In accordance with the Canadian Charter of Rights and Freedoms (the Charter),1 Canada’s justice system ensures individuals charged in criminal cases are protected by important legal safeguards. These are necessary in part because of the significant consequences that actions by the state and court decisions can have on individual rights and freedoms. For the same reason, many decisions in criminal matters can be appealed as of right to appellate courts and the Supreme Court of Canada (i.e., without having to demonstrate an error in the lower court decision, or some other ground for appeal).2 Thus, appellate courts are frequently called upon to interpret issues pertaining to evidence, procedure and law, particularly with a view to assessing their compliance with the Charter.3 This has created a large body of case law that represents an ongoing dialogue4 between the courts and Parliament whereby they seek to resolve these often complex issues.
The purpose of this publication is to identify links between certain criminal law bills introduced during the 42nd Parliament and their origins in the jurisprudence. To do this, all criminal law bills that received Royal Assent during the 42nd Parliament were reviewed and the key ones chosen for inclusion in this paper.5 However, this process did not involve systematically analyzing all the proposed amendments.
It would appear that the goal behind these legislative amendments is to ensure that the criminal law is Charter-compliant, so that persons charged with criminal offences can fully exercise their constitutional rights.
Bill C-14 was introduced in the House of Commons on 14 April 20166 in direct response to the Supreme Court of Canada’s Carter decision of 6 February 2015.7 In this case, the Supreme Court found that sections 241(b) and 14 of the Criminal Code, which made it illegal to aid or abet a person to commit suicide, violated section 7 of the Charter
insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.8
The Supreme Court’s declaration of invalidity was initially suspended for 12 months, then extended until 6 June 2016, a few months after the start of the 42nd Parliament.9 As stated by the then Minister of Justice,
[f]rom the start, we have known from the Supreme Court of Canada’s unanimous Carter decision, that it is not about whether or not to have medical assistance in dying; it is about how we will do it. … With all of this in mind, and in appreciating the limited time frame we have had to respond to the Carter decision, our government has chosen an approach that respects both the charter and the needs and values of Canadians.10
Bill C-14 set out the requirements for providing medical assistance in dying (MAID) and established exemptions to various Criminal Code offences for physicians, nurse practitioners, pharmacists and certain other persons who provide or assist in the provision of MAID.11 The bill received Royal Assent on 17 June 2016.
One of the effects of bills C-51 and C-75 (which reproduced the content of Bill C-39)12 was to repeal and amend the Criminal Code provisions that had been declared unconstitutional by the Supreme Court of Canada and certain courts of appeal.13 These provisions included the repeal of section 287 (abortion), which was declared unconstitutional in R. v. Morgentaler in 1988, and section 159 (anal intercourse), which was declared unconstitutional in both R. v. C.M. in 1995 and R. v. Roy in 1998.14 As described in the Charter Statement for Bill C-39,
[p]arliamentary repeal or amendment of invalid legislation can be considered a final step that fully vindicates the rule of law, since it ensures that the law “on the books” reflects the actual state of the law in Canada.15
Failure to repeal or amend unconstitutional provisions in the consolidated Acts can have serious consequences. For example, in 2016, Travis Vader was convicted of second-degree murder under a provision that the Supreme Court had declared unconstitutional more than 25 years earlier.16 Bill C-51 received Royal Assent on 13 December 2018 and Bill C-75 on 21 June 2019.
Bill C-46 was introduced in the House of Commons on 13 April 201717 partly in response to certain Supreme Court of Canada decisions regarding impaired driving. As impaired driving is one of the areas of criminal law most frequently litigated before the courts, the Criminal Code has consequently been amended on several occasions over the years in response to rulings in this area.18 Specifically, Bill C-46
However, it should be noted that the reforms introduced in Bill C-46 went beyond the codification of certain court decisions.22 Indeed, Part 2 of the bill (which came into force in December 2018) reformed the Criminal Code provisions governing offences in relation to modes of transportation to “create a new, modern, simplified, and more coherent system to better deter drug and alcohol-impaired driving.”23 Bill C-46 received Royal Assent on 21 June 2018.
Bill C-75 was introduced in the House of Commons on 29 March 2018 partly in response to the Supreme Court of Canada decisions in Jordan and Cody on 8 July 2016 and 16 June 2017, respectively.24 In Jordan, the Supreme Court established a new analytical framework to determine whether the right of the accused to be tried within a reasonable time, pursuant to section 11(b) of the Charter, has been infringed.25 This decision was subsequently confirmed unanimously in Cody. In Jordan, the Supreme Court found that
[a]s a result [of a culture of complacency], participants in the justice system – police, Crown counsel, defence counsel, courts, provincial legislatures, and Parliament – are not encouraged to take preventative measures to address inefficient practices and resourcing problems.26
A number of times in their reasons for judgment in this case, the majority noted that Parliament and the provincial legislatures will have to act on this decision in order to take “a fresh look at rules, procedures, and other areas of the criminal law.”27 Bill C-75 was intended to make the criminal justice system more modern and efficient and to thus reduce delays in criminal proceedings. It brought in numerous changes, such as reclassifying a number of criminal offences, restricting the availability of preliminary inquiries and modernizing bail procedures.28 The bill received Royal Assent on 21 June 2019.
Bill C-84 was introduced in the House of Commons on 18 October 2018,29 partly in response to the Supreme Court of Canada decision in D.L.W. on 9 June 2016.30 In this decision, the Supreme Court considered the fact that bestiality was undefined in section 160 of the Criminal Code and determined that sexual penetration was one of the essential elements of the offence and therefore did not capture other sexual acts. In this case, the accused was convicted of numerous sexual offences for acts he committed against his two stepdaughters. However, he was acquitted of the bestiality charge as penetration was not involved.
New section 160(7) of the Criminal Code (clause 1 of Bill C-84) defines “bestiality” as “any contact, for a sexual purpose, with an animal.”31 As a result of this new definition, the offence of bestiality now captures any sexual act involving an animal and a human, whether there is penetration or not. The bill received Royal Assent on 21 June 2019.
While there seems to be a renewed interest in criminal justice issues, particularly since Jordan, it appears that the primary purpose of many of the criminal law bills introduced during the 42nd Parliament was to implement court decisions. However, this conclusion must be tempered in light of bills C-46 and C-75, which brought in much broader reforms. That said, a number of reforms that had been announced and were therefore anticipated, including sentencing reform, have yet to be introduced.32
As acknowledged by the Department of Justice in a recent report on the review of Canada’s criminal justice system,
[i]n summary, the review found widespread recognition that our criminal justice system needs comprehensive reform, including greater flexibility to respond to criminality – and those affected by it – in new and different ways.33
The report also states that “our criminal justice system has become inefficient and, at times, crippled by delays. Some have described the Criminal Code as a patchwork of provisions that is out of touch with modern times.”34 This is nothing new, however. During the 42nd Parliament, for example, the Standing Senate Committee on Legal and Constitutional Affairs twice recommended that the federal government establish “an independent body of experts with a mandate to undertake a comprehensive and impartial review of the Criminal Code and provide recommendations for the modernization and reform of this law.”35 This call for reform was also made by nearly 50 criminal law professors from across the country in a December 2015 letter to the then Minister of Justice recommending that she conduct a comprehensive review of the Criminal Code and at the same time offering their cooperation. Among the signatories was Professor Coughlan, who believes it is critically important to undertake a “systematic, rather than piecemeal, reform” of criminal law.36 Specifically, he takes issue with the fact that the Criminal Code lacks a general part setting out the required mental element for a given offence. As the Supreme Court pointed out in 2015,
[r]egrettably, the Criminal Code often provides no clear direction about the required mental element for a given offence. It is therefore left to judges to attempt to divine the required mental element (also referred to as the degree of fault).37
A review of Supreme Court of Canada decisions shows that the criminal law is constantly evolving, in both common law and statutory law. Since the Supreme Court is frequently called upon to rule on complex issues, often involving individuals’ rights and freedoms, Parliament is constantly engaged in an ongoing dialogue with the courts. It is therefore in part to fulfill its responsibility to ensure that our laws are up to date and consistent with Charter rights that Parliament makes amendments to the Criminal Code in light of these court decisions, as it did during the 42nd Parliament.
† Library of Parliament Background Papers provide in-depth studies of policy issues. They feature historical background, current information and references, and many anticipate the emergence of the issues they examine. They are prepared by the Parliamentary Information and Research Service, which carries out research for and provides information and analysis to parliamentarians and Senate and House of Commons committees and parliamentary associations in an objective, impartial manner. [ Return to text ]
(5.84 MB, 21 pages), pp. 8–9. [ Return to text ] (1.56 MB, 23 pages), 10 May 2019. In his letter, the Minister of Justice and Attorney General of Canada referred to the fact that a “broad review of sentencing and sentencing reform that includes mandatory minimum penalties” was underway. [ Return to text ] (1.46 MB, 16 pages), Ottawa, 2019, p. 10. [ Return to text ] (6.44 MB, 211 pages), Final Report, June 2017, APPENDIX A – List of Recommendations, Recommendation 5, p. 194. [ Return to text ]© Library of Parliament