Mr. Speaker, it is a pleasure to rise today to participate in the debate on Bill C-51 and, in particular, the Senate amendments.
My intention in my remarks today is to focus on two issues that arise out of this bill. One is the question of advance consent in general, at a philosophical and practical level, and whether we think that a person ought to be able to consent in advance to something happening in the future and some of the issues related to that in this bill. The other is I want to talk about section 176 and the way in which the government approaches our response to potential acts of hate and violence and disruption that are perpetrated against faith communities in Canada.
The issue of advance consent is very much one that has been discussed back and forth and from different perspectives. I note that with respect to the idea of someone consenting in advance to sexual activity, this is a subject on which the Supreme Court of Canada and the Ontario Court of Appeal, at certain points in time, disagreed. There was a court decision in R. v. J.A. in which the person accused of sexual assault argued in the context of that particular case that sexual assault had not taken place because the complainant had consented to being rendered unconscious, allegedly, and consented, allegedly, to engaging in sexual activity. The Ontario Court of Appeal actually agreed with the arguments of the accused in this case, and said the “only state of mind ever experienced by the person is that of consent”.
I think the Ontario Court of Appeal got it wrong. Many people would say that it is not only wrong but deeply offensive to suggest that a sexual act could be performed without a person's explicit consent in the moment, on the basis of alleged prior consent in advance.
In my view, the Supreme Court got it right when it said:
It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.
Bill C-51 puts that legal court decision into the Criminal Code by noting that there is never consent when a person is unconscious. Proposed paragraph 273.1(2)(a.1) states:
For the purpose of subsection (1), no consent is obtained if
(a.1) the complainant is unconscious;
The decision of the Supreme Court in this case is the right decision. It is one that I agree with and it is one that is reflected in the law.
It is noteworthy at the same time that the Ontario Court of Appeal thought differently and indeed advanced arguments for the idea that a person could provide so-called advance consent in this case. It reflects the fact that in different contexts around different debates, people have made arguments about the supposed legitimacy of advance consent. We see in another case the use of that argument, and I will get to that in a few moments.
The cases against so-called advance consent as something we should allow or accept are myriad. One of the obvious arguments against it is that one's past self, in one's wishes and inclinations, might disagree substantively from one's future self. One might think that at such and such a point in the future under certain circumstances one will want this or feel this or accept this. However, in reality, when one experiences those things, one feels totally differently in the context of that new situation. The idea of a past self irrevocably dictating the conditions and events that are going to occur with a future self is unjust to the future self and it violates the autonomy of the individual at that point in time in the future. Our past selves differ from our future selves, and perceptions about how we will experience certain events in the past might differ from how we actually experience them in the moment when they are taking place.
It is on this basis of recognizing the importance of autonomy, not in the sense of a past self-binding and future self-binding but autonomy in the sense of individuals making determinations about themselves in the moment and being able to ensure that they are comfortable with and accepting of everything that is happening while that thing is happening, that the court, the House, and this legislation recognize the fundamental wrongness of advance consent in the context of sexual activity.
I develop this point in spite of the perhaps pre-existing agreement in the House because it has some relevance to our discussion of other issues with respect to consent. In particular, some members would like to see us allow advance consent in the case of euthanasia or assisted suicide. It is important for members to reflect on the argument for and against allowing advance consent in the one case when we consider the possible application of that same principle in a different case.
Questions were asked in the House, for example, about the case of Ms. Audrey Parker, a tragic situation for her, and other cases, where the idea of advance consent was brought up. Some have argued, especially some of my friends in the NDP, that people should be able to provide consent in advance that their life be taken if their condition advances to a certain point and if certain conditions are met.
I find that prospect very troubling, that a present self could irrevocably bind a future self, especially that the person could establish parameters under which that future self would be bound even in a case where that future self might, in the moment in terms of practical expression, not want that to happen.
The particular context in euthanasia of providing advance consent is, of course, that people have to imagine how they would experience certain conditions, certain development of a disease, and how they would feel about it, how they would respond and what they would want in the moment. The idea and the argument that some advocates have made is that the person should be able to issue an advance directive, so that even if they in that moment do not have the capacity to make a decision, their past self would decide for them in the present.
This can create a situation, though, where one might ask what happens if a person with somewhat lost capacity, but nonetheless with a condition set out by their past self, then says he does not want his life taken. His past self had established this living will, this advance directive of sorts, that would then theoretically involve the state and medical professionals taking his life in a case where he did not want that to happen in the moment based on something his past self said.
This is not a purely hypothetical case. There is currently a case before the Dutch courts in which a patient was held down by family members while a physician injected her with lethal medication. The doctor was acting based on an interpretation of an advance directive and of past statements made by the patient.
We do have cases where there is an application of the idea of advance consent to euthanasia, and we have a very scary situation, frankly, where a person's life is taken when he or she is saying in the moment, “No, I don't want this to happen”, but someone else is interpreting something the individual said in the past as overruling the individual's expression in the moment.
The present self who is facing this kind of violence, I would argue, is maybe at a point of lower capacity than the person previously had, but I still think it is a very scary situation or proposition.
I would encourage members to reflect on the question of advance consent and to take a consistent position on it. I would suggest that members set a similar standard for consent in these cases. It does not seem, to me, to make sense to have a lower bar for the consent required to die than consent required for sexual activity, to abhor advance consent in the case of sexual activity, and yet to support it in the case of death and dying. We do not know exactly where the debate on advance consent in the context of death and dying is going to go. I know there is an expert panel the government has put forward that we expect to hear a report back from relatively soon. I know there are members of the government caucus who have said that they are supportive of the idea of advance consent.
However, if we think about the case that I spoke about in particular and how we would feel if a past version of ourselves had said we wanted something, which all of a sudden, in the moment, in a situation, we really do not want to have happen, and yet we are told that we had said we had wanted this in the past, so our past self can dictate to our present self. I would see that as really going against a pretty basic principle of autonomy that I know is important to many members.
I leave that for the consideration of the House. It is very relevant to our discussion of Bill C-51, in terms of the way in which the bill codifies the point that in the context of sexual consent, one cannot consent in advance, that a person who is unconscious can never consent, regardless of what they said beforehand. Again, to underline this, I very much agree with that particular change to Bill C-51. I want to encourage members to think about what that means for some of the other conversations that are happening.
This bill deals with Senate amendments. There is a proposed Senate amendment that provides some specific language around that section. I know that some of my colleagues are favourably disposed towards the intent of the senator who brought this forward, but are concerned about some of the unintended legal implications of it, namely, that if certain things are spelled out explicitly, there might also be things that are not spelled out in the section. The sense, and I think it is a good sense, is that the existing language in that particular section of Bill C-51 does the trick in hitting the particular point on the mark. That is what I wanted to say about the issue of advance consent.
I would like to make a few comments about section 176 of the Criminal Code and the back and forth we have seen in our discussions on that section and on some of the other actions the government has taken in this regard.
Section 176 deals with the disruption of a religious service and vandalism against church property, and so forth. Our caucus has done a great deal of work with civil society to bring attention to the importance and value of this section, and to oppose initial efforts by the government to remove this section.
The government argued that section 176 could be removed, because it was redundant. Clearly the offences that are covered by section 176 are things that other charges could apply to, but that does not mean that the offence, in terms of putting a particular emphasis on it and ensuring fulsome prosecution in these cases, is redundant. By analogy, our Criminal Code speaks specifically of hate crimes, and I have never heard anyone argue that hate crimes legislation is redundant because the violence associated with hate crimes, namely, vandalism, but more particularly assault and those sorts of things, are already illegal.
I have never heard anyone ask why we need hate crime provisions because those things are already illegal. I think all of us accept that the message sent by having a particular category of prosecution associated with hate crimes is appropriate, because hate crimes are not just aimed at doing violence to a particular individual but also at making an entire community feel threatened and unsafe in living their lives as they do, including the practice of their faith and the public actions they take that are associated with their identity, and so forth.
Hate crimes legislation is about ensuring that groups of people are not targeted on the basis of their identity. That is why we treat a hate crime as something distinct from an act of assault on its own. If members accept that principle with respect to hate crimes and hate crimes in prosecution, it would seem to me that the same principle goes to section 176. Someone who actively disrupts a church service or commits acts of vandalism or violence against religious clergy are not just trying to enact specific violence against an individual or place. It is not merely an act of trespassing or vandalism, rather an action that carries with it a real chill for the ability of people of faith to live freely and confidently without worry of that kind of violence. That is why section 176 is not redundant. It is critically important.
Another argument the government used was to say that the language in section 176 is outdated because it refers to a clergyman and is not, in its textual implications, inclusive of all faiths and genders. However, in reality, the section was clearly being applied in a way that was fully inclusive. It really was an odd argument to make that we should take the section out completely because it was not, in its language, inclusive when all that was really required was to change the language. Even changing the language did not change the actual practical effects of the law.
In the end, in response to a really strong reaction and groundswell from different communities working collaboratively with our party, the proposed deletion of section 176 by Bill C-51 was abandoned. We were pleased to see that.
At the same time, we then saw the government, in Bill C-75, proposing to hybridize offences under section 176, effectively reducing the sentence for these offences. In the previous discussion in the House on this issue, my friend from Winnipeg North offered a defence of the idea of hybridized offences. I do not think anyone has argued there should not be any cases where the level of available discretion would not cover a spectrum associated with hybridized offences.
However, I think a lot of those who advocated significantly for section 176 to be preserved, and were initially pleased by the government's stepping back from their decision, kind of saw in the hybridization of this particular offence yet another indication that the government does not really understand the importance of this and does not accept the value of having strong, clear language with appropriate associated sentences in the Criminal Code to protect the practice of faith in this country.
It is ironic because the government talks a good game a lot of the time when it comes to fighting hate. When it comes to motions or statements around these kinds of issues, the government always seems to be ready.
We had considerable debate in the House on Motion No. 103 on the question of “Islamophobia”. All of us in the House should read that it is important for us to take a strong stand against, in this case, anti-Muslim violence or hatred, and that it is important for us to take a strong stand against those who express bigotry against any community. However, we wanted the government to provide a definition of what it meant by “Islamophobia”, and it refused to do that. Unfortunately, the House was not able to come together in a way that might have been desirable to send a clear unified statement on that issue.
Despite the specific language of Motion No. 103 speaking of the need to “quell the increasing public climate of hate and fear”, the government's actions with respect to section 176, an actual section of the Criminal Code that provides real legal protection for those practising their faith, show that in so many cases, it is only interested in the statement and not the substance.
For faith communities and leaders across the board who wonder what substantive protections exist, they should look to and expect the government to underline the importance of section 176, not to be weakening its application as we are seeing.
