Thank you to all members of this committee for inviting me to appear again at this time to speak to and discuss Bill , an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act.
As you know, the has mandated me to review the criminal justice system, which is critically important and a long overdue task. As Minister of Justice and Attorney General of Canada, I am committed to making our laws fairer, clearer, more relevant, and more accessible to all Canadians. Bill reflects that commitment.
As I continue to work with the provinces and territories, as well as criminal justice system stakeholders, I am guided by a set of clear objectives.
First, using the criminal law to keep Canadians safe, and holding offenders to account for their crimes in a just and appropriate way. Second, making sure that our criminal justice system shows compassion and responds to the needs of victims of crime. Third, responding to the needs of vulnerable populations, and ensuring that the system does not exacerbate the challenges faced by already marginalized groups. Finally, working to make clearer links between the justice system and other social systems, so we are able to more effectively respond to the root causes of crime.
Bill reflects these objectives through changes that will have a positive and lasting impact on victims of sexual violence. This bill also affirms the fundamental truths upon which our justice system is based, including that criminal law should be used with restraint, that the state bears the responsibility of proving alleged criminal conduct, and that all criminal law must respect the Charter of Rights and Freedoms.
Mr. Chair and members of the committee, you will already be familiar with the content of the bill. In the time available to me, I don't think I can comprehensively speak to all aspects of the bill. Instead, I will provide a brief overview of the main aspects of the bill, and spend the remainder of my time focusing on some key points of discussion that have arisen since I first introduced the bill on June 6.
It may be useful to think of Bill 's proposed amendments as falling into four broad categories. Most of these changes are to the Criminal Code; however, the bill also proposes important improvements to the Department of Justice Act.
The first broad set of reforms under the Criminal Code seek to clarify and bolster the laws surrounding sexual assault. Second, Bill seeks to build on the proposed changes included in Bill , which I introduced on March 8, by repealing or amending Criminal Code provisions that have been found unconstitutional by the courts. The third area of reform involves amendments that would remove a number of obsolete or redundant criminal offences. Finally, amendments to the Department of Justice Act would create a new statutory duty for the Minister of Justice to table in Parliament a charter statement for every government bill that sets out the bill's potential effects on rights and freedoms guaranteed in the charter.
Turning first to the sexual assault law reforms, all parliamentarians recognize the importance of taking steps to ensure that the criminal law is as clear and unequivocal as possible in its response to sexual violence. We all know that sexual assault complainants face significant challenges. Therefore, it is absolutely critical that our laws be both clear and clearly understood. This is important for all parties involved in such proceedings: judges, prosecutors, defence counsel, accused, and victims. It is also important for the proper functioning of the system overall.
In this respect, the proposed changes clarify that persons cannot consent to sexual activity when they are incapable of doing so, including when they are unconscious. This change is in line with the Supreme Court of Canada decision R. v. J.A.
Second, changes would clarify that accused persons cannot rely on the defence of mistaken belief in consent if their mistake is a mistake of law, or if their belief is based on the complainant's passivity. In this way, it would codify the Supreme Court's decision in R. v. Ewanchuk.
The bill will also fill the gap in law by introducing a specific procedure for determining the admissibility of private records relating to the complainant such as private journals that are in the hands of the accused. This will complement existing procedures that apply when the accused seeks to obtain records held by persons other than the crown, for example, a therapist.
I pause here to respond to the concerns that have been expressed around these changes. It has been suggested by some that these amendments amount to a codification of a defence disclosure obligation. I want to be very clear that this is simply not true. These changes provide no rights to the crown to receive evidence, nor do they mean that the defence would be obligated to hand such evidence over. Rather, the changes concern rules of evidence and seek to balance the rights of the accused with the rights of the complainant and to support the truth-seeking function of the courts.
As was noted in the Supreme Court of Canada's decision in Darrach, a voir dire held to determine whether evidence of past sexual history is admissible is not defence disclosure. Additionally, the bill proposes changes to remove laws that have been found unconstitutional by appellate courts. One example is the proposal to remove the restriction that prevents sentencing courts from giving enhanced credit to persons detained prior to being tried and convicted because they've breached a condition of bail. This was found unconstitutional by the Manitoba Court of Appeal in Bittern.
Next, Bill proposes to repeal 20 different offences that are either redundant of other offences of general application, or no longer have relevance in Canada today. Examples include challenging someone to a dual; posting a reward for a return of a stolen item, no questions asked; possessing criminal or crime comics; and publishing a blasphemous libel. These changes are expected to make our laws fairer, clearer, and more relevant and accessible to Canadians.
I've received a number of letters from Canadians expressing concern about Bill 's proposed repeal of section 176, which appears to offer specific protections to Christian clergymen. I'm grateful to have the opportunity to respond to these concerns now.
I want to be clear that removing this offence will not in any way undermine Canadians' ability to practise their religious faith, nor do I expect it to lead to an increase in violence in such situations. Many criminal offences of general application will continue to be available to address all of the conduct that is prohibited by section 176. It remains an aggravating factor in sentencing if an offence was motivated by bias, prejudice, or hate based on religion.
Finally, changes to the Department of Justice Act would require the Minister of Justice to table charter statements that would identify and highlight key charter rights and freedoms that are engaged by any government bill. They would also set out considerations that support the justification of any limits that a bill may have on charter rights or freedoms.
As members are aware, I have been tabling charter statements for bills that I have introduced since becoming Minister of Justice. We have also begun to expand this practice to bills introduced by other ministers as well. The amendments would entrench this practice in law and extend it to all future government bills. These changes, as well as those proposed to the Criminal Code, reflect our government's unwavering and deep commitment to respecting the charter.
Quite simply, we can never abdicate our responsibility as a government to ensure that our decisions, including those reflected through law reform, comply with our fundamental rights and freedoms. That is why I'm so pleased to sponsor a bill that reinforces the obligation of current and future governments to adhere to this most basic duty.
Mr. Chair, I want to thank you again for the opportunity to appear before this committee and I look forward to all of the questions and discussions.
Thank you for your appearance here today.
You will remember, Minister, that earlier this year there was quite a bit of discussion in Parliament, and a number of motions and debate, with respect to the protection of people's religious freedom. Also, with respect to the charter and the Constitution, people's right to practise their religion is a fundamental right that Canadians have.
I was surprised when I had a look at the details of this bill that one of the things it does is to remove the specific protection for religious services and members of the clergy. Now I notice that at the time it was announced, there was no mention of this. It was just said that it was obsolete, redundant, and no longer relevant.
I think most people in this country would agree with me that it is serious when anybody disrupts, threatens, or interrupts anybody's religious service, no matter what it is, and that it's worthy of the special section in the Criminal Code. Most people I think would agree that it's not the same as causing a disturbance at an arena or interrupting a meeting.
Why don't you agree with me that this section is in fact still relevant?
Thank you, Madam Minister.
I certainly note that Bill does remove certain obsolete sections of the Criminal Code. I want to ask a question more broadly about the government's effort to clean up the Criminal Code. You have stated that it is a priority of the government.
One year ago, Travis Vader's conviction on two counts of second degree murder of Lyle and Marie McCann of St. Albert, Alberta was vacated after the trial judge applied an inoperative section of the Criminal Code, a section that had been found unconstitutional some 25 years earlier.
This committee wrote to you. I held a press conference with Bret McCann in December calling on the government to move forward to remove zombie laws, unconstitutional provisions. To your credit, you did introduce Bill on March 8, and seven months later, it remains stuck at first reading.
What is the delay on Bill ?
Thank you very much, Mr. Chair.
Thank you so much, Minister, for being here, and thanks to your officials as well.
First of all, I want to thank you for the effort in putting this bill together, and I really appreciated your comments with regard to victims or complainants feeling perhaps more comfortable coming forward as a result of some of the steps that are being taken in this bill.
Coming from Nova Scotia, I know there has been certainly a high profile case and incidents there that are on the public's mind that have brought consciousness to this important discussion.
In balancing the rights of the accused and the victims or complainants, I want to turn to a topic that already had some discussion, and that's regarding the records relevant to the complainant that are in the hands of the defence. As I understand it, there will be a possibility of a hearing before the judge in a voir dire setting, where a determination will be made on the admissibility of that evidence by the judge.
I think it's good that the complainant would have the ability to have legal representation at such a hearing. I'm wondering, though, if you could touch on how we balance the rights of the accused to a fair trial with the ability of perhaps giving a heads-up, if you will, to the complainant about what evidence may be tendered on cross-examination, perhaps allowing an accused person an ability to tailor evidence based on what normally would be proffered at trial to cross-examine the witness.
This is a long conversation, and I would love to continue to have it with you around the substantive steps we have taken in terms of the broad, comprehensive reforms of the criminal justice system.
For me, the reality, in terms of the corrections system, is that approximately 70% of the individuals who are in the criminal justice system suffer from mental health issues, addictions, and are marginalized individuals. There's an absolutely appalling overrepresentation of indigenous peoples in that system. I am committed, through our comprehensive reform of the justice system, to ensure we put justice back into that system, recognizing that we must protect public safety, that we need to respect and support victims of crime, and that we need to uphold the Charter of Rights and Freedoms.
I'm looking forward to bringing forward, in concert and collaboration with my counterparts in the provinces and territories, substantive reforms to the justice system. We need to address delays, but also be very mindful that we need to do better in terms of individuals that find themselves, whether they're an accused person or a victim of crime, in the criminal justice system for reasons other than being inherently criminal.
I am a strong proponent, when somebody is in the justice system, of finding the necessary off-ramps for that individual, off-ramps that would provide the necessary care, whether that's treatment, ensuring we promote sentencing circles, or culturally appropriate transitions, as an example, for indigenous offenders.
Restorative justice measures across the country are something that I'm absolutely passionate about and hope to, and intend to, propel further.
I am working very closely with my counterpart, the . We have, and will continue to advocate for the necessary resources in order to achieve the changes that we're seeking in terms of the criminal justice system.
Likewise, I've been working very closely, as have my officials, with my counterparts in the provinces and territories, recognizing that the administration of justice is a shared responsibility. I'm very pleased with the common priorities we've identified in terms of substantive and bold measures that we can take to reduce delays. These include preliminary inquiries, mandatory minimum penalties, administration of justice offences, and bail reform.
Judicial case management has potential areas we can look at as well. We've had discussions around the federal-provincial-territorial table on how we can do better to recognize, address, and put in the necessary services, knowing full well this will require resources to substantively address those individuals who have mental health issues, addictions issues, or have fetal alcohol syndrome.
We also recognize that there are challenges that need to be addressed that aren't necessarily criminal in nature, but that we have to do better in matters of providing adequate housing for individuals to stay in, rehabilitate, and transition into the job market. This is a cross-government reality and approach, and a necessary commitment that our government has made. I look forward to working with you, and all members of this committee, as we roll out our broad criminal justice reforms.