JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 25, 1999

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[English]

The Chair (Mr. John Maloney (Erie—Lincoln, Lib.)): The meeting will now begin.

We're here today for clause-by-clause consideration of Bill C-79. Pursuant to Standing Order 75(1), consideration of the preamble is postponed.

Now, as I understand it, there are no proposed amendments to this legislation. I just wish to confirm that with the members present.

Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Mr. Chairman, I had not filed any notice of an amendment or an amendment itself, but I'm just reading over a clause, and there would be a conceptual amendment that would show up on page 4. So if you want to begin the bill—

An hon. member: It's a phantom by any other name.

The Chair: Which clause are you referring to?

Mr. Derek Lee: It would be clause 2 on page 4. I realize that at this point I would only be in a position to move it with the cooperation of all the members. I simply wish to alert you to that fact as you move through the bill.

The Chair: You don't require notice, Mr. Lee.

Mr. Derek Lee: That's wonderful. In any event, you're aware that I'm thinking about something as I sit here. I wouldn't want my silence to be taken as allowing the chair to move through the bill in 30 seconds flat.

The Chair: It involves clause 2 on page 4. Why don't we deal with clause one first.

Mr. Derek Lee: We could stand down clause 2 while I'm contemplating the universe.

(Clause 1 agreed to)

The Chair: Mr. Lee has indicated that he has some concerns about part of clause 2.

Is there unanimous consent to deal with clauses 3 to 33 inclusive?

Some hon. members: Agreed.

(Clause 2 allowed to stand)

(Clauses 3 to 19 inclusive agreed to)

Mr. Chuck Cadman (Surrey North, Ref.): It's on division for clauses 20, 21, and 22

(Clauses 20, 21, and 22 agreed to on division)

(Clauses 23 to 33 inclusive agreed to)

(On clause 2)

The Chair: This brings us back to Mr. Lee for clause 2.

Mr. Derek Lee: I'll speak to that. Mr. Chairman, I listened carefully to submissions that came in on our last day of hearings from witnesses that included representatives of the CBC, and they brought to our attention the potential impact of the publication bans on parties who would be victims and who might want the freedom to be more public about their circumstances.

As we deal with this bill, our amendments are all calculated to provide protection and privacy to victims of crimes that are being tried, and in our rush to provide those protections, we may not have adverted to the impacts on victims who might not want to be clothed in so much protection.

I certainly don't want to remove the protections, because I'm assuming that 90%-plus of victims and the system require the kinds of protections we're recommending in the amendments here. But for the few who might want the freedom to “go public”, some victims will be stuck with the publication ban if the ban is put in place. The only way they could have the charter-protected freedom to express themselves would be to go back and get a judge's permission to do it. That was the area I was concerned about.

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Perhaps I could ask the officials from the justice department one or two questions in order to shine a light on that.

The Chair: We're pleased to have with us Catherine Kane and Yvan Roy.

Mr. Derek Lee: I'll ask a question of Ms. Kane, the parliamentary secretary, Mr. Roy, or whatever. I've expressed this concern for victims who we and the court want to see protected. What would be the position of a victim if the victim didn't want the protection?

Ms. Catherine Kane (Counsel, Criminal Law Policy Section, Department of Justice): Currently, I think the best example would be the case of a sexual offence complainant. The Criminal Code provides for a mandatory ban where the publication ban is requested by the crown or the complainant. It also requires that the judge at the first opportunity tell them that they have the right to make that application. But what often happens is that because these bans are relied on by sexual offence victims and because crown attorneys are very alert to the need for those bans, at the first opportunity the crown will ask the court for the ban and it will be imposed. The complainant may not be there at that time and they may not have had a full discussion with the complainant, but the crown wouldn't want to miss that first opportunity to get the ban imposed.

Ideally, there should be consultation between the complainant and the crown on these issues. If you had a complainant who wanted to discuss with the media or publicly or whatever what had happened to them, they may not see the benefit of that ban. But while the court is proceeding with the charges, there would be other opportunities subsequent to that first application for a complainant to indicate to the court that they didn't want the ban and to ask the court to rescind the ban. Certainly, the court has the power—it's not yet functus—to rescind that ban.

The cases the CBC pointed to were after the ban had been in place and the matters had been dealt with and the complainant wanted to go public after that. The concern I have personally is that the committee hasn't heard from sexual assault complainants, and the amendments the CBC was putting forward would be targeted primarily at those particular victims who more frequently avail themselves of the protections of the ban. In the new provisions it will require the person seeking the ban to establish why they need it. So there won't be any opportunities for victims to get a ban without knowing. They'll have to make the case with the assistance of the crown attorney in most cases to establish why the ban is necessary.

To meet the CBC's concern there could be provisions that make it clear that the judge should inquire whether the victim has been advised that a ban can be sought where the crown is speaking on their own. But I wouldn't want to have the Criminal Code go so far as to make it impossible for the court to order the ban without knowing for sure that the complainant was in support of that, because otherwise there could be gaps where the publication would be made and the damage would be done before there was an opportunity for the complainant to indicate they wanted the ban.

Mr. Derek Lee: Okay. Here's the worst-case scenario from my point of view. What if you had a complainant, a victim, whose case was accorded the publication ban when the complainant victim had not really been privy to that process. They didn't pay attention, they weren't informed, or whatever. Then he or she decided that his or her case was going to be a cause célèbre and no one was going to stop him or her from talking about it or from going to the press and their MP, all of the things that an indignant victim might think of doing in certain circumstances. Then we would have an unfortunate circumstance where if he or she did nothing else, they would be actually breaking the publication ban, breaching the law, placing the court in a very difficult circumstance. It would be almost embarrassing to have to enforce something like that. Do we have a way out of that predicament?

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Ms. Catherine Kane: First of all, I'm not aware of any cases where a complainant has been charged with breaching a publication ban that's designed to protect their own identity. If that were the case, the crown is the one that would have the discretion whether to proceed with the prosecution. Whether charges would be laid is the first consideration. It's not going to be every run-of-the-mill case where somebody's going to think of charging that person.

Likely it would only be an issue where in breaching their own publication ban they'd also violate the privacy of other people who might be implicated—for example, if it was a situation where one family member was a victim of sexual abuse and other family members were also involved as victims, and by one revealing their identity others would also be revealed, or a school or an institution, something that would lead to the disclosure of other identities.

Mr. Derek Lee: Do you think the law as it now stands would provide an exception for a victim complainant in that kind of circumstance, in the face of a publication ban?

Ms. Catherine Kane: An exception of what nature?

Mr. Derek Lee: An exception from enforcement. I understand that a crown attorney would have the decision on whether or not to deal with a breach of the ban, but where there's been a clear breach of a ban, surely there's an obligation on the crown to pursue it. I'm worried about that scenario. The few cases that exist now have been exceptional; nobody's paid much attention to them. But do you think the law, as we have it now in Canada, would allow... what will I call it, a charter-based exception to being sanctioned for breach of the ban, where the victim, for whose benefit the ban was put in place, doesn't want the ban?

Ms. Catherine Kane: I think each case has to be determined on its own facts, and it will be an exercise of discretion of the prosecutor, so it's difficult to give an answer that would apply in all situations.

Mr. Derek Lee: Right. For the record, we've had a chance to discuss it, Mr. Chairman. I'm not Solomon. I don't have enough wisdom to craft a band-aid for that kind of problem. So I think I'll let the matter rest and we'll go ahead with clause-by-clause consideration.

The Chairman: Does any other member have any questions they wish to put to our officials? Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Just reflecting on the exchange between Ms. Kane and Mr. Lee, isn't the ultimate result, if I understand the philosophy behind the bill and the philosophy behind the report, that the victims wanted a voice, not a veto, and where there is a publication ban put on by the court, the victim, no matter how concerned about that issue, does not have the right to override the process?

Ms. Catherine Kane: If the victim wasn't supportive of the ban on their own identity, there's nothing to prevent the victim from bringing that matter to the attention of the court and have the court rescind the order. There was a case about three years ago in the Supreme Court of Canada called Adams, and the issue was whether a publication ban is irrevocable and how you go about rescinding it. The court said that as a matter of common law, the court has an inherent jurisdiction to vary its own orders. So while the court is still sitting, the judge could say he's heard from victim X, and victim X no longer wants this because there's been a change of circumstances or the victim was not supportive of it in the first instance, and it could be rescinded.

Mr. John McKay: But in Mr. Lee's scenario, in theory, the victim could say he wants the ban lifted and he wants to be identified, and the court saying no, the ban will not be lifted and you will not be identified. That seems to me to be ultimately consistent with the philosophy of the bill.

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Ms. Catherine Kane: That could happen. I don't know of situations where it has happened.

Mr. John McKay: It's a pretty bizarre circumstance, I agree, but nevertheless I think that's where Mr. Lee's concern is. Thanks.

(Clause 2 agreed to)

The Chair: Shall the preamble carry?

Some hon. members: Agreed.

The Chair: Shall the title carry?

Some hon. members: Agreed.

The Chair: Shall the bill carry?

Some hon. members: Agreed.

The Chair: Shall I report the bill without amendment to the House?

Some hon. members: Agreed.

The Chair: That would conclude our consideration of Bill C-79. Thank you very much. I appreciate your consideration.

Ms. Bakopanos, you gave notice of a motion.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): No, actually, I believe I've withdrawn that motion.

The Chair: That's fine.

Ms. Eleni Bakopanos: I do want to bring a point of order, though.

The Chair: That's your motion; you're certainly free to withdraw it.

Ms. Eleni Bakopanos: I've withdrawn it.

The Chair: Duly noted.

Ms. Eleni Bakopanos: Just for those who want to know, it was on leaking the document, which has now been tabled in the House.

The Chair: You had a point of order.

Ms. Eleni Bakopanos: Yes. The document and the draft legislation were tabled in the House today on impaired driving. I want to also mention to the members of the committee that the minister has given notice to the House, and I believe the House leaders are in discussion at this moment, to in fact bring forward government legislation to that effect, incorporating most of what is in the bill.

So I just want to put that to the members: that the minister has given notice, through the clerk of the House, that she is asking for concurrence on a motion that will in fact make it government orders, rather than falling back onto the first procedure we said, which is back in the black pit of the private members' business. The House leaders are now in discussion on how we're going to proceed.

The Chair: Thank you for your comments. We're pleased to hear that information.

Ms. Eleni Bakopanos: Thank you.

The Chair: Mr. Lee.

Mr. Derek Lee: On that same point, I just wanted to note, for the record, that there is more than one dynamic going on here. The mover of the private member's business that brought the issue to the committee, and out of which we now have a draft bill, would ordinarily want to be recognized, at least at home, for his work on this. Colleagues around the committee table here would want to be recognized for their good work in drafting the bill and moving the envelope forward.

For the benefit of the opposition, at this point in time I'm assuming there is a consensus around the table that no one's going to destabilize the process. If there were to be a motion other than the minister's, it would turn our bill to dust, as I see it, and I don't want that to happen. I'm sure colleagues around the table agree, so I'm assuming there will be no pre-emptive strikes by anybody here on this, at least without reasonable notice to other members around the table, pending the motion by the Minister of Justice, which would then put the bill where we all want it to be, which is on the highest level of government orders and to be disposed of as quickly as we could.

Thank you.

The Chair: Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): If I've understood you correctly, you're saying that the minister intends to table a bill which basically will include all of the same elements contained in the draft bill. Will it be identical to this bill, or will there be some changes?

Ms. Eleni Bakopanos: I can't answer that question at this time because discussions are taking place between...

Mr. Michel Bellehumeur: That's what worries me. I would imagine they are discussing this without my leader having told me anything about this, since I'm here.

Ms. Eleni Bakopanos: They're conferring as we speak.

Mr. Michel Bellehumeur: That's what I mean. You know very well that we have signed the report and that it is unanimous. However, there are two sticking points and no discussions should take place without these irritants being disclosed. Otherwise, my leader will be contradicting me and we can't have that happening.

Ms. Eleni Bakopanos: Of course not. The only issue on which we are now seeking a consensus is that things move forward quickly in the House.

Mr. Michel Bellehumeur: It will depend on the drafting.

Ms. Eleni Bakopanos: Time will be allotted for this in the House, provided there is a consensus, or if any amendments are brought in. It's possible the government or the other political parties may wish to propose some amendments. That's what the House leaders are discussing at this moment.

[English]

The Chair: Thank you, Mr. Bellehumeur. Mr. Lee, again.

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Mr. Derek Lee: Just for the benefit of Mr. Bellehumeur, it's my understanding that if the minister moves this draft bill, she moves the bill as a whole, in exactly the form it exists in, and if there would be a need to modify the bill later, then it would come up in the ordinary course in the House or as the committee deals with it. The minister, at this point, doesn't have the ability to pick and choose or cherry-pick on the draft bill we have sent back to the House. That's my understanding.

The Chair: Would she be able to do so at the report stage of the amendment?

Ms. Eleni Bakopanos: Anything can be done if you have the consent.

The Chair: That's true, yes.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): That's the correct procedure to follow in order for the minister to move forward. The minister could...

[Editor's note: Inaudible]

Mr. Michel Bellehumeur: You have to understand that they can't pass the bill just like that and send it off to the Senate. If the bill is presented as it now stands, I can't support it. I want to see some amendments.

Ms. Eleni Bakopanos: So does the Reform Party.

Mr. Michel Bellehumeur: Good.

Ms. Eleni Bakopanos: And perhaps the government party will bring in some amendments as well..

Mr. Michel Bellehumeur: I hope so too.

[English]

The Chair: There being no further comments or business, the committee is adjourned. Thank you for your presence.