Questions and Answers - An Act to amend the Criminal Code (removing unconstitutional portions or provisions)

General

Q1. What does this Bill do?
  • Some Canadian criminal laws are no longer in force because the Supreme Court of Canada and appellate courts found that they violate the Canadian Charter of Rights and Freedoms. These laws stay in the Criminal Code until they are amended or repealed by Parliament. This can result in confusion over what is and is not legal in Canada
  • The Bill proposes to repeal Criminal Code provisions that have been found unconstitutional by the Supreme Court of Canada and appellate courts.
  • The unconstitutional provisions include a range of issues: the definition of murder; vagrancy; promoting false news; abortion; impaired driving; the pre-sentencing custody regime; and, anal intercourse.
  • Removing these invalid and unenforceable provisions would make the Criminal Code clearer and more accessible and would help Canadians to better understand the actual state of the law.
Q2. Why is this Bill being introduced?
  • This Bill is being introduced because provisions invalidated by the Supreme Court of Canada and appellate courts remain in the Criminal Code until they are amended or repealed by Parliament.
  • This is one of a series of bills that will seek to update the Criminal Code to ensure that it shows the greatest possible respect for the Charter of Rights and Freedoms and is reflective of modern society and values.

Abortion

Q3. Why does this Bill propose to repeal the abortion provision (section 287)?
  • The prohibition against abortion was found to be unconstitutional in R v Morgentaler (1988) because it violated a woman’s right to life, liberty and security of the person (section 7 of the Charter).
  • The Court held that forcing a woman, by threat of a criminal sanction, to carry a fetus to term was a profound interference with her body, and her constitutional rights.

Murder

Q4. What do sections 229 and 230 of the Criminal Code do?
  • These provisions identify different circumstances where causing someone’s death amounts to murder.
  • Paragraph 229(c) says it is murder to cause someone’s death if, for an illegal purpose, a person does anything that they know or “ought to know” is likely to cause death.
  • Section 230 says that causing the death of a person is murder when the death is caused during the commission of certain offences—like sexual assault or robbery—even if the accused did not intend to cause the other person’s death or did not know death was likely to result from their behaviour.    
Q5. Why were section 230 and part of paragraph 229(c) of the Criminal Code found unconstitutional?
  • Murder is the most serious crime in Canadian law and is associated with the most severe penalty in Canadian criminal law.
  • In R v Martineau (1990), the Supreme Court held that a person cannot be convicted of murder unless they intended to cause death or knew that death was likely to result from their behaviour.
  • These provisions were found unconstitutional (contrary to section 7 of the Charter) because they could have resulted in a conviction for murder, even if the accused did not intend to cause death or know that death was likely to result from their behaviour.

Anal intercourse

Q6. Why does this bill propose to repeal the anal intercourse offence (section 159)

Several appellate courts found that the offence violated equality rights in the Charter of Rights and Freedoms because it treated consensual anal intercourse differently from other consensual sexual activities.

Q7. Given that anal intercourse was already being dealt with in Bill C-32, why is it included here?

A single bill combining similar provisions that have been found unconstitutional simplifies processes for Parliament.

Q8. Are the proposed amendments to section 159 in this bill any different from the ones proposed in Bill C-32?

No. The proposed amendments are the same. This bill would replace Bill C-32 and would repeal the offence of anal intercourse.

Spreading False News

Q9. What did section 181 of the Criminal Code prohibit?
  • Section 181 made it a crime for any person to willfully publish a statement, tale or news that the person knew was false and that caused or was likely to cause injury or mischief to a public interest. The maximum penalty for this crime was two years imprisonment.
  • This offence had its origins in 13th century England and was, as the Supreme Court noted, “intended to protect the mighty and the powerful from discord or slander.”
Q10. Why did the Supreme Court of Canada rule that the crime was unconstitutional?

In R v Zundel (1992), the Court held that the offence violated freedom of expression (section 2(b) of the Charter).

Q11. Does Canada have other laws to deal with false news?
  • Yes. In fact, Canada has some of the strongest laws and other measures in the world to deal with such issues. For example:
  • The hate propaganda provisions in sections 318 and 319 of the Criminal Code can be used to deal with false news that promotes hatred.
  • The defamatory libel provisions in section 300 of the Criminal Code prohibit people from knowingly publishing false information that has been designed to insult or that is likely to harm the reputation of someone.
  • Federal regulations such as section 8(1) of the Broadcasting Distribution Regulations prohibit radio and television broadcasters from broadcasting false or misleading news and abusive comments that are likely to expose persons to hatred based on listed grounds.
  • Some provincial laws, such as section 14 of Saskatchewan’s Human Rights Code, prohibit publications that are likely to expose groups to hatred).
  • Some provincial laws provide civil means to deal with libel of racial, religious or other groups (for example, section 19 of Manitoba’s Defamation Act).
  • Various codes of practice direct certain professionals not to propagate false news or hate propaganda (for example, the Canadian Association of Journalist’s Ethics Guidelines).

As part of its ongoing review of the criminal justice system, the Government will consider whether additional measures are needed to address the issue of spreading false news.

Vagrancy

Q12. Why does this Bill propose to repeal one of the Criminal Code’s vagrancy offences (paragraph 179(1)(b))?
  • This provision prohibited a person convicted of a serious personal injury offence or a sexual offence, including a child sexual offence, from loitering in or near a school ground, playground, public park or bathing area.
  • In R v Heywood (1994), the Supreme Court of Canada held that this offence violated section 7 (life, liberty and security of the person) of the Charter because it was overbroad- that is, it applied to more situations than necessary to achieve its purpose.
  • There are other Criminal Code provisions that provide comprehensive protection to children from sex offenders including, for example, section 161, requiring a sentencing court to consider imposing a prohibition order to prevent a child-sex offender from going to a public park or swimming area where children can reasonably be expected to be present.

Impaired Driving

Q13. How did the impaired driving presumptions work?
  • These provisions helped prosecutors prove a driver’s blood alcohol concentration (BAC).
  • They required the accused to point to some evidence to show three things in order to rebut a presumption that their BAC, at the time of testing, was the same as at the time of the alleged offence.
  • If the accused could not do so, the presumption could have been relied upon by the prosecution to help establish an impaired-driving offence.
Q14. Why were these provisions found unconstitutional?
  • In R v. St-Onge Lamoureux (2012), the Court found that placing the first burden on the accused (i.e., to point to evidence of (breath) instrument malfunction or improper operation of an approved instrument) is constitutional. However, the second and third burdens placed on the accused are not constitutional, namely: to show that the malfunction or improper operation resulted in the BAC reading being “over 80” and to show that the BAC would not have been over 80 at the time that the alleged offence occurred.
  • The effect of this was that an accused could have been found guilty even where there was a reasonable doubt as to their guilt.

Pre-Sentencing Custody

Q15. What does subsection 719(3.1) of the Criminal Code do?
  • It was enacted in 2009 to set limits on the amount of credit a court could give for the amount of time an offender spent in custody prior to sentencing.
  • As a general rule, it set the amount of credit at a rate of 1 day for every day spent in custody.
  • Judges could provide up to 1.5 days of enhanced credit where circumstances justified doing so, unless an accused was detained primarily because of a previous conviction or because they breached a condition of bail.
Q16. Why was part of this provision struck down by the Supreme Court of Canada?
  • In R v Safarzadeh-Markhali (2016), the Court found that the previous conviction exception unjustifiably violates section 7 of the Charter (right to life, liberty and security of the person) because it is overbroad in denying enhanced credit to offenders for reasons that are unrelated to the legislative purpose of enhanced public safety and security.
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