Bill C-39, An Act to amend the Criminal Code (unconstitutional provisions) and to make consequential amendments to other Acts

Proposed legislation

On March 8th, 2017, the Government of Canada introduced legislation that would remove provisions in the Criminal Code that have been found unconstitutional by the Supreme Court of Canada and appellate courts. Some of them have not been in force for many years.

Abortion

The prohibition against abortion was found unconstitutional in 1988 for violating a woman’s right to life, liberty and security of the person. This Bill would remove section 287 from the Criminal Code.

Defining what constitutes murder

Certain provisions setting out what constitutes murder were found unconstitutional in 1987 and 1990 for violating the right to life, liberty and security of the person and the right to be presumed innocent until proven guilty. This Bill would remove paragraph 229(c) and section 230 from the Criminal Code.

Anal intercourse

A proposal to repeal the offence of anal intercourse was originally introduced in Bill C-32 in November 2016. Several appellate courts found that the anal intercourse offence violated equality rights because it treated consensual anal intercourse differently than other consensual sexual activities. This proposal has been included in this Bill instead, enabling Parliament to address similar unconstitutional issues at the same time.

Spreading false news

This offence was found unconstitutional in 1992 because it violated freedom of expression. This Bill would remove section 181 from the Criminal Code.

Vagrancy

Part of this offence was found unconstitutional in 1994 because it violated the right to life, liberty and security of the person. This Bill would remove paragraph 179(1)(b) from the Criminal Code.

Impaired driving

Two provisions that were designed to help prosecutors determine whether someone was impaired were found unconstitutional in 2012 because they could have led to convictions even in cases where a reasonable doubt existed as to an accused person’s guilt. This Bill would amend paragraphs 258(1)(c) and 258(1)(d) of the Criminal Code to align with the Supreme Court’s decision.

Credit for pre-sentencing custody

The provision that prevented judges from giving enhanced credit to a person who had been detained prior to sentencing because of a previous conviction was found unconstitutional in 2016 because it violated the right to life, liberty and security of the person. This Bill would repeal this limitation from subsection 719(3.1) from the Criminal Code.

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