Bill S-240 (Historical)

An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs)

This enactment amends the Criminal Code to create new offences in relation to trafficking in human organs. It also amends the Immigration and Refugee Protection Act to provide that a permanent resident or foreign national is inadmissible to Canada if the Minister of Citizenship and Immigration is of the opinion that they have engaged in any activities relating to trafficking in human organs.

Criminal Code

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

Mr. Speaker, I would acknowledge that there is a big difference. That is why the courts need to have discretion. However, what we are hearing from the government is that participation in the activities of a terrorist group or advocating genocide is also within that same grouping of legislation, Bill C-75. It accepted amendments to remove those two, but everything else had to stay because it is close-minded and would not accept consultation from Canadians.

Bill C-75 has a lot of problems with it. That is why Canadians do not want us to vote for it.

[Pierre Nantel, NDP, Longueuil—Saint-Hubert, QC]

Mr. Speaker, I would like to thank my colleague for his remarks.

We all know that Conservatives and New Democrats do not always agree. However, one point on which we can agree is that the government's failure to appoint judges is deplorable. Without more judges, delays in the justice system will not get better.

I would like to know if my colleague finds that utterly deplorable. The election is a year away, but we all know that anything the government does between now and then will be motivated solely by a desire to get re-elected.

For the past three years, the government's legislative agenda has been quite sparse. The government has not changed much, and when it does do something people were looking forward to, such as this bill, it does a poor job.

What does the member think of that?

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

Mr. Speaker, the member brings up a very good point. When the justice minister had the responsibility of appointing judges, six months went by before there were any appointments, and this created a backlog. Now with Bill C-75 and offences being downloaded onto the provincial government, there will be an additional backlog. The Liberals are creating a judicial and legislative mess. They have accomplished very little in the House and now they want to ram Bill C-75 through because they have the most bodies in the House.

These important issues need to be handled properly and they are not being handled properly by the current government.

[Kamal Khera, Parliamentary Secretary to the Minister of International Development, Lib.]

Mr. Speaker, I am proud to speak on Bill C-75. Through this bill, our government is fulfilling its promise to move forward with comprehensive criminal justice reform. Once passed, this legislation would have a real effect on court delays and help reduce the overrepresentation of indigenous people and other marginalized groups in the criminal justice system, including those with mental health and addiction issues. It would also help to make juries more representative of the communities they serve.

I want to take this opportunity to thank the Minister of Justice and all members of the Standing Committee on Justice and Human Rights for all the hard work they have done to make sure we get this bill right.

I will focus my remarks on amendments to the Criminal Code that would remove provisions declared unconstitutional, primarily by the Supreme Court of Canada, and that already have no force or effect, but continue to appear in the code.

Bill C-75 would repeal the offences of anal intercourse, vagrancy, spreading false news, procuring a miscarriage and bawdy house offences. This bill would also remove provisions relating to the offence of murder, as well as provisions that prevented judges from giving enhanced credit for time served in custody prior to sentencing.

Bill C-75 proposes to repeal section 230 of the Criminal Code, which was struck down by the Supreme Court of Canada in R. v. Martineau in 1990 because it infringed on section 7, which is the right of life, liberty and security of persons, and subsection 11(d), which is the presumption of innocence in the charter. Section 230 could result in a murder conviction if the accused caused the death of a person while committing another offence, like robbery, even if the person did not intend to kill the victim. The court made clear that the label of murderer and the mandatory life sentence was reserved for those who had the intent to kill or injure so severely that they know the victim could die.

The Martineau decision also found part of subsection 229(c) unconstitutional because it allowed a conviction for murder where a person, in pursuing an illegal activity, causes someone's death when the individual should have known, but did not, that death was a likely outcome of his or her actions. Bill C-75 proposes to remove this unconstitutional provision.

The continued presence of these invalid provisions in the Criminal Code can cause delays, inefficiencies and injustice to the accused. Bill C-75's proposed amendments would make it clear that those convicted of murder must have foreseen the death of the victim.

Bill C-75 would also repeal the prohibition against anal intercourse. It has been declared unconstitutional by several courts because it discriminates on the basis of age, marital status and sexual orientation.

Bill C-75 would also repeal section 181, which prohibits the spreading of false news. This offence dates back to 13th century England and targeted conduct meant to sow discord between the population and the king. The Supreme Court struck down this provision in R. v. Zundel in 1992 because it unjustifiably violates freedom of expression and lacks a clear and important societal objective that could justify its broad scope.

As Bill C-75 proposes to appeal this unenforceable offence, some might wonder whether this leaves a gap in criminal law, including the ability to target false news in some way. These questions are quite relevant today in the light of fake news discourse and the concerns of such fake news to promote hate against particular groups. In this respect, it is worth noting that the Criminal Code already contains a robust set of hate propaganda offences and other hate crime-related provisions, including, for example, the public incitement of hatred offences found in section 319.

Bill C-75 would also repeal the abortion offence in section 287 of the Criminal Code, which prohibits the procurement of a miscarriage and was declared unconstitutional by the Supreme Court 30 years ago in the Morgentaler case. The Supreme Court's guidance was clear. It said forcing a woman, by threat of criminal sanction, to carry a fetus to term, unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus a violation of security of the person. It is long overdue that this invalid provision be removed from our Criminal Code.

Additional amendments to modernize the criminal law were adopted by the Standing Committee on Justice and Human Rights and I want to take this opportunity to thank the committee for its work and I would like to take a moment to discuss this as well.

As tabled, Bill C-75 repealed part of the vagrancy offence. The provision against loitering near a school ground, playground or public park for persons convicted of certain offences, paragraph 179(1)(b), was struck down by the Supreme Court of Canada in R v. Haywood in 1994 because it was overly broad in applying to “too many places, to too many people, for an indefinite period with no possibility of review.” The justice committee went further and adopted a motion to repeal the vagrancy offence committed by supporting oneself by gaming or crime and having no lawful provision or calling, found in paragraph 179(1)(a).

Modern Canadian criminal law is not concerned with the status of an individual such as unemployed, but rather and rightly focuses on morally blameworthy conduct. The justice committee also heard that this offence was used in a historically discriminatory fashion to target members of a particular community. I am pleased that the committee agreed to remove this offence in its entirety and I am confident that it leaves no gap in the law.

The justice committee also unanimously adopted an amendment that repeals bawdy house offences at sections 210 and 211 of the Criminal Code. This amendment responds to the concerns that these provisions are antiquated and also have been used as discriminatory against the LGBTQ2 community and no longer serve a legitimate criminal law purpose. Their net effect is to criminalize anyone who has any kind of association with a bawdy house. This is inconsistent with modern criminal law, which criminalizes blameworthy conduct not location in which certain activities take place, nor a person's status in respect to such location. The repeal of the bawdy house offences would also leave no gap in the law as discussed by the committee during its consideration of this issue.

We have a responsibility as parliamentarians to ensure that our laws are as clear as possible to all Canadians, not just criminal law experts who can weave the Criminal Code together with the jurisprudence to better understand the true state of the law. Clarity contributes to accessibility. This is particularly important to criminal law given its significant impact on an individual's liberty and on public safety. Lack of clarity with the law also results in costs aside from tangible costs on the justice system such as wasted police, prosecution and court resources. They are at risk of injustice to the accused and intangible costs to victims.

Moreover, the reliance on unconstitutional laws has a negative impact on the reputation of the criminal justice system and affects Canadians' confidence in that system. These amendments promote clarity in the law and respect for the charter and should be without any controversy. These changes are consistent with the objectives of other amendments contained in Bill C-75 in the way they will make our system more efficient and more accessible.

I urge all members of the House to vote in favour of the motion and once again I want to take this opportunity to thank the minister for all the consultations that she has done with many members of our society as well as the justice committee for all the work it does.

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

Mr. Speaker, sections of the Criminal Code have been deemed unconstitutional and are therefore of no force or effect. I was astounded that the parliamentary secretary would pat the government on the back for moving forward in this bill with the rightful removal of those sections when it was all the way back in the fall of 2016 when the second-degree murder charges against Travis Vader were thrown out of court because the trial judge applied section 230 of the Criminal Code.

The member made reference to the Martineau decision. Following that, the McCann family, who come from my community of St. Albert, Bret McCann, his son and his wife Mary-Ann, and I pleaded for the minister to introduce legislation. The member for Mount Royal, the chair of the justice committee, wrote to the minister to urge her to introduce legislation. She introduced legislation, to her credit, on March 8, 2017 in Bill C-39.

Bill C-39 has been stuck at first reading, when we could have gotten it done by way of unanimous consent. Why did the government delay almost two years before finally moving forward in Bill C-75? It is too little, too late for the McCann family.

[Kamal Khera]

Mr. Speaker, I am proud of the work our government has done to introduce this legislation to modernize the criminal justice system and reduce court delays.

The proposed reforms are a key component of a federal strategy to transform the criminal justice system and make it more efficient, more effective, and fairer and more accessible while protecting public safety. The proposed reforms also aim to reduce the overrepresentation of indigenous persons and vulnerable populations in the criminal justice and court system. Many of these law reforms reflect a collaborative intergovernmental effort to address court delays, and have been identified as priorities by the federal, provincial and territorial justice ministers.

[Pierre Nantel, NDP, Longueuil—Saint-Hubert, QC]

Mr. Speaker, I appreciate the passion of my colleague opposite. I would want to believe that too, if I were her. I would want to believe what my colleagues told me, what my ministerial colleague told me.

Can she tell me whether she will at least have a chance to look into how little progress the current government has made on its legislative agenda compared with the previous government at the same point in time?

When a bill is suddenly introduced, it is only natural to say that we are going to examine it, but ultimately, many witnesses and experts in the field believe that Bill C-75 does not come close to doing what needs to be done.

[Kamal Khera]

Mr. Speaker, I appreciate the hon. member's question, but this is a very comprehensive piece of legislation that was done in consultation with many key stakeholders. As we have said all along, there is no simple solution for addressing the issue of court delays. We are already doing so as part of our collaboration with our provincial and territorial partners. However, this legislation and all of the actions taken to date are aimed at addressing the root causes of the delays. This bill intends to bring more cultural shift within the criminal justice system, something that the Supreme Court in its Jordan decision stressed is required.

Once again, I thank the Standing Committee on Justice and Human Rights for its extensive study of Bill C-75 and the amendments it has proposed. We believe these amendments help strengthen Bill C-75. I hope that all members of the House—

[The Deputy Speaker, Conservative, Bruce Stanton]

The hon. member for Sarnia—Lambton.

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

Mr. Speaker, I am sure that the member opposite, in her role in international affairs, has encountered countries where forced marriage exists. I am astounded that the government here in Canada could allow forced marriage in this bill, which essentially means individuals being forced to have sex again and again with someone they did not give consent to. How can a government that claims to be feminist and a defender of women's rights think that the penalty for that should be a summary conviction of less than two years or a fine?

[Kamal Khera]

Mr. Speaker, what I just heard from my hon. colleague is just absurd. Again, with Bill C-75 we are advocating bold reforms that would address court delays in our criminal justice system. Nothing in this bill would change the fundamental principles of sentencing. Our courts will continue to impose sentences that are proportionate to the gravity of the offences and the degree of responsibility of the offenders.

[An hon. member]

Oh, oh!

[Kamal Khera]

I would appreciate if the hon. member would let me speak, when he could have—

[The Deputy Speaker, Conservative, Bruce Stanton]

Resuming debate, the hon. member for Humber River—Black Creek.

[Judy Sgro, Liberal, Humber River—Black Creek, ON]

Mr. Speaker, I am pleased to join the debate today on Bill C-75, introduced on March 29, 2018. The bill has now been studied by the justice and human rights committee and returned to the House. I am optimistic that we can move this important piece of legislation forward today. Bill C-75 includes important amendments that reflect the government's unwavering commitment to tackling gender-based violence.

Last June, the government launched a federal strategy to prevent and address gender-based violence across Canada. The 2017 budget included $100.9 million over five years and an additional $20.7 million per year thereafter to fund this important strategy, which would ensure there is more support for vulnerable populations, such as women and girls, indigenous people, LGBTQ2 community members, gender non-binary individuals, those living in rural and remote communities, and people with disabilities, among many others.

Budget 2018 announced a further $86 million over five years and $20 million per year in ongoing funding to enhance this strategy. The three pillars of the strategy—prevention, support for survivors and their families, and promotion of a responsive legal and justice system—will better align these and existing resources to ensure that current gaps in support are filled.

Bill C-75 complements these initiatives and further supports the third pillar of the federal gender-based violence strategy by promoting a more responsive legal and justice system. It specifically targets intimate partner violence, which is one of the most common forms of gender-based violence. Intimate partner violence includes things like sexual, physical and psychological abuse, as well as controlling behaviours. Bill C-75 proposes to define “intimate partner” throughout the Criminal Code to clarify that it includes a current or former spouse, common-law partner and a dating partner.

This clarification is sorely needed to reflect the current reality, which is that so many of the individuals accused of violence against women before the courts are in fact dating partners, as opposed to spouses. According to data from Statistics Canada, victimization by an intimate partner was the most common form of police-reported violent crime against women in 2016. Based on police-reported data from 2016, we also know that violence within dating relationships was more common than violence within spousal relationships.

The new definition of intimate partner violence would apply in the sentencing context, where judges would have to consider any evidence of abuse against a former or current spouse, common-law partner and dating partner as an aggravating factor. Higher maximum penalties for repeat intimate violence offenders would also be available to sentencing judges under this legislation.

In addition to the reverse onus on bail, Bill C-75 would add two new factors that a judge would have to consider before making an order to release or detain an accused. Bail courts would have to consider an accused's criminal record, something that already routinely occurs but is not mandated, as well as whether an accused has ever been charged with an offence that involved violence against an intimate partner. These factors would ensure that judges have a more complete picture and are fully informed of any prior history of violence that could threaten the safety of a victim or the public at large.

In 2016, Statistics Canada reported that the type of violence most often experienced by victims of intimate partner violence was physical force, which includes more serious harm, such as choking. The reforms proposed in Bill C-75 would further enhance victim safety by clarifying that strangulation, choking and suffocation constitute a more serious form of assault under section 267 of the Criminal Code, punishable by a maximum of 10 years' imprisonment, instead of a simple assault, which carries a maximum penalty of five years. It would also ensure that sexual offences involving strangulation, choking or suffocation are treated as the more serious form of sexual assault, which imposes a maximum penalty of 14 years' imprisonment if the victim is an adult, and life if the victim is a child, under section 272 of the Criminal Code. This would depart from the existing penalty for simple sexual assault, which is a maximum of 10 years' imprisonment under section 271, or 14 years when the victim is under 16.

Unfortunately, under existing law, courts do not always recognize the seriousness of these types of assaults, which often occur in the context of intimate partner violence. These aggressive acts cannot be underappreciated or dismissed as simply reflecting a perpetrator's anger management problem. Strangulation and choking pose a much higher risk to safety than other forms of assault, because they deprive a person of oxygen, with potentially fatal consequences, despite the fact the person might not have any visible injuries. The proposed amendment would better reflect the gravity of the harm inflicted.

While strong laws are a necessary part of tackling gender-based violence, it is important to understand how this legislation complements existing programs and initiatives that, together, ensure that the justice system is working at its full potential.

Over the past couple of years, the government has been working closely with the provinces and territories to improve the criminal justice system's response to gender-based violence. For example, since 2016, the government has provided funding for projects designed to improve responses to sexual assaults against adults. This funding has been made available through the federal victims fund to provinces and territories, municipal governments, first nations, and criminal justice and non-governmental organizations.

The funding is supporting pilot projects in Saskatchewan, Nova Scotia, and Newfoundland and Labrador to provide independent legal advice to victims of sexual assault, and the Government of Ontario to further enhance its existing project. Alberta has developed a similar program that is being administered and funded through the provincial ministry of the status of women.

Strong criminal justice responses to gender-based violence, including measures that aim to enhance access to justice for victims, as well as the proposals in Bill C-75, are especially significant right now in the wake of the #MeToo movement, as so many sexual assault survivors are coming forward to acknowledge and share their experiences of sexual violence. Indeed, a November 9, 2018 report by Statistics Canada indicates that the number of police-reported sexual assaults sharply increased by 25% following the beginning of the #MeToo movement in October 2017. The harrowing accounts shared by survivors have shed light on the many social and economic barriers that sexual assault victims have faced and continue to face, with devastating consequences for individuals, their families, and their communities. As more stories of sexual assault are told, we must ensure that the victims and survivors are treated with compassion and respect and that the criminal justice system responds appropriately.

I firmly believe that the proposals to enhance the safety of victims of intimate partner violence in Bill C-75 are a necessary response to this horrific societal problem. I am proud to be part of a government that takes violence against women seriously, as I know all of us in the House do, and one that remains unwavering in its commitment to ensuring that the victims of gender-based violence and their loved ones are treated with the utmost respect and dignity. I hope members will all join me in supporting this bill.