Pam Damoff

[Ethics, September 21st, 2017]

Mr. Speaker, the Leader of the Opposition has stated that he feels he should not be bound by the same ethical standards he demands of others in the House. He may have forgotten that his own party's changes to the Lobbying Act actually make him a designated public officeholder. This might explain the confusion about the Leader of the Opposition hosting secret fundraisers.

Could the Minister of Democratic Institutions tell the House what she is doing to pull the curtain on these types of fundraisers?

[September 19th, 2017]

Madam Speaker, I am thankful for the opportunity to speak in support of Bill S-231, an act to amend the Canada Evidence Act and the Criminal Code regarding the protection of journalistic sources, otherwise known as the journalistic sources protection act.

I would like to begin by thanking the Senate sponsor for his diligence and hard work on this very important bill, which aims to ensure that the protection of journalistic sources is given due consideration whenever they are at issue in Canadian courts. I would also like to thank my colleague opposite, the member for Louis-Saint-Laurent, for shepherding the bill through the House and his commitment to journalistic freedom. The bill has moved swiftly through the House, thanks to the broad support from all parties.

As we all know, this issue was brought to the forefront a little less than a year ago following events involving the use of investigative tools targeting journalists, in particular revelations that police in Quebec had obtained warrants to monitor the cellphones of several journalists. Following this incident, the Quebec government reacted swiftly and amended its guidelines and safeguards for obtaining warrants that target journalists. As a result, journalists are now listed alongside lawyers, judges, and members of the National Assembly for whom added safeguards and special protocols are in place in relation to warrant applications.

In November 2016, the Quebec government also launched the Chamberland commission to study the issue of the protection of journalists' confidential sources. The commission's hearings have recently concluded and the commission's final report is expected by next March. lt is in this context that Bill S-231 was introduced last November.

In essence, Bill S-231 proposes changes to the Canada Evidence Act and the Criminal Code to enact special regimes to protect confidential journalistic sources. The Canada Evidence Act proposals would create a unique regime applicable any time the media wished to protect a journalistic source. This new regime would codify the common law developed and interpreted through several Supreme Court of Canada cases, while introducing some added protections. For example, the bill would place the onus on the person who seeks disclosure of the information instead of the person seeking to protect the information, as is currently the case.

The Criminal Code proposals relate to how investigative tools, such as search warrants and protection orders, can be issued and executed when they target journalists. Although the goal of these proposals is to protect journalistic sources, the procedure will apply any time a journalist is targeted by an investigative tool. The bill also proposes a triage procedure that requires the sealing of evidence collected and a review by a court before the information is disclosed to the police. Finally, the bill proposes that only Superior Court judges can issue an investigative tool in relation to a journalist.

When the merits of the bill were debated in this chamber at second reading, members expressed support for the bill's laudable objective and solid foundation. Members also expressed the view that the bill could be further improved, bearing in mind the complexity of the law in this area.

This bill is being reported back to the House today with amendments adopted by the Standing Committee on Public Safety and National Security. It was a pleasure to study this bill at committee. I would like to take this opportunity to personally thank my committee colleagues from this side, as well as across the aisle, for their collaboration during the bill's study. The bill, as amended, truly reflects a multi-partisan initiative.

I will focus the remainder of my remarks on the substantive amendments made to Bill S-231 by the committee.

With respect to the amendment to the Canada Evidence Act provisions, the public safety committee deleted the override provision found in proposed subsection 39.1(2) from the Canada Evidence Act portion of the bill. The override provision was problematic because it could conflict with other federal legislation, including matters of privacy and national security. We also did not think it was necessary to give effect to the protections for journalistic sources contained in the bill.

The committee also amended the test found in proposed subsection 39.1(8) of the Canada Evidence Act portion of the bill for the disclosure of information or a document that identified or was likely to identify a journalistic source.

In essence, Bill S-231 has been amended to replace the reference to “the essential role of the information or document in the proceeding” with “the importance of the information or document to a central issue in the proceeding”, as this more accurately reflects the common law as confirmed by the Supreme Court of Canada.

The committee also improved the bill by moving the condition added by the Senate at committee at proposed paragraph 39.1(8)(c), which relates to whether “due consideration was given to all means of disclosure that would preserve the identity of the journalistic source”, to a new proposed subsection 8.1, separate and apart from the test for authorizing disclosure. I think this should strengthen the protection, since it ensures that the source's identity is protected as a separate step, even when the document in question is admissible.

The public safety committee also made a few, and in my view, important improvements to the bill's proposed changes to the Criminal Code. First, the committee amended proposed subsection 488.01(2) so that it would not apply, despite any other act of Parliament. As I mentioned earlier, such an override provision is not necessary to give effect to the protections for journalistic sources contained in the bill and could conflict with other federal legislation, including in matters of national security. Proposed section 488.03 was also removed from the Criminal Code portion of the bill, for the same reason. These are sensible amendments, and I agree with them.

The committee also added a knowledge element to proposed subsection 488.01(2). As originally drafted, this subsection would have required that a warrant, authorization, or order relating to a journalist only be issued by a judge of a superior court, regardless of whether police were aware that their investigation related to a journalist. This is problematic, because in practice, for example in relation to online crime, police may not know the identity of the person they are investigating. If police do not know that they are investigating a journalist, they cannot be expected to follow these new requirements that would have been imposed by Bill S-231, as introduced, when obtaining a warrant, authorization, or order. I therefore agree with the amendment of proposed subsection 488.01(2) to ensure that it only applies if police know that they are seeking a warrant, authorization, or order in relation to a journalist.

Importantly, the committee also amended the bill to add a new process to confirm the validity of a warrant, authorization, or order issued outside of Bill S-231's new regime—in other words, obtained in good faith under the regular process—in the event that an officer subsequently discovered that the target of the investigative tool was a journalist. According to this new process, once they became aware that the warrant related to a journalist, police would be required to, first, inform a judge of the superior court; second, refrain from examining or reproducing the evidence; and finally, seal it until the superior court judge disposed of the application. The superior court judge would have the ability to confirm the existing warrant, vary it, and impose appropriate conditions to safeguard journalistic sources or revoke the order if the judge was of the opinion that the officer knew, or reasonably ought to have known, that the application related to a journalist.

The importance of this amendment cannot be overstated, because it would allow appropriate measures to be taken to protect the confidentiality of journalistic sources, even in cases where a warrant was issued in good faith outside of Bill S-231's regime.

Finally, the last key amendment made by the public safety committee is the addition of proposed subsections (4.1) and (4.2) to proposed section 488.01 of the Criminal Code to ensure that the new test for the issuance of warrants, authorizations, or orders relating to journalists would not apply when the application relates to a journalist's criminal activity. This amendment recognizes that it should not be more difficult for police to obtain a warrant against a journalist if that journalist is engaged in criminal activity.

I believe that these targeted but important amendments are perfectly in keeping with the spirit and important objectives of Bill S-231. I hope that all members support this bill, as amended, with bipartisan support, by the Standing Committee on Public Safety and National Security.

[Terry Fox Run, September 18th, 2017]

Mr. Speaker, after losing his leg to osteogenic sarcoma, Terry Fox embarked on a cross-country Marathon of Hope to raise money for cancer research. Today, the Terry Fox Run is the largest single-day cancer fundraiser in the world, raising over $750 million for cancer research to date.

Yesterday, Canadians participated in the 37th annual Terry Fox Run. In Oakville, brave Terry Foxer Teagan Walsh sounded the horn to start the run. She is being treated for the same cancer that Terry had. Teagan's progressive treatment has benefited from breakthroughs in cancer research, many made possible because of funds raised in Terry's name.

As we return to the House this week, our hearts are heavy with the loss of our colleague and friend, Arnold Chan. The Terry Fox Foundation is committed to funding leading-edge research and innovative treatments for cancers like Arnold's, Teagan's, and Terry's.

[Points of Order, June 19th, 2017]

Mr. Speaker, I am rising on a point of order to do with decorum in this House. I asked a question of the Parliamentary Secretary for Status of Women today, and in spite of the fact that he stands right in front of me, I could not hear his answer.

In 1982, Margaret Mitchell stood in this House and was heckled when she talked about violence against women. I would have hoped that 35 years later, members of this House would stop heckling when we are talking about gender-based violence. I should be able to hear the hon. member's answer to my question, especially with him sitting right in front of me.

[Public Safety, June 19th, 2017]

Mr. Speaker, far too many Canadians still face violence every day simply because of their gender expression, gender identity, or perceived gender. Our status of women committee, of which I am vice-chair, studied this issue, and I think we would all agree it is time for us to take action.

Budget 2017 committed $100.9 million for a gender-based violence strategy. Could the parliamentary secretary to the minister of status of women update the House on the status of this strategy?

[Committees of the House, June 16th, 2017]

Mr. Speaker, I have the honour to present, in both official languages, the 12th report of the Standing Committee on Public Safety and National Security in relation to Bill C-23, an act respecting the pre-clearance of persons and goods in Canada and the United States.

The committee has studied the bill and has decided to report the bill back to the House, with amendments.

[Criminal Code, June 15th, 2017]

Madam Speaker, I addressed a lot of my colleague's comments in my speech, but there is certainly a perception that things like consent, or no means no, will allow women to have confidence to come forward knowing that their concerns will be taken seriously by the justice system.

[Criminal Code, June 15th, 2017]

Madam Speaker, the hon. member is absolutely correct that it is difficult for many women to access the legal system.

In our study on violence against young women and girls, we saw that many of the challenges facing them are under provincial jurisdiction. Things like the availability of legal aid, training for crown prosecutors, and training for police officers fall under provincial jurisdiction. Much of the testimony we heard was outside the scope of the federal government.

That is why we asked the Minister of Justice, the Minister of Public Safety, and the Minister of Status of Women to work with their provincial and territorial colleagues to not only pass along the concerns that we have found but also to encourage them to look at making it easier for women to come forward and have access to the justice system. We never want a woman to feel that she is unable to come forward and that she will not be fully supported throughout the process.

[Criminal Code, June 15th, 2017]

Madam Speaker, it was actually the status of women committee that did the study. We had an abundance of testimony that all forms of violent and degrading sexual images of women contribute to sexual assault. It was not just limited to pornography. In fact, one witness testified that she had gone through over 300 studies on the issue and verified that whether it is a bus shelter ad or a music video, regardless of where violent and degrading images are seen, there is an impact on sexual assault. As a result, our recommendations reflected the testimony that we heard about all forms of violent and degrading sexual assault.

[Criminal Code, June 15th, 2017]

Madam Speaker, I will be splitting my time with the member for Yorkton—Melville.

I am pleased to speak in support of Bill C-51, and will focus my remarks on proposed amendments to the Criminal Code that pertain to sexual assault.

In light of testimony we heard at our status of women committee during our recent work on violence against women, this is extremely welcome legislation. I am pleased to see the work of our committee reflected in Bill C-51.

At the heart of the legislation, there is better protection for survivors of sexual assault. These proposed reforms flow from the complex legislative history in this area and must be understood in that context.

Major reform of the criminal law's approach to sexual violence began in 1983 and continued throughout the 1990s. These reforms were in response to concerns expressed by women and survivors groups, and to certain court decisions that were viewed as failing to adequately protect survivors of sexual assault, who were disproportionately women and girls. These legal reforms were intended to encourage reporting, improve the criminal justice system's response to reports, and change discriminatory views of complainants that resulted from myths and stereotypes about survivors of sexual violence and how a “true victim” was meant to behave.

The 1983 reforms introduced new gender-neutral sexual offences that captured a broader range of conduct, which focused on the level of violence used by the assailant, rather than the type of sexual act committed. Specifically, these reforms brought into force the three general sexual offences that we have in the Criminal Code today.

The 1983 legal reforms also brought into force Canada's first “rape shield” law that was designed to prevent the admission of evidence of a complainant's sexual history for an improper purpose.

Prior to 1983, evidence of the complainant's prior sexual activity was admissible in court to show that she was more likely to have consented to sexual activity or that she was less worthy of belief. Additionally, an accused was permitted to interpret a complainant's passivity as consent. These inferences, which were being applied in the courts, were based on harmful and discriminatory stereotypes about how women and survivors of sexual assault were meant to behave.

In 1991, the Supreme Court of Canada struck down the 1983 version of our rape shield law. In 1992, Parliament responded to the court by enacted the charter-compliant rape shield law that we have today. Specifically, then minister of justice, the Right Hon. Kim Campbell, amended the rape shield provisions to create two distinct rules. One categorically excluded evidence of a complainant's sexual history when it was introduced to infer one of the rape myths. The other presumptively excluded evidence of a complainant's sexual history when introduced for other purposes, unless specific criteria were met.

The 1992 amendments also included a clear and affirmative definition of consent as the “voluntary agreement of the complainant to engage in the sexual activity in question”, as well as the non-exhaustive list of circumstances in which no consent could be obtained in law, for example, where the complainant was incapable of consenting, or where she expressed a lack of agreement.

The 1992 amendments also limited the accused's ability to advance the defence known as “mistaken belief in consent”. The law is now clear that the defence is not available where the accused's belief in consent arose from self-induced intoxication, recklessness or wilful blindness. Nor is the defence available where the accused failed to take reasonable steps to ascertain that the complainant was consenting.

In 1997, the Criminal Code was again amended to prevent the accused from engaging in so-called fishing expeditions by seeking production of complainants' private records in order to undermine their credibility. The third party records regime was enacted as a specific response to the Supreme Court of Canada's 1995 O'Connor decision, which did not require consideration of sexual assault complainants' privacy rights in determining whether their private records that were in the possession of third parties should be produced in a sexual assault trial.

This “third party records regime” enacted by Parliament limits the accused's access to the complainant's private records. Consideration of the complainant's right to privacy must be considered when determining whether her private records should be produced to the accused, in addition to the accused's right to make full answer and defence.

Crucially, the Supreme Court upheld the third party records regime as constitutional in its 1999 Mills decision. The Supreme Court also clarified our existing sexual assault provisions in its 1999 Ewanchuk decision. In that case, the survivor was a 17-year-old woman who was sexually assaulted in a van by a man purporting to interview her for a job. The accused was acquitted at trial, and his acquittal was upheld by the Alberta Court of Appeal in an infamous decision involving a finding that consent was implied because the complainant failed to resist, she was sexually experienced, and she did not present herself to the accused, as one of the judges called it, in a bonnet and crinolines. Both the lower and upper courts acquitted the accused of sexual assault, despite the fact that the trial court found that the survivor clearly expressed her lack of consent a number of times.

The Supreme Court's decision in Ewanchuk overturned these findings and continues to state the law on sexual assault to this day. Specifically, the court held that there is no defence of implied consent to sexual assault. An accused is not entitled to interpret passivity as “yes”. Consent requires an affirmative communication of “yes” through either words or conduct, and “no” can never mean “yes”. The Ewanchuk standard of consent is often expressed as “only yes means yes”. In other words, there is no consent unless it is voluntary and clear and given without coercion, and it can be withdrawn at any time.

In clarifying the law in this regard, the Supreme Court found that the lower courts had improperly relied upon myths and stereotypes about sexual assault complainants that are not valid in Canadian law.

Finally, in the 2011 J.A. decision, the Supreme Court held that consent “requires the complainant to provide actual active consent through every phase of the sexual activity”, and that therefore it is not possible for an unconscious person to satisfy this requirement.

Unfortunately, we know that some of these myths and stereotypes have persisted despite these Supreme Court decisions. The proposed amendments in this bill are therefore aimed at clarifying the law to assist in avoiding its misapplication.

Consistent with previous Supreme Court decisions, they would clarify that no consent is obtained if the complainant is unconscious; that the accused cannot advance the defence of mistaken belief in consent where that belief is based on a mistake of law—for example, because the accused believed that valid consent can be obtained even when the complainant expresses lack of consent; that the rape shield provisions never allow an accused to adduce evidence of a complainant's prior sexual activity to support any of the rape myths; and that for the purposes of the rape shield provisions, prior sexual activity includes communications made for a sexual purpose or whose content is of a sexual nature, which would include emails or text messages that involve sexualized texts or images, often referred to as “sexting”.

The proposed amendments in this bill would also clarify that a complainant has a standing and a right to counsel in rape shield proceedings, just as the complainant already has a right in the context of third party records proceedings, and the amendments would create a new regime that would apply to the admissibility of the complainant's private records that are in the possession of the accused, just as the current rape shield provisions apply to the admissibility of evidence of the complainant's sexual history.

These proposed amendments strengthen our already robust sexual assault provisions by clarifying and bolstering the law and facilitating its proper application. This is just one response to a complex issue that has raised significant concern over the past decades. Complainants continue to lack confidence in the criminal justice system, as reflected in the fact that the vast majority of sexual assaults go unreported, and when they are reported to the police, the vast majority never make it to trial.

Recent media reports have brought this critical issue to the forefront, and I urge all members to join me in supporting this important step toward ensuring that the criminal justice system responds effectively and appropriately to this gendered crime by giving survivors of sexual assault the respect and dignity they deserve.