House of Commons Hansard #366 of the 42nd Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was consent.

Topics

Criminal CodeGovernment Orders

12:40 p.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

Mr. Speaker, that is a good question. Certainly, there are practical considerations in getting legislation to move through the House. It takes a certain amount of time. With respect to the schedule of this place, it can be a challenge. I appreciate that it has been incorporated into Bill C-75, which has now been passed to the other place. I await its expeditious treatment of that bill.

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12:40 p.m.

NDP

Anne Minh-Thu Quach NDP Salaberry—Suroît, QC

Mr. Speaker, I am asking the same question again in the hopes that the government will change its mind. I hope it will invest money to give victims of sexual abuse or sexual exploitation access to the legal assistance the government claims to be giving them in this bill. I hope this will result in meaningful action, coupled with real financial assistance for women.

Elizabeth Sheehy, a professor at the University of Ottawa, and Emma Cunliffe, a professor at the Peter A. Allard School of Law, have confirmed that it is an important step for victims of rape to have the right to counsel throughout proceedings, but that this measure will largely be ineffective if the complainants who want to hire a lawyer do not receive financial assistance from provincial legal aid programs.

The minister's response was to offer four hours of legal advice. That is a far cry from ensuring victims can rely on legal counsel throughout the legal proceedings.

Does the member recognize that there is a desperate need for this assistance, that this is a flaw in the bill, and that if the government truly wants to help victims it should invest in a fund for victims who do not have the means to pay for a lawyer to be on their side during legal proceedings?

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12:40 p.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

Mr. Speaker, early in this Parliament the justice committee that I sit with the member for St. Albert—Edmonton studied access to justice and made some important recommendations to the House.

The federal government does provide funding to the provinces to help them provide legal aid and other relevant access to justice. It is certainly within the purview of the provinces, because it is within their jurisdiction to administer these programs. I absolutely encourage all of the provinces and territories to allocate more funding and to provide more options, such as we recommended in our report.

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12:40 p.m.

Liberal

Lloyd Longfield Liberal Guelph, ON

Mr. Speaker, today is a poignant time for us to be discussing this on the twenty ninth anniversary of the École Polytechnique massacre.

Our government is looking at how we can empower women and protect women in our society. We are working on entrepreneurship programs for women. We are also looking at equal pay for work of equal value.

We have brought this legislation forward in an effort to try to empower women who have been victims of sexual assault to come forward. This legislation might help to encourage women to come forward through the expansion of the rape shield provisions and the other items that are at the core of the legislation. We are working with women in crisis and with legal aid support in communities to try to encourage those who have been victims to come forward. This legislation might help to encourage those women who have come forward to get justice.

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12:40 p.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

Mr. Speaker, access to justice and a woman's comfort level in approaching the justice system and making a complaint are important. We recognize that in this legislation. I also mentioned in my remarks that we need to do more work on that. The bill would provide additional assurance to women to do this and additional tools by which they can address their concerns.

There is more work to be done in this area.

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12:45 p.m.

Liberal

Anthony Housefather Liberal Mount Royal, QC

Mr. Speaker, I am so pleased to serve with my friend on the justice committee, who does great work there.

As that member and the hon. member for St. Albert—Edmonton have said, we heard similar testimony at the House justice committee as the Senate heard. We rejected similar changes to those made by the Senate because we felt they would add increased ambiguity to the definition of capacity to consent.

Could my hon. colleague further clarify why we rejected them at the House committee?

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12:45 p.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

Mr. Speaker, the member is chair of that great committee. We considered all amendments very carefully and tried to see the long-term implications of them. We rejected these changes because they were either ambiguous or too far-reaching and we did not understand the consequences of them.

However, as mentioned before, these are areas that we need to look at further as a government and as a society in how to better address issues of consent in particular.

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12:45 p.m.

Winnipeg North Manitoba

Liberal

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

Mr. Speaker, I too want to reflect on École Polytechnique and add some thoughts, given we are passing this legislation. People can reflect on where they were 29 years ago. I recall the day after, and I was sitting in the Manitoba legislature, when Sharon Carstairs, the first woman elected as a leader of an opposition party, talked about women and women's rights. This is more than just a woman's issue; it is also a man's issue.

When we look at the legislation, it would advance us on a number of fronts. We have a minister who is committed to looking at it from a much larger perspective in protecting society, with special focus and attention on women. My colleague may want to add some of his personal comments on the tragedy 29 years ago.

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12:45 p.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

Mr. Speaker, I certainly remember where I was on that tragic day.

There is no question that these issues have been held in society, issues which we have had to deal with for a long time. We go a great distance in addressing some of the underlying legal problems that women face in our society, but there is no question there is still a long way to go. I look forward to helping all members of the House address those issues and find potential solutions going forward.

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12:45 p.m.

Conservative

Kevin Sorenson Conservative Battle River—Crowfoot, AB

Mr. Speaker, it is a privilege to stand in the House to debate 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 would first like to highlight the fact that this is an omnibus bill, containing many changes to a variety of different matters. Similar to many other Liberal promises we have heard in the House, or before the last election, the introduction of this bill breaks another promise not to table legislation of this nature. In debate in the lead-up to the election we had that commitment, just like we had a commitment on the deficit. However, it is another broken promise.

Ironically, Bill C-51 was introduced on June 5, 2017, just after the government House leader called for major reforms that, among other things, aimed to limit a government's ability to introduce omnibus bills. Just a couple of days later, it introduced an omnibus bill.

Second, it would remove a number of sections of the Criminal Code that no longer have any particular relevance. This includes section 365, some of which deals with witchcraft and sorcery; and section 71, related to duelling in the streets. Much of this we can support. Other aspects may be a little more problematic.

It also originally proposed to repeal section 176 of the Criminal Code, which makes it a crime to unlawfully obstruct, threaten or harm a religious official before, during or after he or she performs a religious service. It also makes interrupting or disturbing a religious service a crime. We have voiced our concerns in regard to that in the House many times.

As a number of my colleagues, including the former minister of justice and attorney general of Canada, pointed out during debate on the bill, the Conservatives were the first to identify this grave mistake of the Liberal Justice Minister and to draw the attention of Canadians to this flagrant attack on their freedom to worship without fear in their own way.

I will be splitting my time, Mr. Speaker, with the member for Elgin—Middlesex—London.

Our highlighting of Bill C-51 and this offensive Criminal Code amendment resulted in significant backlash from tens of thousands of Canadians who signed petitions urging the Liberals to back down on minimizing an obstruction or disturbance of a worship service. The government finally relented, and as such, Liberal members of the justice committee were instructed to introduce an amendment that effectively stopped the repeal of section 176.

That is one of those times where Parliament works, when the Conservatives can bring forward a concern like that. Unfortunately, sometimes it takes the outcry of tens of thousands of Canadians speaking up about what the Liberals were trying to do to our worship services of all different faiths.

While many of my constituents of Battle River—Crowfoot are thankful the Liberals finally saw the light, I still remain stunned by the fact they even contemplated the removal of section 176 of the Criminal Code, let alone attempting to do it.

After steady but relatively small increases since 2014, in 2017, hate crimes in Canada rose sharply. We can see that on the front pages of most papers. It is up 47% over the previous year. For the year, police reported 2,073 hate crimes, 664 more than in 2016. Higher numbers were seen across most types of hate crimes, with incidents targeting Muslim, Jewish and black populations, as well as Christians. These increases were largely in Ontario and Quebec.

Barbara Perry, an expert on hate crimes and professor of criminology at the University of Ontario Institute of Technology, was quoted in The Globe and Mail, on November 29, saying, “This is staggering. You don’t see this kind of increase in any sort of crime data”, adding that “the numbers should be a wake-up call for provincial and federal leaders.” She went on to say, “It’s an assault on our core values of inclusion and equity.”

In the same article, Leila Nasr, a spokesman for the National Council of Canadian Muslims, said, “We’re devastated to see the numbers go up yet again.”

As revealed in the Globe and Mail article:

Hate crimes also rose across all categories of religion, with those targeting the Jewish population accounting for 18 per cent of all hate crimes in the country. The surge echos B’nai Brith Canada’s tracking of anti-Semitic incidents, which saw a record last year.

Chief executive Michael Mostyn, in a release that recommended an action plan to counter online hate, as well as enhanced training for police officers, said, “We need real and effective measures to extinguish this rise in hatred”.

The Canadian Race Relations Foundation called the numbers:

....a warning against complacency and....a stark reminder that hate crimes are an attack not only on individuals and their communities but on the very fabric of our society.

As I pointed out, those remarks were issued or reported on just a week ago today regarding the 2017 hate crime statistics, the year in which the Liberals introduced the bill. Again, whatever motivated them to repeal section 176 Criminal Code?

What has motivated the government to retreat on the one hand, while still sending the wrong message that the disruption of religious service is not a serious offence? That is exactly what they have done by taking it out of this legislation and moving it into Bill C-75. Currently, it is a solely indictable offence which, as we know, are for the most serious offences. However, in Bill C-75, by hybridizing it, this offence could be prosecuted as a summary conviction offence which is reserved for less serious offences.

It is important to note that the maximum sentence under section 176, if prosecuted as an indictable offence, is two years. Making it a hybrid offence, the maximum sentence as a summary conviction offence would be reduced by only one day. It would fall into the two years less a day, with the indictable offence being much more than that. Therefore, why the change?

Again, we really have to question why, at a time when hate crimes against religious communities across Canada are significantly increasing, are the Liberals trying to downgrade the seriousness of these offences?

Section 176 is not unconstitutional, has never been challenged in court and is not obsolete. Furthermore, a number of individuals have been successfully prosecuted under section 176. It is the only section of the Criminal Code that expressly protects the rights and freedoms of Canadians to practice their religion without fear or intimidation, a freedom that is a fundamental freedom guaranteed under the Charter of Rights and Freedoms.

One can only surmise that despite the outcry from all across the country and them retreating on repealing this offence, the Liberals really do not believe it is a serious crime, just like they do not believe impaired driving causing bodily harm is a serious offence. That is what they have changed again in Bill C-75.

This past Tuesday, the Minister of Justice and the newly appointed Minister of Border Security and Organized Crime Reduction took to the air waves to remind Canadians that in two weeks they would be subject to mandatory alcohol screening if they were stopped by the police, something I support, as I want the horrific loss of life and injury due to impaired driving stopped.

While one minister bragged this was a game charger and another defended the change because impaired driving remained the leading cause of criminal death in Canada, both were being disingenuous in that they failed to reveal the fact they had downgraded the offence of impaired driving causing bodily harm. Under Bill C-75, this offence, which is currently solely an indictable offence, becomes a hybrid offence and as such, if proceeded summarily, may result in two years less a day of prison time or worse, a monetary fine.

I would like to state my support for the government motion to reject a Senate amendment to the bill before us today, Bill C-51. Bill C-51 clarifies that consent can never occur when an individual is unconscious, which is consistent with the J.A. decision. The Senate amendment would only lead to added complexity and confusion over what evidence would be relevant to determine consent in sexual assault cases. Instead of adding certainty to the law, it would lead to further litigation.

We cannot afford further delays in our courts due to prolonged cases. Sexual assault victims should be supported, not subjected to undue delays, so for that we commend those measures within Bill C-51.

I thank you, Mr. Speaker, for allowing me a bit of opportunity to veer off and go to some of the things that were pulled out of this bill. I recognize that.

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12:55 p.m.

Liberal

Anthony Housefather Liberal Mount Royal, QC

Mr. Speaker, I appreciate my hon. friend's comments on a multitude of different justice bills.

In terms of the comments he made with respect to obstructing a clergyman on the way to a religious service and the notion that the Liberal members of the committee were instructed somehow to propose an amendment, I am sure the hon. member would want to restate what he said so as not to imply that Liberal members of the committee have no minds of their own and could not have decided themselves to put forward this amendment. I can assure him that Liberal members of the committee, listening to the witnesses, determined for ourselves that we agreed with our colleagues across the way that this should not be repealed.

Also, my hon. colleague put forward the argument that the sentence for the indictable offence of obstructing a clergyman being two years and that for the summary offence being two years less a day essentially means there is no difference in the maximum penalty that one could receive by making it a hybrid offence. Can my hon. colleague really justify the argument that the one-day difference in the maximum sentence creates a different tenor for this offence?

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1 p.m.

Conservative

Kevin Sorenson Conservative Battle River—Crowfoot, AB

Mr. Speaker, I want to go back to the beginning of this. When this bill was originally brought forward, there was an outcry regarding the measures being taken to minimize the offence of disrupting a service of worship, from which clergy are protected under section 176. We saw it on every social media out there. Twitter, Facebook and all of them were going crazy about the current government coming forward with those measures to repeal section 176. Thousands of people protested that it was wrong, and to the Liberals' credit they appeared to have backed down.

However, my point is that the Liberals backed down on this bill, yes, but then they turned around and put similar wording into Bill C-75, which as we know is now going to the Senate. Therefore, the Liberals hybridized section 176, turning much of it into a summary conviction with a lesser charge.

We live in a time when we recognize religious freedom. That means that as a Christian, I nevertheless expect that in every type of worship service, be it Jewish, Muslim, name the religion, people have the opportunity to worship whom they wish and how they wish. As long as it does not impede anybody else, they have the ability to do that. Lessening the offence of being able to come in and disrupt that service sends the wrong message.

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1 p.m.

NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Mr. Speaker, my specific question is around the provision in this bill to allow a complainant to have support through a lawyer at trial and in the pre-trial hearings. We welcome that provision. However, we see no accompanying support for those with low income, who may not be able to afford a lawyer. We have questioned the government several times on whether it is going to increase legal aid, and to this point there is no answer. A provision that does not have any meaning behind it is not quite meaningless, but it is close.

The question about consent is important because as the law stands right now, the standard for non-consent is unconsciousness. This bill seeks to change that. We sought greater clarification.

There have been examples at trial where exposure to public embarrassment through the release of embarrassing information, photos and whatnot has been deemed to be non-admissible to court when a sexual act then followed. Where essentially the woman, as is often the case, was more or less blackmailed into sexual activity, that provides for consent under the law right now.

The New Democrats wanted to change that standard. We moved amendments and the Liberals voted against them. The Senate has moved those same amendments, and now the government, which my friend agrees with, is defeating those. I understand the member's concerns about delay, but this is about the ability to properly give consent.

The standard right now says unconsciousness is the only standard by which the court will relent on consent, and that seems to me far too high a bar for the sexual assault cases that we see across this country. Does the member not agree?

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1 p.m.

Conservative

Kevin Sorenson Conservative Battle River—Crowfoot, AB

Mr. Speaker, there are basically two questions there.

First of all, I think all Canadians recognize that sexual assault victims should be supported, not subjected to undue delays or other difficulties they may face.

To answer the member's first question in regard to having a lawyer present, we expect that people have the ability to access legal advice, whether through legal aid or other measures. This is imperative.

Second, for reasons of the consensual aspect of this and the rape shield part, and because sexual assault victims need to be supported, we support those measures.

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1:05 p.m.

Conservative

Karen Vecchio Conservative Elgin—Middlesex—London, ON

Mr. Speaker, I would like to thank the member for St. Albert—Edmonton for leading our Conservative caucus, the House and all Canadians through this legislative process to make the Canadian Criminal Code better.

This opportunity has provided me a chance to read, research and develop a much better understanding of the Criminal Code and its importance to all Canadians. I have read that one of the conveniences of the code is that it constitutes the principle that no person can be convicted of a crime unless otherwise specifically outlined and stated in a statute.

Today, we are discussing section 273.1 of the Criminal Code, which the bill would amend to clarify that an unconscious person is incapable of consenting. This reflects the Supreme Court decision in R. v. J.A. in 2011. The bill would also amend section 273.2 to clarify that the defence of mistaken belief in consent is not available if the mistake is based on a mistake of law, for example, if the accused believed that the complainant's failure to resist or protest meant that the complainant consented. This provision would codify aspects of the Supreme Court of Canada's decision in R. v. Ewanchuk in 1999.

Currently, the Criminal Code of Canada states that no consent is obtained where “the complainant is incapable of consenting”. Bill C-51, in subclauses 10(2) and 19(2), would amend this to clarify that unconsciousness is not the only situation in which an individual could lack capacity to give consent to sexual activity.

As indicated in the legislative summary of the bill, the amendment takes into account the Supreme Court judgment that was made in R. v. J.A., requiring active consent throughout every phase of the sexual activity. This is important to note, as this amendment would protect Canadian men and women against sexual exploitation.

I will relate a news story we heard back in 2017. When we were going through the bill put forward by our former colleague, Rona Ambrose, we talked about sexual consent and unconsciousness, and about judges being trained to understand sexual exploitation and assault.

This newspaper story told of a Nova Scotia judge who acquitted a Halifax taxi driver of raping a female fare. She was found unconscious in the back of his cab, partially naked and having urinated on herself. The woman, whose blood alcohol level was found to be three times the legal limit, had hailed the cab just 11 minutes earlier. The Crown has announced it will appeal Justice Gregory Lenehan's verdict, in part over concerns the judge did not properly apply the test for capacity to consent.

The proposed legislation also focuses on a Supreme Court case in 2011. It was very interesting to read the original case in the Court of Appeal in Ontario, and the appeal in the Supreme Court of Canada.

The case before the Supreme Court of Canada was Her Majesty The Queen appellant, and J.A. respondent, and Attorney General of Canada and Women's Legal Education and Action Fund on appeal from the Court of Appeal for Ontario. It reads:

Criminal law—Sexual assault—Consent—Accused and complainant consensually engaging in erotic asphyxiation—Accused...penetrating complainant during period of unconsciousness—Whether Criminal Code defines consent as requiring conscious, operating mind throughout sexual activity—Whether consent to sexual activity may be given prior to period of unconsciousness

For anyone who has a daughter or son, we want to make sure the laws are there to help and protect Canadians.

While I was going through the information regarding the Supreme Court decision, I read some of the background to the decision. I would like to put it on the record. This is from the Supreme Court ruling:

One evening, in the course of sexual relations, J.A. placed his hands around the throat of his long-term partner K.D. and choked her until she was unconscious. At trial, K.D. estimated that she was unconscious for “less than three minutes”. She testified that she consented to J.A. choking her, and understood that she might lose consciousness. She stated that she and J.A. had experimented with erotic asphyxiation, and that she had lost consciousness before. When K.D. regained consciousness, her hands were tied behind her back, and J.A. was inserting—

I will omit the details here, but suffice it to say that it was something a person should have a choice in, and it was not an act the complainant was prepared for. K.D. gave conflicting testimony about whether this was the first time J.A. had performed this act. Ten seconds after K.D. regained consciousness, J.A. ceased doing what he had been doing.

At the end of the day, we have to look at this and understand why there is an issue here. K.D. made a complaint to the police two months later and stated that while she had consented to the choking, she had not consented to the sexual activity that had occurred.

Chief Justice McLachlin and Justices Deschamps, Abella, Charron, Rothstein and Cromwell ruled, “The legislation requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.”

Sharing the background to the Supreme Court's decision and the story of the woman in Nova Scotia provides a great illustration of the challenges and the need for changes to the Criminal Code. With regard to the amendments proposed by the Senate, I support our party's position and the government's decision not to accept these amendments.

This is a very complex issue. The complexity can be seen from Statistics Canada figures from 2009-14. In that period of time, 93,501 sexual assault incidents were reported to the police. Charges were laid in 43% of those, or 40,490 incidents; 49% or 19,806 incidents went to court, and 15,804 cases were completed in court, of which 55% or 8,742 resulted in guilty decisions. Of those, the number of adult cases sentenced to custody was 3,846, or 56%.

I want to look at the first number, the gross number, and the fact that over 93,000 sexual assaults occurred from 2009-15. Many of us would say that is extraordinary. If we think of the population of Canada and the fact that almost 100,000 Canadians have been sexually assaulted in that five-year period, we would be in total awe.

Sexual assault is a problem here in Canada. It is a very complex problem, and there are many key factors that must be assessed. One of the most critical ones, I believe, is consent. According to Planned Parenthood, sexual consent is an agreement to participate in a sexual activity. It states:

Consent is never implied by things like your past behavior, what you wear, or where you go. Sexual consent is always clearly communicated—there should be no question or mystery. Silence is not consent. And it's not just important the first time you're with someone. Couples who've had sex before or even ones who've been together for a long time also need to consent before sex—every time.

This past summer, I had the opportunity to listen to members of the community at the 519 Centre in Toronto, where I spoke to Glen Canning, the father of Rehtaeh Parsons. Although Rehtaeh is no longer with us, Glen advocates for education focusing on sexual consent. In a blog, he writes:

My years without Rehtaeh taught me that kids need to know consent. In the past three years l've learned that the most powerful tool to combat violence against women could very well be the minds of young men. l've learned that if we don't fill those minds with examples of virtue, empathy, affection, tolerance, trust, kindness, courage, and bravery, then those minds will end up being filled with ignorance, racism, sexism, hate, and anger. What would have happened to Rehtaeh Parsons if just one of the boys with her that night was informed about consent and his role in preventing sexual violence?

In summary, I am very glad that we are moving forward and reviewing the information in the Criminal Code, specifically when it comes to consent. This is an area where, as I indicated, a look at the statistics shows we can do better and we must do better. We cannot just be virtue signalling. We cannot just talk about what we should not do, yet do it in the privacy of our homes, or not own up to things we did years ago.

At the same time, as other members have indicated, a lot of the information and a lot of the things we are studying are in conflict with what we see in Bill C-75, specifically with regard to the sexual exploitation of women.

It is wonderful to go ahead with consent, expanding it and having a better understanding to make sure more people are convicted of sexual assault when necessary. However, when it comes to Bill C-75, a slap on the wrist is not enough.

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1:10 p.m.

Arif Virani Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.

Mr. Speaker, I appreciate the contributions of the member opposite to this important debate today, particularly on December 6, the 29th anniversary of the Montreal massacre.

My questions for the member opposite are twofold. First, she outlined the important issue of consent in sexual assault and how the statistics demonstrate that it remains an ongoing problem in Canada today. Part of what we are doing is improving education, sensitivity and outreach to all the actors in the judicial system. That includes training for lawyers and judges.

Would the member agree that the record of our government in appointing judges, 56% of whom are women, is a step in the right direction and compares favourably with the record of the previous government, which appointed only 30% women?

Second, she raised Bill C-75 and its relationship to this piece of legislation we are discussing. Bill C-75 includes an important provision to eliminate preliminary inquiries in sexual assault trials so that victims do not have to be revictimized by proceeding through a preliminary inquiry and having to testify again at the actual trial on the merits. Is that a step in the right direction in addressing the trauma sexual assault victims face, which was outlined by the member opposite?

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1:15 p.m.

Conservative

Karen Vecchio Conservative Elgin—Middlesex—London, ON

Mr. Speaker, I also want to say that right now, we have an outstanding bill sitting in the Senate, Bill C-377, put forward by the hon. Rona Ambrose. It is an opportunity for our justices to actually be engaged and trained on sexual assault. The government has not pushed that item whatsoever. Regardless of whether the government has put in more or fewer justices, they are not being trained properly. Bill C-377 has been sitting there for the last year and a half. The government could be doing better, especially in working with Senate colleagues, if it is serious about making sure that people alleged to have committed sexual assaults are actually convicted and go to jail. We need to have that sensitivity and empathetic understanding of what is going on for the victims of this crime.

As for Bill C-75, seeing that it is a hybrid bill, I cannot support what the government has done with regard to reducing sentences and convictions when it comes to those people who have victimized someone through sexual assault.

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1:15 p.m.

NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Mr. Speaker, I am a bit surprised to hear Liberals try to laud their appointments process on federal judges, because they have actually maintained a historic number of vacancies on federal courts. There were 53 just a couple of weeks ago, which breaks all record.

For Canadians wondering why that matters so much, it is because we have new Supreme Court rulings that say, under Jordan's principle, that we must move victims and potential victims through the court system more expeditiously. One of the ways to do that is to have judges sitting on the bench, which the Liberals, after three-plus years in office, have been unable to do.

I will take this moment to agree with my friend about the bill from our former colleague, Rona Ambrose. I am stunned that the Canadian Senate has not gotten it together to spend a few moments to pass that bill through the Senate to allow for proper training for our judges. Although I hate to typify this, in case after case, particularly when it is older male judges sitting on the bench dealing with sexual assault cases, as Canadians have unfortunately seen in the news, federal judges have been unable to properly understand this. They have not had proper training through the simple passage of that bill.

However, my question is this. The Liberals have put forward better rape shield laws and the provision to have an attorney present at some of the pre-trial hearings, but without any further support to provide legal aid for those Canadians who do not have the resources to have a lawyer with them. In putting up the motion without the resources behind it, what does that mean to Canadians from low-income families? Will they have less representation at trial if facing the horrific scene of a sexual assault?

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1:15 p.m.

Conservative

Karen Vecchio Conservative Elgin—Middlesex—London, ON

Mr. Speaker, I sit near the member for St. Albert—Edmonton, and every single time we talk about judges, I can assure the House that that voice is being heard by 338 members of Parliament and by Canadians. We have not appointed the correct number of judges. We are still behind, and that is why the Jordan principle is key here and why we need judges to be appointed.

As to what the resources are for people who are less fortunate, we see that in many of the developments that are happening. The government proposes things but never has the money or the clout to back them up. It is virtue signalling 101, and I thank the hon. member for bringing it forward.

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1:20 p.m.

Conservative

Erin O'Toole Conservative Durham, ON

Mr. Speaker, I would like to thank my colleague from London who spoke earlier and all members for their comments on Bill C-51 today.

At the outset, because I have some time today to give a bit of a longer speech, I want to address the fact that I am troubled that in government, the Liberals are doing exactly what they said they would not do when they were in opposition. In fact, this is our second omnibus justice bill.

I know my friend from Winnipeg, the deputy House leader of the Liberal caucus, likes when I quote some of his outrage in the past Parliament about the use of omnibus bills. However, when it comes to justice omnibus bills in particular, I think the need for a lot of these provisions to be considered independently is the best way to go.

Although the bill is certainly not as long as the government's latest budget implementation act, at 850 pages or more, weaving together a variety of unrelated things in the form of one bill, here we have another substantive piece of justice legislation being presented in an omnibus bill.

Breaking it down, there are some good parts and some parts we certainly have some challenges with. I would like to use my opportunity, if I may, to highlight both the good and the bad.

The good is that as a Parliament, we need to show that we can speak with a united voice with respect to zero tolerance for sexual assault and not respecting the consent of an individual in the case of sexual relations of any kind. Therefore, I think it is good that we are having a fulsome discussion on this part of the bill today. In fact, several members have quoted from some of the case law that has led to the need for Parliament to weigh in and be very clear that people cannot provide the consent necessary to engage in sexual activities when they are unconscious. We need to send a clear signal from Parliament. I think the Senate amendments actually take away that clarity somewhat, and I am glad we are having the debate here on proposed section 273.1 in the bill.

The Supreme Court case that drove clarity in this area was very clear. It said that it was not possible for people to provide consent if they were not conscious, even if express consent had been provided ahead of time, when they were conscious. I think Parliament needs to be crystal clear that consent evolves and that there has to be the constant presence of consent and respect. That is what this bill is intended to do. In fact, some of the Senate amendments, which would almost create tests with respect to the standards, confuse the issue. There needs to be a clear signal sent that consent has to be constant. I think that is a signal that, as parliamentarians, we have to send.

I can say, as someone of my generation, that the debate on campuses about no means no and all these sorts of things was not taken seriously in the early 1990s. We are still having debates today about it. An accused will try to suggest that consent was provided sometime earlier. If consent was provided in the context of alcohol or substances, and if someone was unconscious, consent could not be provided.

The Supreme Court was clear. I think Bill C-51 and our updates to the Criminal Code send a very clear message. There is no test to be performed. It is a bright line. Everyone, all Canadians, need to show respect and a commitment to consent in the context of sexual assault cases. It is basic respect. We are in the era of the #MeToo movement and discussions about unsafe workplaces. All these things have been positive in making sure that one has a positive obligation, with respect to one's relations with someone else, to make sure that there is always consent present. I think that is clear.

I am also glad that a number of speakers from several parties have referenced Bill C-337, the bill of the former interim Conservative leader, Rona Ambrose, on judicial training in the context of sexual assault trials. The bench comprises a cross-section of society, and those attitudes need education to make sure that judicial standards adhere to the expectations we have as a society of respecting consent.

We know, in Ms. Ambrose's home province of Alberta, the case of Justice Camp, where attitudes toward a victim by the bench showed just how disconnected some may be. The vast majority of the bench would be explicitly mindful of the complainant in those cases, but we have seen cases in recent years that show that judicial training with respect to consent, in the context of sexual assault trials, is needed, as is education for all members of the bar.

As a member of the bar, I am glad that a few years ago, law societies across the country incorporated continuing legal education requirements for lawyers to make sure that they are aware of expectations with respect to consent and the law. The very fact that there would be some reluctance to have same continual legal education for judges in the context of sexual assault cases is troubling. I know that most justices demand that level of CLE, so I hope that the government, in the context of my starting off my speech by talking about some of the positive elements of Bill C-51, pushes Bill C-337 through. It should not matter that it came from a former Conservative member of Parliament, Rona Ambrose. It should not matter that it came from this side of the chamber if it addresses the same elements I am saying I support in Bill C-51 today. Let us hope there is some movement in the Senate so that in the spring, we can ensure that it is an expectation that all members of the bench have that training so they can guarantee an environment of respect for all complainants who come forward.

The provisions in proposed section 273.1 also show that Parliament is clear in its direction with respect to consent always being a requirement, and if there is any uncertainty, we err on the side of complainants. Everyone should know that if circumstances change, be they the context, consciousness, alcohol or these sort of things, prior consent is not sufficient. We have to be crystal clear on that.

This is also similar to Bill C-75, an omnibus justice bill, which I have spoken to in Parliament. I have also spoken to Bill C-77, on modernizing criminal justice within the context of the National Defence Act. I supported a number of measures in that bill. In fact, the previous government introduced Bill C-71 in the last Parliament to try to update the National Defence Act and the treatment of criminal conduct by members of the Canadian Armed Forces. That is still in a state of flux. All these bills, particularly because they deal with the rights of the accused and the rights of the victims or complainants in these cases, should be given specific attention and not be put into omnibus bills.

I would like to speak for a moment about the fact that this bill is part of the process of requiring a charter statement from the government with respect to legislation before the House of Commons. I have some concerns about that approach, in two ways. First, I am worried that it may send some sort of chill to suggest that the government is trying to innoculate itself by saying that it reviewed the bill ahead of time and has a charter opinion on it, meaning, therefore, that we cannot raise charter concerns or that there is no reasonable basis to have concerns about its validity under the charter by groups that may be impacted by the decision of this Parliament.

The very nature of the charter itself was to give a back and forth test with respect to the will of Parliament, and the ability for the court to determine whether fundamental charter rights were breached directly or indirectly by legislation in the context of enumerated groups under section 15 of the charter, are expressly contained within the charter, or are analogous ground groups, provided by subsequent court decisions.

The balancing test under section 1 of the charter, the Oakes test, which I learned in law school and is some of the first charter jurisprudence, is that balancing of the charter. By issuing a charter statement, I am quite concerned the government is trying to suggest it is doing its own Oakes test, its own charter examination of issues at the time it is passing legislation. I am not suggesting it will cause chill, but I have not have heard an argument from a member of the government bench to suggest this is any different than any government since the mid-1980s, when the charter came into effect.

Suggesting that the seal of approval for the charter is granted by one of these statements is simply ridiculous. It is up to the court to provide that reasonableness and those limitation tests under the provision of section 1 of the charter, which allows a charter right to be violated by legislation, but applies a reasonableness and balancing test to it since the Oakes jurisprudence started.

I will give a couple of examples of why I have this concern. In this Parliament, we have seen many instances of the government acting in a way I firmly believe violates the charter rights of many Canadians. This is germane because just today, shortly before we rise for Christmas, the government is reversing its position on the so-called values screen for Canada summer jobs.

We all know the controversial values test was applied for the first time in the history of this summer employment plan for youth as a clear way the government intended to exclude faith-based organizations and other service organizations from funding related to students. There were concerns from a charter basis expressed from day one when it came to the values test. Is the government suggesting, with its charter statements, that its actions on a whole range of decisions are somehow inoculated because it is providing a charter assessment? That is political theatre. It cannot provide its own charter assessment. It tries to craft legislation that it feels strikes the right balance, but the actual charter determination is not made in this chamber, which writes the laws, but in other courts.

We bow to the Speaker. We have a bar. This is a court. We write the laws, but we do not adjudicate our own laws. This is a very big distinction I have not heard the government express any clear indication on yet.

I will use another example. There have been several violations, in my view, of indigenous peoples' rights with respect to the duty to consult. In fact, I believe Bill C-69 violates that duty. We can look at the approach the government has taken on the cancellation of the northern gateway pipeline, which is one-third owned by indigenous groups. The duty to consult is not frozen in time. It does not exist 10 years before one develops a pipeline or cuts trees in a forest. If one decides to change the circumstances of that consultation, or cancel something that indigenous peoples are a one-third owner of, one has a duty to consult them on the cancellation. This is an ongoing duty.

The fact that the government may have a piece of paper that says this is our charter statement, this is our validation that the bill conforms with the charter, is political and inappropriate, because the government is suggesting this legislation will withstand any judicial scrutiny before the judicial scrutiny is applied. The government is suggesting that this is A-okay. That is not the way it works.

I invite the Minister of Justice and Attorney General and the parliamentary secretary to walk a little past the Confederation Building on the Hill to a building called the Supreme Court of Canada. It is there that the Oakes test was born, the Oakes test where the section 1 charter clause was.

As I have said, the values test that the government did to politicize the Canada summer jobs program would not be inoculated because of a government-produced charter statement nor would some of its actions with respect to Bill C-69, Bill C-75, Bill C-77. These are court determinations.

I do not have any proof because the charter statement concept is part of the government's justice reforms, including in this legislation, but I do have serious concerns that it will send a chill to suggest that the government will not consider valid concerns people have with respect to their charter rights.

I would like subsequent members of the Liberal caucus, particularly the ministers or the parliamentary secretaries, to provide a substantive rationale for their approach with respect to the charter statements. Are they somehow suggesting that previous governments, both Conservative and Liberal, have somehow not conformed to the charter by doing exactly what we are supposed to do as a Parliament, which is to try and find the right balance between the will of the people and certain provisions within the charter? That is done by a court using the Oakes test, doing the balancing. Producing a charter statement does not protect the government from criticism.

As I said today, days before Christmas, the government suddenly admits that its approach on the values test for summer jobs is wrong. This is much like days before Christmas last year, when it broke its promise to veterans on the return to the Pension Act. The Liberals make very good use of the pre-Christmas period not just for parties, but for dumping out their dirty laundry.

I would like to thank the thousands of Canadians from across the country and many of my colleagues in this chamber for representing the charter rights of millions of Canadians with respect to the conduct of the Canada summer jobs program.

Why I am focusing on this part of the bill is because we have to make sure that Canadians, members of the media and members of both Houses of Parliament do not get fooled by the fact that the government validating its own legislation under the guise of charter approval is not actually charter approval.

I am hoping in the remaining debate we can actually hear a cogent argument from the Liberal caucus on this. Otherwise, it seems to be more of the sort of media spin that we hear from the government.

The Prime Minister just yesterday, while leaning on his desk acting like a professor, told the opposition what we should ask and what we should criticize. We know full well what we should ask and we know where our criticisms and critiques are warranted.

Quietly, when the House does not sit, the Liberals backtrack on things, like they did today on the summer jobs values test, like when we rose for Remembrance week, and Miss McClintic, another justice consideration, was quietly transferred to a prison as we had been demanding, and as the break week happened Statistics Canada suddenly pulled back its program.

Like the Chris Garnier criticism, the non-veteran murderer who is receiving treatment funds from Veterans Affairs Canada, on most of the criticisms we have been raising even though they make the Prime Minister uncomfortable, the Liberals have backtracked. We have been doing our job quite effectively.

In the remaining time for debate, I would like one of the Liberal members to stand up and provide a context and a rationale addressing my concerns in regard to charter statements with respect to the bill before us and others.

As I said at the outset, we support the amendments and update of our Criminal Code with respect to sexual assault.

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1:40 p.m.

Arif Virani Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.

Mr. Speaker, I have two major points.

First, Bill C-337, presented by Rona Ambrose in this House, was supported by members on this side of the House. We look forward to its expeditious passage in the same way that the member for Durham does.

Second, the sanctimonious language that I have just heard, contributing to the debate with respect to charter statements, is incredible. The legacy of that party is seven consecutive defeats at the Supreme Court in respect of the charter. It is a legacy that had section 12 being applied to the denial of refugee health care in this country, an application that has never heretofore been done outside of a criminal context. It is a legacy that had the Chief Justice of Canada taking a public podium to renounce the allegations made by former prime minister Harper.

The very simple answer, to purport that a charter statement is somehow an effort to immunize us from litigation, is ridiculous on its face. We are the party that takes the charter seriously. That is why we are implementing charter statements.

Proof positive, for the member for Durham, if we were so afraid of constitutional litigation, why on earth would we ever have reinstated the court challenges program, which promotes and emancipates and empowers access to justice and constitutional litigation on the part of litigants? We are not afraid of the charter, nor are we afraid of constitutional litigation. That program was cut by the member opposite when he was a member of the cabinet.

Is it the member opposite's statement in this House that his party, if it was to ever return to power, God forbid, would retract the charter statements that are now a statutory duty, pursuant to the provisions of this legislation?

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1:40 p.m.

Conservative

Erin O'Toole Conservative Durham, ON

Mr. Speaker, the member started off by suggesting I was sanctimonious and then did a very good demonstration of that word.

I would like to address what he talked about. There were several defeats of government legislation at the Supreme Court of Canada when I was part of the Harper government. That is the very point I am making. The court makes those determinations.

To suggest that some official within his minister's office can somehow bless the legislation by some charter statement actually suggests that the Liberals are taking the role of the court as part of the legislation.

The member's little rejoinder to my speech did not address that at all. In fact, he is misleading the House with respect to the Supreme Court decision about failed refugee applicants with respect to health care benefits. Refugee claimants, while waiting and when successful, do get health care. That did not change. The member is still believing the placards that misled people on the issue.

I would invite the member to speak to the immigration minister, because now, on the government's failure at the border in Quebec, its own department is saying the Immigration and Refugee Board time could go to 11 years. If those failed claimants receive health care for 11 years, is that fair? We have a fair, rules-based system, and a court to adjudicate if the Parliament oversteps its reach, not the Prime Minister's Office or the minister's judicial adviser with some sort of charter statement.

Canadians still have the right to stand up for their rights, like they did on the Canada summer jobs program.

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1:40 p.m.

NDP

Christine Moore NDP Abitibi—Témiscamingue, QC

Mr. Speaker, we are talking specifically about the two Senate amendments that deal with sexual consent. The government's bill talks about the complainant being unconscious or incapable of consenting for any other reason. Unfortunately, “any other reason” remains rather vague and is subject to interpretation by the courts.

Senator Kim Pate's amendment talks more specifically about the notion of sexual consent, including when the person is unable to understand the risks of the sexual activity in question. This brings us to vitiated consent, for example when one partner removes the condom without the other partner's knowledge and exposes the latter to risks of bodily harm such as an unwanted pregnancy or sexually transmitted disease.

These cases are often rejected by the police. Victims who call the police are told that this does not constitute sexual assault. If the amendment had been adopted, we could clarify such cases.

I would like to hear what my colleague has to say about the fact that the military police has recently reviewed many cases of sexual assault to ensure that there was no misinterpretation by the police forces when it comes to determining whether or not certain acts constituted sexual assault.

Would we not be better off adopting the Senate amendments, which will go a long way to clarifying sexual consent, including in cases of vitiated consent?

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1:45 p.m.

Conservative

Erin O'Toole Conservative Durham, ON

Mr. Speaker, I thank my colleague for the question. I will answer in English because this subject matter is too complicated for my level of French.

The sexual assault provisions in the bill specifically adopt the approach taken by the Supreme Court of Canada. I would refer the member to those remarks in my speech. The Supreme Court's position was that it is not possible for anyone who is unconscious to provide consent. The Conservatives agree with the Liberals with respect to section 273.1.

Senator Pate has put forward additional provisions, and I respect the fact she wants clarity. I know she has been an advocate for women and people in our justice system for many years. To me, as a lawyer, having a four-part consideration adds additional complexity where all of those things will subsequently be assessed or considered by a court. Having a very clear statement by the Supreme Court of Canada in case law then adopted in legislation like Bill C-51 sets a clear expectation in two ways. It is crystal clear that someone who is unconscious cannot provide consent, and the second element is that previous consent is not sufficient for acts later on, whether with respect to the mental state or issues of the complainant or the accused. That consent needs to be continuous. I think it is really addressed better by the bill than by the amendments which would make it more complicated.

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1:45 p.m.

Liberal

Larry Bagnell Liberal Yukon, YT

Mr. Speaker, I have two questions for the member.

The member seemed to imply that reviewing legislation for charter approval is a waste of time. The Government of Canada has traditionally used significant appropriate funds to hire experts in the Department of Justice to review legislation before it comes to Parliament to ensure charter compliance as best as possible.

As the member for Parkdale—High Park made quite clear, we are very supportive of the courts making the final decision. Anyone can go to the courts.

First, does he think it is a waste of money to have those constitutional lawyers in the Department of Justice review legislation? Second, because the Conservatives had so many bills that failed charter tests, it was suggested to me at a justice committee meeting, I think it was in Toronto, that when the Conservatives were in power they did not even have their laws reviewed by constitutional experts, or at least did not agree with their opinion. Was that true when the Conservatives were in government?