Hon. Serge Joyal:
Honourable senators, I want to say at the outset that I support the objective of Bill C-66, but I have some reflections to share with you this afternoon, especially following the address made by Senator Andreychuk.
I want to draw your attention to the preamble of the bill. I want to read the second preamble because it’s where my concern lies:
. . . whereas the criminalization of an activity may constitute a historical injustice because, among other things, were it to occur today, it would be inconsistent with the Canadian Charter of Rights and Freedoms.
The point is, were it to occur today, it would be inconsistent with the Canadian Charter of Rights and Freedoms.
When I read that, I asked myself what happened in the past that was seen in those days as intolerable — because it was the norm to measure sexual conduct that in those days would be seen intolerable — and that today would be seen as acceptable within the confines of the Canadian Charter of Rights and Freedoms.
The first case that came to my mind was the Labaye case in 2005, the famous — and I will use the common word that describes the situation — swinging case. That is the decision of the Supreme Court that recognized that to be a member and active within a swinging club is totally within the confines of the rights of a person within the context of the Charter of Rights and Freedoms. But the courts determine very specific criteria.
You have to be an adult, so it is determined by age. You have to be a consenting adult, and nobody coerced you to be there. You have that activity without being paid, so you’re not there for prostitution. And you have to be in a position of not being armed, psychologically or physically, by the fact that you are a witness or you are part of these sexual activities going on.
Honourable senators, sexual relations are an intensely personal, religious and age-sensitive matter. It’s not me who says this, it was the Chief Justice of the Supreme Court of Canada in the Labaye decision.
When I read the bill and I looked at the schedule at the end of it, I asked myself: Being part of a sexual activity in the protected context that I have described to you, which has been defined by the Supreme Court as being the parameters of what is legal, why, if I have been found guilty before of being in such a place, should I not benefit from the objective of this bill, which is to erase my criminal record?
My reflection with you, and that’s what I would suggest, is that the committee studying this bill look into it very carefully. And there has been a decision of the Supreme Court interpreting the activities of bawdy houses that are acceptable. We have had the Bedford case, you will remember. Many of us were voting on the bill that gave way to the decision of the Supreme Court in the Bedford case. That is a little older, 2005, so it was 13 years ago. So people’s minds evolve to a point. And that’s what the court says in this decision, quite clearly. Through the Labaye decision, the Supreme Court changed the criteria of what is acceptable from the tolerance of society versus the harm done to the person.
So when you ask yourself today, what is in sync with the Charter of Rights and Freedoms, it’s not what is considered tolerable by society, it is the harm done to a person, either the one who was involved, or that the public that could see it, that is a witness to it. That’s why there are barriers that the Supreme Court has that are well placed and well defined in relation to obscenities.
I’m looking at my colleague, Senator Andreychuk. She will remember the decision of the court in the Little Sisters case, the seizures of those magazines by the owner of that shop in Vancouver. What was in those days a criminal offence is something that is accepted today.
I would suggest that the committee, when it does its study of the schedule of this bill, look very carefully at the decisions of the Supreme Court which have determined that in the past, the court has redefined the criteria. And if we are in sync with the second preamble, were it to occur today, it would be inconsistent with the Canadian Charter of Rights and Freedoms, I hope that this is the test that the committee will apply to those decisions and some others that came from the Supreme Court that determined what is acceptable today.
Those persons who were found guilty in the past and have a criminal record in the context of same-sex intercourse should have access to this bill to have their criminal record expunged. That’s my preoccupation with this bill.
I understand four professors made a study of the bill and came up with some suggestions. I think they are worth looking into very carefully by the committee to determine if the committee should not add, in the schedule, those clauses of the bill whereby people of the same sex, LGBTQ, are not today more exposed to have a criminal record than they should be because of those decisions from the Supreme Court.
Honourable senators, I think the Human Rights Committee will study this bill. I am not sure. But I hope that the committee will look very carefully into the context of today, especially looking into what the objective of this bill is, which is to right the wrong. Let’s right the wrong of what we know today is acceptable and is not criminal in order to make sure that the bill is in sync with the norm of society today in relation to the objective of the bill.
I hope that the committee will have that opportunity to listen to those four professors because I understand that, in the other place, the bill passed through all stages in 15 minutes. Nobody had an opportunity to reflect upon it. I don’t think that’s the way, in the Senate, that we like to look into bills and determine the scope of a bill in relation to its objective and the way that the Supreme Court has determined what the law of the land is in relation to same-sex consent in the context of the protection, given no coercion, no money paid, no harm done, not in public. Well, if it is those criteria that we have to apply, I think they should be reflected in the bill.
The Hon. the Speaker: Will you take a question, Senator Joyal?
Senator Joyal: Yes.
Senator Andreychuk: Note that both Senator Cormier and Senator Joyal referred to the four professors, but there is a provision that is troublesome to me. That’s the order-in-council to extend the list. On the one hand, I want to know what that means and open-ended. I’m not sure I want to give the right of Criminal Code procedures to be circumvented by an order-in-council. That’s one concern.
On the other hand, it would be a way to include the issue of the bawdy houses that you were referring to. So you have no objections to it being listed in the future?
Senator Joyal: No. I think, as I said, honourable senators, taking into account the decision of the Supreme Court that is very clear. It’s written by the Chief Justice herself on behalf of a majority court. I think there were seven judges that concurred with the Chief Justice. It’s worth reading the decision because it’s very clearly explained. The criteria are very clearly explained. It’s didactic in the way of explaining the shifting of the norms, of what it was before and what it is now. As I say, that was almost 13 years ago. The jurisprudence has evolved.
I think that, if the committee could look into that case, especially this one and the Little Sisters case on the issue of obscenity, I think it would be very helpful if the schedule could be amended to reflect the state of the law today and not in relation to what it was, only for specific sections of the Criminal Code.
That’s why I think that the committee would be well positioned to go further and, as you say, answer part of your queries that, in fact, it’s open-ended, without knowing too much on which ground we are moving.
I think that there are cases that give us certainty about what the list should be containing.