Justice Committee on Oct. 18th, 2017

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you.

I'm pleased you talked about the need to move with effective resources, particularly for those who have difficulty accessing the system. The situation in indigenous communities, the lack of resources, where we spent months and months with police in our region trying to get rape kits that were not available.... How do you get evidence if you don't have rape kits? None of those cases could go to court. These are the basic resources that the communities I represent don't have.

The government is only paying for one shelter a year for indigenous women suffering violence, and nothing up in Nunavut. Given the extent and the isolation in communities, if we don't have the resources for women to get out of violent situations, how do we expect that we're going to end the cycle of violence?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Ending the cycle of violence is an objective we all share. I hear you and recognize the lifelong advocacy that you have been involved in, in your remote community, and the remote communities you represent.

We have done a number of things. Can we do more? Of course we can. Are we committed to ensuring we do everything we can to provide for those complainants who do come forward—because not many of them do in indigenous communities, as you probably know—and ensure the tools and the mechanisms to be able to prove the charge are available, whether that be the rape kits, as you mentioned? We have made contributions in the area of $12 million to our victims fund that provides supports to assist victims of sexual assault. We have an ongoing pilot project in Newfoundland.

[Charlie Angus, NDP, Timmins—James Bay, ON]

My concern is that when we get to the fundamentals, for example, the child welfare system, the broken foster care system, it is the conduit for girls ending up on the street and boys ending up in gangs. Tina Fontaine...you name the children who have gone through that system and have been victims of violence, yet you're in court fighting the Human Rights Tribunal. Your government has put up about $1 million fighting an order to end the chronic underfunding that is leading to young women and young boys being put out on the street and ending up in situations of violence.

I don't get that. Why are you not complying so that we can end this chronic denial of basic rights?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

On the question around sexual assault and supporting victims of sexual assault, and sexual violence crimes, I'm very proud of what our government has done to make inroads with respect to addressing these issues. In our last budget we committed $100.9 million to a gender-based violence strategy—

[Charlie Angus, NDP, Timmins—James Bay, ON]

You have the Canadian Human Rights Tribunal at Federal Court over children, the children who are being victimized in the broken foster care system. Why would you put all that money into fighting them in court when you could put that money into ending this systemic discrimination?

[The Chair, Liberal, Anthony Housefather]

Mr. Angus, we've strayed far away from Bill C-51 but I'll let the minister answer. We're at the end of your time anyway, so we'll let the minister answer.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Without getting into specifics about specific cases, we are committed to ensuring that we provide the necessary supports to children in indigenous communities, and I am very pleased to be working closely with the Minister of Indigenous Services in the substantive work she is doing to invest in communities the necessary resources that are required for indigenous children not to be different from non-indigenous children.

This is an effort that is not going to be resolved in months or a couple of years, but it's an effort that is going to require all of us to ensure that we support indigenous communities having the necessary day-to-day resources and in closing the gaps in indigenous communities, from child welfare to education and health. But it's also to provide that fundamental pathway for indigenous communities and nations to rebuild and to be self-determining and ultimately have jurisdiction over these really important issues as communities take advantage of the Prime Minister's commitment to build a nation-to-nation relationship. This requires members all around.

I know the honourable member would be in agreement that we need to make this transition and transformation to recognition of rights and reconciliation with indigenous peoples.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thanks, Chair.

I'm interested in talking about section 176 as well. Mr. Nicholson asked some very good questions, and I appreciate your answers. I thought they were very good and substantive, but to go into that just a little bit more, I look at paragraph 176(1)(b) for example:

(b) knowing that a clergyman or minister is about to perform, is on his way to perform or is returning from the performance of any of the duties or functions mentioned in paragraph (a)

(i) assaults or offers any violence to him, or

(ii) arrests him on a civil process, or under the pretence of executing a civil process,

That's interesting to me because I don't see, specifically in terms of the “civil process” business, that the protections he might have under hate crimes and other things you mentioned would give him that kind of protection. Can you please speak about that?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I'm hoping that I'm understanding your question. It is different from the question that Mr. Nicholson asked.

In terms of sections 176 and the protections that are provided to clergymen, this is referencing clergymen and not referencing broadly in terms of religious heads.

I'm confident that the offences of general application will cover the situations and fact patterns you pointed out around the provisions in terms of causing a disturbance at or near a public place, assault, uttering threats, mischief of property, and inciting hatred against identifiable groups. As mentioned in my remarks, it is an aggravating factor in sentencing where the offence was motivated by hate, bias, or based on religion.

Repealing section 176 certainly does not affect the freedom of religion as protected under the charter, but it removes a provision that is redundant in the Criminal Code. I think—and this could be said for other provisions within the Criminal Code—it speaks to a “clergyman” and it speaks to “his” calling. This would remove the reality of referencing one gender over the other as well.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I accept all that.

I think the language could be broadened to cover all religions and genders and so forth. I agree with you that there are many provisions in the Criminal Code and elsewhere to protect in circumstances of violence or intimidation, or hate speech and hate crimes. The one interesting thing about this is that it kind of establishes a clergyman privilege of not being able to be arrested on a civil offence while they're on the way to or from performing one of their regular things.

I think it's interesting. I don't know if it's a really important thing, but it's not covered under all those other categories you mentioned.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I hear what you're saying about the to and from.

I honestly do not have a specific answer to provide you with respect to that—I'll look at my officials to see if they do—but I'm happy to follow up on that specific question.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you. This is playing “stump the minister” today.

Could you maybe just carry on and talk about blasphemous libel? We're repealing that as an offence. Maybe we could talk more about that and explain how that protects religious freedoms, or not.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I was just looking at my notes to see when this offence came in. It has its origins prior to our Criminal Code. Its origins come from 17th-century England. It was directed at attacks against Christianity. It has been interpreted as requiring the intention to publish material that in fact is likely to shock or outrage the feelings of believing Christians, not other religions.

As we stated earlier in this discussion, the Charter of Rights protects the right to equality, the right of freedom of religion and belief and expression, and this offence does not appropriately reflect those values. The other thing that I was looking for was that the last reported decision for this offence was in 1936, and England's blasphemy offence laws were repealed in 2008.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

There are a lot of bizarre and arcane laws on the books, obviously.

I am wondering how you went through and chose the laws to repeal. I know some of them were cases where they were deemed unconstitutional.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

For the past two years, and even before that, there have been many commentators—academics, people involved in the criminal justice system—who have made commentary around specific provisions in the Criminal Code.

We specifically sought to engage with academics on this issue. We've had over 15 round tables on the Criminal Code with criminal justice experts from all different areas. My officials have engaged in substantive working group discussions with our provincial and territorial counterparts to comprehensively review the Criminal Code, and certainly, as Bill C-39 reflects, eliminate unconstitutional provisions in the Criminal Code. With respect to Bill C-51, we looked at redundant and archaic provisions, and we also looked at where lower courts have considered specific sections to include and remove those provisions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We're going to move to shorter questions. The minister is still with us for another 17 minutes, so we'll try to make the questions more brief.

I know I have Mr. Cooper and Mr. Fraser, and then I'll look for anyone else's hand.

Mr. Cooper.

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

Thank you, Mr. Chair.

Thank you, Madam Minister.

I certainly note that Bill C-51 does remove certain obsolete sections of the Criminal Code. I want to ask a question more broadly about the government's effort to clean up the Criminal Code. You have stated that it is a priority of the government.

One year ago, Travis Vader's conviction on two counts of second degree murder of Lyle and Marie McCann of St. Albert, Alberta was vacated after the trial judge applied an inoperative section of the Criminal Code, a section that had been found unconstitutional some 25 years earlier.

This committee wrote to you. I held a press conference with Bret McCann in December calling on the government to move forward to remove zombie laws, unconstitutional provisions. To your credit, you did introduce Bill C-39 on March 8, and seven months later, it remains stuck at first reading.

What is the delay on Bill C-39?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I recognize the member's comments and advocacy with the letter that was sent from this committee around the zombie provisions that are in the Criminal Code.

I am fully committed to doing as much as I can to advocate for the moving of Bill C-39 through the parliamentary process. Like you, I want to have those provisions, section 230 of the Criminal Code, removed as well as the other unconstitutional provisions that are articulated in Bill C-39, and likewise, other bills that I have felt very fortunate to have introduced around the victim fine surcharge.

Bill C-39 was phase one of the Criminal Code cleanup bill, and Bill C-51 is the second phase. I'm hopeful that they will all proceed as quickly as possible because I share your concern about having zombie provisions remain in the Criminal Code and having individuals charged under provisions that have been rendered unconstitutional.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair.

Thank you so much, Minister, for being here, and thanks to your officials as well.

First of all, I want to thank you for the effort in putting this bill together, and I really appreciated your comments with regard to victims or complainants feeling perhaps more comfortable coming forward as a result of some of the steps that are being taken in this bill.

Coming from Nova Scotia, I know there has been certainly a high profile case and incidents there that are on the public's mind that have brought consciousness to this important discussion.

In balancing the rights of the accused and the victims or complainants, I want to turn to a topic that already had some discussion, and that's regarding the records relevant to the complainant that are in the hands of the defence. As I understand it, there will be a possibility of a hearing before the judge in a voir dire setting, where a determination will be made on the admissibility of that evidence by the judge.

I think it's good that the complainant would have the ability to have legal representation at such a hearing. I'm wondering, though, if you could touch on how we balance the rights of the accused to a fair trial with the ability of perhaps giving a heads-up, if you will, to the complainant about what evidence may be tendered on cross-examination, perhaps allowing an accused person an ability to tailor evidence based on what normally would be proffered at trial to cross-examine the witness.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

As we discussed a little earlier, we sought to balance the rights of the accused and recognize the challenges with respect to the complainants in coming forward and to do what we can to assist in that regard, broadening the rape shield provisions around where an accused person has personal records of the complainant. As mentioned, we have put in place in this particular bill a procedure for the determination of admissibility of evidence. It's not disclosure. It's looking at what types of personal records a judge would determine would be admissible. Certainly, nothing that touches on the twin myths I mentioned earlier would be admissible, but we provide the ability to have that voir dire for a judge to make those decisions.

In the legislation we are proposing that legal representation be provided to the complainant. I am pleased that we have, through our victims fund, been able to fund pilot projects in Newfoundland that are providing free legal advice to individuals and complainants of sexual assault or sexual violence. Other pilot projects are under way as well.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

I have one more for Mr. Cooper, but just before that can I see a show of hands? Which other members of the committee want to ask the minister a question?

I'm going to have Mr. Cooper and then Mr. Angus, and then we'll probably be finished the hour.

Mr. Cooper.

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

Thank you, Mr. Chair.

I would just reiterate to the minister the urgency in passing Bill C-39. What happened in the McCann case was not unique. It has happened before, and it is just a matter of time before another judge applies an inoperative section and another family is victimized like the McCanns.

Section 176 isn't unconstitutional. The constitutionality of it has been upheld by the courts. It isn't obsolete, given the fact that there have been multiple cases in which individuals have been charged and convicted under section 176. As well, it isn't redundant inasmuch as it is the only provision in the Criminal Code that directly protects individuals to freely practise their religion.

In your testimony you made reference to the fact that section 176 applies only in the case of the Christian faith, but subsection 176(2) very clearly speaks to disturbing religious worship or certain meetings and again makes reference to “religious worship”. It says nothing about Christianity. I'm not aware of any court that has ever interpreted this section to apply only to the Christian faith. Perhaps you misspoke, or perhaps you could clarify on what basis you stated that section 176 applies to the Christian faith.