Questions and Answers - Cleaning up the Criminal Code, Clarifying and Strengthening Sexual Assault Law, and Respecting the Charter

Q. What would this Bill do?

This Bill reflects the Government’s unwavering commitment to promoting respect for the Charter and to protecting Canadians from sexual or gender-based violence.

It is an important next step in the Minister of Justice’s ongoing review of the criminal justice system and would amend the Criminal Code to:

• clarify and strengthen sexual assault laws;
• remove or modify provisions that have been found to be unconstitutional and make other Charter-related reforms; and,
• remove obsolete or redundant criminal laws.

It would also amend the Department of Justice Act to require the Minister of Justice to table a “Charter Statement” in Parliament for all government bills, identifying a bill’s potential effects on Charter rights and freedoms.

Criminal Code Reforms

Q. How many offences would be repealed by this initiative?

This Bill would repeal 20 offences in the Criminal Code.

It would also amend an additional 32 offences to remove reverse onus provisions.

Sexual Assault

Q. What amendments are being made to the sexual assault laws?

The proposed legislation would clarify certain circumstances where consent cannot be obtained and where the defence of mistaken belief in consent will not available to an accused.

It would also introduce clear rules for the admissibility of certain types of evidence and clarify that the complainant is entitled to be represented by legal counsel at proceedings in relation to the admissibility of certain types of evidence.

Q. Why are these amendments being made now?

The Government is committed to ensuring that victims of sexual assault and gender-based violence are treated with compassion, dignity and respect.

As recent media reports have highlighted, the ability of the criminal justice system to respond effectively to instances of sexual assault is a continuing concern. Clarifying and strengthening the law may help to address some of these concerns.

These changes are part of a broader government approach to addressing gender-based violence, which includes the establishment of a National Strategy to Address Gender Based Violence, as detailed in Budget 2017.

Q. Is there more that can be done to make it easier for victims to come forward and be believed?

In large measure, the amendments proposed in this Bill seek to clarify aspects of the law that have been confirmed by the Courts, including the Supreme Court of Canada. These changes may help to prevent misapplications of the law. In other instances, the amendments provide additional protections for complainants, hence making it easier for victims to come forward and be believed.

Other work is ongoing in this area, which is a reflection of the shared concerns of many in the criminal justice system about this problem.

Q. What amendments are proposed with respect to the legal issue of consent?

The Criminal Code makes clear what constitutes consent through both a definition (i.e., the voluntary agreement to the sexual activity in question) and a list of circumstances when consent has not been lawfully obtained.

For example, the Criminal Code currently states that no consent is obtained where the complainant is incapable of consenting.

The proposed amendment would make clear that there is no consent when the complainant is unconscious, in accordance with the Supreme Court of Canada ruling in J.A. (2011).

Q. What is the defence of mistaken belief in consent and how is it being amended?

Currently, the law allows the defence of mistaken belief in consent to be used when the accused made a mistake of fact regarding the complainant’s consent. The defence cannot, however, be based on a mistake in law (e.g., if the accused believed that consent was obtained in a case where it was given as a result of threats).

The amendment would make clear, in accordance with the Supreme Court of Canada ruling in Ewanchuk (1999), that the defence cannot be used if the accused’s belief is based on a mistake in law. This would help to avoid misapplications of the current law.

Q. How would the amendments proposed in this Bill help to protect victim’s privacy?

The Bill would fill a gap in the 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 would complement existing procedures that apply when the accused seeks to obtain such records held by persons other than the Crown.

This change implements a recommendation of the Standing Senate Committee on Legal and Constitutional Affairs in their 2012 report on third-party records in sexual assault proceedings.

Provisions found unconstitutional by courts, or similar to ones found unconstitutional

Reverse Onuses

Q. What is a reverse onus?

A reverse onus is a legal provision that requires an accused person to prove or disprove something, such as an element of an offence or a defence.

Q. Why are reverse onuses a problem?

Under the Charter, everyone has the right to be presumed innocent until proven guilty beyond a reasonable doubt. Normally, the prosecution bears the burden of proving all aspects of the crime beyond a reasonable doubt, including the inapplicability of any defences that are raised.

When a reverse onus applies, the accused must prove the relevant element on what is called a “balance of probabilities.” This may result in cases where an accused might nevertheless be convicted even though there is a reasonable doubt as to their guilt.

Q. How many offences with reverse onuses are being amended in this Bill?

This Bill proposes to remove reverse onus requirements from 32 offences.

Most of these offences relate to the possession of certain types of objects or instruments of crime and are infrequently charged.

Q. Won’t it make it harder for the police to lay charges and harder for prosecutors to get convictions if the reverse onuses are removed?

No. The removal of the reverse onus does not change the nature of what is criminal conduct, or what could be a lawful excuse. In any case where the police have reasonable grounds to believe that a crime has been committed, they can lay charges.

Some of the reverse onuses that are being repealed have already been found to be inoperative by appellate or trial level courts, and are no longer applied. The remaining ones are very likely to be treated in a similar fashion by the courts.

Removing these reverse onuses could spare the justice system costly and time-consuming Charter challenges. It would also bring our laws more closely into alignment with Charter rights protections, and would not adversely impact public safety.

Evidentiary Presumptions

Q. What is an evidentiary presumption?

An evidentiary presumption is a short-cut that is designed to make prosecutions easier. It allows a prosecutor to prove something that is part of the crime, by proving some other fact that is not part of the crime, but which is related to it.

Q. What is the problem with evidentiary presumptions?

In some cases, an evidentiary presumption could result in a conviction even if there is reasonable doubt about an accused’s guilt. In such cases, they limit the Charter right to be presumed innocent until proven guilty.

Q. How are evidentiary presumptions being amended in the Bill?

The Bill would remove certain evidentiary presumptions altogether, like the presumptions applicable to gambling offences, and amend others to remove only the part that raises Charter concerns. The majority of evidentiary presumptions being removed or amended relate to gambling offences, theft and the possession of property obtained by crime.

Q. Won’t removing these short-cuts make it harder to lay charges and convict offenders?

No. The presumptions that are being removed or amended are ones that have already been found to be unconstitutional by provincial courts of appeal, or that are not being relied upon because they are similar to ones that have been found unconstitutional.

These proposed changes would not have a negative impact on public safety.

Redundant or Obsolete Offences

Q. How can we say which offences are redundant or obsolete?

Many offences in our Criminal Code were enacted long ago, to respond to particular social problems that no longer have relevance in modern Canadian society.

It is an important principle that the Criminal Code only be employed when other means of social control are inadequate or inappropriate.

Q. What offences are being repealed because they are obsolete?

This Bill would repeal a number of offences including:

• Challenging someone to a duel (section 71);
• Advertising a reward for the return of stolen property “no questions asked” (section 143);
• Possessing, printing, distributing or publishing crime comics (paragraph 163(1)(b));
• Publishing blasphemous libel(section 296);
• Fraudulently pretending to practice witchcraft (section 365); and,
• Issuing trading stamps (section 427).

Q. Aren’t you leaving a gap in the criminal law by removing these offences?

The offences being removed are either no longer necessary or relate to conduct that can continue to be addressed through other Criminal Code offences of general application.

Q. Why remove the offence of blasphemous libel?

This offence has its origins in 17th century England and was directed at attacks against Christianity.

Canada’s Charter protects the right to equality, and freedom of religion, belief and expression. This offence does not appropriately reflect these values.

The last reported decision for this offence was 1936 and England’s blasphemy offence was repealed in 2008.

Pre-Sentence Custody

Q. What change is being made to the credit for pre-sentence custody regime?

The rule that prevented judges from granting enhanced credit for pre-sentence custody because of a bail breach would be repealed. It has been found unconstitutional by some courts, including the Manitoba Court of Appeal, because it was too broad.

Q. Both Bill C-39 and this bill propose to amend the same provision related to pre-sentence custody. What is the difference between the two proposed amendments?

Subsection 719(3.1) provides that a judge can order enhanced credit for time served in custody prior sentencing, except in two specific situations. The first exception is when the accused is detained primarily because of a previous conviction. The second is when the accused has been detained mainly because of a breach of a bail condition.

Bill C-39 (introduced on March 8, 2017) proposes to repeal the exception related to previous convictions because it was found unconstitutional by the Supreme Court of Canada.

This bill would repeal the bail breach exception, which some courts have also found to be unconstitutional.

The two exceptions create a situation where an offender detained in pre-sentence custody — which is not subject to parole and early release provisos — could spend more time behind bars, despite being presumed innocent, than an identically situated offender released on bail who eventually pleads or is found guilty.

Q. Why weren’t the two amendments to the same provision introduced in the same bill?

The priority of Bill C-39 was to address provisions that had been found unconstitutional by the Supreme Court of Canada and are no longer in effect.

This bill addresses other provisions that also raise Charter concerns. In doing so, it would help to avoid further expensive, time-consuming litigation to achieve the same result.

Amendments to the Department of Justice Act

Q. What are Charter Statements?

A Charter Statement is a document that outlines a bill’s potential effects on Charter-guaranteed rights and freedoms. Where relevant, it also explains why potential limits on rights or freedoms may be justifiable.

Q. Why are Charter Statements important?

Charter Statements support the Government’s commitment to be open and transparent. Canadian laws must conform to the Charter. If they limit rights or freedoms, it must be for a very good reason.

Charter Statements would help to inform Parliamentary and public debate about proposed legislation by identifying a bill’s potential effects on Charter rights and freedoms and by explaining how any limits on these rights or freedoms could be considered constitutional.

Q. The Government has already been tabling Charter Statements for new legislation. How is this different?

The Minister of Justice has been tabling Charter Statements for bills that she has introduced since the beginning of her mandate. However, there is currently no legal requirement for her to do so.

This proposed legislation would create a legal duty for the Minister of Justice to table a Charter Statement for all government bills introduced in Parliament, including those introduced by other ministers.