Good afternoon, ladies and gentlemen.
It is a pleasure to have you here with us at the justice and human rights committee as we resume our study of Bill , an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act.
I am pleased to greet our witnesses today. We're very lucky to have with us, as an individual, Ms. Breese Davies, who is a lawyer at Breese Davies Law.
Welcome, Ms. Davies. Thank you for agreeing to go at the end of the testimony so that we can make sure we get everybody on video conference before anything can happen.
We have Mr. Faisal Mirza, who is an advocacy committee member and criminal law barrister representing the South Asian Bar Association. Welcome, Mr. Mirza.
Then we have the Centre for Free Expression, at Ryerson University, represented by Prof. Lisa Taylor, who is a professor of journalism, Ms. Jamie Cameron, who is a professor of law, and Prof. James Turks, who is director and distinguished visiting professor in the faculty of communications and design. Welcome, Ms. Taylor, Ms. Cameron, and Mr. Turk.
We're going to start with Mr. Mirza. All witnesses, please try to speak to the act itself and to potential amendments to the act, and not to general principles that go far outside the act. Thank you.
Mr. Mirza, the floor is yours. You have up to 10 minutes.
Good afternoon. On behalf of the South Asian Bar Association thank you for the invitation to speak this afternoon. Let me start with the background of the organization that I'm here to represent today. We are the largest diverse bar association in Canada. SABA is also the largest organization of south Asian lawyers in North America, and we are coming up on our 11th anniversary.
In terms of advocacy we seek to protect the rights and liberties of diverse communities across Ontario. Our underlying goal is to work toward a justice system that is just and equitable and contributes to a legal profession that is inclusive and progressive. SABA has been involved in a number of consultations in the past with the government, and with various stakeholders in the legal community in Ontario. We are often with other equity groups in the broader community such as the Canadian Association of Black Lawyers, the Federation of Asian Canadian Lawyers, and the Canadian Muslim Lawyers Association.
In terms of my personal background, I am a criminal lawyer with 15 years' experience litigating cases at all levels of court. Exemplary that SABA is an inclusive group that works with other able organizations, in addition to being a contributor to SABA's advocacy group, I am also the chair of the Canadian Muslim Lawyers Association, and a contributing member of the Criminal Lawyers' Association. I'm pleased to hear that you have invited them in order to hear their views as well.
With respect to my contribution today, I wish to address one specific area of the bill, the proposed repeal of section 176 of the Criminal Code. The 's office has come to the conclusion that, one, this law's protection for ministers and clergy under paragraphs 176(1)(a) and 176(1)(b) is under-inclusive, and two, that it is redundant in the sense that other provisions of the Criminal Code are capable of meeting the same objective by way of criminal offences such as threats and assault.
My goal today is to provide some objective input about the pros and cons of the proposed repeal. First, let me turn to the issue of the under-inclusivity of this section. I agree that the language in paragraphs 176(1)(a) and (b) could be more inclusive. To better reflect the multicultural heritage of our nation the words “clergymen” or “minister” could be amended to state “a religious leader”. This way the section would read “everyone who (a) by threats or force unlawfully obstructs or prevents, or endeavours to obstruct or prevent, a religious leader from celebrating divine service, or performing any other function in connection with his calling”. That is a straightforward way to bridge the gap and make this provision more inclusive.
Second, let me address the issue of redundancy. In that context I'll speak about paragraphs 176(1)(a) and 176(1)(b) first. The is correct that the Criminal Code already covers assaults and threats, and that the sentencing sections in the code indicate that crimes committed for bias or hate are aggravating factors on sentencing. As a criminal barrister I embrace the repeal of redundant criminal laws, but timing is everything. We cannot be blind that the current climate of increased incidents of hate, specifically at places of worship, supports that religious leaders may be in need of more, not less, focused protection. There is no doubt that synagogues, mosques, and temples are being targeted by hate groups. Those institutions also house schools where many children spend their days.
For instance, in March 2017 a bomb threat was called into Toronto's Downtown Jewish Community School, a kindergarten to grade 6 school located inside Miles Nadal Jewish Community Centre. In the preceding weeks, 20 bomb threats were called in across North America to various Jewish centres, including in Vancouver. Similarly, the massacre at the Centre culturel islamique de Québec, which killed six and injured 19 in January 2017, is a stark reminder that religious institutions and their leaders are a focal point of hatred. Some people may counter that other criminal laws are able to deal with those heinous acts. However, keep in mind that the mass shooting at the mosque in Quebec was predated by a pig's head being left at the door of the same mosque six months earlier.
The mistreatment of religious minorities is a growing problem in the greater society of Canada. For instance, racist comments inscribed on the walls at York University and Concordia University and the vandalism at synagogues and mosques are stark reminders.
Bill 62 in Quebec may add fuel to this fire. Indeed, this is becoming a North American problem, and something for which the greater context has to be considered. The 2012 shooting massacre at a Wisconsin Sikh temple and another shooting a few weeks ago at a church in Tennessee are further illustrations that more protection may be required at this critical time in history. Although this law has been infrequently applied in the past, it is hard to deny its relevance in the current climate. The application of the law may become more helpful if policing agencies are educated about it and the public is made aware that it exists.
In contrast, the removal of this section at this juncture may be viewed as an invitation to persons engaging in discriminatory acts to be more aggressive. That being said, if this section were to be deleted, there are additional subsections that continue to be relevant, subsections 176(2) and 176(3), and they are valuable in that they prohibit wilfully disturbing or interrupting persons gathering for religious, social, or benevolent purposes.
In other words, if paragraphs 176(1)(a) and 176(1)(b) are the source of controversy, then their deletion may not require the deletions of subsections 176(2) and 176(3). I'm also mindful of the motion 103, which is a useful platform to study discrimination in various segments of society. It may be appropriate for the government to press pause and allow that study to take its place, for the results to come forward, and then determine whether or not this section should remain.
Thank you, and thank you, Dr. Turk.
I am the designated spokesperson for the Centre for Free Expression this afternoon. I'm a professor at Osgoode Hall law school at York University.
To members of the committee, we have prepared some speaking notes that were provided to you, and I'll just move to some of the highlights from those speaking notes.
Our presentation this afternoon concerns the status of criminal libel in the Criminal Code. There are three forms of criminal libel that are currently penalized in the Criminal Code: blasphemous libel, seditious libel, and defamatory libel.
Bill proposes to repeal the offence of blasphemous libel. In the 's charter statement, we learned that this was in part to enhance the protection of free expression. However, while Bill proposes to repeal blasphemous libel, it does not propose to repeal seditious libel or defamatory libel. There's a minor amendment proposed to defamatory libel, but in the main, the other offences remain intact.
The Centre for Free Expression supports and applauds the repeal of section 296, the blasphemous libel offence, on the grounds that it is either obsolete or that it contains risk elements related to the charter. We submit, however, that all forms of criminal libel should be repealed together. In particular, we submit to the committee that seditious libel and defamatory libel both fall within the rationale for repealing Criminal Code provisions in Bill . Specifically, either the provisions are obsolete or they pose risks to the protection of expressive freedom under the charter.
I'll say a couple of words about blasphemous and seditious libel. These two are somewhat alike, because both of these Criminal Code offences are effectively or essentially obsolete. The last prosecution for blasphemous libel, I believe, was in 1936, and according to our research, the last major conviction for seditious libel occurred in 1950. I think both of these provisions are somewhat obsolete, and both pose charter risks to freedom of expression, as the minister acknowledged in the case of blasphemous libel.
In our view, defamatory libel raises particular concerns. Specifically, defamatory libel—there are two offences in the Criminal Code—is not obsolete. Far from being obsolete, the defamatory libel offences pose worrying risks and concerns for freedom of expression. My colleague Professor Taylor's research reveals worrying patterns for the prosecution of these offences under the Criminal Code.
I'll now turn to a couple of key issues about the defamatory libel offences. First of all, two defamatory libel offences in the Criminal Code are found in sections 300 and 301 of the code. Section 301 is notable because this provision has been found unconstitutional by lower courts in at least five different provinces across the country. That's the first significant point. Second, it's important to note that sections 300 and 301 are both more harsh in their approach to the questions of defamation and defamatory statements than the civil law of defamation.
The third point is that the Criminal Code's definition of “defamation” is particularly problematic because it's overbroad. Here I would point to the inclusion of the word “ridicule” in the definition of “defamation” in the code and the words “designed to insult” as elements of the criminal offence, which we would not find in the civil law definition of defamation. Moreover, words that ridicule or insult another person are not necessarily defamatory.
A fourth point, and it's a very important one for the Centre for Free Expression, is that these provisions in sections 301 and 30 are too often used by the police as a tool to silence and punish those who are harshly critical of different kinds of public actors. These can include police officers, prison wardens, municipal officials, and other kinds of state actors who have been harshly criticized by individuals from time to time.
In our submission, the defamatory libel offences, for a variety of reasons, pose very extreme charter risks to freedom of expression and fall within the minister's rationale for repeal under Bill .
I would also like to state, because it's important, that there are other alternatives open under the Criminal Code should there be transgressive activity that needs to be addressed by the criminal justice system. There is a whole list of Criminal Code offences that can be used in lieu of defamatory libel to deal with this kind of conduct. There's criminal harassment, uttering threats, and the range of offences that deal with different kinds of cyber-smearing. Should there be time in the question period, my colleague Professor Taylor would be happy to speak to that.
I just have a couple of closing notes for the committee. The first is that, for the centre, it's significant to note that in 1984 the Law Reform Commission of Canada did a fairly extensive study of the whole subject of defamatory libel and the Law Reform Commission came to the conclusion and made the recommendation that defamatory libel should be abolished as a criminal law offence in Canada.
It's useful to note that more recently, in 2009, the United Kingdom made the decision to abolish all forms of common law criminal libel. That included seditious libel, defamatory libel, and something that is known in the U.K. as obscene libel.
I think that report and the U.K. reform initiative support our view that criminal libel offences in the code are really artifacts from another day and age, and do not belong in the criminal law at this point in time.
This has been a brief submission. We're happy to answer questions, but in closing, we urge the committee to consider amendments to Bill that would include the repeal of seditious libel and defamatory libel, together with blasphemous libel.
Thank you for your attention.
Thank you. I, too, would like to thank the committee for inviting me to address you today. It's a real privilege to be here.
By way of my background, I'm a criminal lawyer who practises in Toronto. I've been practising for 17 years at all levels of court. I'm also a vice-president of the Criminal Lawyers' Association—I know you're going to hear from them in the next hour. I'm an adjunct professor at the faculty of law at U of T and at Osgoode Hall law school. In addition to that, I prosecute sexual abuse cases in the regulatory context, so it's within that frame that I'll make my submissions today.
As you know, broadly speaking, Bill has a number of classes of amendments. I want to focus my comments today on the provisions that create the new procedure for determining the admissibility of private records in the hands of the accused, so that would be proposed section 278.92. I know you have submissions on this from the Criminal Lawyers' Association and I obviously support those. I just want to address a few of the issues. We've tried to coordinate our comments so we don't duplicate what we say.
Both the in her comments before you last week, and the in his comments during first reading, made it clear that the goals of this new procedural regime about the admissibility of private records is twofold: first, to ensure that sexual assault complainants are treated with respect; and second, to respond to the public concern there may be about how sexual assault cases are prosecuted, defended, and judged. Those are obviously two very important objectives, so I will keep those in mind when I make my comments.
I also want to preface my comments by saying that I acknowledge and recognize that the Supreme Court of Canada has said that the defence does not have the right to a trial by ambush, that it is open to Parliament to enact procedures that would control the way in which defence counsel can put forward a case, but there has to be a balancing of the rights, a balancing of the accused's rights with the interests of the complainant. It's in that spirit that I'm going to make my comments. It's in that spirit of the balancing that I still have some concerns about the new regime as it's drafted.
In particular, I have two concerns I want to talk about today. The first is that the provision is overly broad, even taking into consideration what the stated objectives are. The second is the lack of corresponding resources to deal with these more complex procedural issues, and the potential unintended consequences of creating complexity in criminal trials that I think you should be alive to when you're considering the bill.
Let me deal with the overbreadth. In my submission there are two ways in which the provisions as drafted are overly broad. The first one I can deal with fairly quickly, I think, because it's a fairly narrow point.
The proposed amendment makes it clear that no record relating to a complainant or a witness is admissible unless the procedure is followed. It strikes me, from all of the commentary that has been made, that the concern is really around the manner in which complainants are addressed in criminal trials, so my concern is that the inclusion of the words “or a witness” will make this enormously broad in terms of its application. That would apply to any crown witness, whether they are connected to the complainant or not, and in my submission that extends the reach of this new provision beyond the stated goal or the purpose. I think it's unnecessary to achieve the objectives.
I also think there would be a real concern on constitutional grounds about there being no rational connection between the stated purpose and that language, and that it wouldn't survive a minimal impairment analysis. I would urge you, in your discussions, to delete references to witnesses and continue to focus on complainants. That's the narrow one.
My second comment is around the definition of the record for the purpose of this regime. I know, from the legislation, that the definition of “record” that is being used for the new regime is the same definition that applies for the third-party records application, but in my submission it has very different connotations in the context of a record that's in the hands of an accused person already. I think you have to look at whether or not the definition of a record is too broad for the purposes that have been articulated.
The definition of “record” is “any form of record that contains personal information for which there is a reasonable expectation of privacy”. There is a list, but the starting point is whether it is a record for which there is a reasonable expectation of privacy. In my submission, that is going to cover potentially an enormously broad group of records, and it would significantly increase the complexity and length of sexual assault cases.
I want to give you five examples of records that I think would be captured in this definition that perhaps weren't intended to be captured, and certainly I think in the context of constitutional considerations should not be included.
One is personal communications between the accused and a complainant. If a complainant sends an email to an accused person, that is a private communication. The case law is very unclear on whether or not that is a record over which there's a reasonable expectation of privacy. The British Columbia Court of Appeal, in a case called Craig, said that you do retain a reasonable expectation of privacy over a private communication that you send to another person, even if it's in their hands. Even in the hands of an accused person, there would be a reasonable expectation of privacy over text messages, emails, or Facebook posts that you send to one another. The Ontario Court of Appeal came to the exact opposite conclusion.
This issue is before the Supreme Court of Canada, but if the Supreme Court of Canada sides with the B.C. Court of Appeal and says there is a reasonable expectation of privacy, any communication, any electronic communication that goes between an accused person and a complainant would now be subject to this regime. If the issue is about avoiding trial by ambush, you don't need that protection for things that a complainant wrote his or herself and sent to an accused person. There's no element of surprise, or there ought not to be an element of surprise in communications that initiated from the complainant or were received by the complainant. Certainly those are records that the complainant should have themselves, or the crown and the police can have access to and can get if they're deleted. That's one area that I think ought to be excluded.
There's also concern about joint records. Sometimes complainants and accused people have joint counselling records, joint cellphone records, joint bank accounts to which they both have a reasonable expectation of privacy but are equally entitled to have access. I think there's a real concern about requiring the accused to go through this procedural hoop when there are joint records. Private records filed in other proceedings, sometimes family courts, sometimes civil proceedings, sometimes related criminal proceedings, the type of private information which I think is quite rightly the subject of this, is already in the public domain and ought to be available, and this procedure shouldn't apply.
Also, it may include records that are part of disclosure, so records that the crown obtained, everybody knows about. If there's a reasonable expectation of privacy over those records, they still could be covered, and records that were produced through a third-party records application where the issues have already been adjudicated by a judge.
My suggestion is that there ought to be an amendment to the existing language that expressly exempts certain categories of communications, certain categories of records that ought not to be subject to this regime. I would suggest communications between complainants and the accused, records that are accessible to both the complainant and the accused, information that is otherwise publicly available, and records that have previously been disclosed through a third-party records application. For example, if I bring a third-party records application and I get a complainant's therapeutic records, I ought not to be required to go through a second application, once everybody knows what they are, in order to use those in a trial. Obviously every question, every line of cross-examination, will be subject to the discretion of the trial judge to stop the defence counsel if they're using it improperly.
Those are my broad suggestions in terms of narrowing the scope of what this applies to.
I want to just speak very briefly in the minute I have left about some unintended practical consequences.
One of the concerns is to ensure that responsible, experienced counsel are involved in all of these cases for the accused, and I know there are provisions for the complainant to have counsel as well. You do not want to create mechanisms that will either result in more unrepresented accused or more under-represented accused.
If there aren't additional resources allocated to fund these complicated procedures, you will have more and more experienced senior counsel not taking on these cases on legal aid, which most of these cases are. You will end up in situations where you have more unrepresented accused people who cannot navigate these proceeding or under-represented accused people who don't have adequate senior counsel to deal with these complex issues.
I think you have to be concerned as well that, as you increase the complexity of criminal trials, you obviously run up against the concerns that the case from the Supreme Court of Canada in R v. Jordan created, in terms of not the hard caps but the presumptive caps on delay. If you turn every trial that is now a one-day trial into a two-day trial, you're going to run up against serious considerations in terms of delay.
Those are my comments and I'm happy to take questions about them.
First and foremost, I will tell you that defamatory libel is being used far more often than most people understand. At the time that the Law Reform Commission of Canada wrote about this, we were seeing about two or three charges per year. Around 2000, it was at 20 charges per year. Now it appears that we're at 40 per year. Those are just the numbers that I can gather by going through the secondary and primary sources. No doubt there are some that have escaped my attention. We're talking about 40 cases a year, despite the conventional wisdom that says this is barely used, a little-used provision in the Criminal Code.
I have to divide the cases into two categories. There are two-thirds that deal with essentially crimes that are born of the Internet, and I'll come back to those in a minute. A full one-third of the cases target political dissent. They are individuals who are upset with the police, judges, lawyers, or Revenue Canada field agents, and who say inelegant and often harsh things about those individuals in their professional capacity. The criticism of public entities is core in its consistency with our guarantee of freedom of expression.
The other interesting thing that happens with this is that a disproportionate number of charges are laid under the criminal defamatory libel provisions and later dropped or withdrawn or other charges are used in their stead.
What we're seeing is the appearance that the police are using this charge to harass individuals who have the temerity to criticize the state. Once you know that you're under investigation or you're charged, you hire a lawyer, you think about your defence, and you have your cellphone and computer seized. In this sense, the very investigative process becomes the punishment, even if ultimately the charges do not go to trial.
Unlike in other democracies that still have criminal defamatory libel, and we're seeing fewer of them as we go forward, the individuals who are targeted are never journalists, high profile, or powerful individuals. They're one of the little guys, if I can use that term, who is upset with Revenue Canada, or who doesn't think the judge should have awarded custody to her ex-husband. Those are the individuals who are being charged.
Just one example is a man in Thunder Bay who dared to put up a poster with a Revenue Canada agent's photo and said, “This man is known to be working for an insidious organization.... Protect yourself from organized crime. If you are approached by this man be prepared to defend yourself.” He was convicted and sentenced to seven months house arrest for something that was equal parts angry and fanciful.
That's the one-third. There are the two-thirds that are born, as I said, of Internet shaming and what we call cyber-smearing, or if I may say it, slut shaming. We have seen an increase in those cases, there's no denying that. They are not core to free expression values. What those cases have is a full list of alternate provisions in the Criminal Code from intimidation to harassment, and others. In fact, the Department of Justice published earlier this year a list of 12 Criminal Code provisions that can be used to respond to those kinds of cases. Given how well protected individuals are who find themselves as victims of those particular transgressions, there is no need for a law being used to attack our core freedom of expression rights.
If I can elaborate any more, I will. There are cases upon cases.
There are a few ways to look at this. One that politicians in the room are well acquainted with is that criminal laws are often passed to send a message of accountability to the public, but also as an implicit deterrent. This type of provision could arguably send a message—particularly if police agencies were better educated about its applicability—that could be used as a basis to deter future misconduct in relation to synagogues, temples, and mosques, which unquestionably are on the rise. That's why I provided those examples.
It has that benefit in terms of dealing with protecting religious leaders, which is the terminology that I support, because I think it's more inclusive. We're in 2017 and it makes sense to be more inclusive. I take Mr. Nicholson's point that for jurists and other members of the government maybe this is including rabbis, imams, and other religious leaders, but at the end of the day we might as well get it right. If you're looking at amending it, you might as well get the language right so that it reflects the multicultural heritage of our country.
In terms of law enforcement, it may also come down to educating them about its applicability. The reason it may not have been used in the numerous examples I have provided is that it does have a level of obscurity to it in the Criminal Code. The first impulse of any police agency, and similarly of a prosecutor or criminal lawyer, would be to look at the assault provision, the threats provision, and the mischief provision, and not to think of section 176.
I can tell you, to be perfectly candid, that when I was asked to give testimony on this and it was referenced to section 176, despite having practised criminal law for 15 years this was the first time I came across this section. That's where there is some life to the argument of whether we really need this. However, I think you have to put it in the social context of today and not be blind to that reality.
On my behalf and that of my colleague, Ms. Leamon, I'd like to thank the committee for having us here today.
I'm going to deal with the provisions of Bill that address the sexual assault changes to the law. In particular, one of the elements that concern us is the change to the “mistaken belief in consent” defence that effectively eliminates that defence by adding a provision to the legislation that requires an individual to have actual consent, either through actions or words. It has the effect of eliminating the defence of mistaken belief in consent and a significant problem in our criminal justice system of essentially eliminating the mens rea component from any sexual assault case, as long as it is proven that somebody was essentially engaged in sex that they then say was non-consensual.
The burden shifts to the defence to show that there was actual consent, and they can't say they thought she was consenting unless they have proof that he or she was consenting to the act. That's significantly concerning because it either eliminates the ability of individuals who are innocent to raise their innocence or to raise that issue. It's also completely out of step with the realities of human sexual interaction, which are dynamic, which are not normal.... Most people when they are engaging in sexual situations are not asking if you would like to do this, with the response being, yes, they would, and then creating a record of that, so it's going to create practical hurdles for the defence that are going to be impossible to meet in the trial process.
My other main concern with this legislation is the manner in which it's going to enhance trial delays. In particular, this is going to disproportionately affect small communities and circuit courts where these cases are often more troubling because they affect the community at large.
Because of the way the applications to introduce the records that the defence intends to rely upon have to be made, it requires the seizing of a judge, who then has to come back and hear the subsequent application after deciding the written application, and then because they hear factual issues, may well become seized on the trial itself. That's going to lead to extreme problems for courthouses across this country, but most particularly in rural communities, which are understaffed, have fewer judicial resources, and have fewer judges, or sometimes only one judge. It's going to make it practically impossible for those cases to proceed in a timely fashion. It's also going to detract from other cases taking place in those courthouses, whatever they may be, and it's going to lead to delays in those cases because the judicial resources are going to be taken up dealing with all these pretrial applications with a seized judge who's now required to decide this particular issue.
One amendment I would suggest if this portion of the bill is passed is to allow those applications to be made before any judge. The judge who decides the written application shouldn't necessarily have to be the judge who then decides the in-person hearing, and shouldn't necessarily have to be the trial judge. That will allow for easier scheduling, particularly for communities affected by circuit courts where you might not have the judge returning for another six or eight months, and it then might not be the same judge.
I'll turn it over to my colleague, Ms. Leamon, to add her comments.
As my colleague Ms. Lee has stated, the problems with this bill are numerous, and while we all accept the seriousness of sex assault and the effect it has on our communities, this bill relies on the mistaken assumption that amendments to the Criminal Code will somehow significantly solve the problem.
It is misguided in that it seeks to solve a social problem that cannot be remedied through the criminal justice system alone. Not only will the rights of the accused person be unduly compromised, but it will also, in my view, have some significant issues with respect to the rights of complainants. That's particularly so for complainants from marginalized and disadvantaged backgrounds.
The amendment that seeks to allow a complainant to access counsel raises significant concerns in this regard. Without answers as to how such counsel will be provided for, access to counsel can be compromised when complainants do not have the monetary resources to secure such counsel. It has the effect of creating a two-tier system, in a sense, for sex assault cases. Complainants who can afford the services of a lawyer will receive the best representation, while those without it will be left in the cold. That's made all the more concerning by the fact that there is a relationship between sexual victimization and marginalization.
In my view, it's also concerning when we consider that this exceptional measure is only extended to complainants in sex assault cases and not any others. If we consider, for example, the very complex and difficult circumstances that are often involved in domestic assault allegations, for instance, it makes no sense to me that a complainant in a domestic assault case would not be afforded the same kinds of resources as one who's involved in a sex assault case solely on the basis of those allegations. It, again, has the effect of creating essentially a two-tier system within our criminal justice system.
There are significant concerns, as well, about how public funding could potentially pay for access to counsel if this is going to be provided through the public purse. We already have very serious concerns with legal aid. It is chronically underfunded, and without increasing funding to legal aid, I don't see how it's possible to fund further access to counsel for complainants in sex assault cases. The practical result would be that if we don't increase funding to legal aid first, but provide public funding for counsel for complainants of sex assault cases, we could have an accused person who ends up either unrepresented or under-represented, while the complainant is represented by their own counsel and also has crown, as well.
Complainants' access to counsel is also further likely to contribute to delays. In my view, it will also frustrate the role of crown counsel in making their case. It could lead to an increase in stays, mistrials, and delay to access of justice on a whole. In my view, it is contrary to the objectives that are achieved in this bill.
In my view, it would be amiss not to consider how restorative justice programs may better fit the needs of this community in terms of dealing with a very serious social problem of sex assault. Our brief does go through one of those programs, RESTORE, at length, so I won't discuss that any further now due to the limited time.
I'd also like to very quickly touch on the eradication of these so-called “zombie laws”. In my view, this is in line and consistent with modernizing our Criminal Code with principles of clarity and consistency.
With respect to section 176, again this is covered by more general application sections of the code, and crimes motivated by religious intolerance will be treated as aggravated in any event. If this is to remain, then I would suggest that we do expand the wording to be more inclusive and again to expand beyond “clergyman” and include any kind of religious leader, and that is keeping in line, of course, again, with Canadian values of multiculturalism and inclusivity.
That's great. It's going to be the first time.
One of those positive aspects is the removal of reverse onus provisions. A fundamental principle of our justice system is that the crown and the state must prove all elements of the offence beyond a reasonable doubt. Reverse onus provisions have the effect of imposing legal burdens on an accused person. Presumptions of those types, a reversal of the burden like that, can conflict with the Canadian Charter of Rights and Freedoms and the constitutional right to be presumed innocent until proven guilty. Removing those reverse onus provisions is good, but practically speaking, that's pretty low-hanging fruit. It's not something that comes up on a daily basis, and it's not something that is going to change too much in our court.
The repeal of outdated offences, similarly, is a good thing. The Criminal Code should be a simple document. It should be a general document that we can apply to specific situations. We are all, after all, presumed to know the law. The more complex and, literally, weighty the Criminal Code becomes, the more mistakes will be made by members of the public, judges, and triers of facts. Offences like alarming Her Majesty, possessing crime comic books, or disrupting religious services are simply unnecessary and add to the complexity that ought to be avoided.
Any harm caused by those activities—for example, disrupting a religious service—is covered by other sections of the Criminal Code: general public disturbance sections, harassment sections, and sections dealing with threats or assaults. Of course, as my colleague said, any actions that are motivated by hate, prejudice, or extreme ideology can be adequately dealt with as an aggravating factor on sentencing, and they already are. The only people who are really upset about removing those zombie laws and outdated laws are law professors, who are going to have one less funny story to tell their students about outdated and absurd Criminal Code sections. It's good that those are being repealed.
This bill doesn't repeal all outdated or unconstitutional sections, nor does Bill , which I'm sure this committee will be dealing with as well. For example, the unconstitutional mandatory minimum sentences, which have been found to violate the charter at various courts of appeal, and by the Supreme Court in the case of Nur, are left untouched by both of those bills. If we are really serious about taking out sections that have been found to be unconstitutional, there is no principled reason not to include those sections as well. The bill should be amended to include that. That's a glaring omission that should be corrected.
The other aspect of this bill is about sexual assault. It codifies some existing law with respect to sexual assault. I don't see too much of a problem with that. Too often, common law developments are hidden from the public. You have to have a subscription to CanLII or Quicklaw, or to be following a case, to actually see those developments in court. I think it's a good thing to codify some of those sections. It would be really good if we had a law reform commission again, which could take a broad look at our Criminal Code.
For example, the Supreme Court has made it clear that an unconscious person can't consent to sexual activity. That's the law. It's common sense, but it's also currently the law. Bill doesn't change that, but it makes it clear, and I don't think anyone could be faulted for that. It's a good thing as well.
One of the changes in this bill is unlike all the others, and that is the process for reverse disclosure—in my view, an unconstitutional expansion of the Mills regime with respect to documents in the possession of an accused person. It's a major fault of this bill. There are three issues with that. The first is the reverse disclosure problems. The second is overbreadth issues, which was touched upon by the previous panel, and the third is the impact that this would have on access to justice and to trial delays in our courts.
Dealing with the reverse disclosure aspect.... An accused has to bring this application within 60 days of their trial, and they have to disclose on the record, as part of that application, not only the record and the detailed particulars of the record and the information that they want to adduce, but also their trial strategy, why that's important. This is all prior to hearing the crown's case, prior to the complainant testifying. That's unprecedented in Canadian law. It infringes upon the right to silence.
The Supreme Court has confirmed that disclosure flows from the state to the accused. In the context of the adversarial system, the defence need not disclose any material to the crown. This isn't a civil system, after all; life, liberty, and security of the person are at stake.
This change also impacts the right to a full answer and defence in a fair trial. It undermines the process of cross-examination, which is a crucible for the discovery of truth. The Supreme Court of Canada has said that Canadian courts, as in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenets of our justice system that an innocent person must not be convicted. It follows from this that the prejudice must be substantially outweighed by the value of the evidence before courts can interfere. We cannot assume in our courts that all complainants are honest and credible. We can hashtag and believe all survivors outside of court, but not in court. That's a recipe for wrongful conviction. That is the fundamental tension with this process of reverse disclosure.
What we have to realize is that when the defence discloses this information, if a complainant is not telling the truth, if they are lying—and that happens—then you're disclosing that information to a liar. You're disclosing the information that could prove they're lying to a liar before they testify in court, so that they have time to change their stories and they have time to shade the truth. That is not the crucible of cross-examination that will result in accurate findings. It's a legislative woodshed for false allegations.
You can think of examples. For instance, a complainant who says that they were stabbed in the past and has the scars and shows them to the police, but the accused has lawfully obtained medical records showing that the scars came from surgery; or the example of a text message that the complainant sends to a third party, and that message is then forwarded to the accused and it is damning evidence that the complainant is not telling the truth. It's not in the interests of justice to disclose that information in advance.
I'd be happy to answer any questions about the other issues, with respect to trial delays and the like, but I would like to echo what Ms. Davies said in the previous panel, that this is also overbroad. There's a case before the Supreme Court right now touching on this issue, and for anyone who says that text messages aren't covered, we can turn to the B.C. Court of Appeal, which said they probably are, so we might have answers soon.
But in terms of breadth, I think this committee should take a hard look at that. I have some amendments that I can suggest when I'm questioned.
Good afternoon. It's an honour to speak before the committee for the first time.
I am a criminal lawyer, as is my co-presenter, Mr. Anthony Moustacalis. Mr. Moustacalis is the president of the Criminal Lawyers' Association. I am just a member. My practice is largely focused on sexual offence cases. I act for defendants. I also provide legal advice to complainants. Mr. Moustacalis in his past life was a crown attorney who focused on sexual prosecutions and child abuse cases.
The organization's history and expertise in this area is set out in my written brief, so I won't go into it. I would like to talk about some practical implications of the proposed procedural amendments to sexual offence law.
Before I do that, I want to echo what Ms. Davies said. It is absolutely within Parliament's power—and it's Parliament's job—to limit what defence lawyers can do. I'm not here to whine about tools being taken out of the defendant's tool box. I am here to say that you should only take an important tool away—a tool that, as Mr. Spratt said, strikes right at the heart of the right to silence and the right to full answer and defence—if you're going to do so with something that meaningfully protects the rights of complainants, which is the stated purpose of this bill.
I want to talk about how the proposed amendments not only are neutral in that respect, in that the current law, properly applied, provides all the protections that these amendments would provide, but are also harmful in a way that's been touched on by some members of the panel.
The first of the proposed amendments that I would like to focus on is the requirement that defence counsel apply to a court for a prior determination of admissibility for records that they intend to use. That's been addressed by other members of this panel and the previously panel. The second thing I'd like to talk about is the new requirement or the new rule that complainants would have a participatory right and a right to counsel for the first time ever in decisions about admissibility. They have the right already in third-party production applications where they have something to bring to the table as the third party, but this would be the first time in criminal law that a third party would be allowed to participate in evidentiary decision-making in a proceeding that has significant liberty consequences to the accused.
I'd like to start with what Mr. Spratt called the defence disclosure obligation, or the requirement that the defence have the admissibility of its materials vetted by the trial judge in advance of the trial.
My first practical request is that the committee look at clarifying exactly what type of use would trigger the application of this procedural mechanism because there are a number of different ways that we use records in our possession when we're preparing our defence. I'll use an example. Let's say we have a sex assault case where identity is an issue and I have a medical record showing that the complainant is legally blind.
First, I might use that record only to inform my preparation for the defence. I might draft a line of cross-examination in which I put to the complainant that they can't see and I expect them to agree. It's three steps back from admitting the document, but there's no question that I'm using the information in order to prepare my defence.
Secondly, I might use the record itself without ever applying or intending to admit it into evidence. For example, if the complainant doesn't remember they're legally blind, I might just silently put the document before them after they've had a chance to put on their glasses and ask them if that refreshes their memory about whether or not they have trouble seeing. No one ever needs to know what that record is, but I'm definitely using the document.
The third way, the way that seems to be captured by the proposed section 278.92, is introducing the record itself into evidence. Only that third scenario clearly triggers the new admissibility regime, but if Parliament's intent is in fact to go beyond regulating the admission of records to regulate their use by defence counsel in formulating theory and developing lines of cross-examination, then that should be clearly stated. Right now the word “adduce” is used in proposed section 278.92, which has a very unclear legal meaning. That provision should be clarified so that the scope of what triggers the application is clear.
My submission suggests that it should be restricted to scenarios where the defence intends to introduce the record itself into evidence. Anything further is, as Ms. Davies put it, an overbroad reach that goes beyond protecting complainants or protecting privacy interests. If I show a document to the witness, and no one needs to know what it is, and all it's doing is refreshing their memory, I should be entitled to do that without having to jump through the procedural hoops of having its admissibility assessed when no one wants it admitted anyway.
If I am going to ask a complainant a question about their eyesight, and I expect them to answer honestly—why wouldn't they?—then I shouldn't need to bring a pretrial application saying, “By the way, here's where that question came from, and here are all the other questions I might ask, and here's my thinking underlying those things as well”. It's really, I would suggest, the third scenario, the scenario where you're introducing a record itself into evidence or there's a risk that might happen, where the pretrial application process should be triggered. That would be my first suggestion for an amendment that could narrow the scope of the bill.
My second request on behalf of the Criminal Lawyers' Association is that the proposed section 278.92 pretrial procedure be reimagined as a mid-trial application. What I mean by that is, make it less complicated, and make it the kind of admissibility ruling that can be dealt with mid-trial, because experience shows us that this is when most of these applications are going to arise.
Let me make two points about that.
First is that nobody knows what the evidence at a criminal trial is going to be until the evidence comes out. I have no reason to think that a complainant is going to lie about being legally blind in a criminal trial. The first time that's likely to come out is in the middle of the evidence. Whether it's a 60-day notice requirement or a seven-day notice requirement, I can't possibly know in advance that my record about her eyesight is going to become relevant. It's the middle of the trial when that kind of issue is likely to crystalize.
The second point I would make is that it's at that point when the trial judge, the person who has to decide these applications, has the maximum amount of information about what the evidence's probative value is, what its prejudicial effect is, and what its legal relevance is. The test for admitting evidence, when the defence seeks to put it in, is “does its probative value exceed its prejudicial effect?” To make that decision, the trial judge should know as much as possible about what the live issues are and how the record might be used in the trial, which can't be done in a effective way on a pretrial application. If you make defence counsel do it, and we try to guess at what might happen, and then the evidence comes out differently, all we're going to do is renew our application in the middle of trial, and it's still a mid-trial application.
What amendment would accommodate that reality, when you're talking in real life about the kind of application that's going to come up in the middle of a trial and ideally should be dealt with in an afternoon or a couple of days?
Let's turn to what the law already offers. Here I would echo what Mr. Spratt has to say about the Criminal Code being a tool for communicating a message for educating people: judges, prosecutors, and defence lawyers. What you can do is codify the existing common law rules for dealing with this kind of mid-trial voir dire instead of creating a whole new procedure. I've set out in my speaking notes what the current law does. I would suggest that be codified in the Criminal Code as a way of sending a message, number one, to complainants that the law protects them, and number two, to defence lawyers that, by the way, you and other parties to the trial have a job to do in making sure that privacy isn't invaded needlessly.
I won't go into the steps of that because they are set out in my submissions, but it's simple. Counsel raises the issue, the witness is excluded, the trial judge hears submissions, the trial judge gets to see the document and hear about the proposed line of cross, and the trial judge makes a ruling. Defence counsel and crown have an ethical obligation to raise the issue if it's likely to come up.
To the extent that the current law is not protecting complainants, that is a failure in our education as defence lawyers and in the crowns' education as prosecutors. By the way, crowns actually have a positive duty to protect complainant privacy as part of their quasi-judicial role as quasi-ministers of justice. If you educate us, allocate funding to making sure we know what the rules are and set those rules out in the Criminal Code. That will go a long way to preserving the goals that you stated are the objectives of the bill without removing the flexibility that we need as defence lawyers to stop trials from grinding to a halt in the middle of the evidence.
I'm out of time, so I'm happy to answer further questions about that. Thanks again for this opportunity.
Thank you. I am very glad to have all of these criminal defence lawyers here who have articulated some of the issues so well. The comments that I have reflect what my colleagues have already said.
There is a different issue that I want to address, but let me say at the outset that, viewed as a whole, Bill should be commended as an effort to modernize the Criminal Code. The government should be applauded for that, for taking the initiative to develop a legal framework, imperfect as it is, to ensure that our communities are protected and victims are treated with respect and so on. It's a laudable goal.
I want to first of all address the so-called “rape shield” provisions. I agree with my colleagues that it upsets the delicate balance between the rights of the accused and those of the victims. These rights are at the very basis of our rule of law. I cannot support the proposed amendments that create what are described as “reverse disclosure” obligations, requiring, as Megan has said, the provision of certain records at a juncture that wouldn't be appropriate, or at all.
Causing the accused to make disclosure may seem at first blush to be a laudable approach, but this disclosure will be tendered during an application where the criteria that are actually set out in the bill for judicial discretion read more like a social policy framework. Those criteria suffer from drafting so broad that, in my view, they are actually rendered as meaningless platitudes. I have a really hard time going through that list of criteria while saying to myself, “This is going to really extend the length of trials while these issues are all being considered.”
What is the real consequence? The real consequence is that the victim intentionally or unintentionally governs her own evidence based on these known records. Whatever happened to testing evidence through effective cross-examination?
I practise civil litigation. I don't practise criminal law other than in parallel proceedings. I'm well used to the relevant and material disclosure by both parties, but the civil law, as has been said, is fundamentally different from the criminal law. What is it that we are trying to fix, exactly? Is it inadequate or under-resourced police investigations, or overworked crown prosecutors?
So far as I understand it, these provisions were made by the justice department without any consultation with major stakeholders such as LEAF or the Barbra Schlifer Clinic. Many stakeholders feel blindsided by having these kinds of substantive changes to sexual assault provisions sandwiched in the middle of a bill that has as a primary goal the cleaning up of the Criminal Code. I encourage the committee to rectify that anomaly by integrating the input of these valuable stakeholders before proceeding further.
Further, these so-called “rape shield” provisions—and frankly I'm old enough to know that's a pretty anachronistic term—would likely not survive a charter challenge. I won't go into why because it's already been set out. If we start to require this reverse disclosure for sexual assault offences but not for other egregious offences, we begin to erode the basic principles of our criminal justice system. These unprecedented provisions on the disclosure may inadvertently lead to wrongful convictions.
The stakes are high for both accused and victims. For both parties there is a high risk of social condemnation and stigmatization. Yes, we must support the rights of sexual assault victims who suffer untold consequences. But in my view, this must not be at the expense of the fundamental rights of the accused, or by weakening the social fabric because of a lack of forethought. While protecting the rights of both victims and accused may pose substantial challenges, it is, in my view, a challenge that this government should and can embrace. For all of these reasons, I cannot support the proposed reverse disclosure amendments to the sexual assault provisions.
I want to turn briefly to policy frameworks, leadership, and capacity.
In my view, a significant failure in enforcing sanctions against sexual assault is not a failure of the law. Rather, the failure is in the capacities of, implementation by, and performance standards of both the police and prosecutorial branches, and dare I say, the lack of particular knowledge and training of the judiciary.
As I'm sure is well known, this was aptly illustrated by the Ghomeshi trial where, given the evidence that was later produced in the defence in cross-examination, the crown failed to adequately prepare its case and probe the likely evidence regarding three key witnesses, which led to a finding by the trial judge that the witnesses were not credible, and indeed, were “deceptive and manipulative”. Was there a systemic failure in the crown's hands, or was the crown handicapped by lack of solid police work in gathering the evidence and vetting these witnesses?
This is not only a Ghomeshi issue. We have all witnessed the rather startling comments of judges across the country in sexual assault trials. We have specialized training, protocols, and required knowledge for other types of offences, such as domestic assault, and even, indeed, for bankruptcy, economic crime, and organized crime matters, among others. Surely specialized training and knowledge should be required for police, crown prosecutors, and the judiciary dealing with sexual assault proceedings.
After almost 30 years in policing, after serving as chief of police of a major city in this country and after some 15 or 16 years in the study and practice of law, there are some things that I know about. I know that there must be a broader examination of organizational systems, and structure, and leadership, if we are to avoid a crisis of social values, particularly in this area.
The fact of the matter, in my view, is that changing a law doesn't always get us where we want to be. We have to look at the supports that make our laws work for the benefit of all. We also need to make more resources available to support crown prosecutors. In my view, this is a major, though not only, issue of capacity. While acknowledging that the crown is not prosecuting on behalf of a sexual assault complainant per se, but rather on behalf of the state, we still have to allocate sufficient funds, training, and other supports to make sure that sexual assault victims are not revictimized by the system. We have long advocated this in Canada on behalf of domestic assault victims. The same should be done for victims of sexual assault.
Laws must not only be responsive and meaningful, but be effective. The proposed revision to the sexual assault laws that provide for a complainant's right to legal counsel is the first step. What is required, however, is more funding—government, quasi-government, and institutional—to be put in place to allow for, by way of example, reasonable and appropriate legal aid or alternative funding for this kind of representation.
But this is not simply a matter of funding. Sexual assault victims must be supported in other ways as well. For example, such victims may need counselling and other mental health services, as well as more knowledge of how the system works. We need a collaboration between the many professionals supporting sexual assault victims, federal and provincial authorities, and between the public and the private sector, all to create a sustaining attitude to support victims of sexual assault. Thus, a full infrastructure of support should be provided for sexual assault victims in addition to the proposed independent legal representation.
I cannot imagine much worse than putting a law in place that doesn't have the grounding required to make it work for all parties. This is not about or should not be about feel-good law. It is about getting down to the grassroots to meet the needs of those who are truly victimized, children or adult.
I want to very briefly touch on the unconscious person business. With specific reference to that amendment, it purports to clarify that an unconscious person cannot provide consent. I agree with the position submitted by LEAF that such a provision is not necessary, as this principle is well established in our common law.
The introduction of such a statutory section might create a bright line, short of which a lack of consent might not be found. Determination of whether consent has been given is a matter for the trial judge, and his or her discretion shouldn't be shackled in that manner, in my view.
There are numerous circumstances that I can think of beyond unconsciousness, and while one might say we covered that off in the drafting of the bill, I just don't know why it's there at all. I don't think it needs to be there. I think that issue of consent should be left to the court, where the facts can be considered.
That's all I'm going to say, and I'm happy to answer questions.
Yes, Mr. McKinnon, I would love to answer that question.
I can tell you that in addition to my role as a criminal defence lawyer, I also work extensively with marginalized communities in the non-profit sector in Vancouver's Downtown Eastside, so I have very close dealings with many individuals who are highly marginalized. It makes me uncomfortable—not only as a lawyer but as a Canadian citizen and as a human—to think about this two-tier system, whereby a complainant who is privileged, has a good income, has support, perhaps of his or her family, and has all the advantages in life to hire a lawyer, can access counsel, receive legal advice, and get better representation.
That's wonderful, but when you put that into the reality of the world, we have marginalized people who disproportionately fall victim to sexual assault. The mere perception that they aren't going to access the same kind of representation in the judicial system—let alone the practical reality of it—in my view, is enough to deter them from even coming forward, let alone their experience with the system itself, feeling further disenfranchised, further marginalized.
Yes, it is an action, but it's an action that has to be accessible to every complainant. Again, practically speaking, I don't see how we can use the public purse to adequately fund that when we're seeing legal aid programs being so underfunded. I have a lot of problems with how that's going to be implemented, and a lot of concerns about how people who are less advantaged will experience the system.
Colleagues, does anyone else have any questions? If not, I have a short one.
By the way, I just wanted to note this for the witnesses. People were suggesting that additional zombie laws should be attacked in this law, and I just want you to understand that it would be unreceivable for us to simply add new provisions that weren't mentioned in the original bill. Much as maybe we would like to include some, we as a committee cannot. I just wanted it to be understood that, if we don't act upon your suggestions, it is because we're not empowered to. They would be unreceivable.
I have a question for Ms. Savard because I got your point about replacing the word “adduce” with “intends to introduce into evidence”. I just want to go back to the premise of the three-pronged different types. You introduce, for example, a document that would certify that a witness was legally blind without wearing glasses. You gave three options.
First, you would learn information from that document and you would ask the question to the witness if he or she was indeed blind. Alternatively, should the witness then fail to answer the question appropriately by not being truthful, you would then perhaps put the document in front of the witness in order to refresh his or her recollection and say, “Does this document assist you in answering that question?” If the witness were still to lie in both of those circumstances, then the eventual intention would be to produce the document because you would be impeaching the credibility of the witness.
I understand the sequential approach, but in any of these cases, there would be an intention, if something happened, to introduce this into evidence. While I appreciate it—and I do think we have to really look very seriously at the approach—I'm not sure that actually works to separate it because in the end result, in all of these, if the witness is going to lie, you're going to introduce the document into evidence, would you not?