Charter Statement - Bill C-51: An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act

Tabled in the House of Commons, June 6, 2017

Explanatory Note

The Minister of Justice prepares a “Charter Statement” to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice’s most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined 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 consistency with the Charter pursuant to her obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-51 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.

Overview

Bill C-51 is aimed at enhancing the Charter-consistency of federal laws in a number of ways. First, it imposes a new duty on the Minister of Justice to table a Charter Statement with every government bill. Second, it repeals or amends several Criminal Code provisions in order to better align them with the Charter and/or update them so they continue to be relevant in the 21st century. Finally, it clarifies the sexual assault provisions of the Criminal Code to reinforce protections for sexual assault complainants throughout the trial process, while preserving trial fairness for the accused.

Charter Statements

Clause 73 of the Bill would enact a new duty on the Minister of Justice to table a Statement for all government bills that sets out the potential ways in which a bill engages Charter-protected rights and freedoms. This would formalize the Minister of Justice’s current practice of tabling Charter Statements for bills that she herself introduces, and extend it to all government bills.

The Statements are intended to inform Parliamentary debate as well as the public more generally about the implications of new legislation from a Charter perspective. The Statements would be accessible and as plain language as possible, with a view to promoting increased awareness and public discussion of the Charter. Charter Statements would provide legal information – not legal advice – to Parliament and would be tabled in the House of Parliament in which a bill is introduced.

The purpose of the proposed new duty is to enhance the protection of Charter rights by requiring the Minister of Justice to provide information systematically and proactively about the potential Charter implications of all government bills. The Minister of Justice’s Statements would become an additional resource available to support Parliament in its consideration of bills and would help foster informed debate of the key Charter issues raised by proposed legislation. This would encourage ongoing consideration and discussion by Parliamentarians and the public of the shared Canadian values embodied in the Charter, including respect for the inherent dignity of every human being, freedom, democracy, equality, inclusion, and respect for diverse cultural, religious and group identities. It would also demonstrate a firm commitment to openness and transparency.

Sexual Assault Reforms

Consent and the defence of mistaken belief in consent

Clauses 19 and 20 of the Bill would clarify the scope of two sexual assault provisions in order to promote greater understanding of the provisions of the Criminal Code that protect complainants in sexual assault cases. This would avoid misapplication of the law, enhancing the Charter rights of complainants under section 15(1) (equality) and section 7 (security of the person).

Section 273.1 of the Criminal Code defines consent for the purposes of the sexual assault offences. Clause 19 would amend this section to clarify that an unconscious person is not capable of consent. This would be consistent with the Supreme Court of Canada’s decision in R. v. J.A. (2011), which found that the definition of consent requires the ongoing, conscious agreement of the complainant to participate in the sexual activity in question while it is occurring.

Section 273.2 of the Criminal Code sets out circumstances when an accused cannot raise the defence of honest but mistaken belief in consent as a defence to a charge of sexual assault. Clause 20 would amend this section to clarify that an accused cannot rely on this defence if their mistake is based on a mistake of law (that is, ignorance or a misunderstanding of the law) or if their belief is based on the complainant’s passivity. This would be consistent with the Supreme Court of Canada’s decision in R. v. Ewanchuk (1999).

By clarifying the operation of these provisions, the proposed amendments advance the Government’s objective of promoting greater awareness of and adherence to the provisions of sexual assault law that protect complainants, the majority of whom are female. These reforms promote the equality rights of complainants as protected by section 15(1) of the Charter, and their security of the person as protected by section 7 of the Charter.

Rape shield law

Section 276 of the Criminal Code, also known as the “rape shield law”, limits the extent to which evidence of a complainant’s sexual history can be admitted in a sexual assault trial. It prohibits evidence of a complainant’s past sexual activity from being used to support either of the following two discriminatory myths about victims of sexual violence: (1) that their past sexual experience makes them more likely to have consented to the sexual activity that forms the subject matter of the charge, or (2) that their past sexual activity makes them less worthy of belief. These are called the “twin myths”. It then sets out conditions under which evidence of the complainant’s sexual history may be admitted in the trial for other purposes, namely, where the judge decides that the evidence is of specific instances of sexual activity, is relevant to an issue at trial, and has significant probative value that is not substantially outweighed by its prejudicial effect.

Clause 21 would amend section 276 to clarify that evidence of past sexual activity can never be admitted to support one of the twin myths. It would also clarify that evidence of past sexual activity includes communications made for a sexual purpose or whose content is of a sexual nature. This would include, for example, text messages, emails and video recordings.

Measures that limit the types of evidence that may be admitted in a criminal trial have the potential to engage the protections under sections 7 and 11(d) of the Charter.

Section 7 guarantees the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. A criminal offence that carries the possibility of imprisonment implicates the right to liberty, and so must not be contrary to the principles of fundamental justice. These principles include the right of an accused to make full answer and defence in a fair trial.

Section 11(d) guarantees the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. It also protects the right of an accused to make full answer and defence.

The following considerations support the consistency of the proposed amendments with the Charter. The Supreme Court of Canada upheld the rape shield law as complying with the Charter in R. v. Darrach (2000), finding that the rape shield laws enhance the fairness of hearings by excluding misleading evidence from trials of sexual offences. The proposed amendments would preserve the features of the law that allow the accused to present evidence relevant to their defence. In clarifying these important protections against misuse of a complainant’s past sexual history in a manner consistent with how the law is already being applied by some courts, the proposed amendments will also serve to promote core values that underpin the Charter and the rape shield law, including the equality, security of the person and privacy rights of sexual assault complainants.

Third party records

Existing sections 278.1 to 278.91 of the Criminal Code create a special procedure to be followed if the accused wishes to obtain access to the complainant’s private records. The procedure applies to records that contain personal information for which there is a reasonable expectation of privacy, such as personal journals, medical records or counselling records. It requires a judge to consider a list of factors and assess whether the private record should be produced to the accused. The purpose of these provisions is to prevent requests for production that are speculative and have no merit, and to protect a complainant’s privacy interests.

Currently, the regime only addresses the production, to the accused, of private records that are in the hands of the complainant or a third party. It does not address the admissibility of such records during the course of a trial, once they are in the possession of the accused. Clauses 22 through 25 would complement the existing regime by establishing a similar process to determine whether such records can be admitted by the accused as evidence in the trial.

Measures that limit the types of evidence that may be admitted in a criminal trial have the potential to engage the right of an accused to make full answer and defence as protected under sections 7 and 11(d) of the Charter.

The following considerations support the consistency of the proposed provisions with the Charter. The Supreme Court of Canada upheld the existing third party records regime as complying with the Charter in R. v. Mills (1999). The proposed amendments would preserve the features of the law that allow the accused to present evidence relevant to their defence, while continuing to safeguard the equality, security of the person and privacy interests of sexual assault complainants.

Repealing or Amending Unconstitutional Criminal Code provisions

A number of Criminal Code provisions have been found unconstitutional by appellate or trial courts or have been interpreted in a way that makes them constitutional but which is different than the way the provision is drafted in the Criminal Code. Left unaddressed, these provisions may undermine the rule of law, create confusion, reduce the accessibility of the Criminal Code, and contribute to inefficiency in the criminal justice system through unnecessary or prolonged litigation. Bill C-51 would repeal or amend such provisions, including the following:

Reverse onus provisions:

A number of offences in the Criminal Code use language such as “the proof of which lies on [the accused]”. Court decisions indicate that such wording can impose a reverse onus that unjustifiably limits rights under section 11(d) of the Charter, which guarantees the right to be presumed innocent until proven guilty beyond a reasonable doubt.

Evidentiary presumptions:

These presumptions are statutory “short-cuts” that allow the Crown’s proof of one fact to be taken as, or “presumed” to be, proof of another fact that is required to make out the offence, unless the presumption is rebutted by the accused. Court decisions have concluded that some presumptions have the capacity to unjustifiably limit section 11(d) rights since they relieve the Crown of proving certain elements of an offence beyond a reasonable doubt, and so infringe the presumption of innocence.

Proof of guilt beyond a reasonable doubt:

Some offences are drafted so as to allow for conviction without proof beyond a reasonable doubt of the guilt of the accused, but courts have interpreted such offences to clearly require the Crown to prove guilt.  Where this has occurred, as in the Supreme Court of Canada’s decision of R. v. Holmes (1988), the text of the Criminal Code provision and the interpretation that it has been given become misaligned.

Credit for pre-sentence custody:

Subsection 719(3) of the Criminal Code sets a general rule that in calculating a sentence the offender shall receive one day of credit for each day spent in pre-sentence custody. Subsection 719(3.1) nevertheless allows a judge to grant up to a maximum 1.5 days of credit for each day spent in pre-sentence custody if the circumstances justify it. Bill C-51 would expand the circumstances where a judge could grant up to 1.5 days of credit (clause 66), aligning it with the Supreme Court of Canada’s reasoning in R. v. Safarzadeh-Markhali (2016).

Amending or repealing such provisions would promote Charter compliance and the rule of law, which the Charter’s preamble recognizes as one of Canada’s founding constitutional principles.

Obsolete and/or Redundant Criminal Code Offences

Bill C-51 would repeal a number of offences that are no longer required in the Criminal Code for various reasons, including because they are outdated or duplicative of more general offences. Generally, the repeal of these provisions has no significant Charter effects.

This said, the repeal of the prohibition on publishing blasphemous libel (section 296 of the Criminal Code) would enhance freedom of expression protected by section 2(b) as well as section 15(1) equality rights. The offence has its origins in the 17th century, when blasphemy was considered an offence against God.