The New C-51: Charter-proofing, Witchcraft and Sexual Assault Updates

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Last week federal Justice Minister Jody Wilson-Raybould introduced Bill C-51 in the House of Commons. The Act is the government’s next step to modernize Canada’s Criminal Code, render future legislation compliant with the Charter of Rights and Freedoms and update criminal provisions around sexual assault.

The legislation—not to be confused with last Parliament’s C-51—would amend the Department of Justice Act to oblige present and future federal justice ministers to include a Charter certification with all government legislation: “a statement of the Bill’s potential effects on the rights and freedoms guaranteed by the Canadian Charter,” reads the Act’s legislative summary. The obligation to provide these certifications would not be enforced by specific legislative or regulatory mechanisms, though officials contend that there will be a political obligation for ministers to follow through.

The Act would also repeal a number of summary conviction provisions judged obsolete. Provisions in the Criminal Code that prohibit people from fraudulently pretending “to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration” or pretending based on “his skill in or knowledge of an occult or crafty science to discover where or in what manner anything that is supposed to have been stolen or lost may be found” would be removed.

In a similar vein, the Act would strike out a provision prohibiting blasphemous libel, which has yielded no criminal conviction for more than 80 years and may constitute a violation of the Charter’s 2(b) freedom of expression protection.

The current provision reads: “Every one who publishes a blasphemous libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.” The last conviction based on the provision was in R. v. Rahard, the 1935 trial of an Anglican priest in Montreal for publishing libelous claims about Catholics such as: “Judas repented and threw money away; the Roman priests do not repent and keep the money. Now what do you think of the papist religion?”

One can readily imagine why the Department of Justice no longer sees criminal prohibitions on such statements to be of much use.

Finally—and perhaps most significantly—C-51 would codify that a person is incapable of consenting to sexual activity while unconscious, clarify the current restrictions on using mistaken belief as a defence in a sexual assault context and set up parameters on the elements of a complainant’s background that can be raised at trial. This move would develop “rape shield” provisions that prohibit the admission of prior sexual histories where such admissions are employed to suggest that the complainant consented.

Factors judges would need to consider when deciding whether to admit evidence in sexual assault cases would expand to include: “society’s interest in encouraging the obtaining of treatment by complainants of sexual offences, whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case […] the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury, the potential prejudice to the complainant’s personal dignity and right of privacy, the right of the complainant and of every individual to personal security and to the full protection and benefit of the law.”

NDP justice critic Alistair MacGregor said the bill is promising on all fronts: “While it’s important to examine the legislation closely, at first glance I’m pleased to see measures that could have significant benefits for survivors of sexual assault and strengthen laws to prevent sexual assault,” he told the Hill Times. “Additionally, the proposal to remove outdated sections of the Criminal Code, including provision around witchcraft, is long overdue. I’m also encouraged that the government will provide Canadians with assurances that the legislation that they table will not contravene Canada’s Charter of Rights and Freedoms.”

Minister Wilson-Raybould said that the bill is part of a “long-term plan” to “make our criminal laws fairer, clearer, and more relevant, accessible, and compassionate.”

This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.