House of Commons Hansard #368 of the 42nd Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was treatment.

Topics

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:10 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

Madam Speaker, of course, I reject the characterization of the significant work our government is doing to move forward with many pieces of significant legislation and to look to this House and to Canadians for input, debate and discussion on how we can move forward with what our government has committed to in terms of law reform.

To characterize this as last-minute, reflects the lack of importance the member opposite places on engaging with Canadians, having robust discussion, and listening to committees and hearing their recommendations and incorporating them to improve government bills.

This is a commitment our government will continue to follow to ensure that our laws benefit from the vast experience, in this case, of criminal justice stakeholders and victims groups. We will not disregard that. We have been working in a consistent manner, from day one, to ensure that our legislation, the bills we introduce in this place, reflects the desires of Canadians. It is our responsibility to ensure that these bills move forward in the most expeditious manner possible.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:15 p.m.

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Madam Speaker, I am not satisfied with the minister's previous response to my question. We can look at the legislative track record of the Minister of Justice, starting with Bill C-28, the victim surcharge bill, which was rolled into Bill C-75. We had Bill C-32, which was rolled into Bill C-39, which was then rolled into Bill C-75, and now we have Bill C-51.

I talked about tactics. Time allocation is a tactic. It would have been an unnecessary one if we could have dealt with the substantive provisions in all those bills, but instead, the government's strategy was to basically string us along with the introduction of these justice bills that would clean up the inoperative provisions of the Criminal Code and then leave them in some kind of purgatory stuck at first reading.

When the Minister of Justice took office, everyone knew that there were zombie provisions in the Criminal Code that had to be cleaned up. This has been a topic of discussion for decades, and every year, the Criminal Code is faithfully reproduced with all of these mistakes.

Again, why did the Minister of Justice, in 2016, the first year of her mandate, not take the provisions in Bill C-32 and Bill C-39 and elements of Bill C-51 and package them in one bill? We could have had that passed, done and dusted by now, but instead, they were rolled up with contentious provisions, and they are still being debated. Bill C-75 has only just been sent to the Senate. Who knows how long it is going to take there?

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:15 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

Madam Speaker, in terms of reintroducing the Criminal Code, I am incredibly proud to be part of a government that has taken action, which has not been taken for decades, as the member mentioned, to ensure that we have a modernized Criminal Code, that we remove the unconstitutional provisions, the zombie provisions, that we update the laws around sexual assault and intimate partner violence and that we look at the victim fine surcharge as well as section 159. All of these are issues raised in government bills the member opposite has spoken to.

We are moving forward with comprehensive reform of the criminal justice system, and that starts with looking, in a substantial manner, at the Criminal Code. This is what we have sought to do and what is contained in Bill C-51 and also in Bill C-75.

I look forward these two pieces of proposed legislation becoming law so that we can do what has not been done for far too long, which is modernize the Criminal Code.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:15 p.m.

Winnipeg North Manitoba

Liberal

Kevin Lamoureux LiberalParliamentary Secretary to the Leader of the Government in the House of Commons

Madam Speaker, one of the things we need to emphasize is that in preparation for bringing forward Bill C-51 and previous legislation, there has been a great deal of background work with many stakeholders in different jurisdictions. I wonder if the minister could provide her thoughts on the importance of having done a lot of the preliminary work and give us a sense of some of the background work leading to the introduction of the legislation itself. Not only has there been a thorough debate, with questions and answers, in committee and in debates inside the chamber, there was also a great deal of consultation prior to the legislation even being introduced.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:15 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

Madam Speaker, when we formed government, we could have, as has been suggested here by members opposite, introduced legislation to do what potentially we knew needed to be done. However, we sought to engage broadly to get feedback to ensure that the commitments the Prime Minister asked me to address in terms of a robust review of the criminal justice system, including sentencing reform, were done in a manner that was reflective of what Canadians were saying and what the actors in the criminal justice system were saying.

We engaged right across the country in a series of many round tables in each jurisdiction to get feedback from not only defence counsel, prosecutors and the judiciary but from victims groups. I also engaged in three separate federal, provincial and territorial meetings with my counterparts to come up with the bold and necessary reforms we make to address delays, efficiencies, and effectiveness in the criminal justice system.

As well, we had forums where we talked about sexual assault and what we could do in terms of improving the laws around sexual assault and making them compliant with the Supreme Court of Canada decisions. We did this in consultation with actors in the criminal justice system, victims and representative groups not only here in Ottawa but across the country. We provided a report on our consultations entitled “What we heard”.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:20 p.m.

Conservative

Jim Eglinski Conservative Yellowhead, AB

Madam Speaker, I was appalled when I heard that the Liberal government was trying to remove section 176 of the Criminal Code. This is the only section of the Criminal Code that can directly protect the rights of individuals to freely practise their religion, whatever that religion might be. It was recently used in a case on June 9, 2017 here in Ottawa.

Why did the Liberals back down on removing section 176? Was it due to public backlash and they did not properly investigate this? Why are they not trying to hybridize this under Bill C-75?

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:20 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

Madam Speaker, I believe I understand the member's question. With respect to section 176, he characterized it as backing down, but what we did is we listened to what the committee members sought to say around religious officiants and we recognized the recommendation in terms of the amendments that the House of Commons Standing Committee on Justice and Human Rights made and acknowledged that and accepted that. We did make some amendments to ensure that this reflected all religious officiants as opposed to the confined way it was drafted in terms of the amendments that were proposed at the House committee. Basically the answer is that we listened to what the House of Commons committee said. That is the importance of committees in this place that we take incredibly seriously.

In terms of hybridization of offences, we are proposing in Bill C-75, which is not the bill at issue here today, a number of offences to be hybridized, to contribute to the broad and bold criminal justice reforms that will address delays, efficiencies and effectiveness in the criminal justice system. By hybridizing certain offences, it gives prosecutors the ability to exercise their discretion and proceed in terms of criminal charges in the most expeditious manner as appropriate to the circumstances of a particular case.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:20 p.m.

Conservative

Erin O'Toole Conservative Durham, ON

Madam Speaker, one of the good things about time allocation is it does give us more time with the minister here on the floor of the House of Commons, particularly to speak on justice issues. I spoke in debate on the bill last week with respect to the charter statement document that her department is developing for each piece of legislation. My concern about this so-called charter statement is that it could send a chill suggesting the government feels that there would be no charter claims available, when it is not Parliament but a court that determines whether there is a charter violation.

I refer the minister specifically this morning to the editorial by Chief Fox on Bill C-69 in The Globe and Mail demonstrating that the charter statement in that piece of legislation obviously did not respect the views of many indigenous leaders. We are talking about justice, about the charter statements. I would like the minister to comment on how her department consults with respect to charter statements for government legislation if there are indigenous rights underlying the substance of the bill. Chief Fox's commentary was on Bill C-69 and its anti-pipeline focus, but I would like the minister to comment broadly on the use of charter statements and how she obtains input from indigenous leaders in the preparation of those statements.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:20 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

Madam Speaker, I appreciate the member for Durham raising charter statements because one of the significant pieces of Bill C-51, when hopefully it becomes law, is it will be a direct responsibility of the government to introduce a charter statement with each piece of government legislation.

I would be happy to speak with the member for Durham at any time, not necessarily in the House, about the robust legislation and activities of the Department of Justice. I would extend that invitation to him.

In terms of charter statements, they are the responsibility of the Minister of Justice to look at government legislation. Charter statements are not legal opinions, but they detail where the charter is potentially engaged by a piece of legislation that the government is putting forward. It provides a window into how government decisions are made or the thought processes that government went through in terms of putting forward a piece of legislation. This is something that has not been done before. This is something that is contained within Bill C-51. With the coming into force of that bill, the charter statements will be applicable to all pieces of government legislation.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:25 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Madam Speaker, the hon. minister alluded to the repeal of section 159 of the Criminal Code. Section 159 is another unconstitutional section relating to anal intercourse. More than two years ago, with a whole lot of fanfare, the government introduced Bill C-32 to repeal section 159. Bill C-32 was such a priority of the government that the bill remains stuck at first reading.

The Liberals then, as the member for Cowichan—Malahat—Langford pointed out, rolled Bill C-32 into Bill C-39, which would remove, in addition to section 159, other unconstitutional sections. Bill C-39 is such a priority of the government that after being introduced on March 8, 2017, it remains stuck at first reading and two years later, section 159, an unconstitutional section, remains there in black and white in the Criminal Code. Can the minister explain this?

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:25 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

Madam Speaker, again to the question and comments of my colleague across the way with respect to section 159 and the legislation that has now been put into Bill C-75, removing this provision in the Criminal Code is a priority of our government, as are all of the provisions contained within Bill C-75. I am very pleased that Bill C-75 has passed third reading in this House and will be debated and discussed in the other place. I look forward to the results of the deliberations from the other place.

I would say that we are committed to ensuring that Bill C-75 moves through the parliamentary process, benefits from the parliamentary process and becomes law as soon as possible. From what I can account for from the member's comments is that there are major pieces within Bill C-75, if not the entirety of Bill C-75, that are in the interest of moving forward and amending the Criminal Code and addressing the issues that have been raised by members in this place.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:25 p.m.

Conservative

Dan Albas Conservative Central Okanagan—Similkameen—Nicola, BC

Madam Speaker, I appreciate the Minister of Justice being here today.

The member for Durham raised the question on the process of charter statements. Recently, we had some debate in this place regarding the back to work legislation for Canada Post. A former justice and current senator described the charter statement put out by the Minister of Justice in very negative terms, which I will not use here today. I also read the statement. It was a page and a half fig leaf giving the government some sort of charter coverage, so to speak, in regard to it.

The minister has said that this process will be continuing on for each piece of legislation. How much direction does the minister give to her staff in the Ministry of Justice, and how much political imperative does she give, or is there an objective process? I would hope she would be willing to explain that, because parliamentarians would like to know the answer.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:30 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

Madam Speaker, again I am pleased to stand up and speak to the charter statement, which is a very substantial part of Bill C-51. I have, as the Minister of Justice, introduced charter statements with each piece of government legislation that I have introduced in this place. I will say that charter statements are meant to be informative. Charter statements are meant to make the thoughts and the thinking behind government legislation accessible to Canadians, not to provide legal advice to Canadians or legal advice to this place. As the Minister of Justice and the Attorney General and the chief law officer of the government, I provide legal advice to the government.

What I believe is incredibly useful, and I have had feedback in this regard, is to have a discussion about where the charter is engaged with respect to specific pieces of legislation and to reference case law that has considered the issues in terms of specific charter sections to give an idea or window into government legislation and where the charter may or may not be implicated. This is the idea behind this. Again, it is not legal advice.

I will not comment on comments that were made by the hon. members of the other place, but I take great pride in ensuring that our charter statements provide the information and the accessibility not only to members in Parliament but to Canadians generally. This is a practice that will continue. This is a practice that has assisted in terms of getting a window into the eyes of where the charter is implicated in terms of government legislation.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:30 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

It is my duty to interrupt the proceedings and put the question necessary to dispose of the motion now before the House.

The question is on the motion. Is it the pleasure of the House to adopt the motion?

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:30 p.m.

Some hon. members

Agreed.

No.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:30 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

All those in favour of the motion will please say yea.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:30 p.m.

Some hon. members

Yea.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:30 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

All those opposed will please say nay.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:30 p.m.

Some hon. members

Nay.

Bill C-51—Time Allocation MotionCriminal CodeGovernment Orders

12:30 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

In my opinion the nays have it.

And five or more members having risen:

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

Vote #976

Criminal CodeGovernment Orders

1:10 p.m.

Liberal

The Speaker Liberal Geoff Regan

I declare the motion carried.

I wish to inform the House that because of the proceedings on the time allocation motion, Government Orders will be extended by 30 minutes.

The House resumed from December 6 consideration of the motion in relation to the amendments made by the Senate to Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act.

Consideration of Senate AmendmentsCriminal CodeGovernment Orders

1:10 p.m.

Liberal

Anthony Housefather Liberal Mount Royal, QC

Mr. Speaker, Bill C-51 is a broad and complex bill. If I have the time, I will entertain further discussion of the merits of the bill, which I feel is a good bill.

Bill C-51 proposes many different things in clarifying provisions relating to sexual assault, repealing unconstitutional provisions of the Criminal Code, clarifying and strengthening our charter by ensuring the government prevents charter statements for every piece of government legislation and seeking to avoid unnecessary litigation by enhancing our understanding of the criminal law.

This debate is essentially about the Senate amendments to the bill with respect to the issue of sexual assault.

As these issues were covered by the House of Commons Standing Committee on Justice and Human Rights when it debated the bill, this is an interesting analogy to bring to the attention of the House. We did not support the amendments that were brought forward by Senator Pate, amendments that were adopted by the Senate.

When we were debating the sexual assault provisions in the bill, there was enormous discussion.

The bill's intent is to codify the decisions of the Supreme Court of Canada in J.A. and Ewanchuk.

In the decision in J.A., the intent was to set out and make it clear that someone would not be capable of providing consent when unconscious, but also that there were other instances in which the individual might be unable to provide consent.

In the case of Ewanchuk, the issue related to a misunderstanding of the law, clarifying that a mistake of law was not a defence to sexual assault.

When the legislation came to the Standing Committee on Justice and Human Rights, we introduced amendments to clarify what people were concerned about when they came to testify about the bill. We heard from a wide range of witnesses, representing groups on all sides of the spectrum, from defence counsels and prosecutors to women's groups, victims' groups, etc.

We wanted to ensure that it was very clear that unconsciousness was not a bright light, meaning that anything short of unconsciousness would be seen as potentially not allowing one to say that consent was not extended.

As such, the Standing Committee on Justice and Human Rights made an amendment to make clear that consent had to be contemporaneous at the time of the sexual activity, that it must be ongoing, that it would not be valid if made in advance and that the person engaging in sexual activity was allowed to withdraw consent at any time. That amendment was supported by all members of the committee.

We also had an amendment to clarify Ewanchuk with respect to the mistake of law defence. We were concerned that the bill as originally drafted would possibly allow people to conclude that a mistake as to fact would no longer be a defence. We clarified that portion of the bin the bill to make it clear that it was only a mistake in belief as to what the law was that would no longer provide a defence allowing a mistaken belief as to fact to continue to constitute a limited defence.

For clarity, that means if someone who erroneously believes that when married, a spouse has to consent and that there cannot be sexual assault in marriage, that is a mistake as to law and it is not permitted anymore as a defence. That clarifies the Supreme Court decision in Ewanchuk within the Criminal Code.

That was what our committee had done, but the Senate went far beyond that and made amendments that sought to set out an additional framework of what type of capacity was required for consent.

The Senate added that lines 17 to 20 be replaced to say:

(b) the complainant is incapable of consenting to the activity in question for any reason, including, but not limited to, the fact that they are

(i) unable to understand the nature, circumstances, risks and consequences of the sexual activity in question,

(ii) unable to understand that they have the choice to engage in the sexual activity in question or not, or

(iii) unable to affirmatively express agreement to the sexual activity in question by words or by active conduct;”, and...

(3.1) For greater certainty, capacity to consent at the time of the sexual activity that forms the subject-matter of the charge cannot be inferred from evidence on capacity to consent at the time of another sexual activity

These are all very well-meaning amendments. They are amendments that seek to clarify capacity, but I am afraid that these amendments may have unintended consequences, could prolong cases a great deal by leading to enhanced questioning in all of these areas and, in fact, go way beyond what the Supreme Court said in J.A. and go beyond the intention given to the legislation, which was to codify the decision in J.A.

The Minister of Justice has advised us that she will be undertaking further consultations with relevant groups across the country and may come back to us with further clarifications to the legislation on capacity. However, I believe that putting forward these very detailed amendments that were not considered by the witnesses who appeared at the House committee or Senate committee because these were not on the table in the legislation, so we did not hear from the wide spectrum of witnesses on their thoughts about the draft language, leads to us using very specific draft language that the legal community across Canada was not consulted on.

I would also draw the attention of the House to the fact that the committee considered amendments very similar to this that were brought forward by my colleague from Cowichan—Malahat—Langford in the New Democratic Party who sat on the committee at the time. When those amendments were brought forward, I found them to be confusing. I asked a question of the officials from the Department of Justice that I would like to put on the House record. This is from the record of the justice committee. I asked the following:

Can I ask a question, either to [the member for Cowichan—Malahat—Langford] or the officials, or maybe to both? I have two questions, actually.

One, with the fact that we have “unconscious” and then a general provision saying for anything else, is there any potential that by adding two specific examples into the second paragraph, the courts may then narrow the scope of what it's intended to mean?

Two, would somebody not being aware that they are not obliged to consent to the activity not be a mistake of law, a misunderstanding of the law, as opposed to incapacity?

The official from the Department of Justice who answered the question, Nathalie Levman, counsel for the criminal law policy section, stated the following:

Regarding your second point, I agree with you. I'm concerned that this doesn't necessarily speak to the capacity issue that proposed paragraph 153.1(3)(b) speaks to.

That raises a number of different points about your first question, which is that the law on when a person is so incapacitated that no consent is obtained in law is complex. The case law is difficult and there may be a number of different factors that are relevant. Singling out two factors, one of which may not relate to capacity, may have some unintended effects. As to what those effects could be, I cannot speculate, but I just point out that it is a complex issue of law, this particular paragraph, proposed paragraph 273.1(2)(b).

That brings me back to my argument. The fact that the Department of Justice was unable to say clearly what the intended amendment would even mean and talk to us about the ambiguity that the amendment potentially offered leads me to conclude, as I believe my Conservative and Liberal colleagues all concluded at committee, that adding these words into the law, while well intentioned, may have factors that we had not considered. I think this would certainly render a provision to the law that the courts have now interpreted for a considerable amount of time even more complex than it needs to be, leading to multiple questions that I could see being asked now to deal with the all of the different situations put forward by the Senate amendment.

I applaud Senator Pate for her decision to be an advocate on this issue, but I regret that I cannot agree with the position that she took in terms of proposing the amendment to go forward at this time.

I would prefer seeing the Minister of Justice do wide consultation, which would then allow, when a bill comes forward, the Standing Committee on Justice and Human Rights to have the benefit of the draft language to share with all of the different witnesses coming before committee, so that all of them could expound on whether or not they find that language to be helpful or problematic, etc.

That being said, I would also like to speak to another amendment that the House of Commons Standing Committee on Justice and Human Rights made to the bill. There has been a lot of discussion about the provisions that the bill removed from the Criminal Code that had been ruled either unconstitutional or inoperative; inoperative ones, such as challenging someone to a duel. We would all agree that is no longer an issue for many Canadians, and that that was properly removed from the legislation.

Another one that would be removed as inoperative is possessing, printing, distributing or publishing crime comics. Again, I think most of us would agree that there is no need for a specific provision as to that. Fraudulently pretending to practise witchcraft is another one. While it is comforting to know that if someone actually does practise witchcraft and is not being fraudulent about it, they are allowed to do so in Canada. I do believe that removing the potential of fraudulently practising witchcraft is definitely a good step.

Another is issuing trading stamps, who knew it was illegal to issue trading stamps? However, I am pleased that we removed that from the Criminal Code. I am also very pleased that we worked with—

Consideration of Senate AmendmentsCriminal CodeGovernment Orders

1:20 p.m.

Some hon. members

Oh, oh!