Honourable senators, I rise today to 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.

I would like to thank Senator Sinclair for his work as sponsor of this bill. In this role, as is a recurring theme in his career, he helps lead the way toward a criminal justice system that is clearer and fairer for all.

As Senator Sinclair has explained, this bill forms part of the ongoing review of the criminal justice system by the Minister of Justice. Specifically, it aims to clarify and strengthen the law of sexual assault, repeal or amend provisions that courts have found unconstitutional or that raise avoidable Charter risks, and remove obsolete or redundant provisions from the Criminal Code. And, for every new government bill, it requires the Minister of Justice to table in Parliament a statement regarding the potential effects of the proposed legislation on the rights and freedoms guaranteed by the Canadian Charter.

I support the objectives of this bill, but I have concerns regarding the provisions pertaining to sexual assault law and the Charter statement, which I believe must be examined more closely in committee.

In addition, as was raised at committee in the other place, the provisions of Bill C-51 that delete unconstitutional sections of the Criminal Code fail to remove mandatory minimum sentences that have been struck down by courts of appeal or the Supreme Court of Canada. The minister has indicated that issues related to mandatory minimum penalties are part of her criminal justice review, yet reforms are glaringly absent in this and other bills resulting from her review.

I will not go into detail now about the potential for constitutional violations inherent in mandatory minimum penalties as a result of forcing judges to impose sentences that are inappropriate in light of the circumstances of specific cases, but suffice it to say that this is an issue with which we should all be concerned.

The courts have already ruled that a number of mandatory minimum sentences violate the Charter.

In light of the proposed removal of so-called zombie provisions in Bill C-51 — that is, provisions that have been found unconstitutional but linger in the Criminal Code — I believe we must also consider the removal of unconstitutional but not yet repealed mandatory minimum penalties. In addition to the lack of reliable evidence that they deter crime, we do have evidence that mandatory minimums can encourage wrongful guilty pleas, particularly among those who are marginalized by race, sex and income. The risk of lengthy jail sentences for those without supports, resources or the belief that they will be dealt with fairly can encourage people to plead guilty even in circumstances where they might have a legal defence. The continued existence of these provisions therefore poses serious consequences for the rights of individuals to fair trials and adequate defences.

With respect to Bill C-51’s sexual assault law provisions, this legislation recognizes that misogynistic and racist stereotypes about complainants continue to influence the ways in which courts interpret and apply law. Discriminatory practices not only re-victimize women who report sexual assault, particularly Indigenous and other racialized women, they also prevent women from reporting criminal activity and thereby undermine the credibility of the justice system. As Professor Elizabeth Sheehy noted in the other place, although women flood traditional and social media with their disclosures of perpetration, the official reporting rates have plummeted from 1 in 10 to 1 in 20 in recent years.

Our debates in respect of Bill C-337 revealed egregious examples of the justice system failing complainants, particularly Indigenous women. These cases have led to public outcry for enhanced judicial education and training. Misogynistic and racist biases only become more prevalent where criminal justice participants, from police to lawyers to judges, are unaware of the manner in which such discriminatory attitudes and biases intersect in the areas of violence against women and sexual assault law.

Bill C-51 contains amendments intended to clarify the Criminal Code in light of established principles of sexual assault law. Knowledgeable experts are generally supportive of the objectives of Bill C-51 but have pointed to areas where the bill’s language, already amended in the other place, could be further honed. For example, the amendments in the other place improved on Bill C-51’s codification of the case law concerning incapacity to consent, by specifying that consent cannot be given in advance and “must be present at the time the sexual activity in question takes place.” These amendments did not, however, address experts’ concerns about the inclusion of the word “unconsciousness” in section 273.1(2) of the Criminal Code, concerning incapacity to consent.

The Supreme Court has established that incapacity includes states approaching, but not reaching, unconsciousness. Professor Sheehy suggests that the Criminal Code must state this rule expressly, rather than simply referring to unconsciousness and leaving open the possibility that there are other states in which a complainant could be incapable of consenting. In particular, she suggests more clearly mapping out considerations for determining when incapacity short of unconsciousness exists.

This would be done based on three criteria: the complainant must be capable of understanding the sexual nature of the act and risks associated with it, capable of understanding that she can choose to decline, and capable of communicating voluntary consent to the act.

Professor Janine Benedet raised the same concern, suggesting that the word “unconsciousness” be removed from the provision, to better remind decision makers that they are also required to contemplate situations in which a complainant is not unconscious but is incapacitated for some other reason, such as consumption of drugs or alcohol.

Finally, at the committee in the other place, representatives of the Barbra Schlifer Commemorative Clinic emphasized that making changes to the Criminal Code alone will be ineffective without certain measures to support the implementation of Bill C-51. For instance, while Bill C-51 provides complainants with the opportunity to be represented by legal counsel in situations where an accused is seeking to introduce evidence of personal information about the complainant, meaningful access to counsel would require government funding.

Yesterday, in her end-of-mission statement, Dubravka Šimonović, United Nations Special Rapporteur on Violence Against Women, reiterated that in order to improve criminal justice responses to sexual assault and violence against women, federal spending is required to provide free legal advice to victim survivors at the federal, provincial and territorial levels. Lack of access to legal advice and representation is a significant reason that so few sexual assaults proceed through the criminal justice system. Until they are ensnared in the system, many do not understand that the role of Crown counsel is not to serve as their representative and that they are witnesses whose role is to provide evidence so that the judge or jury may assess whether the accused person broke the law. They are most often on their own navigating the legal system, without updates about their cases and without the ability to participate meaningfully in the process.

Ms. Amanda Dale, the Executive Director of the Barbra Schlifer Clinic, further emphasized the need for accountability mechanisms relating to the implementation of Bill C-51. She recommended that the government establish a community consultation process with front-line agencies and survivors in order to monitor rollout of the bill’s provisions relating to sexual assault law and ensure that they have their intended effect.

I think the bill would benefit from closer scrutiny of these issues in committee.

Experts at committee in the other place also emphasized that addressing sexist and racist discrimination in sexual assault law cannot stop with Bill C-51. Legislation must be part of a multi-faceted approach that includes judicial training and greater transparency regarding decision making, as contemplated by Bill C-337. It includes training of others in the legal system, particularly police and lawyers. It includes re-establishing sentencing and law reform commissions, both of which Canada disbanded.

These commissions — an essential fixture of the criminal justice systems of most other Commonwealth countries — conduct systemic research and analysis on the criminal justice system in order to develop guidelines and provide expert advice to Parliament.

Addressing misogyny and racism in sexual assault law also includes, more fundamentally, support for marginalized and victimized women in our communities. The persistent pervasiveness of discrimination in criminal law processes relating to sexual assault underscores the importance of analyzing bills through the lens of the Charter, and particularly section 15 guarantees of substantive equality.

The Charter statements established by Bill C-51 affirm our obligations as senators to uphold the Charter, not to mention the centrality of this issue to our debates. Witnesses at committee in the other place raised concerns regarding the effectiveness of the Charter statements as well as fears that they will be undermined if they are insufficiently detailed. I share this concern and believe that Charter statements should include principled discussions of legal principles, tests and related factors as well as alternatives considered by the government, in addition to precedents and norms. I therefore support potential committee recommendations to amend Bill C-51 to ensure that Charter statements better allow parliamentarians and the public to assess the constitutional implications of legislation.

Honourable senators, I hope you will join us in voting to send Bill C-51 to committee in order to allow our continued consideration of this bill and our overall responsibilities to promote justice and equality for all.

Thank you. Meegwetch.