Debates of Dec. 6th, 2018

Criminal Code

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Madam Speaker, I am not going to speculate as to whether or not a previous bill, Bill C-39, could have been passed by unanimous consent.

What I am confident in and very pleased with is that Bill C-75 includes the former Bill C-39 to remove these zombie laws that my friend has spoken about. It is contained within Bill C-75, which has passed third reading in this House and is on its way to the other place. I look forward to the debate and discussion in the other place on this important piece of criminal justice reform and to the speedy passage of Bill C-75 so that we can, in fact, remove the zombie provisions that are contained within the Criminal Code.

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

Madam Speaker, I rise to speak to Bill C-51, a massive omnibus bill. Perhaps it is not surprising that when we are talking about a massive omnibus bill, there are some positive aspects in it and other aspects with which I and my colleagues on this side of the House have some concerns.

One of the positives of Bill C-51 is that it seeks to remove sections of the Criminal Code that have been found to be unconstitutional by appellate courts. This is a welcomed effort to help clean up the Criminal Code. Likewise, it seeks to remove sections of the Criminal Code that are obsolete or redundant, which again is a welcome effort to clean up the Criminal Code.

As I alluded to in the question that I posed to the minister a few moments ago, while the government is moving forward with the removal of obsolete sections and sections of the Criminal Code that have been found unconstitutional by appellate courts, it is disappointing that the government has still failed to move forward with the removal of sections of the Criminal Code that have been found unconstitutional by the Supreme Court.

The minister is quite right that Bill C-75 does include the removal of those unconstitutional sections. However, as I pointed out to the minister, it was all the way back in March 2017 that the government introduced Bill C-39.

Bill C-39 is a very straightforward bill. It is not controversial. There is support on all sides of the House for the passage of Bill C-39, and yet for whatever reason, after the minister introduced the bill on March 8, 2017, it remains stuck at first reading. It is stuck at first reading with really no explanation. This is an issue that I have spoken to on a number of occasions because it really hits home in the community of St. Albert which I am very fortunate to represent.

When we talk about unconstitutional sections of the Criminal Code, zombie sections, and their removal from the Criminal Code, perhaps it sounds a little abstract and academic. However, the consequences of failing to keep the Criminal Code up to date can be very serious.

We saw that in the case of Travis Vader, who was charged and convicted of two counts of second-degree murder of Lyle and Marie McCann, an elderly couple from St. Albert. They were murdered in 2010. It was a very complicated case. The family waited a number of years for justice to arrive. Just at the moment they thought justice had arrived, they found out that, in fact, it had not because the trial judge applied a section of the Criminal Code that is inoperative as the basis for convicting Travis Vader of two counts of second-degree murder. I am referring to section 230 of the Criminal Code, a section that had been found to be unconstitutional going back to 1990, and yet there it was in the Criminal Code.

That prompted the justice committee, on which I serve as a member, to write a letter to the minister calling on her to introduce legislation to repeal these unconstitutional sections. It was a letter that was sent by the chair of the committee, the hon. member for Mount Royal, all the way back in October 2016.

Following that, I stood with the McCann family in December 2016, when we had a press conference in St. Albert to urge the minister to move forward with legislation. Again, to the minister's credit, she did move forward in a relatively quick fashion because the bill was introduced, as I mentioned, on March 8, 2017. Then nothing happened. It stalled.

I have been in touch with the McCann family. They just cannot understand why, on something as simple as removing unconstitutional sections of the Criminal Code, sections that are of no force or effect yet remain there in black and white purporting on their face to represent the law, remain in the Criminal Code.

The minister has not been able to explain why the government could not pass Bill C-39, why that bill is stuck at first reading, why it needed to be copied and pasted into Bill C-75, an omnibus bill. Bill C-75 is a massive bill which, frankly, is controversial in many respects. It saw a number of amendments at the justice committee and is, undoubtedly, going to receive a whole lot of scrutiny when it goes to the Senate. It will likely be months and months and months before the Senate is able to address Bill C-75. Meanwhile, those unconstitutional sections of the Criminal Code are going to be there.

While the Vader case is one case, it is not the only case that a section of the Criminal Code, an inoperative section, has been applied with real and significant consequences to the administration of justice. There was a case in British Columbia back in 2005 in which the trial judge in a murder trial left a copy of a section of the Criminal Code that was inoperative with the jurors. On that basis, the conviction of the accused was appealed. The British Columbia Court of Appeal ultimately upheld the conviction but only because of the fact that the trial judge's instructions to the jury were deemed impeccable by the Court of Appeal.

That is another case, so it is not just the McCann case. We have seen other cases, including the case in British Columbia.

To say that we will just get around to this whenever is not an excuse. It opens the door to another Vader situation, and if that happens, the government will be to blame. It certainly was not to blame for what happened in the Vader case but once that became apparent about the serious consequences that can come through inaction, the fact that it has been now two years, I think, just does not hold water and there really is no excuse. However, it does speak more broadly to the fact that the government, on the big things and the small things, just cannot get it done time and time again.

Another aspect of Bill C-51 when we are talking about inoperative sections of the Criminal Code was the unfortunate decision by the government initially to include section 176 of the Criminal Code among the sections that the government deemed to be obsolete. Section 176 is hardly redundant. It is hardly obsolete. It certainly is not unconstitutional.

Indeed, section 176 is the only section of the Criminal Code to protect clergy from having their services disrupted, something that is very serious and goes to the heart of religious freedom. The government turned a blind eye, the Conservatives called them on it and, as a result, tens of thousands of Canadians spoke out, telling the government that it was wrong.

To the government's credit, it backed down at the justice committee a year ago and agreed to remove the repeal of section 176, and rightfully so. However, not long after backing down on the removal of section 176, the government, in Bill C-75, hybridized section 176, so that instead of its being treated as a solely indictable offence, it would potentially be treated as a summary conviction offence.

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

A lot of Bill C-51 relates to changes to sexual assault laws in Canada. As I indicated when I rose to ask the minister a question, many aspects of this bill include welcome changes to the Criminal Code with respect to sexual assault laws. Among the positives in Bill C-51 is that it would codify the Ewanchuk decision. That means it would make it absolutely clear that the defence of mistaken belief on the basis of a purported misapprehension or misunderstanding of the law cannot be advanced. It is a positive to have clarity on that and to have the Ewanchuk decision codified.

Another positive change the government is making with respect to sexual assault provisions is the codification of the J.A. decision. The J.A. decision makes clear that in no circumstances can a complainant be deemed to be giving their consent while unconscious. By way of background, in J.A., the accused said that no sexual assault took place on the basis that the unconscious complainant had consented to both being made unconscious and the sexual activity. That argument was successful before the Ontario Court of Appeal.

Fortunately, the Supreme Court overturned the decision of the Ontario Court of Appeal, holding that for there to be consent, that consent must at all times be contemporaneous; that consent must occur at all times at all stages of the sexual activity. Therefore, Bill C-51 would amend section 273 of the Criminal Code, which contains a list of non-exhaustive factors when consent is deemed not to have occurred. More particularly, Bill C-51 would amend that section to specifically include the word “unconscious” to make it crystal clear that in no circumstances will consent be deemed when the complainant is unconscious.

As the minister went into some detail about in her speech, there were some concerns raised by a number of witnesses, both before the justice committee when we heard from them about a year ago, as well as from witnesses who appeared before the Senate legal and constitutional affairs committee. Essentially, their argument was that codifying R. v. J.A. really would not do anything, that the whole issue of consciousness has never really been an issue, and that prior to R. v. J.A. the courts were never really finding there was consent when complainants were unconscious. In that regard, the concern was that by adding the word “unconscious”, an unintended bright line would be established whereby arguments would be put forward that consciousness or lack of consciousness would be a bright line in determining the issue of consent. That was the argument.

That was part of the reason why Senator Pate put forward her amendments, her concern being that there could be some added confusion in those cases where the person was not unconscious, but, 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. They would establish untested factors, which would be litigated, dealing exclusively with the mental state of the complainant. We know from some of the decisions, including the Al-Rawi decision, that it was not the mental state of the complainant that resulted in the acquittal of the accused, but rather the failure of the trial judge to consider some of the other evidence. Therefore, again, the amendments are problematic.

In terms of the language in Bill C-51, it is sufficiently clear, because it speaks of unconsciousness, but then it speaks to all other circumstances outside of that, so the language is broad. On that basis, I am not convinced that it would create the bright line that was said to be a concern by Senator Pate and by some of the other witnesses who appeared before the justice committee. As for whether or not it should be codified, I do think it is helpful. It does provide some additional clarity, and so on that basis I do support that aspect of Bill C-51.

Another area where I agree with the government is in respect to the applicability of the twin myths under section 276. Section 276 of the Criminal Code prohibits using evidence of a complainant's sexual activity for the purpose of advancing two discriminatory myths, namely that the sexual activity of the complainant makes the complainant less believable or most likely to consent. What Bill C-51 clarifies is that in no circumstances may evidence be tendered for the purpose of advancing those twin myths. That is a step in the right direction.

However, one of the areas I do have some questions about with respect to section 276 is an amendment proposed in the bill related to the definition of sexual activity. In that regard, Bill C-51 seeks to amend sexual activity to include “any communication made for a sexual purpose or whose content is of a sexual nature.” There is some concern that the definition may be overly broad. It is understandable why in this digital age, for the purpose of section 276, it makes sense to include communications in the form of text messages with photos or videos, etc. However, there was some concern expressed by the witnesses that it would be broad enough to encompass communications that were immediately before or after the alleged assault, which could be highly relevant in properly determining the case. Communications that might provide some context as to what in fact took place might no longer be admissible as a result of the wording of that section. Therefore, while I support the objective of the section, and the intent of the amendment is a good one, I do have some concerns about its breadth and how it might impact the types of cases I referenced.

On the whole, Bill C-51 is a good bill, but my biggest concern is with respect to the defence disclosure requirements. The defence disclosure requirements require the defence to bring forward an application in order to admit any record relating to the complainant. That application must be brought at least 60 days before trial. What is wrong with that? There are a number of problems I see with it. First, the definition is extremely broad. The wording is “no record relating to the complainant”. To be clear about what that means and what we are talking about, it is not about a record of the complainant involving their sexual activity. That is captured in section 276 of the Criminal Code, relating to the twin myths I just spoke of.

We are not talking about records for which there would be a reasonable expectation of privacy, such as health, therapeutic or educational records involving the complainant. They are already addressed in section 278.1 of the Criminal Code. What we are talking about is any record relating to the complainant. What type of record might that encompass? It could encompass just about anything, regardless of whether there was any connection to a reasonable privacy interest on the part of a complainant. We are talking about joint records. We are talking about Crown records. We are talking about records that might have been obtained by way of a third party application. So broad is the wording of this amendment, it could arguably relate to a record of the accused to the degree that the record was a basis upon which to cross-examine a complainant and therefore would relate to the complainant.

Why is that a problem when we are talking about all these records? We should just think about that for a minute. Let us think about it from a practical standpoint. Put aside issues of trial fairness. Put aside issues of the presumption of innocence. Think about it from a practical standpoint, the mechanics of how this is going to work. From that standpoint, there are very serious concerns.

If we are talking about any records, in most cases we could be talking about thousands of records the defence counsel would have to comb through and bring an application for, and a court would have to go through each record to determine its admissibility, not, by the way, on the basis of relevance and materiality but on the basis of eight factors provided for in Bill C-51, eight factors that have not been tested and have obviously not, to date, been litigated, because the bill has not been passed.

That would create a lot of uncertainty. It would create a lot of new litigation, and it would create the potential for real delay in our already backlogged courts. That would be an issue at the best of times, but it would particularly be an issue in light of the Jordan decision, where we have cases that are being thrown out due to delay, yet here is something that is likely to have a very significant impact on adding to delays. That is just if the defence counsel brings an application 60 days before the trial.

Again, thinking about how this might play out, there might be a record that does not seem to be that relevant, that does not seem to really assist the defence or relate to needing to be tendered as evidence, but an issue might arise at trial, and suddenly that record that did not seem very significant becomes extremely significant. Then what would we have? We would have a mid-trial application, with the possibility of a mid-trial adjournment, contributing to even more delay. That would slow things down. It would create delay, but for what purpose, what objective?

There are some who say that it would be consistent with the Mills decision of the Supreme Court in that this would guard against fishing expeditions on the part of an accused against a complainant, except for the fact that we are talking about records already in the control and possession of the accused. Therefore, there would be no fishing expedition to be had, because they would already be in the control of the accused. That argument that has been put forward does not hold a lot of water.

Another argument put forward is that it would protect the privacy of a complainant. A great deal of sensitivity is required to do what is possible to protect the privacy of complainants. I wholeheartedly agree with that. There is no question that victims are victimized when they go through the assault and can be victimized again as they go through the trial and the court process. There is no question that efforts need to be made to protect victims. However, again, we are talking about any record, regardless of whether the victim had a reasonable privacy interest and regardless of the nature of the document. As long as it related to the complainant in some way, one would need to go through this process. To the degree that it would protect complainants and the privacy of complainants, it would add a lot more than that due to the very broad wording of that section. That is a concern.

While it seems to go a lot further than necessary to protect a complainant, it would potentially have very significant consequences for the ability of an accused person to advance a defence, and ultimately, for the court to fulfill its role as a proof finder. It would significantly impact upon the presumption of innocence. It would significantly impact upon an accused person's right to make full answer and defence. When we speak about the right to make full answer and defence and how important it is, I cite the Supreme Court in R. v. La, wherein the court stated, at paragraph 43:

The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted.

How would this provision potentially impact the ability of an accused to make full answer and defence? In one significant way, it would impede the ability of an accused person to cross-examine a complainant. When we talk about cross-examination, I quote the Supreme Court again on the important role of proper, thorough cross-examination in getting to the truth. The Supreme Court said, in the Lyttle decision, that “without significant and unwarranted restraint” it is “an indispensable ally in the search for the truth.”

Cross-examination is an important tool to guard against wrongful convictions. One might ask how this disclosure would impact upon the ability of an accused to make a full answer and defence and undertake a thorough cross-examination of a complainant. It would in one very simple way. It would create a positive disclosure requirement ahead of a trial. This bill would mark the first time in the Criminal Code that there would be a disclosure requirement for an accused person to provide to the Crown in advance of a trial, aside from a handful of narrow exceptions that have been well accepted and are not in the least bit controversial. The bill would require not only that evidence be disclosed to the Crown before a trial but that the evidence be disclosed to a complainant. Not only that, under Bill C-51, a complainant would have the right to counsel at that application. Therefore, instead of two parties at the application, the Crown and the defence, there would now be three parties, the Crown, the defence and the complainant.

Let us think about what that would mean with respect to the trial. The defence would have records in its control. It would now be tendering them and having to argue why they were relevant and should be admitted. That would provide a whole lot of insight into potential lines of cross-examination and the strategy of the defence. That could have a huge impact when it came to trial.

There is no question that the vast majority of complainants are telling the truth, but not all complainants are telling the truth. I want to emphasize again that the vast majority are, but not every single complainant is. In those rare cases when a complainant was not telling the truth, this positive disclosure requirement would open the door to tipping off someone who was not telling the truth before it got to trial to understand the defence strategy and the potential lines of cross-examination. It would certainly give someone who was not telling the truth a huge advantage going into the trial. The person could change his or her story or address perceived shortcomings in the case against the accused.

It gets even more complicated than that because of what I referred to with respect to who the parties to the application would be, because it would not just be the Crown and the defence. It would also be the complainant's lawyer. The complainant would have the right to be represented through his or her lawyer.

However, if it was, for example, just the Crown that was a party to the application, and we did have a situation where a complainant was maybe not telling the whole truth on issues around preparation leading up to that application, those questions could be asked at the trial of the complainant, but because the complainant would be represented by counsel, suddenly those questions become subject to solicitor-client privilege. Again, it is another impediment to asking questions, to cross-examining a complainant.

Make no mistake, I fully support every step that is necessary to protect complainants, having regard for the sensitivity of sexual assault and the profound toll it can have on victims. However, the issue in this particular instance is that we are talking about something that is so broad, so unwieldy, that while the intention may have been a good one, it misses the mark when it comes to fully protecting complainants all the while doing much to undermine the ability of an accused person to make full answer and defence.

When I spoke previously on Bill C-51, I quoted Madam Justice Molloy of the Ontario Superior Court, which I think bears reading into the record again. Madam Justice Molloy, in the Nyznik decision in acquitting three individuals of sexual assault, stated that:

Although the slogan ‘Believe the victim’ has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our Constitution and the values underlying our free and democratic society.

Bill C-51, with respect to the defence disclosure requirements, does not strike the right balance of protecting the victim while guarding against the potential for wrongful convictions. Therefore, I flag that issue as a serious concern that I have. However, on the whole, there are positive aspects to the bill that we are happy to support.

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

Madam Speaker, I thank the member opposite for his comments and contributions to this chamber, and for his distinct impersonation of my hon. colleague, the parliamentary secretary to the government leader, in terms of the length of his submission, all extempore, today.

On a more serious note, I am proud to stand in this chamber to participate in this debate on one of the last days that this august chamber will be open for the next decade, and especially on December 6, when we are thinking about the victims of the Montreal massacre and gender violence.

Despite the breadth of the submission made by the member opposite, I will reduce my points to three comments and a specific question.

The first comment is in respect to section 176, which was the provision of the Criminal Code that dealt with offences against clergymen. The member opposite referenced this, and it is an important issue, but he failed to reference that not only did we understand and hear the concerns expressed at committee, but we kept that provision in the code and improved upon it by ensuring that it would not refer to only men who are in positions of religious leadership or one particular religion. In keeping with the multicultural nature of this country, which my friend opposite knows is protected in the charter, we ensured that all religious leaders of all genders are protected.

Second, an important aspect of this bill that was not referenced by the member opposite is that it would create a statutory duty for something that has been done continuously by the Minister of Justice, which is to say that there would be a statutory duty to include a charter statement.

The third point is with respect to admitting private records in the hands of the accused. The member opposite quoted case law copiously, but I would point him to the Darrach decision in 2000—

[The Assistant Deputy Speaker, NDP, Carol Hughes]

The member has already used up two minutes. There are only 10 minutes for questions and comments and other people want to ask questions and comments. I will allow the member for St. Albert—Edmonton to respond to the comments made by the parliamentary secretary.

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

Madam Speaker, again, I reiterate there are positive aspects to the bill, but one of them was not the inclusion of section 176 in the Criminal Code. I am glad that the government listened to Conservatives in the removal of that section from the Criminal Code, but again, it was only after tens of thousands of Canadians spoke out and we called the government out on it.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Madam Speaker, the Senate amendments relate to the concept of sexual consent. Right now, there are consent issues that go beyond the victim's level of consciousness. There is what is called stealthing, for instance, the act of removing a condom during sex without the other person's knowledge. Experts agree that the Hutchinson case could set a precedent. That case was about a man who poked holes in a condom to get his partner pregnant without her knowledge. Unfortunately, that precedent probably would not apply to homosexual relations, because the risk of physical injury is lower, given that there is no possibility of pregnancy.

However, considering the increase in sexually transmitted diseases in the homosexual community, would it not be worthwhile to clarify the concept of consent beyond the victim's level of consciousness and ensure that it also applies in cases where consent is vitiated by the removal of a condom, for example, and where the partner who consented to sex is exposed to health risks?

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

Madam Speaker, the member for Abitibi—Témiscamingue raises an important question. With respect to the Senate amendments, I respectfully believe they would not have helped to clarify the law and that they would have in fact created further confusion and further litigation. I agree with the minister with respect to the amendments, that while they are well-intentioned to consider the establishment of these additional factors, a lot further study and a lot further consultation is required to ensure, to the degree that such a substantive amendment were made to the Criminal Code, that we got it right to the greatest extent possible.

[Arif Virani]

Madam Speaker, to characterize what is in the bill as defence disclosure is inappropriate and incorrect. I refer the member opposite to the Darrach decision, paragraph 65 of the Supreme Court jurisprudence, which he is fond of quoting.

The member talked at length about the situation with Travis Vader and the McCann family. This is an important issue that affected his community directly and I appreciate his submissions in that regard. However, when the provisions in Bill C-39 that would have eliminated those unconstitutional provisions from the Criminal Code were moved into Bill C-75 and that legislative vehicle is being used to eliminate the very provisions he is talking about, I ask the member why he would have voted against that bill at third reading in this chamber last week?

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

Madam Speaker, I spoke to the McCann family about the fact that Bill C-39 was moved into Bill C-75 and quite frankly, they were appalled. They were appalled that the government would include Bill C-39 in a bill that would, among other things, water down sentences for impaired drivers and for kidnapping of a minor and, speaking of sexual assault, for administering a date-rape drug. I voted against Bill C-75. If the McCann family were members of Parliament and could have voted, they would have voted against it too.

[Dane Lloyd, Conservative, Sturgeon River—Parkland, AB]

Madam Speaker, I think we can all agree that the hon. member really looks into his work and delves into detail on the issues at hand. I would ask if the member could expand upon his concerns about possible mistrials, injustices occurring and delays in the legal system from some of the positive disclosure requirements included in the bill.

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

Madam Speaker, delay is a very serious concern. It opens the door to extended applications but more than that, it opens the door to delays at trial, mid-trial applications, because it does not take into account or recognize the fact that so often it is not possible for defence counsel to identify all of the records that he or she considers to be relevant for trial. So often issues come up at trial and a record that did not seem relevant becomes relevant, upon which an application would have to be made mid-trial. That very relevant evidence might be excluded on the basis that the application was not brought 60 days before trial. It is very problematic.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Madam Speaker, I would like to come back to the Senate amendments.

Does my colleague really not believe that they would clarify the concept of sexual consent and remove any doubt regarding certain sexual activities? At present, when people file complaints, the police say there are no grounds for sexual assault.

Would these amendments not keep certain cases from winding up in the Supreme Court before it has been determined whether the activity in question was in fact sexual assault?

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

Madam Speaker, speaking to the Senate amendments, I believe that adding the word “unconscious” consistent with the J.A. decision would not in any way confuse the law or create uncertainty. I think it provides some degree of clarity.

I reiterate that the wording of the specific subsection proposed in bill C-75 is broad enough to encompass not only unconsciousness but any other reason by which a complainant might be incapacitated.

[Anne Minh-Thu Quach, NDP, Salaberry—Suroît, QC]

Madam Speaker, I will be sharing my time with the member for Abitibi—Témiscamingue.

As we commemorate the École Polytechnique massacre today, I would like to begin by reminding the House that 14 women were killed at a Montreal school exactly 29 years ago today. We all believe in eliminating violence against women and girls, which no moral code or policy can justify.

Today, the focus is on armed violence. The bill introduces major changes to how the justice system handles cases involving sexual assault and violence. In recent years, the NDP has been putting pressure on the government to keep its promises, heed the call of feminist organizations, and take action by funding measures to achieve true gender equality and end discrimination and all forms of violence against women and girls.

Our former colleague and leader of the opposition, Rona Ambrose, cared deeply about this issue. She introduced a bill to ensure that judges are better trained on the issue of sexual assault. The bill passed unanimously in the House and remains in the Senate. I think we all want to improve our society.

The NDP wants to support the Senate's amendments regarding sexual assault, but as parliamentarians, we must also make sure that the government is not just making symbolic gestures. We must ensure that these changes are followed up with meaningful action and funding for our legal system.

A few hours ago, I asked the Minister of Justice whether she intended to set up a fund to help victims pay for lawyers to keep them safe. All she said was that her government had already invested money to give victims access to four hours of legal advice. Four hours of legal advice is not the same thing as being defended by a lawyer with experience in these matters.

I welcome the positive change this bill allows. However, the government's response to Parliament's motion is troubling and disappointing. Senators, my colleague from Cowichan—Malahat—Langford and many witnesses talked about potential problems if we do not clarify consent. By asking two questions, my colleague from Abitibi—Témiscamingue just illustrated how much grey area still surrounds consent. When we talk about consent we mean agreeing to engage in sexual activity. There is also the issue of condom removal without the partner's knowledge, whether that partner is a woman or a man. This should also be included in the definition of consent.

As we know, women are more likely than men to be victims of sexual assault. Sexual assault is the only violent crime in Canada that is not on the decline. Since 1999, the rate of sexual assault has remained relatively stable. That is one of the reasons the risk of violence against women was roughly 20% higher than that of men in 2014, according to the self-reported data from the general social survey on victimization. What concerns me is that the rate of this type of assault is 18 times greater for young Canadians 15 to 24 than it is for people 55 and older. We all know that alcohol is a factor at student parties and far too often complainants cannot get justice because a judge does not recognize their rights since they were passive under the effect of alcohol.

According to Carissima Mathen, associate professor at the University of Ottawa's Faculty of Law, from a legal perspective, ambiguous consent cannot be considered an affirmation of agreement. Still according to Ms. Mathen, passivity is not consent and consent must be expressed in a meaningful way and not by silence.

Intoxication with alcohol or any other substance cannot be used as a defence by someone who commits this type of crime. I will say it loud and clear: there is no excuse or justification for a sexual assault. Asking for consent before and during a relationship is key. There is still a great need for education of adolescents and young adults, particularly about consent.

We have heard a lot about this in recent years. We have heard about the #MeToo movement, or #MoiAussi in Quebec. This is still a hot topic. Unfortunately, the concept of consent is often misunderstood. There should be more discussion and debate about this so we have a clear definition of consent, especially when introducing bills that will affect the legal system.

That is why the Senate's amendments are very interesting. They incorporate the principles of the amendments my NDP colleague moved at the Standing Committee on Justice and Human Rights which, unfortunately, were rejected by both the Liberals and the Conservatives. I find this part of the government's response problematic:

...as they are inconsistent with the bill’s objective of codifying Supreme Court of Canada jurisprudence on a narrow aspect of the law on sexual assault and instead seek to legislate a different, much more complex legal issue, without the benefit of consistent guidance from appellate courts or a broad range of stakeholder perspectives.

On the contrary, the goal reflects the Supreme Court of Canada's 2011 decision in R. v. J.A. The amendments proposed by Senator Kim Pate absolutely and unquestionably reflect the Supreme Court of Canada's decision, so I do not understand why the federal government decided to reject them. There are also several recommendations from experts and women's groups who appeared before the committee. Here is what Chief Justice Beverley McLachlin wrote in the Supreme Court's 2011 ruling in R. v. J.A.:

Parliament 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.

I would also like to quote University of Ottawa law professor Elizabeth Sheehy, who commented on the ruling in a CBC article:

The most important message...is that unconscious women are not sexually available. It is a crime to touch a person who is asleep or drunk.

If that is not enough to convince my colleagues, I invite them to read the decision handed down in Alberta a few weeks ago. Senator Kim Pate sent a copy to our offices. The court of appeal in that province overturned a lower court ruling, pointing to the need of once again addressing and clarifying the concept of consent. As we know, there are still too many prejudices and, as the senator put it, too many harmful stereotypes about sexual assault victims.

The courts have taken a stand on this concept and therefore it is up to us, as legislators, to establish a clear definition. We must not wait for another case to go all the way to the Supreme Court before we finally do something. Unfortunately, the government's excuse for not taking action is absurd at best. If court rulings are not enough, I invite my colleagues to refer to organizations that have also taken a stand.

The DisAbled Women's Network of Canada wants the amendments to pass. Student organizations have developed campaigns on the concept of consent with a clear message on the issue of intoxication. Here is what the website withoutayesitsano.ca says about one myth:

Being drunk, intoxicated or unconscious as a result of substance abuse invalidates consent. Alcohol remains the number one rape drug.

In other words, the Senate's amendments are consistent with the amendments brought forward by my colleague from Cowichan—Malahat—Langford at the Standing Committee on Justice and Human Rights. Clear jurisprudence exists on the issue of consent when a person is intoxicated, unconscious or in a passive state.

In conclusion, from a social perspective, more and more organizations are fighting for clearer rules of law on this topic. Parliamentarians, experts and judges agree, and civil society approves. What more do they want? The government's response to the Senate amendments makes no sense politically or legally. We must do more to combat sexual assault, and the Senate's amendments are a step in the right direction.

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

Mr. Speaker, I appreciate my colleague opposite's questions and her speech.

I want to outline one broad point and then ask the member opposite a specific question. The issue is not with the objective. What the Senate has proposed is clear. The issue is that it requires more study and it has not understood or analyzed the issue in a broad enough capacity. It only looks at certain types of incapacity, such as intoxicated complainants, without looking at things like cognitive disabilities. That was outlined by the minister in her opening remarks.

The question for the member opposite is this. She has raised the important issue of access to justice, specifically for female complainants. On this day, especially on the 29th anniversary of the Montreal massacre, that is an important question and contribution. However, there are other contributions. We have provided an $80 million allocation over five years and $30 million ongoing in legal aid; $25 million over five years for legal aid for victims of workplace sexual harassment, in particular, in addition to the victims fund mentioned by the minister.

Are those the types of endeavours and monetary supports that the member and her party are looking for in addressing the very important issue of access to justice for female complainants in respect to sexual assault?

[Anne Minh-Thu Quach, NDP, Salaberry—Suroît, QC]

Mr. Speaker, it is very sad to hear a government member say in a question that more consultation is needed.

For years, feminist advocates have been calling for a broader, clearer definition of consent and for judges to be better trained. The former leader of the Conservative Party even had a motion unanimously adopted by the House of Commons because there is a big problem in Canada.

More and more women are reporting their attackers, but others are afraid to do so because they fear the justice system. If we truly want to protect women and girls who are victims of sexual assault, we must give them the protection they need. This must be part of the definition. Judges must be trained, and victims must be given the means to defend themselves. I asked the Minister of Justice a question, and even she told me that improvements were indeed needed.

Many experts agree that women without the means to pay a lawyer cannot be properly defended and protected. As I was saying, there are 18 times as many sexual assault victims among 18 to 24 year olds as in any other age group, and three times as many among indigenous peoples as among non-indigenous people. These people do not have the means to pay for a lawyer. We need the Minister of Justice to put funding in place to ensure that this bill is not just symbolic and that it truly protects victims.

I urge the government to accept the Senate's amendments.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Mr. Speaker, my question also has to do with funding for people who do not have a lot of money. My colleague started explaining this, but I would like her to elaborate.

What are the potential consequences for young people, women and others who do not have the means to pay for a lawyer if they get only four hours of legal representation?

[Anne Minh-Thu Quach, NDP, Salaberry—Suroît, QC]

Mr. Speaker, it is really hard for people between the ages of 18 and 24. This has not happened to me, but we hear about it all the time. People who are sexually assaulted become depressed and develop mental health problems.

An Ipsos Reid survey shows that 40% of these people said nothing because they felt ashamed. Others said that it was difficult to go to the police because they do not have faith in the criminal justice system. This will continue to happen if they do not have access to a lawyer, because it is difficult for people to defend themselves.

Victims are already revictimized when they go to court; if they do not have the support of a lawyer or an expert in the field, it is very difficult for them to know what their rights are or how to defend themselves and weather the storm once they are in court. That is why we need funding to strengthen this bill.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, in my speech, I will focus on the two Senate amendments that, unfortunately, the government rejected. That is the motion before us now.

I think it is very important to point out that the Senate amendments to the bill were proposed by Senator Kim Pate.

Senator Pate was appointed through the independent selection process. She has been on the job for over a year. According to the government, the purpose of the process is to appoint distinguished senators, citizens who can make a unique contribution to the Senate.

In theory, it would seem that the Senate selection committee chose Senator Pate because she is a distinguished jurist whose opinion is highly respected.

Interestingly, the amendments she proposed are very similar to the NDP's amendments, and I think they carry considerable weight. The amendments are about sexual consent. The government bill refers to circumstances under which a person cannot give consent, such as unconsciousness and other reasons.

The Senate amendments refer to a person who is unable to understand the nature, circumstances, risks and consequences of the sexual activity in question, unable to understand that they have the choice to engage in the sexual activity in question or not, or unable to affirmatively express agreement to the sexual activity in question by words or by active conduct. When it comes to the ability to consent, I think that unconsciousness clearly falls under the third point.

I think that is very important, because one of the problems that victims are currently having with sexual consent is the difficulty of proving that they did not give consent in situations that fall in somewhat of a grey area. I want to speak specifically to that.

Often, when we talk about sexual consent, we are talking about voluntary consent. The problem is that consent may be vitiated. I will give a few examples that will help members understand.

A person can freely consent to a sexual activity without understanding the risks or circumstances that are involved. The first case that I want to talk about is the Hutchinson case, which is very important in understanding what follows.

This man poked holes in the condom he was going to use with his partner so that she would get pregnant. If I remember correctly, he was worried she would leave him, and he wanted to get her pregnant so that she would stay with him. Unfortunately, the partner did get pregnant, and she ended up finding out the truth about the pierced condoms. She pressed charges against him, and the case went all the way to the Supreme Court.

The Supreme Court had to study this case specifically to determine whether there had been a problem. Ultimately, the Supreme Court ruled that the consent had been vitiated because, in this specific case, there was a risk of bodily harm, and harm did actually result because she got pregnant. The consent had therefore been vitiated, so this constituted sexual assault.

The complainant had to take her case all the way to the Supreme Court to prove that she had been sexually assaulted. This was not a case where the justice system worked swiftly. If the concept of sexual consent had been clarified from the outset, including the ability to understand the risks of a sexual activity, it could have been immediately established that the complainant was unable to understand the risks of the sexual activity because her partner had not informed her that the condom was pierced. She was therefore unable to properly assess the risk that a pregnancy would result from the sexual activity.

Unfortunately, in this ruling, the problem is that we are really talking about the risk associated with pregnancy as major bodily harm.

However, if someone were to remove the condom without telling his partner, but she was unable to become pregnant because of sterility or menopause, the jurisprudence would not necessarily apply. That is according to experts who refer to Hutchinson to determine whether stealthing—removing a condom without the partner's knowledge—is a form of assault.

In cases involving women who can become pregnant, experts believe that the precedent set in Hutchinson may apply because there is a risk of significant bodily harm. However, in cases involving women who cannot become pregnant because of menopause or for some other reason, and if the partner does not have a sexually transmitted infection, there is no clear risk of sexual harm, and the jurisprudence may not apply.

The same is true of homosexual relationships unless the partner is, say, HIV positive. In such cases, it is possible to prove that a person was exposed to a risk of bodily harm when the partner removed the condom without the person's knowledge. In every other case, the jurisprudence does not provide grounds for proving the existence of risk, and it is not clear there would be grounds for sexual assault.

When people report cases of stealthing to the police, they are not taken seriously. The police tell them that they have not been sexually assaulted and so they are sorry but there is nothing they can do, despite the enormous stress this puts on victims.

According to victims' testimonies, this causes a lot of stress about potentially being exposed to disease. Victims may also have to take emergency contraceptives because they do not want to get pregnant. There is also the stress of waiting for the test results to come back. Stealthing can also affect relationships. Victims may have a hard time trusting others after something like this happens.

One victim recounted the following story in an article in the Journal de Montréal. She said, “After a night of drinking, I had sex with a guy I was seeing. A few days later, while doing some cleaning, I found the condom that he had supposedly used behind my bed. It was still in the torn wrapper. I realized that he had just pretended to put it on and that I had not noticed. I had to get tested for STIs.”

When we read these stories, we realize that this could be a form of assault because there was vitiated consent. When someone consents to having protected sex, it is because that person has assessed the risk and decided that she is willing to have protected sex but not unprotected sex because of the risk of disease or pregnancy. From a public health perspective, there is currently an epidemic of sexually transmitted infections, and yet there have been delays in bringing the legislation into line with the jurisprudence for these kinds of cases.

If it were clearly illegal and criminal to engage in such an activity because it vitiates consent, I think that much more immediate action could be taken. In the few cases where a victim actually has the courage to report what happened, the police would not have to tell her that what she experienced was not a sexual assault, despite the risk of bodily harm.

There is currently a problem with sexual consent as there are grey areas where consent was vitiated. Bill C-51 does not address all the issues of vitiated sexual consent. Yes, the person voluntarily consents to a sexual activity, but does so under certain conditions. If these conditions are intentionally disregarded, the consent is vitiated and this could constitute an assault. If the justice system is incapable of recognizing that fact, it is turning its back on these victims.

The Senate amendment directly addressed that case. It could have settled the issue once and for all. The judges could have relied on a new, much clearer law and such cases would not have to go all the way to the Supreme Court to be recognized as assault. I seriously believe that the government is making a mistake with its motion and that the Senate amendments, which resemble those moved by the NDP, should have been adopted.

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

Mr. Speaker, I appreciate the comments from the member opposite. I would point out that her concerns with respect to access to justice are shared on this side of the House. That is why we made important changes with respect to access to justice so that the spiral she was mentioning in terms of escalating costs and litigating all the way to the Supreme Court actually does not occur.

We have appointed more women to the bench. We have supported the bill about judicial training that was presented in this House by the former interim leader of the official opposition. We have invested significant sums of money to combat gender violence and to improve access to justice. We have allocated $187 million to combat gender violence, including sexual assault, $100.9 million to support the national strategy to address gender-based violence, and $25 million over five years for legal aid for victims specifically about workplace harassment. That is a concern for our government.

I would ask the member opposite whether she believes that those specific types of targeted investments, on this day in particular, the 29th anniversary of the Montreal massacre, go toward addressing gender-based violence as well as the access to justice points she has raised in the context of this debate.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, even $1,000 billion more would not make any difference if the law does not specify which activities are considered to be criminal. If the law does not clearly state that taking off a condom during a sexual activity constitutes sexual assault, we are not moving forward.

At present, when victims file a complaint, the police tell them that what they experienced was not assault. In those cases, it is not a problem of access to justice, it is a problem with the definition of what constitutes consent and sexual assault, and no amount of money can fix that. Legislative amendments are needed if we want to change the way in which our police forces and the justice system interpret the Criminal Code when they must determine what is consent, vitiated or not, to a sexual activity.

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

Mr. Speaker, the member for Abitibi—Témiscamingue spoke at some length about cases involving consent by trickery as the basis upon which she supports the amendments brought forward by Senator Pate. I would be interested in her comments though, due to the position taken by the government that while Bill C-51 does include the word “unconscious”, paragraph (b) of the amendment also refers to consenting to the activity for any reason other than unconsciousness. Clearly, one could not consent if one was tricked in that situation.

What does the member say about that language and the concern that she has expressed?

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, the problem is that the definition of “for any [other] reason” often depends on judges' interpretation. This can lead to cases like the Hutchinson case, which went all the way to the Supreme Court to determine whether the reason in question was covered by the phrase “for any [other] reason”.

Senator Pate's amendment is much more specific. For instance, it talks about the ability to understand the risks. This amendment could therefore help ensure that cases are settled in the first instance, rather than having to go all the way to the Supreme Court to determine whether a reason qualifies as “for any [other] reason”.

That is the problem. Since the law is not clear, several cases have been dropped because those involved knew that it would probably have to go to the Supreme Court to determine whether it constituted sexual assault. Senator Pate's amendment gives a much clearer definition of consent. I think this will help settle some cases at the trial level.

This will also make it easier for police officers, who are not constitutional experts, to rely on the Criminal Code to determine whether the victim they are dealing with has in fact been sexually assaulted and whether to refer the case to the director of criminal and penal prosecutions.

At this time, some police officers take it upon themselves to decide that some cases do not constitute sexual assault and choose not to take the matter any further. Thousands of cases are not even being looked into right now, and law enforcement is currently reviewing thousands of past cases to determine whether they do constitute sexual assault cases that were misinterpreted.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Mr. Speaker, I appreciate the opportunity to join this portion of the debate and speak to Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act. Before turning to the specific issue of the amendments passed in the other place, I want to take a few minutes to remind all colleagues about what this important piece of legislation seeks to address and why it is critically important that we support its swift passage into law.

As all members will recall, Bill C-51 was introduced by the Minister of Justice on June 6, 2017. Bill C-51 was not the first criminal law reform bill introduced by the minister that seeks to make our criminal justice and laws fairer, clearer, more relevant and more accessible.

Since its introduction, the minister has introduced other critically important legislation that continues to seek those objectives. Considering also Bill C-75, it is clear that the minister has thought long and hard about the challenges facing our system and has proposed concrete measures to address them. I strongly support the minister's legislative proposals, and I understand that many of her provincial and territorial counterparts, legal academics and criminal justice system actors also support these measures.

Colleagues will recall that Bill C-51 would amend the Criminal Code in three broad ways. First, it proposes amendments that would remove unconstitutional laws. This reflects our government's unwavering commitment to the Charter of Rights and Freedoms. The risks of leaving unconstitutional laws on our books are grave, and in a constitutional democracy like Canada that is grounded in the rule of law, it is important we take the steps necessary to prevent those risks from manifesting, as unfortunately occurred in the 2016 Alberta trial of Travis Vader.

Second, Bill C-51 proposes to remove laws from our Criminal Code that are vestiges of a bygone era and are no longer relevant in modern Canadian society, as well as laws that are redundant and capture conduct addressed by other offences of general application. We should not underestimate the importance of amendments of this nature. Criminal law is a reflection of our values. Offences like blasphemous libel, which targeted criticism against the king and Christianity, have been criticized as contrary to free expression, and have been used by certain regimes to repress free speech. Canada should not be held up as an example by repressive governments that seek to justify their own blasphemy offences as a means of curtailing criticism by pointing to the example of Canada's Criminal Code. I strongly support these amendments.

Turning to the other critically important aspect of Bill C-51, the proposed changes to modernize and clarify Canada's sexual assault laws, it is in this area that amendments were passed by the Senate that necessitate our looking at Bill C-51 again.

As introduced, Bill C-51 brings forward important and welcome changes to our sexual assault laws. One area where it does so is in respect of consent to sexual activity. First, Bill C-51 proposes to clarify the important legal principle confirmed by the Supreme Court of Canada in its 2011 decision in R v. J.A. that no consent is obtained where a person is unconscious. This amendment has been well received by many, but some stakeholders suggested that it should go further to codify another important principle from the J.A. decision, that consent must also be contemporaneous to the sexual activity in question. I recall this well during the Standing Committee on Justice and Human Rights' study, which amended Bill C-51 to address this very point.

During our committee's study of the bill, additional amendments were proposed in the area of consent to sexual activity. These amendments were, I believe, inspired by the submissions of the Women's Legal Education and Action Fund, LEAF. It suggested that Bill C-51 might extend beyond the scope of its original objective, and proposed amendments that would seek to define when a person is incapable of consenting to sexual activity due to impairment that falls short of unconsciousness, such as cases involving intoxication. To my knowledge, no defence lawyer, Crown prosecutor or victims' organization spoke specifically to this proposal.

As may be recalled, the amendment proposed before the justice committee on this point was defeated due to concerns that it could have had unintended and negative consequences. For instance, concerns were expressed that by focusing entirely on the subjective state of mind of the complainant, the courts might ignore other important objective evidence that might help to establish that the complainant was incapable of consenting.

When Bill C-51 went to the other place for consideration, the legal and constitutional affairs committee there heard from only a handful of witnesses. Nevertheless, much of the discussion at that committee again centred on the issue of consent to sexual activity. Much of the testimony provided was motivated by concerns about sexual assault involving intoxication and the need to have clarity in this area. To be sure, these are legitimate concerns, and I am not trying to minimize the importance of looking closely at this issue.

As a result of these concerns, an amendment was proposed at the Senate committee to again try to specify the circumstances under which a person is incapable of consenting for reasons of impairment that fall short of unconsciousness. After a vigorous debate, those amendments were not passed. Again, the reasons for this related to concerns about the unintended consequences. Nevertheless, when the bill was returned to the Senate at third reading, amendments were made, notwithstanding the calls for caution and concern about the practical implications.

I greatly appreciate and respect the spirit behind the proposed amendments. I agree that it is critically important that we consider changes to our sexual assault laws that would help clarify the law. On the other hand, because of the very sensitive and difficult nature of sexual assault, I believe it is imperative that we only pass laws when we are 100% certain they will not create more challenges for victims and for the accused.

Unfortunately, I am not 100% certain. I am deeply concerned that passing these amendments at this late stage, and without the benefit of greater consultation and consideration, would not provide the clarity that is assumed to result from them. I am concerned that this change could lead judges to ignore other important evidence respecting capacity to consent. I am concerned that these charges focus too squarely on intoxication and do not consider the impact on individuals with cognitive impairments.

For these reasons, I must respectfully oppose the amendments passed in the other place. In so doing, I encourage the government to look closely at the issues raised by these amendments in collaboration with key partners and stakeholders. I support the message to be sent to the other place.

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

Mr. Speaker, I thank the member for Coquitlam—Port Coquitlam, whom I enjoy serving with on the justice committee. I share his concerns about the Senate amendments. Therefore, I want to ask him a question about what he initially spoke of, which was the zombie sections of the Criminal Code that have been found to be unconstitutional.

He cited the Vader case, involving the murder of Lyle and Marie McCann of St. Albert. It was our committee, the justice committee, that wrote to the minister all the way back in October 2016, calling on the minister to move forward with legislation to remove unconstitutional sections. The minister did move ahead with Bill C-39, which is stuck at first reading. The government then put it into Bill C-75. However, that is going to take months to go through the Senate. Why did the government not just get it done and pass Bill C-39? It does not seem to make any sense to me. Can the hon. member comment?