Removing unconstitutional provisions from the Criminal Code

Backgrounder

The Government of Canada is committed to ensuring that our criminal justice system protects Canadians, holds offenders to account, meets the highest standards of equity and fairness, shows compassion to victims, and upholds the Canadian Charter of Rights and Freedoms. That is why we are proposing changes to remove or amend unconstitutional provisions from the Criminal Code.

This proposed legislation repeals or amends provisions that the Supreme Court of Canada and appellate courts have found to violate the Charter of Rights and Freedoms. It flows from the Government’s ongoing review of the criminal justice system. Future bills will further address provisions of the Criminal Code that have been struck down or modified on Charter grounds by the Supreme Court and by appellate courts, as well as update the Criminal Code to make it more fair and accessible and to ensure that it better reflects Canadian society today.

Scope of the Bill

The Criminal Code provisions to be repealed or amended under the legislation proposed today address a range of issues including:

  • Abortion – The prohibition against abortion was found unconstitutional in 1988 because it violated a woman’s right to security of the person.
  •  Two provisions applicable to murder – In 1987 and 1990, the Supreme Court found that two provisions relating to the circumstances constituting murder were unconstitutional. The provisions violated the right to life, liberty and security of the person because they could have led to a murder conviction even if the accused had no knowledge or intent that someone would be killed.
  • Anal intercourse – Several appellate courts found that the anal intercourse offence violated equality rights because it treated consensual anal intercourse differently than other consensual sexual activities. A legislative proposal to repeal the offence of anal intercourse was introduced in Bill C-32 in November 2016. Those proposed amendments are included in this bill to enable Parliament to address similar issues at the same time.
  • Spreading false news – This broad offence has its origins dating back to 13th century England and was “intended to protect the mighty and the powerful from discord and slander.” It was found unconstitutional in 1992 because it violated freedom of expression.
  • Vagrancy – The “loitering” part of this offence was found unconstitutional in 1994 because it violated the right to life, liberty and security of the person.
  • Impaired driving – In 2012, two provisions designed to help prosecutors prove that someone was impaired were found unconstitutional because they could have led to convictions even in cases where there was reasonable doubt about the accused person’s guilt. 
  • Credit for pre-sentencing custody – The provision prevented judges from giving enhanced credit to a convicted person who had been detained prior to sentencing due to a previous conviction. It was found unconstitutional in 2016 because it violated the right to life, liberty and security of the person.

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