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.