An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts


Scott Brison  Liberal


Second reading (Senate), as of March 20, 2018

Subscribe to a feed (what's a feed?) of speeches and votes in the House related to Bill C-58.


This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Access to Information Act to, among other things,

(a) authorize the head of a government institution, with the approval of the Information Commissioner, to decline to act on a request for access to a record for various reasons;

(b) authorize the Information Commissioner to refuse to investigate or cease to investigate a complaint that is, in the Commissioner’s opinion, trivial, frivolous or vexatious or made in bad faith;

(c) clarify the powers of the Information Commissioner and the Privacy Commissioner to examine documents containing information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege in the course of their investigations and clarify that the disclosure by the head of a government institution to either of those Commissioners of such documents does not constitute a waiver of those privileges or that professional secrecy;

(d) authorize the Information Commissioner to make orders for the release of records or with respect to other matters relating to requesting or obtaining records and to publish any reports that he or she makes, including those that contain any orders he or she makes, and give parties the right to apply to the Federal Court for a review of the matter;

(e) create a new Part providing for the proactive publication of information or materials related to the Senate, the House of Commons, parliamentary entities, ministers’ offices, government institutions and institutions that support superior courts;

(f) require the designated Minister to undertake a review of the Act within one year after the day on which this enactment receives royal assent and every five years afterward;

(g) authorize government institutions to provide to other government institutions services related to requests for access to records; and

(h) expand the Governor in Council’s power to amend Schedule I to the Act and to retroactively validate amendments to that schedule.

It amends the Privacy Act to, among other things,

(a) create a new exception to the definition of “personal information” with respect to certain information regarding an individual who is a ministerial adviser or a member of a ministerial staff;

(b) authorize government institutions to provide to other government institutions services related to requests for personal information; and

(c) expand the Governor in Council’s power to amend the schedule to the Act and to retroactively validate amendments to that schedule.

It also makes consequential amendments to the Canada Evidence Act and the Personal Information Protection and Electronic Documents Act.


All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.


Dec. 6, 2017 Passed 3rd reading and adoption of Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts
Dec. 5, 2017 Passed Time allocation for Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts
Nov. 27, 2017 Passed Concurrence at report stage of Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts
Sept. 27, 2017 Passed 2nd reading of Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts

Access to InformationAdjournment Proceedings

March 1st, 2018 / 6:55 p.m.
See context


Kim Rudd Liberal Northumberland—Peterborough South, ON

Mr. Speaker, as I said, we are proud to be the first government in over 30 years to make substantial improvements to the Access to Information Act. We understand that more must be done, which is why Bill C-58 includes a mandatory review of the act every five years, the first review beginning no later than one year after the bill receives royal assent.

Let us be clear, Bill C-58, for the first time in 34 years, gives the Information Commissioner order-making powers. That is an advancement. For the first time ever, the act applies to the minister's offices and to the PMO. That is an advancement. For the first time ever, the act applies to 240 federal entities from the courts to the ports. That is also an advancement.

Access to InformationAdjournment Proceedings

March 1st, 2018 / 6:50 p.m.
See context

Northumberland—Peterborough South Ontario


Kim Rudd LiberalParliamentary Secretary to the Minister of Natural Resources

Mr. Speaker, I would like to thank my hon. colleague for this opportunity to speak to Bill C-58.

Bill C-58 is guided by the principle that government information belongs to the people it serves. It advances the original intent of the act in a way that reflects today's technologies, policies, and legislation. It does this by kicking off a progressive, ongoing renewal of the AT system, one that will protect Canadians' right of access to government information well into the future. It does this by adding a new part of the act relating to proactive disclosure, one that puts into practice the idea of “open by default”.

The proactive disclosure system will apply to more than 240 departments, agencies, and crown corporations, including the Prime Minister's Office and ministers' offices, senators and members of Parliament, institutions that support Parliament, administrative institutions that support the courts, and over 1,100 judges of the superior courts.

We will also be putting into law the proactive publication of information that is known to be of high interest to Canadians, information that provides greater transparency and accountability for the use of public funds. These include travel and hospitality expenses for ministers and their staff, and senior officials across government. I was happy to hear that the member was talking about the concerns her constituency has. I am sure they will be happy to know that finally the NDP joined our government in the proactive disclosure of expenses. It took a while but we are happy they are on board with us.

Contracts over $10,000, and all contracts of MPs and senators will also be included, as well as all grants and contributions over $25,000; mandate letters and revised mandate letters; briefing packages for new ministers and deputy ministers; lists of briefing notes for the minister or deputy minister; and the briefing binders prepared for question period and parliamentary committee appearances. Departments will also regularly review the information being requested under the act to help us understand and increase the kinds of information that could be proactively disclosed.

We will also strengthen the request-based side of the system by developing a guide to provide requesters with clear explanations for exemptions and exclusions, investing in tools to make processing information requests more efficient, allowing federal institutions with the same minister to share request processing services for greater efficiency, and increasing government training to get common and consistent interpretation and application of the ATI rules.

We are also following the guidance of the Standing Committee on Government Operations and Estimates. We are moving to help government institutions weed out bad faith requests that put a significant strain on the system. By tying up government resources, such vexatious requests can interfere with an institution's ability to do its other work and to respond to other requests. We need to get this right and recognize that while this new tool is needed to significantly improve the system, everything from sound policy to training to proper oversight must be done to prevent its abuse.

In addition, the proposed legislation gives the Information Commissioner new powers, including the power to order the release of government records. This is an important advancement that was first recommended by a parliamentary committee studying the Access to Information Act in 1987. 0ur government is acting on it and Bill C-58 will change the commissioner's role from an ombudsperson to an authority with the power to order the release of government records.

After 34 years, Canada's ATI system needs updating—

Access to InformationAdjournment Proceedings

March 1st, 2018 / 6:45 p.m.
See context


Rachel Blaney NDP North Island—Powell River, BC

Mr. Speaker, I am here today to talk about a question I asked last year on Bill C-58.

Just so the citizens of North Island—Powell River, who I am proud to represent, know what we are talking about, I am going to repeat the question. The minister keeps repeating that his government is the first in 30 years to make improvements to access to information. However, the Information Commissioner was very clear when she said that the Liberals' Bill C-58 is regressive and that the status quo would be better than what they are proposing, meaning that Stephen Harper's government was more open and accountable than the current government. Canadians were promised more accountability and transparency. Will the government work with us to help it actually keep that election promise?

This is a very important question. The constituents I talked to across my riding spoke passionately about their concerns around Bill C-51 from the last government, and about wanting to make sure things were transparent. The President of the Treasury Board said that we are reaching a new bar, and this is absolutely not the truth. It is important we remember who the expert is in this, and that is the Information Commissioner, who said, “I would much prefer to keep the status quo.”

This is incredibly important to my constituents. This is about the transparency of government. It is about making sure information is accessible. We know so many issues have come to light because Canadians, journalists, and NGOs use access to information to ask important questions that deserve answers. I do not understand why the government created a bill that really just blocks this.

Let us look at the facts. Residential school survivors fighting the government for decades for acknowledgement of the terrible and horrific abuse they faced, the reality that type 1 diabetes in Canada is now being rejected, the under-reporting of sexual assaults in Canada, Afghan detainees and those horrendous stories we heard, these were all discovered by the access to information that this bill totally erases. That is horrendous in this day and age.

One of the most concerning things for me is the fact that the bill talks about people who may be vexatious. What may appear to the government as vexatious may be of the utmost interest for Canadians. Who gets to decide what that is? How do Canadians appeal the decision by a department? This is really important. I know the people of North Island—Powell River are very concerned. They want to know we have information and have access to it, and that journalists have access to it, so that we can learn what is happening in this country. This completely bars the way. We really need to take a moment to reflect on that.

At this point, the bill has passed through the House, but this is leading to something that will be an ever-growing concern. When the government talks about increased transparency and when it says that the PM's office can be talked to now and people can ask for information, that is simply not true. When the Information Commissioner is saying that what we have now, which was in much need of change, is better than what is being proposed, all Canadians need to stand up and take notice of what is happening.

That is why I am here today, and I think we all must focus on this. Whoever is in government has tremendous power. It must be held in check. That is what democracy is all about.

February 27th, 2018 / 9:45 a.m.
See context


Charlie Angus NDP Timmins—James Bay, ON

Thank you, Mr. Chair.

I want to go back to the issue raised by your predecessor, the concern about the ability to deny access to information based on the vagueness of requests. That has a particular implication for indigenous communities doing research for claims. We just had a case where a document that was nearly 100 years old, relating to the treatment of Indian children in a tuberculosis hospital, was denied. My concern is that the crown is always the defendant in dealing with any of these hearings for indigenous justice. The farther back you go in Indian Affairs, the more of a black hole it is, which is why many of the documents are more vague.

How do we ensure that indigenous justice is maintained in the application of Bill C-58, if people are researching historic documents where they might not know the exact name of the document and they're having to do fishing expeditions because they're not sure where the evidence is?

February 27th, 2018 / 9:40 a.m.
See context

Nominee for the position of Information Commissioner, As an Individual

Caroline Maynard

I agree that any limitations that are added to Bill C-58 or in the act are of concern—anything that could limit or delay access. It's something that I will definitely look into, because now that section 6 has been amended to add that the request cannot be denied or declined without the commissioner's approval, I will be very interested to look at how many cases we are looking into and how often section 6 has been raised as an issue.

February 27th, 2018 / 9:30 a.m.
See context

Nominee for the position of Information Commissioner, As an Individual

Caroline Maynard

I don't know how we would increase accessibility through technology within the institutions. That is something I'm going to have to explore. One thing I am concerned about right now—and I don't have answers there either—is the relationship between the Office of the Information Commissioner and the Privacy Commissioner.

As you say, there are a lot of access to information requests that touch on privacy. Currently, Bill C-58 is adding the intervention of the Privacy Commissioner into some of those requests that the Information Commissioner is going to be investigating. While I'm concerned about the delay that it could add to the process, I like the idea of having the two commissions working together.

February 27th, 2018 / 9:20 a.m.
See context


Nathaniel Erskine-Smith Liberal Beaches—East York, ON

The last question I have for you about Bill C-58 is the order-making power. You are a lawyer, and so one is the difference between a reasonableness review versus a de novo process gives you more power than the other. Do you have any view as to what would be most appropriate?

February 27th, 2018 / 9:20 a.m.
See context

Nominee for the position of Information Commissioner, As an Individual

Caroline Maynard

I know it's at second reading in the Senate. I don't know how long it's going to be there until it's enacted. I hope, if I am invited, and I have time to better understand all the issues, I'll be able to present myself. One of the concerns I have is that this authority to issue and publish orders under the current Bill C-58 will only come into effect a year after the act is approved. I don't know if there's a policy reason for the delay for that particular amendment to come into effect a year after everything else is in effect. I'd like to raise it because it's a new tool and I think it should be used—

February 27th, 2018 / 9:20 a.m.
See context


Nathaniel Erskine-Smith Liberal Beaches—East York, ON

Thanks very much.

You're potentially coming into the position at an interesting time because, of course, Bill C-58 has not yet passed the Senate and the current Information Commissioner has raised a list of concerns. I wonder how you foresee involving yourself in this debate if you are appointed.

February 27th, 2018 / 9:05 a.m.
See context

Nominee for the position of Information Commissioner, As an Individual

Caroline Maynard

I definitely read with interest all the reports and a lot of information that is available on the website. I don't think it would be appropriate for me to compare and contrast myself with Madame Legault's opinion. I can tell you, from my own perspective, that when I read the new Bill C-58, any new amendment that limits or potentially would delay access is a concern, and any new amendment that increases accountability and increases access is progress, in my view. Bill C-58 contains both. At the end of the day, I really think that no matter how great legislation could be, for the people who are applying the act and who are trying to access the information, if the culture doesn't change to give them access, we're not reaching the goal of having access and promoting access and transparency and democracy. That's why I think there's progress in Bill C-58. I'm happy that the act will be open for review in a year, so if I do become the next commissioner, I'll have way more information and I will be a lot more confident in reassessing those concerns that have been raised by Madame Legault and a lot of stakeholders, and I will be happy to report back to Parliament on what my personal views are and where we are and whether or not we have achieved progress.

February 27th, 2018 / 9:05 a.m.
See context


Peter Kent Conservative Thornhill, ON

Thank you.

Well, as this process was under way, you must have been aware of your predecessor's unprecedented report, titled “Failing to Strike the Right Balance for Transparency”. Essentially Commissioner Legault characterized Bill C-58, which is now before the Senate—it passed through the House against the wishes of the opposition—in this way, making three key points:

The government promised the bill would ensure the Act applies to the Prime Minister’s and Ministers’ Offices appropriately. It does not. The government promised the bill would apply appropriately to administrative institutions that support Parliament and the courts. It does not. The government promised the bill would empower the Information Commissioner to order the release of government information. It does not.

Now, there were some changes before the bill was passed, but just last week the departing commissioner did an interview in which essentially she reiterated her original statement, saying that rather than advancing access to information rights, Bill C-58 instead would result in a “regression of existing rights”.

What are your thoughts on this as you are about to—presuming this meeting goes well—assume the office?

February 27th, 2018 / 8:50 a.m.
See context

Caroline Maynard Nominee for the position of Information Commissioner, As an Individual

Mr. Chair, members of the committee, I am honoured to appear before you today and I feel very privileged to have my application for Canada's Information Commissioner considered.

I am particularly honoured to be nominated, given the importance to Canadians of the role of the Information Commissioner in protecting and promoting access to information, a right that has been recognized as a core principle in a functioning democracy.

The challenges and the changes ahead cannot be underestimated. However, as a jurist with 20 years of experience in oversight agencies, I cannot hide my enthusiasm in being considered for the position of the commissioner responsible to oversee the implementation of the proposed new legislation, Bill C-58.

Building on the Office of the Information Commissioner's 34 years of knowledge and experience, I would make full use of the current and proposed powers to provide a fair and efficient independent review of government decisions relating to access requests to increase both transparency and accountability.

Before I discuss in greater detail how I envision fulfilling my duties as an agent of Parliament, let me introduce myself.

First all, I was born and raised in Saint-Hyacinthe, in the province of Quebec. I graduated in civil law from the Université de Sherbrooke. In my final year, I met my husband, who, at the time, was also studying law, but in Alberta. In 1993, we moved to the Outaouais. We have been married now for 20 years. I am also the mother of three boys, between 13 and 18. When I am asked how I spend my time after work, I say that I am a licenced chauffeur, a 24-hour convenience store operator, and a hockey mom.

After a brief period in the private sector, I joined the federal government. My public service career has been spent largely in agencies responsible for providing an independent review of grievances submitted by members of the RCMP and the Canadian Armed Forces. Whether I was acting as legal counsel, director general, general counsel, and recently as the chairperson of the military external review committee, I have always been guided by the same values: integrity, excellence, fairness, and timeliness.

My leadership style is based on the same principles. My employees would tell you that I am a very open and reasonable person who recognizes a job well done, and promotes innovation and efficiency.

When I began with the external review committee in 2006, it was a relatively new tribunal. The committee is responsible to provide an independent review of military grievances referred by the Canadian Armed Forces. It issues findings and recommendations to the Chief of the Defence Staff, who is the final authority of that grievance process.

As a civilian oversight of military grievances, the committee had to work very hard to build its credibility. Collectively with management, and in consultation with employees, we worked diligently to find ways to improve our internal process. Through teamwork, innovation, and determination, we reduced the average time spent on files from nine months to four months, while increasing the quality of our findings and recommendations.

We showed that a civilian oversight agency could provide significant value added to the administration of military affairs. As a result, I am proud to say that the committee's portfolio has increased from receiving 40% of all grievances at the final authority—mainly mandatory referrals—to now receiving 95% of all grievances, because it includes files that are sent on a discretionary basis.

I have been working in complaint resolution for almost two decades because I know that we are able to change things. I am motivated by the fact that my organization is full of competent officials, who care about what they do, and about the impact they have on Canadians. I have spent my whole career making sure that the rights of those without representation are respected and that the decisions that affect them are justified and reasonable.

Should I become the next Information Commissioner, this is the spirit I would bring to my duties. I see this opportunity as a logical progression in my career in the public service. I am more than ready to report to Parliament on how I would oversee the access to information regime.

That leads me to explain to you my particular interest in the position of Information Commissioner, as well as my vision and what I believe to be the greatest challenges I will have to face in the event that you approve my application.

In Canada, access to information about government decision-making is a well-known and well-established right that is almost constitutional. That statement is supported by the growing number of requests made each year, as reported by the Treasury Board Secretariat. The office of the commissioner's website also tells me that the number of complaints increases each year. In addition, given the new amendments to the act and the recent launch of the electronic form, it is reasonable to assume that the number of complaints will continue to grow.

Should I be appointed, I can assure you that my first commitment to Parliament and to all Canadians will be to tackle the current backlog of complaints. From the report submitted by the current commissioner, I understand this has been one of her main concerns as well, and obtaining additional resources is listed as part of our office's priorities. In this regard, I know that the president of Treasury Board has committed to providing further funding for the implementation of Bill C-58, and this is very encouraging. Also, with the lessons I have learned in streamlining the committee's grievance review process, I'm confident I would bring a critical eye to the commission's internal processes that could help optimize efficiencies.

Addressing backlog issues is a necessity, as I truly believe that Canadians are entitled to have their complaints dealt with in a timely manner. Access delayed is access denied. That being said, success relies on a change of culture, a change of culture towards access rights within the federal institutions subject to the act. I can say from my own experience that, even though the access to information legislation was enacted 34 years ago, there appears to still be an impulse for exemptions and exclusions rather than transparency.

We need to give meaning to the concept of open government. It has to become part of the fellow institutions' day-to-day practices and approaches. It is only when the access right becomes a foundational right and principle, like the respect of our official languages now ingrained in our society, that Canada will reassert its leadership as an open and transparent government that is a model for all democratic nations.

In consultation with the commission's stakeholders, I believe our efforts must be geared towards the promotion of disclosure and transparency. I'm pleased to see these efforts will be supported by the new wording of the purpose found in Bill C-58, which clearly states that the goal is " enhance the accountability and order to promote an open and democratic society....” This is, in my view, a clear message that there is a commitment to hold federal institutions accountable with respect not only to their decisions, but also their obligations under the act. This expressed intent, in addition to the new powers provided to the commission to issue and publish orders, suggests that accountability and transparency are to be taken very seriously.

Before closing, I must recognize the important work and the undeniable devotion of Commissioner Legault and her employees in championing and promoting access legislation in Canada. The expertise acquired by the office of the commissioner over the last 34 years provides a solid foundation on which I commit myself today to carrying out my mandate, if Parliament sees fit to honour me with the position of the next Information Commissioner.

I also pledge to act with integrity and to the best of my abilities and to serve Canadians and Parliament with the highest degree of independence.

I thank you, Mr. Chair and honourable members, for considering my nomination.

I am now ready to answer your questions.

Opposition Motion—Veterans AffairsBusiness of SupplyGovernment Orders

February 15th, 2018 / 12:55 p.m.
See context


Erin O'Toole Conservative Durham, ON

Mr. Speaker, I joined the Canadian Armed Forces and learned leadership skills in the hon. member's riding at the Royal Military College. I am proud to say on flag day that our flag was based on the RMC flag. The member knows that, but he certainly does not know what happened in the last Parliament.

In less than a year, with Bill C-58, which I referenced in my remarks, we brought in the retirement income security benefit, the critical injury benefit, the family caregiver benefit, and expanded the permanent impairment allowance. When the minister referred to building upon existing programs, those are the existing programs.

Spreading out the lump sum or the disability award for life already happened with a predecessor. It was a living document. We saw that Paul Martin's new veterans charter, which all parliamentarians agreed with, was not working to its intended purpose. The only parliamentarian who spoke on the new veterans charter was Roméo Dallaire, a good friend of mine. The iconic Liberal senator and veteran was the only parliamentarian to speak to the bill. It was rushed through because its focus on wellness was considered by parliamentarians to be better than the old system.

People look longingly at the old system now, but it failed so many people. Let us get it right. Let us build on the programs I started. The minister has put more money into them, but he certainly has not lived up to what the Prime Minister promised.

The member comes from a political family and he is pretty smart. An indication of a broken promise is a press conference a few hours before Christmas. Nothing shows the Liberals' inability to defend their broken promise than trying to hide it on Christmas Eve.

Criminal CodeGovernment Orders

December 11th, 2017 / 12:50 p.m.
See context


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.

The House resumed from December 5 consideration of the motion that Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, be read the third time and passed.