, he is the Privacy Commissioner of Canada. He testified before the Standing Committee on Access to Information, Privacy and Ethics on November 22, 2016, and said:

Think of the recent judgment by the Federal Court that found that CSIS had unlawfully retained the metadata of a large number of law-abiding individuals who are not threats to national security because CSIS felt it needed to keep that information for analytical purposes.

These are not theoretical risks. These are real things, real concerns. Do we want a country where the security service has a lot of information about most citizens with a view to detecting national security threats? Is that the country we want to live in?

We have seen real cases in which CSIS had in its bank of information the information about many people who did not represent a threat. Is that the country we want?

We can already see that things have gotten out of hand, and there is a question that has people increasingly worried, as it pertains not only to the issue being debated this evening, but also to all this personal data that is being asked of us and that we often send against our will on the Internet. The question is: how will we protect this personal information? Because if it is truly personal, that means that it belongs to someone, and that someone is the only person that can consent to its use.

That is not the only problem. I see that I am running out of time, so instead of naming the problems, I will summarize the proposals presented by the NDP. The first was to completely repeal Bill C-51 and replace the current ministerial directive on the matter of torture to ensure that Canada stands for an absolute prohibition on torture. Absolute means that we will not allow through the back door what we would not allow to enter through the front door.

Based on what I have heard in the House today, all the parties agree and everyone is against torture. However, some parties seem to be saying that they might use the information obtained through torture by other countries if that information seemed pertinent. History has made it abundantly clear that not only is torture inhumane, but in most cases, the information turns out to be false, precisely because it was obtained by torture. I imagine that I would be willing to say just about anything if I were being tortured.

In closing, between Bill C-59 and Bill C-51, we still have a long way to go. Under time allocation, I simply cannot vote in favour of this bill.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Mr. Speaker, I am very pleased to rise to speak to Bill C-59, which relates to issues of national security and how we deal with people suspected of terrorist acts.

This issue is quite different from those usually addressed. Usually, I have to talk about public finance. It is quite easy to say that the Liberals are wrong because they have a deficit and that we are right because we oppose deficits, which is very clear. In that case, this is very touchy. We are talking about so many great issues, and this issue should be addressed without partisanship. For sure, it is not easy.

That is why this really should be a non-partisan issue. This will not be easy, because obviously people are sharply divided on how this information should be dealt with in order to stop terrorism and how terrorists should be dealt with.

Bill C-59 is the current government's response to Bill C-51, which our government had passed. I remind the House that the Liberals, who formed the second opposition party at the time, supported Bill C-51, but said that they would change it right away once in power. It was supposedly so urgent, and yet they have been in power for two and a half years now, and it has taken the Liberals this long to bring forward their response to the Conservative Bill C-51 in the House of Commons.

As I was saying earlier, some questions are easier to answer, because they are based not on partisanship, but on your point of view. For example, when it comes to public finances, you can be for or against the deficit. However, no one is arguing against the need to crack down on terrorism. The distinctions are in the nuances.

That is why the opposition parties proposed dozens of amendments to the bill; sadly, however, with the exception of four technical amendments proposed by the NDP, the Liberals systematically rejected all amendments proposed by the Conservative Party and the Green Party, and Lord knows that there is an entire world between the Conservative Party and the Green Party.

This bill is meant to help us tackle the terrorist threat, whether real or potential. In the old days, in World War II, the enemy was easily identified. Speaking of which, yesterday was the 74th anniversary of the Normandy landing, a major turning point in the liberation of the world from Nazi oppression. It was easy to identify the enemy back then. Their flag, leader, uniform and weapons were clearly identifiable. We knew where they were.

The problem with terrorism is that the enemy is everywhere and nowhere. They have no flag. They have a leader, but they may have another one by tomorrow morning. The enemy can be right here or on the other side of the world. Terrorism is an entirely new way of waging war, which calls for an entirely new way of defending ourselves. That is why, in our opinion, we need to share information. All police forces and all intelligence agencies working in this country and around the world must be able to share information in order to prevent tragedies like the one we witnessed on September 11, 2001.

In our opinion, the bill does not go far enough in terms of information sharing, which is necessary if we are to win the fight against terrorism. We believe that the Communications Security Establishment, the RCMP, CSIS and all of the other agencies that fight terrorism every day should join forces. They should share an information pipeline rather than work in silos.

In our opinion, if the bill is passed as it is now, the relevant information that could be used to flush out potential terrorists will not be shared as it should be. We are therefore asking the government to be more flexible in this respect. Unfortunately, the amendments proposed by our shadow cabinet minister, the hon. member for Charlesbourg—Haute-Saint-Charles, were rejected.

We are very concerned about another point as well: the charges against suspected terrorists. We believe that the language of the bill will make it more difficult to charge and flush out terrorists. This is a delicate subject, and every word is important.

We believe that the most significant and most contentious change the bill makes to the Criminal Code amends the offence set out in section 83.221, “Advocating or promoting commission of terrorism offences”. This is of special interest to us because this offence was created by Bill C-51, which we introduced. Bill C-59 requires a much more stringent test by changing the wording to, “Every person who counsels another person to commit a terrorism offence”. The same applies to the definition of terrorist propaganda in subsection 83.222(8), which, in our opinion, will greatly restrict law enforcement agencies' ability to use the tool for dismantling terrorist propaganda with judicial authorization as set out in Bill C-51. Why? Because as it is written, when you talk about counselling another person to commit a terrorism offence, it leaves room for interpretation.

What is the difference between a person and a group of people; between a person and a gathering; between a person and an entity; or between a person and an illicit and illegal group? In our opinion, this is a loophole in the bill. It would have been better to leave it as written in the Conservative Bill C-51. The government decided not to. In our opinion, it made a mistake.

Generally speaking, should we be surprised at the government’s attitude toward the fight against terrorism? The following example is unfortunate, but true. We know that 60 Canadians left Canada to join ISIS. Then, they realized that the war was lost because the free and democratic nations of the world decided to join forces and fight back. Now, with ISIS beginning to crumble, these 60 Canadians, cowards at heart, realize that they are going to lose and decide to return to Canada. In our opinion, these people are criminals. They left our country to fight Canadian soldiers defending freedom and democracy and return to Canada as if nothing had happened. No.

Worse still, the Liberal government’s attitude toward these Canadian criminals is to offer them poetry lessons. That is a pretty mediocre approach to criminals who left Canada with the mandate to kill Canadian soldiers. We believe that we should throw the book at these people. They need to be dealt with accordingly, and certainly not welcomed home with poetry lessons, as the government proposes.

Time is running out, but I would like to take this opportunity, since we are discussing security, to extend the warmest thanks to all the employees at the RCMP, CSIS, the CSE and other law enforcement agencies such as the Sûreté du Québec in Quebec and municipal police forces. Let us pay tribute to all these people who get up every morning to keep Canadians safe. I would like to take this opportunity to thank the 4,000 or more police officers from across Canada who are working hard in the Charlevoix and Quebec City regions to ensure the safety of the G7 summit, these people who place their life on the line so that we can live in a free and democratic society where we feel safe. I would like to thank these women and men from coast to coast to coast that make it possible for us to be free and, most importantly, to feel safe.

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Speaker, I want to thank the member for her thoughtful question. It is an important one.

Canadians very much value their privacy, and today's use of metadata represents a significant risk to privacy in Canada. I want to assure my colleague that I strongly support efforts to ensure that data, including metadata, that is not critical to protect the national security of our country should be kept private. There are significant challenges to doing that today, especially with the use of social media. It is something that all governments have to take seriously.

That said, at the end of the day, when a bill like Bill C-51 is brought forward—a bill that undermines our national security by making it more difficult for government departments and government agencies to speak to each other to ensure that they have the critical information required to protect Canadians—we have a problem. That is why I am critical of Bill C-59.

Bill C-51 established a very good environment within which our security agencies could do the job Canadians have asked them to do. Again I note that the Liberals who are being critical of that bill today actually voted in favour of it back then.

Bill C-59—Time Allocation Motion

[Lloyd Longfield, Liberal, Guelph, ON]

Mr. Speaker, I had an interaction on social media last week with one of my constituents who was very impatient about the fact that Bill C-51 was still in place. The constituent remarked, “You said you were going to change things. We elected you to change things. You have not changed things. Why are you not changing things?”

The public is very anxious to see this move forward, as the previous government was politicizing security.

Could the minister comment on how, once the bill is enacted, there would be a new open, and third party review of security matters, depoliticizing the process of security?

[Cheryl Hardcastle, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, the minister's depiction was rather disingenuous about what is happening here in the House today, and I take exception to it. The people in my riding of Windsor—Tecumseh followed the issue of Bill C-51 in earnest, and all of these comments and consultations the minister is bragging about now were actually presented to all of us in this place in earnest.

Those comments were meant to foster meaningful debate in the House. No one sent comments to the minister, and I guarantee that, thinking for one minute that it would mean that he was going to cut off debate in this place on a bill like Bill C-59. We have been following this issue for a long time. The minister tabled this last year, in the dying days of our spring session. We then heard nothing, and today he is going to pull the rug out and brag about consultations. It is very disingenuous.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

With respect to Bill C-39, as you say, it has now been put into Bill C-75, as has another very important piece of the legislation around victim fine surcharge and human trafficking.

In terms of time with regard to the passage or proceeding in the House, I'm not sure that's a question I can specifically answer. As to why we have put these bills into Bill C-75, it's to ensure that the important provisions that are contained within these proposed pieces of legislation are moved through. It makes sense to me, in terms of a thematic approach, to put these bills into Bill C-75, because they are all looking to amend the Criminal Code.

I hear the member in talking about the McCann family and the tragedy faced by the McCann family. We wanted to ensure, in then Bill C-39 and in Bill C-51 , that we do renovate the Criminal Code and that we do get rid of the unconstitutional provisions. I would look to the member, as well as to everybody on this honourable committee, to have vigorous debate and discussion about all of the provisions and proposals that are contained within Bill C-75. This committee and the legal and constitutional affairs committee of the Senate have been very diligent, and necessarily so, in terms of seeking that I and our government address delays in the criminal justice system. Bill C-75 does do that, as well as address the necessary changes we have proposed in terms of the victim fine surcharge to address indigent offenders, as well as get rid of the constitutional provisions beyond section 230, which the member talked about.

Justice

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

Mr. Speaker, Conservatives in Canada believe that the number one priority of any government should be the safety of Canadians. The criminal justice system must strengthen these provisions, not weaken them.

In 2017, the Liberal government introduced Bill C-51. Ostensibly, it was intended to eliminate unnecessary and unconstitutional clauses in the Criminal Code, but buried in it were a number of additional Criminal Code provisions the Liberals decided to remove, including long-standing protections for clergy and places of worship. There was no logical reason why these were included, particularly at a time when incidents of religious intolerance are increasing. The government only backed down and removed these proposals after Canadians spoke up and said this was completely unacceptable.

However, they are back. Bill C-75 would reduce penalties for a whole range of serious crimes, including membership in a terrorist organization and political corruption, but it also would reduce sentences for obstruction and violence toward clergy.

Why is it that the Liberal government always puts terrorists and criminals ahead of victims?

Report stage

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I attended many a rally concerning opposition to Bill C-51. Those constituents and people across my city are not any more convinced that they are not still concerned. The only time I received more concerns was over the fact that the government refuses to deal with the arms trade.

It is my understanding that the government is still refusing to absolutely prohibit the use of information attained through torture, not just prohibit the country from using torture to get information but in any way prohibit its use. The reason I raise this is that both Liberal and Conservative governments have been involved in rendition and in colluding to get that information.

If there is one thing we hear a lot of Canadians speak out about, it is that they are opposed to providing reparations when the government violates international law. We have Maher Arar, Abdullah Almalki, Ahmad El Maati, and Muayyed Nureddin. Is the government not concerned that the amount we have to pay out in reparations is simply going to mount if we do not finally and absolutely prohibit, in any circumstance, the use of information gained through torture?

Motions in Amendment

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

moved:

Mlotion No. 1

That Bill C-59 be amended by deleting the short title.

Motion No. 2

That Bill C-59, in Clause 49.1, be amended:

(a) by replacing lines 13 to 15 on page 43 with the following:

“3 (1) The Governor in Council must issue written directions to all deputy heads prohibiting”

(b) by deleting line 25 on page 43 to line 2 on page 44.

Mr. Speaker, it is unfortunate that the third motion, which pertained to one of my amendments, was not selected by the Chair, but I will still come back to the important points about it in a few moments. Just because it was not selected does not mean we cannot talk about it.

We are near the end of what has been a very long road with this government on an issue that dates back to even before the Liberals took office. Obviously, we must recognize that Bill C-59 is the result of the Liberals' approach. On one hand, during the last Parliament they supported Stephen Harper's draconian bill, Bill C-51, and on the other, they claimed that there were a lot of problems with the bill. The Liberals told people not to worry, however, because when they took office they would fix all of those problems. That was problematic for obvious reasons. If the bill was so flawed, posed so many problems with regard to national security matters, and violated Canadians' rights and freedoms, the Liberals should not have voted to pass it, and yet that is exactly what was happening with Bill C-51.

Let us fast forward a little. After the Liberals were elected, they waited two years to introduce the legislation. They said that they had to hold public consultations. I will come back to that.

Meanwhile, the Canadian Security Intelligence Service, or CSIS, used the power to disrupt threats bestowed upon it by Bill C-51. CSIS confirmed that in committee.

While we waited those two years for the government to consult, even though the election promise had been to consult on a specific piece of legislation, this was open consultation, or so it would seem. However the problem was, and many experts decried this, the fact that the government's green paper seemed to indicate, through some of the notions that were put forward, that some of these aspects were already a foregone conclusion. There was a definite bent more toward the side of intelligence gathering and law enforcement, and certainly a lack of substantive points being made in favour of the other side of that, which was protecting Canadians' rights and privacy.

Too often the Liberals, in the committee in particular, like to put the word “balance” forward. As we heard from representatives of the Canadian Civil Liberties Association, when they presented at committee, balance implies that something is being taken away from one side or the other to achieve said balance. For us, the question of rights and liberties, and certainly the protection of Canadians' privacy, is not something that can almost be a victim of that type of compromise required to achieve said balance.

The other aspect that was not included in the public consultations, but that eventually became a central topic in our committee study, is the Communications Security Establishment, or CSE.

CSE, as members will know, is under the purview of the Minister of National Defence and its mandate is given to it by the National Defence Act. However, despite promises to no longer come forward with omnibus legislation, the Liberals have taken something that is the purview of the Minister of National Defence, something that the national defence committee has the institutional memory to study, all due respect to me and my colleagues on the public safety committee, and put it into this legislation.

That ended up taking up inordinate amounts, and rightly so, of time at the committee. These new powers being given to CSC and the huge change being made to CSC's mandate took up a lot of space and led to the most questions, not just from members but also from some of the experts who were there. Quite frankly, as far as we are concerned, many of those questions still remain without answers.

For example, there is the issue of CSE's cyber defence capabilities, as well as its offensive and active capabilities. The experts asked many questions on that subject. I introduced an amendment in committee to eliminate these powers, but it was not intended to compromise the safety of Canadians or our cybersecurity. We still kept CSE's defensive powers and capabilities in place. However, we had the right to ask questions, as I did with the senior CSE officials, though I did not get satisfactory answers, especially about what all this means for our country's military future.

CSE is governed by the National Defence Act, but it is a civilian agency, not a military one. However, Bill C-59, and now the federal budget and the legislation that the Minister of Public Safety and Emergency Preparedness says will be tabled this fall, is opening the door to capability sharing between CSE and Canadian Forces to improve our cyber capabilities in a military context or even in war zones.

I posed questions to the chief of the CSC and other officials who were present throughout different stages of the study. I said that there was some debate in the context of international law as to what sovereignty meant in this digital age. An act of war is when one infringes on someone's sovereignty, but is a server part of one's sovereignty? What is the role that data is playing in this? Certainly, colleagues who work on the trade file had similar concerns that they raised.

I asked these questions in the context of information-sharing capabilities with Canadian forces. All I was able to get as an answer was that this stuff was already being done and it was better that it be codified in the law with all the protections, oversight, and review. Pardon me for being glib, but that all comes with that. However, it is not enough. If a foreign state actor, as the bill describes, engages in some kind of activity, we are talking about the Minister of National Defence having the capability to interfere with intellectual property and to be engaged in an active way.

In this era, when the federal budget is talking about more and more capability sharing between police and intelligence services, which let us not forget is what CSC is, ultimately, as it is not any kind of offensive entity but rather deals with foreign intelligence, and then to involve the Canadian Armed Forces, we are going down a slippery slope. This is not an issue I raise. It was one that witnesses raised time and again throughout this study.

Part of the reason why I tabled amendments, which were unfortunately voted down by the Liberals at committee, was to remove these elements, not because we disagreed, although they certainly are concerning, but because they required proper study. They should not have been part of omnibus legislation. They had nothing to do with the previous Bill C-51. Nor were they part of the public consultations that both the minister did and the committee did.

That is important. I know the answer I will get is that all the issues relate to national security. That is not enough. We need to be able to examine these issues more thoroughly, and that is certainly not the feeling we got.

Lets continue to look at part three of the bill that has to do with CSE. One of my amendments was unfortunately deemed inadmissible by the Chair, because it was too similar to another amendment I had proposed and that my colleague, the leader of the Green Party, had also proposed. The motion was almost word for word what the experts had suggested. It had to do with publicly available information. We will come back to this concept.

The concept, as it currently exists, is important because it gives CSIS and CSE the power to collect publicly available information. With respect to CSE, we were told over and over again that its mandate does not concern Canadians, since the legislation explicitly prohibits it from targeting Canadians. We must be careful, though, and we have to read part three of the bill, subclause 23 and 24, and the next few subclauses.

Subclause 23 indicates that, despite the ban on targeting Canadians, the centre can collect publicly available information for study and research purposes. In short, it lists a number of things to advance its mandate. Even collecting information inadvertently is allowed. This is very problematic.

We tried to do a few things to fix that. The first was to change the definition of “publicly available information”. That is because when I asked representatives of the CSC if the information that Cambridge Analytica legally but immorally stole from Canadians and others throughout the world through Facebook would be part of publicly available information under the definition provided in this legislation, I got a one-word answer, which is rare in these parts. It was “yes”.

What does my amendment propose to do? The Liberals said not to worry, that they would deal with it. They put in the words “a reasonable expectation of privacy”. That is good. That was part of my amendment as well, as was it part of the amendment brought by the member for Saanich—Gulf Islands. However, there is a whole slew of information missing from that. Allow me to read it to the House, since unfortunately it was deemed inadmissible and voted down by Liberals at committee.

It states that it would also include, along with information where Canadians have a reasonable expectation of privacy, “information that is published or broadcast only to a selected audience or information that is subscribed to or purchased illegally”, in other words, the prohibition on information purchased illegally. That is the problem with these amendments sometimes when one is reading them without the rest of the text that follows. Why is that important? It is important because despite the assurances that we got, there are a lot of questions about this. These are questions and concerns that some of the foremost experts in the field all have as well.

I also proposed an amendment for a catch-and-release principle, for information acquired incidentally on Canadians by the CSC. If it truly does not need the information captured incidentally, I understand it. That happens sometimes when one is going to study the information infrastructure in Canada. Therefore, we had a reasonable compromise, which was that if it happens, the centre has a responsibility to get rid of it. That was another amendment that was voted down by the Liberals on the committee.

I could speak at length about the CSE aspects, but I have only 20 minutes for my speech. It just goes to show how complex and worrisome the new concepts are and how we are far from having enough time to address them today. I would even say that we had very little time in committee as well. I have been in Parliament for seven years, and for the first time since becoming an MP, even though I can be quite verbose, my mic was constantly cut off and not through any fault of the chair, but because we simply did not have enough time to get into the details. I am not blaming the committee chair, who does excellent work on this study. Unfortunately, we did not have enough time for this conversation.

I want to come back to something more specific that affects more than just CSIS. I am talking about one of my amendments that were deemed admissible. Amendments that go beyond the scope of a bill can be proposed when that bill is referred to committee before second reading, as this one was, and the Liberals took advantage of that.

The Liberals used that opportunity to essentially present a new bill into the legislation dealing with the question of information obtained under use of torture, which bafflingly the Conservatives voted against. However, we do not have time to get into that today.

I voted in favour of it, for two reasons, but it does not go far enough, and we are going to get to that. The first reason is because the fact that it was even on the table was an acknowledgement that the status quo is not good enough, that the ministerial directives right now are not good enough, and that having these concepts more explicitly enshrined in law is always a good thing. Even though some of these symbolic statements in legislation sometimes seem to be only that, symbolic, they guide the decisions made and the advice given when these agencies seek legal opinions and so forth. On that front, it is a good thing. The other reason I supported it was because it is better than nothing. However, the language that remains is that the Governor in Council “may” issue directives to deputy heads. At the end of the day, we remain in the same situation we were in before. These were all recorded votes, so Canadians can check them.

Let me say for the record that I offered more explicit amendments to nearly every section of the bill that dealt with one of these agencies, putting in an explicit prohibition on using information that may have been obtained under the use of torture. Every single Liberal and Conservative on the committee voted against them. That is absolutely shameful.

Here is the motion that is before us today: that “The Governor in Council must issue written directions to all deputy heads..”. At the very least, even though we are still dealing with ministerial directives, that obliges the government of the day to issue the directions, even though we already know that the directives themselves have loopholes. Even if the current directives, I will acknowledge, are stronger than the ones in the previous government, there are still holes in them, and those holes need to be addressed.

It is sad to see that my amendments, which would have at least done something to prohibit the use of that type of information, were defeated through the committee process.

Speaking of my amendments, I want to mention one thing I forgot at the beginning of my speech, since I think the Canadians watching us will find it interesting. The government said that it was open to suggestions from the opposition. I suggested 120 amendments, and just four of them were accepted by the Liberals Three were accepted on the condition that I use the Liberals' wording, and the other was accepted because it was just a preamble. Not a single one of the Conservatives' 25 or 29 amendments was accepted. Not a single one of the Green Party's 55 amendments was accepted either.

The Liberals proposed amendments. Anyone can look at them, they are public. The Liberals put forward one amendment and decided to withdraw the others because they had an inferior one to replace them. I therefore proposed the Liberals' amendments myself, and they voted against their own amendments. That speaks volumes about the process.

I have just three minutes left, and I have only spoken about one part of the bill. I just spent 20 minutes giving a speech on the flaws of a single part of a bill that has 10 parts. That tells you everything you need to know about the flaws in this bill, not to mention the fact that CSIS retains its power to disrupt and to detain without any right to counsel, as was the case with the former Bill C-51.

Without mentioning that apart from changing the word “sharing” to “disclosure”, even though the word “disclosure” was there, what was qualified by groups like the B.C. Liberties Association, among others, as a cosmetic change at best to the information sharing regime remains in place. It was one of the biggest criticisms we had, and a reason for voting against Bill C-51 in the previous Parliament.

We will get to that through a future point of order, but hopefully we can vote on different elements of the bill. There are two parts that are good, review and oversight. Despite the fact that we tried to make changes to the review body to make it more accountable to Parliament and less to the executive, it was rejected. With the real-time oversight of the intelligence commissioner, we tried to make that a full-time position. I was not able to propose those changes, as they would require royal prerogative, which I, as an opposition member, do not have. Perhaps I can enter a final plea, although at report stage it is probably too late for that.

It is all too clear that, on the one hand, the Liberals did not want the Conservatives to criticize them for standing up for the rights and freedoms of Canadians and, on the other hand, they wanted to try to protect their progressive image in light of our legitimate criticisms that they have failed in their duty to protect the rights and freedoms of Canadians. Despite all the time we were able to dedicate to the study, despite the public consultations, questions from experts, criticisms from members, and a grandiose announcement that the Liberals were going to do things differently in committee, still, all of our amendments were rejected. The same system will remain in place and not enough improvements are being made in terms of what the Conservatives proposed.

In conclusion, it is true that we are entering a brave new world. We certainly know that in this digital age. I acknowledge that the threats are evolving and we need to address them. There is no doubt about that. However, one thing is for sure: right now, the ability of these agencies to act is outpacing the protections that Canadians have for their rights and freedoms, and their privacy.

That, for me and my party, is completely unacceptable, because at the end of the day, if we truly want to defeat these threats and what they stand for, if we truly want to stand on the other side of that terror and on the right side of history, it means standing up for Canadians' rights and freedoms. This bill just would not do that, and we will continue to oppose it. It is absolutely unfortunate, because we heard that better is always possible, but it does not seem to be with this legislation.

Citizenship and Immigration

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Speaker, I would love to debate the other bill. However, at the same time, the member for Calgary Nose Hill has moved a motion, and that is her right. If the member thinks she does not have the right to do that, then we have a serious problem here.

The Liberals waited until we were close to the election to table bills for election reform. They waited two years to table their Bill C-51 reforms. At the end of the day, they control the agenda of the House. If they want to whine and complain about it and not contribute, that is their problem.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, my colleague always shows how things should be done in the House by just simply standing and providing very cogent presentations on very complex matters. I give him a thousand accolades for that.

I am little troubled about what our colleague across the way has suggested, that instead of talking about this matter of ensuring services are delivered to support constituents, it would be more important to talk about a policy reform. In my constituency office, time after time people tell me that they would like me to reform the policy on immigration, employment insurance, and the way assistance is provided to constituents. They are also concerned about what was Bill C-51, and hopefully it will be improved, although we will not hold our breath.

Could the member speak to that again? We need to remember that we have two roles as elected members, and certainly working on providing better services to our constituents is an equally important one.

Criminal Code

[Dave Van Kesteren, Conservative, Chatham-Kent—Leamington, ON]

Madam Speaker, I recall a time, not too long ago, when we were doing some battle with the Liberals on Bill C-51. I would just remind the House what that was in regard to. There was an attempt by the Liberals to take away the protection of places of worship. There was a long list of staggering and frightening changes that the Liberal government was proposing to make.

I am wondering whether the Liberal government has used this legislation as a back door to once again make that attack on places of worship.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Speaker, I am presenting, I am sure, one of the largest petitions you perhaps have seen in this House. It is related to the government's attempt to repeal section 176 of the Criminal Code in Bill C-51. That is the section that protects members of the clergy and religious services. When the government decided that it was going to remove that completely from the Criminal Code, it caused a considerable amount of discomfort and outrage across this country.

I have a petition signed by over 8,000 people. They are petitioning the government to leave that section alone so that religious services and members who officiate at religious services have specific protections. I am proud to present this. The petition has been duly certified by the clerk of petitions.

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

Thank you, Mr. Chair.

As this was already in Bill C-51, we intended to withdraw this amendment from Bill C-59. However, there may be some confusion about it.

Could the officials tell us what the situation is?

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Chair.

This will be brief. This is another consequential amendment to what I presented in the first meeting that seeks to fully repeal what was SCISA, now SCIDA, the information sharing regime brought in by former Bill C-51.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

I agree with Ms. May entirely and I would simply add that it's even more dangerous, to my mind, in this context, because information sharing is at the heart of one of the most problematic elements of former Bill C-51, now being modified through Bill C-59.

I think the wording that both Ms. May and I are proposing here is far more appropriate and, as she so eloquently pointed out, is what is proposed by many experts who clearly have expertise in the field.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I appreciate the view of the officials, but with all due respect to Mr. Fragiskatos, Professor Roach and the Canadian Bar Association aren't pikers, and this isn't, as we like to say, their first rodeo. Professor Roach is one of the country's leading experts in security law, and the same departments and the same Justice officials in the previous government gave us completely dangerous broad definitions such as “terrorism...in general” in part 3 of Bill C-51, which made no sense, but they defended them just as vigorously to a committee then.

With all due respect to our officials here, there is no justification for having a different definition. It doesn't add confusion to the law to be consistent. It adds confusion to the law to use a novel definition that's found only in the Security of Canada Information Sharing Act.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

I propose—and the clerk can check if I've got this right—to deal with amendments PV-10, PV-11, PV-12, PV-13, PV-14, PV-15, PV-22 et PV-25.

I think those are all the amendments in this regard.

These amendments all speak to the same point, and I think those are all the ones that remain extant after the slaughter of Mr. Dubé's amendments. Sorry. It's a ritualized slaughter. We appreciate the effort.

I think those are the ones I could speak to all at once and, with the chair's permission, speak to the fundamental point these amendments are trying to achieve. I hope, because of the unusual nature of this process before second reading, that some of my words might reach ministers' offices as well, and that members of the committee might consider whether it isn't wise to actually have a fundamental rethink of the structure of our security intelligence legislation.

This is an important moment, as we all know. This is the most fundamental review we have had in years. It's really good legislation insofar as it sets up the national security intelligence and review agency. Having NSIRA is a big change, but in my view, Mr. Chair, it doesn't take away from the fundamental mistake that was made in Bill C-51.

Forgive me, but having been through the hearings at Bill C-51, I know there were witnesses this committee didn't hear talking about the risks of CSIS having kinetic powers at all. That's what I want to speak to. I will be brief.

This legislation reduces the wrongs that could be done by CSIS agents having these new powers to disrupt plots, but it doesn't deal with something quite fundamental that we grappled with in committee on Bill C-51. It was certainly raised by witnesses and experts like Craig Forcese and John Major, former Supreme Court justice, and also in the Senate. Actually one of the most important witnesses on Bill C-51 was heard on the Senate side. His name's Joe Fogarty. He was the U.K. security liaison with Canada. He was an MI5 agent from the U.K. What he pointed to was the big risk of the RCMP and CSIS not talking to each other, and when you then give CSIS powers to actually disrupt plots, you have an accident waiting to happen, basically.

In his evidence, he referred the committee only to those things that are publicly known, but he assured the committee that, from his work as a U.K. security liaison in the Five Eyes system with Canada, there were more examples of which he could not speak. He directed us to the 2009 case of R. vs. Ahmad where, on the evidence, CSIS discovered the location of a suspected terrorist training camp within Canada and decided not to tell the RCMP.

There's another example, which was in the Canadian Press, to which Joe Fogarty also referred. In the case of Jeffrey Delisle, which we all know—the navy officer who sold secrets—apparently CSIS knew of the spying operations of Delisle for a very long time and decided not to tell the RCMP. Delisle was arrested when the RCMP was tipped off by the FBI.

There's a fundamental problem here, which John Major at the time referred to in this committee and its predecessor in the 41st Parliament. It's human nature not to want to share information, so what have we done now? I think we've compounded the problem because CSIS now has the powers to take action, but we haven't dealt with the fundamentals that it still may not want to tell the RCMP.

The situation is much improved because NSIRA can supervise what's going on. If it sees a problem, it can maybe intervene, but there still has never been a public policy rationale put forward by anyone, ever, for why CSIS needs the power to disrupt plots. CSIS was created, as Mr. Dubé referred to moments ago, in order to create a security and intelligence gathering, to give that information to the RCMP. That's the purpose. It was to separate it out, so that you wouldn't have the RCMP burning down barns and so on.

I don't see to this day why we want CSIS agents to have the capacity to disrupt plots within Canada.

The RCMP and CSIS need to work together and NSIRA needs to supervise them. All my amendments take out of our legislation the right of CSIS agents to have kinetic powers. Again, Bill C-59 improves on Bill C-51 in important ways, reducing and better balancing what CSIS agents are likely to do. I know we don't have anyone here from the RCMP on our witness roster but the RCMP job of disrupting plots will be complicated by the fact that CSIS doesn't share information with the RCMP. That's a pattern. That's our history. Things are improved in what CSIS agents can do. Thanks to Liberal amendment 16, we won't be worrying about torture, but there's still no public policy rationale for CSIS agents having these new powers to take kinetic action to disrupt plots.

I'm raising a different issue. The issue of whether we are undermining our own security intelligence operations by having different intelligence agencies tripping over each other, not talking to each other, when they're taking active steps to disrupt a plot. I'd rather have CSIS continue to do what it's always done since its creation, which is to collect the information and give it to the RCMP in a timely manner, which is what they haven't always done, so that the RCMP can arrest the Jeffrey Delisles of this world, not wait to be tipped off by the FBI or trip over CSIS agents who are trying to do the same thing.

Thank you.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

I appreciate that. My time is limited, so perhaps we can come back to that in a second. While the minister is here, though, I have a couple more questions.

We mentioned the mandate and the relationship with the Department of National Defence. That leads me to the question I asked the officials from Public Safety. We've spent a lot of time on this aspect of the bill. I think your presence here today is proof of the need to drill down on that aspect of it. This committee doesn't necessarily have the same kind of institutional memory that the committee of national defence would have. Can you explain why the decision was made to take a bill that essentially was moving on elements that were in the previous bill, Bill C-51 in the last Parliament, and essentially add this big block of stuff dealing with some significant changes to CSE as opposed to having it as stand-alone legislation?

[Daniel Therrien]

We aren't necessarily suggesting that the documents be destroyed within a short time frame. We are recommending a risk-based approach. A great deal of information is collected on a huge number of transactions, the vast majority of which relates to the financial transactions of law-abiding Canadians. That is the basis of the approach used to detect criminals or terrorists and is very similar to the procedure proposed in Bill C-51 and Bill C-59. It has merit, but the information has to be screened using numerous pieces of data to uncover threats and individuals who are security threats or criminals.

I am not calling the process into question, but it's helpful to keep some figures in mind. Over the past few years, the ratio of actionable disclosures to law enforcement or other organizations has been one for every 10,000 reports received. For every 10,000 reports received, only one disclosure is made to police, the Canada Revenue Agency, or security agencies. We found that a significant amount of information is collected but that people pose a security threat in a very small number of cases.

I'm not saying that the information should no longer be collected, but I am recommending that a risk-based approach be adopted, as the Canada Revenue Agency officials more or less suggested. A considerable amount of information can be gathered initially, but a risk-based approach—one that takes into account the usefulness of the information for forensic evidence purposes—can be applied. That could be one of the factors given consideration. However, a risk analysis should be conducted fairly early on to determine whether the information needs to be retained or not. It is possible that, for a variety of reasons, a certain number of reports would need to be retained for a long period of time. On the flip side, I think many other reports would need to be destroyed rather quickly, as proposed in Bill C-59.

Personally, I see similarities between the approach set out in Bill C-59, which proposes extensive data collection in order to identify the small number of people who pose a threat, and the collection of financial transaction information under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, in order to identify a small number of criminals who are laundering money or contributing to terrorist financing.

[Daniel Therrien, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada]

Thank you, Mr. Chair.

I’d like to thank the members of the committee for the opportunity to appear before you today as part of your statutory review of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, or PCMLTFA.

We, of course, support Canada's efforts to combat money laundering and terrorist financing. However, the manner in which these efforts are undertaken must strike an appropriate balance between the need to combat such activities and respecting privacy rights of Canadians.

The most apparent privacy implication with this regime is that it casts a wide net capturing a great deal of information about law-abiding Canadians conducting financial transactions, with a view to uncovering threats to national security or incidents of money laundering.

In our previous parliamentary briefs on Bill C-51 and Bill C-59, we signalled concerns around information collection and sharing regimes in the context of national security.

Specifically, we have highlighted the need for rigorous legal standards around the collection and sharing of personal information, effective oversight, and minimization of risks to the privacy of law-abiding Canadians, in part through prudent retention and destruction practices.

As you are aware, subsection 72(2) of the PCMLTFA provides my office with a mandate to conduct biennial reviews of how FINTRAC protects information it receives or collects under this act. We can also conduct reviews under section 37 of the Privacy Act.

All of our audits have identified issues with FINTRAC receiving and retaining reports that do not meet legislative thresholds for reporting.

In 2014, the PCMLTFA was amended by Bill C-31 to add subsection 54(2), which requires that FINTRAC destroy information in its holdings that was not required to be reported.

Although FINTRAC has implemented measures to validate incoming reports, a significant improvement, we continue to identify information in FINTRAC databases that did not meet thresholds and should not have been retained.

Also, we have generally found FINTRAC to have a comprehensive approach to security, including controls to safeguard personal information. Our most recent audit did identify governance issues between FINTRAC and Shared Services Canada, which FINTRAC has committed to addressing.

Beyond these issues, which we are mandated to review under the PCMLTFA, our principal concern, based on our experience reviewing FINTRAC over the past 10 years, relates to the lack of proportionality of the regime. Disclosures to law enforcement and other investigative agencies made in a given fiscal year represent a very small number when compared with the information received during that same time frame. For every 10,000 reports received, one disclosure is made.

Information received is also retained for long periods. FINTRAC's retention of undisclosed reports increased from five to 10 years in 2007.

Even if one accepts that sharing financial transaction data related to law-abiding citizens may lead to the identification of threats of money laundering or terrorist financing activities, once that information is analyzed and leads to the conclusion that someone is not a threat, it should no longer be retained.

More broadly, we have noted a trend to broaden the regime over the years, and we note the Department of Finance Canada's vision of moving towards a holistic information collection scheme, which would create an environment supporting increased analytics and information sharing. We have already seen discussion about lowering existing thresholds for reporting, which could be done through regulations without parliamentary approval. In the consultation paper, the Department of Finance Canada also suggests increasing the number of reporting agencies and establishing a new model for engagement of the private sector.

While I appreciate that a holistic approach to the collection and sharing of information might be useful to identify threats, what is proposed, unless appropriate privacy safeguards are adopted, would further exacerbate our concerns with proportionality.

Instead, I would suggest that a risk-based approach be adopted in order to minimize the risk of over-collecting and retaining the financial and personal information of law-abiding citizens. Under such an approach, FINTRAC, based on a thorough risk-based analysis of its data, would develop criteria to limit collection, sharing, and retention to only situations likely to represent potential manifestations of terrorist financing or money laundering.

We realize this may be challenging, but as privacy experts, we at the OPC believe we can play a role in the assessment of these factors, which leads me to this: currently our review mandate, under the PCMLTFA and the Privacy Act, is limited to ensuring that these statutes and regulations, as enacted, including monetary thresholds for collection, are respected.

We think a more useful contribution would be to provide advice, after review, on amendments that could be made, to either the statutes or the regulations or the practices of FINTRAC, to ensure greater proportionality, including the assessment of risk factors that might govern information collection, sharing, and retention.

The government is recommending that the PCMLTFA be amended to provide that the reviews we currently undertake every two years under section 72 now occur every four years. We agree in part, but we would recommend a change of purpose for these reviews.

First, we would recommend that the purpose of our reviews under the act be modified to include advice or recommendations on proportionality, as just mentioned.

Second, they would begin at least one year before every anticipated five-year review that Parliament must undertake. The OPC would continue to conduct compliance reviews under section 37 of the Privacy Act, which would not need to be amended. As it relates to proportionality, the committee may wish to consider part 4 of Bill C-59, currently before Parliament, concerning CSIS datasets and their retention, which might be instructive.

Under that model, CSIS must clean data promptly—that is, within 90 days—and can retain Canadian datasets only if the Federal Court is satisfied that doing so is likely to assist in the performance of CSIS's mandate, including the detection of threats to the national security of Canada. In addition, with respect to any contemplated changes to reduce existing thresholds through regulations, which would also affect proportionality, I would reiterate my recommendation in the context of Privacy Act reform, that government institutions should be legally required to consult with my office on draft legislation and regulations with privacy implications before they are tabled.

My written statement now goes into questions of oversight. Do I have time?

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Every one who

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

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

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

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

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

Disturbing religious worship or certain meetings

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

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

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

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

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

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, that is one of the reasons why I started the speech in the manner in which I did, focusing specifically on section 176. There have been a number of my colleagues, members across the way, who have talked about Bill C-51 and the many different advantages of the passage of this piece of legislation, especially when it comes to sexual assault. There is no way I can articulate in the same manner in which some of our colleagues have in terms of the actual benefits in that whole area, so that is why I focused a good part of my comments on talking about the issue of process.

I looked at the section 176 as a fairly positive experience. What we saw was not just one member of the House because I believe this thing was being driven, in most part, by Canadians to say, “Let us just wait a minute here.” I know I have had calls on it, and people felt that this was an important aspect of the Criminal Code. Whether or not it was being used very rarely, it definitely provided a disincentive for individuals to go into a mosque, a gurdwara, a Christian church, or whatever it might be, in an attempt to disrupt. It was a positive aspect to the Criminal Code.

How it ultimately came into being and appearing in Bill C-51, I suspect had a lot more to do with reviews that were being conducted. As I indicated, some of the stuff that is within Bill C-51 is because of court decisions; others are because of bureaucratic decisions; others would be because of other stakeholders' decisions. Which category that one falls under, I'm going to choose to believe, was the bureaucratic review in terms of how many times possibly it was being utilized in our courts and as a result it appeared there.

However, the good news is that we have a process in place, we have individuals who were listening to the constituents, and we were able not only to get rid of the repeal but we also amended it in the Criminal Code so that it went to include faith and spiritual leaders. I think that would make the Criminal Code that much better.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I rise to speak to Bill C-51, which is important legislation. I do not necessarily agree with my colleague across the way when he talks about the omnibus nature of legislation. In fact, a very thorough review has taken place. This legislation is a reflection, as I made reference to in my question, of court decisions that have been made. along with a review from bureaucrats and others who have been involved in trying to update or modernize our Criminal Code.

I have had the opportunity to look at the Criminal Code, and it is a fairly wordy document. We need to modernize it or make a genuine attempt to make changes like these. Sometimes legislation or law needs to change. I cannot recall the details right off hand, other than the fact that one of the changes would get rid of duelling. I am sure people would have to look long and hard to find the last time there was an actual duelling of swords in Canada. There is legislation that, because it is never repealed or taken out of the Criminal Code, just becomes somewhat dated. Therefore, it is necessary for us to take a look at it and make changes.

My colleague across the way made a couple of references on which I want to pick up, for example, the charter statement. For years I sat in the opposition benches. We would look at government legislation and quite often question if it was charter proof, or if there was a legal opinion with regard to legislation, that it would go through the court system and meet the charter. On many occasions, I have stood in the House and talked about the importance of the charter and different perspectives. Canadians have responded, over three decades-plus of having the charter, that the charter is part of our Canadian values. Often, when I sat in opposition, the government would talk a fairly tough line on criminal matters.

At times, the government would bring in ideas and we questioned whether it had a legal opinion on whether it would be successful if it went to a Supreme Court. We would challenge the government to ensure legislation would be vetted to ensure it would be in compliance, as much as possible, if not all of the time, with the Charter of Rights and Freedoms. A very positive aspect of the legislation before us is the charter statement. It would require government to have that charter statement for legislation it introduced to the House. That is a very strong positive, and I am very supportive of it being in the legislation.

I want to pick up on an issue about which the Conservatives have spoken. The Conservatives are leaving the impression that a change to the legislation with respect to the repeal of section 176, as originally suggested in the legislation and is no longer happening, is because of the fine work of the Conservative Party. That is a false impression. I too had had constituents of mine in Winnipeg North and others express genuine concern about why section 176 of the Criminal Code would be repealed.

For those following the debate, like me, who were not part of the committee discussions but may be interested in exactly what members have already said today, section 176 was originally going to be repealed. When the bill was introduced to the House at second reading, it was proposed that section 176 of the Criminal Code be repealed. It currently states:

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

The response to the proposal to the repeal of that section, which many individuals came to know somewhere between first reading and second reading, was brought to my attention. I was really quite glad to see the system works. I do not believe I was alone. I suspect other members of Parliament on both sides of the House were approached on this issue. From my perspective, that demonstrates the system works.

After second reading, the bill went to committee. Members on all sides of the House recognized, whether it was through the committee chair or the committee membership, that high sense of co-operation and understanding of the things that needed to be done. Presenters came forward and recommended, in essence, what many of us were hearing in our constituencies.

I was not surprised that an amendment brought forward to keep section 176. In fact, I believe it was improved upon in the Criminal Code. The standing committee addressed the concerns to repeal section 176 and amended it. It also added more strength to it by expanding it so it went beyond only ministers to include spiritual leaders and so forth, which was a positive change. Had it not even been in the original legislation, that aspect would not have been changed. Therefore, we have a stronger section 176 of the Criminal Code.

I want to emphasize that clause, because it gives me room to let my constituents know that when we talk about trying to improve legislation, we have a process that allows for that. Bill C-51 is a very good example of this.

From what I understand, at least one opposition amendment was approved. As well, a number of government members brought forward amendments to improve the legislation. That clearly demonstrates that second reading is a great opportunity to get a good understanding in principle of what the legislation is about. It then goes to committee where experts are afforded the opportunity to provide their thoughts. Members of Parliament are able to reflect on the clauses, and caucuses, either directly or indirectly, are able to feed their thoughts into the need for change, and we saw amendments. This amendment was a very strong positive, because constituents of mine wanted to see that happen.

I applaud the efforts of the standing committee and the fine work it did in returning the legislation to where we are today. Today we have fairly good support for it coming from all political parties. I understand that many inside and outside the chamber see this as strong legislation, which will further advance the important issue of sexual assault.

We often underestimate just how serious sexual assault is in Canada. In 2016, some 20,000-plus incidents were reported. Those number are far too high. I do not know how it compares to previous years, all I know is that it is an unacceptable number.

When we look at the 20,000-plus incidents reported in 2016, we can anticipate that for every one reported, many others were not. We need to talked about this more. The government and the House need to look at ways in which we can ensure individuals who are victims feel comfortable in knowing society as a whole encourages them to come forward. We all understand and can appreciate the consequences of this type of violent crime. The numbers are significant and very upsetting. It affects all communities.

We can talk about bringing in the legislation and trying to improve it, but it is going to take more than just legislation. There needs to be a national-led approach on how we can deal with the issue sexual assault. I am very happy to hear that different departments, in particular Public Safety and Status of Women, are engaged and are on top of this. We need to promote this dialogue.

I have always thought we vastly underestimate the roles our school divisions throughout the country can play on the issue of violence, in particular sexual assault. I would like to see different stakeholders provide more ideas and have more dialogue. What takes place in our schools is of critical importance.

I used to be the education critic in Manitoba. We often talked about setting the curriculum for our schools and the important role the provincial government had with respect to that curriculum. Likely some areas in the country have better practices. This is where a national government can play a leadership role by looking for better practices and trying as much as possible to encourage and promote those practices in other jurisdictions. That is one of the reasons why I believe in the importance of having interprovincial discussion groups, having a government and its ministers taking these important issues to the many different tables they sit around.

The legislation is important, we recognize that, which brings me right to the bill itself. It proposes to remove and repeal the passage of provisions of the code that have been ruled unconstitutional in many ways by our courts or raise concerns under the Canadian Charter of Rights and Freedoms, as well as the passage of provisions that are obsolete, redundant and/or quite frankly no longer in place in criminal law itself.

I want to clarify that strengthening the criminal law of sexual assault is expected to assist in enhancing a better understanding of the law and addressing concerns about the law's application. I believe that the better the understanding of the law, the simpler it is made known to victims, the greater the likelihood that we would have victims approving and coming forward to report what has taken place in their particular situation.

I would suggest that the proposed changes to the Department of Justice Act and Criminal Code reflect the government's unwavering commitment to promote respect for the charter and the rule of law. I made reference to the years we sat in opposition and how important it was that when government brought forward legislation that we in the opposition ensured there was a charter test applied to it. This legislation does just that.

Repealing provisions that are very similar to those found unconstitutional by the courts will help avoid expensive and time-consuming litigation. Avoiding unnecessary litigation will also help to prevent court delays and backlogs, which is so critically important.

We can see that the members of the Standing Committee on Justice and Human Rights did an outstanding job in reviewing the bill, and making the amendments I have made reference to, which were of the utmost importance.

The government is committed to ensuring that our criminal justice system protects Canadians, and holds offenders to account for their actions, that it upholds the Charter of Rights and Freedoms, and shows compassion to victims. We have to ensure that the confidentiality and privacy of victims are protected as much as humanly possible. It is critically important. This includes the unwavering commitment to ensuring that victims of sexual assault are treated with the utmost dignity and level of respect.

During the study, we heard from many individuals who came before the committee on the importance of clarity of what sexual assault laws are. The feedback provided was most welcomed for us to have a better understanding of how a person has given consent, and the need to recognize that if someone is unconscious that person is not capable of giving consent. Therefore, it provides more definition and clarity in that area.

Based on what I am hearing from the members opposite, I believe there is fairly good support for the legislation. With respect to those areas that were repealed, for the most part, with one or possibly two exceptions, the House seems to be fairly supportive. The one greatest exception, section 176, has been dealt with in an appropriate fashion. I know I was quite grateful that it was repealed.

I see that my time has expired. I appreciate the opportunity to share a few thoughts on this piece of legislation.

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

Mr. Speaker, I believe that certain parts of Bill C-51 help clarify the law around sexual assault.

One example of that is the evidence tendered with respect to the twin myths. In that regard, the bill makes it clear that evidence cannot be tendered under any circumstances. That is good because there has been some confusion in the case law with respect to subsection 276(1) and then another subsection, 276(2), and subsection (3), which has resulted in trial judges basically having a balancing test in some cases. This bill would eliminate that and make it clear that under no circumstances can evidence be tendered on the basis that a complainant, as a result of her sexual history, is less believable or more likely to consent. That is a positive step.

The problem with this bill is that it is an omnibus bill. It relates to matters that are unrelated to each another. Therefore, there are parts of this bill that are very positive, but there are other sections that, frankly, are very problematic, including with respect to defence disclosure.

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

Mr. Speaker, I thank my friend and colleague, the member for Sherwood Park—Fort Saskatchewan, for that important question. I want to acknowledge the work he did as one of the first members to flag the government's proposed removal of section 176 in its initial draft of Bill C-51.

The member is quite right that it took a lot of pressure for the government to come around to do the common-sense and right thing with respect to a section of the Criminal Code that is not unconstitutional, that is not redundant, and that has been used in several cases, including most recently in the case of an Ottawa woman who vandalized a religious statue. He is quite right when he speaks about a climate of fear and hate, in which persons, churches, synagogues, and mosques have been targeted by hateful people. We have seen that recently with a number of acts of vandalism at Ottawa area synagogues and mosques. We have seen many instances of this.

Not only was the proposed removal of section 176 substantively the wrong thing to do, the timing could not have been worse. It is really inconsistent with the government's purported commitment to ensuring that measures are taken to deal with and address serious issues around hate being perpetrated and individuals being targeted on the basis of their religion or other characteristics.

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

Mr. Speaker, as I alluded to before question period, the most substantive part of Bill C-51 deals with amendments to the Criminal Code related to Canada's sexual assault laws. I support many of the amendments to the Criminal Code brought forward in Bill C-51, including those amendments that clean up the Criminal Code by codifying law determined by the Supreme Court of Canada, including the Regina v. J.A. and Regina v. Ewanchuk decisions.

That being said, there is one area of Bill C-51, in terms of changes to sexual assault laws, that causes me some concern. That area of concern relates to the defence disclosure requirements. Bill C-51 would require that in order for the defence to tender evidence in terms of records that relate to the complainant, it would have to bring an application to the court. In other words, records that relate to the complainant would be deemed inadmissible unless the court determined otherwise. Such an application would have to be brought prior to the trial. Moreover, the complainant would have the right to counsel and would be a party to that application.

I have a number of concerns with that. First, the definition of “records” is very broad. The type and scope of records that would be captured are just about any records related to the complainant. That would potentially include joint records, records that both the accused and the complainant otherwise have a right to access, records that are subject to crown disclosure that are in the control of the crown, and records that were ordered subject to a third-party application. When we talk about the breadth of records that would be captured, we could be talking, in some trials, about thousands and thousands of records that would be subject to such an application.

That would potentially result in delay. In addition to the potential for delay, the timing of the application is of some concern. The application would have to be brought prior to a trial. What is the problem with that? One problem is that there are often issues that arise in trials that are not necessarily foreseeable prior to the trial. Therefore, from a practical standpoint, that would mean there could be records that do not appear to be relevant prior to a trial, but could become very relevant as a result of an issue that arises in the course of a trial. That would mean inevitably that there would be applications brought prior to trial. However, in those instances where records become relevant that were not necessarily obvious or apparent prior to trial, it would result in the need for mid-trial applications. That would mean the adjournment of trials and delay in the administration of justice.

That is particularly concerning in light of the Jordan decision. In Jordan, the Supreme Court determined that delay is presumptively unreasonable where 18 months pass between the laying of charges and a trial in matters before provincial courts, and 30 months in the case of matters before superior courts.

Over the last while, since the Jordan decision was rendered, we have seen dozens and dozens of serious criminal cases thrown out of court, cases involving everything from murder, to sexual assault, to other violent offences. In addition to that, we have seen hundreds, if not thousands, of cases that would otherwise be perfectly prosecutable, but for the Jordan decision, dropped as a result of delay.

The prospect of adding further delay to a system that is stretched to the limit is problematic. What it will potentially mean is more sexual assault cases being thrown out than otherwise would be the case. That is less than comforting to victims of sexual assault. Frankly, it is unacceptable that we could be opening that possibility, and certainly runs counter to the purported objectives of the Jordan decision, which include ensuring that the victims see justice.

I believe that some legitimate questions have been raised about the appropriateness of a complainant being party to such an application with the right of counsel. Very often in sexual assault cases, the outcome of the case rests on the credibility of the complainant. The fact is that most complainants are truthful, but not all complainants are truthful, and in some exceptional circumstances, complainants are not truthful. The effect of this would be that a complainant would gain insight into the defence's case and potential lines of cross-examination. This in turn could undermine trial fairness in a significant way.

In closing, I would like to quote the recent caution of Ontario Superior Court Justice Molloy in the Nyznik case, at paragraph 17, where she stated:

Although the slogan “Believe the victim” has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence.

That pronouncement of Justice Molloy is something that we as members of Parliament need to be mindful of as we try to strike the right balance between ensuring that victims of sexual assault are protected and that their dignity and privacy are upheld with the right of the accused to make full answer in defence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Ali Ehsassi, Liberal, Willowdale, ON]

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

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

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

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

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

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

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

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

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

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

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

[Murray Rankin, NDP, Victoria, BC]

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

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

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

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

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

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

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

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

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

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

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

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

Amen to that.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Rob Nicholson, Conservative, Niagara Falls, ON]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Madam Speaker, I want to come back to my previous question because I did not hear in the answer from the parliamentary secretary a reference to any particular amendment that has been adopted to address some of the concerns raised about what Bill C-51 might mean for the consent regime. I take his point that the goal of government is to provide greater clarity. Nonetheless, concerns have been raised by people who work with victims of sexual violence that notwithstanding the government's best intentions, it might inadvertently be changing the threshold for consent by tying it too closely to consciousness. The law currently recognizes a lot of other barriers to consent that one does not have to be unconscious for, because one can be conscious and have other reasons for why consent would not be valid.

Our party suggested alternative language through its amendments that would provide greater clarity and ensure that those existing protections under the law are not inadvertently voided by Bill C-51. The government did not take the opportunity to use that language. I did not hear a reference to amendments in his previous answer. Why did the government pass on that opportunity to provide greater clarity, which, according to the parliamentary secretary himself, is the purpose of Bill C-51?

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

Madam Speaker, I indeed agree with those sentiments. I thank my hon. colleague for the way he carefully articulated them.

In addition to the reforms that Bill C-51 will be implementing to clarify the law around sexual assault and consent, I want to point out a number of important initiatives that the government has supported to support victims and survivors of sexual assault.

Number one, we have provided additional funding and resources to legal aid. In addition to that, we have implemented a pilot project in Ontario, in Newfoundland and, most recently, in Nova Scotia to provide free legal aid services for a certain number of hours for the victims who step forward, who have serious or any allegations of sexual assault. That is the kind of enhanced access to justice that I know my hon. colleague supports.

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

Madam Speaker, I have the privilege of working with my colleague very closely on this important file. In fact she joined me very recently in my riding of Eglinton—Lawrence where we talked about criminal justice reform.

To answer the member's question, this bill will enable and empower women and survivors to step forward in a number of important ways. Number one, it will clarify our sexual assaults laws. It is very important that women know that they have the support they need from law enforcement, from our laws, from all stakeholders in the criminal justice system. It will do that.

It will clarify the laws around consent. It will ensure that an accused who is charged with this crime will not be able to rely on evidence of propensity, which is far too prejudicial and which we know far too often depends on old, outdated myths and stigmas. Bill C-51 is all about reducing those systemic barriers.

I want to applaud my hon. colleague for all the work she does in supporting women and survivors on this important file.

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

Madam Speaker, I thank my hon. colleague for his very thoughtful and articulate question.

I agree with him that Bill C-51, in the section that deals with reforming sexual laws, is precisely about clarifying the law. It is about ensuring that we are sensitive to the long-held and inappropriately held myths when it comes to those victims and survivors who have the courage to step forward. By passing this law, we will be reducing the systemic barriers, which for far too long have afflicted the criminal justice system and prevented women and girls from stepping forward.

With respect to the rape shield laws, I want to assure my hon. colleague that all of the amendments were carefully debated at committee. We are grateful to the committee for all of its work and for bringing forward those amendments, which have been adopted by the government. The rape shield provisions are tested in the law. They are about clarifying when consent has been lawfully provided and when it has not. I am encouraged that this bill will ensure more certainty and more clarity on this important subject.

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

Madam Speaker, I thank my colleague for his speech, which demonstrates the breadth and scope of the issues being addressed in Bill C-51. One of the issues he addressed had to do with the modification of language around consent to clarify exactly that means in an effort to codify some of the jurisprudence on the issue in the law.

I got to sit in briefly at some of the committee meetings dealing with Bill C-51, and stakeholders expressed a lot of concern, not about the language of unconsciousness itself and the inability to provide consent while unconscious, but the fact that it might be interpreted or argued by some that the emphasis on unconsciousness might rule out some of the other very real barriers to providing consent that are seen to be protected under the law. Our party and the Green Party both suggested amendments that might help allay some of those concerns. They were defeated.

The hon. member mentioned that some amendments were accepted. Did the governing party accept amendments on that particular issue, and if so, how did they address those concerns specifically?

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

Madam Speaker, our government was proud to introduce Bill C-51 on June 6, 2017. That day marked an important milestone in our ongoing efforts to make the criminal law fairer, clearer, more relevant, accessible, and compassionate.

Since that time, Bill C-51 has been the subject of extensive and compelling debate both at the second reading stage and during its study by the House of Commons Standing Committee on Justice and Human Rights.

I want to offer my thanks to the many members who have participated in these debates and to members of the standing committee in particular, whose deliberations strengthened Bill C-51 through amendments that seek to further the objectives we identified when we introduced this important legislation.

I would also like to extend my great appreciation to the many witnesses who took the time to examine the bill and appear before the Standing Committee on Justice and Human Rights. Although I may not agree with all the points that were made by the witnesses who spoke to this bill, I fully recognize the importance of their contributions because they have allowed Parliament to have a rich and thorough discussion on the bill.

I now want to walk through the changes included in Bill C-51. These have received broad support in this House, at committee, and among key stakeholders.

Bill C-51 seeks to address sexual assault, an issue that could scarcely be more relevant, given the present Canadian and international discourse on this important subject. Survivors of sexual assault and other forms of sexual misconduct are standing up and speaking out as never before. I am proud to say that our government stands behind survivors and that we are adding our voice to theirs by bringing change on numerous fronts, including the reforms set out in Bill C-51.

The bill proposes amendments that build upon an already robust legal framework that has been consistently regarded as one of the best sexual assault regimes in the world. However, despite its explicit acknowledgement that outdated myths about a victim's sexual history should have no bearing on whether she should be believed, and despite the clear rules about when consent is or is not valid in law, challenges remain.

What are those challenges? We know that sexual assaults continue to occur far too often in Canada. According to Statistics Canada, there were approximately 21,000 police-reported sexual assaults in Canada in 2016. That is an average of 57 sexual assaults every day in Canada. That number is staggering, but when, according to the general survey on victimization, only five per cent of sexual assaults experienced by Canadians over 15 are reported to the police, the likely number of actual sexual assaults that occur every day in Canada becomes unfathomable and could well be over 1,000 incidents every day. When thinking about those numbers and the fact that so many cases of sexual assault go unreported, we must think about what we can do to not only reduce the incidence of sexual assault in Canada but ensure that more victims, and let us be clear that this is a gender-based crime that disproportionately targets women and girls, feel encouraged to come forward to report their experiences to the police and to law enforcement.

One way we can, at the federal level, help encourage women to come forward is through law reform that increases the likelihood that our laws will be applied as they were intended, and in so doing, reduce the potential for unnecessary distress experienced by victims who participate in the criminal justice process. That is what Bill C-51 proposes to do. As introduced, it would make important changes to clarify the law, including by making clear that consent must be affirmatively expressed by words or actively expressed through conduct. This principle would codify the Supreme Court of Canada's 1999 Ewanchuk decision and make clear that there is no consent unless the complainant said yes through words or through conduct. Passivity is not consent.

We have also codified the principle set down by the court in its 2011 decision in R. v. J.A., where the court held that a person cannot consent in advance to sexual activity that occurs while they are unconscious.

The Standing Committee on Justice and Human Rights heard a number of witnesses on this particular amendment. Some witnesses expressed their support for this codification, but others argued that it did not entirely or accurately codify the court's findings in R. v. J.A. Those witnesses argued that J.A. stands for a broader proposition. They noted that the court held that our consent law requires ongoing conscious consent and that partners have to be capable of asking their partners to stop at any point. Our government was listening carefully to witnesses and members, and we are pleased to support the committee's amendment to Bill C-51 that would codify this broader principle from J.A. Doing so is in keeping with the objectives of the bill, including to ensure that the Criminal Code is clear and reflects the law as applied by the courts.

Bill C-51's proposed sexual assault reforms do more, however, than simply codify key Supreme Court decisions. They will also create a new regime governing the admissibility of evidence in the hands of an accused person, where that evidence is a complainant’s private record. At its core, this regime is anchored in the following key principles.

First, it respects the fair trial rights of the accused in that it does not prevent relevant evidence from being used in court. The Supreme Court has already recognized that an accused's right to full answer and defence does not include a right to defence by ambush.

Second, it acknowledges the privacy interests of a complainant. While privacy interests do not trump all else, the regime seeks to acknowledge that victims of sexual assault and other related crime, even when participating in a trial, have a right to have their privacy considered and respected to the greatest extent possibly.

Finally, the regime seeks to facilitate the truth-seeking function of the courts by ensuring that evidence that is clearly irrelevant to an issue at trial is not put before the courts, with its potential to obfuscate and distract the trier of fact.

These are important changes and ones that have been called for by Parliament. In their 2012 report on the third-party-records regime in sexual assault proceedings, the Senate Standing Committee on Legal and Constitutional Affairs recommended the enactment of a regime governing the admissibility of a complainant's private records in the hands of an accused. I am pleased that we are doing so as part of Bill C-51.

The second major aspect of Bill C-51 is its proposal to clean up the Criminal Code by removing offences that are no longer relevant because they address conduct that is not inherently blameworthy, because the criminal law should not be used to target such conduct, or because the conduct is addressed by other offences of general application.

To be clear, a foundational principle upon which our criminal law is based is that of restraint. This means that we, as parliamentarians, should ensure that criminal offences, with all the attendant stigma and consequences associated with being called a criminal, are only used to address conduct that cannot or should not be addressed through other mechanisms. Bill C-51 would reflect this principle by removing offences such as the prohibition on advertising the return of stolen property “no questions asked”, a provision under section 143; making crime comics; challenging someone to a duel; and impersonating someone during a university exam.

I am confident that removing these offences will have no adverse consequences and will help make our criminal law more reflective of the values Canadians hold dear in 2017.

Bill C-51 would make other important changes to remove offences that are no longer pertinent in today's society. One such example is the removal of the offence of blasphemous libel under, currently, section 296. This old offence, with its English origins in the 1600s, has as its purpose the suppression of criticism directed at God, the king, and government. Such an offence is a historical holdover and has no place in a liberal democracy, where freedom of expression is enshrined as a constitutionally protected right. In so removing this offence, we would follow the example of the United Kingdom, which repealed its analogous offence almost a decade ago, in 2008.

During the committee proceedings on Bill C-51, we heard testimony from the Centre for Free Expression that we should go further and that in addition to repealing blasphemous libel, our government should be repealing the offences targeting seditious and defamatory libel as well. Although such amendments would have been outside the scope of the bill, these are interesting suggestions, and they do indeed warrant further discussion.

I know, for example, that England abolished its seditious libel offences in 2009. I also know that there are divergent opinions on whether defamatory libel should be criminal. We have all benefited from the discussion on these proposals, and our government will take them under advisement as we continue to examine ways to make our criminal law and criminal justice system more reflective and responsive to the realities of Canada today

Before moving on, let me talk briefly about the amendment made by the standing committee to Bill C-51, which is supported by our government, that seeks to retain section 176, the offence of interfering with religious services. As the minister said when she appeared before the committee to discuss the bill, the repeal of section 176 would, in fact, not leave a gap in the criminal law's ability to meaningfully respond to the conduct captured by this offence. She also said that its removal would not in any way undermine the ability of Canadians to practice their faith freely and free from violence. Both statements remain true today.

At the same time, we appreciate and acknowledge that for many stakeholders, the removal of the offence would send the wrong message and that in an era when xenophobia and religious intolerance are all too frequent, Parliament has a responsibility to ensure that its actions do not, directly or indirectly, provide opportunities for the promotion of such intolerance.

Our government was listening carefully to members of the religious community, and I am pleased to say that we will support not only the retention of section 176 but an expansion of that section to ensure maximum inclusivity.

By way of conclusion on this point, I would note that intolerance of any kind is simply unacceptable, and I know that the vast majority of Canadians, even when they may not share the same religious convictions as their neighbours, will conduct themselves in a manner that is respectful and welcoming. Intolerance that leads to threats or violence must be swiftly addressed by the police, and I know that the criminal law provides them with a broad range of tools to effectively respond to such conduct.

Bill C-51 also reflects our government's unwavering commitment to respect the Charter of Rights and Freedoms. It does so in a number of ways. First, Bill C-51 proposes to amend provisions that have been found unconstitutional by our courts.

In this vein, Bill C-51 builds on the work we started with Bill C-39, which we introduced on March 8, 2017. Bill C-39 repeals provisions found unconstitutional by the Supreme Court of Canada, as well as the prohibition against anal intercourse that has been found unconstitutional by numerous courts of appeal.

Bill C-51 seeks to repeal provisions found unconstitutional by appeal courts, and in some cases trial courts, in circumstances where there can be little doubt as to their unconstitutionality. For example, Bill C-51 seeks to repeal the rule that prevents judges from giving enhanced credit for pre-sentence custody for offenders who were detained due to a bail breach. This rule has been found unconstitutional by the Manitoba Court of Appeal and creates a situation where similarly situated offenders can receive substantially different credit for pre-sentence custody, which can undermine public confidence in the administration of justice.

Bill C-51 also proposes to amend a number of provisions that could result in an accused's being convicted for an offence, even though they raised a reasonable doubt as to their guilt. Such an outcome is at odds with the most basic rules and fundamental principles upon which our criminal law is based, not to mention our charter rights.

These changes are important, and we are not waiting for costly unnecessary charter litigation to tell us that these rules are unconstitutional. Making these changes would ensure that our criminal justice system is more efficient and continues to hold offenders to account while reinforcing the fundamental principle that it is the state that bears the responsibility of proving offences beyond a reasonable doubt.

Our respect for the charter is also evident in the changes we are proposing to the Department of Justice Act. Although these changes have not been the subject of significant debate or commentary, a number of witnesses who testified before the justice committee welcomed this innovation in our law.

The amendments proposed in Bill C-51 will require our government, and all future governments, to table in Parliament a statement outlining the potential charter effects of all government legislation. The Minister of Justice has been doing this already as a matter of practice, but with Bill C-51, it will become an obligation.

These charter statements provide information to Parliament, stakeholders, and the public writ large about the charter rights and freedoms that are potentially engaged by a bill and set out how they may be engaged.

In the charter statement for Bill C-51, for example, the sexual assault reforms are discussed and an explanation is provided on how they interact with an accused's section 7 right to life, liberty, and security of the person. The charter statement further notes how a failure to remove unconstitutional laws can undermine the rule of law, create confusion, and make our Criminal Code less accessible.

I am proud of these reforms and believe that charter statements will quickly become a critical resource for justice system participants, parliamentarians, and members of the public who are interested in learning more about how our laws may engage the charter.

Let me conclude by again thanking all members for their excellent deliberations on Bill C-51. The widespread support it has received is testament to its importance and the need to move forward with these changes. I look forward to continuing to follow Bill C-51's passage through Parliament, and will continue to work diligently to bring forward the kinds of changes needed to address the most pressing challenges facing our criminal justice system today.

The House proceeded to the consideration of Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, as reported (with amendment) from the committee.

Religious Freedom

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Speaker, I have three petitions to table today.

The first one is from 26 petitioners, regarding Bill C-51 and religious freedoms.

The petitioners draw the attention of the House to the potential removal of section 176 of the Criminal Code, which they say is the only section that protects faith leaders from malicious interference with funerals, rituals, and other assemblies of any faith. They also draws the attention of the House to Bill C-305, which was passed earlier in the year, and drawing some allusions to it.

The petitioners ask the government to abandon any attempt to repeal section 176 of the Criminal Code and to stand up for the rights of all Canadians to practise their religion without fear, recrimination, violence, or discrimination.

Business of the House

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, this afternoon, we will continue the report stage debate of Bill C-24, the one-tier ministry bill. Tomorrow, we shall commence second reading debate of Bill C-66, the expungement of historically unjust convictions act.

On Monday, we will call report stage and third reading of Bill C-51, the charter cleanup legislation. Tuesday we will return to Bill C-24 at third reading.

If Bill C-66 is reported back from committee, we would debate that on Wednesday with agreement. The backup bill for Wednesday will be Bill S-5, concerning vaping, at second reading.

On Thursday, the House will debate Bill C-50, political financing. Then on Friday, we will consider Bill S-2, the strengthening motor vehicle safety for Canadians act.

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

Thank you very much.

My next question has to do with the minister's testimony when he was before this committee on Bill C-59. He was talking about the changes from Bill C-51, amending, advocating, and promoting the commission of terrorism offences in general, and replacing the offence to apply only when a person specifically counsels another person to commit a terrorism offence. It provides a clear and more appropriate legal structure surrounding them. When he was questioned, he was asked if this would actually provide law enforcement with better tools to be able to enforce.... Now, you had mentioned that you thought the definition was still too broad. I don't know if you had an opportunity to see what the minister was saying in terms of it actually narrowing the definition to allow law enforcement to enforce....

I'd also welcome comments from both of you on that.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you.

Dr. Leuprecht, the powers in Bill C-51 are not uncommon. You had said in your testimony, again on Bill C-51, “Canadians have a profound misconception of what disruption constitutes. CSIS being able to talk to parents to tell them that their child is up to no good is a disruption power.” I can go on with that, but with the changes proposed in Bill C-59, particularly in securing a warrant to conduct certain disruption activities, do you believe we are heading in the right direction with this legislation on that particular front?

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you, Mr. Chair, and thank you to both groups for being here today.

Mr. Leuprecht, you had said in previous testimony on Bill C-51, “CSIS is the most reviewed intelligence security service in the western world and therefore, I think we can safely say in the world as it is.” In your reading of Bill C-59, are there any new layers of review placed upon CSIS, and do you think those are helpful in helping CSIS fulfill it's mandate?

[Daniel Therrien, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada]

Thank you, Mr. Chair.

Mr. Chair and members of the committee, I am here this morning with Patricia Kosseim, who is our general counsel, and Lara Ives, who is the director general of audit and review.

Thank you for the invitation to discuss Bill C-59.

As you know, Bill C-59 introduces a wide range of measures intended to strengthen Canada's national security framework in a manner that safeguards the rights and freedoms of Canadians. On the whole, I find it represents a step in the right direction, but as other commentators have noted, its weakest part is the Security of Canada Information Sharing Act, or SCISA, which contains provisions related to information sharing and privacy. Professor Forcese, for instance, gave these sections a failing grade. I was therefore glad to hear Minister Goodale last week say that SCISA was probably the part most deserving of scrutiny. I hope your study will result in much-needed improvements to these rules.

In previous parliamentary briefs, I highlighted the need for rigorous legal standards around the collection and sharing of personal information, effective oversight, and minimization of risks to the privacy of ordinary law-abiding Canadians, particularly through privacy-sensitive retention and destruction practices. Specifically, I indicated that the law should prescribe two things essentially, which are useful to bear in mind. First is clear and reasonable standards for the sharing, collection, use and retention of personal information”, so substantive rules. Second is that compliance with these standards should be subject to independent and effective review mechanisms.

It is with this analysis in mind that I offer the following comments and recommendations. While I will focus in my remarks on SCISA, this analysis, looking at two types of issues, is also relevant for other parts of Bill C-59, including parts 3 and 4. The full list of our recommendations is attached to this statement.

Bill C-59 would create a new expert review body, the NSIRA, with broad jurisdiction to examine the activities of all departments and agencies involved in national security. Recently, Parliament also created, through Bill C-22, a new National Security and Intelligence Committee of Parliamentarians. Both of these bodies will be able to share confidential information and generally co-operate so as to produce well-informed and comprehensive reviews that reflect considerations both by experts and by elected officials.

These developments are most welcome, but they are, in my view, clearly insufficient. In my view, effective review of national security activities must include both parliamentary and expert review, and the latter must include both national security and privacy experts. Why privacy experts? Because the work of national security agencies depends in large part on personal information. It is what they call their “lifeblood”. The OPC is the federal centre of expertise in privacy and personal data protection. Canadians are concerned that anti-terrorism efforts in government not unduly impede their privacy rights, and they expect my office to play a role in ensuring that balance.

Bill C-59 is oddly silent on the role of my office. It does not amend the Privacy Act, so my existing authorities appear to be untouched. The only body with explicit authority to play a role in relation to part 5, the renamed SCIDA, or security of canada information disclosure act, is the NSIRA, the national security and intelligence review agency.

The ethics committee, in its study of SCISA, has already noted the ambiguity in the interplay between that act and the Privacy Act. It has called for amendments to clarify that the Privacy Act continues to apply to all personal information disclosed pursuant to SCISA. I have provided to your committee amendments that would confirm the application of the Privacy Act and the OPC's role, which I am told the government wants to maintain.

However, there is no ambiguity on whether my office would be able, with Bill C-59, to share confidential information with the NSIRA and the new committee of parliamentarians. We would not have that authority, and actually we would be prohibited by existing provisions in the Privacy Act from sharing such information.

This means that the comprehensive review process offered in Bill C-59, as a fundamental element to bring balance between security and respect for rights, would stop short of the objective by leaving privacy experts out of integrated review. I am at a loss to understand why. If the fear is of duplication between our work and that of other review bodies, I would gladly explain through the question period how bringing the OPC firmly within the family of review bodies would not only bring required expertise but would actually enhance efficiency and reduce overlap.

When Bill C-51 enacted the Security of Canada Information Sharing Act, known as SCISA, I indicated that among my concerns was the fact that the relevance standard for sharing was set too low, and that there was an absence of clear data retention and recordkeeping requirements and a lack of information-sharing agreements and privacy impact assessments.

The relevance test is too permissive because it casts too wide a net and creates undue risks for ordinary citizens who pose no threat to national security. The government seems to recognize that a relevance standard does not sufficiently protect privacy because it is suggesting changes to section 5 of SCISA.

In its response to the Standing Committee on Access to Information, Privacy and Ethics, the government said the following:

The key issue regarding the threshold is the need to establish specific decision making parameters for the discloser of information that will protect individual privacy but not cause undue delays in the information sharing process.

I agree with that assessment. The proposed new section 5, particularly paragraph 5(1)(b), incorporates some aspects of a necessity threshold but falls short of adopting what officials refer to as “strict necessity”.

In order to adequately protect privacy rights, under new section 5, this limited progress in increasing the threshold for disclosure would have to be accompanied by more complete changes to the standard applicable to receiving institutions, in other words, the security agencies receiving the information in question.

Information sharing involves two parties and, to protect rights, rules are also required for receiving institutions. If relevance is not adequate for disclosing institutions, it is also inadequate, even more so, for receiving agencies.

And the delay considerations that may apply to disclosure affect receiving departments very differently. These institutions are perfectly capable of applying the classic, internationally established necessity test, and should be required to do so.

We understand that the government intention is for receiving institutions to continue to be governed by the Privacy Act, or their specific enabling legislation where applicable. The current Privacy Act threshold is relevance.

As your committee recommended in its May 2017 report on Canada's national security framework, we also recommend that a dual threshold be adopted for information sharing—that set out in amended section 5 for disclosing institutions, and that of necessity and proportionality for receiving institutions.

Even if one accepts that government sharing of information related to law-abiding citizens may lead to the identification of new threats to national security, once that information is analyzed and leads to the conclusion that someone is not a threat, it should no longer be retained. Otherwise national security agencies will be able to keep a profile on all of us.

This is consistent with the conclusions of our review of the Canada Border Services Agency's scenario-based targeting initiative, summarized in my latest annual report to Parliament, and it is one of the principles upheld by the European Court of Justice in the passenger name and record case, decided in July 2017.

In addition, if the threshold for collecting or receiving information is higher than the standard for disclosure—which is currently the case at least for CSIS and would be the case if you adopt a dual threshold, that is, one for disclosing institutions and one for receiving institutions—then, rules are required to ensure that information is discarded without delay either when the collection test is not met or if the receiving institution is of the view that the disclosure standard was not satisfied.

In conclusion, my complete recommendations, annexed to this statement, include some that I have made in the past and do not have time to explain in the time allotted this morning. I also intend to write a fuller submission prior to the end of your study.

My team and I would be glad to answer any questions you may have.

Opposition Motion—ISIS fighters returning to Canada

[Jim Eglinski, Conservative, Yellowhead, AB]

Mr. Speaker, I find it quite humorous and hypocritical the way the previous speaker spoke about his trust and respect for the work of CSIS and the RCMP. Was it not he and his colleagues who wanted to change Bill C-51 because they did not trust what those people were doing?

Could the hon. member comment on that?

Religious Freedom

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

Mr. Speaker, the second petition is from constituents who are deeply concerned about clause 14 of Bill C-51. As it stands, clause 14 would remove the only provision in the Criminal Code that directly protects the rights of individuals to freely practise their religion, whatever that religion may be.

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

National Security Act, 2017

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Mr. Speaker, it is unfortunate that I have only five minutes left to contribute, because the government essentially brought in closure. Instead of submitting a problematic bill to the House of Commons for debate and improvement, the government decided to resort to a form of closure that would prevent us from exploring every aspect of this bill.

The NDP is against referring Bill C-59 to committee in part because it does not achieve what the Liberals promised to Canadians. During the last campaign, the Liberals said that they were wrong to vote in favour of the former Harper government's Bill C-51, which encroached on Canadians' civil rights, including the right to privacy. The Liberals said they would right that wrong when they were in power.

What they did was introduce Bill C-59, which also raises some serious concerns around privacy protection and does nothing to fix the Bill C-51's mistakes. The Liberals introduced a bill that does not fix any of the Harper government's flaws or mistakes on this issue. They are continuing along the same path, and as such, Bill C-59 will not address the gaps in Bill C-51. That is why we, the NDP, oppose this bill.

However, what the Liberals have done is put in place a procedural trick, and it is a procedural trick that is a type of closure. What this does is twofold.

As you know, Mr. Speaker, when we look at rules for the House of Commons around omnibus legislation, Standing Order 69.1 would give you the power to divide this legislation, because it is omnibus legislation with negative impacts on Canadians. However, because of this procedural trick from the Liberal government, you, Mr. Speaker, are not permitted, under the very strict framework of Standing Order 69.1, to divide this legislation. Therefore, we are forced to vote on a motion of the government that does not allow each and every one of us as parliamentarians to actually vote on the rare but still occurring positive aspects of the bill, and vote against the negative aspects of the bill. It is the heart and soul of parliamentary democracy to know why we are voting and to vote in the interests of our constituents, to stand up in this House and vote. The Standing Order 69.1 provisions were put into place so that we do not have this bulldozing of parliamentary democracy by the government, because the Speaker has the power to divide the bill. That is, except in the case of this particular procedural motion that the government has put into place, which stops your ability, Mr. Speaker, to divide this, so that, as parliamentarians, we can vote in the interests of our citizens, the constituents.

The current government has done even worse than the former Harper government. When we look at the number of times proportional to the number of non-appropriation bills passed, the new Liberal government is 25% worse than the old Harper government in its invoking of closure. I am not even including this procedural trick. What we have is a Liberal government that made many promises back in 2015, and one of the Liberals' promises was to respect parliamentary democracy. What the government is doing today is symbolic of what it has done over the last two years. It is 25% worse than the Harper government on closure, and now it is putting this procedural trick into place so that Canadians cannot have members of Parliament voting on each aspect of this omnibus legislation. It is for that reason that we say no to the motion and no to the bill.

Religious Freedom

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Speaker, I rise to table petition e-1192, signed by 3,570 petitioners.

The petitioners draw the attention of the House to Bill C-51 and the proposed removal of section 176 of the Criminal Code. They also draw attention to the House how eliminating such protection for faith leaders and malicious interference for funerals, rituals, and other assemblies of any faith is not in the best interest of Canada.

They ask the Canadian government to abandon any attempt to repeal section 176 of the Criminal Code and to stand up for the rights of all Canadians to practise their religion without fear of recrimination, violence, or disturbance.

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

Mr. Speaker, I am very pleased to present a petition today on behalf of constituents from Creston, Wynndel, Erickson, Kitchener, and a couple of guests from Abbotsford concerning Bill C-51, specifically section 176 related to the Criminal Code on the protection of faith leaders and ceremonies. I believe the committee has recommended that it not be removed from the bill.

I look forward to a very positive response to this petition.

National Security Act, 2017

[Cheryl Hardcastle, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I want to thank my hon. colleague for her comments on how important it is for us to have responsible legislation that moves forward in the best interests of Canadians' civil liberties and their security.

As we know, we are asking for a piece-by-piece repeal of Bill C-51. We have pointed out that there are certain measures the Liberals would like to keep. We would invite them to make their case and work with us to defend the rights of Canadians.

Having said that and in light of the earlier question, does the member think it is important for us to be concerned with new legislation in ensuring transparency and real-time oversight?

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, given that my Liberal colleague says that people had misgivings about Bill C-51, I would like to know why the Liberal Party voted for it at the time.

As for torture, if the Liberals are against it, why did they not change the directive so that information that may have been extracted through overseas torture would no longer be accepted?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, it is clear to me that Bill C-59 is spotty in addressing some issues that were found in Bill C-51 extremely well. Here I refer to part 3 at the time and its “thought chill” provisions, including the bizarre notion of terrorism in general on the Internet being an offence that could land someone in jail if that person could not understand what it is. This bill fails quite seriously.

On the information section, Professor Craig Forcese has made the point that we need to know that any legislation in Canada will not allow information about Canadian citizens to be shared with foreign governments in a way that imperils their safety. A lot of the bill appears to come from the decisions on the Maher Arar inquiry and on the Air India inquiry.

Regarding my hon. colleague's reference to torture, my disappointment is that no one seems to have focused on part 5 of Bill C-51, which amended the immigration act. Professor Donald Galloway of the University of Victoria was the only one to fully understand that section and to ask what Bill C-52, part 5, was trying to do in amending the immigration act. The conclusion was that it aimed to give information to judges for security certificates without having to inform them that the information was obtained by torture. I wonder if the member for Victoria has any insights as to where that section has gone, because no one is fixing it in Bill C-59.

[François Choquette, NDP, Drummond, QC]

Mr. Speaker, it is not always a pleasure, but it is definitely an honour for me to rise in the House today to speak to Bill C-59, an act respecting national security matters .

This is a strange second reading debate. To provide some context for the people listening at home, we are supposed to be at second reading. We would normally debate the bill at second reading and eventually vote to refer it to committee if we agreed with the general principles of the bill. What is happening here, which is highly unusual, is that we are not at second reading; rather we are debating whether to refer it to committee before second reading. What this means, essentially, is that the Liberals brought forward a bill but have since realized that they are not satisfied with their own bill. They want to send it to committee so it can be fixed up a bit before sending it back to the House for second reading. I have never seen this before. It is highly unusual to proceed in this manner, and it is inappropriate. This government appears to be improvising and making things up as it goes along.

If the bill is no good, the government should scrap it and come back with a better bill. What is happening here today is ridiculous. We are talking about sending a bill directly to committee rather than debating it at second reading. This is absolutely unbelievable.

Where did this Bill C-59 come from? Members will recall that its predecessor was the Conservatives' infamous Bill C-51. This is a despicable bill that utterly fails to protect human rights. I will spend the next few minutes examining the bill in greater detail.

First of all, during the election campaign, the Liberals said they would repeal Bill C-51, which, as I said, was Mr. Harper's atrocious security bill. The government made us wait two years before coming up with something, and what it finally came up with does not even come close to solving the problem. In fact, this bill will allow the government to continue violating Canadians' privacy and will criminalize dissent, just as the Harper government's Bill C-51 did. This is an important issue I would like to take a closer look at.

There are some serious problems in the bill with respect to protecting privacy, especially in terms of sharing out-of-control information. The amendments to the Security of Canada Information Sharing Act are mostly superficial. In no way does this fulfill the promise we expected the Liberals to keep.

This is an omnibus bill that seeks to provide a legal framework allowing the Canadian Security Intelligence Service, CSIS, to store sensitive metadata on totally innocent Canadians, a practice that the Federal Court ruled to be illegal. This bill does not really solve any problems. It creates new ones. There is currently a crisis of confidence in our national security agencies, especially CSIS, not because of the agencies, but because of the existing legislation. These agencies push the boundaries of the the law and they are not transparent about it, unfortunately. As far as security and intelligence are concerned, Canadians have to be sure that every Government of Canada department and agency is working effectively to ensure Canadians' safety, but also to preserve our rights and freedoms. That is the problem with Bill C-51. The government wanted to make Canadians safer, but there was nothing in that bill that provided greater safety or security.

However, a lot of the bill's provisions took away some of the rights enjoyed by Canadians. They actively undermined the privacy of Canadians and could potentially result in the criminalization of vulnerable groups, for example, environmentalists or advocates of other causes. I will explain later why I am mentioning this.

First, Bill C-51, known as the Anti-terrorism Act, 2015, was passed with little debate. It was not really necessary. That is why we stated several times that this law weakened our security and diminished our right to the protection of privacy, freedom of expression and freedom of association.

This clearly shows that Bill C-51 was ill-conceived. For that reason, we did not support it. We believe that Bill C-51 must be repealed in full and that we must start over; it was Stephen Harper's bill, it did not work, and we have to scrap it right quick.

I would remind the House that, in 2016, the Federal Court ruled on the Canadian Security Intelligence Service's mass data collection. It found that CSIS illegally kept sensitive, personal electronic information for over 10 years. In this landmark ruling, Justice Simon Noël said that the CSIS had failed in its duty to inform the court of its data collection program and ruled that what it had done was illegal. What did the Liberals do in response? They decided that since such activity was illegal, they would draft a bill to make it legal.

Come on. The Federal Court said that what CSIS was doing did not make any sense, that it was illegal, and that it violated privacy rights, and so the Liberal government decided to make those illegal activities legal. That does not make any sense. I can see why the Liberals would want to send this to committee to make amendments and gut this bill. That is shameful.

The other problem that is not mentioned in this bill but that is important to talk about is all of the ministerial directives related to torture. That is very serious. It is something that I care a lot about, and I am convinced that everyone in the greater Drummond area sent me here to talk about this. It is extremely important.

We are calling on the Minister of Public Safety and Emergency Preparedness to repeal and replace the 2010 ministerial directive on torture to ensure that Canada stands for an absolute prohibition on torture. Specifically, we want to ensure that in no circumstances will Canada use information from foreign countries that could have been obtained using torture or share information that is likely to result in torture.

Canada says that it will not torture, but other countries will torture for us. The government would then take this information and impose sanctions.

This makes no sense. Torture must be denounced everywhere. We must never use information obtained under torture. Everyone knows that people will say anything when they are being tortured. Torture does not work and is immoral.

I hope that this government will wake up, because this goes back a long time. The Liberals have been in power for two years and they still have not improved the situation. We must show integrity, we must be strong, and we must say no to torture everywhere in the world. We must not use information obtained through torture or that may lead to torture.

In closing, since the government itself does not think that this is a good bill and wants to send it directly to committee, without going through second reading, I propose that, instead, the government withdraw the bill and introduce new, common sense legislation with the help of the other parties.

Justice and Human Rights

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Speaker, I have the honour to present, in both official languages, the 17th report of the Standing Committee on Justice and Human Rights in relation 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.

The committee has studied the bill and has decided to report the bill back to the House with amendments.

National Security Act, 2017

[Majid Jowhari, Liberal, Richmond Hill, ON]

Madam Speaker, it is with great pleasure that I rise today to speak in support of the national security act, 2017, Bill C-59. Two years ago, our government came to Ottawa with the promise that it would address the numerous problematic elements of Bill C-51, which was enacted by the previous government. Canadians agreed that in attempting to safeguard the security of Canada, Bill C-51 failed to strike a balance between security and freedom.

Today I am proud to be able to rise in this House and say that we have wholeheartedly delivered our commitment to addressing those problem areas. Our government began its commitment to achieving this goal by first reaching out to Canadians in an unprecedented consultation process, where all agreed that accountability, transparency, and effectiveness are needed from their security agencies.

Secondly, Bill C-22 was passed earlier this year, which created the multi-party National Security and Intelligence Committee of Parliamentarians. It is tasked with reviewing national security and intelligence activities through unprecedented access, with the goal of promoting government-wide accountability. On November 6, our Prime Minister followed through on this commitment by announcing the members of the committee. Today we are debating the national security act, 2017, Bill C-59, the last step in achieving our commitment to improving those problematic elements of Bill C-51. This package consists of three acts, five sets of amendments, and a comprehensive review process.

In creating the national security and intelligence review agency, the office of the intelligence commissioner, and the Communications Security Establishment, we have created the robust and effective national security establishment that Canadians have asked for. In addition, we are amending the Canadian Security Intelligence Service Act, the Security of Canada Information Sharing Act, and the Secure Air Travel Act to strengthen the role of the Charter of Rights and Freedoms, limit the collection of personal information, safeguard Canadian rights to peaceful assembly, and fix problems with the no-fly list.

Finally, our amendments to the Youth Criminal Justice Act would ensure young persons would be provided with all appropriate child protection, mental health, and other social measures needed when faced with a terrorism-related offence. Through my work on the mental health caucus, I know how important it is for all Canadians, especially those of marginalized groups, to have access to all available safeguards, services, and measures when navigating the criminal justice system. Therefore, I am pleased to speak today specifically about these proposed amendments to the Youth Criminal Justice Act included in part 8 of the national security act, 2017.

My riding of Richmond Hill is an incredibly diverse and vibrant riding, where over half of my constituents are Canadians from an immigrant background. Of these, the majority are youths and young families under the age of 30. For this reason, I am proud to say that through this set of amendments, our government is taking action to ensure that all youth involved in the criminal justice system are afforded the enhanced protections provided by Canada's Youth Criminal Justice Act, while also holding them accountable for their actions.

The Youth Criminal Justice Act, or YCJA, is the federal law that governs Canada's youth aged 12 to 17 who commit criminal offences, including terrorism offences. The YCJA recognizes that the youth justice system should be separate from the adult system, and based on the principle of diminished moral blameworthiness of youth. It emphasizes rehabilitation and reintegration, just and proportionate responses to offending, and enhanced procedural protections for youth. The act also recognizes the importance of involving families, victims, and communities in the youth criminal justice system. The YCJA contains a number of significant legal safeguards to ensure that young people are treated fairly and that their rights are fully protected, for example, the identity publication ban, and significant restrictions on access to youth records.

Young people also have enhanced right to counsel, including state-provided counsel, and the right to have parents or other guardians present throughout key stages of the investigation and judicial processes. If a young person is charged, all proceedings take place in youth court. In addition, the YCJA would establish clear restrictions on access to youth records, setting out who may access youth records, the purpose for which youth records may be used, and the time periods during which access to records is permitted. Generally speaking, although the offences set out in the Criminal Code apply to youth, the sentences do not. Instead, the YCJA sets out specific youth sentencing principles, options, and durations. There is a broad range of community-based youth sentencing options, and clear restrictions on the use of custodial sentences.

Turning now to Bill C-59, it is important to recognize that there have been very few cases in Canada in which a young person has been involved in the youth criminal justice system due to terrorism offences. In total, we have had six young people charged since 2002. Two were found guilty, three were put under a peace bond, and one had the charges dropped. Nonetheless, it is important to ensure that when this occurs, the young people are held to account, but also that they are afforded all of the enhanced protection under the YCJA. It is perhaps even more important in terrorism-related offences that we do everything in our power to reform young offenders so that future harm is prevented.

Part 8 of Bill C-59 would amend the provision of the YCJA to ensure that youth protections apply in relation to anti-terrorism and other recognizance orders. It also provides for access to youth records for the purpose of administering the Canadian Passport Order, subject to the special privacy protections set out in the YCJA. The bill would also make important clarifications with respect to recognizance orders. Although the YCJA already provides youth justice courts with the authority to impose these orders, several sections of the YCJA would be amended to state more clearly that youth justice courts have exclusive jurisdiction to impose recognizance on youth. This would eliminate any uncertainty about the applicability of certain rights of protection, including the youths' right to counsel. In addition, there is currently no access period identified for records relating to recognizance. Therefore, the YCJA would be amended to provide that the access period for these records would be six months after the order expires.

With respect to the Canadian Passport Order, Bill C-59 would amend the YCJA to specifically permit access to youth records for the purpose of administering Canada's passport program. The Canadian Passport Order contemplates that passports can be denied or revoked as a result of certain criminal acts, or in relation to national security concerns. For example, section 10.1 of the Canadian Passport Order stipulates that the minister of public safety may decide to deny or revoke a passport if there are reasonable grounds, including that revocation is necessary to prevent the commission of a terrorism offence, or for the national security of Canada or a foreign country or state.

The current YCJA provisions governing access to youth records do not speak to access for passport matters. As noted, Bill C-59 would allow access in appropriate circumstances. However, it is important to note that the sharing of youth information on this provision would still be subject to the special privacy protection of the YCJA. Canadians can be assured that our government is addressing the national security threat while continuing to protect democratic values, rights, and freedoms for Canadians. Those two goals must be pursued with equal dedication.

I encourage all my colleagues to vote in support of the bill.

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

Madam Speaker, if anything was clear in the last Parliament with respect to Bill C-51, it was that the New Democrats opposed it for their own reasons of principle, and yet we find out today from the parliamentary secretary that the Liberals only opposed it for political purposes, so they could use it as a wedge issue in the last election.

I want to speak to the issue of committees. The hon. member knows this bill will go to committee and that there will be some proposed amendments from this side of the House, both the official opposition and the third party. Not to be cynical, we know that the government controls committees. How confident is the member that any proposed amendment will be taken up by the government, and perhaps used to change this legislation?

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Madam Speaker, I am pleased to rise in the House today to talk about this important bill.

Earlier today, the Minister of Public Safety said that a government has no greater responsibility than keeping its people safe. These people live in our ridings. They are our colleagues, our neighbours, family friends, even our own children. The public safety minister is absolutely right. All governments around the world are responsible for keeping their people safe. That is a weighty and fundamental responsibility that must be taken seriously.

However, the minister was unable to add that the government's responsibility to protect people's freedoms is just as important. It has been obvious from the get-go that the government's approach is skewed toward security and policing and that it is much less interested in talking about the importance of protecting our freedoms.

As citizens who are privileged to live in a democratic society where we can vote and say what we want and enjoy freedom of expression and freedom of association, we must never forget what a long, hard road it has been to get here. We must resist any attempt to undo our progress by taking away any of our rights and freedoms. Bill C-59 is shocking in several ways, considering it comes from the party that authored the Canadian Charter of Rights and Freedoms. This worries us, as progressive New Democrats and as democrats.

Bill C-59 continues the Liberal Party's two-faced tradition of saying one thing and doing the opposite. The Liberals can advocate one thing and then make decisions that oppose it. The member for Winnipeg North has just demonstrated this perfectly by reminding us that Bill C-51 was strongly opposed by civil society organizations, experts, and defenders of civil liberties, and yet the Liberal Party, with an eye on the upcoming election, voted in favour of Bill C-51 because it would help the party on the campaign trail. It is hard to follow the Liberals' logic at any given point in time. They are not consistent.

It is too bad that we are dealing with a government that plays politics, waffles, contradicts itself, and is sometimes incredibly hypocritical. We can blame the previous Conservative government for a lot of things, but a lack of consistency is not one of them, even though we were often strongly opposed to its decisions.

The Liberals' habit of talking out of both sides of their mouths is not just affecting our security intelligence agencies and police forces. It is as though we have been listening to a broken record for the past two years. The Liberals have been saying that Canada is back on the world stage and that they are going to take tougher action to reduce greenhouse gas emissions. However, we can see that this is all a sham. The Liberals have adopted the same plan as the Harper Conservatives and are approving pipelines left and right, which is obviously going to increase our greenhouse gas emissions. The Liberals are saying one thing and doing another.

The Liberals talk about an open and transparent government, but the changes they are making to the Access to Information Act will make it more difficult and complicated to follow that approach. The Liberals are saying that they want to restore people's confidence in public institutions, but then ministers are hosting cash-for-access fundraisers at $1,500 a ticket.

What is happening today is therefore just another example of the Liberals playing politics at the expense of Canadians' safety and security. They are merely tinkering with Bill C-51, when the NDP and others believe it should be repealed. We need to start from square one and draft a good bill that makes Canadians safer, since that is absolutely essential.

We want to do everything we can to prevent terrorists and other ill-intentioned people from coming here and plotting or preparing attacks or violence against Canadians. We also want to give our democratic institutions and watchdogs the tools needed to watch the watchers. If this is not done properly, we could see a shift towards a police state that infringes on our privacy and digs through our personal lives to gather a bunch of information, even when there is no reason to suspect someone of wanting or attempting to do anything wrong.

We believe that Bill C-51 jeopardized our privacy, our freedom of expression, and our freedom of association. Unfortunately, Bill C-59 does not do what it takes to correct that. The Liberals have missed the mark. A few of these measures might be worthwhile, but overall, the Liberals are continuing the dangerous trend we saw under the previous Conservative government.

The new oversight and review mechanisms are limited and do not offset the exchange and sharing of information and almost unlimited powers within our security agencies. This is a major concern.

There is something rather ironic about what I am going to say, but it must be said as it is of great concern to us. In November 2016, or last year, the Federal Court handed down a ruling with respect to the massive collection of data by CSIS. It had illegally kept personal electronic data for more than 10 years. In its rather scathing and very clear ruling, Justice Simon Noël stated that CSIS breached its duty to inform the court of this data collection since the information was gathered using judicial warrants.

CSIS should not have retained the information since it was not directly related to threats to the security of Canada. That is important. That is a very real example that highlights all the concerns of people who wonder what type of information will be collected about them, who will have access to this information, and to whom this information will be communicated and transferred. In November 2016, the Federal Court pointed out that there can be exaggerations. This is not a figment of the imagination. It happened here.

The Minister of Public Safety and Emergency Preparedness quickly reacted and said that the government took note of this and would not appeal this decision. Oh, okay. That is a good sign. Perhaps it is a step in the right direction. Oh, wait. Surprise! In Bill C-59, the Liberal government responds to the Federal Court decision in a strange way when it comes to our privacy protections. The new law will allow CSIS to collect huge amounts of metadata containing confidential information about Canadians that is not relevant to its investigations.

The November 2016 Federal Court ruling stated that CSIS did not have the right to do so, and that it was illegal. Bill C-59 makes it legal. People need to understand that if Bill C-59 is passed, CSIS will be able to collect huge amounts of metadata containing confidential information about Canadians that is not relevant to its investigations. These are the kinds of things that make it impossible for us to fall in line with the Liberal government. Yes, we are happy that we can study Bill C-59 more closely, but we are sounding a warning bell.

We are telling Quebecers and Canadians in general to be careful, because there are elements in this bill that will increase police surveillance. We are going to be spied on more, and we do not know who is going to end up with the information.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Madam Speaker, it is unbelievable. The member for Winnipeg North always stands up and puts politics ahead of sound policy and politics ahead of public safety. Here he has proven it again, saying they only voted for Bill C-51 because it was going to be a wedge issue in the last campaign. That is why the Liberals should never have won the last election, because that is the type of mentality they have.

The member talked about parliamentary oversight. If we are going to have parliamentary oversight, let us do it right. Let us do it like they do in the United Kingdom, the United States, and Australia, where they swear them in to Privy Council, where they have access to everything.

The Liberals put on a facade of so-called taking an oath, yet everything is still censored by the Minister of Public Safety, the Minister of Justice, and the Prime Minister himself.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, I was here when the previous government brought in Bill C-51, and there was a great deal of resistance to it from every region of our country. The Liberals ended up supporting that piece of legislation, recognizing that it would become part of our election platform in terms of the need to make changes. This legislation would enable some of those changes.

I would ask the member across the way why the Conservative Party does not seem to understand or appreciate the need to have a parliamentary oversight group, when the other countries in the Five Eyes already have them? That is one of the fundamental flaws of Bill C-51. The Conservatives are out of touch with what the other countries are doing, such as Australia and the U.S.A, and recognizing the importance of having an interparliamentary oversight committee, which would guarantee the rights of Canadians. Why do the Conservatives continuously oppose that?

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Madam Speaker, I have full confidence in the intelligence-gathering processes in Bill C-51, which we passed in a previous Parliament, in 2015. That piece of legislation allowed for information-sharing between CBSA, the RCMP, CSIS, CSE, and the Department of Foreign Affairs. I think most Canadians just assumed this had already been taking place. With government, everything always operates in silence. When we can level things off and allow information-sharing to percolate through all departments, we do a much better job of protecting Canadians, whether it is at the border, at the ports, or on our own turf.

I have a concern about returning ISIS fighters and the whole policy of reintegration rather than incarceration for these people. I think all of us are concerned about that. That is why Bill C-59 has to be studied in great detail, with expertise, so amendments can be made to the bill so that this legislation does not actually become reality.

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

Madam Speaker, I rise in the House today to speak to Bill C-59 and to express my concerns about this bill being passed in its current form. I have read through the bill carefully and tried to understand the intentions of the Liberals, who seem to want to accommodate terrorists.

In the Liberals' speeches, they try to convince us that they are looking out for Canadians and working to keep them safe. However, if we look at their actions, such as the ones proposed in Bill C-59, it is obvious that either the Liberals are getting bad advice, or they are more concerned about the rights of criminals than those of law-abiding Canadians.

Let me explain. The most significant and most contentious change that Bill C-59 would make to the Criminal Code is the amendment of the offence set out in section 83.221, which applies to “Every person who...knowingly advocates or promotes the commission of terrorism offences in general”. Bill C-59 would introduce a much more stringent test by changing the wording to “Every person who counsels another person to commit a terrorism offence”.

The same goes for the definition of “terrorist propaganda” in subsection 83.222(8), which will significantly reduce the ability of law enforcement officials to use the tool for dismantling terrorist propaganda with judicial authorization as set out in Bill C-51. One could argue that using the expression “another person” means that the offence must target someone specifically rather than the broader target of domestic terrorism and the offence that Bill C-51 is supposed to prevent.

Madam Speaker, I know you understand the importance of what I just said. If Bill C-59 passes in its current form, terrorists will be free to spread all kinds of propaganda using social media, without any fear of being arrested or prosecuted.

The vast majority of terrorist activities are generated from propaganda that is spread in a general way, rather than directed at a specific person. Imagine how this measure will affect the work of our police officers and how we combat terrorism. This proposal is absurd, because it protects criminals and those who want to engage in violence in our country. The government has some explaining to do, and I mean today.

Bill C-59 limits what the Canadian Security Intelligence Service can do to help us protect ourselves. When Bill C-51 was tabled by our government, it gave CSIS the power to engage in threat disruption activities. This meant CSIS could contact the parents of a radicalized youth and urge them to prevent their child from travelling to a war zone or committing an attack here in Canada.

However, if the Liberals' Bill C-59 passes, CSIS will lose that power and will not be able to do anything on the spot to protect us. All of its activities will require a warrant, which is not exactly convenient when the goal is to stop someone from committing an act of terror. Currently, a CSIS agent can pretend to be a local resident to influence someone who is preparing to commit a terrorist act. Bill C-59 will put a stop to that. Agents will just have to watch the threat develop and will have to get a warrant from a judge before they can take action. By the time the warrant is issued, it could be too late. Why are the Liberals putting so many obstacles in the way of law enforcement, who are just trying to protect us Canadians?

The Conservative Party has always taken Canadians' safety seriously, as demonstrated by the introduction and passage of Bill C-51. We must not forget that this bill was passed by the Conservative government with the support of the Liberals, who were then the second opposition party. A couple of years ago, in 2015, the Liberals were in agreement. There was a slight change during the election campaign and now they have introduced Bill C-59, but let us not forget that Bill C-51 was approved by the Liberals.

Now it seems that the Liberals are trying to make things more difficult for the officers tasked with fighting these criminals. In 2015, during the campaign, our Liberal colleagues clearly stated that, if they were elected, they would amend this legislation. It is important to highlight that the bill was only introduced in Parliament at the end of June of this year. It took them 18 months.

The Liberals took their sweet time in keeping their election promise. Perhaps they realized that the original legislation was not as flawed as they thought. They now want to make amendments to show that they are keeping another promise.

The Conservative Party knows how important it is to have measures regarding national security institutions and the responsibility that comes with that. For us, there is no question that the safety of Canadians comes before the comfort of terrorists and criminals. Canadians who love their country come before those who are seeking to destroy it. Unlike the Liberals, we are committed to protecting Canadians. That is not just an idea that we came up with during the election campaign. We have always been committed to that goal because the threat still exists and has not diminished. The threat posed by these criminals is becoming increasingly sophisticated.

We have also heard that these thugs are wandering the streets of our communities after fighting with ISIS. They fought against our own soldiers. We know that they fought alongside ISIS and that many of them came back to Canada. The Minister of Public Safety and Emergency Preparedness is now saying that he is looking for evidence to arrest them. That is all well and good, but in the meantime, Canadians need clearer information about the situation.

Where is the transparency that the Liberals promised Canadians? Why is the Minister of Public Safety not saying anything about these criminals? Why is he being so silent on this?

As it now stands, Bill C-59 will greatly hinder the efforts of our peace officers and compromise the safety of Canadians, while facilitating the work of terrorists.

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

Madam Speaker, I thank the minister for his speech.

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

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

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

Thank you, Chair.

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

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

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

[Nathalie Levman]

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

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

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

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

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

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

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

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

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone.

It gives me great pleasure to welcome everyone today.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Don Hutchinson, Author, As an Individual]

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

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

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

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

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

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

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

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

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

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

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

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

The court continues:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you, Madam Chair.

Criminal Code

[Rob Nicholson, Conservative, Niagara Falls, ON]

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

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

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

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

[Colin Fraser, Liberal, West Nova, NS]

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

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

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

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

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

[André Schutten]

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

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

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

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

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

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

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

[Ted Falk, Conservative, Provencher, MB]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you, Mr. Chair.

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

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

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

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

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

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

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

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

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

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

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

[The Chair, Liberal, Anthony Housefather]

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

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

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

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

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

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

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

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

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

[H.E. Lionel Gendron]

Good afternoon.

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

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

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

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

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

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

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

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

Thank you.

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Okay. Thank you very much.

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

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

[Bruce Clemenger]

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

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

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

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

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

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

Thank you.

[Bruce Clemenger, President, Evangelical Fellowship of Canada]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Supreme Court of Canada has said:

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

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

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

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

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

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

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

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

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

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

Mr. Coughlan, the floor is yours.

Physician-Assisted Dying

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

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

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

Religious Freedom

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

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

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

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

Thank you very much for that very specific recommendation.

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

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

Thank you very much.

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

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

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

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

Thank you for that clarification.

There is one other area on which I wish to seek clarification. You made reference to the defence of mistaken belief. It was suggested yesterday by one of the witnesses—I believe it was Ms. Lee—that based upon the current wording in Bill C-51, that defence would effectively be eliminated both in terms of mistaken belief on the basis of fact and the law. I believe that the issue comes with subparagraph 273.2(3)(a)(iii), “any circumstance in which no consent is obtained including those referred to”, etc.

Do you agree with her analysis, that unless that wording is changed, there would be the risk of at least creating a lot of confusion about whether that defence in the context of mistaken belief would be an available defence?

[Dr. Emma Cunliffe, Associate Professor, Peter A. Allard School of Law, University of British Columbia, As an Individual]

Thank you for inviting me to speak to this honourable committee today and particularly for returning at the end of a long day to hear us speak.

It may provide a little context for my remarks if I begin by explaining that my academic research focuses on factual reasoning and the evidentiary rules in criminal trials, so I have a particular interest in factual reasoning in sexual assault cases. For that reason, I'll focus on the procedural dimensions of the proposed changes in Bill C-51, in particular the proposed changes to sections 276 and 278.

The three specific features of the bill that I will address are the clarification in respect of sexual activity that Professor Benedet touched on; the proposal to give sexual assault complainants standing in respect of procedural applications that bear upon their charter rights under section 278; and the imposition of procedural safeguards before an accused person may introduce records in which the complainant has a privacy interest under section 278.

While preparing for today, I reviewed the submission prepared by the Women's Legal Education and Action Fund and that prepared by the Criminal Lawyers' Association. I endorse the submission made by LEAF and the recommendations made within that submission, including in respect of the well-intended, but as Professor Benedet has explained, mis-drafted codification of principles regarding capacity to consent, intoxication, and unconsciousness. I would agree with Professor Benedet in that respect. I won't expand further on these matters at this time, but would be pleased to speak further to them in question time if the honourable members of this committee wish me to do so.

I'll now turn to those amendments that relate more to evidence and procedure. In order to clarify the purpose and the likely operation of these amendments, I'd like to begin by providing you with a brief review of the constitutional principles that have been laid out by the Supreme Court of Canada in respect to sexual assault trials.

The right of an accused person to make full answer in defence is fundamental to Canadian constitutionalism and the rule of law. Like all rights and freedoms, this right has limits. Some of these limits are inherent to the nature of the trial process. For example, defence counsel must have a good faith basis for questions asked on cross-examination. Other limits arise from the relationship between the right to make full answer in defence and other constitutional guarantees, such as the right to equality, privacy, dignity, and security of the person.

In the 1999 Supreme Court decision in R. v. Mills, Chief Justice McLachlin and Justice Iacobucci held on behalf of the majority that a quality consent inform the contextual circumstances in which the rights of full answer in defence and privacy will come into play. A direct quote from the judgment is “the right to make full answer and defence does not include the right to information that would only distort the truth-seeking goal of the trial process.”

In these reasons, the court drew an explicit link between a complainant's charter rights and the truth-seeking function that is the ultimate purpose of a criminal trial. Similarly, the Supreme Court has emphasized that the sexual assault trial should not be permitted to become an ordeal for the complainant. For example, in R. v. Osolin, Justice Cory held on behalf on the majority of the court that a complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system.

The challenge that is therefore presented to both Parliament and the courts is how to fully respect the importance of both the accused person's rights and those of the complainant in a sexual assault trial. A proper delineation of the boundaries of both sets of rights is an integral step towards meeting this challenge. The submission prepared by the Criminal Lawyers' Association states that sexual assault complainants should be protected against disrespect, unfair treatment, myth-based interrogation, and poorly founded, overly intrusive production orders. I agree.

However, the Criminal Lawyers' Association does not acknowledge that sexual assault complainants hold constitutional rights that are potentially impacted by the manner in which sexual assault trials are conducted. It also fails to consider the Supreme Court of Canada's explicit recognition that these rights help to define the proper scope of an accused's rights within the sexual assault trial and vice versa.

Existing statutory rules, including section 276 regarding sexual history evidence, and section 278 regarding third party records, strike a constitutional balance using three principles that have received constitutional endorsement from the Supreme Court of Canada.

The first of these principles is that some forms of reasoning, often referred to as the twin myths, have been characterized by the Supreme Court as simply impermissible. Section 276.1 in its present form, and as it will remain in Bill C-51, absolutely prohibits the admission of sexual history evidence to support that kind of reasoning.

Second, all evidence is subject to a basic requirement of relevance. This principle is reflected in existing paragraph 276(2)(b), which will remain unchanged, and in subsection 278.3(3) which is also unchanged by Bill C-51. I endorse LEAF's recommendation that Bill C-51 be amended to adopt the judicial definition of “likely relevant” provided by the Ontario Court of Appeal in Regina v. Batte. More information on this point is provided at pages 12 to 13 of LEAF's submission.

Third, in order to be admissible, an accused person's evidence must have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This principle is set out, for example, in paragraph 276(2)(c) of the present code. While the numbering will change slightly as a result of Bill C-51, the principle will not. A similar weighing exercise is required in respect of the disclosure of third party records.

Let's turn, then, to Bill C-51. The first of the things it will do with respect to this balancing between the complainant's rights and the accused's rights is to clarify the definition of sexual activity as extending to communications. In circumstances in which an accused person wishes to introduce evidence of sexual communications by the complainant, the trial judge will consider the same three principles as already exist and are already constitutional. Is the evidence introduced solely to perpetuate prohibited myths and stereotypes? If so, it's inadmissible. Is the evidence relevant to the material questions of whether the complainant subjectively consented to the sexual activity that took place at the time of the occurrence of the activity and whether the accused person believed that the complainant was consenting? Does the evidence have significant probative value that's not substantially outweighed by the danger of prejudice to the administration of justice?

In considering these questions, a judge would address the accused person's charter rights and those of the complainant, as well as the extent to which the evidence would advance the truth-seeking function of the trial and other important social purposes. It bears noting that in 1992 when section 276 was first drafted, social media was basically non-existent. The text messages and emails, including picture messages which are widely used today essentially didn't exist in their present form. The cultural embrace of digital technologies for personal communication has opened new doors to the operations of myths and stereotypes that courts and Parliament have tried valiantly to exclude from the justice system. The proposed amendment to section 276 represents a sensible and incremental response to these social changes, and a clarification in a divided body of case law. It will not result in the exclusion of valuable evidence, but it will ensure that judges are attentive to the risks of impermissible reasoning.

I'll now turn briefly to proposed subsections 278.94(2) and (3), which provide complainants the right to legal representation at admissibility hearings regarding her sexual history or records. In an article that I published in the Supreme Court Law Review in 2016, I documented some of the difficulties presently experienced by complainants who seek to assert their charter rights without standing or legal representation. Complainants' charter rights are pivotal to these admissibility hearings. Indeed, these are the very reason why the hearings are being held. Giving them standing and ensuring proper funding to ensure that they have legal representation is the single most effective way to ensure that sexual assault complainants are accorded the equal benefit and protection of the law at this important trial stage.

Finally, I would like to touch on the extension of section 278 records to records that are in the possession of the accused. The Department of Justice backgrounder to Bill C-51 states that proposed subsection 278.92(1) is intended to apply to the—quote—“complainant's private records” that are in the accused person's possession. The language actually used in subsection 278.92(1) as proposed is that a record includes, relevantly, “any form of record that contains personal information for which there is a reasonable expectation of privacy”. The Criminal Lawyers' Association raises the concern that the obligation is overbroad, and provides examples, at page 4 of its submission, of circumstances in which the plain language of the provision as drafted would appear to apply to records that do not engage the concern about a complainant's records.

Based on the Department of Justice backgrounder, I believe the intention is to engage the section 278 process when the accused has possession of records in which the complainant or witness has a privacy interest, but not otherwise. For this reason, I would recommend that this honourable committee consider an amendment to proposed subsection 278.92(1) to read “except in accordance with this section, no record in which a complainant or a witness that is in the possession or control of the accused”, etc.

To clarify that, the salient link to engaging the process is the link between the record and the complainant's privacy interests. This would sidestep the concern about overbreadth that the Criminal Lawyers' Association has raised, while securing the goal the Department of Justice has laid out.

Thank you for your attention.

[Professor Janine Benedet, Professor of Law, Peter A. Allard School of Law, University of British Columbia, As an Individual]

Thank you very much.

As the chair indicated, I am a law professor at UBC. My research and my teaching focus on legal responses to sexual violence against women, including sexual assault, sexual harassment, prostitution, and pornography.

I'm here today testifying in general support of the provisions of Bill C-51 as they relate to amendments to the Criminal Code in the area of sexual assault while recognizing that the barriers women face in the area of sexual assault are much deeper and more systemic than what this suite of amendments touches.

In the few minutes I have for opening remarks, I'm going to focus in particular on the proposed amendments that relate to the definition of consent, and the defence of mistaken belief in consent, and then just conclude with a couple of words in support of the proposed changes to the definition of sexual activity for the purpose of section 276 of the Criminal Code.

I'll start with proposed paragraph 273.1(2)(a.1). I would just recognize that I think we're 17 years overdue for renumbering of the Criminal Code, and these amendments remind me of that.

This is the proposed change to the Criminal Code that would add as an item on the list of factors in which no consent is obtained the fact that the complainant is unconscious.

This is the one proposed change that raises concerns for me. I understand it as an attempt to codify the Supreme Court of Canada's decision in J.A. I think that's an important decision and worth reflecting in the Criminal Code, but I am worried that the proposed amendment reduces that decision to being about whether you can consent in advance to sexual activity when you are unconscious, a term that in and of itself is perhaps contested and not entirely settled in its meaning.

The decision in J.A. actually goes further than that. What it says is that you cannot give advance consent to sexual activity that takes place when you are incapable of consenting, and that's a broader term than just unconsciousness.

Now, I recognize that you might say that incapacity is still there, but I actually think it would be better, rather than inserting paragraph 273.1(2)(a.1) into that list, to simply amend paragraph 273.1(2)(b) to say no consent is obtained for the purposes of sections 271, 272, and 273, where the complainant at the time the sexual activity takes place is incapable of consenting.

That actually gets at the crux of J.A., the point that there can be no advance consent to sexual activity that takes place when an individual is incapable. What matters is their capacity at the time of the sexual touching. That would codify J.A., and it would also benefit perhaps a broader range of sexual assault complainants than what's being contemplated by the existing amendment.

In particular, with regard to individuals with dementia, we've seen some interest in the concept of advanced directives vis-à-vis the idea that there could be advance consent by someone in the early stages of Alzheimer's disease to continue to have sexual contact with a spouse even when they no longer recognize them. That's not someone who's unconscious, but it is someone who's very vulnerable and clearly incapable of consenting to sexual activity.

It would also benefit women with intellectual disabilities more generally by making it easier to think about incapacity in a situational way. Where we are now is that judges are very reluctant to find complainants with intellectual disabilities incapable of consenting, because they believe doing so disqualifies them from all sexual activity for all time. Again, focusing the incapacity inquiry on the time that the sexual activity takes place benefits not only those women who are unconscious or otherwise incapacitated from domestic violence or from drugs and alcohol but also women with intellectual disabilities.

It seems to me there might be a clearer and better way to reflect the very important decision of the Supreme Court of Canada in J.A.

The bill also proposes some changes to the definition of mistaken belief in consent, and in particular some clarification that the accused cannot rely on any of the factors that would vitiate consent to found a mistaken belief. That again is codification of the case law, a useful clarification that makes it clear that there is a difference between a mistake of law, which does not exonerate—if you believe that consent is something other than what the law requires, you can't rely on the defence—and the defence of mistake of fact, which is much narrower and requires an honest belief, in the circumstances known to you at the time—not the result of recklessness, not the result of wilful blindness, and not the result of intoxication—that the complainant was consenting and, of course, that you took reasonable steps to ascertain her consent.

Having said that, I think it is worth pointing out that in contemporary sexual assault trials it is rare to even get to this defence. We are still in a situation in which the Criminal Code does not define non-consent, and that's actually what the crown has to prove. Most often, cases fail because the credibility of the complainant's claim as to her state of mind—that she did not want the sexual touching to take place—is undermined, and it is most often undermined by long lists of missed opportunities or what the complainant ought to have done or should have done and didn't do.

That remains a significant barrier for sexual assault complainants, which isn't addressed by Bill C-51. This means that we rarely get to the question of the accused's belief in consent, but I think that, when we do get there, these amendments would certainly be a valuable addition to the Criminal Code.

The last point I want to mention relates to the amendments that touch on the issue of sexual history evidence. In particular, I want to express my strong support for expanding or clarifying the definition of sexual activity to include communications, photographs, and other kinds of evidence that may not relate to actual physical sexual contact between the complainant and the accused or third parties.

That's particularly important because the case law in that area is currently divided, with some judges treating that kind of evidence as falling under section 276, and others thinking that it falls wholly outside, and is therefore simply inadmissible. That would actually be an important and useful clarification, as is the following proviso, which is that, if the evidence is being adduced to support one of the twin myths, it is simply not admissible and we don't go on to a balancing exercise. Those are both areas in which I see courts struggling to apply these provisions as consistent with their original intent, and they remain important clarifications and additions to the sexual history provisions in that area.

That's what I would like to draw to the committee's attention at the outset. I welcome your questions.

[The Chair, Liberal, Anthony Housefather]

It is my pleasure to call this meeting of the Standing Committee on Justice and Human Rights back to order for our third panel of the day dealing with Bill C-51.

It is a pleasure to welcome from the University of British Columbia both Ms. Janine Benedet, who is a professor of law, and Ms. Emma Cunliffe, who is an associate professor.

Welcome, Ms. Benedet and Ms. Cunliffe. It's a pleasure to have you both here with us. Thank you for coming from so far away.

We will start with Ms. Benedet.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I want to thank this panel for helping us go forward with our study of Bill C-51. I wish you all a great rest of the day.

We are recessed until after the votes, when we'll resume with our third panel.

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

Thank you, Chair.

Thank you to those witnesses I've seen at status of women. We actually studied violence against young women and girls as well as the private member's bill on judicial training. Sadly, much of the testimony we've had today hasn't been to do with Bill C-51; it's actually been on the same issues we heard about.

One of the challenges, of course, is that we have federal and provincial judiciary courts, so where is the money coming from? Is it the provincial or the federal government? I hear what you're saying. One of the most compelling witnesses we had represented crown attorneys, who said that when survivors of gender-based violence come forward, they think the crown attorney is representing them and not the state, so they feel they have a representative in court, but then when they get there, they're let down when they find that that's not their representative.

When you were talking about the need for someone to be with them, I completely agree with you. I don't think that's something covered in this bill, though.

Do you think the right to legal representation during the rape shield provisions, that part of it, is a good thing?

[Karen Segal, Staff Lawyer, Women's Legal Education and Action Fund]

My name's Karen Segal. I'm counsel at LEAF, the Women's Legal Education and Action Fund. LEAF is an equality rights organization that, since 1985, has been involved in advancing women's substantive equality rights. We do that particularly through legal advocacy and litigation. In particular, we have played a significant role in law reform initiatives relevant to sexual assault, and have participated in nearly all significant changes in this area.

Broadly speaking, LEAF is supportive of the changes proposed in Bill C-51. However, we have serious concerns about the additions of proposed paragraphs 153.1(3)(a.1) and 273.1(2)(a.1). I'll first review our concerns about those provisions, and then briefly identify the reforms that we support.

Our fundamental concern with Bill C-51 is the proposed codification of unconsciousness as a bright line defending when someone is not capable of providing consent to sexual contact. The provision adds nothing new to the law of sexual assault, which has long held that unconscious women cannot consent to sexual contact, and risks opening the law of incapacity to being defined by unconsciousness as opposed to by an individual's ability to provide informed and voluntary consent.

As I said, courts have had no difficulty dealing with the long-standing rule that unconscious people cannot consent, and we're not finding that courts find that unconscious women have been capable of providing consent. Where courts have real difficulty is in dealing with complainants who are conscious but whose ability to give meaningful consent is severely impaired by alcohol or drugs.

The law on incapacity requires women to be capable of providing informed consent, which has been defined to mean understanding the sexual nature of the act, and of realizing that he or she may choose to decline participation. However, in practice, courts have struggled with giving meaning to this threshold. Judges have routinely required external indication of unconsciousness or sleep in order to conclude that the complainant was not capable of consenting. We've also seen judges rely on a complainant's ability to perform basic tasks, such as remembering the password to his or her cellphone, as evidence of the capability of providing informed consent to sexual contact. We are not seeing courts engage in a nuanced analysis of the complainant's ability to provide informed consent.

Further, courts have a tendency, because of this focus on unconsciousness, to conflate capacity to consent with consent itself. A glaring example of this is the Nova Scotia case R. v. Al-Rawi, which is currently under appeal, in which the accused taxi driver was acquitted despite the fact that the complainant was found unconscious in the back of the accused's taxi cab in a remote area of town, partially naked, with the accused crouched between her legs, holding the complainant's soaked underwear in his hands. The judge found that he could not conclusively say that the complainant was unconscious at the time the sexual assault began, and therefore, he had reasonable doubt as to her capacity to consent, and whether or not she in fact consented. In other words, she may have been conscious; therefore, she may have been capable; therefore, she may have consented. LEAF is very concerned about this trend in the case law, as it emphatically fails to protect women who are sexually assaulted while conscious but otherwise intoxicated and incapable of providing consent.

Our view is that the courts' excessive focus on unconsciousness as the defining point at which someone becomes unable to consent improperly distorts the analysis, and it focuses judges on consciousness versus unconsciousness as opposed to whether the complainant was able to and in fact did give voluntary, ongoing consent to sexual contact. Our fear is that these changes perpetuate this problem.

First, on the codification of unconsciousness, we believe defence counsel will rely on that to argue that unconsciousness is now the legal standard at which a woman becomes unable to provide consent. Given that codifying unconsciousness adds nothing new to the law, we fear that this amendment will be interpreted as clarifying the existing uncertainty in the law of incapacity that I've just identified. At the very least we anticipate these arguments will be made, which means the crown will have to re-litigate capacity to consent, at the expense of the lives of individual complainants whose lives are affected by these arguments and by these trials.

Second, even if unconsciousness is not officially interpreted as the legal bright line at which a person becomes incapable of consenting, we fear that this provision will perpetuate the excessive focus on consciousness as the point of incapacity, as opposed to encouraging judges to engage in a nuanced assessment of capacity versus incapacity, informed by the principles of understanding the nature of the act, understanding the risks associated with the act, and understanding the right to decline participation.

We recognize that the paragraph (b) provisions of these two subsections keep open the possibility that incapacity will be found for reasons other than unconsciousness, but this doesn't allay our concern. The new provisions will still direct judicial attention to unconsciousness as at least a bright line at which a person becomes incapable of consenting, and they do nothing to assist judges or decision-makers in assessing incapacity short of unconsciousness.

We propose that, rather than codifying and potentially restricting the definition of incapacity to consent, Parliament use this opportunity to address the problem that actually exists in the case law and to clarify in what circumstances a person is able to provide consent. We suggest codifying a standard that clearly articulates that a person cannot consent unless he or she is capable of understanding the sexual nature of the act and risks associated with the act, capable of realizing that he or she may choose to decline participation, and capable of communicating voluntary consent to the act. This analysis will go much farther to protect women from sexual assault than will an amendment that focuses on unconsciousness as a legal test for incapacity.

That being said, we do support many of the changes that are being made. For more detail on that, we direct you to our submissions which flesh out our arguments on that point. I'll note specifically that we support limiting the admissibility of records in which the complainant has a reasonable interest of privacy, regardless of who possesses those records. The purpose of the third party records provisions is to advance women's equality and right to privacy in the course of a sexual assault trial and to provide greater fairness to the complainant, which in turn encourages the reporting of sexual offences. We submit to you that those goals apply with equal urgency to any records in which the complainant has an expectation of privacy.

We also support codifying the law, which we would say already exists, that sexual communications are sexual history evidence. Sexual communication is just as susceptible to discriminatory logic, myths, and stereotypes as is sexual behaviour. An example is the fact of someone sending a sexual text message. We fear that it will be argued that it means that woman is the kind of person who would consent to sex, which is exactly the kind of logic that the rape shield laws were created to prevent. So, we support Parliament's movement to bolster the rape shield provisions and protect women from discriminatory myths and stereotypes.

We also agree with the provision providing complainants with right to standing in these hearings. Our experience with third party records hearings is that complainants with legal representation have a much more empowered experience, and it increases fairness to the complainant to have representation. We agree that complainants facing disclosure of their sexual history should be entitled to the same protection.

To summarize, we broadly support the changes. We encourage you to remove the codification of unconsciousness as a standard at which someone becomes unable to consent, and to properly clarify what is required for someone to have capacity to consent.

For a more detailed analysis of these provisions, we direct you to our submissions.

Thank you.

[Amanda Dale]

We mentioned accountability mechanisms at the beginning. We believe that in order to realize the potential of Bill C-51, the government must put in place some regularized provisions to ensure that the amendments have their intended effect. The clinic recommends that the government establish a community consultation process with front-line agencies and survivors to monitor the rollout. The clinic suggests looking to the Philadelphia model which was used in policing for an example of this kind of engagement. The original model took place only in police departments. However, as there are many other actors beyond the judiciary and the police who will be part of the process of this being successful, we believe it should be rolled out more broadly.

In addition to sustainable funding for counsel, the clinic also proposes to look at the program Deepa mentioned, independent legal advice for sexual assault complainants, which the clinic currently runs. Additionally, we have an example in the family courts of a family court support worker. This is a program that we run also with the support of the provincial Ministry of the Attorney General. It's a non-lawyer advocate who assists a woman in navigating the system.

Our experience in the last five years has demonstrated that the court accompaniment and participation of advocates for women through the justice system increases their knowledge of the justice system, enhances their participation and decision-making through the process, assists them in realistic goal-setting, and moreover, changes their overall experience of the justice system as well as that of the other justice players who experience the expertise of a non-legal representative in the court system.

[Deepa Mattoo, Director, Legal Services, Barbra Schlifer Commemorative Clinic]

The first point, as Amanda said, is the trauma-informed law and education. We hear constantly from sexual assault complainants who interact with the justice system that they are re-traumatized throughout the process. When speaking with the police, they are not taken seriously, or police questioning insinuates or blatantly blames the victims. If their cases make it to trial, they do not have their own counsel. They are met with a hostile cross-examination by the defence counsel, and in some recent horrific examples, they are stereotyped and misunderstood by the judges.

The clinic submits that Bill C-51 should establish trauma-informed education around sexual assault at all levels of the justice system, trauma-informed education that instructs actors in the justice system to recognize and be sensitive to the impacts of violence and the symptoms of trauma. This is required for them to understand common manifestations of trauma and the emotional response of survivors to people in positions of power, authority figures, and others, moreover to recognize their own expectations with respect to the functioning of the legal clients, and how to problem solve when a client cannot engage with the system as they wish or expect. This is even more important in the wake of the fact that Canadian law has already recognized this education is crucial to the justice system.

The second point is access to counsel and the need for funding and resources. It is worth noting that sexual assault is still widely under-reported across Canada. The 2004 general social survey on victimization concluded that only 8% of sexual assaults were reported to the police. Some of the factors listed in our previous submission of course contribute to this.

Another experience we hear about from sexual assault complainants is that once they have come forward and disclosed their story to the police, they are left alone to navigate the complexities of the legal system on their own. They're not updated regularly on their case. They're not provided with information on their case, or if information is provided, it's too little. There is limited opportunity for them to participate meaningfully in the process, and when they do, they are not provided with any direction or advice.

The clinic submits that government-funded legal representation should be provided to the complainants throughout the justice system process, and not only, as suggested, for the rape shield proceedings. The clinic is the only community agency site for independent legal advice for sexual assault survivors. It's a pilot project from the Ministry of the Attorney General in Ontario. The clinic has seen a 40% increase in the overall support costs since the beginning of the project last year. We have in total served over 200 clients through this project in the last 15 months, with the possibility of only one full-time equivalent position.

[Amanda Dale, Executive Director, Barbra Schlifer Commemorative Clinic]

Wonderful. Thank you.

Deepa and I are going to divide up our comments, so bear with us.

Honourable chair and committee members, we're very honoured to be able to speak with you today about the proposed legislation dealing with sexual assault law, specifically clause 10 and clauses 19 to 25 of Bill C-51.

The clinic's submission will focus on three broad areas.

First, it will focus on the need for the implementation of trauma-informed training for all actors in the justice system who interact with sexual assault complainants.

Second, based on our experience of delivering such a program in Ontario, we recommend that sexual assault complainants be provided with government-funded legal representation. This will especially be true for the new sexual history applications that are contemplated in the legislation, but also from the time of first disclosure. Federal funding for non-compellable community support from the federal government means better support for provincial legal aid programs and community-based centres.

Finally, the clinic asserts that there must be some form of accountability for the new mechanisms proposed that is based on the expertise of the community advocates who work with the women who we are hoping will come forward.

As a brief background to the clinic, for those of you who don't know, the Barbra Schlifer Commemorative Clinic was named for a promising young lawyer who lost her life to sexual violence the night of her call to the bar in 1980. It's the only clinic of its kind in Canada. We are independent of the provincial legal aid systems.

Since 1985 the clinic has provided legal representation, counselling, and language interpretation to over 60,000 women who have experienced all forms of violence. Currently we assist more than 4,000 women a year, and we work in over 200 languages. We provide a variety of innovative counselling services and public legal education as well as legal representation. We are also engaged in law reform.

The clinic consults broadly with all levels of government on policy or legislative initiatives, and we are a public voice on the experiences of women engaging with the law when they have been sexually assaulted. We are also part of landmark cases regarding sexual assault law.

We are in broad support of the changes to sexual assault law that are proposed in this bill. Specifically, we believe the expanded rape shield provisions provide for judicial screening of communications between the accused and the complainant, and this is consistent with the truth-seeking function of the court. However, while these changes will further clarify the law, they do not change the attitude of the justice system actors.

Unfortunately, the clinic's experience over the last 30 years tells us that the proposed legislation needs broader support in place in community to operationalize these changes to make a difference in the lives of women so that those who we would like to bring into the fold of reporting to the law will actually feel the trust to be able to do so.

Deepa.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

Ms. Sheehy, I'm going to come back to you. Ms. Dale had outlined reasons as to how the accused would be put in a more unfair situation should Bill C-51 become law, with respect to presumption of innocence, interjecting the complainant into the hearing and the evidentiary reasons for that, and the delays to trial as well. Can you comment? What is your opinion? Do you think there is validity to those concerns? What is the flip side of that coin?

I know it's a very delicate balance between an accused and a complainant, especially in areas of sexual assault. As you said, it's a very different type of crime. Are Ms. Dale's concerns valid? Also, do you think that Bill C-51 tries to level the playing field for victims of sexual assault?

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

Thank you, witnesses, for your very interesting testimony.

Ms. Kerner, you were speaking about somebody who was sexually assaulted and her experience in the justice system with respect to delays. I found it to be very interesting and contrary to what Ms. Dale was saying from the opposite end of that spectrum with respect to the accused.

I would Ms. Sheehy and Ms. Mathen to also comment. Do you think that Bill C-51 would create further delays in the justice system with respect to hearings to the point that it's unconstitutional?

[Elizabeth Sheehy]

Honourable members, I am testifying on this bill as an individual with expertise in sexual assault law. I was just asked this morning as a representative of the Ottawa Rape Crisis Centre. Our executive director was unable to be here. She is travelling across Ontario working with 11 police forces, trying to persuade them of the benefits of what's called the Philadelphia model in terms of policing. She asked me, as secretary of the board, to speak on their behalf. I am a law professor and an expert in the area of sexual assault law, with over 30 years of experience teaching, researching, and advocating for the rights of women who have experienced sexual violence.

The Ottawa Rape Crisis Centre is the third-oldest rape crisis centre in Canada. It was established in 1974. For 43 years, they have been providing crisis line support, face-to-face counselling, and group counselling to thousands of survivors annually. In the current climate, those numbers are increasing exponentially. It's a feminist organization that has fought tirelessly for legal and policy change at the local, provincial, and national level to secure women's rights to report sexual assault, and for these crimes against women to be investigated, prosecuted, and adjudicated with professionalism and attention to women's equality rights.

The Ottawa Rape Crisis Centre has challenged police practices of unfounding of women's sexual assault reports and documented police failures as early as 1975. Currently, our executive director, Sunny Marriner, has led the country in successfully advocating for the Philadelphia model, a model that requires review of police files on sexual assault investigations by independent violence against women advocates.

To speak for myself and the Ottawa Rape Crisis Centre, we support the bill overall. We read it as a significant effort by government to remedy discriminatory practices in the criminal justice system and to inspire trust on the part of women to report sexual violence. There is some urgency to this reform, as women flood traditional and social media with their disclosures of perpetration, yet the reporting rate by women has plummeted from one in 10 to one in 20 in the last several years. We are therefore at a crisis point in terms of the credibility of the criminal justice system for crimes of sexual violence.

I start by noting that we support the provision requiring that all bills include a charter statement assessing compliance with the Constitution of Canada. We trust that this compliance review will include an assessment of each bill's impact on women's equality rights protected by section 15, and women's section 7 rights to security of the person and to trial fairness. When assessing criminal laws that will impact an accused person's rights, the charter requires us to also consider the countervailing charter-protected interests of complainants.

We see the bill as modernizing the criminal law in keeping with current social realities in terms of the role that social media plays in both sexual activity and sexual violence by men against women. We thus support the provision that characterizes communications that are sexual in content or purpose as sexual activity for the purposes of the rules governing the admissibility of sexual history evidence. Moreover, this provision is consistent with legal decisions from some courts in advance of the bill that have interpreted sexualized text messages as sexual activity for the purposes of the rape shield provision, so in some ways this is not a major change in law.

We also support the provisions that provide legal standing and access to legal representation for complainants who face defence applications to introduce their prior sexual activity as evidence into the trial. The provision mirrors the provisions regarding complainants' rights to standing and representation to respond to defence applications to admit their private records. It was previously inexplicable to us why women had standing to defend the privacy of their confidential records but not their private sexual activities.

We think that the bill's extension of the records regime to private records in the hands of the accused, even those without sexual content or purpose, is also an important advance in terms of protecting women's privacy. Although we recognize that the provision has a broader reach, it means that no advantage can be gained by extrajudicial interception of private diaries or other such records. It's true that the defence will lose the element of surprise when required to have such records vetted for admissibility, but it must also be recognized that complainants in sexual assault trials themselves experience forms of jeopardy that require recognition and accommodation.

Bill C-51 also serves to codify some aspects of sexual assault law already established by the Supreme Court of Canada in interpreting the statutory regime. While strictly unnecessary, we support the amendments that do not add confusion to the already exceedingly complex law of sexual assault.

For example, the Ottawa Rape Crisis Centre supports the provision requiring evidence that a complainant expressed her voluntary agreement to sexual contact in order for an accused to rely on the defence of mistaken belief in consent, even though this is not a legal change, but simply a reiteration of the law interpreted by the Supreme Court of Canada almost 20 years ago in Ewanchuk.

We do have serious concerns, however, that the provision purporting to codify the J.A. decision misses the mark. It introduces the potential for confusion and may inadvertently limit legal interpretations on the meaning of incapacity. We say this because the introductory notes to the bill describe this provision as a codification of J.A. However, long before J.A., courts had ruled that unconscious people cannot consent—how could it possibly be otherwise—and, in fact, J.A. stands for a much more significant principle: that you cannot consent in advance of a sexual activity during which you are unconscious.

It would be wonderful if the bill actually codified J.A. and put that principle into law, particularly because, as Professor Mathen noted, it was a majority decision, not a unanimous decision. I think it would be wonderful if, in fact, this law codified J.A. It does not at the current moment.

The other problem that we worry about.... It's true that the bill does not foreclose the possibility that incapacity can include states approaching, but not reaching, unconsciousness. I think the bill ought to go further and explicitly state that proposition. It does not at the current moment. It simply leaves open the possibility that there are other ways in which one could be incapable. In fact, we think it ought to go further and begin to map out the considerations that judges should look at in determining incapacity short of complete unconsciousness.

Those are my submissions. Thank you.

[Prof. Carissima Mathen]

Thank you.

In recent months, there has been a great deal of debate over Canada's sexual assault laws. Dramatic events have provoked calls for the law to be completely overhauled. While understandable, such calls are overstated. In fact, Canada has one of the most progressive sexual assault frameworks in the world. Nonetheless, there are some changes that would ensure greater consistency between the Criminal Code and Supreme Court jurisprudence, better reflect parliamentary intent, and promote optimal responses to sexualized violence.

Bill C-51 contains a number of such changes, which I am pleased to support. I will focus on the proposed changes to the law of consent in section 273, and to the impermissible uses of past sexual history in section 276. These changes are contained in clause 19, clause 20, and the first part of clause 21.

Clause 19 clarifies the conditions, already set out in section 273.1, under which no consent to sexual touching is legally possible. I agree with the proposal to include a specific reference to unconsciousness and to make clear that other forms of incapacity, short of that state, can impair a person's legal ability to consent.

Some have argued that, given Supreme Court case law, this change is redundant. I disagree. It is always appropriate—indeed, it is laudatory and even essential—for Parliament to confirm common-law rulings with which it agrees. This is especially true in criminal law. Such clear expression of legislative intent protects important principles from later judicial change. I would remind the committee that the court's important decision in Regina v. J.A., in which it rejected the idea of advance consent to unconscious sex, was a majority ruling that was attended by a vigorous, three-judge dissent.

Some have also argued that this change could lead trial judges to insisting on complete unconsciousness before the rule against consent is operative. To the extent that there is such a risk, a proposition I do not necessarily accept, I think that the new subparagraph (b) addresses it.

Let me move now to clause 20 and its proposed change to section 273.2. One of the most important and distinctive aspects of Canada's sexual assault law is that it narrows the accused's ability to argue an honest but mistaken belief in consent, a defence that negatives mens rea.

In its unanimous decision in Regina v. Ewanchuk, the Supreme Court stated that an accused may not rely on mistakes of law about consent as a basis for honest but mistaken belief. The court gave a number of examples, such as the belief that consent is demonstrated by passive or ambiguous conduct.

In my opinion, the limitations on the definition of consent set out in section 273.1 are properly regarded as mistakes of law. I therefore support the move in clause 20 to specify those limitations as ineligible for the defence of honest but mistaken belief. I am, though, concerned that the current wording of proposed subparagraph 273.2(a)(iii), which refers to “any circumstance in which no consent is obtained,” could confuse the distinction between fact and law in relation to consent.

Assuming that the intent is to remove the accused's ability to rely on legal as opposed to factual mistakes, I would recommend either inserting into this new clause some reference to the term “mistake of law”, or making it clear that these are circumstances where consent is deemed not to obtain. Using the word “deemed” would clarify that the intent here is to prohibit the accused from relying on legally impermissible understandings of consent. It would also be a very powerful message from Parliament about the nature of the limitations on consent in section 273.1.

I also agree with the proposal in subclause 20(3) to ensure that an honest but mistaken belief in consent must rest in some way on evidence that consent was communicated. This change is consistent with the Supreme Court's reasoning in R. v. Ewanchuk. Such evidentiary thresholds are not uncommon. I think it is appropriate to ensure that the defence is based on evidence that relates in some way to how Parliament has defined consent for the purposes of sexual touching.

Finally, let me move to one change contained in clause 21 that relates to sexual history, or what is colloquially known as the “rape shield” provision.

The treatment of the complainant's prior sexual history has been a persistent challenge for the criminal justice system. Current section 276 of the code was part of a groundbreaking law reform effort in 1992. Subsection 276(1) states that sexual activity evidence is inadmissible to support an inference that, by virtue of her past sexual conduct, a complainant is more likely to have consented to the alleged assault or that she is less credible as a witness. These are called the twin myths of sexual assault. It is important to understand that the use of such evidence for such purposes is prohibited.

Under subsections 276(2) and 276(3), there is a separate process for considering the admissibility of past sexual activity that is offered to support different inferences. Unfortunately, the distinction between subsection 276(1) and the rest of section 276 has become blurred. Some judges have applied the framework outlined in the later subsections, subsections 276(2) and 276(3), to inferences that are clearly prohibited by subsection 276(1).

There is no balancing process capable of supporting the admission of evidence intended to advance the twin myths. By clarifying that subsections 276(1) and 276(2) cover distinct uses of sexual history evidence, the proposed change addresses this problem. It is consistent with the specific, unanimous, and complete rejection of the twin myths in R. v. Seaboyer, later affirmed in R. v. Darrach, and with the original animating intent of Parliament.

That concludes my prepared remarks. Thank you.

[Soudeh Ghasemi, Vice-President, Iranian Canadian Congress]

Thank you, Pouyan.

First, we believe that a systematic review of our Criminal Code legislation in regard to hate crimes and hate speech is long overdue. Numerous sources have reported that a significant part of the problem in prosecuting hate crimes is that the Criminal Code limits what can be done and does not allow speedy and efficient prosecution.

Second, we recommend that a racism and discrimination hotline be set up to allow victims of discrimination access to counsel and allow government to collect information on these incidents.

Third, current government Bill C-51 is removing parts of the Criminal Code that provide protection to places of worship, religious ceremonies, and faith communities. At this time, when hate crime against people from specific religious backgrounds is rising, we believe these protections are necessary. We recommend this committee to propose in its study for the government and Parliament to amend this part of Bill C-51.

Fourth, we recommend that the federal government increase the budget of Canadian Heritage programs that support the initiatives of diverse community organizations dedicated to improving interfaith and intercultural understanding, and target these programs at impacted groups.

Because of the sizable population of Iranian Canadians and the significant number of new immigrants arriving from Iran, we also recommend that Statistics Canada add an Iranian category in their visible minority section for accurate hate crime data.

Finally, and most importantly, we believe Canada should, in all foreign policy decisions and statements concerning a country, explicitly take into account the effect that such decisions will have on all Canadian individuals who come from or have ties with that country. The present lack of this awareness in our foreign policy circles has caused great harm to our community.

As shown by both our examples and our survey findings, Iranian Canadians suffer from sanctions and banking discrimination, the lack of an embassy through which they can access consular services, and the constant singling out of Iran in the rhetoric and policy of countries such as Canada. They must recognize that in an increasingly globalized world, Canada's actions and words on the world stage are not limited to international relations but also affect its citizens here at home.

In fact, this is something we already recognize in regard to the treatment of certain countries on the world stage. We cannot single out a country for special negative treatment and expect that such singling out will not have negative repercussions for those who are connected or perceived as connected to that country.

What we have shown in our presentation is that Iranian Canadians face serious discrimination. This situation must be addressed by our government. It is our hope that the recommendations we presented will not only allow our community to live peacefully and as equals in Canada, but help other communities do so as well.

[Laurelly Dale]

Thank you, Mr. Chair and committee members. It is my honour and privilege to be here.

My name is Laurelly Dale. I'm a criminal defence lawyer of Dale Legal Firm. I've been practising for more than 10 years. I practise in two areas: downtown Toronto and northwestern Ontario, covering the large district of Kenora. I attend today to focus on clause 25 of the proposed amendments in Bill C-51, specifically the amendments to add proposed new sections 278.92, 278.93, 278.94.

I've listened to the testimony of Breese Davies and the Criminal Lawyers' Association. I'm a member of the Criminal Lawyers' Association; however, I attend today as an individual. I'm not here to repeat their submissions. Ms. Davies takes a position that the amendments are overly broad and should be specified. I can indicate that I am in opposition of the proposed amendments in their latest form, entirely.

Our laws are progressive. They must be fair. They must uphold the principles of our supreme laws, namely the Canadian Charter of Rights and Freedoms. They must not be reduced to social media hashtags. We must not feed into the myth that all complainants of sexual assault are survivors of sexual abuse and therefore are always to be believed.

The amendments that I am here today to discuss have also been referred to as the Ghomeshi amendments. They violate section 7 and section 11(b) and (d) of the charter, ultimately allowing for the conviction of the innocent. Violations occur in a variety of ways. Today I'll focus on the main three.

First are the section 7 and section 11(d) violations to the accused's presumption of innocence and fair trial by declaring these records inadmissible and requiring defence disclosure.

The second major area of concern is the section 7 violations as, for the first time ever, they interject the complainant as a party to the criminal proceedings against the accused. It is the state versus the accused, not the state and the complainant versus the accused. Tied into this is the violation arising from allowing the complainant to be part of this hearing, usurping the very valid reasons for excluding witnesses, and allowing them to make submissions.

The last violation relates to the potential delays that this will ultimately cause, violating the recent Supreme Court of Canada decision in Jordan, upheld by Cody, by creating at the very least an additional three- to four-day pretrial hearing for the accused, and by the addition of the third party.

The onus is on the crown to prove allegations of sex offences. It is its obligation to prove each and every element to the offence. The accused is not required to do anything. The crown attempts to prove its case by putting forth the evidence of the complainant. Sexual assault cases are most often about the credibility of the complainant, as there is no other evidence. Crown evidence of the offence is presented to court on the basis that what the complainant is saying is true. The defence is then allowed the opportunity to test the evidence of the crown and demonstrate that the complainant is not credible.

Testing is through cross-examination and must always be relevant. The accused can then choose to testify or call other evidence. The crown is then able to cross-examine as well. The trier of fact, considering all admissible evidence, makes the decision.

Minister of Justice Jody Wilson-Raybould claims that the amendments will boost protections for sex assault victims and ensure trial fairness. I ask how this can be achieved in light of these charter violations. The justice minister indicated in committee last week that the amendments would not create defence disclosure obligations. I ask how this would be possible when this is clearly the procedure set out in the section.

Relevancy and materiality can be canvassed at the time of introducing the material during cross-examination. Why must the accused disclose evidence that he or she wishes to use in cross-examination? We must not water down reasonable doubt in these cases. The presumption of innocence is the cornerstone of our criminal justice system.

Under clause 25, all correspondence in the possession of the accused is presumptively inadmissible unless they can persuade the judge that it should be disclosed in accordance with eight substantive factors. I point out that seven out of eight of these factors are drafted with the purpose of protecting the complainant, and only one references the accused's right to make full answer and defence. I concede this is not a popular perspective, but it's one that must be stated, that the accused is presumed innocent and we must protect their charter rights.

As well, it's important to note in interpreting this section that the information in the possession of defence is communication that's authored by the complainants themselves. This is information that the complainant has intentionally chosen to withhold from the police and the crown attorney that is relevant to the alleged incident.

The Ghomeshi amendment requires defence to give this information to the complainant and the crown ahead of trial. To notify the complainant in advance that defence can expose their dishonesty invites the complainant to come up with a fabricated answer. The amendment serves to allow the complainant to correct their mistakes at the expense of trial fairness to the accused.

In acquitting three accused of sexual assault, in a recent decision in 2017, Ontario Superior Court Justice Molloy in Nyznik states at paragraph 17 the following:

Although the slogan 'Believe the victim' has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence.

The current system works. In the recent case of D.A.E., found at tab 5 of my materials, defence counsel utilized the material in their possession, and based on the totality of evidence, considering that this was utilized during cross-examination, the judge still convicted the accused.

Found at tab 5 is a recent Ontario Superior Court case, where it was held that myths about victims and sex offenders have no place in our criminal justice system. At paragraph 60 the judge states:

I agree with the trial judge that we must be vigilant to reject...stereotypical thinking about the behavior of women. At the same time, we must not adopt...assumptions about men and their tendency to rape.

The public outcry from Ghomeshi should not be used to undermine the presumption of innocence. Trial by media should not invade the rights of the accused.

I'll briefly touch on the second major amendment, as previously stated.

A criminal trial, by its nature, is the state against the individual. No one else is a party to these proceedings in any case. The complainant is not a party to the proceedings. The consequences of a criminal judgment do not apply to them. It is a slippery slope, allowing the complainant to participate in other aspects of the case against the accused, such as crown or judicial pretrials. There is, therefore, a risk that innocent people will be convicted.

Further, it is routine at the commencement of a criminal trial for a judge to make an order excluding witnesses. The reason is obvious. It is essential for the discovery of truth. As Justice Abbey stated in Jenkins:

The general and overriding principle which lies behind an exclusion order is to maintain, to the degree possible, in the search for the truth, the purity of the evidence.

Section 7 of the charter is violated, as this amendment permits the complainant to testify knowing what the evidence is beforehand, undermining the accused's trial fairness. Chapters of cross-examination are revealed, and the opportunity exists to resolve issues with their testimony.

The last violation relates to potential delays this will inevitably cause by creating an additional three- to five-day hearing 60 days in advance of the trial.

As noted at tab 9, the Jordan case is the law upheld by the Supreme Court of Canada that relates to delay that is presumptively unreasonable when it is longer than 18 months at the provincial court level, or 30 months at the superior court level. The resources allotted to the accused are not the same as those allotted to the complainant. It is not known whether, post these amendments, other resources would be available, such as legal aid, and whether these pretrial applications would be funded. I echo the comments of Breese Davies with respect to her concern about imbalance of resources.

Last, in my materials I have included a number of materials relating to the consequences of conviction for sexual assault that must be at the back of minds when considering these amendments as well as wrongful convictions. If accepted, the balance of the trial will be entirely upset. Charter violations will occur, and it will ultimately result in the conviction of innocent people.

Those are my submissions. Thank you.

[Hilla Kerner]

Thank you.

I'm hoping my accent will be clearer in the beginning.

The women who work in a rape crisis centre did not need the “Me too” campaign to know how common it is for women to experience sexual assault and rape. Being a girl and a woman in this world means we are likely to be sexually assaulted. If we are poor, indigenous, women of colour, or women with cognitive or physical disabilities, we are even more likely to be sexually assaulted. I would say it's almost guaranteed and, yes, me too.

In preparation for this submission, we looked at almost 6,000 cases of sexual assault and rape of women who called our rape crisis centre in the last five years. Twenty-five hundred women were raped by their husbands, boyfriends, or lovers, and another 422 women were raped by their ex-male partner after they broke up with him. Two hundred and thirty-four women were sexually assaulted, most often raped, by their male supervisor or co-worker. Eleven hundred women were sexually assaulted by someone they knew professionally, often through social circumstances like a party, mutual friends, or someone they had a first or a second date with. Three hundred and thirty women were raped by their own fathers when they were young, and another 471 women were sexually assaulted or raped by other family members or family friends. Five hundred and nine women were assaulted by men who were a stranger to them.

We appreciate the Minister of Justice's efforts to advance sexual assault provisions with the amendments proposed in Bill C-51. We have one objection, and that is to the addition of “no consent is obtained if the complainant is unconscious”. Of course an unconscious woman cannot consent, but this is already captured under the existing law which says, “No consent is obtained” if the “complainant is incapable of consenting to the activity”.

The addition can be misused by defence counsels to argue that unconsciousness is a threshold for incapability, and since we too often see cases where judges do not know sexual assault laws, the intent behind the laws, and the intent of Supreme Court judgments instructing the application of the law, there is a serious danger that the judges will accept the defence arguments in this matter.

We support the proposed articulation that no consent is obtained if there is “no evidence that the complainant's voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct”.

We also support the expansion of rape shield provisions to include communication of a sexual nature or communication for a sexual purpose. We support the right to legal representation for victims in rape shield proceedings.

About the amendment concerning victims' private records, it has been exactly 20 years since the passing of Bill C-46 which amended the Criminal Code with specific provisions regarding the production and disclosure of records of the accused in sexual assault proceedings.

We have been members of CASAC, the Canadian Association of Sexual Assault Centres, since 1978. Early on, members of CASAC faced the need to protect a record; so in 1981 CASAC members passed a resolution to protect the confidentiality of records and to protect the confidentiality of what women told us regardless of legislation. Seeking women's records from rape crisis centres is a clear and blunt attempt to undermine a victim's credibility and violates their privacy and dignity. It is also a direct attack on rape crisis centres and our role in supporting individual victims, our demands that violent men be held accountable, and our overall fight for women's equality and liberty.

When Bill C-46 passed, the feminists who advocated for it described it as second best, because the full demand was for no records at any time. The current proposed amendments regarding women's records in the possession of the accused gets us closer to that demand, and we support this.

Alas, good laws mean nothing when judges do not know the law and therefore do not uphold the law. We are aware of the recent attempt by Parliament to address this issue, and we are looking forward to speaking to the matter when Bill C-337 is discussed at the relevant committee in the Senate.

Judges' ignorance is only one element in the utter failure of the criminal justice system as a whole to hold men who commit violence against women accountable. Of the 6,000 cases that I mentioned earlier, 1,800 were reported to the police. About 30 resulted in charges, and fewer in convictions.

The common sexism and diminishment of women in all aspects of our private and public lives teach men to see and treat us as things and not as full human beings. Pornography is a devastating and effective promotion and reinforcement of men's sexualized violence against women. Prostitution is a devastating and effective promotion of the sexual commodification of women, where women are used as a commodity that can be bought and sold by men.

The problem is not that men do not know if a woman really consented or if she really wanted to have sex with them; the problem is that they don't care. They are allowed not to care, because they know they can rape women with impunity.

We often use the term rape culture to mean the acceptance, the collusion, the promotion of male violence against women. Men use rape culture to sustain rape structure, a structure that keeps men in domination and keeps us women in submission. The accumulation and the impact of all the individual rapes that men commit against individual women sustain all men's power over all women.

Of course, we know it's not all men. We know that not all men are wife beaters, sex buyers, rapists, or pornographers, but for sure, many are. We know that because of all the women who call our and other rape crisis centres, and because of all the women who are living in our and other transition houses. And now,anyone who pays attention knows it too, because of all the women who say “Me too.”

We believe men can change, but not as long as they get permission and encouragement to violate our bodily integrity and autonomy. We need to shake the pillars of the rape structure and start by holding men who commit violence against women accountable. So far, the Canadian state and its criminal justice system has been failing to do so.

The Canadian Charter of Rights and Freedoms promises us, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law.” It is now 2017, and we women still do not have it, not the equal protection nor the equal benefit of the law.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Colleagues and guests, we are going to start today's meeting.

I'd like to welcome our witnesses to the Standing Committee on Justice and Human Rights as we resume our study of Bill C-51.

Today we are delighted to welcome, as individuals, Ms. Laurelly Dale, barrister and solicitor of the Dale law firm. Welcome, Ms. Dale.

Petitions

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

Mr. Speaker, today I rise on a point of order to apprise the House of an issue that I recently came across when attempting to have a petition certified by the clerk of petitions.

A few weeks ago, I received a number of petitions from constituents in my beautiful riding of Haldimand—Norfolk, calling on the government to remove clause 14 from Bill C-51 so that the rights of individuals to freely practise their religion will continue to be protected. Now, while most of these petitions were certified and sent back to my office for tabling, there was one petition that was not approved. According to the office of the clerk of petitions, this petition was rejected, because it did not meet the usual paper size requirement under Standing Order 36(1.1)(c). While the petition contained all of the required information as stated in the Standing Orders, it was printed on ledger-size paper and was determined to be not of the “usual size”, which is why it was rejected.

What exactly does “usual size” mean? Some people would interpret it as letter or legal-size paper, which is exactly what was decided upon by the clerk's office. However, “usual size” does not mean the same to all Canadians. As I am sure members are well aware, people who have a vision impairment use a larger font and paper in order to read the text. To them, ledger-size paper may be the usual size.

As someone who was legally blind at one point, and as the former minister for disabilities, I regularly encourage many institutions and organizations to adopt more accessible-friendly policies. Therefore, it is very disappointing that the House has not taken the same approach.

Not only does this guideline fail to provide accessibility to Canadians who are visually impaired, but we are the only jurisdiction in the Commonwealth that has this requirement. I looked into how the United Kingdom, Australia, New Zealand, and the Province of Ontario handle their petitions. In each of these jurisdictions, they have no paper size requirements. The closest is the Province of Ontario, where the clerk's office recommends that the paper size be 8 1/2” by 11” or 8 1/2” by 14”. However, as long as it contains the prayer and at least one name, address, and signature, the petition can be tabled by any member of the legislature. Even our very own Senate does not have requirements on the paper size of the petition that is tabled.

On page 1,166 of O'Brien and Bosc, footnote 32 states, “Prior to the adoption of this rule, petitions of unusual style were presented from time to time and judged by the Clerk of Petitions to be in accordance with the prevailing requirements as to form.”

The Annotated Standing Orders at page 110 seem to suggest that this requirement and definition of usual style came to be in 1986. In 2004, after the election of Steven Fletcher to the House of Commons, the first quadriplegic to be elected, a new Standing Order was adopted, Standing Order 1.1, which states:

The Speaker may alter the application of any Standing or special Order or practice of the House in order to permit the full participation in the proceedings of the House of any Member with a disability.

While I appreciate this Standing Order addresses specifically a member with a disability, the spirit of this relatively new Standing Order could be applied to me, since I am prevented from representing my constituents in participating in proceedings of the House of Commons, not because of my disability, but because of the disabilities of my constituents.

Justice

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

Mr. Speaker, Liberal Bill C-51 would eliminate Criminal Code protection for clergy and places of worship across Canada.

Last week, the minister either accidentally or deliberately misled Canadians when she insisted that rabbis and imams were not defined as clergy. That is nonsense. CRA, border services, and Statistics Canada have always included them in the government's definition of clergy.

The number of attacks and incidents are increasing. These provisions are still being used in court. When will the minister stop putting faith communities at risk and leave these protections in the Criminal Code?

[Wesley Wark, Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual]

Mr. Chairman and members of the committee, I thank you for the invitation to appear and testify on Bill C-21, an act to amend the Customs Act. I'm going to read my remarks, in a desperate academic attempt to stay within your 10-minute time frame.

Bill C-21 provides statutory powers for the final phase of the entry-exit initiative. As the committee will be aware from previous testimony, the entry-exit scheme dates back to promises made under the Beyond the Border action plan agreed to in 2011 between Canada and the United States. Its provisions are, for now, Canada-U.S.-centric. The Beyond the Border action plan is the latest iteration of agreed schemes for post-9/11 border security, dating back to the safe border accord of December 2001. The Liberal government affirmed its commitment to the entry-exit information plan during a summit meeting between Prime Minister Trudeau and then U.S. President Obama in March 2016.

The entry-exit scheme has had a staged rollout since its first phase, which lasted from September 2012 to June 2013. It served to test the data exchange between Canada and the U.S. at select land border ports of entry. The second phase began in June 2013 for fuller land border crossing information exchange for third country nationals, permanent residents of Canada, and lawful permanent residents of the United States. The final stage of entry-exit, requiring statutory force in Bill C-21, would see the biographical exchange of information on all travellers, including Canadian citizens, at the land border, and the collection of biographical exit data on all air travellers, again including Canadian citizens, leaving Canada.

Biographical data acquired under Bill C-21 would consist, as you've heard, of the page 2 information from Canadian passports presented to Customs and Border Protection officials at U.S. ports of entry when crossing the land border. This information includes, as you'll know, name, nationality, date of birth, sex, and place of birth.

For the air mode, it would involve what is referred to as API/PNR, or advance passenger information/passenger name record, data provided by air carriers and air reservation systems for exit records for air travel. API data includes page 2 biographical passport data plus flight information. PNR derives from airline departure control and reservation systems, and varies depending on the collector. It can include type of ticket, date of travel, number of bags, and seat information.

The information flow that Bill C-21 augments is meant to be automatic. It would involve the passage of electronic data from U.S. CBP at land entry—U.S. entry data becoming Canadian exit data—in near real time. For air travel, it would involve the transmission of electronic passenger manifests from air carriers. All of this information would go to the Canada Border Services Agency for processing.

The backgrounder published by the government when the legislation was first introduced in June 2016 indicates that the entry-exit initiative is meant to serve a large number of objectives. It is not specifically a national security tool, but could, in my view, enhance investigations into the movements of suspected terrorists, foreign espionage actors, and WMD proliferators, among other actors of concerns, and it could provide a useful investigative supplement to other powers available to security and intelligence agencies.

It is worth noting that Mr. Bolduc of CBSA testified before this committee on October 3, making the point that one additional benefit that Bill C-21 powers would provide was “it will bring Canada on par with the rest of the world and our Five Eyes partners. There's a huge, huge benefit for Canada.” This was a direct quotation from Mr. Bolduc. I am not quite sure how to read this enthusiasm, except to say that Bill C-21 measures are, in keeping with a long tradition in Canadian national security, meant to demonstrate our ally worthiness.

In this same vein, it is also important to note the restrictions that the government has said it will put in place in terms of information sharing from the vast pool of data that will be collected under Bill C-21. Land border exit information will inevitably be shared with the United States government, because the information is collected by U.S. CBP agents. We are assured that exit information from the air mode would not be shared with the United States or any other foreign government. Whether this blanket restriction makes sense is questionable, in my view. The committee may wish to consider an amendment to the legislation in this regard, which would bring it more into line with the Secure Air Travel Act, of which I'll speak a little later.

Minister Goodale has testified before this committee that “exchange of information both within Canada and with the U.S. will be subject to formal agreements that will include information management safeguards, privacy protection clauses, and mechanisms to address any potential problems.” These are important promises that presumably will be fulfilled through regulation. Notably absent, however, is any commitment to transparency around the entry-exit initiative. There is no requirement, for example, for any annual report to Parliament and the public on its application and efficacy.

This lack of a transparency commitment is compounded by the current absence of meaningful independent review of CBSA, the core actor that will operationalize Bill C-21.

While government officials have testified that the information flows provided for through Bill C-21 will be seamless and automatic, the real issues, it seems to me, involve analysis of the data by CBSA, retention and security of the data, and information sharing. Bill C-21 legislation is a black box in these regards, leaving much to regulation. There is a question in my mind as to whether the legislation needs to be more forthcoming in three particular areas: data retention schedules, information sharing protocols, and transparency requirements.

Before I come to some modest proposals to improve Bill C-21, a note on a parallel and existing legislative power might be in order. There exists already a limited form of entry-exit controls for air travel, which have been in place since 2007 but which were amended with Bill C-51 in 2015 under the title of the Secure Air Travel Act or SATA. SATA, often referred to as the passenger protect program, creates a list of persons that the Minister of Public Safety “has reasonable grounds to suspect will (a) engage or attempt to engage in an act that would threaten transportation security; or (b) travel by air for the purpose of committing” a terrorism offence. I'm slightly paraphrasing the sections of SATA here.

SATA contains some provisions that are not held in common with Bill C-21, including specific powers and information disclosure, both domestically and through written agreements with foreign states and entities. These are under sections 11 and 12 of the Secure Air Travel Act. These sections, incidentally, are not proposed to be amended in Bill C-59 as that bill comes forward, presumably, to this committee.

There is also an important statutory reference to retention of data received from air carriers or air reservation systems in the SATA legislation, and this requires:

The Minister of Transport must destroy any information received from an air carrier or an operator of an [air] reservation system within seven days after the act on which it is received, unless it is reasonably required for the purposes of this Act.

That's section 18 of SATA. In other words, the minister is empowered to retain records of air travel for the listed persons but not for the general public.

To bring Bill C-21 into closer alignment with SATA on data retention and information sharing protocols and to enhance transparency and ensure independent review of its powers, I would suggest the following responses to Bill C-21, which the committee might want to take under consideration:

First, Bill C-21 should adopt the explicit SATA references in sections 11 and 12 for information sharing domestically and internationally. I think this would be an improvement on doing this by regulation.

Second, Bill C-21 should adopt a reasonable retention schedule for entry-exit data based on expert government advice on the minimum period necessary for the retention to meet the many different objectives of the entry-exit initiative as listed in the backgrounder document published with the bill in 2016. A seven-day retention cycle as provided for in SATA would be self-defeating, but so would overly lengthy retention periods. CBSA must not become a data swamp.

Third, Bill C-21 should contain a mandatory requirement for annual reporting to Parliament on its provisions by CBSA.

Fourth, the committee should encourage the government to be explicit about its plans for the conduct of regulatory review of CBSA national security activities, either through an independent body or captured by the paragraph 8(1)(b) mandate for the proposed national security and intelligence review agency, NSIRA, under Bill C-59. This may require future clarifying amendments to Bill C-59.

Fifth, the committee should encourage the government to finalize its plans for an independent complaints mechanism for CBSA. There have been discussions under way about this for some considerable time now.

Sixth, and finally, I would encourage the committee to hold early hearings on CBSA and its rapidly expanding mandate. Doing so might serve as a foundational exercise for the new national security and intelligence review agency when it is created.

Thank you for your time and attention.

[Gord Johns, NDP, Courtenay—Alberni, BC]

First, thank you to all the witnesses for your important testimony.

We know Bill C-51 seeks to remove unconstitutional provisions from the Criminal Code.

I'll start with Mr. Spratt. Do you believe it goes far enough? I know there was no mention of removing minimum sentence provisions. Could you please speak further to that?

[Christine Silverberg, Barrister and Solicitor, Chief of Police (Retired), As an Individual]

Thank you. I am very glad to have all of these criminal defence lawyers here who have articulated some of the issues so well. The comments that I have reflect what my colleagues have already said.

There is a different issue that I want to address, but let me say at the outset that, viewed as a whole, Bill C-51 should be commended as an effort to modernize the Criminal Code. The government should be applauded for that, for taking the initiative to develop a legal framework, imperfect as it is, to ensure that our communities are protected and victims are treated with respect and so on. It's a laudable goal.

I want to first of all address the so-called “rape shield” provisions. I agree with my colleagues that it upsets the delicate balance between the rights of the accused and those of the victims. These rights are at the very basis our our rule of law. I cannot support the proposed amendments that create what are described as “reverse disclosure” obligations, requiring, as Megan has said, the provision of certain records at a juncture that wouldn't be appropriate, or at all.

Causing the accused to make disclosure may seem at first blush to be a laudable approach, but this disclosure will be tendered during an application where the criteria that are actually set out in the bill for judicial discretion read more like a social policy framework. Those criteria suffer from drafting so broad that, in my view, they are actually rendered as meaningless platitudes. I have a really hard time going through that list of criteria while saying to myself, “This is going to really extend the length of trials while these issues are all being considered.”

What is the real consequence? The real consequence is that the victim intentionally or unintentionally governs her own evidence based on these known records. Whatever happened to testing evidence through effective cross-examination?

I practise civil litigation. I don't practise criminal law other than in parallel proceedings. I'm well used to the relevant and material disclosure by both parties, but the civil law, as has been said, is fundamentally different from the criminal law. What is it that we are trying to fix, exactly? Is it inadequate or under-resourced police investigations, or overworked crown prosecutors?

So far as I understand it, these provisions were made by the justice department without any consultation with major stakeholders such as LEAF or the Barbra Schlifer Clinic. Many stakeholders feel blindsided by having these kinds of substantive changes to sexual assault provisions sandwiched in the middle of a bill that has as a primary goal the cleaning up of the Criminal Code. I encourage the committee to rectify that anomaly by integrating the input of these valuable stakeholders before proceeding further.

Further, these so-called “rape shield” provisions—and frankly I'm old enough to know that's a pretty anachronistic term—would likely not survive a charter challenge. I won't go into why because it's already been set out. If we start to require this reverse disclosure for sexual assault offences but not for other egregious offences, we begin to erode the basic principles of our criminal justice system. These unprecedented provisions on the disclosure may inadvertently lead to wrongful convictions.

The stakes are high for both accused and victims. For both parties there is a high risk of social condemnation and stigmatization. Yes, we must support the rights of sexual assault victims who suffer untold consequences. But in my view, this must not be at the expense of the fundamental rights of the accused, or by weakening the social fabric because of a lack of forethought. While protecting the rights of both victims and accused may pose substantial challenges, it is, in my view, a challenge that this government should and can embrace. For all of these reasons, I cannot support the proposed reverse disclosure amendments to the sexual assault provisions.

I want to turn briefly to policy frameworks, leadership, and capacity.

In my view, a significant failure in enforcing sanctions against sexual assault is not a failure of the law. Rather, the failure is in the capacities of, implementation by, and performance standards of both the police and prosecutorial branches, and dare I say, the lack of particular knowledge and training of the judiciary.

As I'm sure is well known, this was aptly illustrated by the Ghomeshi trial where, given the evidence that was later produced in the defence in cross-examination, the crown failed to adequately prepare its case and probe the likely evidence regarding three key witnesses, which led to a finding by the trial judge that the witnesses were not credible, and indeed, were “deceptive and manipulative”. Was there a systemic failure in the crown's hands, or was the crown handicapped by lack of solid police work in gathering the evidence and vetting these witnesses?

This is not only a Ghomeshi issue. We have all witnessed the rather startling comments of judges across the country in sexual assault trials. We have specialized training, protocols, and required knowledge for other types of offences, such as domestic assault, and even, indeed, for bankruptcy, economic crime, and organized crime matters, among others. Surely specialized training and knowledge should be required for police, crown prosecutors, and the judiciary dealing with sexual assault proceedings.

After almost 30 years in policing, after serving as chief of police of a major city in this country and after some 15 or 16 years in the study and practice of law, there are some things that I know about. I know that there must be a broader examination of organizational systems, and structure, and leadership, if we are to avoid a crisis of social values, particularly in this area.

The fact of the matter, in my view, is that changing a law doesn't always get us where we want to be. We have to look at the supports that make our laws work for the benefit of all. We also need to make more resources available to support crown prosecutors. In my view, this is a major, though not only, issue of capacity. While acknowledging that the crown is not prosecuting on behalf of a sexual assault complainant per se, but rather on behalf of the state, we still have to allocate sufficient funds, training, and other supports to make sure that sexual assault victims are not revictimized by the system. We have long advocated this in Canada on behalf of domestic assault victims. The same should be done for victims of sexual assault.

Laws must not only be responsive and meaningful, but be effective. The proposed revision to the sexual assault laws that provide for a complainant's right to legal counsel is the first step. What is required, however, is more funding—government, quasi-government, and institutional—to be put in place to allow for, by way of example, reasonable and appropriate legal aid or alternative funding for this kind of representation.

But this is not simply a matter of funding. Sexual assault victims must be supported in other ways as well. For example, such victims may need counselling and other mental health services, as well as more knowledge of how the system works. We need a collaboration between the many professionals supporting sexual assault victims, federal and provincial authorities, and between the public and the private sector, all to create a sustaining attitude to support victims of sexual assault. Thus, a full infrastructure of support should be provided for sexual assault victims in addition to the proposed independent legal representation.

I cannot imagine much worse than putting a law in place that doesn't have the grounding required to make it work for all parties. This is not about or should not be about feel-good law. It is about getting down to the grassroots to meet the needs of those who are truly victimized, children or adult.

I want to very briefly touch on the unconscious person business. With specific reference to that amendment, it purports to clarify that an unconscious person cannot provide consent. I agree with the position submitted by LEAF that such a provision is not necessary, as this principle is well established in our common law.

The introduction of such a statutory section might create a bright line, short of which a lack of consent might not be found. Determination of whether consent has been given is a matter for the trial judge, and his or her discretion shouldn't be shackled in that manner, in my view.

There are numerous circumstances that I can think of beyond unconsciousness, and while one might say we covered that off in the drafting of the bill, I just don't know why it's there at all. I don't think it needs to be there. I think that issue of consent should be left to the court, where the facts can be considered.

That's all I'm going to say, and I'm happy to answer questions.

[Michael Spratt]

That's great. It's going to be the first time.

One of those positive aspects is the removal of reverse onus provisions. A fundamental principle of our justice system is that the crown and the state must prove all elements of the offence beyond a reasonable doubt. Reverse onus provisions have the effect of imposing legal burdens on an accused person. Presumptions of those types, a reversal of the burden like that, can conflict with the Canadian Charter of Rights and Freedoms and the constitutional right to be presumed innocent until proven guilty. Removing those reverse onus provisions is good, but practically speaking, that's pretty low-hanging fruit. It's not something that comes up on a daily basis, and it's not something that is going to change too much in our court.

The repeal of outdated offences, similarly, is a good thing. The Criminal Code should be a simple document. It should be a general document that we can apply to specific situations. We are all, after all, presumed to know the law. The more complex and, literally, weighty the Criminal Code becomes, the more mistakes will be made by members of the public, judges, and triers of facts. Offences like alarming Her Majesty, possessing crime comic books, or disrupting religious services are simply unnecessary and add to the complexity that ought to be avoided.

Any harm caused by those activities—for example, disrupting a religious service—is covered by other sections of the Criminal Code: general public disturbance sections, harassment sections, and sections dealing with threats or assaults. Of course, as my colleague said, any actions that are motivated by hate, prejudice, or extreme ideology can be adequately dealt with as an aggravating factor on sentencing, and they already are. The only people who are really upset about removing those zombie laws and outdated laws are law professors, who are going to have one less funny story to tell their students about outdated and absurd Criminal Code sections. It's good that those are being repealed.

This bill doesn't repeal all outdated or unconstitutional sections, nor does Bill C-39, which I'm sure this committee will be dealing with as well. For example, the unconstitutional mandatory minimum sentences, which have been found to violate the charter at various courts of appeal, and by the Supreme Court in the case of Nur, are left untouched by both of those bills. If we are really serious about taking out sections that have been found to be unconstitutional, there is no principled reason not to include those sections as well. The bill should be amended to include that. That's a glaring omission that should be corrected.

The other aspect of this bill is about sexual assault. It codifies some existing law with respect to sexual assault. I don't see too much of a problem with that. Too often, common law developments are hidden from the public. You have to have a subscription to CanLII or Quicklaw, or to be following a case, to actually see those developments in court. I think it's a good thing to codify some of those sections. It would be really good if we had a law reform commission again, which could take a broad look at our Criminal Code.

For example, the Supreme Court has made it clear that an unconscious person can't consent to sexual activity. That's the law. It's common sense, but it's also currently the law. Bill C-51 doesn't change that, but it makes it clear, and I don't think anyone could be faulted for that. It's a good thing as well.

One of the changes in this bill is unlike all the others, and that is the process for reverse disclosure—in my view, an unconstitutional expansion of the Mills regime with respect to documents in the possession of an accused person. It's a major fault of this bill. There are three issues with that. The first is the reverse disclosure problems. The second is overbreadth issues, which was touched upon by the previous panel, and the third is the impact that this would have on access to justice and to trial delays in our courts.

Dealing with the reverse disclosure aspect.... An accused has to bring this application within 60 days of their trial, and they have to disclose on the record, as part of that application, not only the record and the detailed particulars of the record and the information that they want to adduce, but also their trial strategy, why that's important. This is all prior to hearing the crown's case, prior to the complainant testifying. That's unprecedented in Canadian law. It infringes upon the right to silence.

The Supreme Court has confirmed that disclosure flows from the state to the accused. In the context of the adversarial system, the defence need not disclose any material to the crown. This isn't a civil system, after all; life, liberty, and security of the person are at stake.

This change also impacts the right to a full answer and defence in a fair trial. It undermines the process of cross-examination, which is a crucible for the discovery of truth. The Supreme Court of Canada has said that Canadian courts, as in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenets of our justice system that an innocent person must not be convicted. It follows from this that the prejudice must be substantially outweighed by the value of the evidence before courts can interfere. We cannot assume in our courts that all complainants are honest and credible. We can hashtag and believe all survivors outside of court, but not in court. That's a recipe for wrongful conviction. That is the fundamental tension with this process of reverse disclosure.

What we have to realize is that when the defence discloses this information, if a complainant is not telling the truth, if they are lying—and that happens—then you're disclosing that information to a liar. You're disclosing the information that could prove they're lying to a liar before they testify in court, so that they have time to change their stories and they have time to shade the truth. That is not the crucible of cross-examination that will result in accurate findings. It's a legislative woodshed for false allegations.

You can think of examples. For instance, a complainant who says that they were stabbed in the past and has the scars and shows them to the police, but the accused has lawfully obtained medical records showing that the scars came from surgery; or the example of a text message that the complainant sends to a third party, and that message is then forwarded to the accused and it is damning evidence that the complainant is not telling the truth. It's not in the interests of justice to disclose that information in advance.

I'd be happy to answer any questions about the other issues, with respect to trial delays and the like, but I would like to echo what Ms. Davies said in the previous panel, that this is also overbroad. There's a case before the Supreme Court right now touching on this issue, and for anyone who says that text messages aren't covered, we can turn to the B.C. Court of Appeal, which said they probably are, so we might have answers soon.

But in terms of breadth, I think this committee should take a hard look at that. I have some amendments that I can suggest when I'm questioned.

[Michael Spratt, Lawyer, Abergel Goldstein and Partners, As an Individual]

Thank you very much for the opportunity to appear before you and make submissions on this important bill.

Bill C-51 seeks to amend the Criminal Code to remove or repeal provisions that have been ruled unconstitutional or that raise issues with the Canadian Charter of Rights and Freedoms, as well as provisions that are obsolete or redundant.

It also modifies provisions in the Criminal Code relating to sexual assault, to clarify their application and to provide a procedure for the admissibility of records when they're in the possession of an accused person.

I'm going to do something different and start with some positive things, because there are some positive aspects of this bill.

[Kyla Lee, Associate Lawyer, Acumen Law Corporation]

Thank you.

On my behalf and that of my colleague, Ms. Leamon, I'd like to thank the committee for having us here today.

I'm going to deal with the provisions of Bill C-51 that address the sexual assault changes to the law. In particular, one of the elements that concern us is the change to the “mistaken belief in consent” defence that effectively eliminates that defence by adding a provision to the legislation that requires an individual to have actual consent, either through actions or words. It has the effect of eliminating the defence of mistaken belief in consent and a significant problem in our criminal justice system of essentially eliminating the mens rea component from any sexual assault case, as long as it is proven that somebody was essentially engaged in sex that they then say was non-consensual.

The burden shifts to the defence to show that there was actual consent, and they can't say they thought she was consenting unless they have proof that he or she was consenting to the act. That's significantly concerning because it either eliminates the ability of individuals who are innocent to raise their innocence or to raise that issue. It's also completely out of step with the realities of human sexual interaction, which are dynamic, which are not normal.... Most people when they are engaging in sexual situations are not asking if you would like to do this, with the response being, yes, they would, and then creating a record of that, so it's going to create practical hurdles for the defence that are going to be impossible to meet in the trial process.

My other main concern with this legislation is the manner in which it's going to enhance trial delays. In particular, this is going to disproportionately affect small communities and circuit courts where these cases are often more troubling because they affect the community at large.

Because of the way the applications to introduce the records that the defence intends to rely upon have to be made, it requires the seizing of a judge, who then has to come back and hear the subsequent application after deciding the written application, and then because they hear factual issues, may well become seized on the trial itself. That's going to lead to extreme problems for courthouses across this country, but most particularly in rural communities, which are understaffed, have fewer judicial resources, and have fewer judges, or sometimes only one judge. It's going to make it practically impossible for those cases to proceed in a timely fashion. It's also going to detract from other cases taking place in those courthouses, whatever they may be, and it's going to lead to delays in those cases because the judicial resources are going to be taken up dealing with all these pretrial applications with a seized judge who's now required to decide this particular issue.

One amendment I would suggest if this portion of the bill is passed is to allow those applications to be made before any judge. The judge who decides the written application shouldn't necessarily have to be the judge who then decides the in-person hearing, and shouldn't necessarily have to be the trial judge. That will allow for easier scheduling, particularly for communities affected by circuit courts where you might not have the judge returning for another six or eight months, and it then might not be the same judge.

I'll turn it over to my colleague, Ms. Leamon, to add her comments.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair, and thank you to our very informative panel today who are talking about three very distinct areas that Bill C-51 covers.

Mr. Mirza, you spoke about section 176 of the Criminal Code, specifically about clergymen. You mentioned repealing it and what the impact would be on Canadian society. Do you know if this provision has been used recently, and if so, has it been frequently used?

[Prof. Jamie Cameron]

I would say that it's important to repeal all three because all three relate directly to the rationale of Bill C-51. I would say, in particular, that blasphemous libel is like seditious libel in that both are essentially obsolete. They're inactive as Criminal Code offences, and if blasphemous libel is obsolete enough to be within the purview of Bill C-51, then seditious libel is as well.

In addition, both of those forms of libel pose charter risks in the terminology of the minister, because of the wording and the way in which they threaten freedom of expression under section 2(b) of the charter. Defamatory libel is not obsolete, but sections 300 and 301 are frequently misused to target those who criticize public actors in an uncivil or vehement way. As my colleague Professor Taylor noted, there are alternative offences available to prosecute this kind of transgressive conduct.

Section 301 has been found unconstitutional by several lower courts in several provinces. The definition of “defamatory libel” in the Criminal Code is highly problematic. Finally, I would just repeat and rely on, in particular, the Law Reform Commission's report of 1984 and the U.K. initiative, which recognized that all forms of common law or criminal libel are essentially artifacts that have come and gone and been replaced by other forms of criminal offences that can address whatever criminal behaviour needs to be prosecuted that is similar to, or a default from, those kinds of criminal acts.

I hope that answered your question.

[Prof. Jamie Cameron]

I don't think it will make a tangible difference, because it really just picks up a small part of the Supreme Court of Canada's decision in R. v. Lucas, which confirmed that in order for the offensive defamation to be made out, the publication has to be to a third party and not only to the victim of the defamatory statement. I don't see it as very significant.

If you don't mind my adding a comment, because I didn't get a chance to say it in my primary submission, Bill C-51 is a very important initiative. What the Minister of Justice has done is take a look through the Criminal Code in its entirety and try to identify critical provisions that are either obsolete or raise charter risks.

What the centre would simply like the committee to know is that it would be unfortunate if blasphemous libel were identified when the other forms of libel that share the rationales that are operative for Bill C-51 were not included in the inquiry. That's really why we're here.

To answer your question a bit more directly, the proposed amendment to the definition of defamatory libel really doesn't address the issues that are of concern to us, which have to do with the existence of the offences.

[Ali Ehsassi, Liberal, Willowdale, ON]

Absolutely.

As you stated, Bill C-51 really doesn't deal with the issue of defamatory libel. However, there is a change in the requirement for publishing. Could you speak to the significance of that, whether that's a good development or whether it will make a tangible difference?

[Prof. Jamie Cameron]

It's not part of my mandate in being here this afternoon, but I am aware that it is part of the proposal for Bill C-51. I applaud the initiative. I think it's a useful, constructive, and important addition to the legislation. The charter statements, of course, provide important guidance to everyone who's looking at the kinds of legislative measures that are being brought forward. We paid attention to the charter statement on the blasphemous libel in thinking that perhaps this might be time to bring the other forms of libel forward as well.

[Ali Ehsassi, Liberal, Willowdale, ON]

Absolutely. Thank you for that.

My second question is for the witnesses from the Centre for Free Expression. Again, thank you very much for your testimony. It was very helpful, especially the reference to the Law Reform Commission in the 1980s that I'd never heard of.

Now, in terms of full disclosure, I should say that I had the honour of having Professor Cameron at Osgoode Hall law school. Once again, I find myself here with a notebook and a pen to take notes as you guide us.

Professor Cameron, could you kindly comment on the changes in Bill C-51 that have to do with changes to the Department of Justice Act? It now requires the Minister of Justice to issue a charter statement with respect to every proposed bill. Could you tell us how significant that is?

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you, Mr. Chair.

My first question is for Ms. Davies. Thank you very much for your testimony. It was very clear, very comprehensive, and very helpful.

As you are very well aware, conviction rates for sexual assaults are very low at this point. One of the concerns that we have heard is that victims fear that the justice system, in going through with proceedings, will lead to revictimization.

Now in light of that and the concern that we certainly have, what are your thoughts on changes to clause 21 of Bill C-51? That, of course, is the clause that clarifies the circumstances under which a complainant's sexual history could be admitted as evidence.

[Breese Davies, Lawyer, Breese Davies Law, As an Individual]

Thank you. I, too, would like to thank the committee for inviting me to address you today. It's a real privilege to be here.

By way of my background, I'm a criminal lawyer who practises in Toronto. I've been practising for 17 years at all levels of court. I'm also a vice-president of the Criminal Lawyers' Association—I know you're going to hear from them in the next hour. I'm an adjunct professor at the faculty of law at U of T and at Osgoode Hall law school. In addition to that, I prosecute sexual abuse cases in the regulatory context, so it's within that frame that I'll make my submissions today.

As you know, broadly speaking, Bill C-51 has a number of classes of amendments. I want to focus my comments today on the provisions that create the new procedure for determining the admissibility of private records in the hands of the accused, so that would be proposed section 278.92. I know you have submissions on this from the Criminal Lawyers' Association and I obviously support those. I just want to address a few of the issues. We've tried to coordinate our comments so we don't duplicate what we say.

Both the Minister of Justice in her comments before you last week, and the parliamentary secretary in his comments during first reading, made it clear that the goals of this new procedural regime about the admissibility of private records is twofold: first, to ensure that sexual assault complainants are treated with respect; and second, to respond to the public concern there may be about how sexual assault cases are prosecuted, defended, and judged. Those are obviously two very important objectives, so I will keep those in mind when I make my comments.

I also want to preface my comments by saying that I acknowledge and recognize that the Supreme Court of Canada has said that the defence does not have the right to a trial by ambush, that it is open to Parliament to enact procedures that would control the way in which defence counsel can put forward a case, but there has to be a balancing of the rights, a balancing of the accused's rights with the interests of the complainant. It's in that spirit that I'm going to make my comments. It's in that spirit of the balancing that I still have some concerns about the new regime as it's drafted.

In particular, I have two concerns I want to talk about today. The first is that the provision is overly broad, even taking into consideration what the stated objectives are. The second is the lack of corresponding resources to deal with these more complex procedural issues, and the potential unintended consequences of creating complexity in criminal trials that I think you should be alive to when you're considering the bill.

Let me deal with the overbreadth. In my submission there are two ways in which the provisions as drafted are overly broad. The first one I can deal with fairly quickly, I think, because it's a fairly narrow point.

The proposed amendment makes it clear that no record relating to a complainant or a witness is admissible unless the procedure is followed. It strikes me, from all of the commentary that has been made, that the concern is really around the manner in which complainants are addressed in criminal trials, so my concern is that the inclusion of the words “or a witness” will make this enormously broad in terms of its application. That would apply to any crown witness, whether they are connected to the complainant or not, and in my submission that extends the reach of this new provision beyond the stated goal or the purpose. I think it's unnecessary to achieve the objectives.

I also think there would be a real concern on constitutional grounds about there being no rational connection between the stated purpose and that language, and that it wouldn't survive a minimal impairment analysis. I would urge you, in your discussions, to delete references to witnesses and continue to focus on complainants. That's the narrow one.

My second comment is around the definition of the record for the purpose of this regime. I know, from the legislation, that the definition of “record” that is being used for the new regime is the same definition that applies for the third-party records application, but in my submission it has very different connotations in the context of a record that's in the hands of an accused person already. I think you have to look at whether or not the definition of a record is too broad for the purposes that have been articulated.

The definition of “record” is “any form of record that contains personal information for which there is a reasonable expectation of privacy”. There is a list, but the starting point is whether it is a record for which there is a reasonable expectation of privacy. In my submission, that is going to cover potentially an enormously broad group of records, and it would significantly increase the complexity and length of sexual assault cases.

I want to give you five examples of records that I think would be captured in this definition that perhaps weren't intended to be captured, and certainly I think in the context of constitutional considerations should not be included.

One is personal communications between the accused and a complainant. If a complainant sends an email to an accused person, that is a private communication. The case law is very unclear on whether or not that is a record over which there's a reasonable expectation of privacy. The British Columbia Court of Appeal, in a case called Craig, said that you do retain a reasonable expectation of privacy over a private communication that you send to another person, even if it's in their hands. Even in the hands of an accused person, there would be a reasonable expectation of privacy over text messages, emails, or Facebook posts that you send to one another. The Ontario Court of Appeal came to the exact opposite conclusion.

This issue is before the Supreme Court of Canada, but if the Supreme Court of Canada sides with the B.C. Court of Appeal and says there is a reasonable expectation of privacy, any communication, any electronic communication that goes between an accused person and a complainant would now be subject to this regime. If the issue is about avoiding trial by ambush, you don't need that protection for things that a complainant wrote his or herself and sent to an accused person. There's no element of surprise, or there ought not to be an element of surprise in communications that initiated from the complainant or were received by the complainant. Certainly those are records that the complainant should have themselves, or the crown and the police can have access to and can get if they're deleted. That's one area that I think ought to be excluded.

There's also concern about joint records. Sometimes complainants and accused people have joint counselling records, joint cellphone records, joint bank accounts to which they both have a reasonable expectation of privacy but are equally entitled to have access. I think there's a real concern about requiring the accused to go through this procedural hoop when there are joint records. Private records filed in other proceedings, sometimes family courts, sometimes civil proceedings, sometimes related criminal proceedings, the type of private information which I think is quite rightly the subject of this, is already in the public domain and ought to be available, and this procedure shouldn't apply.

Also, it may include records that are part of disclosure, so records that the crown obtained, everybody knows about. If there's a reasonable expectation of privacy over those records, they still could be covered, and records that were produced through a third-party records application where the issues have already been adjudicated by a judge.

My suggestion is that there ought to be an amendment to the existing language that expressly exempts certain categories of communications, certain categories of records that ought not to be subject to this regime. I would suggest communications between complainants and the accused, records that are accessible to both the complainant and the accused, information that is otherwise publicly available, and records that have previously been disclosed through a third-party records application. For example, if I bring a third-party records application and I get a complainant's therapeutic records, I ought not to be required to go through a second application, once everybody knows what they are, in order to use those in a trial. Obviously every question, every line of cross-examination, will be subject to the discretion of the trial judge to stop the defence counsel if they're using it improperly.

Those are my broad suggestions in terms of narrowing the scope of what this applies to.

I want to just speak very briefly in the minute I have left about some unintended practical consequences.

One of the concerns is to ensure that responsible, experienced counsel are involved in all of these cases for the accused, and I know there are provisions for the complainant to have counsel as well. You do not want to create mechanisms that will either result in more unrepresented accused or more under-represented accused.

If there aren't additional resources allocated to fund these complicated procedures, you will have more and more experienced senior counsel not taking on these cases on legal aid, which most of these cases are. You will end up in situations where you have more unrepresented accused people who cannot navigate these proceeding or under-represented accused people who don't have adequate senior counsel to deal with these complex issues.

I think you have to be concerned as well that, as you increase the complexity of criminal trials, you obviously run up against the concerns that the case from the Supreme Court of Canada in R v. Jordan created, in terms of not the hard caps but the presumptive caps on delay. If you turn every trial that is now a one-day trial into a two-day trial, you're going to run up against serious considerations in terms of delay.

Those are my comments and I'm happy to take questions about them.

[Professor Jamie Cameron, Professor of Law, Osgoode Hall Law School, Centre for Free Expression, Ryerson University]

Thank you, and thank you, Dr. Turk.

I am the designated spokesperson for the Centre for Free Expression this afternoon. I'm a professor at Osgoode Hall law school at York University.

To members of the committee, we have prepared some speaking notes that were provided to you, and I'll just move to some of the highlights from those speaking notes.

Our presentation this afternoon concerns the status of criminal libel in the Criminal Code. There are three forms of criminal libel that are currently penalized in the Criminal Code: blasphemous libel, seditious libel, and defamatory libel.

Bill C-51 proposes to repeal the offence of blasphemous libel. In the Minister of Justice's charter statement, we learned that this was in part to enhance the protection of free expression. However, while Bill C-51 proposes to repeal blasphemous libel, it does not propose to repeal seditious libel or defamatory libel. There's a minor amendment proposed to defamatory libel, but in the main, the other offences remain intact.

The Centre for Free Expression supports and applauds the repeal of section 296, the blasphemous libel offence, on the grounds that it is either obsolete or that it contains risk elements related to the charter. We submit, however, that all forms of criminal libel should be repealed together. In particular, we submit to the committee that seditious libel and defamatory libel both fall within the rationale for repealing Criminal Code provisions in Bill C-51. Specifically, either the provisions are obsolete or they pose risks to the protection of expressive freedom under the charter.

I'll say a couple of words about blasphemous and seditious libel. These two are somewhat alike, because both of these Criminal Code offences are effectively or essentially obsolete. The last prosecution for blasphemous libel, I believe, was in 1936, and according to our research, the last major conviction for seditious libel occurred in 1950. I think both of these provisions are somewhat obsolete, and both pose charter risks to freedom of expression, as the minister acknowledged in the case of blasphemous libel.

In our view, defamatory libel raises particular concerns. Specifically, defamatory libel—there are two offences in the Criminal Code—is not obsolete. Far from being obsolete, the defamatory libel offences pose worrying risks and concerns for freedom of expression. My colleague Professor Taylor's research reveals worrying patterns for the prosecution of these offences under the Criminal Code.

I'll now turn to a couple of key issues about the defamatory libel offences. First of all, two defamatory libel offences in the Criminal Code are found in sections 300 and 301 of the code. Section 301 is notable because this provision has been found unconstitutional by lower courts in at least five different provinces across the country. That's the first significant point. Second, it's important to note that sections 300 and 301 are both more harsh in their approach to the questions of defamation and defamatory statements than the civil law of defamation.

The third point is that the Criminal Code's definition of “defamation” is particularly problematic because it's overbroad. Here I would point to the inclusion of the word “ridicule” in the definition of “defamation” in the code and the words “designed to insult” as elements of the criminal offence, which we would not find in the civil law definition of defamation. Moreover, words that ridicule or insult another person are not necessarily defamatory.

A fourth point, and it's a very important one for the Centre for Free Expression, is that these provisions in sections 301 and 30 are too often used by the police as a tool to silence and punish those who are harshly critical of different kinds of public actors. These can include police officers, prison wardens, municipal officials, and other kinds of state actors who have been harshly criticized by individuals from time to time.

In our submission, the defamatory libel offences, for a variety of reasons, pose very extreme charter risks to freedom of expression and fall within the minister's rationale for repeal under Bill C-51.

I would also like to state, because it's important, that there are other alternatives open under the Criminal Code should there be transgressive activity that needs to be addressed by the criminal justice system. There is a whole list of Criminal Code offences that can be used in lieu of defamatory libel to deal with this kind of conduct. There's criminal harassment, uttering threats, and the range of offences that deal with different kinds of cyber-smearing. Should there be time in the question period, my colleague Professor Taylor would be happy to speak to that.

I just have a couple of closing notes for the committee. The first is that, for the centre, it's significant to note that in 1984 the Law Reform Commission of Canada did a fairly extensive study of the whole subject of defamatory libel and the Law Reform Commission came to the conclusion and made the recommendation that defamatory libel should be abolished as a criminal law offence in Canada.

It's useful to note that more recently, in 2009, the United Kingdom made the decision to abolish all forms of common law criminal libel. That included seditious libel, defamatory libel, and something that is known in the U.K. as obscene libel.

I think that report and the U.K. reform initiative support our view that criminal libel offences in the code are really artifacts from another day and age, and do not belong in the criminal law at this point in time.

This has been a brief submission. We're happy to answer questions, but in closing, we urge the committee to consider amendments to Bill C-51 that would include the repeal of seditious libel and defamatory libel, together with blasphemous libel.

Thank you for your attention.

[The Chair, Liberal, Anthony Housefather]

Good afternoon, ladies and gentlemen.

It is a pleasure to have you here with us at the justice and human rights committee as we resume our study of Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act.

I am pleased to greet our witnesses today. We're very lucky to have with us, as an individual, Ms. Breese Davies, who is a lawyer at Breese Davies Law.

Welcome, Ms. Davies. Thank you for agreeing to go at the end of the testimony so that we can make sure we get everybody on video conference before anything can happen.

We have Mr. Faisal Mirza, who is an advocacy committee member and criminal law barrister representing the South Asian Bar Association. Welcome, Mr. Mirza.

Then we have the Centre for Free Expression, at Ryerson University, represented by Prof. Lisa Taylor, who is a professor of journalism, Ms. Jamie Cameron, who is a professor of law, and Prof. James Turks, who is director and distinguished visiting professor in the faculty of communications and design. Welcome, Ms. Taylor, Ms. Cameron, and Mr. Turk.

We're going to start with Mr. Mirza. All witnesses, please try to speak to the act itself and to potential amendments to the act, and not to general principles that go far outside the act. Thank you.

Mr. Mirza, the floor is yours. You have up to 10 minutes.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I recognize the member's comments and advocacy with the letter that was sent from this committee around the zombie provisions that are in the Criminal Code.

I am fully committed to doing as much as I can to advocate for the moving of Bill C-39 through the parliamentary process. Like you, I want to have those provisions, section 230 of the Criminal Code, removed as well as the other unconstitutional provisions that are articulated in Bill C-39, and likewise, other bills that I have felt very fortunate to have introduced around the victim fine surcharge.

Bill C-39 was phase one of the Criminal Code cleanup bill, and Bill C-51 is the second phase. I'm hopeful that they will all proceed as quickly as possible because I share your concern about having zombie provisions remain in the Criminal Code and having individuals charged under provisions that have been rendered unconstitutional.

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

Thank you, Mr. Chair.

Thank you, Madam Minister.

I certainly note that Bill C-51 does remove certain obsolete sections of the Criminal Code. I want to ask a question more broadly about the government's effort to clean up the Criminal Code. You have stated that it is a priority of the government.

One year ago, Travis Vader's conviction on two counts of second degree murder of Lyle and Marie McCann of St. Albert, Alberta was vacated after the trial judge applied an inoperative section of the Criminal Code, a section that had been found unconstitutional some 25 years earlier.

This committee wrote to you. I held a press conference with Bret McCann in December calling on the government to move forward to remove zombie laws, unconstitutional provisions. To your credit, you did introduce Bill C-39 on March 8, and seven months later, it remains stuck at first reading.

What is the delay on Bill C-39?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

For the past two years, and even before that, there have been many commentators—academics, people involved in the criminal justice system—who have made commentary around specific provisions in the Criminal Code.

We specifically sought to engage with academics on this issue. We've had over 15 round tables on the Criminal Code with criminal justice experts from all different areas. My officials have engaged in substantive working group discussions with our provincial and territorial counterparts to comprehensively review the Criminal Code, and certainly, as Bill C-39 reflects, eliminate unconstitutional provisions in the Criminal Code. With respect to Bill C-51, we looked at redundant and archaic provisions, and we also looked at where lower courts have considered specific sections to include and remove those provisions.

[The Chair, Liberal, Anthony Housefather]

Mr. Angus, we've strayed far away from Bill C-51 but I'll let the minister answer. We're at the end of your time anyway, so we'll let the minister answer.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I'll say from the outset that it is an incredibly important question. The objective that you articulated in your question in ensuring that we do everything we can to protect victims of sexual assault, to ensure that we provide and create the space as best we can for them to come forward, is an objective that I think everybody around this table shares.

We have sought to ensure in Bill C-51 that we clarify the law around consent in the Criminal Code, that we ensure we expand the rape shield provisions, recognizing the twin myths, and that the ability to introduce evidence that's held in the hands of the accused's personal records regarding the complainant certainly can't be introduced for purposes of the proclivity of the complainant in the activity or that she's less worthy of belief. We set in place a procedure to provide discussion or advise whether or not those personal or private records of the complainant should be introduced in the procedure. Also, the proposed legislation provides legal representation to the complainant in these procedures.

Beyond what's reflected in Bill C-51, we have a lot of work to do. I'm happy that the government has thought to start doing substantive work in that area.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

What we're seeking to do in Bill C-51 is to clarify the law around consent. Specifically, in terms of the sexual assault amendments relating to situations where there is no consent, the amendments would make clear that an unconscious person is incapable of consenting, and in a separate paragraph it would equally make clear that a person may be incapable of consenting for other reasons other than being unconscious.

This is activating or putting in place the clarity that was provided by the Supreme Court of Canada, as I mentioned in my remarks, in decision R. v. J.A., and ensuring that there's clarity around when consent is obtained and when it's not.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Part of the debate that arose out of the #MeToo campaign was on what consent is, and Bill C-51 addresses that issue. Can you review what changes are being made to the law of consent, and why you think they are important?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I am familiar with the #MeToo campaign, and thank you for sharing your lived experience. I would say it is paramount. We had members in the House today speak to that campaign. It is critically important for individuals who are victims of sexual violence, sexual crimes, to come forward.

The intent behind Bill C-51, with respect to amendments to the sexual assault provisions and clarifying the law, is to do as much as we can to make it easier for victims of crime to come forward to share their stories. We know the statistics say that individuals do not come forward as much as they should. What we can do, in terms of amending the Criminal Code, and that's the intent behind Bill C-51, is to clarify the law around consent and to speak to disclosure and evidence with respect to records held by the accused around the complainants.

We're also taking substantive measures, from day one as a government, to work as hard as we can to ensure we provide effective resources in terms of victim support and victim services. We've allocated $12 million in that regard in our victims fund. We're also committed to ensuring that individuals who sit on our superior courts across the country are provided and can take advantage of the necessary training in terms of recognizing implicit bias.

We've also invested substantively in other ways, including working with the Minister of Status of Women around a gender-based violence strategy that looks at prevention and that looks to ensure the criminal justice system is responsive to victims of sexual violence.

[Jody Wilson-Raybould, Liberal, Minister of Justice and Attorney General of Canada]

Thank you, Mr. Chair.

Thank you to all members of this committee for inviting me to appear again at this time to speak to and 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.

As you know, the Prime Minister has mandated me to review the criminal justice system, which is critically important and a long overdue task. As Minister of Justice and Attorney General of Canada, I am committed to making our laws fairer, clearer, more relevant, and more accessible to all Canadians. Bill C-51 reflects that commitment.

As I continue to work with the provinces and territories, as well as criminal justice system stakeholders, I am guided by a set of clear objectives.

First, using the criminal law to keep Canadians safe, and holding offenders to account for their crimes in a just and appropriate way. Second, making sure that our criminal justice system shows compassion and responds to the needs of victims of crime. Third, responding to the needs of vulnerable populations, and ensuring that the system does not exacerbate the challenges faced by already marginalized groups. Finally, working to make clearer links between the justice system and other social systems, so we are able to more effectively respond to the root causes of crime.

Bill C-51 reflects these objectives through changes that will have a positive and lasting impact on victims of sexual violence. This bill also affirms the fundamental truths upon which our justice system is based, including that criminal law should be used with restraint, that the state bears the responsibility of proving alleged criminal conduct, and that all criminal law must respect the Charter of Rights and Freedoms.

Mr. Chair and members of the committee, you will already be familiar with the content of the bill. In the time available to me, I don't think I can comprehensively speak to all aspects of the bill. Instead, I will provide a brief overview of the main aspects of the bill, and spend the remainder of my time focusing on some key points of discussion that have arisen since I first introduced the bill on June 6.

It may be useful to think of Bill C-51's proposed amendments as falling into four broad categories. Most of these changes are to the Criminal Code; however, the bill also proposes important improvements to the Department of Justice Act.

The first broad set of reforms under the Criminal Code seek to clarify and bolster the laws surrounding sexual assault. Second, Bill C-51 seeks to build on the proposed changes included in Bill C-39, which I introduced on March 8, by repealing or amending Criminal Code provisions that have been found unconstitutional by the courts. The third area of reform involves amendments that would remove a number of obsolete or redundant criminal offences. Finally, amendments to the Department of Justice Act would create a new statutory duty for the Minister of Justice to table in Parliament a charter statement for every government bill that sets out the bill's potential effects on rights and freedoms guaranteed in the charter.

Turning first to the sexual assault law reforms, all parliamentarians recognize the importance of taking steps to ensure that the criminal law is as clear and unequivocal as possible in its response to sexual violence. We all know that sexual assault complainants face significant challenges. Therefore, it is absolutely critical that our laws be both clear and clearly understood. This is important for all parties involved in such proceedings: judges, prosecutors, defence counsel, accused, and victims. It is also important for the proper functioning of the system overall.

In this respect, the proposed changes clarify that persons cannot consent to sexual activity when they are incapable of doing so, including when they are unconscious. This change is in line with the Supreme Court of Canada decision R. v. J.A.

Second, changes would clarify that accused persons cannot rely on the defence of mistaken belief in consent if their mistake is a mistake of law, or if their belief is based on the complainant's passivity. In this way, it would codify the Supreme Court's decision in R. v. Ewanchuk.

The bill will also fill the gap in law by introducing a specific procedure for determining the admissibility of private records relating to the complainant such as private journals that are in the hands of the accused. This will complement existing procedures that apply when the accused seeks to obtain records held by persons other than the crown, for example, a therapist.

I pause here to respond to the concerns that have been expressed around these changes. It has been suggested by some that these amendments amount to a codification of a defence disclosure obligation. I want to be very clear that this is simply not true. These changes provide no rights to the crown to receive evidence, nor do they mean that the defence would be obligated to hand such evidence over. Rather, the changes concern rules of evidence and seek to balance the rights of the accused with the rights of the complainant and to support the truth-seeking function of the courts.

As was noted in the Supreme Court of Canada's decision in Darrach, a voir dire held to determine whether evidence of past sexual history is admissible is not defence disclosure. Additionally, the bill proposes changes to remove laws that have been found unconstitutional by appellate courts. One example is the proposal to remove the restriction that prevents sentencing courts from giving enhanced credit to persons detained prior to being tried and convicted because they've breached a condition of bail. This was found unconstitutional by the Manitoba Court of Appeal in Bittern.

Next, Bill C-51 proposes to repeal 20 different offences that are either redundant of other offences of general application, or no longer have relevance in Canada today. Examples include challenging someone to a dual; posting a reward for a return of a stolen item, no questions asked; possessing criminal or crime comics; and publishing a blasphemous libel. These changes are expected to make our laws fairer, clearer, and more relevant and accessible to Canadians.

I've received a number of letters from Canadians expressing concern about Bill C-51's proposed repeal of section 176, which appears to offer specific protections to Christian clergymen. I'm grateful to have the opportunity to respond to these concerns now.

I want to be clear that removing this offence will not in any way undermine Canadians' ability to practise their religious faith, nor do I expect it to lead to an increase in violence in such situations. Many criminal offences of general application will continue to be available to address all of the conduct that is prohibited by section 176. It remains an aggravating factor in sentencing if an offence was motivated by bias, prejudice, or hate based on religion.

Finally, changes to the Department of Justice Act would require the Minister of Justice to table charter statements that would identify and highlight key charter rights and freedoms that are engaged by any government bill. They would also set out considerations that support the justification of any limits that a bill may have on charter rights or freedoms.

As members are aware, I have been tabling charter statements for bills that I have introduced since becoming Minister of Justice. We have also begun to expand this practice to bills introduced by other ministers as well. The amendments would entrench this practice in law and extend it to all future government bills. These changes, as well as those proposed to the Criminal Code, reflect our government's unwavering and deep commitment to respecting the charter.

Quite simply, we can never abdicate our responsibility as a government to ensure that our decisions, including those reflected through law reform, comply with our fundamental rights and freedoms. That is why I'm so pleased to sponsor a bill that reinforces the obligation of current and future governments to adhere to this most basic duty.

Mr. Chair, I want to thank you again for the opportunity to appear before this committee and I look forward to all of the questions and discussions.

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone. It is a pleasure to be joined this afternoon by the Minister of Justice and Attorney General of Canada, Jody Wilson-Raybould.

Accompanying her from the Department of Justice is Laurie Wright, who is the assistant deputy minister, public law and legislative services sector. Carole Morency is back again. She is director general and senior general counsel, criminal law policy section, policy sector.

We begin our study of Bill C-51, an exciting act split into three parts.

Minister, the floor is yours. Thank you so much for coming to join us today.

[Brenda McPhail]

I'm not sure. I share your question in relation to that.

I would note that under the Security of Canada Information Sharing Act, information sharing was vastly expanded, and the scope of agencies that were identified as having potentially something to do with national security was extremely broad. That's something we criticized in relation to Bill C-51, and it seems reasonable to continue to criticize it here.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Mr. Chair.

Ms. McPhail, when it comes to information sharing, I think I understood the minister's answer correctly when I asked him this question on Tuesday, but is one of the concerns the fact that, with what was formerly Bill C-51, we already have the information sharing regime in place between government agencies, so this information being collected can be shared pretty broadly throughout different agencies that don't necessarily have the same accountability mechanisms in place as, for example, some of the national security agencies might have?

[Yavar Hameed]

I have a couple of recommendations. One is, I'm not speaking to the national strategy but certainly taking that information and bringing it back to policies that exist. I would flag Bill C-59, things that were not touched under Bill C-51, so using that information to inform existing state policy.

Number two is to create a repository of complaints. If complaint mechanisms already exist within departments, I think perhaps there should be an overarching way to collect that information, to gather that information, so we have a sense of the kinds of discrimination that Muslims are facing across the board, so coalescing that in some way.

The last one I would say is to improve oversight. There's a lot of discussion. We can get into this as well. Oversight we know post-Arar is deficient. We need to enhance those methods, but the only way we can do that is to understand the problem.

[Dr. Michael Geist, Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual]

Thanks very much. Good afternoon.

My name is Michael Geist. I am a law professor at the University of Ottawa, where I hold the Canada research chair in Internet and e-commerce law. I have appeared many times before this committee on privacy issues, although not always in such a nice room. As always, I appear in a personal capacity representing only my own views.

I'm grateful to the committee for its commitment to privacy and its efforts to highlight the privacy issues associated with our airports and border crossings. The media has regularly covered these issues, as you know. There are fears of device searches at borders, stories of information sharing that goes beyond most reasonable expectations, and mounting concerns about the approach of U.S. law and border officials with respect to the privacy rights of non-citizens and non-permanent residents.

These stories hit home, as we saw just a few minutes ago with Mr. Long in the last panel. Everyone seems to have their own story. Recent incidents include one involving a Quebec resident who didn't want to provide his cellphone password. It was searched at the Canadian border in Halifax. He was ultimately arrested for not giving a passcode when asked. The argument was that he was hindering an investigation. In another incident, a Canadian man was denied entry into the U.S. after customs and border patrol officers demanded that he open his phone and provide access to his apps. There was yet another incident involving a Canadian photojournalist who was inspected on his way to Standing Rock. Officials photocopied pages of his personal journal and asked for three mobile phone passwords, which he said he could not disclose because of his ethical obligation to protect his sources. The phones were taken and returned hours later with tamper tape covering the SIM cards, suggesting the cards had been removed and copied.

The privacy associated with border crossings now seemingly captures everyone's attention. I think it's worth asking why. I think there are at least three sources of concern that help point to potential policy solutions.

First, there is the feeling amongst many that border crossings represent no-privacy zones in which it feels as if officials are entitled to demand whatever information they wish and can use whatever means to acquire it. I know of technical experts who regularly wipe their phones or establish border crossing social media accounts in order to counter fears of invasive searches, both physical and digital, when crossing the border.

Second, as these stories suggest, the search itself—and we've heard about this now from a number of people—has changed dramatically in recent years with the legal safeguards failing to keep pace. It's one thing to know that your belongings may be searched. Yet today, we all know that our devices and the information on them can tell a far more personal story, our social graph, our location history, our reading habits, our contacts, and our purchasing history. In searching this information, officials may literally be accessing just about everything about us. Doing so, potentially without appropriate safeguards, understandably leaves many feeling vulnerable. The data indicates, as we heard on the last panel, that at least in the United States, these forms of searches are increasing rapidly. In fact, in the United States, there have been some policies that have posited that such searches can occur with or without reasonable suspicion.

Third, it may not be comfortable to say, but part of the concern stems from the fact that the U.S. border is by order of magnitude the most significant one for Canadians. This is not solely a comment about the current U.S. administration. Rather, it reflects long-standing concerns about the U.S. approach to privacy and fears that U.S. privacy protections may be weaker than those found in Canada. For example, the enactment of the USA Patriot Act after 9/11 opened the door to extensive access to personal information without traditional safeguards. Over 10 years later, the Snowden revelations reinforced the massive data gathering efforts of signals intelligence and law enforcement agencies. Most recently, the Trump administration's executive order aimed at reversing efforts to establish privacy protections for non-U.S. citizens and residents again placed the issue in the spotlight.

What is there to do about it? I thought the Privacy Commissioner of Canada, who raised issues such as information sharing across borders, the U.S. executive order, and CBSA searches provided excellent context and advice.

I'd like to briefly provide additional comments on four issues.

First, I think this committee and several of these committees have done excellent work on Privacy Act reform. As you know, it has been an issue that has regularly come up before this committee. There are few areas within Canadian privacy that are more overdue for updating. Indeed, there have been consistent and persistent calls for reforms for decades.

One of the methods of addressing some of the airport privacy concerns in Canada may be through the Privacy Act. Your proposed reforms to provide the Office of the Privacy Commissioner of Canada with greater powers would empower that office to examine border issues in a more comprehensive manner and open the door to more careful reviews of cross-border sharing arrangements. You recommended the reforms; now we need action.

Second, information sharing within government—we just heard about it from Mr. Fraser—remains a source of concern. Indeed, some of the most notable anecdotal stories involving abuses or questionable conduct at the border arise due to information sharing between governments or government departments. The Privacy Act and the OPC are supposed to create safeguards against misuse of personal information, or the use of information for purposes for which it was not collected. However, we have witnessed mounting pressure in recent years for more information sharing between governments and government departments.

Bill C-51, which we all know garnered widespread criticism, featured a significant expansion of government sharing of information, undermining, I would argue, the effectiveness of the Privacy Act. Unfortunately, the information-sharing provisions as they were amended in that bill were only modestly changed. Information sharing was considered a feature, not a bug, and I should note that included the Liberal Party when it was in opposition.

Bill C-59, which seeks to amend Bill C-51, leaves many of the information-sharing provisions intact. There are two needs here that must be reconciled. One, I think we all recognize that government needs to be able to use the information it collects in a reasonable and efficient manner. Two, the public needs confidence that its information will not be misused. That confidence comes from legislative safeguards and effective oversight. There is reason to believe we do not yet have the right balance.

Third, as the Privacy Commissioner of Canada has discussed, Canadian law must apply on Canadian soil when it comes to these issues, particularly the charter. Reducing so-called friction at the border is a laudable goal. No traveller wants long lines or lengthy delays, and that of course applies in a commercial context as well. However, expediency has a price, and sacrificing the Canadian Charter of Rights on Canadian soil is, in my view, a bad bargain. The Supreme Court of Canada has upheld unauthorized searches of devices, and those principles should apply on Canadian soil in a like manner at the border.

Fourth, with the NAFTA negotiations ongoing this week in Ottawa, I think it is important to link those trade talks with this issue. While there is no airport privacy chapter in the agreement, at least that I'm aware of, NAFTA touches on many of these related issues. There will be pressure—we know there is pressure—to speed up border crossings in the name of increased trade. Further, the digital trade chapter, formerly the e-commerce chapter, is likely to include provisions on data localization, prohibiting some of the data localization, and restrictions on data transfers. NAFTA, of course, is not a privacy deal, but the reverberations from the agreement will be felt in the privacy world.

The European Union has regularly linked privacy and data protection with trade. We ought to do the same, recognizing that these issues are linked and that the policy recommendations that come out of this committee on this issue need to make their way into the negotiations. In fact, I'd go even further by noting that the U.S. now seeks to accord the Europeans with privacy protections under the privacy shield. Other countries, such as Australia during the TPP negotiations, sought to ensure that Australians enjoyed the same level of protection. Surely, Canada can use the NAFTA discussions to ensure that the same kind of protection afforded to citizens of other countries outside the United States is afforded, as well, to Canadians.

I look forward to your questions.

Religious Freedom

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

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

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

Customs Act

[Anne Minh-Thu Quach, NDP, Salaberry—Suroît, QC]

Mr. Speaker, Bill C-21 is being introduced at a rather interesting time and pertains to a very sensitive subject, specifically, privacy. The bill proposes amendments to the Customs Act to allow the collection and sharing of exit information on anyone who leaves Canada, including Canadian citizens, with American authorities.

We in the NDP have to question the legality of this sharing of personal information on Canadians with American authorities, and we believe that Canadian officials should not be collecting this information for the United States or any other country. This should be the responsibility of the American border officials, who already collect data on travellers who enter the United States.

I agree that security imperatives must be taken into account and we must ensure the strength and effectiveness of the the Canada-U.S. border, but this cannot be done at the expense of the rights and freedoms of Canadians.

Data gathered by the Canada Border Services Agency should never be disclosed to foreign agencies, except in exceptional circumstances. In such cases, police forces, such as the RCMP and CSIS, already have measures and practices in place that they can use.

In recent years, whistleblower Edward Snowden spoke to us about U.S. surveillance programs, in particular NASA's program. U.S. President Donald Trump is a populist politician who is lawless, racist, unstable, and, unfortunately, the leader of the most powerful nation in the world. He wants to increase electronic surveillance and the collection of information about foreigners, whether they are tourists or U.S. residents.

Bill C-21 would increase the exchange of information between Canada and the United States. There has been a system to collect and subsequently share exit and entry information at the Canada-U.S. land border since 2011. In 2013, it was established that this only applied to third-country nationals and permanent residents. Since then, the information exchanged by our two countries has not decreased. Americans are always looking for more information.

After hearing this, should Canadians be concerned about their privacy? We believe that the answer is yes. The giant next door influences our policies. After assuring the international community that Canada is back, our Prime Minister is making our country bend once again to what the U.S. wants.

Are we going to again allow our neighbours to dictate their demands without worrying about the consequences for our lives, our freedoms, and our privacy?

Not content with invading the privacy of its own citizens, the United States now wants to invade the privacy of Canadians crossing the border. Bill C-21 would authorize officials to collect data about every individual leaving Canada, including Canadian citizens, and share it with U.S. authorities.

Why does the government think it has the right to decide that it will collect private information about its own citizens and share that information with foreign governments?

I do not have a problem with Canada sharing information with the United States. These days, we need to strengthen our international bonds. However, authorized law enforcement agencies, such as the RCMP and CSIS, can already exchange information in exceptional cases.

With this bill, the government will make information exchange routine regardless of the consequences and how U.S. authorities will use that information. We do not know how our information will be used or who will get it. I cannot fathom why this government wants to collect and exchange even more personal information absent adequate independent oversight by our national security agencies.

Canadians recently lost the protection that was previously afforded to them under the Privacy Act. In January, President Trump signed an order allowing the U.S. to access information on any individual, including Canadians, to verify their identity.

In other words, anyone crossing the border at Saint-Bernard-de-Lacolle, which we are hearing a lot about these days, or at Stanstead can be asked by American customs agents to turn on their phone and give the agents their password for Twitter, Facebook, or any other social network. That is a complete invasion of our privacy. Our own Privacy Commissioner, Daniel Therrien, warned us about this initiative.

He said, and I quote:

The issue is that if you allow greater information-sharing, the legal standards authorizing this activity should be such that law-abiding Canadians, ordinary Canadians who should have nothing to fear from surveillance activities of the state, are not caught by the information-sharing regime.

The bill that is currently before us does exactly the opposite. Although we need to take into account security interests and ensure our safety and the smooth exchange of information at the Canada-U.S. border, as I was saying, we need to be careful and protect our rights and freedoms within Canada. The information that is collected by the Canada Border Services Agency must not be disclosed and shared with foreign authorities.

In addition to all that, it is important to keep in mind the Trump administration's disturbing actions. In light of the discriminatory immigration orders, which, as my colleague from Beloeil—Chambly mentioned, led to the racial profiling of Canadian citizens travelling to the U.S., it comes as no surprise that the right to privacy of non-Americans has been suspended. That is very worrisome. Now, more than ever, this bill poses a threat to the fundamental rights of Canadian travellers.

When will the Liberal government keep its promises and protect its constituents? If it does not set clear limits on the exchange of information and if it does not enhance protections, we will clearly end up in a position of weakness. This affects privacy, but also other areas. The other worrisome thing is how this data will be used. According to The Economist, information is worth more than oil. That says it all. I need not remind the House that many information giants are American, including Google, Facebook, and Microsoft, and that our Canadian and Quebec companies are competing in this environment.

Can we believe for a moment that the information shared with the Americans will remain in the hands of the Department of Homeland Security? There is nothing in this bill or in the government's interventions to indicate that the information that will be disclosed will be used for security purposes only. Economic intelligence gathering is nothing new; the practice is used by both our adversaries and our allies. We get the impression that the Liberal government is hoping that the Trump administration will keep its word.

Trump will swear to us, as he often spontaneously does, hand on heart, that his American administration will never allow that information to be misused for economic purposes. If anyone believes that, that would be the very definition of naivety or gullibility. This is something of a recurring theme. The Liberals promised to be more transparent, and yet it is becoming increasingly difficult to access information. These days, there is a lot of talk about access to information regarding the NAFTA negotiations. We have no information about that. Confidentiality agreements have been signed for a four-year period. These negotiations will have repercussions on all Canadian workers.

The Liberals promised to remove from Bill C-51 any excessive transfers of power to security agencies. That has not yet happened. There was a very modest reform that did not correct all the problems in Bill C-51.

The Liberals also promised to respect official languages. We still do not have an official languages commissioner to investigate complaints and ensure that bilingualism in the House of Commons improves. That still has not happened. A number of promises like that have been broken. I could name several more.

In this case, promises were made about accountability and transparency, but Bill C-21 falls short of keeping them. We want to protect Canadians and the bill on the collection and exchange of exit data does not specify how this information will be used or who it will be exchanged with.

How can we trust our legislators if they cannot get their facts straight on the issue of privacy and how this bill will ultimately work?

In conclusion, we will be opposing this bill. The Liberals are going to have to start over.

Religious Freedom

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Speaker, the next petition is on Bill C-51, regarding religious freedoms. There are 43 signatures on it.

The petitioners ask that the government not remove section 176 of the Criminal Code, which would eliminate protection for members of the clergy and faith assemblies.

The third petition I am tabling today is on behalf of 36 petitioners. The petitioners have grave concerns about Motion No. 103 that was passed in the last session.

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

Okay, well, I can see what you're doing here, because this is actually something the government has said they're going to be removing from the Criminal Code. Bill C-51 takes out those four provisions. Do you see any reason at this time why we would be removing those protections from faith communities?

Customs Act

[Cheryl Hardcastle, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I will be splitting my time with the member for Sherbrooke.

I appreciate this opportunity to speak to the concerns that have come to the fore with Bill C-21, an act to amend the Customs Act. My riding of Windsor—Tecumseh is strategically located for astute observation on this bill, and is located a stone's throw from the United States border. As a cross-border community, many of us regularly cross the border to Detroit, for a multitude of reasons. We have family ties, and business and employment ties, as befits our trading-nation relationship, and we enjoy taking in games from professional league sports, with the Tigers, Red Wings, Lions, and Pistons about a half-hour away, more or less, depending on the venue.

I am greatly concerned about the potential consequences of this legislation. With Bill C-21, Canadians would have more of their personal information collected, not by U.S. border agents but by Canadian authorities, and shared with U.S. border agents. This bill would allow Canadian and U.S. authorities to electronically exchange biographic information on people departing and arriving in each other's country. Indeed, it seems that Bill C-21's primary purpose is to introduce the legislative requirement to collect biometric data for all persons exiting Canada. Yes, that is right. Canada would be doing to each and every one of its citizens what the United States presently does to its non-citizens.

Information collected would be the same as the information that the Canada Border Services Agency already collects for Canadians returning to Canada. It would be gathered by the CBSA at every border crossing, including land, sea, and air. However, the thing is that the Canada Border Services Agency was never required to collect information on those exiting Canada, as that is the responsibility of border authorities of the country being entered into. There is the very real concern that Canadian authorities are being asked by a foreign government to hand over personal information of Canadians. Frankly, that is not something that should be the responsibility of the Canada Border Services Agency. Our border agency's sole purpose is to protect Canada, not to hand over Canadian information to foreign authorities.

The United States is a large and powerful and, I should add, well-resourced nation. Americans can take care of their own responsibilities on their side of the border, and we should let them. New Democrats take the personal information and privacy concerns of Canadians very seriously. We only wish that the governing party of this country did so. The Liberals must not ignore recommendations of a wide variety of experts and the very real concerns of Canadians. Acting on security concerns and ensuring a strong and effective Canada–U.S. border must not infringe on the preservation of Canadians' rights and freedoms. Information gathered by the CBSA should not be shared with agencies outside of Canada unless under extenuating circumstances. In such circumstances where information must be shared, existing mechanisms are already in place between Canadian law enforcement agencies and their counterparts in other countries.

As I have mentioned, as a local cross-border community, we see issues in the local news every night regarding such sharing of information. In light of the Trump administration's recent troubling actions, such as issuing discriminatory immigration executive orders and suspending the privacy rights of non-Americans, this initiative more than ever threatens the basic rights of Canadian travellers.

New Democrats understand the importance of maintaining a fluid land border crossing with the United States, our number one trading partner. Without providing additional security for Canadians, this bill could mean longer delays at the borders.

Another point of concern in this bill is its potential to penalize business people who travel regularly across borders. Those who may spend a reasonable period of time outside of Canada could potentially be snagged in various legal issues, limiting benefits to them.

As this bill would amend the Customs Act, I would like to make due note on some of the matters that affect goods crossing the border. In subsection 95(1), Bill C-21 would change practices on the reporting of goods travelling across the border so that all exported goods would be reported at any time without a specific need to prescribe such reporting. Goods already on conveyance leave and then re-enter Canadian jurisdiction while proceeding directly from one location within Canada to another location within Canada. That means an officer could order the goods covered by exemptions to be subjected to reporting.

This bill also sets out the reasons for the detention of imported and exported goods that have been reported under section 95, as well as the ability for the minister to direct any detained goods imported or exported under section 95 to be sold upon 30 days' written notice. It is important for us to take heed here.

The new section 94 has already been mentioned. That section 94 of the Customs Act would create an obligation on persons leaving Canada to potentially answer questions by the CBSA officer:

Every person who is leaving Canada shall, if requested to do so by an officer, present themselves to an officer and answer truthfully any questions asked by an officer in the performance of their duties under this or any other Act of Parliament.

This new requirement is likely to be fraught with legal peril. It would seemingly provide the CBSA with the ability to make a determination as to whether an individual is telling the truth. This may mean continuing questioning that could be construed as relevant or irrelevant, also known as a fishing expedition.

A determination of something other than the truth could ensnare the traveller with potential offences under the Customs Act. For example, CBSA officers may assume that individuals have provided false answers, even when responses are the result of simple mistakes. While we can all expect persons to provide truthful answers to our agents, the fact of the matter is that the CBSA would be able to take the position that a person has provided false answers and pursue the individual for committing an offence under the Customs Act. The potential for a Canadian citizen to get caught up in legal proceedings on the basis of an honest mistake increases dramatically.

In the case of extenuating circumstances where such information needs to be shared, for example in a criminal case, as I have already mentioned, the relevant police agencies such as the RCMP and CSIS, as well as law enforcement agencies locally, are already in contact with their international counterparts. In these cases, existing legislation and practices are already applicable.

Canadians are wary of their personal information being shared among government agencies and Canada's foreign partners because of previous acts passed, such as the Harper government's bill, Bill C-51. The current government's plans to collect and share even more personal information without proper independent oversight of our national security agency is of great concern to New Democrats. The authorities given to the CBSA under subsection 92(1) are not mandatory. The CBSA would be given discretionary authority in that it may collect this information if it wishes to do so. This would create the very serious risk of racial and/or religious profiling, when the CBSA decides whether information on a traveller leaving Canada would be collected and shared. With racial profiling already on the increase in the United States, with everyone from rock bands and celebrities being turned away at its border, this is one fire that we in Canada have no business stoking.

It is the responsibility of the government to protect public safety and defend civil liberties—

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Speaker, I appreciate the member's words about her late colleague. Certainly he will be missed by all of us. On that we can certainly agree.

On a lighter note, and with the member being from Hamilton, I would like to thank her city for the warm welcome we received there this weekend when the NDP caucus was in town.

On a more serious note, and to my colleague's question, as I said in my remarks, the fact is that this bill does not exist in a vacuum. It is part of a larger agreement between the Canadian government and the U.S. government to start sharing more information. It is only a first step in a larger program that is going to be rolled out over the next few years.

More specifically, proposed subsection 93(1) of the bill, “Information given to the Agency”, states:

(a) in relation to the conveyance or its travel route, the last place inside Canada from which it departed, regardless of whether the persons boarded the conveyance at that place, the date and time of that departure and any prescribed information

It goes on to talk about “the type of travel document that identifies the person,” and “the name of the country or organization that issued the travel document”.

Let us think about things like that. Say we have a Canadian citizen who is a dual citizen. This is a hypothetical example. Hypotheses are never very safe in politics, but for the sake of debate, let us use one. It is someone from a country that is a target of Mr. Trump's travel ban who uses his or her passport from that country to travel. Now we are sharing information with the U.S., telling it where that document is from and things like that. We are going down that rabbit hole, down that slippery slope. With all this profiling we are seeing based on religious beliefs or country of origin, that is where we start opening Pandora's box.

I have said a few times in my remarks that if we want to go down this path with these agreements with other countries, all the mechanisms that require the accountability of these agencies have to catch up, and they have not, whether it was Bill C-51 or the bills tabled by the government. We are not going in the right direction at all with regard to protecting Canadians' rights and privacy.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Speaker, first, I would like to join the minister in expressing my condolences to the family of our esteemed colleague Arnold Chan. His death was a great loss to everyone in the House, regardless of their party. We stand in solidarity with the Liberal caucus and Mr. Chan's constituents, family, and friends at this difficult time.

We are here today to talk about Bill C-21, which the government introduced in June 2016. The government is very enthusiastic about this bill. It is now September, and we are finally talking about it, so we can see how enthusiastic the government is about this bill. Perhaps the purpose of the bill is to pander to the Americans during the NAFTA negotiations. Who knows.

It is important to understand the context here. The minister, in answer to my question, and the member for Laurentides—Labelle in his comments talked about the bill as though it was a piece of stand-alone legislation, when in actual fact it is part of an information-sharing agreement between the Canadian and American governments. We can look at the measures set out in the bill, but they are part of a broader agreement and broader operational practices that are beginning to be implemented for our services at the border.

Things are very different now, and if we take a big-picture view of border issues, Canadians are clearly concerned. The same issues come up over and over. Take cellphones, for example. There is a glaring lack of protection when it comes to cellphone searches and what we call the briefcase law. People surrender a certain degree of privacy at the border. That interpretation of the law is fine if we are talking about someone seeing our unmentionables in a suitcase, but a cellphone that contains vast amounts of information about an individual is something else entirely. That is just one of the concerns we have about the border.

Things have changed now that Donald Trump is in office. In recent months, there has been discrimination at the border. Everyone knows that. The minister says that, statistically, fewer Canadians are being turned away at the border than in previous years. That is not an acceptable answer when people are being subjected to degrading treatment by U.S. border officers who ask them questions about their religious beliefs, their country of origin, and the colour of their skin.

This context is extremely important for understanding where our concerns for this bill are coming from. The minister tells us not to worry, that it is basic information that will be shared, information that is found on page 2 of one's passport. In reality, subclause 92(1) of the bill states that:

the Agency may collect, from a prescribed source, in the prescribed circumstances, within the prescribed time and in the prescribed manner...

It goes on to describe what the Agency is authorized to do. The key phrase I want to draw to the attention of the House is “the Agency may”. It is left to the discretion of border services whether to keep the information or not. At a place like customs, where discrimination is on the rise because people are judged by their destination and their origins, this is quite problematic. This could lead to increased profiling. God knows that there is too much of that already at the border.

Let me go back to the agreement that led to this bill.

The entry/exit program is only just beginning and will grow. Despite the enthusiasm that Liberals and Conservatives might have for it, we are going down a very slippery slope here. Before we continue, someone needs to put on the brakes because what we are seeing here is further integration at the border. That might seem great if all that we are considering is efficiencies, but we want to consider people's rights at the border, but that is lacking in the conversations that are happening.

Where does it end? When we talk about the context that I described with regard to cellphones and the lack of legislation as to what people's rights are when they are asked to unlock their cellphones and provide that information, and when it comes to the profiling that is happening at the border, that also applies to what new tools we have brought into place. The current U.S. President has floated the idea of using biometrics at the border. Will that end up becoming part of this kind of entry/exit agreement on top of the biographical information that would be provided? We do not have answers to these questions.

The fact of the matter is that any information that is being collected and shared will lead us down a path that we have seen before, because, quite frankly, as I said in my question to the minister, some of the most egregious human rights violations that Canada has been a part of, even if by proxy, have happened because of the sharing of information. That is something we are doing more and more in a post-Bill C-51 world, which, by the way, was a bill that the Liberals supported. That is the reality that we have to take into account when we consider increasing the amount of information we are sharing. It is not only biographical information, but also about where people are going to and coming from. While that might seem fine for someone who is not being profiled at the border, there are certainly many law-abiding Canadians who know what the experience is like, who because of where they are going to or where they are originally from; because they might be dual citizens and because of the country from where other citizenship is from; because of the colour of their skin and their religious beliefs, suddenly that basic biographical information being collected and shared with the U.S. government takes on a whole different context despite the fact they are law-abiding Canadians. That is very troubling, and even more so when I hear the minister talk about the fight against radicalization.

Certainly it goes without saying that we all agree that radicalization is an issue that needs to be tackled. Here, I would add that we are still waiting to hear more about what the government is going to do with its grassroots approach to taking on the fight against radicalization. We have not heard much about that in a little while, but that is a sidebar.

The reality is that when I hear things like that and the Conservative member who just spoke, and this bogeyman that is raised of how we are going to go after terrorism, there is a code there and we know what that leads to at the border and the treatment that people go through afterward. That is not something we want to see happen. Sure, we can have faith in our CBSA officers, the men and women who do extraordinary work despite limited resources because of successive Liberal and Conservative governments, but we are also looking at what the U.S. is going to do with that information. That is where the danger lies.

President Trump has signed an executive order explicitly stating that persons who are not U.S. citizens are now excluded from the protections offered by United States privacy legislation.

That is extremely dangerous, considering that the Canadian government is rushing to partner with the U.S. government to increase the amount of information it shares with the Americans.

Given that the President of the United States says he may consider torture acceptable and given that Canada has a ministerial directive in place allowing for information to be shared with countries that engage in torture, we are facing a big problem. I am not saying that this is exactly what the bill says, but the upshot of this bill is that we will be sharing more and more information.

It is a very slippery slope, since we keep sharing more and more information with other countries, including the United States. Even though the U.S. is an ally, the statements coming from the current administration are cause for concern and make the idea of sharing information about public safety and national security extremely troubling.

In a post-C-51 world, the accountability procedures are wholly inadequate. Let us look at the facts. An article published by the Toronto Star in August said the following:

CBSA has quietly started receiving and sharing some information with the U.S. government.

That means some information sharing was already allowed even without this bill being passed. The bill will just settle things for good.

The risk is that this may be done more covertly, without proactive transparency. At the end of the article, it says that Canada Border Services Agency plans to update the privacy assessment once the bill comes into force.

It is far from reassuring that we are talking about doing another privacy impact assessment after the bill is adopted. In that spirit, the role we have as parliamentarians is to protect Canadian safety, but also their rights, and their right to privacy more specifically. As far as this bill is concerned, we should look at how much is left up to regulation in the bill. For example, under “Regulations”, the bill states:

The Governor in Council may make regulations for the purposes of this section, including regulations

(a) prescribing the information that must be given under paragraph (1)(a);

(b) respecting the conveyances in relation to which information must be given under subsection (1);

(c) prescribing the persons or classes of persons who must give the information under subsection (1);

(d) respecting the circumstances in which the information must be given under subsection (1); and

(e) respecting the time within which and the manner in which the information must be given under subsection (1).

Those are all things that the Governor in Council can do through regulations. That essentially means, for the people listening at home, that those are things that the minister can decide to do all on his own, without a proper vote in the House of Commons on a piece of legislation. That is extremely troubling. If we go back to the debate on Bill C-23, which is the sister legislation in the context of this more integrated border with the U.S., in committee, I asked public safety officials which regulations would be changed, as that bill also opened the door to all of the regulatory changes that could potentially change the scope of the bill. That certainly concerned New Democrats. I will give the Liberals credit. They got back to us and provided a list of regulations that may change, but the list was not exhaustive.

As parliamentarians voting on a bill and trying to protect Canadians' rights in the context of sharing more of their information with the American government, especially under the current circumstances or regime, if I can use that term, it is extremely troubling that there is so much latitude allowed for regulatory changes. We certainly understand that there is a place for regulatory changes in the way that our government functions, but when it comes time to prescribe what information is shared, who is sharing it, and how they are sharing it, which is the core of the issue with this bill, that cannot be left out of the accountability process, which obviously includes debate in the House and study at committee.

When I was in Washington with the Standing Committee on Public Safety and National Security, I learned about some new tools, such as digital fingerprinting and facial recognition, that the U.S. may begin using at its border. Those things are still in development, but they are getting to the point that the U.S. government will be looking to deploy them.

The minister is trying to reassure us by saying that he is in constant contact with his American counterpart, but people at Homeland Security envision using exactly those kinds of tools in the context of this information sharing agreement. We could very well see a higher level of integration. In the statement on greater integration of border operations that came out of the meeting between the Prime Minister and President Trump in Washington, they talked about the possibility of our border officials hosting American border officials.

Forget about all of the problems that co-locating two agencies from two different countries could cause, if only in terms of collective agreements and working conditions. Let us just talk about training. The minister took the time to point out that officials would be trained to protect Canadians' privacy and would always act in accordance with the law. I am not questioning the work that is going to be done, but when we debated Bill C-23, which would allow American officials on Canadian soil, we asked Public Safety and Emergency Preparedness officials what the plan was for delivering that training while ensuring respect for the Canadian Charter of Rights and Freedoms, privacy laws, and even Bill C-23 itself, and we were not remotely satisfied with the answers.

The minister can be as reassuring as he wants, but it takes more than that. We need something tangible that truly outlines the process that will be put in place for protecting people's privacy. Even if the process is clearly spelled out to us, in an agreement like this with a bill like this, given the way in which Canadians' information will be shared with the U.S. government the minister must admit that the information will not enjoy the same protection in American hands, even if we have the best men and women working as Canadian border officers and the best legislation in place and if we are making every effort to protect people's privacy.

The minister can reassure us all he wants, but, as he so often says, the Americans can do what they want. That is reason alone to not only oppose the bill, but, as I said, to also rethink the agreement.

As I have said time and again, we are seeing a troubling tendency with the new information related to the public safety file globally, whether it is the Justice Noël decision related to illegal collection of metadata by CSIS; the Privacy Commissioner reporting last week that the RCMP has illegally obtained information from cellular phones six times in the last year; racial profiling at the Canada-U.S. border; people being asked to unlock their cell phones and provide social media passwords at the border, without clear legislation in that sense; or whether it is the fact that two years in we still have not seen any changes to Bill C-51. We finally tabled a bill in the dying days of the last sitting of the House, which does not go nearly far enough.

It is a troubling tendency we are seeing that is undermining the confidence and trust that Canadians have in their national security agencies and in the approach that successive Conservative/Liberal governments have had. There is a lack of understanding that rights and security are not a zero-sum game, and that the word “balance” implies that there is sacrificing of part of one or the other. We need to do both. Unfortunately, that is not the report card that the government can have.

We look at a bill like this, at these kinds of agreements more broadly, as we decide to share more and more information with a U.S. government that is being led by a president who has opened the door to the use of torture, and has removed privacy protections on information, not only for his own citizens but even more importantly for non-Americans. For Canadians, in that specific context the government cannot ignore it. Whether it is trying to fast-track this bill that was tabled in the House in June 2016, maybe to make nice for NAFTA negotiations, the fact is, it is about time that the government started to hit the brakes on this willy-nilly sharing of information.

I want to end on one piece. If the government is so proud of this agreement, if it really thinks it is doing the right thing, I have one question to ask. Unfortunately, I will not get to ask it, so I will ask it rhetorically. Why is it that on the first day back in the House of Commons, after a great summer of work that we all spent in our constituencies, that we are hardly going to hear any Liberal speakers? The minister has spoken, and there will maybe be a handful more speakers. However, it is mostly New Democrats and Conservatives who will be carrying the debate.

Maybe my Conservative friends can tell me what is so great about this bill, because, sadly, I do not think I am going to hear about it from the Liberals. They have certainly not made the case for it. The “just trust me” approach by the minister is not good enough when it comes to protecting Canadians' rights and privacy.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Speaker, during the Conservative government's last term in office, 1,200 border services jobs were eliminated. What is more, from 2013 to 2015, border services received incomplete information regarding passengers on over 3,000 flights. We will come back to those cuts and the impact that they have had on national security, given the Conservatives' hypocrisy on this issue.

I want to talk about Bill C-21, which is now before us. Obviously, the Conservatives' track record on privacy leaves much to be desired, particularly considering the passage of Bill C-51 and all of the resulting privacy breaches that occurred as a result of information sharing.

I would like to know how my colleague can support an initiative that will make it possible to share more information with the United States government, when the current President has signed an order under which American privacy laws no longer apply to non-U.S. citizens. It will be difficult to move forward with this bill given Canadians' current lack of confidence in the information-sharing system established by the Conservative government and the fact that the proper safeguards are not in place.

Public Safety

[Ralph Goodale, Liberal, Minister of Public Safety and Emergency Preparedness]

Mr. Speaker, in the election we laid out a very detailed program for how we would deal with Bill C-51, and today we have implemented exactly that. It is contained in Bill C-59, before the House, which is in addition to the committee of parliamentarians, which is in addition to the funding for counter-radicalization, which is in addition to the most extensive consultations in Canadian history. We have listened carefully to Canadians and we have implemented their advice.

Changes to the Standing Orders

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

Mr. Speaker, I have two brief questions for the government House leader.

First, Bill C-49 is a wide-ranging transportation modernization act, so called. Bill C-51 is a very wide-ranging Criminal Code change. I wonder if the government House leader thinks either, or both, of these constitutes improper uses of omnibus legislation.

Second, I want to ask about the powers given to parliamentary secretaries because now, the way the Standing Order change is set up, a committee could theoretically bar members of Parliament who are not members of the committee from attending in camera meetings. That would mean they would have additional members of the government who are parliamentary secretaries who are able to remain in the room, but they would have other members of Parliament who might be interested in the discussion who cannot be in the room. Does the government House leader see a problem with that? Would the government House leader agree that any member of Parliament who wants to listen in to an in camera discussion if he or she is an elected member of Parliament, regardless of whether the member is a parliamentary secretary, should be able to do so?

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.

Bill C-49—Time Allocation Motion

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

Mr. Speaker, we are very proud of the hon. minister's service in Parliament and his service in space, but it is time for him to come back down to Earth. He was deriding the opposition for not bringing substantive debate to this place. The government, in almost two years, has passed only 19 bills. That is it. It has had over 30 time allocation motions limiting debate on a very small record.

In the last few weeks, the Liberals are limiting time on a substantive bill, but they put forward motions on Paris and had a speech by the Minister of Foreign Affairs that really did not amount to anything. They also have Bill C-51 and Bill C-39, which are not substantive legislation either.

I agree with the minister that there are some serious issues addressed in the bill. He is limiting debate on the serious issues affecting Canadians, affecting rail safety, and affecting our transportation system, while having nothing before Parliament to justify limiting debate in the House. I would like to ask the member why they have only passed a small number of bills, and then when bills have an important element, like this one, they are not allowing debate in the chamber.

Business of the House

[Bardish Chagger, Liberal, Waterloo, ON]

Mr. Speaker, tomorrow the House will debate Bill C-49, on transportation modernization, at second reading.

On Monday we will debate our changes to the Standing Orders. Following that debate, we will resume second reading debate on Bill C-51.

Tuesday the House will debate Bill S-3, on Indian registration, at report stage and third reading.

Following that debate, we hope to make progress on the following bills: Bill S-2, the bill respecting motor vehicle recalls, at second reading; Bill C-17, respecting the environmental assessment process in Yukon, at second reading; Bill C-25, on encouraging gender parity on the boards of federally regulated organizations; Bill C-36, the bill to give Statistics Canada greater independence; Bill C-48, the bill to impose a moratorium on oil tankers off the B.C. coast; and Bill C-34, the bill to reinstate sensible conditions for public service employment.

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons and Minister of Small Business and Tourism]

Mr. Speaker, this afternoon we will resume second reading debate on Bill C-51, to remove the outdated provisions from the law books.

Tomorrow the House will be—

Public Safety

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Speaker, the only action we have seen from these Liberals on Bill C-51 is when they supported the Conservative bill in the last Parliament. It is not very reassuring when they decide to table legislation in the dying days of a sitting of Parliament. It gets worse. We are also looking at warrantless access to the private information of Canadian Internet users, something the Supreme Court has judged is unconstitutional. When we see the minister's office saying that it is “developing proposals for what legislation could look like”, that is concerning.

Could the minister assure the House that we are not going to be giving police and spy agencies the powers to take Canadians' private Internet information?

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Thank you very much. I'll be sharing my time with Ms. Ludwig.

Thank you, all of you, for the incredible work you're doing. Know that one reason we're doing this study is that we know that many of the women you're working with have been made invisible. Our purpose is to make sure that they become visible and that we are able to find solutions. We know that there is an intersection between violence and economic security and that it becomes a cycle in terms of child care, discrimination, and the judicial system.

One thing that our government announced a few months ago was an additional $90 million in infrastructure funding for building and refurbishing transitional shelters for domestic violence survivors. Just this week we signed a multilateral framework with the provinces on child care, with $7.5 billion to be provided over the next 11 years.

In fact, in addition to Bill C-51 that was just tabled by the government, this committee is going to reduce barriers to the judicial process for women who have faced violence, including by redefining consent. Also, just this week Minister Monsef announced $18 million for a call for proposals—the largest ever call for proposals—for locally based organizations that are finding solutions.

I would like each of you to comment on how that will make an impact and if there are priority areas that we should also be focusing on.

Criminal Code

[Jody Wilson-Raybould, Liberal, Minister of Justice and Attorney General of Canada]

moved for leave to introduce Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act.

Mr. Speaker, I would like to table at this time, in both official languages, a charter statement related to the bill just tabled, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act.

(Motions deemed adopted, bill read the first time and printed)

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Mr. Chair.

Minister, thanks for being here.

I want to quote what the Prime Minister said when we were debating Bill C-51:

An oversight body looks on a continual basis at what is taking place inside an intelligence service and has the mandate to evaluate and guide current actions in “real time.” That is crucial and must be amended, if we are giving CSIS the new powers proposed in Bill C-51.

That's not necessarily what this committee is doing, but I want to go back to Mr. Clement's point about the information that's available, because, Minister Goodale, you quoted Craig Forcese. Professors Atkey, Forcese, and Roach said in The Globe and Mail that they were very concerned about the Prime Minister's ability to redact reports, but also about how much information is shared.

You and Mr. Clement had an exchange over law enforcement investigations, but there is also defence intelligence and special operational information which, as defined by the law, is very broad and leads to a web of instances whereby you basically find yourself in a situation where anything that can even be inferred from the information being given to the committee could be considered off limits to the committee.

Without that information, how can the committee be expected to do its job? That's the first part of the question. Second, if we have a concrete amendment for you to allow that information to be shared, would you accept that?

[Bernice Murray, As an Individual]

I want to say a couple of things.

In terms of the security review, the government is presenting security as a question of balance between rights and security. I just want to make the point that, in terms of a starting point, you will not deal with people's security if you don't guarantee their rights. It's not a question of balance. It's a question of defending the rights of all of us. Also, it's more than just civil rights. It's a question of economic, political, and social rights. I think it's extremely important to start from that point of view. These rights are things that belong to people because, by their being, the fact is that they collectively belong to us and so on. That's the starting point for any kind of consideration.

I have a concern that the green paper and various other documents being used in the consultations divert the whole discussion of security rights into a discussion of violent extremism, and then all the measures become acceptable because that's to combat these things, rather than dealing with the very important question. I think that even this question of the consultations particularly.... I'm not sure that you're wrapping up on December 1 but some of them are. In terms of the fact that you're trying to have a discussion on security and rights in this country on the basis of two months or whatever, and one session in Toronto, it's not going to be that kind of comprehensiveness that's required.

Specifically, I'm here to raise the question of the Anti-terrorism Act, 2015, which everybody refers to as Bill C-51. While I'm saying that these consultations are not serious in the sense of “extensive”, I would say that the discussion and public consultation that took place on Bill C-51—no thanks to the government of the day—was extremely broad and extremely deep. Somebody else has already mentioned it, but there were actions all across the country. There were broad discussions. There were town halls. There were days of action. There were 311,000 signatures on a petition to repeal the bill.

I think it should be brought before you that the question of this bill has been discussed, and the Canadian people have given their verdict on it. That verdict is that they want it repealed.

On the whole question of the Harper government, one of the issues.... I ran as a candidate in the election and did door-to-door work right from January 2015 on. One of the very big concerns of people across the area of the city I was doing work in was Bill C-51, and it was that it should be repealed. There is definitely no mandate that can be alluded to by any party to say that the bill was something they should hold on to. I don't think it's reformable and so on.

I also want to point out that what is now the governing party pointed out that they would repeal the problematic aspects of the bill. I would just like to point out that they're all problematic. The bill itself should be repealed.