Justice committee  And we should.

Justice committee  In an informal way, such lines of consultation exist now. As I mentioned, a large group of criminal law academics sent a letter to the Minister of Justice in December of 2015. That has led to some informal collaboration on a number of things. We have provided the department and the minister's office with the names of people who are interested in, and experts in, a number of different areas.

Justice committee  I do have a response on that, because I think it raises an important point. The reason we now have sections like paragraph 487.011(b.1) is because we amend the Criminal Code constantly, and of course, we can't renumber everything. I want to tie together your last point with that, because I think there is a bigger issue here.

Justice committee  We need to do that. We've needed to do it for decades—not just for minor things like this, not just because of laws that are out of step with the times, and not just because the interlineated numbers make it impossible to keep track of everything, but because we've needed fundamental reform of the Criminal Code.

Justice committee  I would note two things in that. One is that it is worth observing that although the things that Bill C-39 would have done are duplicated in Bill C-75, Bill C-39 still exists. There is actually no reason that Bill C-39 couldn't be proceeded with, even if Bill C-75 is not. On the go-forward basis, though, it seems to me that there's no good reason that the Department of Justice couldn't, every two years, have the charter cleanup bill.

Justice committee  By no means no, and I think the case you're referring to is Townsend. At least three times that I know of, at the end of a murder trial, juries have gone off to deliberate, and they've made the perfectly reasonable request that they have a copy of the portions of the Criminal Code that are relevant.

Justice committee  Thank you very much. I'm pleased to have been invited to speak with you today about the portions of Bill C-75 that deal with removing the outdated provisions in the Criminal Code, specifically those that have actually been struck down by courts, as opposed to simply being out of step with the times.

Justice committee  Sure. Realistically, that mostly doesn't go specifically to section 176, and this varies from province to province. In seven provinces and, I believe, all three territories, the charging decision isn't made by a crown prosecutor at all; it's made by a police officer. A police officer decides which charge to lay.

Justice committee  Sure. I note that it's not 100% correct to say that religion is given special protection. Actually, section 2(a) of the charter guarantees freedom of conscience and religion, so as Mr. MacGregor points out, conscience is there just as much as religion. I know the argument is that there are things captured by this that are not captured by other sections.

Justice committee  No. I would agree that this is one of at least three things that it might mean. I was contemplating picking on “unlawfully” in that section as another illustration of the inconsistent way in which the code is drafted, which makes it difficult to know what it's saying. There are sections in the Criminal Code where “unlawfully” means exactly what you are saying, like section 269, “unlawfully causing bodily harm”.

Justice committee  Yes. It's a matter I've given some thought to. On the one hand, it can look like a huge task, no question. In part, it's been undertaken. Many of these rules, though, are not rules that are really in dispute. The Supreme Court of Canada, most recently in the A.D.H. case, has said here are the rules that ought to govern us.

Justice committee  I'm trying to suggest that the basic rules around criminal liability ought to be in our Criminal Code. They are implicit in section 9 of the Criminal Code, which abolishes common-law crime. It is implicit within the charter, which guarantees the rule of law and the principle of legality, which is that the law has to be knowable in advance.

Justice committee  Well, no, I think the praise you're getting is for the notion that we have moved along the way towards codification. I'm just encouraging us to move further in that direction. I don't think we could ever get rid of all matters of interpretation. It's certainly true that there will be scope for deciding what a particular word means and what Parliament had in mind.

Justice committee  Thank you for the invitation to address the committee with regard to Bill C-51. In particular, I'm going to be speaking to the provisions that are intended to remove various provisions from the Criminal Code, as well as various reverse onus portions of them. I am in favour of this bill, but I'd like to explain that support by situating this bill within the broader endeavour of which it should be seen as only a small part.