Debates of Dec. 11th, 2017

Criminal Code

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Madam Speaker, I indeed agree with those sentiments. I thank my hon. colleague for the way he carefully articulated them.

In addition to the reforms that Bill C-51 will be implementing to clarify the law around sexual assault and consent, I want to point out a number of important initiatives that the government has supported to support victims and survivors of sexual assault.

Number one, we have provided additional funding and resources to legal aid. In addition to that, we have implemented a pilot project in Ontario, in Newfoundland and, most recently, in Nova Scotia to provide free legal aid services for a certain number of hours for the victims who step forward, who have serious or any allegations of sexual assault. That is the kind of enhanced access to justice that I know my hon. colleague supports.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Madam Speaker, I want to come back to my previous question because I did not hear in the answer from the parliamentary secretary a reference to any particular amendment that has been adopted to address some of the concerns raised about what Bill C-51 might mean for the consent regime. I take his point that the goal of government is to provide greater clarity. Nonetheless, concerns have been raised by people who work with victims of sexual violence that notwithstanding the government's best intentions, it might inadvertently be changing the threshold for consent by tying it too closely to consciousness. The law currently recognizes a lot of other barriers to consent that one does not have to be unconscious for, because one can be conscious and have other reasons for why consent would not be valid.

Our party suggested alternative language through its amendments that would provide greater clarity and ensure that those existing protections under the law are not inadvertently voided by Bill C-51. The government did not take the opportunity to use that language. I did not hear a reference to amendments in his previous answer. Why did the government pass on that opportunity to provide greater clarity, which, according to the parliamentary secretary himself, is the purpose of Bill C-51?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Madam Speaker, what Bill C-51 does is to clarify that there are two separate sets of circumstances wherein consent to sexual activity cannot be obtained: first, when the complainant is unconscious; and, second, when the complainant is incapable of consenting for any other reason. This is entirely consistent with the Supreme Court of Canada's decision in the J.A. case, and it is backed by the experts who testified before the committee. The committee heard that evidence. It carefully debated it. It has referred all of its deliberations back to this House, with the adoption of the amendments that had been put forward.

I appreciate my colleague's question. However, I want to assure him and all members of the House that Bill C-51 codifies carefully enunciated principles by the Supreme Court of Canada in the decision of J.A., which clarify when consent is provided and, most importantly, when it is not.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Madam Speaker, I am pleased to rise in the House today to speak to Bill C-51. The stated purpose of the bill is to streamline the Criminal Code of Canada by removing certain provisions that no longer have any relevance in contemporary society.

I agree with many of the revisions, such as the removal of clause 41 of section 365 of the Criminal Code, which states, “Every one who fraudulently (a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration”; and clause 4, the removal of section 71 pertaining to duelling in the streets, “Every one who (a) challenges or attempts by any means to provoke another person to fight a duel, (b) attempts to provoke a person to challenge another person to fight a duel, or (c) accepts a challenge to fight a duel”. These are a number of the provisions to be removed.

I suppose the government may argue that the provisions against duelling have worked, because it has disappeared from our streets. Therefore, people certainly got the message a long time ago. Witchcraft and neighbourhood duelling no longer have any bearing on our society today. That is one point on which we can agree.

The Conservative Party is also aligned with the strengthening of the provisions of the sexual assault legislation and, indeed, has led the way for supporting victims of sexual assaults by, among other things, the private member's bill introduced by former Conservative leader, Rona Ambrose, Bill C-337. The bill would make it mandatory for judges to participate in sexual assault training and ensure awareness in the judiciary in addition to education about the challenges sexual assault victims face. Her bill was designed to hold the Canadian judiciary responsible for the ongoing training of judges and the application of law in sexual assault trials.

Essentially, Bill C-337 would ensure the following. It would require that lawyers receive training in sexual assault as a criterion of eligibility for a federally appointed judicial position; that the Canadian Judicial Council provide an annual report to Parliament on the details of the type of sexual assault training offered and judicial attendance at the training, as well as the number of sexual assault cases heard by a judge before having received adequate sexual assault training; and that judges provide written reasons on decisions with regard to sexual assault.

As we will remember, this bill was passed in the House of Commons, and we were all very grateful to see it passed. It is now in the Senate and I hope the Senate will get the message and move forward on the bill, which has the support of this chamber and, I believe, Canadians across the country.

We are pleased the Liberals have followed our lead with regard to strengthening sexual assault provisions in the Criminal Code surrounding consent, legal representation, and expanding the rape shield provisions. The Conservative Party always stands up for the rights of victims of crime and have done so consistently, among other things, including the Canadian Victims Bills of Rights passed in 2015.

Bill C-51 would amend, among other things, section 273.1 to clarify that an unconscious person is incapable of consenting. Again, as my colleague pointed out, this is a reflection of the Supreme Court of Canada's decision in Regina v. J.A. It proposes to amend section 273.2 to clarify the defence of mistaken belief if consent is not available and 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 the complainant consented. This, as was pointed out in the earlier speech of the parliamentary secretary, codifies a number of aspects of the Supreme Court of Canada's decision in R v. Ewanchuk from 1999.

As well, the bill would expand the rape shield provisions to include communications of a sexual nature or communications for a sexual purpose. These provisions provide that evidence of a complainant's prior sexual history cannot be used to support the inference that the complainant was more likely to have consented to the sexual activity in issue or that the complainant is less worthy of belief.

In addition, the bill would provide that a complainant would have a right to legal representation in rape shield cases, which I believe is very important. It would create a regime to determine whether an accused could introduce a complainant's private records at trial, which would be in his or her possession. This would complement the existing regime governing an accused's ability to obtain a complainant's private records when those records would be in the hands of a third party.

As I mentioned at the outset, some proposed changes we were adamantly against. As it turns out, thousands of Canadians were also adamantly against the removal of section 176 of the Criminal Code, the section of the Criminal Code that provides protection for religious services.

I would be hard-pressed in my career to know when I have received more emails, or more petitions or correspondence than on this section. When Bill C-51 was first introduced, the government interestingly enough made no mention whatsoever of the fact that it would remove the section that directly protected religious services and those who performed those services.

I was a little taken aback when I read legislation and I saw the removal of section 176. Even though I have practised some criminal law in my career, I had to check exactly what section we were talking about and, indeed, this was the section that said among other things:

(1) Every one who (a) by threats or force, unlawfully obstructs or prevents or endeavours to obstruct or prevent a clergyman or minister from celebrating divine service or performing any other function in connection with his calling, or (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, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. (2) Every one who wilfully disturbs or interrupts an assemblage of persons met for religious worship or for a moral, social or benevolent purpose is guilty of an offence punishable on summary conviction. (3) Every one who, at or near a meeting referred to in subsection (2), wilfully does anything that disturbs the order or solemnity of the meeting is guilty of an offence punishable on summary conviction.

When the government did not mention this was what it would remove, I remember very clearly saying to my colleagues, when this first came up for second reading debate in June, that they should talk to their constituents and ask them if they thought this was a good idea to remove the section of the Criminal Code that directly protected religious services and if they were aware of the fact that the government now wanted to remove the special protection that members of the clergy had. I asked them see what the response was.

I think my colleagues in the Liberal Party must have heard the message. They would have heard the same things I heard when we brought this to everyone's attention. Interrupting a religious service is not the same as a scuffle, or yelling at a hockey game, or disruption of a meeting. Even people who do not attend religious services would agree that this is more serious. This is the message I certainly hoped the Liberals would get, that this section was and remained critical and removing it would have eliminated the provision that completely protected the rights of individuals to freely practise their religion, whatever that religion may be.

Ironically enough during the very week the justice committee was reviewing the government's plans to remove this, the worst mass shooting in Texas history struck an otherwise quaint small town in that state. Gunman Devin Kelley stormed the First Baptist Church in Sutherland Springs and killed more than two dozen people. The following Sunday, a funeral service was held at the church. The original plan was to hold a small service, but so many people were outraged and moved by this horrible incident that hundreds and hundreds of people came out to show their support for the people of the community. It reiterates the fact that religious freedom is part of the constitution of the United States and it is contained in the First Amendment.

In Canada, our religious freedoms are protected and section 176 of the Criminal Code is part of that protection. Religious freedoms are fundamental to Canadians as well, and the Conservatives are proud to be among the first to stand and support religious freedoms for all faiths.

Faisal Mirza, the chair of the Canadian Muslim Lawyers Association, made a point when he appeared before the committee. He said, “We cannot be blind that the current climate of increased incidents of hate, specifically at places of worship, supports that religious leaders may be in need of more, not less, focused protection.” He was referring to the deadly shooting at a Quebec mosque in January, when the lives of six people came to a violent end. Among the victims were parents, civil servants, academics, and people who had left their countries of war to seek a better life in Canada.

Religious crime knows no borders and has no respect of persons. This is why I am pleased to say that, after hearing testimony from faith communities across the country, justice committee members voted to keep section 176 of the Criminal Code in place.

I would like to thank those thousands of Canadians who wrote or emailed their respective members of Parliament. I indicated in my opening comments that I did not remember receiving as much feedback as did on this. I think all members have experienced the same kind of push-back on this, that the protections provided in section 176 are there for a particular purpose.

Again, I disagree with the comments made by my colleague, the parliamentary secretary, when he pointed out that the Minister of Justice said that these things were still offences under the Criminal Code. It is not the same thing. Disrupting a religious service is not the same as creating mischief somewhere and it is not the same as causing a disruption at a hockey game. Most Canadians would agree with us on this side of the House that this is more serious, and that it should continue to have protection within the Criminal Code.

Again, I find it ironic that when this bill was presented to the public, there was mention of duelling and witchcraft, but not one mention of the fact the government would remove the specific protection for religious services and religious officials.

There was one other section of the Criminal Code I did not agree with the Liberals removing. This is the section that has specific protection if someone attempts to attack the Queen. Some of my colleagues said that these sections were not used very often, or one of my colleagues said that the Queen would not be visiting here very much in the future. Again, I believed this was a bad idea.

When I was at the University of Windsor, I will always remember that one of my law professors pointed out the sections in the Criminal Code with respect to treason. He said that it was great this section was very seldom ever used in Canada, but it did not mean it should be removed. I do not go along with the thinking that if nobody commits treason, then we better get rid of that section in the Criminal Code. That is not how it works. This is still a very serious crime. Again, if anyone attempts to attack the Queen, as Canada's head of state, in my opinion it is not the same as getting into a fist fight at a bar some night. It is important; it has significant aspects.

I have to point out that the timing of this is terrible. This is the 65th anniversary of when the Queen took the throne. Nobody has a better record anywhere of public service in the world today than she has.

It has been consistently going on since before she assumed her reign in 1952 and in her service during World War II. That is what she has done, and again this is the year the Liberals decided they would remove this specific protection against someone who is attempting to attack her.

That being said, I am pleased that the government caved on section 176. I am very pleased with respect to the clarifications with respect to sexual consent. I am very pleased as well that a number of the sections that are taking up space in the Criminal Code that no longer have any particular relevance are being removed. However, one of the things that something like this has taught us on this side is we have to be very careful. This is the lawyer in me. We have to read the fine print, and the fine print removing the protection for religious services and religious officials is something that we have to be very aware of. I can assure my colleagues on the other side that we will look at all legislation to see if what are supposed to be unintended consequences are in fact consequences of a very serious nature. Again, my heartfelt thanks go out to all those religious institutions, all those Canadians, and all those individuals who spoke up in support of section 176.

[Celina Caesar-Chavannes, Liberal, Parliamentary Secretary to the Minister of International Development]

Madam Speaker, the hon. member spoke to the fact that specifically with section 176 the opposition and Canadians at large pushed to ensure that the section was kept and not only kept but that it was expanded to include not just clergymen, but also the officiants, to include other spiritual leaders. Therefore, I wonder if the hon. colleague could speak to the fact that even though this place might seem very contentious and that we might duel in here, quite often we are very much amenable to taking advice from opposition parties and being a government that is very open to listening to great advice from our opposition members as well as from all Canadians.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Madam Speaker, I do have to admit that the Liberals certainly got the message on this one here. I remember raising this last June in the committee hearing, and all I kept hearing was that if it is mischief or people try to attack members of the clergy then that is still within the Criminal Code. It was not just our opposition, the Conservatives, who discovering this, made the push for this. As I pointed out in my speech, it was all those constituents of theirs who asked them why they were removing the sections.

However, I will give some credit to the government. I have seen the Liberals scoop up ideas from opposition members and incorporate them into government legislation. The private member's bill with respect to shipwrecks was from the NDP. The Liberals got the message that it was not a bad idea, they put it into government legislation, and I guess we are supposed to say that they should take all the credit for it. I will concede to the hon. member that when the Liberals see an amendment or a private member's bill that they ultimately feel they have no choice but to support, I can say that very often they will either incorporate that into government legislation or make some minor changes so that they can presumably take the credit for it.

[Murray Rankin, NDP, Victoria, BC]

Madam Speaker, on section 176, the Liberals would like to take credit for accepting this. Although I am not a member of the justice committee that was dealing with this issue, I know my colleague from Niagara Falls was and I understood that the Conservatives brought in amendments to section 176 and they were defeated by the Liberals. The Liberals then came back a few moments later to simply make the language a bit more gender-neutral and then that was accepted. Therefore, the Conservatives brought in an amendment to fix it, it was defeated, moments later the Liberals, because it has to be their idea, brought it forward and it was fixed. I wonder if my colleague could confirm that is how it went down.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Madam Speaker, that is a very good summation of exactly what happened. Certainly, I appreciate that. The interpretation of that section is gender-neutral and not specific to any religious organization or group. That has been its interpretation by government departments throughout the years. We suggested calling these people religious officials. However, as a minister, one of the bureaucratic suggestions made to me one time was that we should call these people officiants. I pointed out that I was not quite sure how many Canadians would know what an officiant is and that we should call them religious officials. However, I had not thought or even heard about that name for a couple of years, until the Liberals came forward and said they did not want to call these people religious officials but officiants. In the end, they got the message of section 176, and I think we are all better off for continuing religious protection in this country.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Madam Speaker, I am not so sure that I have a question, but rather a comment. I want to thank the hon. member for Niagara Falls for the work he did specifically with respect to section 176. I myself had notified over 30 churches within my riding of Barrie—Innisfil on the urging of the hon. member for Niagara Falls. Many of them were grateful for the fact that I notified them because they were not aware of the changes that were indicated in Bill C-51, specifically as it relates to religious services and religious officials. Therefore, I want to thank the hon. member for that.

I am not sure that I have a question. I know he is a humble man, and he would not want to accept any level of thanks for the work he has done in bringing this to light and making sure that all members of Parliament were able to bring it to the attention of the religious officials within their ridings as well.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Madam Speaker, I think it is perfectly understandable that so few people saw this. I had reached out to a number of religious institutions, and they were completely unaware. If we look very carefully at the press releases and the speeches of the Liberals when they tabled this bill, they made no reference to it whatsoever. They only talked about duelling, witchcraft and sorcery, those kinds of things. Those were the sections they wanted to remove from the Criminal Code. There was no suggestion whatsoever with respect to removing the protection of religious services and religious officials. As members of the opposition, I think it is our job to make sure that people know, and the hon. member for Barrie—Innisfil did exactly that. He reached out to all those religious communities within his riding and let them know. It was not a case that we had to twist their arm or make long arguments or something. They got it. They understood that, in this day and age, we must and should continue to have those religious protections. Therefore, I want to thank him, indeed all my colleagues, and all those who got the message here and kept that section in.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, I like to look at things in a non-partisan way. I thought the way the committee handled that issue of section 176 was quite non-partisan. We heard witnesses. All of the members of the committee who are not the government, from the governing side, listened to it and said they agreed that the section should be reinstated, and we did that. However, listening to the questions, it sounds like we were playing games with it.

Contrary to what my friend the member for Victoria said, there were amendments put forward by the Liberals at the very time that the Conservatives put forward amendments before the meeting. It is not that one amendment was put forward before the other, it is just that the Conservative one came up first and was voted on. It was slightly different than the Liberal one, it was defeated, and the Liberal one was adopted. It was not partisan, as it is being made out to be.

I want to congratulate my friend from Niagara Falls for what he did, because he did raise this issue first, and he deserves full credit. However, I think it was a much more non-partisan exercise than it is being made out to be. I do not want our committee to be mocked for that. I am sure my friend from Niagara Falls would agree.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I generally always agree with the chairman of justice committee, Madam Speaker. We work very well on that committee and we deal with a lot of serious subjects.

Apart from all of the discussion with respect to section 176, which is important to me, this legislation would update the Criminal Code so that it better reflects what has been taking place in the courts, and what we have been hearing with respect to a number of these offences. It would make sure that the Criminal Code is up to date. The job that we as parliamentarians and that members of the justice department have is to continuously look at those sections of the Criminal Code to make sure they reflect what is happening out there or what should happen.

The hon. member will remember we just had before our committee last week the Right Hon. Kim Campbell. She pointed out that it was she who brought in the first rape shield sections of the Criminal Code. We are talking a good 25 years ago. That was the time to make sure the Criminal Code properly reflected what was actually happening and the challenges that victims have.

These are the kinds of things that we have to continue to work on at justice committee and we will continue to do just that.

[Murray Rankin, NDP, Victoria, BC]

Madam Speaker, it is an honour to rise to speak to Bill C-51 today. I want to begin by, I suppose apologizing to my colleague from Mount Royal, who is the excellent chair of the justice and human rights committee, and who runs it in a fashion that is non-partisan, to his credit. However, from the perspective of an opposition member, it is passing strange that amendments from our side are so rarely taken up by any committee in this place.

On Bill C-58, the bill that the government calls the “access to information bill”, which I call the “denying access to information bill”, I brought forth 20 amendments, and each and every one was rejected. In this case, the chronology is as my friend suggested, and is correctly stated, but each of the amendments from the opposition was defeated. I think each of the amendments from the Liberals was accepted on this particular bill. That is the way it works in committees. I think that Canadians should know that. I find it disappointing.

On the merits of it, and in the collegiality of how the committee proceeds, I am grateful to the member for Mount Royal for the way he runs this committee. It is exemplary, and I salute him for it.

This is a non-partisan issue, and if I got off on the wrong footing by suggesting anything to the contrary, I owe this place an apology. Reform of the criminal law for all Canadians cannot be partisan. We have to get it right. We have to get the balance between the rights of the accused and the rights of victims correct, because the law is constantly evolving, as technology, for example, is constantly evolving. I will have more to say about that in a moment, in respect to sexual assault provisions.

It is to the government's credit that it is taking a number of sections of this very long Criminal Code and trying to update it, in light of what the courts have done and in light of where society is going. That is as it should be.

The NDP wants to say at the outset of this debate that New Democrats are entirely in support of the bill and will be voting for it without hesitation.

Therefore, I want to say a few things for those who might be listening about the nature of the bill. Some have called it an omnibus bill. I think one of the Conservative speakers, in June, when it was in second reading, termed it that. It is not that way. It is a comprehensive reform initiative to do four types of things.

The first is to clarify the laws on sexual assault, because there has been a lot of Supreme Court jurisprudence that requires us to restate the law to make sure we are keeping up with the times. Second, the bill would remove or amend provisions that have been found unconstitutional by the courts. That obviously has to be done. Third, a number of obsolete or duplicative offences would be removed. Fourth, there is another bill that would be amended, the Department of Justice Act, which would create a new statutory duty for the Minister of Justice to table a charter statement for every government bill.

The fourth issue is laudatory, but quite ineffective. The fact that the government tables a few sentences about why a finance initiative is consistent with the charter seems to me to be much ado about nothing. I am not sure it is of any relevance in a court of law. I think the House can assume, without having a statement, that government bills will in fact be consistent with the charter. We hardly need a statement to do that. Indeed, the charter statements that the Minister of Justice has been releasing to date add very little, in my judgment, to the issues before the House. However, I suppose one can never fault too much information, even information that is of dubious utility.

I want to start with the most significant number of amendments to the bill, which is on sexual assault. However, before doing that, I want to put it in the context of an excellent summary of the bill that was provided in the Canadian Bar Association's journal, National, that was done by Omar Ha-Redeye in the fall, just a few weeks ago. It is quite amusing how the author describes the bill. He says:

The federal government is finally doing some housekeeping of the Criminal Code with Bill C-51. It may find some hidden cobwebs--and according to some, there may even be monsters under the bed.

The Criminal Code is a place where old, obsolete, or even unconstitutional laws languish in purgatory. Most governments have been content to simply ignore these outdated provisions, knowing that most would never actually be used. The result is a long, rambling and sometimes unnecessarily confusing statute.

Amen to that.

Sometimes the code is sufficiently complicated to confuse even the judges. This is where I pause to talk about poor Mr. Justice Denny Thomas of the Alberta Court of Queen's Bench, who a few years ago convicted a gentleman named Travis Vader of second degree murder. He relied on section 230 of the Criminal Code, which had a provision called “culpable homicide” that was introduced way back in 1892.

Unfortunately, the judge was not made aware of the fact that the Supreme Court of Canada had previously repealed a part of that provision in a 1987 decision. Then it had ruled, in another decision, that the section was contrary to the charter and could not be saved under section 1. The judge had convicted this individual when the provision “allowed for a conviction of murder without the requirement for proof of subjective foresight of the mental elements for moral blameworthiness”. There it was, sitting and gathering dust, in section 230 in the Criminal Code. They had to do the whole trial again, at unknowing cost, both psychological and financial, to the system of justice in the province of Alberta, and brought the Criminal Code, frankly into disrepute as a consequence.

One has to salute the government for its efforts to bring it up to date and sweep away these cobwebs, as the author so correctly said.

There are provisions in here that are simply obsolete for other reasons, such as those relating to the prohibition on duels, which the House will be pleased to know is no longer a problem under the Criminal Code, pretending to practice witchcraft, offences dealing with trading stamps, archaic sections that no longer serve the needs of contemporary Canada. Again, the government is correctly trying to remove these cobwebs from our criminal law.

That takes me to the main event, if I can call it that—and there are a number of others that I will come to—which are the sections dealing with reform of the sexual assault provisions of the code. The minister talked about making it, “more compassionate towards complainants in sexual assault matters.”

Many of the sections in the code address changes that the courts have made, using the charter, to address problems they saw with these provisions. These sections expand the code's rape shield provisions to expressly include communications for a sexual purpose or of a sexual nature. The rape shield provisions that were introduced after the Seaboyer case in 1991 limit the types of questions that defence counsel can pose, and evidence it can introduce concerning a complainant's sexual history.

This information had sadly been used in our legal system to promote a stereotype, that a complainant is more likely to have consented, or is less credible, because of past sexual history. In 2000, the court upheld the rape shield provisions as being constitutional.

The new changes in this bill appear to stem from criticism rising in the famous Jian Ghomeshi case, which attracted a lot of media attention and dealt with societal discussions about sexual assault prosecutions in Canada. As members may recall, that case involved text messages and social media content by the complainants.

Some defence counsel are concerned that this bill will limit the evidence they can use to offer a full and complete defence. Others believe that those concerns are overrated.

Lise Gotell, national chair of the Women's Legal Education and Action Fund, LEAF, stated that the amendments simply recognized more contemporary forms of sexual communication. I agree with her. If the evidence is used for the purpose of demonstrating inconsistencies, it can still be included if it is only used to perpetuate sexual stereotypes.

I want to quote Ms. Gotell, directly, “There is no implied consent in Canadian law...and so previous sexual activity should be irrelevant to a belief that someone is consenting to the sexual activity in question.”

That is the key. There is no implied consent in Canadian law with respect to sexual assault. Past sexual history or communications on the Internet or Facebook or the like do not imply any kind of consent to the specific activity at that specific time. The courts have made that clear, and I am pleased that Bill C-51 now makes that clear as well.

More than 20 years ago, in the case R. v. O'Connor, the court ruled that medical and counselling records of a sexual assault case could be disclosed by judicial order. The government limited these productions through amendments, and that was upheld. In 1999, the court stated in R. v. Mills that the judiciary had adequate discretion to preserve a complainant's right to privacy and also still allow for a full and complete defence for the accused.

Although the nature of electronic communications today might be different, the concepts remain the same. Sexual assault complainants, who are almost exclusively women, are still subject to widespread stereotypes and prejudice based on their sexual history. Salacious texts and steamy graphics may be communicated differently today, but they are just as dangerous to the balance of justice.

These provisions that deal with the sexual assault measures of a court make a number of specific changes in addition to the ones I outlined a moment ago. The bill would amend the section to clarify that an unconscious person is incapable of consenting. Most of us would have thought that would be self-evident, but there was court case that clarified that. To the government's credit, it has brought in a clarification to the same effect.

What about incapacity to consent short of full unconsciousness, such as when a complainant is very drunk or maybe only semi-conscious? There are those who have said that somehow by putting this in, we would be creating uncertainty over those sorts of situations: severe intoxication and semi-consciousness. I am not concerned about that, because I believe there are other provisions that would address those in the code. That is one point that was made in debate at committee and elsewhere about this legislation.

Then there is the other clarification brought into the bill, which would clarify that the defence of mistaken belief in consent is not available if the mistake is based on a mistake of law, for example, if the accused believed that the complainant's failure to resist or protest meant that the complainant consented. The court clarified that in a case that was decided in 1999. Let us say that the consent was extorted, for example, someone threatens to show the world nude pictures unless the individual consents to having sex. That is not consent, and that needs to be clear . It is now increasingly clear in this case.

One thing that is fascinating in this legislation, and very positive as well, is the ability of the complainant to have legal representation in rape shield proceedings. She, as it is normally a she, can then retain counsel to be present and debate before the court the admissibility of diaries, text messages, or the like. That sounds great, and it is a positive step, but the practical reality for most Canadians is that they will not be able to take advantage of that, because sadly we do not have the money to do so. There is a dearth of legal aid in most provinces. We have a crisis in legal aid. Therefore, it is nice to have that, but I have to ask a practical question on whether people will be able to avail themselves of that. Will women be able to participate as has been suggested?

Again, to give credit to justice committee, on October 30 of this year, an excellent report on legal aid was produced. I would commend members in this place to read that report, because it talks about legal aid in very stirring terms. It talks about a service that “breathes life into the democratic principle of the rule of law by ensuring that low-income Canadians have access to the courts.”

Once again, all three parties worked collaboratively to produce this excellent report. Of course, it is an acknowledgement that most of this is provincial jurisdiction, but, nevertheless, the leadership and best practices were suggested, and I commend the committee for that.

However, unless the Government of Canada assists provinces with more legal aid funding, this laudable section that allows women for the first time to actually participate in and have a right of natural justice in criminal proceedings involving the disclosure of intimate information in situations where sexual assault is at issue, most of the time it will be irrelevant unless those women have legal aid. Canadians need to understand that reality.

I am here to make sure that this place and the government look favourably at the excellent legal aid report that was produced, so it will not just be another report gathering dust on the shelves of Parliament. I believe that the provisions at issue were dealt with very thoughtfully and are not simply symbolic. I think the report includes meaningful changes and hope that the government will move on them and put its money where its mouth has been.

A number of people are in agreement with the provisions in the report. I speak, for example, of Professor Elizabeth Sheehy of the University of Ottawa, and Emma Cunliffe of the University of British Columbia. They talked about the right of legal representation in rape shield hearings as an important step, but said it would be largely ineffectual unless provincial legal aid programs provide financial support to complainants seeking to retain a lawyer. I agree.

On the streets where these amazing workers in rape relief and women's shelters work day in and day out, tirelessly with victims of sexual assault, they also have concerns. Hilla Kerner spoke for the Vancouver Rape Relief and Women's Shelter when saying, “Women who work with us were very discouraged after what we saw in the Ghomeshi case." The provisions in the bill will send a message, Kerner continued, that "your past, the things you did before the attack and after the attack, will not deter the criminal justice system from actually dealing with the attack and holding men accountable.”

That is a very good indication that the message will be received by those who were so involved in counselling women after sexual assault. However, the law has changed. It's better now. People can come forward and do not have to be afraid. That has to be the number one objective of these amendments, namely, that women will not be afraid will not not think it is a waste of time to come forward.

The Globe and Mail is doing excellent work in showing how few sexual assaults are actually processed seriously by police departments across the land. They did an update this past weekend of an earlier award-winning series.

We are at the very heart of that issue with this bill, making it easier for women to come forward because they know there will be fairness. They will be taken seriously and the laws will not work against them. I think that is excellent.

Not everyone has applauded Bill C-51 in its entirety, in these glowing terms. Michael Spratt, the vice-president of the Defence Counsel Association of Ottawa, refers to this bill as “another half-hearted attempt to reform the justice system by grabbing the lowest of the low-hanging fruit.”

It is true that the government's mandate letter for the Minister of Justice speaks to a comprehensive reform of the Criminal Code. It is so overdue. Nevertheless, I do not fault the government for going after low-hanging fruit, in addressing duelling and trade stamps, for example, or these sorts of provisions, because it is also doing real work in the sexual assault provisions. We have to support it and give credit where credit is due.

One hopes that there will be the comprehensive reform of the Criminal Code that Professor Coughlan of the Dalhousie University, Schulich School of Law, has been seeking. I think and am confident we will get there.

On the issue of sexual assault, I commend the government for what it is doing. On the issue of charter statements, I say ho-hum, nice, but so what? However, on this stuff, this key change to our Criminal Code to give women in this country the confidence that it is worth coming forward, the government needs to be commended. We will support this bill without reservation.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, I thank my hon. colleague from Victoria for his excellent speech and very kind words about me and the committee. I want to return the compliment. He is an incredibly productive member of the committee and helpful whenever he sits with us. I also want to note that there were, indeed, opposition amendments accepted. I will note clause 25, for example, where we did accept a Conservative amendment. It was not only one party's amendments.

What I do think is a systemic problem is the fact that parties work together on their own amendments and then go off in one line, and then it is harder at committee meetings thereafter to agree to other amendments. Maybe we can all work on amendments together, going forward. Maybe the amendments process will then be more harmonious.

My question is with regard to the people talking about a bright line on unconsciousness. After hearing from many witnesses, the committee decided to say that consent needed to be ongoing. Indeed, we accepted an amendment to clarify that consent needs to be ongoing. I think that resolves any concerns people had about unconsciousness being a bright line.

I would like to ask the hon. member for his opinion on that.

[Murray Rankin, NDP, Victoria, BC]

Madam Speaker, I thank the hon. member for Mount Royal and chair of the justice and human rights committee for the clarification.

On the general point, I wish there were an opportunity for us to work together before we get there. When there are a lot of amendments, the timing does not allow us to know what the other side is going to do, so we often end up in an unnecessarily adversarial place at committee. I think we could learn from that, as there is often better dialogue in committee the hon. member chairs than many others. That would maybe allow us not to waste so much time and to find a consensus on legislative provisions. The more of that, the better, as far as I am concerned.

On the unconsciousness provision, I agree. Insistence on ongoing consent before the act, during the act, and after the act is critical. The lack of consciousness my friend talked about was of great concern to some, because if one says that lack of consciousness, or total unconsciousness, vitiates the consent, then what about someone who is semi-conscious or very drunk and it is not clear if that person is able to consent? This insistence on ongoing consent would do the trick. However, I can say there are defence lawyers lining up to make the argument to the contrary.

[Peter Kent, Conservative, Thornhill, ON]

Madam Speaker, I thank my colleague for a fine speech, reflecting his previous career in law and as a scholar. I would like to ask him about one of the elements of the Liberals' proposed legislation that is important to many of us on the official opposition benches.

I am wondering whether my colleague sees, as we in the official opposition see, something of a forewarning in the removal of Her Majesty's portrait from that vast wall in the Global Affairs entrance hall in favour of the two admittedly fine works of art by the great Quebec master, Alfred Pellan. Because my colleague is from a royal city, I wonder whether he agrees with those of us in the official opposition that the Liberal government, by attempting to withdraw the offence of an assault on Her Majesty from the Criminal Code, has demonstrated or reflected diminished respect for our head of state. Or, does my colleague think it was merely an ill-considered proposal made by the justice minister?

[Murray Rankin, NDP, Victoria, BC]

Madam Speaker, I must say that I admire Alfred Pellan as an artist, so I am conflicted in answering the specific question about the art.

However, on the more global question, the Queen of Canada is the Queen of Canada, and I know that in my community, she is an immensely popular figure. My colleague from Niagara Falls pointed out her exemplary record of public service, and I do not think anyone can disagree with that.

I disagree with the hon. member for Niagara Falls that the section in question concerning the royal personage would somehow be affected. I do think it was an obsolete provision. The other provisions that are in still in place in the code would adequately deal with Her Majesty when she comes to this country. Whether the government is demonstrating, in his words, a “diminished respect” for the head of state is something I cannot comment on, but I know that in my community of Victoria, there is no such diminishment.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, going back to the same question raised by my friend from Thornhill, I do not know if he is aware of this, but the Monarchist League of Canada itself submitted a brief that did not complain about removing this provision. Therefore, we on the committee concluded that if the Monarchist League of Canada did not object to it, there was no real harm in removing the provision. Does my friend from Victoria agree?

[Murray Rankin, NDP, Victoria, BC]

Madam Speaker, I come from a place where the Monarchist League is a very strong part of our community. I can assure the member that I would taken precisely the same position if I were in the shoes of the chair of that committee.

The provisions that exist in the code adequately deal with that. There is something to be said for brevity. This statute is enormous and only gets larger and longer over time. As I started by saying, the mandate letter requires the minister to do some serious housecleaning. Some of the low-hanging fruit and cobwebs have, indeed, been addressed, and some of the more meaningful sections that needed to be fixed, such as on sexual assault, have been modernized and improved, to the government's credit. However, there is so much more work to be done with the Criminal Code. We should make it shorter and clearer so that Canadians understand their rights and responsibilities as citizens from coast to coast to coast.

[François Choquette, NDP, Drummond, QC]

Madam Speaker, I thank my hon. colleague for his excellent speech and for his commitment to standing up for Canadians on this issue, which is a complex one and requires significant expertise. I do not have that expertise, but I understand a little about what happened in committee.

What I understand is that the NDP proposed a number of amendments. For example, we tried to clarify the definition of “no consent obtained” with respect to sexual assault in the Criminal Code of Canada, to ensure that the complainant being unconscious is not kept as the threshold for incapacity to consent.

We also tried to change the process for introducing the complainant's private records at trial. Unfortunately, the Liberals rejected these amendments.

Could my colleague tell us about the famous definition of consent and the evidence that may be submitted at trial? For example, Emma Cunliffe, from the Peter A. Allard School of Law, spoke about an agenda that had been stolen by the accused and the problems that this had created.

Could my colleague speak further to these two very important notions?

[Murray Rankin, NDP, Victoria, BC]

Madam Speaker, as I was not present during the debate on this bill at committee, I only have the summary available to me, but it is true. The hon. member is correct. The NDP did attempt to more clearly define the meaning of the phrase, “no consent obtained”, in one of the sections relating to sexual assault, such that, “the complainant is unconscious”, would not be kept as the threshold for incapacity to consent. We tried to make changes to the process for introducing private records of the complainant at trial as well, and the government members defeated us on those amendments.

In raising this concern, I think we were buoyed by Professor Benedict from the UBC law school, who said in regard to the need for ongoing consent that it had to be a yes that was not extorted through any kind of pressure. The fact that someone is blackmailed into providing consent is also something that we need to make sure of. Therefore, by raising the word “unconscious”, we wanted to make sure that there was no effort elsewhere to somehow limit the requirement of the consent that must be ongoing in every case. We thought we had a better way of doing it. That was not accepted, but in general we have come to a place that the NDP can support.

[Ali Ehsassi, Liberal, Willowdale, ON]

Madam Speaker, before I begin, I would like to inform the House that I will be splitting my time with the member for Oakville North—Burlington.

It is a great honour and privilege for me to fellow in the footsteps of my learned friend from Victoria and the chair of our committee, the member for Mount Royal.

I am grateful for the opportunity to rise today to speak about 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 was honoured to study and vote for Bill C-51 at the Standing Committee on Justice and Human Rights. The bill would strengthen the Criminal Code and other related legislation to ensure that laws are clear, up to date, show fairness to victims, and are in line with the Canadian Charter of Rights and Freedoms. Our government is committed to making progress on addressing sexual assault and gender-based violence. I am very proud that Bill C-51 is an important part of our effort to attain that goal.

Sexual assault and gender-based violence are a tragic reality for Canadian women and men, and we need our laws and criminal justice system to be responsive and to treat victims with respect and compassion. There have been major reforms to sexual offences in the Criminal Code ever since the 1970s, and the changes in Bill C-51 are logical next steps on that critical path.

At committee we heard from women's groups and members of the legal community that the current legal framework under the Criminal Code could be strengthened, especially on the question of consent. Bill C-51 would add clarification to existing law that no consent can be obtained if a complainant is unconscious, as outlined in the Supreme Court decision in J.A. This does not mean that someone just short of unconsciousness is able to consent, even though the person is otherwise incapacitated. Bill C-51 makes it clear that an inability to consent can be for reasons other than being unconscious. The committee also adopted an amendment proposed by one of my Liberal colleagues to further codify the J.A. decision in Bill C-51 by clarifying that consent cannot be given in advance and that it can be withdrawn at any time. As our understanding of consent changes, our laws obviously have to keep pace.

Bill C-51 also proposes to strengthen consent in the Criminal Code by codifying aspects of the Supreme Court's decision in Ewanchuk, notably that an accused is not able to rely on the defence of an honest but mistaken belief in consent if said belief was based on the passivity of the complainant. It is vital that the Criminal Code is clear, to avoid any misapplications of the law.

The witnesses at committee also spoke at length about how a sexual assault trial can be very difficult for the complainant and how unfortunate stereotypes and myths about sexual assault victims continue to pervade our society. Bill C-51 would make important changes in the safeguarding of the privacy of victims. To ensure that the justice system does not perpetuate such stereotypes, the bill would strengthen the rape shield provisions that protect complainants.

Clarity is paramount for any criminal code to be fair, accessible, and comprehensible. From time to time, we must clean up the code to remove provisions deemed redundant, obsolete, or indeed unconstitutional. In the committee's study of the bill, we had numerous legal scholars and experts voice their support for the government's repeal of sections of the Criminal Code that are no longer necessary. In a modern Criminal Code, there is no need for an obsolete provision such as the offence of fraudulently pretending to practice witchcraft. Likewise, we heard from witnesses such as Greg Oliver, of the Canadian Secular Alliance, that Canada's blasphemy law is obsolete and potentially in violation of the charter guarantee of freedom of expression. I was honoured to have sponsored the petition started by Mr. Oliver on this issue and am gratified to see that Bill C-51 would repeal section 296 of the Criminal Code, the prohibition on publishing blasphemous libel.

Although Bill C-51 proposed the repeal of section 176, given that it is rarely used and that other areas of the Criminal Code cover the relevant offences, the committee listened to the concerns of religious groups and constituents. They told us that they believed that this provision was important to send a clear message about Canada's commitment to the protection of religious freedom. For this reason, the committee adopted an amendment put forward by a Liberal member to reinstate section 176. This amendment would also change the language to make it inclusive of all religious and spiritual faiths and to make it gender neutral. Our laws must make sure that all Canadians, regardless of their religious affiliation or gender identity, are free to practise their faith.

During the committee's study of Bill C-51, I was also pleased to support the bill's proposed changes to the Department of Justice Act that would create a new requirement for charter statements. This new section would mandate that the Minister of Justice table a statement outlining the potential effects of all government bills on charter-protected rights and freedoms. The charter is the most fundamental way in which the basic rights and freedoms of all Canadians are enshrined in law. It is imperative that proposed laws are clear in their relationship to these basic rights and freedoms. I applaud the government for taking this pivotal step to ensure transparency and respect for our charter.

I am proud to have participated in the study of Bill C-51 by the Standing Committee on Justice and Human Rights. It is clear to me that this bill would strengthen sexual assault law. It would also modernize the Criminal Code and make it clear and accessible, while also placing the Charter of Rights and Freedoms at the centre of our focus when crafting new laws.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, one of the issues that has been talked about virtually since the legislation became known was the issue of religious freedom. It is important to recognize that this is a good example of grassroots involvement in improving the legislation. I had a number of constituents raise the issue of leaving section 176 of the Criminal Code alone, because it protects religious freedom. I believe it was not an individual in the House but rather responses from many constituents that caused the government to make the change at the standing committee in support of ensuring that this section remained in the Criminal Code. I wonder if my colleague could expand on the idea of how legislation can be improved by average Canadians contacting the government or their local members of Parliament and how it can make a difference.

[Ali Ehsassi, Liberal, Willowdale, ON]

Madam Speaker, section 176 was an issue that came to our committee. Obviously, in the draft, we were not sensitive to some of the implications of section 176. However, after having had a chance to consider it, we focused on it. Of course, one of the important things for any committee is to be receptive to things that are brought to its attention and for it to think long and hard about what the implications of any proposed changes would be. In this instance, after having heard from various constituents who were concerned, we all took a sober look at it. I am happy to say that all parties were quite collegial in our approach to this issue. We realized that perhaps they had raised a significant point, and we made those necessary changes.

[Ron Liepert, Conservative, Calgary Signal Hill, AB]

Madam Speaker, the member is on the justice committee. I happen to serve on the justice committee. I saw the Liberal members fight this right to the very end. Now they seem to be standing in this House taking credit for this initiative.

Had the opposition critic for justice and the various organizations across this country not put on all this pressure, would the Liberal members of the justice committee actually have agreed to this amendment?