Bill C-75 (Historical)

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts

This enactment amends the Criminal Code to, among other things,
(a) modernize and clarify interim release provisions to simplify the forms of release that may be imposed on an accused, incorporate a principle of restraint and require that particular attention be given to the circumstances of Aboriginal accused and accused from vulnerable populations when making interim release decisions, and provide more onerous interim release requirements for offences involving violence against an intimate partner;
(b) provide for a judicial referral hearing to deal with administration of justice offences involving a failure to comply with conditions of release or failure to appear as required;
(c) abolish peremptory challenges of jurors, modify the process of challenging a juror for cause so that a judge makes the determination of whether a ground of challenge is true, and allow a judge to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice;
(d) increase the maximum term of imprisonment for repeat offences involving intimate partner violence and provide that abuse of an intimate partner is an aggravating factor on sentencing;
(e) restrict the availability of a preliminary inquiry to offences punishable by imprisonment for a term of 14 years or more and strengthen the justice’s powers to limit the issues explored and witnesses to be heard at the inquiry;
(f) hybridize most indictable offences punishable by a maximum penalty of 10 years or less, increase the default maximum penalty to two years less a day of imprisonment for summary conviction offences and extend the limitation period for summary conviction offences to 12 months;
(g) remove the requirement for judicial endorsement for the execution of certain out-of-province warrants and authorizations, expand judicial case management powers, allow receiving routine police evidence in writing, consolidate provisions relating to the powers of the Attorney General and allow increased use of technology to facilitate remote attendance by any person in a proceeding;
(h) re-enact the victim surcharge regime and provide the court with the discretion to waive a victim surcharge if the court is satisfied that the victim surcharge would cause the offender undue hardship or would be disproportionate to the gravity of the offence or the degree of responsibility of the offender; and
(i) remove passages and repeal provisions that have been ruled unconstitutional by the Supreme Court of Canada, repeal section 159 of the Act and provide that no person shall be convicted of any historical offence of a sexual nature unless the act that constitutes the offence would constitute an offence under the Criminal Code if it were committed on the day on which the charge was laid.
The enactment also amends the Youth Criminal Justice Act in order to reduce delays within the youth criminal justice system and enhance the effectiveness of that system with respect to administration of justice offences. For those purposes, the enactment amends that Act to, among other things,
(a) set out principles intended to encourage the use of extrajudicial measures and judicial reviews as alternatives to the laying of charges for administration of justice offences;
(b) set out requirements for imposing conditions on a young person’s release order or as part of a sentence;
(c) limit the circumstances in which a custodial sentence may be imposed for an administration of justice offence;
(d) remove the requirement for the Attorney General to determine whether to seek an adult sentence in certain circumstances; and
(e) remove the power of a youth justice court to make an order to lift the ban on publication in the case of a young person who receives a youth sentence for a violent offence, as well as the requirement to determine whether to make such an order.
Finally, the enactment amends among other Acts An Act to amend the Criminal Code (exploitation and trafficking in persons) so that certain sections of that Act can come into force on different days and also makes consequential amendments to other Acts.

Bill C-51—Time Allocation Motion

[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.

Criminal Code

[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 also want to say that right now, we have an outstanding bill sitting in the Senate, Bill C-377, put forward by the hon. Rona Ambrose. It is an opportunity for our justices to actually be engaged and trained on sexual assault. The government has not pushed that item whatsoever. Regardless of whether the government has put in more or fewer justices, they are not being trained properly. Bill C-377 has been sitting there for the last year and a half. The government could be doing better, especially in working with Senate colleagues, if it is serious about making sure that people alleged to have committed sexual assaults are actually convicted and go to jail. We need to have that sensitivity and empathetic understanding of what is going on for the victims of this crime.

As for Bill C-75, seeing that it is a hybrid bill, I cannot support what the government has done with regard to reducing sentences and convictions when it comes to those people who have victimized someone through sexual assault.

[Arif Virani, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.]

Mr. Speaker, I appreciate the contributions of the member opposite to this important debate today, particularly on December 6, the 29th anniversary of the Montreal massacre.

My questions for the member opposite are twofold. First, she outlined the important issue of consent in sexual assault and how the statistics demonstrate that it remains an ongoing problem in Canada today. Part of what we are doing is improving education, sensitivity and outreach to all the actors in the judicial system. That includes training for lawyers and judges.

Would the member agree that the record of our government in appointing judges, 56% of whom are women, is a step in the right direction and compares favourably with the record of the previous government, which appointed only 30% women?

Second, she raised Bill C-75 and its relationship to this piece of legislation we are discussing. Bill C-75 includes an important provision to eliminate preliminary inquiries in sexual assault trials so that victims do not have to be revictimized by proceeding through a preliminary inquiry and having to testify again at the actual trial on the merits. Is that a step in the right direction in addressing the trauma sexual assault victims face, which was outlined by the member opposite?

[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, I want to go back to the beginning of this. When this bill was originally brought forward, there was an outcry regarding the measures being taken to minimize the offence of disrupting a service of worship, from which clergy are protected under section 176. We saw it on every social media out there. Twitter, Facebook and all of them were going crazy about the current government coming forward with those measures to repeal section 176. Thousands of people protested that it was wrong, and to the Liberals' credit they appeared to have backed down.

However, my point is that the Liberals backed down on this bill, yes, but then they turned around and put similar wording into Bill C-75, which as we know is now going to the Senate. Therefore, the Liberals hybridized section 176, turning much of it into a summary conviction with a lesser charge.

We live in a time when we recognize religious freedom. That means that as a Christian, I nevertheless expect that in every type of worship service, be it Jewish, Muslim, name the religion, people have the opportunity to worship whom they wish and how they wish. As long as it does not impede anybody else, they have the ability to do that. Lessening the offence of being able to come in and disrupt that service sends the wrong message.

[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, that is a good question. Certainly, there are practical considerations in getting legislation to move through the House. It takes a certain amount of time. With respect to the schedule of this place, it can be a challenge. I appreciate that it has been incorporated into Bill C-75, which has now been passed to the other place. I await its expeditious treatment of that bill.

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

Mr. Speaker, I thank the member for Coquitlam—Port Coquitlam, whom I enjoy serving with on the justice committee. I share his concerns about the Senate amendments. Therefore, I want to ask him a question about what he initially spoke of, which was the zombie sections of the Criminal Code that have been found to be unconstitutional.

He cited the Vader case, involving the murder of Lyle and Marie McCann of St. Albert. It was our committee, the justice committee, that wrote to the minister all the way back in October 2016, calling on the minister to move forward with legislation to remove unconstitutional sections. The minister did move ahead with Bill C-39, which is stuck at first reading. The government then put it into Bill C-75. However, that is going to take months to go through the Senate. Why did the government not just get it done and pass Bill C-39? It does not seem to make any sense to me. Can the hon. member comment?

[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]

Madam Speaker, speaking to the Senate amendments, I believe that adding the word “unconscious” consistent with the J.A. decision would not in any way confuse the law or create uncertainty. I think it provides some degree of clarity.

I reiterate that the wording of the specific subsection proposed in bill C-75 is broad enough to encompass not only unconsciousness but any other reason by which a complainant might be incapacitated.

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

Madam Speaker, I spoke to the McCann family about the fact that Bill C-39 was moved into Bill C-75 and quite frankly, they were appalled. They were appalled that the government would include Bill C-39 in a bill that would, among other things, water down sentences for impaired drivers and for kidnapping of a minor and, speaking of sexual assault, for administering a date-rape drug. I voted against Bill C-75. If the McCann family were members of Parliament and could have voted, they would have voted against it too.

[Arif Virani]

Madam Speaker, to characterize what is in the bill as defence disclosure is inappropriate and incorrect. I refer the member opposite to the Darrach decision, paragraph 65 of the Supreme Court jurisprudence, which he is fond of quoting.

The member talked at length about the situation with Travis Vader and the McCann family. This is an important issue that affected his community directly and I appreciate his submissions in that regard. However, when the provisions in Bill C-39 that would have eliminated those unconstitutional provisions from the Criminal Code were moved into Bill C-75 and that legislative vehicle is being used to eliminate the very provisions he is talking about, I ask the member why he would have voted against that bill at third reading in this chamber last week?

[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.