Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 47 - Evidence - June 20, 2018
OTTAWA, Wednesday, June 20, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, met this day at 4:19 p.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Honourable senators, it is my pleasure to introduce the Minister of Justice and Attorney General of Canada, the Honourable Jody Wilson-Raybould. She is accompanied by Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section.
I am sorry we are so far away. Normally we are at a round table where we feel much more collegial. Now I have the impression that we are far away, but the exchange will be warm and, I am sure, very spontaneous among honourable senators around the table.
As the honourable senators will remember, we are considering Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act.
It’s my pleasure to invite the minister to make introductory remarks. Following that, we will have an exchange with honourable senators.
Hon. Jody Wilson-Raybould, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, Mr. Chair and honourable senators, for the opportunity to come before you again, this time to discuss Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act.
It is a pleasure to be here to discuss this important piece of legislation. I will provide a brief overview of the main aspects of the bill.
Bill C-51 amends the Criminal Code and the Department of Justice Act. The proposed Criminal Code amendments form part of my ongoing review of the criminal justice system and constitute a concrete step in making our criminal justice system more fair, accessible and relevant to all Canadians.
Bill C-51 proposes three categories of amendments to the Criminal Code.
First, it will clarify and bolster the sexual assault provisions.
Second, it will amend or repeal sections of the Criminal Code that courts have found unconstitutional or that raise Charter concerns.
Third, it will repeal obsolete and redundant Criminal Code provisions that no longer reflect modern Canadian society or that target behaviour already captured by other offences.
Together, these amendments demonstrate our government’s utmost respect for the rights and freedoms guaranteed by the Charter and our commitment to modernize our criminal law so that it respects the principle of restraint and accurately reflects our values.
I am proud to say that this is the first time in over 20 years that any government has made significant updates to the Criminal Code provisions regarding sexual assault. Many of the proposed reforms seek to codify what is already the state of the law following Supreme Court of Canada decisions.
For instance, this bill will codify that an unconscious person cannot consent to sexual activity and that the defence of honest but mistaken belief in consent cannot be based on a mistake of law. Nor can it be grounded in the complainant’s passivity.
As amended by the House of Commons Standing Committee on Justice and Human Rights, the principle that consent must be contemporaneous to the sexual activity would also be clearly set out in the Criminal Code.
The proposed codification of these existing legal principles, further clarified by the Justice Committee’s amendments, is of the utmost importance because a robust sexual assault regime cannot operate to its full potential if it is not well understood or not correctly applied. These clarifications should leave no doubt as to the state of the law.
In addition, Bill C-51 proposes to implement a recommendation made by this committee in its December 2012 statutory review of the Criminal Code provisions relating to records production in sexual offence proceedings. It was one of the committee’s recommendations that a procedure be set out to govern the admissibility and the use of a complainant’s private records that are in the hands of the accused.
It is precisely what Bill C-51 will do, by requiring a court to consider a series of factors before deciding whether the private record of the complainant that is in the hands of the accused can be used in a trial relating to a sexual offence. These factors are similar to those that a court must consider when applying the rape shield provisions, and they include both the right of the accused to make a full answer and defence and the complainant’s dignity and right of privacy.
In addition, for the purposes of the rape shield provisions, Bill C-51 will clarify that sexual activity includes sexual communications. It will also provide that a complainant has a right to counsel during rape shield proceedings.
Together, Bill C-51’s proposed sexual assault amendments reflect the critical need to respect all interests in a criminal trial: the rights of the accused; the truth-seeking function of courts; and the privacy, security and equality interests of the victim.
As mentioned, the second broad aspect of Bill C-51 is its repeal or amendment of Criminal Code provisions that have been found unconstitutional or raise Charter concerns. This includes numerous statutory presumptions that have been found unconstitutional by appellate courts because they can result in a conviction despite the presence of a reasonable doubt as to the accused’s guilt: for example, presumptions used to prosecute gambling offences and possession of property obtained by crime.
Several provisions in the Criminal Code also contain language that reverses the onus of proof and requires the accused to prove, on a balance of probabilities, that they had a lawful excuse for their conduct. Bill C-51 will remove this language, commonly characterized by the phrase “the proof of which lies on the accused.”
Like the presumptions, this type of reverse onus risks unjustifiably limiting the Charter-guaranteed presumption of innocence because it could lead to a conviction despite the accused having raised a reasonable doubt about their guilt. While these provisions have not all been the subject of judicial scrutiny, those that have been before the courts have been found to be problematic. Proactively repealing them avoids unnecessary and costly litigation, affirms the supremacy of the Charter, and in no way undermines public safety.
Third, Bill C-51 will also repeal certain redundant and obsolete provisions in the Criminal Code. Examples of such proposed changes include the repeal of the offence of challenging someone to a duel, publishing and selling crime comics, and offences related to trading stamps.
These offences are seldom relied upon. We are confident that their repeal does not leave gaps in our criminal law framework. It is of utmost importance that the Criminal Code accurately reflects conduct which is truly criminal and not respond to conduct that can be better addressed through less intrusive means.
In its original form Bill C-51 also proposed to repeal section 176 of the Criminal Code which prohibits, among other things, disturbing a religious service. The intent was to modernize the Criminal Code and to repeal offences that are duplicative of more general offences. I would like to emphasize that Bill C-51 was never meant to weaken the fundamental freedom to practise one’s religion.
However, during the study of Bill C-51 by the House of Commons Standing Committee on Justice and Human Rights, committee members and our government listened to concerns from witnesses and constituents about the repeal of section 176. An amendment was adopted that retains and modernizes this section to ensure that it is gender neutral and to clarify that it applies to all religious and spiritual services. I welcome this amendment to the bill. Canadians must be able to practise their faith or spirituality without fear of violence or disturbance.
In addition to the Criminal Code changes, Bill C-51 proposes to amend the Department of Justice Act to make it an obligation on the Minister of Justice to table Charter statements for all government legislation.
A Charter statement sets out a bill’s potential effects on Charter rights and freedoms in order to inform parliamentary and public debate. While I have tabled Charter statements for all the bills I have introduced, and for some bills that are the responsibility of other ministers, Bill C-51 will expand this practice and transform it into a legal obligation that is binding on myself and future Ministers of Justice.
I look forward to the questions.
The Chair: Thank you, Madam Minister, for that summary of the legislation in Bill C-51.
[Translation]
Senator Dupuis: Minister, thank you for joining us today. Welcome to the committee once again. You have surely heard the same things as us on the issue of consent and, more specifically, on section 273.1. I would like to understand the decision to introduce paragraph (a.1) that deals with the possibility of the complainant being unconscious.
Under subsection 273.1(2), the following is stated:
(a.1) the complainant is unconscious;
(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);
The amendment presents two different elements. I would like you to explain to us the logic behind separating unconsciousness from being incapable of consenting to the activity for any reason other than unconsciousness. Essentially, that could have been drafted in reverse. The legislator could have incorporated unconsciousness as an example of incapacity, without anything further.
[English]
Ms. Wilson-Raybould: Thank you to the honourable senator for the question around consent and how we have proposed to draft that in terms of codifying the decisions in J.A. The senator references specifically how we are saying that an unconscious person cannot consent to sexual activity. In addition, in a separate paragraph speaking to consent, the complainant is incapable of consenting to the activity for any reason other than the one referred to in terms of unconsciousness.
We have put this into the legislation to make it clear that there are other circumstances and situations where an individual has not provided consent beyond unconsciousness. These considerations will need to take into account a broader circumstance in terms of where an individual is incapable of providing that consent by way of impairment or other situations and circumstances an individual might find themselves in.
[Translation]
Senator Dupuis: If I understand correctly, the intention is not to define unconsciousness as being the threshold of incapacity.
[English]
Ms. Wilson-Raybould: That is correct, senator. There are other situations where an individual would be incapable of providing their consent.
[Translation]
Senator Dupuis: I have a quick question about complainants’ right to be represented by a lawyer. Do you think lawyer representation for complainants should be a public policy choice? In other words, should the fees associated with lawyer representation for a complainant in sexual assault cases be covered under the cost of the trial instead of being paid for by the individuals?
[English]
Ms. Wilson-Raybould: Thank you for the question. We are certainly mindful of support for counsel and funding for legal support, and we have been having ongoing discussions with the provinces and territories.
Our government has made an investment in terms of victims’ support. A number of pilot projects are running in provinces including Newfoundland, Ontario, Saskatchewan and Alberta. These pilot projects, I might add, have been very well received in the provinces and have received incredibly positive feedback from the attorneys general in those jurisdictions.
[Translation]
Senator Boisvenu: Welcome, minister. Mr. Chair, on behalf of my colleagues, I would like to make a comment to the minister as respectfully as possible.
Minister, I speak on behalf of my colleagues in expressing our disappointment over your absences before this committee for a number of bills we have studied recently. Your absences from our meetings hinder our work, as we cannot obtain answers to political questions we would like to ask. I remind you that this committee’s minutes are often used by the Supreme Court or the Federal Court and refer to ministers’ comments in the political context of those statutes.
Minister, can you commit to respecting that protocol from now on, our committee’s tradition to have you be among the first witnesses to appear when a bill is introduced and you are the main stakeholder?
[English]
Ms. Wilson-Raybould: Senator, I hear your comments, and certainly I cannot do anything with respect to your disappointment. I will say to your statement that I make every effort to ensure I appear before this committee on every piece of legislation I have introduced that comes before this committee. I value the work, the discussion and the feedback that I receive from this committee and committees in the other place. That undertaking, as you call it, will continue.
I know that everyone around this table is incredibly busy, but I respect the work around this table and the work of committees, without equivocation. As always, I will continue to make myself available to speak to all of the incredibly important pieces of legislation I have had the opportunity to introduce.
[Translation]
Senator Boisvenu: Thank you very much. It’s important to understand that your presentation often helps guide our work as the bill progresses. So it is very important to us.
I want to come back to the question asked by my colleague Senator Dupuis on the section that deals with a victim’s right to a lawyer. Minister, you probably know that, currently, about 80 per cent of suspected criminals in the Canadian justice system have legal support. For instance, I am thinking of individuals who commit serious crimes and are often incarcerated prior to trial. As those people do not have an income, the state often provides them with legal support.
This bill tells victims that they have the right to a lawyer, but that they must pay for that lawyer. Is it possible to establish in Canada a principle of equal representation between criminals, who are represented by the state, and victims, who must often cover the cost of legal support themselves? You meet regularly with your provincial colleagues and you will soon discuss the renewal of the agreement on legal support. Could you review some of that program’s criteria? That program is subsidized at 40 per cent by the federal government. Could you include in it support for certain victims, especially victims of sexual assault and murder?
The chair will recall that our committee did this work in 2012. One of the reasons why 50 per cent of victims of sexual assault give up on their complaint during the prosecution is the lack of legal support.
Your next meeting with your provincial colleagues will be held in November, unless I am mistaken. I would like you to commit today to establishing with your provincial colleagues a Canada-wide approach to supporting victims, instead of leaving that responsibility to the provinces. Some provinces can provide victims with support; others cannot. So victims do not have equal status from one province to another.
Can you play that leadership role and discuss this with your colleagues, so that victims — especially in sexual assault cases — would receive legal support during proceedings at public expense, as Senator Dupuis was requesting?
[English]
Ms. Wilson-Raybould: Thank you for the comments at the beginning and certainly for the questions. I would take it as encouragement to ensure that I continue, as I always do when I meet with my counterparts in the provinces and territories, to have discussion around legal aid funding and support for victims of crime. That is a conversation we will continue to have.
You mentioned the upcoming FPT meeting in November. We will have those conversations. I am looking forward to a report on best practices that’s coming back from my colleagues and my officials that will speak about how we can best assist victims of sexual assault and offences.
I am very pleased we have been able to provide resources through the Victims Fund in the amount of $12 million to assist, as well as ensure legal aid generally. We made substantive investments in the area of $88 million with respect to legal aid. In addition, Budget 2018 provides for $25 million over five years for legal aid for victims of workplace harassment.
We need to continue to do an incredible amount of work to ensure that we support victims of offences or crimes. We will continue to do that. My colleagues in the provinces and territories and I will certainly be having a robust discussion around this at our FPT meeting.
Senator Gold: There are three kinds of criminal libel currently in the Criminal Code: blasphemous, seditious and defamatory. Bill C-51 removes blasphemous libel on grounds, among others, that it infringes upon freedom of expression.
We heard testimony from a number of witnesses suggesting as well that there is a case to be made for removing both seditious and defamatory libel. Could you comment on why you have chosen not to include either of those crimes within the bill?
Ms. Wilson-Raybould: We have been following all of the testimony. I am aware of the concerns expressed with respect to libel: blasphemous, defamatory and seditious.
With respect to blasphemous libel, as honourable senators know, we are removing this. It stems from an antiquated perception of attacks on Christianity.
In terms of defamatory libel, in hearing the testimony that was coming back we undertook to do a bit more research. I did; my officials always have. I know that people have been advocating for repeal of that and the other libel.
With respect to defamatory libel, 300 charges were laid between 2005 and 2015. To me, this suggests that it’s a little more complex in terms of its removal and considerations that we have to look at. It’s not included here. This also applies to seditious libel and could be something we could consider in future bills.
I have stated from the beginning, in terms of the introduction of the Charter clean-up bills we are making around the Criminal Code, there is an opportunity to do a little more cleanup. I would be very open to hearing more from the honourable senators and certainly the witnesses that come before you on what we can do more of.
With respect to the defamatory libel, we need to undertake a bit more policy work and consideration in terms of consultations.
Senator Gold: I will follow up with some unsolicited advice. As you do that work, might I invite you and your colleagues to look behind the cases where charges were laid to see whether the continued existence of this crime puts a certain power in law enforcement that could be used from time to time to silence otherwise legitimate dissent?
The great late Alan Borovoy always expressed concern about the way in which things can be used to stifle legitimate consent, long before charges are even laid or certainly before things proceed to trial. If we could put it in a broader context, I think that would be helpful to your analysis and certainly to ours.
Ms. Wilson-Raybould: Thank you for the unsolicited advice, which I accept greatly. I hear your comments and recognize as we continue to review the Criminal Code that the Criminal Code needs to evolve as society evolves. We will have to ensure that these considerations are taken into account.
Senator Jaffer: Minister, you always make me proud because you are from my province. I know how hard you work in my province, and I do not want you to think that we don’t appreciate it. You have a very heavy load. We know for a fact that you make every effort to be in front of us.
I also acknowledge Ms. Morency. She practically lives with us. We’ve seen her a lot over many years. Thanks to you also, Mr. MacCallum.
I am really happy about the right to counsel. There will be challenges for the victims and how that will work because we have challenges with legal aid as it is; but I think it is a good first step. I am very appreciative of the Charter statement in the bill.
You say you have read the material that we have been discussing, so you will know that my challenge is with the right to silence. I am very concerned about the accused having to provide documents and having to go to court seven days in advance so they can show those documents beforehand.
I have three questions, and I ask that your answers be short so that I can ask all three. What problem, case or circumstance prompted the unprecedented admissibility procedure in section 278.92(1)?
Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: Could you repeat the section number?
Senator Jaffer: Section 278.92(1).
The Chair: It is on the upper part of page 11, for other senators to follow the question raised by Senator Jaffer.
Ms. Wilson-Raybould: The numbers were rattled off. Were you speaking about what prompted that?
Senator Jaffer: Yes.
Ms. Wilson-Raybould: I think touched on that in your opening comments. This was as a result of a very important recommendation from the Senate committee in 2012 that recognized there was a gap. While there are admissibility considerations for documents that are held by a third party, currently the Criminal Code has a gap in terms of admissibility requirements for documents held in the possession of an accused person around a particular complainant.
In drafting this bill we sought to ensure that we always consider in the back of our minds the balance required, as I said in my comments, in terms of the rights of the accused to full answer and defence, and of ensuring that we respect and provide dignity to victims of sexual assault.
Senator Jaffer: I have a great issue with the right to silence of the accused in this section, but I want to ask you another question.
Why does this procedure apply only in the context of sexual offences and to material that would not otherwise engage the current 276 process? For example, I am referring to material that does not relate to sexual conduct and not in other cases such as non-sexual domestic violence charges, murder or other serious offences.
Why does it only apply to sexual offences?
Ms. Morency: If I may, senator, the proposal in the bill is to address a gap in the Criminal Code now with respect to sexual assault proceedings. Right now there is a third party record regime, so records about the complainant and in which —
Senator Jaffer: Yes, but that’s a different section. Don’t use my time for that.
Ms. Morency: You are talking about the rape shield provision, right?
Senator Jaffer: That’s not what I am questioning. That’s another section of the bill. I am questioning the accused providing documents that he himself has communications between the complainant and the accused, not third party documents.
Ms. Morency: That’s the other part. Another gap in the criminal law exists now with respect to communications prepared for a sexual purpose. The bill would provide a requirement for an accused who wishes to adduce of those communications.
The Criminal Code already prohibits the use of evidence or leading of evidence that seeks to prove the twin myths that the victim previously consented and to show that consent applies to the allegation before the court.
The provision in Bill C-51 seeks to do something similar, with respect to communications such as emails and texts that were previously prepared, sent to the accused, are of a sexual purpose or about sexual activity in the past, to restrict and prevent their use for irrelevant purposes, which the Supreme Court has held applies to the case of twin myths. That’s not probative and it’s irrelevant to the consideration before the court.
That’s what the Bill C-51 is proposing to do in the particular context of a sexual assault proceeding.
Senator McIntyre: My question has to do with the admissibility of a complainant’s private records. Actually, it’s a follow-up to the question raised by Senator Jaffer.
As you have explained, there are two types of records: those in the hands of third parties and those in the hands of the accused. In the case of a complainant’s private records in the hands of third parties, there is only one change and that is the notice period for the application is extended from 14 to 60 days.
In the case of a complainant’s records already in the hands of the accused, we have a new procedure set in place. The new provisions would require a judge to hold a hearing before the defence could use this evidence and cross-examine the complainant on it at trial.
As I understand now, and this is the crux of my question, the new procedure may require the defence to disclose elements of its case, disclose evidence in its possession as well as the relevance of that evidence to the complainant and the complainant’s counsel, because the complainant will now have standing to participate in the admissibility hearing.
Defence counsels have expressed concerns regarding this provision or this new procedure, and I would like to have your thoughts on that, please.
Ms. Wilson-Raybould: I appreciate the questions in terms of the gap that we’re seeking to fill in the admissibility of records and information held in the hands of the accused.
I would say this is not a disclosure obligation. Bill C-51, as has been said, proposes to create a new regime for governing the admissibility of a complainant’s private records held in the hands of the accused, where the accused seeks to introduce these records into evidence.
The proposed regime would require the accused to apply to a judge to determine the admissibility of such records. The considerations or the requirements in terms of what the judge would look at and consider in those circumstances are set out in our legislation, ensuring as we have in the drafting of the legislation to protect the accused’s ability for full answer and defence and ensuring to protect the integrity and dignity of complainants.
Senator McIntyre: In criminal trials there are crucial and important examinations such as direct examination, cross-examination and re-examination. For defence counsels, cross-examination is very often their best weapon. A lot of cases are won or lost on cross-examination.
That said, I can see where the criminal defence attorneys are coming from. According to them, this new procedure would allow a complainant and a complainant’s counsel to prepare a response to cross-examination at trial well in advance and that these amendments do not balance with the rights of the accused.
Could I have your thoughts on that?
Ms. Wilson-Raybould: Again, in drafting this legislation we sought to ensure that we create balance in our legislation with respect to the rights of the accused while ensuring that we look at victims of sexual assault and provide them with the necessary respect if terms of evidence or correspondence that would be held in the hands of the accused.
Senator Batters: Minister, you were a prosecutor for a few years earlier in your career. I have a lot of respect for the hard, unsung work that Crown prosecutors do for Canadians every day. As such, I take very seriously the major concerns raised in the submission we received from Loreley Berra, chair of the Canadian Bar Association Criminal Justice Section. I also want to note that Ms. Berra is a senior Crown prosecutor in my home province of Saskatchewan.
Our previous Conservative government struck a careful balance when we drafted the Victims Bill of Rights, yet changes you are making to the obligations of Crown counsel under the Victims Bill of Rights could well upset that delicate balance.
The Canadian Bar Association alerts us that some of the changes you are making in this bill could end up prejudicing cases from the victim’s perspective. Specifically what I am speaking about here is giving standing to complainants to make decisions about how the prosecution should proceed and the right to make contrary submissions in a hearing before the court.
How do you respond to those significant concerns voiced by Crown prosecutors that the changes you are making could end up hurting the people you are trying to help?
Ms. Wilson-Raybould: I certainly haven’t seen the comments you are referring to, but we are seeking to ensure we provide a right to counsel for individuals that have been the victims of sexual assault. This isn’t a right to standing. This is a right to provide them with necessary assistance.
Again, we have been working diligently to have a balanced approach to respecting the rights of the accused and to ensuring we are protecting, as much as we can, the integrity and the dignity of victims of sexual assault.
Senator Batters: The specific submission made was that giving standing to complainants to make decisions about how the prosecution should proceed runs contrary to the constitutionally entrenched independence of the Attorney General. It is saying that it’s one thing to make a victim impact statement on sentencing, but that allowing complainants to decide how parts of the prosecution will proceed is quite different.
It goes on to say the right to make contrary submissions in a hearing before the court would add significant formality to a potential disagreement between the Crown prosecutor and the victim. It says even where the Crown and complainant agree, statements could end up on the record that could be damaging later in the process.
Those are the specific concerns raised by the Canadian Bar Association Criminal Justice Section. Does that give you more information as to how you would respond to that?
Ms. Wilson-Raybould: I would respond in the same way in terms of ensuring balance. One of the intentions behind introducing changes to the sexual assault provisions is to recognize and understand that there are extraordinary numbers of victims of sexual assault out there, many of whom do not report the crimes that have been committed against them. We are wanting to change that. We are wanting to ensure that the criminal justice system will also address the concerns of victims of sexual assault.
Bill C-51 provides them with a right to representation. I stand behind that right to representation and this provision within Bill C-51 because we need to ensure that we do everything we can to address the concerns victims have been expressing for many years and decades in terms of the criminal justice system and how that criminal justice system lends itself to victims not coming forward.
Senator Batters: If you have an opportunity to review a submission that has been filed with our committee, you will have some more specific answers as to how the particular concerns are being addressed. This particular senior Crown prosecutor is saying balance has not been struck here.
[Translation]
Senator Carignan: My question is about clause 73, which amends section 4.1 of the Department of Justice Act. That provision talks about tabling a statement concerning the Charter, a document that seems to indicate the bill’s potential effects on the rights and freedoms that are guaranteed by the Canadian Charter of Rights and Freedoms.
Could you give us more details on that statement? In New Zealand, for example, statements that officials give to ministers are published. Having sat on the Council of Ministers, I have seen statements from officials that were much more specific regarding the constitutionality of a bill and that went much more in-depth than this kind of a statement.
Are we talking about the department’s legal opinion on the potential effects concerning the legislation’s constitutionality? Why is it limited to the Charter? Why not also take into account provincial jurisdiction? That would avoid certain ambiguities such as the ones found in Bill C-45.
[English]
Ms. Wilson-Raybould: Thank you for the question, senator. I am incredibly pleased that inserting Charter statements is mandatory for all government bills. This is an incredibly important aspect of this proposed legislation.
As I said in my opening remarks, I have been introducing Charter statements with respect to all of the legislation that I have introduced, as have other ministers including the Minister of Public Safety around the national security legislation.
First of all, as Minister of Justice and the Attorney General, I provide legal advice to the executive branch of government. I do not provide legal advice beyond that. The Charter statements are not intended to be legal advice and detailed as such. The purpose behind the Charter statements is to explain as much as we can to Canadians, to parliamentarians and to anyone that wants to read them, what are the potential impacts or where the Charter is engaged when a proposed piece of government legislation is introduced.
Speaking about specific sections within the Charter to assist in informing debate and discussion, beginning with the first Charter statement I introduced around Bill C-14 around medical assistance in dying, with which the senator is very familiar, I would say the Charter statement was very helpful in assisting many individuals in engaging in discussions on that piece of legislation.
To your question, it’s not intended to be legal advice. It’s intended to assist in the dialogue, the debate, the thoughts and the discussions that went into the development and the drafting of the legislation.
[Translation]
Senator Carignan: Why wait 12 months to implement that provision? I don’t know what complication you will invoke, when you are legalizing cannabis within a three-month time frame by establishing an entire retail system. Why wait 12 months to table a statement on the Charter that you already have in your files?
[English]
Ms. Wilson-Raybould: We’re not waiting to introduce Charter statements for Department of Justice pieces of legislation. I am very pleased that other colleagues of mine have asked for and worked with me on developing Charter statements for their pieces of legislation.
In terms of your reference to the Cannabis Act, which I am very grateful was passed by your honourable house, it wasn’t just three months for it to come into force. That was developed over many years in terms of very robust discussions with many individuals, including the task force.
The 12 months of coming into force with respect to the Charter statements will enable all ministers across government to understand the nature of the Charter statements, not with respect to specific legislation but for me or any minister of justice to assist ministers in working toward Charter statements with respect to all government legislation. It’s a transition.
Senator Pate: Thank you for joining us and for the laudable goal of the work you’re doing within this bill to try to update in particular the law of sexual assault and to provide better protection for those who are victims of sexual violence.
As you are no doubt aware, in a recent article in The Lawyer’s Daily Ontario Superior Court Justice Corbett suggested that we look at the definition of sexual assault, as did a number of witnesses before the committee in the other place and here.
We know there is a pressing need to provide legislative guidance to judges in this area. We know that need is in fact even more pronounced today, as you are no doubt aware, because yesterday afternoon in Calgary during the cross-examination of a young woman whose father was charged with sexual assault and incest, the young woman was told by defence counsel:
. . . all you had to do was clench your legs together and your pants would have been unable to move.
That kind of indication is part of why judges, lawyers, academics and sexual assault crisis workers have been suggesting that clearly the law of sexual assault is like no other in our legal system in that it routinely requires complainants, essentially, to prove that they’re not willing victims.
One suggestion was that we should be looking at a more robust definition. In fact, there seems to be considerable consensus to look at changes to how the incapacity to give consent is defined and, in particular, to look at the question of not just drawing a bright line between capacity and unconsciousness.
The courts having actually made clear that you can’t provide conscious consent when you’re unconscious, but the legal test for incapacity to consent has not actually been clarified by the Supreme Court of Canada. Some courts have adopted one test. Others have applied others.
Given such inconsistency and given the clear need for a definition, have you considered a more robust definition and amending the provisions of the bill that deal with defining sexual assault and when consent can be achieved?
If you’re interested, I could suggest ideas that some of us might have and that some of the witnesses have had about how that might be done.
Ms. Wilson-Raybould: I certainly recognize your long-standing advocacy in this regard. Thank you for referencing the egregious comments that were made in Alberta. Comments like those have no place in our justice system. We need to do everything we can to ensure that such comments are not made.
I would say, not necessarily with respect to those specific comments, that actors in the criminal justice system, the actions of actors and what individuals say, need to be addressed. I would respectfully say, in terms of addressing that type of misogyny or those types of comments, that the Criminal Code is not necessarily the best place. We have to ensure that we continue to do everything we can to address misogyny in our society, to call to task comments like those, and to ensure that there is specific training, as much as we can, for lawyers and for judges.
We have made investments in terms of assisting the National Judicial Institute with the training of judges. We are working with our counterparts in the provinces and territories to put together, as I said earlier, a report on best practices. I am hopeful and very optimistic, actually, that the report will bring back further commentary on how we can address these realities.
I was very pleased to have engaged in a knowledge exchange with individuals, practitioners and advocates who practise in the area of sexual assault and how we can address it in a more substantive way. We can do a lot of things to address the reality of people’s opinions and inappropriate comments that individuals make.
What is specifically addressed in Bill C-51 around having a clear provision that speaks to an unconscious person having the inability to provide consent also needs a separate paragraph that speaks to the inability or incapacity of an individual to provide that consent. That incapacity could take many forms.
I recognize the intent of your question and your concerns. My concern around further delineating that incapacity, or delineating a test for consent or that incapacity, would potentially narrow the circumstances or the incapacities that exist as an unintended consequence of delineation, the circumstances wherein consent would be vitiated. I don’t think any of us want that, but we have to continue discussing this subject.
I feel confident in the way the provisions are articulated in Bill C-51 to accommodate that unconscious individuals cannot provide consent, but there are other circumstances where incapacity would vitiate that consent as well.
Senator Pate: I have a supplementary question. Given, however, that we have at least one judge clearly seeking some support and calling out for some greater definitional assistance, and given that we have the kinds of myths and stereotypes that again laudably you were trying to address, it strikes me that it might be useful to look at some of the ways that we could identify potential incapacities.
For instance, as Elaine Craig put to us, if they can’t respond even though they may be conscious, if they can’t understand the nature of the act that is being engaged in, if they can’t understand whether or not they have a choice to engage, and if they aren’t able to express that agreement affirmatively, would you agree it might be helpful to have some of that at least outlined so that judges and lawyers don’t continue to engage in the kinds of stereotypical thinking clearly identified as recently as yesterday afternoon in Calgary?
Ms. Wilson-Raybould: Again, I greatly appreciate the comments. We are working toward ensuring that we put forth the best piece of legislation we can in Bill C-51.
Bill C-51 addresses those concerns. In terms of broader tests or individual circumstances for a judge to consider, certainly there is an opportunity to look at existing case law that considers various circumstances judges and lawyers would consider in these cases.
I recognize the concern that has arisen from comments yesterday and previous comments, for that matter. They fundamentally need to be addressed through education and training, but the Criminal Code is not the appropriate measure necessarily to ensure that we are doing everything we can to provide the resources for necessary implicit bias training around combatting misogyny.
In terms of incapacities and laying out potential incapacities and best practices, I am hopeful the report we are to get back will assist us in those training endeavours, in continuing this conversation and in making it a conversation in which all Canadians are engaged.
The Chair: In the second round, I will ask for short questions and answers.
[Translation]
Senator Dupuis: I have two very specific short questions. My first question is about subclause 20(3) of the bill, which amends section 273.2 of the Criminal Code. In the English version, under paragraph (c), the following is stated:
[English]
. . . affirmatively expressed by words or actively expressed by conduct.
[Translation]
It appears that two legal concepts are being established, while in the French version, it says that the activity was explicitly demonstrated in their words or their behaviour. I would like to know what the true intent of that paragraph is, beyond the use of words, especially since a second legal concept appears to be created in English. I don’t necessarily want you to answer me, but I think this should be studied more carefully and the issue should be expanded on.
My other question is about the statement concerning the Charter. I think that it is very interesting. Does that document concern the declaration on the analysis of the bill’s impacts on the Charter? Will it include the gender-based analysis that is also conducted as part of the analysis on a bill’s potential discriminatory effects?
[English]
Ms. Wilson-Raybould: Thank you for the two questions, and I’ll take you up on the offer not to answer explicitly now with respect to the first comments around the reconciliation between the English and the French versions. Certainly we will look at that.
Charter statements do not necessarily speak to the gender-based analysis. Section 15, for example, is where equality provisions potentially are contained within the Charter statements.
With respect to GBA+ or gender-based analysis plus, it is the practice of our government to ensure that every issue or every memorandum to cabinet that comes forward includes a very substantive GBA+ analysis.
[Translation]
Senator Boisvenu: Minister, I heard your speech on victims of crime and sexual assault, and I support it.
I would like you to explain something to me. You are the bearer of the Canadian Charter of Rights and Freedoms within the federal government. An integral position in that Charter is that of the ombudsman for victims of crime. That position was created in June 2017, and it is still vacant today. We can say that there is currently no spokesperson for victims of sexual assault or crime within your government.
It took you a month to fill the position of ombudsman for criminals, and we have been waiting for a year for the position of ombudsman for victims of crime to be filled, or at least eight months. Do you have a potential date when victims can expect you to fill that ombudsman position?
[English]
Ms. Wilson-Raybould: Thank you for the question. I will say, in short, that ensuring we fill that position is certainly a priority of mine. As you know, we have undertaken for all appointments a new appointment process that has produced incredible candidates to be appointed to specific positions.
We are looking at candidates for that position, and we very much anticipate the ability to fill that position in short order.
Senator Jaffer: I heard you saying that you would make monies available for legal aid for people who want to access lawyers. It’s early because it is not passed yet, but have you thought of what kind of set-up you will have?
One of my concerns always is that the federal government gives its share of money to help legal aid, but then it doesn’t earmark it. From my understanding, the province doesn’t have to spend it on legal aid.
How are we to make sure that we have this right when a right without resources is not much of a right?
Ms. Wilson-Raybould: As was indicated earlier, the short answer is that we continue to have ongoing conversations about legal aid. For our part as a federal government, we have invested significant amounts in legal aid, monies which, when provided, go toward legal aid.
I cannot imagine going to a federal-provincial-territorial meeting without this important issue being brought up by any number of my colleagues. I believe I can speak on behalf of all of the attorneys general and ministers of justice across the country that we need to ensure access to justice for individuals. Legal aid is a fundamental part of that, and we will continue to work collaboratively in that regard.
Senator McIntyre: On the issue of consent, as I understand, the bill seeks to do two things: first, clarify the law of consent and, second, clarify the defence of honest but mistaken belief in consent.
That said, would you say that the bill is simply a codification of the J.A. decision?
Ms. Wilson-Raybould: Part of what we’re doing with respect to changes to the sexual assault law is certainly codifying the J.A. decision of the Supreme Court of Canada in terms of clarifying the circumstances where a consent is not obtained. As I said in my earlier remarks, it is also contained in J.A. that consent has to be contemporaneous to the sexual activity.
Senator McIntyre: J.A. is it, and nothing outside J.A.
Ms. Wilson-Raybould: We have made a number of other changes with respect to sexual assault that look at the Supreme Court of Canada decision in Ewanchuk around the mistaken belief in consent is not available to an accused who alleges belief based on a mistake of law.
We are also ensuring that we strengthen the rape shield provisions in the code as well as looking at a new regime in terms of the private record, as was discussed earlier.
Senator Pate: Thank you for the work you have done in terms of consultation with many groups around these issues. I know one of the recommendations made by many was to bring back the Law Reform Commission as an opportunity to revise of the Criminal Code, toward which you have taken several steps.
Are there any plans to bring that forward? Would you be interested in seeing that inserted into this bill or as an observation of this committee?
Ms. Wilson-Raybould: Is that seeing law reform inserted into this bill?
Senator Pate: The Law Reform Commission.
Ms. Wilson-Raybould: I’ll take the other part of that in terms of the review of the Criminal Code. I am looking forward to coming back here to speak about Bill C-75, the delays in the criminal justice system bill.
We’re seeking to take some significant steps in looking at the Criminal Code, in making changes to the Criminal Code and in making a broad review of the Criminal Code. As all honourable senators can understand, that will take well beyond the time I believe I will be the Minister of Justice, though I suspect that to be for a little while longer.
This is a commitment that we have. There are opportunities certainly to continue to introduce bills to assist in revising the Criminal Code. It’s a task that is worthwhile continuing to undertake.
In terms of the Law Reform Commission and other potential types of sentencing commissions, we have had feedback on considerations from many individuals at the round tables we have had across the country. In response, of course, I am thinking about the potential such bodies could present. I am entirely willing to continue to have discussions with honourable senators around the table on that.
The Chair: Thank you, minister. I have a quick question in relation to the clause 73 of the bill at page 24. When I compare the old section 4.1 with the one that you propose in this bill, I notice that there are major differences, as my colleague Senator Carignan has outlined them.
First, regulations are no longer part of the statement that you will provide according to the act.
Second, there is a change of criteria because it’s no longer an assertion of inconsistency but more potential effect. It’s very vague in terms of legal evaluation.
Third, the criteria proposed by your predecessor, former Minister of Justice Irwin Cotler, in his bill in 2013 were much more encompassing than what you propose in this bill.
Could you answer those three elements of my concern?
Ms. Wilson-Raybould: I have ongoing discussions with many of my predecessors. I am very familiar with former Minister of Justice Irwin Cotler’s proposals.
In terms of your specific question around the Department of Justice Act, we are not, in Bill C-51, seeking to amend section 4.1. We’re adding on to the Department of Justice Act to reflect Charter statements.
I am happy to continue to have these discussions with honourable senators with respect to the nature of the Charter statements that are obviously not legal advice but intended to assist in the dialogue and discussion about where the Charter is engaged and our considerations as a government when drafting legislation and making public policy decisions.
The Chair: The meeting is adjourned. The honourable senators have to rush for a vote. Thank you again, Madam Minister, for having made yourself available. We appreciate your contribution to our consideration of Bill C-51.
(The committee adjourned.)