Canada's Original Think Tank

Message from the House of Commons to not insist on the Senate’s amendment to Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act

Message from the House of Commons to not insist on the Senate’s amendment to Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act

Message from the House of Commons to not insist on the Senate’s amendment to Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act

Hon. Lillian Eva Dyck: 

Honourable senators, I rise to say a few words on this motion, like my colleagues before me.

Thank you, Senator Pate and Senator C. Deacon. You have given absolutely tremendous speeches on this important issue.

I, too, was disappointed in the government response. My thoughts this afternoon are basically that the government appears to be abdicating their legislative responsibility. I say that for two reasons. First, they have focused on a private member’s bill, Bill S-337, saying we need to take action on that rather than action on their own government bill, Bill C-51. They should be taking action forward. They shouldn’t be relying on a private member’s bill. To me that’s abdicating responsibility.

Second, focusing on the issue of trying to find guidance from appellate courts is abdicating your responsibility. Appellate courts are not the bodies assigned the legislative responsibility.

Honourable senators, I cannot help but think back to when we were dealing with Bill S-3 on changes to the Indian Act, which were meant to remove all gender discrimination. In that case, the government took a similar approach in which they had a court decision that said they had to fix the Indian Act by December 2016. What did they do? They took a narrow action. They didn’t remove all of the problems; they removed some of the problems.

That’s pretty much what’s happening here in Bill C-51. They’ve taken a narrow action. They haven’t done the complete job, so, of course, people are disappointed. They wanted to see this filled out. Senator C. Deacon’s comments about our young people not knowing what consent means is important not only to the boys and the girls but to both sexes. They have to know what are the legal ramifications.

In Bill S-3, the government took this narrow approach, like they are doing here, and we received the bill. We didn’t like it. We sent it back. They had to get an extension. We still didn’t like it. They had to get another extension. During the deliberations of the court, when they were looking at the granting of extensions, the court decisions said, for instance, that when Parliament chooses not to consider the broader implications of judicial decisions by limiting their scope to the bare minimum, a certain abdication of legislative power in favour of the judiciary will likely take place. I would argue that’s exactly what’s happening here. It’s a similar situation, where the government has not taken up its legislative power. It’s leaving it up to the courts to decide.

In this decision, Justice Chantal Masse goes on to say:

In such cases, it appears that the holders of legislative power prefer to wait for the courts to rule on a case-by-case basis before acting, and for their judgments to gradually force statutory amendments to finally bring them in line with the Constitution.

From the perspective of Canadian citizens, all of whom are potential litigants, the failure to perform this legislative duty and the abdication of power that may result are obviously not desirable.

I would say those words also apply to what’s happening here with Bill C-51 as they applied to Bill S-3. The government has given up its powers to the courts, and I don’t think that’s the right way to go.

Another decision states:

Courts are not and should not be the only ones bearing the responsibility of innovating to protect fundamental rights and the rule of law, even if they hold a central role as guardians of the Canadian Constitution.

So, the government took this narrow view. We have experts, as Senator Pate pointed out, and affected people contacting us and saying it needs to be changed. Yet, we have not done that. Senator Colin Deacon knows these statistics very well. We have let down thousands and thousands of women who are vulnerable to violence. We have let down the youth because we have to let our youth know what the laws are. What is consent? Our young people need to know. It’s deeply disappointing. When are we ever going to take that stance?

I will vote against accepting the message from the House of Commons. Thank you.