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.

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.

Consideration of Senate Amendments

[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—

[Some hon. members]

Oh, oh!

[The Assistant Deputy Speaker, Carol Hughes]

I just want to remind members that the discussion is between the Speaker and the orator at this point. If anybody else has anything to add, they will be able to do that during questions and comments.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, I am also very pleased that my colleagues on the committee from all parties worked together to be sensitive to religious communities across Canada to retain the provisions that obstructing a clergyperson in conducting a service was retained in the Criminal Code.

While there were many good arguments made that there are general provisions in the Criminal Code that could have dealt with those matters, the fact is that this was a specific provisions that made a difference to people of faith in this country. Whether it was absolutely necessary, because there could have been other provisions, or not, the fact is that people of faith are concerned today. We live in a world where hate crimes are increasing.

We live in a world whether people of faith are exposed to graffiti on their temples, churches, synagogues and mosques, where we are seeing people attacked on the street for wearing faith-based gear, where we see, more and more, reports of those who are of anti-Semitic, anti-Christian and anti-Islamic in our society. People who came to testify told us very strongly that they felt recognized, seeing this provision in the Criminal Code. As such, I think all of us on committee unanimously agreed to leave that provision in the Criminal Code and, in fact, to make it gender neutral in order to make sure that all religions could feel part of that provision.

I applaud, first of all, my friend from Niagara Falls who raised the issue initially, and all of the members of the committee who worked together, very consensually, to make the modifications to the bill, including retaining that provision.

I would be very pleased to entertain any questions my colleagues have on the bill.

[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]

Madam Speaker, I would like to come back to this because I heard my colleague for Durham on this subject last week and I have been reflecting about his questions on charter statements. Personally, as a member of the Standing Committee for Justice and Human Rights, I appreciate seeing the charter statements that my colleague the Minister of Justice has tabled on her bills. Let me explain why.

When I read those charter statements it enables me to understand where the government is saying that the charter is being followed and complied with, where there are potential flaws in that argument, where are the risks, where are the things that our committee should be looking at in the bill because they have voiced either tentative support or concerns and then said that they are addressed in this way or that. I have benefited from the charter statements as an MP and as a member of the committee by better understanding what I should be looking at in my duties when I am reviewing the bill.

The question of how the consultations are happening with indigenous Canadians is better posed to cabinet, but I can explain to my colleagues why I think it is valuable for all of us in Parliament to have charter statements.

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

Madam Speaker, I enjoyed working with my friend the member for Mount Royal in my capacity as vice-chair of the justice committee. I agree with the hon. member's comments with respect to the Senate amendments. He is right that the justice committee looked at amendments introduced by the member for Cowichan—Malahat—Langford. There were witnesses who appeared before the committee and made submissions that the codification of J.A. in section 273 and the expressed inclusion of the word “unconscious” would create uncertainty in the law in those cases that are just short of consciousness or where someone perhaps is significantly intoxicated.

I wonder if the hon. member could comment on those submissions and his position with respect to the inclusion of the word “unconscious”, which does codify J.A. in my opinion.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, in reciprocal language, I want to tell my hon. colleague how much I appreciated working with him as well on the justice committee. He always has an excellent understanding of all of the issues before us and expresses himself very well.

I also was concerned about the same issue. I feel the amendment that the committee made clarified the point that consent needs to be ongoing and expressed. As a result, I think that attenuates the concern that we heard. I want it to be very clear that the law is not that there is some bright line before unconsciousness and that being unconscious is the only threshold for not being able to give consent. There are lines before unconsciousness where people would be unable to consent.

The hon. member is right to raise that as an issue. That was not what this legislation was ever supposed to mean. Hopefully, our amendment at the Standing Committee on Justice and Human Rights helps to clarify that.

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

Madam Speaker, I did value my time with my hon. colleague at the justice committee last year. I was going through the Supreme Court's decision in J.A. It does acknowledge in that decision that the appropriate body to alter the law on consent in relation to sexual assault is Parliament. Thus, the court has acknowledged the role Parliament has.

I think it would be wrong for us to rule out the ability of this body to do what it wants with the Criminal Code. Criminal Code interpretation and its formation is a give-and-take between Parliament and the courts. The courts do respect our role in this.

I just want to read a few quotes from the Senate debate because I found it quite interesting. The senators acknowledged that:

Without Senator Pate's amendment to Bill C-51, we will 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 inclusion of the word “unconscious” risks creating a false threshold for the capacity to consent.

I would like to hear my hon. colleague's comments on that. We had some very interesting testimony at the Standing Committee on Justice and Human Rights, particularly from Professor Janine Benedet, who said on record that any clarification we can give would be beneficial. I see the Senate's amendments as trying to do that and living up to some of the witness testimony that we heard.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, I also want to say that my colleague from Cowichan—Malahat—Langford was also a great addition to the justice committee while he was there. While the member for Victoria is irreplaceable, the member for Cowichan—Malahat—Langford did a great job in almost replacing him. It was a pleasure serving with him.

With respect to what the member is saying, I entirely agree that it is appropriate for Parliament to legislate what consent and capacity are. However, it is inappropriate that none of the witnesses who came before the Standing Committee on Justice and Human Rights had the proposed language by Senator Pate in front of them when they testified before our committee, nor did the people testifying before the Senate's constitutional and legal affairs committee.

An appropriate way for Parliament to legislate is for the government to carefully consult, put forward language, and then have both committees carefully study it, with all witnesses having the benefit of that language in front of them. I am hopeful that my colleague, the Minister of Justice, will do that.

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

Madam Speaker, could my colleague expand on what took place at committee? It is worth noting that a number of amendments were brought forward. My friend made reference to the religious freedom amendment, which is a very important one. Could he provide further comment on the amendments moved at committee?

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, absolutely. As I was mentioning, in our discussions at committee, we wanted to clarify consent. Therefore, rather than using the words the Senate has used, which we believe go far beyond what the J.A. decision codified, we clarified the provisions by saying that consent must be present at the time the sexual activity in question takes place, making it clear that it has to be ongoing consent and not implicit consent from a previous act that applies to the current act.

We wanted to clarify that only a question of law was being removed from the defence not mistakes as to facts. Therefore, we clarified that by saying that “The question of whether no consent is obtained under subsection (3) or (4) or 265(3) is a question of law.”

The committee carefully considered all of those issues, in addition to the issues brought forward by the Senate, and actually rejected the issues brought forward by the Senate.

[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.

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

Madam Speaker, I appreciate the member's comments, but I disagree with the member regarding the government's overall approach to legislation. Since the last election, we have seen a government that understands the importance of having safe communities in all regions of our country. Therefore, the government has developed pieces of legislation that ensure our communities are going to be safer, that there are actions against offenders, and that there is a sense we are moving forward with a comprehensive approach to make changes to the Criminal Code as necessary.

Would my colleague recognize that the many different pieces of legislation when put together and passed in a timely fashion are actually significant changes overall which will be for the betterment of public safety here in Canada?