Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 48 - Minutes of Proceedings - September 20, 2018
OTTAWA, Thursday, September 20, 2018
(114)
[English]
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:45 a.m., in room 257, East Block, the chair, the Honourable Serge Joyal, P.C., presiding.
Members of the committee present: The Honourable Senators Batters, Boisvenu, Carignan, P.C., Dalphond, Dupuis, Eaton, Jaffer, Joyal, P.C., McIntyre, Pate, Pratte and Sinclair (12).
In attendance: Julian Walker and Maxime Charron-Tousignant, Analysts, Parliamentary Information and Research Services, Library of Parliament; Chantale Lamarche, Communications Officer, Senate Communications Directorate.
Also present: The official reporters of the Senate.
Pursuant to the order of reference adopted by the Senate on Thursday, May 10, 2018, the committee continued its examination of Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act. (For complete text of the order of reference, see proceedings of the committee, Issue No. 47.)
WITNESSES:
Department of Justice Canada:
Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section;
Nathalie Levman, Counsel, Criminal Law Policy Section;
Matthew Taylor, Acting Senior Counsel, Criminal Law Policy Section.
The chair made a statement.
It was agreed that the letter from the Honourable Jody Wilson-Raybould, P.C., Q.C., M.P. Minister of Justice and Attorney General of Canada, be filed as an exhibit (Exhibit 5900-1.42/LCJC-C-51, 48, "1'')
It was agreed that the committee proceed to clause-by-clause consideration of Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act.
It was agreed that the title stand postponed.
The chair asked whether clauses 1 to 9 shall carry.
It was agreed that clauses 1 to 9 carry, on division.
The chair asked whether clause 10 shall carry.
The Honourable Senator Pate moved that Bill C-51 be amended in clause 10, on page 5, by adding the following:
(a) by replacing lines 17 to 20 with the following:
"(b) the complainant is incapable of consenting to the activity in question, in particular because they are
(i) unable to understand the nature, circumstances, risks and consequences of the sexual activity in question,
(ii) unable to understand that they have the choice to engage in the sexual activity in question or not, or
(iii) unable to affirmatively express agreement to the sexual activity in question by words or by active conduct;''; and
(b) by adding the following after line 20:
"(2.2) Section 153.1 of the Act is amended by adding the following after subsection (3):
(3.1) For greater certainty, capacity to consent at the time of the sexual activity that forms the subject-matter of the charge cannot be inferred from evidence on capacity to consent at the time of another sexual activity.''.
Ms. Morency, Ms. Levman and Mr. Taylor were invited to the table and answered questions for the remainder of the meeting.
After debate, the Honourable Senator Pate moved that the motion in amendment be amended by the following:
(a) by replacing lines 18 to 20 with the following:
"(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1), including, but not limited to because they are:
(i) unable to understand the nature, circumstances, risks and consequences of the sexual activity in question,
(ii) unable to understand that they have the choice to engage in the sexual activity in question or not, or
(iii) unable to affirmatively express agreement to the sexual activity in question by words or by active conduct;''
(b) by adding the following after line 20:
"(2.2) Section 153.1 of the Act is amended by adding the following after subsection (3):
(3.1) For greater certainty, capacity to consent at the time of the sexual activity that forms the subject-matter of the charge cannot be inferred from evidence on capacity to consent at the time of another sexual activity.''.
After debate, the question being put on the subamendment, it was negatived on the following vote:
YEAS
The Honourable Senators Joyal, Dupuis, Jaffer, Pate, Pratte, Sinclair — 6.
NAYS
The Honourable Senators Batters, Boisvenu, Carignan, Dalphond, Eaton, McIntyre — 6.
ABSTENTIONS
The Honourable Senators — Nil.
The question being put on the motion in amendment, it was negatived, on division.
It was agreed that clause 10 carry, on division.
The chair asked whether clauses 11 to 18 shall carry.
It was agreed that clauses 11 to 18 carry, on division.
The chair asked whether clause 19 shall carry.
After debate, it was ageed that clause 19 carry, on division.
The chair asked whether clauses 20 to 24 shall carry.
It was agreed that clauses 20 to 24 carry, on division.
The chair asked whether clause 25 shall carry.
It was agreed that clause 25 carry, on division.
The chair asked whether clauses 26 to 30 shall carry.
It was agreed that clauses 26 to 30 carry, on division.
The chair asked whether clauses 31 to 40 shall carry.
It was agreed that clauses 31 to 40 carry, on division.
The chair asked whether clauses 41 to 50 shall carry.
It was agreed that clauses 41 to 50 carry, on division.
The chair asked whether clauses 51 to 60 shall carry.
It was agreed that clauses 51 to 60 carry, on division.
The chair asked whether clauses 61 to 70 shall carry.
It was agreed that clauses 61 to 70 carry, on division.
The chair asked whether clauses 71 to 81 shall carry.
It was agreed that clauses 71 to 81 carry, on division.
It was agreed that the title carry.
It was agreed that the bill carry, on division.
The chair asked if the committee wished to consider appending observations to the report.
It was moved by Senator Dupuis that the committee proceed in camera.
After debate, the question being put on the motion, it was negatived on the following vote:
YEAS
The Honourable Senators Joyal, Dupuis, Jaffer — 3.
NAYS
The Honourable Senators Batters, Boisvenu, Carignan, Eaton, Pate, Pratte, Sinclair — 7.
ABSTENTIONS
The Honourable Senators Dalphond, McIntyre — 2.
The Honourable Senator Pate moved that the following draft observations be appended to the report:
The deletion of provisions known to be unconstitutional or obsolete is an important first step in the revision and modernization of the Criminal Code, but much remains to be done to make the Code clear, coherent, and comprehensive. The government of Canada should undertake a more thorough reform and modernization of the Criminal Code. The Committee recognizes that a Law Commission can make an important contribution to this endeavour.
The committee also recognizes that the independent, multi-disciplinary and evidence-driven perspective of a Law Commission can assist elected officials in creating fair and just criminal law. The reports of the Law Reform Commission and the Law Commission of Canada provide important recommendations for legislative development and reform, particularly with respect to criminal law. A Law Commission can also offer valuable research and advice on new and emerging justice issues.
Systematic study of the kind a Law Commission could undertake is needed to ensure that Canada's criminal justice system responds adequately to systemic bias and respects the rights of victims, accused persons and the Canadian public as a whole.
For these reasons, the Committee is of the view that the Government should take all measures necessary to fund and otherwise ensure the existence of a Law Commission of Canada capable of fulfilling the purposes, powers and duties currently set out in the Law Commission of Canada Act.
After debate, the Honourable Senator Carignan, P.C., moved that the observations be amended by the following:
The deletion of provisions known to be unconstitutional or obsolete is an important first step in the revision and modernization of the Criminal Code, but much remains to be done to make the Code clear, coherent, and comprehensive. The Committee calls upon the Government of Canada, as it has done emphatically in the past, to undertake a more thorough reform and modernization of the Criminal Code.
After debate, the question being put on the motion in amendment, it was adopted by a show of hands.
It was agreed that the chair report the bill, with observations, to the Senate.
At 12:19 p.m., the committee adjourned to the call of the chair.
ATTEST:
Keli Hogan
Clerk of the Committee