Madam Speaker, I am pleased to rise in the House today.
We just decided to see the clock as 6:30 p.m. As a member of Parliament I always find it fascinating and somewhat magical to see how this place works.
That segues nicely into the bill before us. There are several parts to this bill, but one part seeks to remove outdated provisions from the Criminal Code, including a provision on magic. I find that especially interesting as a matter of discussion.
One example of an outdated section of the Criminal Code is the provision under which it is prohibited to fraudulently pretend to practise witchcraft. It is not hard to see that these measures are no longer of any real use. Over the past few years, only one case of fraudulent practice of witchcraft was prosecuted under section 375. When the person being prosecuted agreed to reimburse their clients, the charges were dropped.
Another example of an outdated measure that will be removed through this bill is the ban on challenging another person to a duel. It will therefore now be permissible to challenge someone to a duel.
As a former fencer, a sabre fighter, I find it particularly interesting to know that I could now challenge someone to a duel. That is interesting. All kidding aside, those types of provisions in the Criminal Code have not been used in a very long time and are no longer really relevant. It makes complete sense to remove them from the law and it is something that could have been done quite quickly.
Before we move on to private members' business, I just want to mention that the former Conservative justice minister proposed that the bill be divided so that we could study the different measures separately. This would have enabled us to get through these outdated Criminal Code provisions very quickly.
For the sake of the debate, I will list a few other sections that will be withdrawn. Many of us have probably done this without knowing it was against the law, but it is prohibited to offer a reward without questions for the return of a stolen item. We see this occasionally, especially for items with sentimental value. For example, it might be a camera containing all our vacation photos and the birth of our children, so photos that are very important and meaningful. It is the photos that give value to the device. Many people who really wanted their photos back often said that they would not ask questions if the camera was returned because all they wanted was to get their pictures. Most people did not know that under the Criminal Code it was illegal to do that. I think it is appropriate to remove those measures.
Possessing a crime comic is also a criminal offence. It was believed that reading a comic showing a crime could lead young people to criminal behaviour. We have moved well past that, in any case. Young people still read comics, but society has moved on to more advanced technologies like video.
It is a good thing to remove these outdated measures. Unfortunately, eliminating all these provisions from the Criminal Code will not solve the problem set out in Jordan, namely that our courts are bogged down and that proceedings must move more quickly if we want to provide better justice. Neither will it prevent the release of criminals due to overly long delays.
This situation will not be fixed because unused sections are being removed. Even if they are taken out of the Criminal Code, there will not be fewer cases before the courts, because these sections were not being used anyway.
The bill will ensure that, with respect to government bills, the Minister of Justice will table a notice of compliance with the charter of rights. That is fine, because it is important to have access to that information.
The rest of my speech will focus on one of the other provisions of the bill, a particularly interesting one. It will clarify the notion of consent with respect to sexual assault. This is particularly important, and I believe that when the bill is examined in committee it would be worthwhile to seriously think about further clarifying some of the other aspects.
As for sexual assault, the bill clarifies the fact that someone who is unconscious is unable to give consent. I know that this seems like common sense for most people, but this will be explicitly clarified. Consider what happened recently when a taxi driver was caught with his pants down with an unconscious victim in his taxi. Unfortunately, he managed to win in court because he said that when the act began, the individual was conscious and then lost unconsciousness afterward. By explicitly setting out that an unconscious individual is unable to give consent, this avoids having victims not being recognized as such, and it prevents perpetrators from getting away with assault through what, for goodness’ sake, is some offensive legal trickery. To any reasonable person, it is patently clear that someone who is unconscious cannot give consent and that, by extension, someone who becomes unconscious withdraws consent.
So the defence of mistaken belief will no longer be available. The bill clarifies that a person must have confirmation of consent and cannot simply say that they were certain of having obtained it; that line of defence will no longer be sufficient. That is also important, because it specifies that you cannot simply say that you are sure to have obtained consent, and that is it. The bill goes much further in the notion of consent. It says that you must be really sure and that you cannot simply rely on your own judgment to deem that a person is consenting.
That broadens the scope of the rape shield provisions. For instance, it prevents the use of communications of a sexual nature. The courts have already demonstrated that it is not possible to use a victim's sexual history to undermine her credibility. What is being added is the electronic version of all that. For instance, you cannot use text messages, messages sent by the victim to her Messenger contacts or by email to suggest that she is promiscuous. The prohibition on using a victim's prior sexual history is being updated with the addition of new technologies. That is a useful aspect.
Right now, I would like to talk about another concept, which is all too often ignored and truly deserves serious consideration. When we do the study in committee, I would very much like to see this concept corrected as well. Much like in the bill, this revolves around consent.
What I will be talking about also revolves around consent. I am talking about stealthing, the act of deliberately and secretly removing a condom during sex without consent from the other person. Often people do not realize that it is a crime, but it is. According to some articles I read, this practice is on the rise. It is important to state clearly in the bill that this is a criminal offence.
When someone consents to having protected sex with another person, then removing the condom without discussing it first amounts to withdrawing consent. It is sexual assault. Victims find that they are not taken seriously when they report this assault to the police. They are told that if they are not pregnant and did not catch an STD, then they have no reason to complain because they consented to the act in the first place. The victims feel extremely bad, dirty, and very misunderstood. They are often told that it is not a crime.
Police officers need to be better educated, but we also have to amend the bill in committee to clarify the concept of sexual consent. We must make it clear that when someone consents to having sexual relations under certain conditions, using a condom for example, and another person secretly removes the condom, that constitutes sexual assault. This would help make the victims feel better understood and would avoid minimizing what they went through. That clarifies consent.
Moreover, just because someone consents to sexual relations that does not mean they have consented to anything and everything. Partners have the right to set their limits. There are some things that people do not want to do. Just because someone consents to having sexual relations with another person that does not mean that they are agreeing to engage in sodomy. If a person does that against their will, even though they may have consented at the beginning to the sexual relations, any action that goes beyond that consent becomes sexual assault.
Unfortunately, this is poorly interpreted. When victims complain to the police, they are told that it is partly their fault because they consented at the outset, that nothing can be proven, and it will be their word against their partner's. Therefore, people do not complain and, since there are no complaints, there are no convictions. As a result, in people's minds, this may or may not be a criminal act.
On the subject of stealthing, in January, a French man was convicted of rape in Switzerland, because he had removed the condom during sex. I have not found any case law on the subject here, but this might apply to some cases.
For example, there is the case where the male partner intentionally put holes in the condoms so that his partner would become pregnant. He was afraid of a breakup and believed that his spouse would not leave him if he made her pregnant. The court eventually recognized that this was sexual assault, because she had not consented to unprotected or unsafe sex. She had consented to sexual relations with a condom.
With regard to consent, we must take the opportunity afforded to us by Bill C-51 to broaden the scope and add amendments to really clarify this concept. That way, there will no longer be any doubt when the courts have to interpret consent in sexual assault cases.
If all of the amendments are passed, the concept of sexual consent will eventually be clarified. I think it is a good idea to ensure that this information is passed on to police officers. We also need to ensure that the police have more training so that they have a better understanding of what constitutes sexual assault, because in some cases they may think that a person has not been sexually assaulted when in fact he or she has and they should be investigating. Crown prosecutors who analyze these cases and police investigations must also receive training, obviously.
Another important thing to point out about sexual consent and sexual assault is that, although legal measures can be taken to clarify these concepts, funding is also necessary to help victims. We need to ensure that they are properly represented and have the help they need to cope with this ordeal. We need to be logical about this. If we really want to help victims of sexual assault, we cannot just look at this issue from a legal perspective. We also need to look at it from a financial one. Victims need access to legal programs and support programs.
Sexual assault has an enormous impact on victims and their ability to contribute to society. I think we would be wise to invest in better support for them so they can recover more easily. Recently, there has been a lot of talk about post-traumatic stress disorder. However, we need to bear in mind that many people suffering from it are victims of sexual assault. Too often they stay silent or avoid talking about it much. We must be able to support victims and provide them with the necessary care. When looking at compensating victims of crime, we need to avoid subjecting them to a never-ending administrative process. They have already gone through enough psychological trauma. They do not have the energy to fight to be recognized as victims. For many of them, just saying that they are victims of rape or assault is very difficult.
We still have a lot of work to do. I sincerely hope that the committee will study this bill carefully. I also hope that we will accept amendments to explicitly clarify consent by including “stealthing” and by clearly explaining that consent can be withdrawn at any time during sex. Even during the act, a person can withdraw consent if things are not happening the way they should. If the individual withdraws consent but the partner does not respect this decision, this is sexual assault.
I hope we will do the work required for the sake of victims. The concept of consent must be clarified to avoid such cases in court. In some cases, if we had used common sense, we would have clearly seen that this did not make sense, that the individual could not have given consent. I believe that, if we clarify this concept, we will be able to avoid traumatizing victims going through the legal process and having them come out of it in worse shape than they were at the beginning.
I look forward to answering my colleague’s questions.
