Debates of Dec. 10th, 2018

Criminal Code

[Larry Maguire, Conservative, Brandon—Souris, MB]

Mr. Speaker, I want to ask my colleague for clarification. He was speaking about the hybridization of section 176 sending the wrong message that unlawfully obstructing, threatening or harming a religious official is not a serious offence. With the experience that he has had and the discussions that have taken place on previous bills in this House, I wonder if he could elaborate on whether or not he believes that the government is serious about keeping the act the way it is or changing it to be softer.

[Bradley Trost, Conservative, Saskatoon—University, SK]

Mr. Speaker, generally when the government hybridizes an offence, it allows the prosecutors to put the charge in a less serious form, whether it is a year, two years or more or two years less. This allows the government to keep the crime in the Criminal Code legislation but allows prosecutors to put a much softer charge to it. I think the message is that the government still views it as a crime, but not that serious of a crime, and it is sending a message to prosecutors that if they do prosecute, not to prosecute all that hard and go for a very minimal sentence.

I do not think that is a good message to be sending. Offences against religious worship are very serious. We can ask people in the Jewish community how they would feel if a neo-Nazi came in to intimidate them.

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

Mr. Speaker, it is unfortunate that the member would see hybridizing as a negative thing. It would allow our courts, Crowns in particular, the opportunity to ensure that certain situations would not go through a criminal court if it was not necessary. The example I used before was kidnapping. If someone stalked and apprehended a child from a schoolyard, who knows the horrors that could happen. However, that is quite different from a hotly contested divorce settlement where a child takes it upon himself or herself to leave one parent to go to another parent. Both situations would be classified as kidnapping. When we hybridize something, it allows the Crown to use more discretion.

Is my friend suggesting that we should not have hybridization in our justice system?

[Bradley Trost, Conservative, Saskatoon—University, SK]

Mr. Speaker, I was not saying that as a broad principle for every situation every time, but with some of the examples being put forward in the legislation, it is not particularly wise to be hybridizing particular offences.

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

Mr. Speaker, one of the most troubling things I find with the bill is that we have had to, once again, shame the government into removing something it ought to have known should not have been in there in the first place. I am speaking about the protection for religious services and the ministers associated with them.

I wonder if my hon. colleague could comment on the fact that the bill is so far delayed that it probably will not make it out before the election year is upon us.

[Bradley Trost, Conservative, Saskatoon—University, SK]

Mr. Speaker, the hon. member is asking me to comment on how the government mishandles its own schedule. I should leave that for our House leaders. We do not want to necessarily teach the government how to actually handle its own schedule. Suffice it to say that, yes, the Liberals are often incompetent and do not know what they are doing when it comes to handling legislation, legislative timetables and things like that.

I am not always sure I want the government to be more efficient, since most of the legislation it puts forward is poor legislation. Therefore, to some degree, I actually appreciate the fact that the Liberals do not pass a lot of legislation, as they are inefficient and often do not have a real idea of where they are going, because the direction in which they do head tends to be net negative, in my opinion, for the country.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Mr. Speaker, it is a pleasure to rise today to participate in the debate on Bill C-51 and, in particular, the Senate amendments.

My intention in my remarks today is to focus on two issues that arise out of this bill. One is the question of advance consent in general, at a philosophical and practical level, and whether we think that a person ought to be able to consent in advance to something happening in the future and some of the issues related to that in this bill. The other is I want to talk about section 176 and the way in which the government approaches our response to potential acts of hate and violence and disruption that are perpetrated against faith communities in Canada.

The issue of advance consent is very much one that has been discussed back and forth and from different perspectives. I note that with respect to the idea of someone consenting in advance to sexual activity, this is a subject on which the Supreme Court of Canada and the Ontario Court of Appeal, at certain points in time, disagreed. There was a court decision in R. v. J.A. in which the person accused of sexual assault argued in the context of that particular case that sexual assault had not taken place because the complainant had consented to being rendered unconscious, allegedly, and consented, allegedly, to engaging in sexual activity. The Ontario Court of Appeal actually agreed with the arguments of the accused in this case, and said the “only state of mind ever experienced by the person is that of consent”.

I think the Ontario Court of Appeal got it wrong. Many people would say that it is not only wrong but deeply offensive to suggest that a sexual act could be performed without a person's explicit consent in the moment, on the basis of alleged prior consent in advance.

In my view, the Supreme Court got it right when it said:

It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.

Bill C-51 puts that legal court decision into the Criminal Code by noting that there is never consent when a person is unconscious. Proposed paragraph 273.1(2)(a.1) states:

For the purpose of subsection (1), no consent is obtained if

(a.1) the complainant is unconscious;

The decision of the Supreme Court in this case is the right decision. It is one that I agree with and it is one that is reflected in the law.

It is noteworthy at the same time that the Ontario Court of Appeal thought differently and indeed advanced arguments for the idea that a person could provide so-called advance consent in this case. It reflects the fact that in different contexts around different debates, people have made arguments about the supposed legitimacy of advance consent. We see in another case the use of that argument, and I will get to that in a few moments.

The cases against so-called advance consent as something we should allow or accept are myriad. One of the obvious arguments against it is that one's past self, in one's wishes and inclinations, might disagree substantively from one's future self. One might think that at such and such a point in the future under certain circumstances one will want this or feel this or accept this. However, in reality, when one experiences those things, one feels totally differently in the context of that new situation. The idea of a past self irrevocably dictating the conditions and events that are going to occur with a future self is unjust to the future self and it violates the autonomy of the individual at that point in time in the future. Our past selves differ from our future selves, and perceptions about how we will experience certain events in the past might differ from how we actually experience them in the moment when they are taking place.

It is on this basis of recognizing the importance of autonomy, not in the sense of a past self-binding and future self-binding but autonomy in the sense of individuals making determinations about themselves in the moment and being able to ensure that they are comfortable with and accepting of everything that is happening while that thing is happening, that the court, the House, and this legislation recognize the fundamental wrongness of advance consent in the context of sexual activity.

I develop this point in spite of the perhaps pre-existing agreement in the House because it has some relevance to our discussion of other issues with respect to consent. In particular, some members would like to see us allow advance consent in the case of euthanasia or assisted suicide. It is important for members to reflect on the argument for and against allowing advance consent in the one case when we consider the possible application of that same principle in a different case.

Questions were asked in the House, for example, about the case of Ms. Audrey Parker, a tragic situation for her, and other cases, where the idea of advance consent was brought up. Some have argued, especially some of my friends in the NDP, that people should be able to provide consent in advance that their life be taken if their condition advances to a certain point and if certain conditions are met.

I find that prospect very troubling, that a present self could irrevocably bind a future self, especially that the person could establish parameters under which that future self would be bound even in a case where that future self might, in the moment in terms of practical expression, not want that to happen.

The particular context in euthanasia of providing advance consent is, of course, that people have to imagine how they would experience certain conditions, certain development of a disease, and how they would feel about it, how they would respond and what they would want in the moment. The idea and the argument that some advocates have made is that the person should be able to issue an advance directive, so that even if they in that moment do not have the capacity to make a decision, their past self would decide for them in the present.

This can create a situation, though, where one might ask what happens if a person with somewhat lost capacity, but nonetheless with a condition set out by their past self, then says he does not want his life taken. His past self had established this living will, this advance directive of sorts, that would then theoretically involve the state and medical professionals taking his life in a case where he did not want that to happen in the moment based on something his past self said.

This is not a purely hypothetical case. There is currently a case before the Dutch courts in which a patient was held down by family members while a physician injected her with lethal medication. The doctor was acting based on an interpretation of an advance directive and of past statements made by the patient.

We do have cases where there is an application of the idea of advance consent to euthanasia, and we have a very scary situation, frankly, where a person's life is taken when he or she is saying in the moment, “No, I don't want this to happen”, but someone else is interpreting something the individual said in the past as overruling the individual's expression in the moment.

The present self who is facing this kind of violence, I would argue, is maybe at a point of lower capacity than the person previously had, but I still think it is a very scary situation or proposition.

I would encourage members to reflect on the question of advance consent and to take a consistent position on it. I would suggest that members set a similar standard for consent in these cases. It does not seem, to me, to make sense to have a lower bar for the consent required to die than consent required for sexual activity, to abhor advance consent in the case of sexual activity, and yet to support it in the case of death and dying. We do not know exactly where the debate on advance consent in the context of death and dying is going to go. I know there is an expert panel the government has put forward that we expect to hear a report back from relatively soon. I know there are members of the government caucus who have said that they are supportive of the idea of advance consent.

However, if we think about the case that I spoke about in particular and how we would feel if a past version of ourselves had said we wanted something, which all of a sudden, in the moment, in a situation, we really do not want to have happen, and yet we are told that we had said we had wanted this in the past, so our past self can dictate to our present self. I would see that as really going against a pretty basic principle of autonomy that I know is important to many members.

I leave that for the consideration of the House. It is very relevant to our discussion of Bill C-51, in terms of the way in which the bill codifies the point that in the context of sexual consent, one cannot consent in advance, that a person who is unconscious can never consent, regardless of what they said beforehand. Again, to underline this, I very much agree with that particular change to Bill C-51. I want to encourage members to think about what that means for some of the other conversations that are happening.

This bill deals with Senate amendments. There is a proposed Senate amendment that provides some specific language around that section. I know that some of my colleagues are favourably disposed towards the intent of the senator who brought this forward, but are concerned about some of the unintended legal implications of it, namely, that if certain things are spelled out explicitly, there might also be things that are not spelled out in the section. The sense, and I think it is a good sense, is that the existing language in that particular section of Bill C-51 does the trick in hitting the particular point on the mark. That is what I wanted to say about the issue of advance consent.

I would like to make a few comments about section 176 of the Criminal Code and the back and forth we have seen in our discussions on that section and on some of the other actions the government has taken in this regard.

Section 176 deals with the disruption of a religious service and vandalism against church property, and so forth. Our caucus has done a great deal of work with civil society to bring attention to the importance and value of this section, and to oppose initial efforts by the government to remove this section.

The government argued that section 176 could be removed, because it was redundant. Clearly the offences that are covered by section 176 are things that other charges could apply to, but that does not mean that the offence, in terms of putting a particular emphasis on it and ensuring fulsome prosecution in these cases, is redundant. By analogy, our Criminal Code speaks specifically of hate crimes, and I have never heard anyone argue that hate crimes legislation is redundant because the violence associated with hate crimes, namely, vandalism, but more particularly assault and those sorts of things, are already illegal.

I have never heard anyone ask why we need hate crime provisions because those things are already illegal. I think all of us accept that the message sent by having a particular category of prosecution associated with hate crimes is appropriate, because hate crimes are not just aimed at doing violence to a particular individual but also at making an entire community feel threatened and unsafe in living their lives as they do, including the practice of their faith and the public actions they take that are associated with their identity, and so forth.

Hate crimes legislation is about ensuring that groups of people are not targeted on the basis of their identity. That is why we treat a hate crime as something distinct from an act of assault on its own. If members accept that principle with respect to hate crimes and hate crimes in prosecution, it would seem to me that the same principle goes to section 176. Someone who actively disrupts a church service or commits acts of vandalism or violence against religious clergy are not just trying to enact specific violence against an individual or place. It is not merely an act of trespassing or vandalism, rather an action that carries with it a real chill for the ability of people of faith to live freely and confidently without worry of that kind of violence. That is why section 176 is not redundant. It is critically important.

Another argument the government used was to say that the language in section 176 is outdated because it refers to a clergyman and is not, in its textual implications, inclusive of all faiths and genders. However, in reality, the section was clearly being applied in a way that was fully inclusive. It really was an odd argument to make that we should take the section out completely because it was not, in its language, inclusive when all that was really required was to change the language. Even changing the language did not change the actual practical effects of the law.

In the end, in response to a really strong reaction and groundswell from different communities working collaboratively with our party, the proposed deletion of section 176 by Bill C-51 was abandoned. We were pleased to see that.

At the same time, we then saw the government, in Bill C-75, proposing to hybridize offences under section 176, effectively reducing the sentence for these offences. In the previous discussion in the House on this issue, my friend from Winnipeg North offered a defence of the idea of hybridized offences. I do not think anyone has argued there should not be any cases where the level of available discretion would not cover a spectrum associated with hybridized offences.

However, I think a lot of those who advocated significantly for section 176 to be preserved, and were initially pleased by the government's stepping back from their decision, kind of saw in the hybridization of this particular offence yet another indication that the government does not really understand the importance of this and does not accept the value of having strong, clear language with appropriate associated sentences in the Criminal Code to protect the practice of faith in this country.

It is ironic because the government talks a good game a lot of the time when it comes to fighting hate. When it comes to motions or statements around these kinds of issues, the government always seems to be ready.

We had considerable debate in the House on Motion No. 103 on the question of “Islamophobia”. All of us in the House should read that it is important for us to take a strong stand against, in this case, anti-Muslim violence or hatred, and that it is important for us to take a strong stand against those who express bigotry against any community. However, we wanted the government to provide a definition of what it meant by “Islamophobia”, and it refused to do that. Unfortunately, the House was not able to come together in a way that might have been desirable to send a clear unified statement on that issue.

Despite the specific language of Motion No. 103 speaking of the need to “quell the increasing public climate of hate and fear”, the government's actions with respect to section 176, an actual section of the Criminal Code that provides real legal protection for those practising their faith, show that in so many cases, it is only interested in the statement and not the substance.

For faith communities and leaders across the board who wonder what substantive protections exist, they should look to and expect the government to underline the importance of section 176, not to be weakening its application as we are seeing.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Mr. Speaker, when I look at the existing text of Bill C-51, where it attempts to amend the Criminal Code with respect to consent, some of the main issues that the senators had, and I very much agree with them, was that while we had a clear definition of what consent meant, where the vagueness became problematic was in no consent.

The existing text of Bill C-51, under section (2.1), it has “(a.1) the complainant is unconscious” and then follows up with “(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1)”, which is kind of vague. I know a lot of senators had problems with that.

Given the concerns that experts in sexual assault law have, what does my colleague think about the Senate's attempts to clarify that part of the Criminal Code? If the Senate amendments were allowed, we would basically have no consent defined as being unable to understand the nature, circumstances or risks, unable to understand that a person has a choice and unable to affirmatively express agreement to the sexual activity.

My colleague talked about judicial discretion. Certainly we have different opinions on that when it comes to sentencing. However, it seems to me that in the interpretation of this very important part of the Criminal Code, given the problems we have had with case law in sexual assault, this is perhaps one area of the Criminal Code where we do not really want to have too much judicial discretion, where perhaps it is good to have a very clear road map of what precisely no consent means. Would my hon. friend comment on that part?

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Mr. Speaker, I hope my colleague and his party will consider the arguments I made with respect to advance consent and its other application as well. It is important to reflect on that. I know they have been very clear on the issue of advance consent in this case, but it is important to consider in the other context that it can be asserted as well.

With respect to the Senate amendments, the existing language in Bill C-51, as proposed when it was sent to the Senate, was, “For the purpose of subsection (1), no consent is obtained if...(a.1), the complainant is unconscious; (b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1).”

This clearly sets out the conditions in which a person is unable to consent. The proposed amendment from the Senate says, “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.”

The question is whether that addition adds anything, given the certainty already established under the new section 2. We agree with the principle. It is just a question of the practical legal application. My judgment at present is that the existing language in Bill C-51 is sufficient.

[Ted Falk, Conservative, Provencher, MB]

Mr. Speaker, the member mentioned section 176, which is the part of the Criminal Code that deals specifically with protection for the clergy. However, it also deals with protection for houses of worship and for worshippers at those places. He said that rather than consider removing it, that the section should have been strengthened. I would like to hear his ideas on that.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Mr. Speaker, if we look at strengthening the legal mechanisms in place that address the issue of violence against clergy, the targeting of people on the basis of their faith or attacks against houses of worship, section 176 is the place to look. We often hear about the importance of these issues from the government and yet it is weakening the one section. An important discussion would be how we might be able to strengthen it. I am not sure I can say exactly whether the numbers are increasing or decreasing, but it is something that has hit home for a lot of people.

I was recently at a Hanukkah event in Toronto and had an opportunity to meet someone who was recently the victim of an anti-Semitic attack. This is a case that has been in the news, where a number of Jewish boys were attacked with what seemed to be a clear intention around hate and faith-based intimidation, intimidation against a faith community associated with that.

Also, when I was recently in Halifax, I visited Saint Benedict Parish, which is a Catholic church. A friend of mine is a priest there. That church was subjected to vandalism on Easter Sunday.

Many members of Parliament have had an opportunity to interact with people and see these cases. They do happen and they happen far too often in the country. We can take steps to address them. However, expressing the opinion of the House through a motion does not necessarily make that much of a difference to the people on the ground. It is really a question of what the law says and what we do as legislators, as lawmakers, and not simply what we say expressively about these issues.

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

Mr. Speaker, I want to pick on section 176 of the Criminal Code and the whole idea of freedom of religion and ensuring that services are 100% functional. I would argue that it demonstrates how effective a standing committee can be. It is not necessarily a government backing away as much as it is committee membership listening to what presenters and Canadians as a whole have to say.

An amendment was brought forward and it was unanimously accepted. Therefore, members from all political parties at committee recognized the importance of keeping it within the Criminal Code, and that as a positive thing. It shows that standing committees can make a difference. Could my colleague comment on that?

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Mr. Speaker, on that point, the government proceeded with hybridizing offences under section 176 in Bill C-75. Although members of the standing committee chose to make that change with respect to Bill C-51, we saw new government legislation in the form of Bill C-75 that again showed a lack of appreciation for this important section.

It would have been great if the same standing committee had shown the alleged independence that the member speaks of by fixing it the second time around as well. Unfortunately, sometimes, even on relatively independent committees, the PMO's hammer comes down and we do not see that change.

It is frustrating to see repeated attempts by the government in its legislation to weaken section 176. Yes, there was an amendment the first time around on this bill, but there was not an amendment the second time around.

In so many different areas, the government tries to do something, there is a public backlash, it waits a while and then we see it do something similar. Talking about the impact on faith communities, the Canada summer jobs issue has been in the news recently. I do not think Canadians are going to be fooled by the fact that the government is trying to make what looks like a change in an election year. Many faith communities have seen what the government's intentions are with respect to their freedoms and liberties. To change the tone of the discussion in an election year is not the best indication of what it has in mind or what it would likely do if it were re-elected.

[Martin Shields, Conservative, Bow River, AB]

Mr. Speaker, it is always a privilege to stand in this place, especially as we approach the time when it will be closed and the last week we will be here.

It is an august place, a place where many interesting debates have happened since it reopened after the fire. As for the one before the fire, we are coming up the 100th anniversary of Prime Minister Laurier, who was a leader of note. He established Alberta and Saskatchewan as provinces, and passed away the following year. Not only did he establish Alberta and Saskatchewan, he was in favour of free trade agreements. In 1911, he lost an election on a free trade agreement. We may see that happen again in 2019.

Also I remember well the debates on the flag issue, which was a focus for the country in the sixties. The debates between Diefenbaker and Pearson are legendary in this place. The flag issue is one that had a lot of Canadians focused on this place and on the debates, which resulted in the maple flag we have today.

I also remember when we had a loyal opposition party leading a charge to leave the country. A lot of people were a little confused about the debates that went on in this place when the leader of the loyal opposition wanted to split up the country.

Many debates have happened in this place, with many people who are orators, intelligent people expressing their opinions and representing Canadians. At this time, I am one of 338 who has the honour and privilege to stand in this place, but not for much longer as this building will close this week and we will move to another place. Again, it is a privilege to look around and see the magnificent edifice and beautiful place in which we get to work.

Today I rise to speak to C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act. Since it was introduced the first time, and again as it has come back from the Senate, there have been learned people standing and speaking to this. It is an omnibus bill. It is very complicated and one some people in the House are able to understand, comprehend and speak very clearly about. Others speak of its broad issues, but not as intelligently as some of the members in the House who have legal backgrounds.

However, it should not be a surprise there are issues when we get a bill this big, although many people would agree with some of the things in it.

I will be sharing my time, Mr. Speaker, with my colleague from Niagara West.

We agree with some things in this omnibus bill. It contains some worthy provisions. Clarifying the law in relation to sexual consent is very important. Repealing unconstitutional provisions in the Criminal Code is a positive aspect. I was also very happy the government backed down, as we have heard many times, on the removal of section 176 of the code. I heard a lot about this one from my constituents. Many faith groups, including those in my riding of Bow River, were deeply concerned about that section.

The section provides protection to those practising their religion. We have freedom of religion in Canada. One of thing I may not agree with everybody on is religion, but I would fight to the death for those people to be able to express their religious beliefs. Religious communities need to be able to worship without fear of interference and disruption. This is truer now than ever. Hate crimes against religious groups are on the rise in Canada. A section of the code that gives these groups clear, unambiguous confidence in their right to worship as they please is far from redundant.

When we were talking about the inoperative sections of the Criminal Code and Bill C-51, it was the unfortunate decision by the government to initially include section 176 of the Criminal Code among the sections it deemed to be obsolete. Section 176 is hardly redundant, hardly obsolete and certainly not unconstitutional. Indeed, section 176 is the only section in the Criminal Code that protects clergy from having their services disrupted, something which is very serious and goes to the heart of religious freedom.

The government turned a blind eye when it introduced this, and the Conservatives called them out on it. As a result, tens of thousands of Canadians spoke out, telling the government that it was wrong.

My learned colleague on the other side previously mentioned that a committee was able to resolve this. It was one of the outstanding features of the committee that it unanimously came to that. However, it is my belief that there was such push-back in religious communities that the people sitting on that committee realized the mistake in that initial document and changed it.

Municipal governments must react much sooner when they may have made a mistake. If in coffee shops they hear about something, they pass it the next day, and at the next meeting, they can fix it. This is a much longer process, but at the committee level, members heard from religious people of faith in our country that this was not the appropriate thing to do.

I will move on. Clause 14 of Bill C-51 proposed to repeal section 176 of the Criminal Code, which makes it a crime to unlawfully obstruct a religious official. Conservatives were the first to identify this clause. As a result of the public backlash, the Liberals on the justice committee amended Bill C-51 to remove it.

However, only months later, the Liberals hybridized section 176 in Bill C-75. Currently, it is a solely indictable offence, which is reserved for the most serious offences. However, by hybridizing section 176, it could be prosecuted as a summary conviction offence, which is reserved for less serious offences. That means that offenders could just get a fine, and I think that would downgrade the importance of religious freedom. For people who practice it and leaders of religion, this would be downgraded to a less serious offence. That is not right.

While the specific changes would not have a significant impact on the maximum sentence, unlike some of the other offences the government is hybridizing, it would send a message. I would submit that it would send exactly the wrong message. It would send the message that disrupting a religious service and infringing on the freedom of religion of Canadians, which is not just any freedom but a fundamental freedom in our Charter of Rights and Freedoms, is not that serious. That is just wrong. It is why the Conservatives opposed it and stood up to fight Bill C-75.

Then there were amendments that came back from the Senate. The Senate put forward amendments because there was concern that this would add confusion in cases where a person was not unconscious but was, for example, highly intoxicated. Unfortunately, while the Senate amendments may have been well intentioned, they would simply cause more problems and solve a problem that really does not exist. We would support voting against these amendments, because we believe that they do not clarify; they just make things more confusing.

Conservatives fully support all changes in the bill to clarify and strengthen sexual assault provisions in the Criminal Code. These changes would help support victims of horrific sexual assault crimes. Conservatives also support repealing or amending sections of the code that have been ruled unconstitutional by the courts.

It is important to keep the code clean and up to date for efficient and effective justice for victims and their families. Bill C-51 would merely clarify that consent can never occur when an individual is unconscious. That is consistent with the J.A. decision.

Bill C-51 would not, as the Senate amendment argues, potentially create a bright line for consent on the basis of consciousness. In that regard, proposed paragraph 273.1(2)(b) provides that “no consent is obtained...for any reason other than [unconsciousness].” This language clearly acknowledges that there are many possible reasons a person may be incapable of consent, despite being conscious.

The Senate amendment would likely lead to additional complexity and confusion over what evidence was relevant to determine consent. Instead of adding certainty to the law, it would lead to further litigation involving these factors. For those reasons, we oppose this amendment.

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

Mr. Speaker, my friend from Bow River is quite right. It was only after Conservatives pointed out the attempt by the Liberals to remove section 176 of the Criminal Code, the only section of the Criminal Code that protects religious officiants, and tens of thousands of Canadians lent their voices in opposition to the removal of section 176, that the government finally got the message and backed down. The member also noted, disappointingly, that, after backing down, the government reclassified section 176 so that it would be a hybrid offence. As the member pointed out, that sends exactly the wrong message.

We also saw recently the government back down from the changes it made to the Canada summer jobs program. It had imposed a Liberal values test on organizations that wished to hire summer students. Contrary to their charter rights, the government forced them to check off a Liberal values box to receive funding. We saw more than 1,500 applications rejected, and thousands more organizations simply did not apply.

I see a theme in all of this, and it is a theme of a government that really does not take religious freedom, which is not just any freedom but a fundamental freedom under our charter of rights, seriously. Would my friend agree?

[Martin Shields, Conservative, Bow River, AB]

Mr. Speaker, I thank my colleague for his question and leadership on this particular file. His knowledge of it is tremendous, and I acknowledge the fact that he is able to speak so clearly about many parts of it.

When it comes to religion and the guarantee we have in this country for it, it is basic to the fundamental rights we have. It needs to be protected at all costs and not removed, as initially it was. It was wrong to say that this was obsolete and should not be in here. That was a mistake. I think that is why we saw every religion across the country uniting against this.

It was so important that people out there understood what this particular proposed legislation was about. They understood from coast to coast to coast, in every religion, that this was wrong. It was against the principle of religious freedom. It is important that the Liberals finally backed away, but they still hybridized it. It is still not as it should be and not as strong as it should be.

[Colin Carrie, Conservative, Oshawa, ON]

Mr. Speaker, I wonder if my colleague could continue on section 176. This is one of the things that generated a lot of emails in my office.

As my colleague mentioned, this is a fundamental right in Canada. He also mentioned the fact that the values test for Canada's summer jobs was something the government was promoting. Again, people in my riding of Oshawa who wrote to me felt that they were under attack for their beliefs.

This is something our country has stood for, the right to have one's own beliefs. I wonder if the member could say what he thinks is motiving this, because I do not see any solid reason for it. What does he think is motivating the government to do these things and makes these changes?

[Martin Shields, Conservative, Bow River, AB]

Mr. Speaker, what the Liberals might be thinking in introducing this, I am really not sure. People talk about sending out trial balloons to see how people might respond, but this is too serious an issue. As my colleague has stated, we do not run trial balloons about taking away fundamental rights in our country. That is not why people run political trial balloons.

We had outright anger from people asking how the Liberals could do this. It is part of the fundamental rights we have in this country. To understand why they would want to take this away baffles me. That is why the response across the country was so significant.

[Dean Allison, Conservative, Niagara West, ON]

Mr. Speaker, the member for Bow River mentioned that this is the last week we are going to be in the House. I never really thought about that in terms of this being maybe the last time I rise in this building before it is shut down for what could be the next decade or so. I want to just comment on what the member for Bow River said.

It is an honour and a privilege for all of us to serve in this place. This building is certainly historic, and the fact that we have an opportunity this one last week to rise is not lost on me. As I said, I do not know if any of us will make it back here 10 years from now. Who knows? Some of my younger colleagues over there may.

It is great to get a chance to stand and talk about Bill C-51, the justice omnibus bill. It contains a number of changes on a variety of matters. One of the things I find interesting, and I know it has been mentioned before, is that the Liberal government railed on and on about how omnibus bills were so bad and the fact that Conservatives would put so many things in them and how the Liberal government was going to be different and would not behave this way.

I find it interesting and somewhat comical that the Liberals railed about what the Conservative government did in the past, yet here they are, and some of the Liberal omnibus bills are actually greater in size than the ones we moved forward during our time in government. I needed to mention that. I think there is some irony there. I know the Liberals campaigned on that.

I am here to talk about Bill C-51, but I would love to talk about how the Liberal government said it would act differently when it got into government, yet we see that this has not necessarily been the case.

I will give credit where credit is due. I know there are some things in the bill we were encouraged to see the Liberals move on. There was some strengthening of penalties for sexual assault. These are definitely important things. I will talk about that briefly. The Liberals got rid of some obsolete laws as well. There is some cleanup there.

There are some things we still have concerns about. My colleague from Bow River and other colleagues have mentioned it, but it is somewhat troubling that the Liberals would even consider the removal of section 176. This is something that is very near and dear to the hearts of a lot of my constituents in the Niagara West area. I come from an area where there are a tremendous number of churches, a number of Dutch Reform churches, but not just Dutch Reform. There are all denominations. The fact that the Liberal government would actually consider removing that just shows how out of touch the government is sometimes when it comes to some of these issues. I will get to that in a second.

I want to talk about the sexual assault piece. I want to say that I am pleased. As I said, I will give credit where credit is due. The Liberals followed our lead to strengthen the sexual assault provisions in the Criminal Code around consent, legal representation and expanding rape shield provisions. Standing up for the rights of victims of crime is something our party has always been very serious about. We are aligned with the provisions the Liberals have in this legislation in terms of strengthening those issues.

Among other things, there is a private member's bill introduced by our former Conservative leader, Rona Ambrose, Bill C-337. This bill would make it mandatory for judges to participate in sexual assault training and ensure awareness among the judiciary, in addition to education about the challenges sexual assaults create. The bill was designed to hold the Canadian judiciary responsible for the ongoing training of judges. We were pleased to see this bill passed in the House. Now that it is in the Senate, we hope it will move it forward.

I want to talk a bit about section 176. That the government would consider removing it is certainly troubling. It is good to see that it backed away, as has been mentioned. This was the only section of the Criminal Code that directly protected the rights of individuals to freely practise their religion, whatever that religion happened to be.

In fact, section 176 was recently used, on June 9, 2017, in a criminal case here in Ottawa. It is imperative to see that interrupting a religion service is really not the same as interrupting other services. If we think about the various religions that are practised in this country, with the Sabbath maybe being on Saturday for some and on Sunday for others, the fact remains that people are there to worship. That fact that it would even be considered that they would not have the ability to do that or that it would be okay to interrupt is very troubling.

It is good to see they have backed off on this, but we are still concerned with the message the government sent to religious communities, that they are not important.

My colleague, the member for Bow River, mentioned last summer's summer jobs program, which was a concern. I had a number of churches in my riding that did great stuff. They were running day camps for disabled, helping to feed people and doing a ton of things that I thought were great in nature, just for the overall encouragement of the community. A lot of these organizations were not even considered. We will see how it works this summer. I see there have been some changes.

I really believe that churches, especially in my community, regardless of the denomination, are great community leaders. I always say we have a great community spirit in Niagara West. It has a lot to do with the people in my community of Niagara West, but also there are a number of churches that encourage volunteerism and that give back, feed the poor and do a number of these things that are all very fundamental to healthy communities.

A safer Canada is certainly a concern. It is a government's responsibility to make sure its citizens are kept safe. We see what is happening with gang violence in Canada. When we soften penalties for gang crimes and reduce them to administrative fines, we are not only doing ourselves a disservice, but there are real consequences for Canadians when gang members are being let off in our streets.

One of the things we want to do as a Conservative government is put an end to the revolving door for gang members. Now, even if someone is a known notorious gang member they are entitled to bail. We would make sure repeat gang offenders are held without bail. I think that is reasonable when we look at what gang members may do in a community, how they might terrorize a community. We would also make sure it is easier for police to target and arrest gang members.

Canada's Conservatives always put the safety and security of Canadians ahead of the interests and comfort of violent criminals. We would work hard to impose tougher federal prison sentences for the leaders who order others to do their dirty work for them.

The other thing that is important is we want to make sure we are recognizing and supporting the rights of victims over the rights of criminals. We have seen some troubling things that have happened in recent days in the country. We saw issues with Terri-Lynne McClintic and with Christopher Garnier, and the fact that Tori Stafford's killer was in a healing lodge instead of behind bars. We have seen cop killers who have not served a day in the military getting services. These are things that are all troubling, not just to us as Conservatives, but to Canadians at large. We just learned recently that Tori Stafford's father is now reporting that her co-conspirator, Michael Rafferty was transferred to a medium-security prison in March. He was just informed about this happening.

We can see some of the things we are dealing with in the country. We realize violent repeat offenders are people who probably should have a harder time getting bail if these are things they are doing on an ongoing basis.

As we look at what is going on right now in our justice system, I think there are opportunities to make sure we are looking at returning terrorists from ISIS. That is another issue. I realize I am almost out of time, but I could spend a lot of time on that. We realize that some of these individuals who have gone over purposely to kill and destroy are people we should be looking at, and making sure we are doing our job to keep them behind bars to ensure they are not a threat to society here in Canada.

In conclusion, the government is failing to protect victims of crime. The Prime Minister did nothing after learning of Catherine Campbell's killer receiving taxpayer funds, having never served a day in the military. We have pushed and pushed the Liberals to put Tori Stafford's killer back behind bars, and to transfer her from the healing lodge. We believe we need to continue to work to protect the rights of those who need it.

[Chris Bittle, Liberal, St. Catharines, ON]

Mr. Speaker, my colleague from Niagara West, my neighbour in the Niagara region, spoke about a potential provision that was released by the Leader of the Opposition in regards to bail. He makes it seem as if everyone is eligible for bail all the time, which is not necessarily true. It is a bit misleading.

In terms of the provision that the Leader of the Opposition outlined, constitutional experts have suggested that it is somewhere on the spectrum between unconstitutional and grossly unconstitutional.

I am wondering if his party is going to listen to experts on this. Is his party going to push forward with these types of provisions? Why are the Conservatives not listening to the experts in terms of the constitutionality of what they are suggesting?

[Dean Allison, Conservative, Niagara West, ON]

Mr. Speaker, one of the challenges we have here is that there are certain groups in society that continue to reoffend and at the end of the day, the job of any government is to protect the victims. Of course we are going to consult with experts and talk to people.

One of the challenges we have is the fact that we feel that the government does not worry about the rights of victims as much as it worries about the rights of criminals. This is the thing that we need to address. We have to find a way to stop the revolving door in our justice system. We need to make sure that we stand up for the rights of victims.

[Colin Carrie, Conservative, Oshawa, ON]

Mr. Speaker, like my colleague, I have been here since 2004. It is interesting to realize that for 10 years the House will not be located here. It reminds me of how honoured I am to be here.

I do want to ask the member about this whole soft on crime agenda of the Liberals. He mentioned section 176. In my community, people perceive that as an attack on religious freedom.

He also talked about the Canada summer jobs program.

Bill C-75 would actually change indictable offences into summary convictions.

My colleague asked if we on this side have consulted experts. It seems members on the other side do not want to consult with Canadians.

The entire agenda of the Liberals moving forward is soft on crime policies, especially policies that would change something that was an indictable offence into a summary conviction. What kind of message does that send to Canadians?

[Dean Allison, Conservative, Niagara West, ON]

Mr. Speaker, that is one of the things that we are talking about. When we consult with Canadians and we talk to victims of crime, they tell us that sometimes they do not feel that the punishment fits the crime.

We understand that we have to deal with the constitutionality of what is going on in terms of what is required by law, but that does not stop the fact that at times there is the perception of a revolving door in our criminal justice system.

My colleague mentioned section 176 as an example. Religious freedom is paramount and is protected in our Constitution. If we look at religious freedom as an example, the fact that the Liberal government would even consider not dealing with that is of concern to us. His point in terms of summary conviction for some of these things is also a concern to us in many ways.

Canadians from coast to coast to coast have told us they feel at times that the rights of criminals seem to trump the rights of victims. This is the balance that we need to deal with. We need to continue to listen. We need to act on this and do the right thing for victims.

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

Mr. Speaker, as always, it is a great honour to rise in this House and represent the people of Timmins—James Bay. This may be one of the last times I rise in this incredible institution before it is closed for renovations. It makes me reflect on why we are here. It is because this is the centre of power in Canada. Are we here to be apologists for power, are we here to mimic the power or are we here, sent by the ordinary people who work hard and pay their taxes, to be a voice to power, to speak truth to power, to speak for those who have no access to the insiders and the powerful? Our position in this House does matter when we rise on issues.

Therefore, tonight I will be rising to speak on 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 find it ironic that we are discussing this bill that is going to drop from the Criminal Code comic books that may cause people to commit crimes. That is something that is considered a priority of the current government, when this week, at the B.C. Court of Appeal, the Attorney General for this country, the Minister of Justice, had her lawyers attempt to deny basic issues of justice for survivors of residential school abuse.

Speaking of people who come into this place to be a voice to speak to power, they come across all party lines. Therefore, when the Prime Minister appointed the Minister of Justice, I thought there was finally a moment of historic change, because very little attention is ever paid to the work of the justice department, which is the absolute brass knuckles at denying indigenous rights across this country. I thought that having an indigenous justice minister was dramatic and that it would bring change. However, what I have seen over the last three years is a pitifully poor standing.

Instead of moving hard and clear on UNDRIP on refusing the recent UN call to deal with the forced sterilization of indigenous women that meets the test of both torture and genocide, instead of standing up for the Indian residential settlement agreement, we are here with a minister who has her priorities focused on the issue of people who fraudulently practise witchcraft. I did not know that was a major crime in this country, but I am glad the justice minister noticed it. The possession of comic books that may cause crime is another great priority for her. For the folks back home, we no longer have to worry about the rules around duelling, because it has not happened in 200 years, and our justice minister thinks that is a priority. Meanwhile, this week, she is sending her lawyers against survivors of some of the most horrific abuse in the Indian residential school settlement agreement to argue in those hearings that the basic notion of procedural fairness does not apply to survivors of Indian residential school.

The issue of procedural fairness is a fundamental legal principle. It applies everywhere. It applies to criminals who have committed sexual abuse. They get the principle of procedural fairness. However, our justice minister says that survivors of residential school abuse do not have that right. I find that really disturbing.

We will be talking about and we have talked about the changes in the bill with respect to issues of consent and sexual consent. I think that is an important discussion. However, it is something the justice minister has sent her lawyers to argue. The children who had their genitals grabbed by adults in Indian residential schools could not prove that was sexual in nature. The government's position that survivors of child sexual abuse in residential schools had to prove the sexual intent of the adult is contrary to all the principles of justice, unless of course one is an Indian residential school settlement survivor. The current government will talk about its commitment to reconciliation, but it will not talk about how the justice minister has given her officials whatever tools they need to deny the basic legal rights of survivors of some of the most horrific crimes that have ever been committed in this country.

I am looking at Bill C-51, an act to amend the Criminal Code. The Liberals are changing the laws on advertising a reward for the return of stolen property. They dealt with blasphemy, finally. It has only been 300 years.

However, this week at the B.C. Court of Appeal, the minister instructed her lawyers to go in and attack the fundamental principle of the Indian Residential Schools Settlement Agreement which former prime minister Stephen Harper signed with Phil Fontaine and the guilty churches. In that agreement, the government agreed that it would set up a process to adjudicate claims in a non-adversarial manner, which saved the government millions and millions and millions of dollars from class action lawsuits, and as part of that, the government would have the obligation to bring forward the evidence of the known crimes and give the survivors a chance to speak.

We know what happened in the case of St. Anne's Indian Residential School. Justice department lawyers suppressed thousands of pages of police testimony. They suppressed the names of the perpetrators. They went into those hearings and told the survivors at the court hearing that there was no evidence to prove the horrific crimes of sexual assault, sexual torture, rape and forced abortions that were committed against those children in St. Anne's residential school. When it was exposed that the government had done this, the justice department and the justice minister opted to spend $2.3 million fighting against people. They are in my region and I have met some of these brave survivors, people who did not even have the bus fare to go to their own hearings to stand up against that justice minister.

She states in these hearings her rejection of an incredible affidavit that was brought forward by Phil Fontaine who signed the original agreement with the previous Conservative government. Phil Fontaine said that procedural fairness in the independent assessment process is a “fundamental principle”. The Indian Residential Schools Settlement Agreement and the IAP were designed to be “fair, reasonable and in the best interests of IAP claimants.” He said, “I understand procedural fairness to mean whether the same rules that guarantee a fair hearing that a litigant would expect from the courts or another similar tribunal would apply to the adjudication of a claim under the IAP.”

He further stated that the Assembly of First Nations would never have signed an agreement that gave away the basic legal rights of the survivors to the Government of Canada, if the Government of Canada was not willing to defend that basic legal principle; that if it failed, as the defendant and as the Government of Canada, to provide the documents that named the perpetrators of the crimes and then went in and had those cases thrown out, to say that those survivors did not have the right to procedural fairness to have those cases reopened is a complete attack on the Indian Residential Schools Settlement Agreement that was signed in this House, which we saw the previous prime minister make that incredible statement for. That is what the justice minister is doing this week in British Columbia.

She also states through her lawyers that one should not give any attention to the statement brought forward by Phil Fontaine on the position of the AFN. She said, “Little evidentiary weight ought to be accorded to the affidavit of Larry Philip Fontaine”, and “Canada takes issue with the section of the Fontaine Affidavit entitled 'Procedural Fairness'”, that the paragraphs are largely subjective, speculative and that in hindsight, it is of no assistance to receive theoretical views of subjective intent.

There is nothing theoretical about it. We are talking about two fundamental cases in particular, not a thousand cases, but they spent $2 million against two survivors: H-15019 and C-14114. H-15019 suffered some of the most horrific sexual torture that one could not even begin to imagine. He went into the hearing, and lawyers for the justice department said that his evidence was not credible because he could not prove where the perpetrator was because they were sitting on the person of interest report of the perpetrator, who was a serial abuser. After that case was thrown out, they were forced to turn over the person of interest report, which revealed that this survivor had told the truth, and they are fighting against the principle that he has a right to procedural fairness.

In fact, the government is patting itself on the back because it claims in one of its affidavits that it is not trying to force him to give back the money that was finally awarded to him. It is trying to fight against the principle that it lied, suppressed evidence and that it has no legal obligation to the survivors whose cases were thrown out. I find the actions of the justice minister absolutely appalling. The justice minister stands in the House and has us address issues such as a bill regarding the issuance of trading stamps, a bill that has been pretty much redundant since 1905.

We have the first indigenous justice minister in Canadian history and she has spent $2.3 million fighting survivors of some of the most horrific abuse while the Prime Minister talks about the most important relationship being reconciliation with indigenous people. Her officials are going into the IAP to have the cases thrown out of family members of people who suffered the abuse. The Liberals say it is completely unacceptable that the IAP was not set up to address family members of the original survivors, and yet all along the adjudication secretariat had forms for those family members of survivors who had died and they had that right. This is a fundamental issue of case law. This is a fundamental issue of legal right. Yet the government says that none of these rights apply within the agreement that it signed with the Assembly of First Nations, and the perpetrators, the defendants, the churches.

If we are going to do anything in this House, we need to be willing to stand up and face the fact that for 150 years, Canada has allowed the horrific abuse of Indian children and now it is allowing the abuse of their most basic legal rights. In a B.C. court this week, the justice minister, who will use the endless dollars of Canadian taxpayers to fight people who have no funding, to go after their pro bono lawyer. The government will fight this case in B.C. superior court because it knows the survivors are in Ontario and they cannot even afford the fare to get there to defend themselves. That is the malevolence that has happened under the justice minister, and I say shame on her. If this is what she came to do in Ottawa as the first indigenous justice minister, to oversee the attack on people whose only crime was that they were indigenous children and whose only crime today is that they continue to speak up against the horrific abuse they suffered, then this country fails if it does not call this injustice out.

We could speak all night about how the justice minister is getting rid of bills on witchcraft, how she is dealing with blasphemy and that trading comic books makes kids commit crimes. We could debate that all night, but what we are debating is a sideshow for the real intent of the government to undermine the Indian residential schools settlement agreement, to make a complete mockery of any of the Prime Minister's words on reconciliation and to abuse the trust of the Canadian taxpayers by spending millions of dollars against survivors, who only want justice and only want this attack on their legal rights closed.

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

Mr. Speaker, in many ways I disagree with the way the member classifies this bill. Saying that this bill has absolutely no substance is a discredit to the efforts to strengthen certain aspects of the crime of sexual assault. Believe it or not, it is a serious issue, something that needs to be addressed, and yet the member across the way marginalizes that.

The bill deals with other aspects, such as ensuring there is a charter statement in other pieces of legislation that are brought forward. That is a substantial piece. We take a more holistic approach in what this government has done on the issue of justice, and I would challenge the member opposite to demonstrate that any previous government has done as much as the current justice minister has done to ensure there is a safer Canada today.

I find it very difficult to hear New Democrats talk about the plight of indigenous people. I come from the province of Manitoba where thousands of children were in the care of the Manitoba NDP government for 15 years and the NDP failed to address those core issues.