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]

Thursday, March 12, 1998

• 1537

[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): I call the meeting to order.

We're moving on to Bill S-5, An Act to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to other Acts. It's very concise.

Our witness today is the Honourable Anne McLellan, Minister of Justice and Attorney General of Canada.

Accompanying her from the Department of Justice are Mark L. Berlin, senior counsel, criminal law policy; Stephen Sharzer, senior counsel, human rights law section; Gloria Mintah, counsel, public law policy section; and Elizabeth Sanderson, senior general counsel, public law policy section.

Welcome to all of you. I know you have a brief. We'll be happy to listen.

Hon. Anne McLellan (Minister of Justice and Attorney General of Canada, Lib.): Elizabeth is sitting back there because we didn't want to overwhelm the members of the committee, but she is there if we need her.

[Translation]

Madam Chair, it is a privilege to appear before this committee today and speak to Bill S-5 which proposes amendments to the Canada Evidence Act, the Criminal Code and the Canadian Human Rights Act.

[English]

The bill is substantially the same bill that was first introduced in April 1997 as Bill C-97. As you know, that bill died on the Order Paper when Parliament was dissolved before the last election. Reintroduced in the Senate on a priority basis as Bill S-5, it was passed by the Senate last December.

This bill is a very positive move toward dealing with some of the most pressing issues raised by persons with disabilities.

As you are no doubt aware, earlier this month Prime Minister Jean Chrétien was at the United Nations to accept on behalf of Canada the Franklin Delano Roosevelt International Disability Award for this country's policies concerning persons with disabilities. The award recognized not only federal programs but also efforts made by all levels of government, as well as the private sector, to improve access for persons with disabilities.

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Before the United Nations, Mr. Chrétien said:

...today, I want to say to my partners—here in this room and beyond—that as Canada begins moving into a post-deficit era, as we make strategic investments that enhance opportunity for all, Canadians with disabilities will be included.

Bill S-5 is one of those strategic investments. It is the result of several years of development. For example, in May 1991 the federal government made a commitment to a five-year national strategy for the integration of persons with disabilities. A first step in this initiative was a 1991 bill that amended several federal laws to remove some specific barriers to access for persons with disabilities. It included one amendment to the Criminal Code.

In its fourth report to the House in 1995, the Standing Committee on Human Rights and the Status of Disabled Persons recommended the taking of legislative initiatives with a view to removing obstacles to access for persons with disabilities.

In October 1996, the Federal Task Force on Disability Issues, chaired by the Honourable Andy Scott, presented its report, Equal Citizenship for Canadians with Disabilities: The Will to Act. This report made many recommendations on behalf of Canadians with disabilities, including that the federal government introduce amendments to the criminal law and to the Canadian Human Rights Act. Bill S-5 responds to these specific task force recommendations.

[Translation]

Madam Chair, I will first of all speak to the proposed amendments with respect to the Canada Evidence Act and the Criminal Code. These amendments are designed to assist Canadians with disabilities to access the criminal justice system more readily.

[English]

The Canada Evidence Act would first be amended to ensure that communication assistance will be available to witnesses with communication disabilities. For example, this would provide for the use of assistive listening devices for persons who are hard of hearing, the use of sign language interpretation by persons who are deaf, or a Bliss board for persons with cerebral palsy.

The Canadian Evidence Act would also be amended to provide for identifying an accused by alternative methods, for example, by auditory or tactile means in addition to the more traditional method, which is of course visual identification.

One amendment to the Criminal Code would permit testifying with the help of videotaped evidence, in the case of witnesses with communication disabilities, for an established list of offences ranging from offences in the area of sex abuse to assault.

As already provided in section 715.1 for witnesses under the age of 18, the videotaped statement of a disabled person would be admissible in evidence only if this person, when testifying, adopts the content of the videotape. This means the witness would not have to repeat once more all the facts relating to the offence, which in some cases may be difficult because of a disability affecting communication or some other type of disability. At the same time, the witness is available for cross-examination. Witnesses who might, in the past, have been practically unable to testify will be able to do so under this new provision.

In addition, as a means of protecting the privacy of the disabled individual whose testimony is recorded on videotape, the Criminal Code would further provide that the court can order restrictions with respect to the use of the videotape.

Still with respect to the Criminal Code, a set of important related amendments would be designed to enhance the participation of persons with disabilities on juries. For instance, paragraph 638(1)(e) would be amended to provide that a physical disability is not of itself a cause for exclusion if, with appropriate technical assistance, support or interpretation, the person is capable of jury service.

The other amendments related to jury service would provide for the presence of interpreters or support persons who are assisting a juror with a disability. Section 649 would be amended to oblige these persons to not disclose jury deliberations and to not interfere or influence jury deliberations. Subsection 631(4) would be amended to provide that any interpreter or support person must swear to interpret objectively and to refrain from interference or undue influence.

I want to emphasize—because I know this has been raised, at least in the Senate hearings by some—that the presence of an attendant or interpreter does not in any way amount to consideration of that person as a thirteenth juror. On the contrary, the amendments make it clear that this individual has a singular status as a support person to a juror with a disability.

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The Criminal Code would also be amended to include a new provision creating an offence of sexual exploitation of vulnerable persons with disabilities who are particularly dependant upon a person who abuses them. This would be a hybrid offence punishable upon summary conviction, for a term not exceeding five years.

Persons with disabilities who are institutionalized or who receive attendant care in their homes stand most to benefit from this protection against sexual exploitation by their caregivers. In keeping with concerns expressed by the disability community, it will nevertheless be possible for a dependent adult to consent to such sexual activity where he or she so chooses.

[Translation]

This bill also contains amendments to the Canadian Human Rights Act. I would like to discuss with you some of the main elements of the bill. In the process, I will try to address some of the questions that were raised in the course of the debate on second reading in the House.

[English]

First of all is the duty to accommodate. The key element of the Canadian Human Rights Act amendments is the addition of an express duty to accommodate. The duty to accommodate requires employers and providers of services and goods to accommodate the needs of persons protected under the act, except where it would cause undue hardship, taking into account health, safety and cost. The duty of accommodation will help to eliminate barriers so that everyone can compete equally in the workplace and can have equal access to goods and services.

This is not the first time that such a duty will have been recognized in Canada. The Ontario Human Rights Code, enacted in 1986, contains a comparable duty to accommodate. Similarly, under the Canadian Human Rights Act, Supreme Court of Canada decisions recognize the duty of employers and service and goods providers to accommodate up to the point of undue hardship.

The wording of the proposal before you today, I believe, represents a balance between the interests of the various stakeholders. The standard of undue hardship adopted in the bill ensures that the needs of persons with disabilities are addressed. At the same time, it provides employers and providers of services and goods with sufficient flexibility to manage their businesses.

Let me just say a few words about proposed changes to the Canadian Human Rights Tribunal.

The Canadian Human Rights Tribunal would be restructured. The current ad hoc panel would be replaced by a smaller, permanent tribunal comprised of fifteen members, including a chairperson and a vice-chairperson. Members of the tribunal would be chosen from among people with experience and expertise, and who have demonstrated an interest in and sensitivity to human rights matters. Regional representation would obviously also be a factor in the selection process.

It is the belief of the government that the efficiency of a small, dedicated, permanent tribunal would better serve the needs of persons protected by the act. In addition, the Canadian Human Rights Commission will be empowered to file its annual and special reports directly in Parliament, instead of following the current practice of filing them through the Minister of Justice.

As you know, the commission is an independent arm's length agency, and the government has always operated with strict regard for this principle. As the commission is empowered to hear complaints against the government, it is very important that this principle of independence be respected. This amendment would provide a symbolic confirmation of the independence of the commission.

In the course of the House debate, questions were raised about some of the provisions in the bill. A suggestion was also made about granting the commission an advisory mandate. Before I address these concerns and suggestions, I would like to note that these same issues were considered by the Senate Committee on Legal and Constitutional Affairs.

The bill requires four of the fifteen members of the tribunal to be lawyers. Proceedings before the tribunal have become more legalistic. I suppose there are those of us who might regret that, but it is a fact of life. The tribunal is increasingly having to deal with complex issues of law and questions of evidence and procedure. Moreover, the tribunal can be called upon to determine the validity of other federal legislation against the standard set in the Canadian Human Rights Act. I am therefore of the view that having legal representation on the tribunal would be helpful and would assist in the expeditious adjudication of some of these complex legal evidentiary and procedural issues.

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Concerns were also raised about requiring members of the tribunal to reside in the national capital region and that this might deprive the tribunal of the expertise of people from other regions of the country. The bill requires only the full-time members of the tribunal to reside in the national capital region. The bill provides for only two full-time members, the chair and the vice-chair, and only these two members, to be obliged by law to reside in the national capital region. The other thirteen, unless they are appointed on a full-time basis, are not required to reside in the region.

Bill S-5 itself provides for regional representation to ensure that the interests and concerns of the whole country are reflected in the make-up of the tribunal. Currently, the tribunal panel consists of members from all regions of Canada and I expect this to continue. In fact, I believe it should continue under a restructured tribunal.

Concerns have also been expressed about subjecting the tribunal members to remedial and disciplinary measures by the Minister of Justice and that this would compromise the independence of the tribunal in relation to the minister. This provision does not give the minister the power to interfere in or with the activities of the tribunal. The remedial and disciplinary provisions are activated only if the chairperson of the tribunal makes a request to the minister to decide if a member should be subject to remedial or disciplinary measures. If the minister decides that an inquiry should be held, she must refer the matter to the Governor in Council. The Governor in Council is the only authority vested with the discretion to appoint an independent judge to conduct the inquiry and has the sole power of suspension, dismissal or imposition of other disciplinary measures.

As to the independence of the tribunal vis-à-vis the Canadian Human Rights Commission, I do not believe that the referral of cases by the commission could in any way compromise the independence of the tribunal. As you know, the tribunal has been given statutory powers to set its own rules and has absolute control over its processes and procedures. Its power to dispose of cases in a way that it sees fit and just is not interfered with or fettered by any agency, including the commission.

Madam Chair, the whole question of the advisory mandate for the commission arose in the Senate against the background of the New Brunswick Human Rights Act. The issue is still whether it would not be advantageous for employers and service providers to find out in advance from the Canadian Human Rights Commission whether or not their policies and practices conform to the duty to accommodate standard and thereby avoid litigation.

As I indicated when I appeared before the Senate committee, I think the issue is an interesting one. In my view, this involves more than the duty to accommodate. It relates to all aspects of the Canadian Human Rights Act. It affects the role of the commission in administering the act and raises procedural issues. It is our intention to deal with the role and process issues in the planned broader review of the act. Presently, the focus of the department is on this bill and its passage. As soon as the bill is passed, my officials will turn their minds to the next phase and will work out the process for the broad review.

I do not believe it is necessary at this point to give the commission a formal advisory mandate. As Madame Falardeau-Ramsay, the chief commissioner, advised the Senate committee, sections 17 and 18 of the Canadian Human Rights act authorized the commission to approve in advance a plan to deal with accommodation issues. In addition, because the commission is in constant consultation with organizations regulated under the act, it is able to handle long-term plans dealing with accessibility issues that, in the long run, will obviously avoid unnecessary litigation.

In conclusion, Madam Chair and other members of the committee, these are simply some of the highlights of the proposed changes to the Canada Evidence Act, the Criminal Code and the Canadian Human Rights Act. These proposed amendments reflect our recognition and acknowledgement as a society of the important contribution of the more than 4 million Canadians with disabilities. They are about fairness, about integration, inclusion, full participation of all individuals and groups, including persons with disabilities and religious minorities, in the economic and social activities of Canada without being hindered or prevented from doing so by discriminatory practices. They are about equality, which forms the basis of the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms.

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I would like to conclude with the words of Madam Justice Desjardins of the Federal Court of Appeal in the recent case of Richmond v. Canada (Attorney General). One thing I've discovered since becoming Attorney General is that I'm in court more than any other person in this country, in one guise or another. She said:

Fairness...is the desire of all. It is a significant goal that is worth striving to attain. ... If there is to be true equality and fairness...then it follows as the night the day that there must be a duty to take...steps to accommodate. ... This is essential if the aim of human rights legislation is to be fulfilled. Anything less defeats the purpose of such legislation and makes it a hollow enactment of little value.

It thus can be taken that the duty to accommodate is a fundamentally important aspect of human rights legislation and an integral part of the right to equality.

Madam Chair, Canadians deserve more than a hollow enactment of little value. These amendments not only ensure accommodation in relation to employment and the provision of services and goods, but they will also, within the criminal law context, help us and our country to fulfil some of the essential aims of the Canada Evidence Act, the Criminal Code and the Canadian Human Rights Act.

[Translation]

I wish to thank you for the opportunity to address the committee on this important bill.

[English]

At this point, I would be very pleased to take any questions or receive any comments, suggestions or recommendations you might have in relation to what I think is an important piece of legislation that helps deliver on the Prime Minister's commitment in New York at the United Nations two weeks ago.

The Chair: Thank you.

Could colleagues let me know who has questions so that I can moderate this to a certain extent? Mr. Ramsay, you go first. You can take about seven minutes.

Mr. Jack Ramsay (Crowfoot, Ref.): Madam Minister, thank you for appearing before the committee and making your presentation.

Ms. Anne McLellan: My pleasure.

Mr. Jack Ramsay: I would like to thank your officials for appearing with you.

Our caucus is recommending support for this bill, so I have only about 35 questions I want to ask you.

Some hon. members: Oh, oh!

Ms. Anne McLellan: Okay, thank you.

Mr. Jack Ramsay: First of all, it was your justice department that drafted the bill?

Ms. Anne McLellan: Yes.

Mr. Jack Ramsay: Then why is it that you allowed this bill to be entered through the Senate?

Ms. Anne McLellan: I realized that this was an issue of some controversy for members in the House of Commons, and I would think it's probably an issue of some controversy for members of all parties. I don't see the question you raised as a partisan one, and I don't think you intended it that way. I acknowledge the concern that has been identified by some members of all sides of the House in this regard.

The reality is that when we returned in September the government House leader approached some ministers to see whether it would be possible to expedite the work of the House of Commons by introducing some pieces of legislation into the Senate.

I agreed—I take full responsibility for that, Mr. Ramsay—that Bill S-5 was one of those pieces of legislation that could be introduced in the Senate and that it could benefit from the review of senators. In fact, they worked very hard in the weeks leading up to Christmas in relation to conducting thorough hearings in relation to this legislation.

There is now ample opportunity for those in this committee to do their work and offer their insight. In fact, you can comment upon that which the Senate did if you find it appropriate.

I understand your concern, but I think if the government House leader were here, he would say that we wanted to expedite as many pieces of legislation as possible. And this is an important piece of legislation. I felt that if it would expedite its movement through the parliamentary process to have it introduced in the Senate, then we should consider that, and I did.

Mr. Jack Ramsay: Is there anything left of my seven minutes?

• 1600

The Chair: Yes. But she run you a good challenge, I think.

Some hon. members: Oh, oh!

Mr. Jack Ramsay: Do you intend to introduce any other bills through the Senate in this way?

Ms. Anne McLellan: I don't.

Mr. Jack Ramsay: Thank you.

I would like to move on to areas of the bill. There are going to be additional costs for the administration of certain aspects of the bill by the provinces. First of all, has your department done a cost analysis of any additional costs, and if so, have you gained support and approval from the provinces regarding the additional costs?

Ms. Anne McLellan: Mr. Berlin, do you want to answer that question?

Mr. Mark L. Berlin (Senior Counsel, Criminal Law Policy, Department of Justice): I can respond vis-à-vis the criminal justice system.

Ms. Anne McLellan: Right.

Mr. Mark Berlin: I think the amendments related to the costs would be borne by things like attendant care or videotaped evidence...in our consultation process that led up to the minister introducing legislation, we had a number of years of federal-provincial consultation with the provinces' stakeholder groups. We were told that, indeed, what we were doing in the legislation, for the most part, is what currently exists in practice in courts throughout the country.

For example, there are services provided for persons who wish to give testimony. There are means whereby they can use alternate methods of communication. What we wanted to do in the legislation was to simply formalize it and accept the fact that it could be done nationally. What we were told through the court administrators and through our provincial counterparts was that these were basically current practices now being formally recognized in the statute law.

So in one respect, it is not an incursion of new expenses since it simply formalized recognition of ongoing practices. We were told that any cost...and I should assure you that I don't want to skip the question. We haven't done a cost-benefit analysis on a province-by-province basis on how much this is likely to incur per section, but we didn't hear from the provinces that it was necessary or that fulfilling the obligations under this legislation was going to burden them to any great extent. Indeed, it's more of a reflection of current practice and the ongoing current costs of the administration of justice.

Ms. Anne McLellan: And the other thing, Mr. Ramsay, if I might say so, is that whenever we, through our legislation, create a new cost or burden for the province whose constitutional responsibility is the administration of justice, I hear. I met with my colleagues in Montreal in December and they were fully apprised of what we were doing.

I think, as Mr. Berlin has pointed out, that because of the consultations and because the provinces do not see this as adding in a substantial way to the cost of administering the criminal justice system, they expressed no concerns in relation to it and, I would have to say, are generally very supportive of what is being done here.

Mr. Jack Ramsay: So you're not anticipating any substantial or substantive increase in costs?

Ms. Anne McLellan: No, not based on discussions with court administrators.

Mr. Jack Ramsay: My final question for this round, then, has to do with the admirable parts of this bill that are certainly going to enhance the provisions allowing for disabled witnesses to appear in court.

However, there is evidence in British Columbia, for example, that there are 40,000 cases backlogged. In fact, just last fall, the B.C. Court of Appeal allowed a stay of proceedings in a case that had been sitting for 17 months because of lack of prosecution.

On March 9 of this year, just this past week, a lawyer in Fredericton, New Brunswick, complained about the same backlog. In fact, the justice minister indicated, according to the newspaper article, that he'd be asking Ottawa to appoint another judge.

So as a result of all these different levels of appeal that have emerged in different pieces of legislation, whether it's a reverse onus under Bill C-37 or whether it's that second level of appeal under the faint hope clause, there is an enormous backlog occurring. This is going to create...although this bill is going to open the door for disabled individuals and it's at least going to open the door for them on paper. But if they're going to be frustrated as a result of having their cases sitting for month after month, and perhaps have their cases dismissed because of the backlog, it's simply going to frustrate matters. What is your department doing to address the backlog that exists so clearly in B.C. and perhaps other parts of the country?

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Ms. Anne McLellan: First of all, let me say that I have not talked to the Attorney General of British Columbia. He has not raised this or brought this to my attention.

First of all, backlogs are administration of courts issues. If there was a substantial backlog, the chief justice of whichever level of court one was dealing with would be responsible for taking that to the provincial attorney general. If, in conjunction with the chief justice, the provincial attorney general determined that there was a backlog, there are a number of strategies that could be adopted. For example, case management is one within the power of the court in order to move more cases through the court system. If they felt that and other related and similar kinds of administrative matters or processes could not deal with the backlog, the attorney general could come to me and to the federal government to make the case for additional superior court judges. Attorney General Dosanjh has not done that.

I am not aware that there is a vacancy at least in the Court of Queen's Bench in New Brunswick, but I know the Attorney General of New Brunswick has spoken to my department in relation to the size of that province's court.

I take allegations of backlogs in the judicial system, in the court system, very seriously because what they do is undermine rights to accessibility. If Canadians don't have access to the courts in a timely fashion, they are not receiving fair justice in the sense that justice delayed is justice denied.

Certainly, Mr. Ramsay, I will take up what you've said here, but as I said, I've not heard from Attorney General Dosanjh about a backlog in the courts. He may be dealing with it internally with the chief justice, which is in fact how most of these backlogs are dealt with.

Mr. Jack Ramsay: You are aware of the decision of the Supreme Court of Canada that stated undue delay was justification for dismissal or a stay.

Ms. Anne McLellan: Oh, yes, and the courts have been dealing with that since it was decided. The courts have been dealing with—and I think it's fair to say attorneys general have been dealing with—the implications of that. Absolutely. That's why attorneys general and chief justices see timeliness as such an important issue.

I appoint judges on behalf of the federal government. The constitutional power of the federal government is to appoint superior court judges. If after consultation with his or her chief justice, an attorney general believes that there is a backlog requiring the appointment of an additional superior court judge, he or she can certainly come talk to me about it.

Mr. Jack Ramsay: But doesn't 40,000 in B.C. indicate a problem to you?

Ms. Anne McLellan: It is up to the Attorney General of British Columbia to decide how he wants to deal with that. If he wants to think about an increase for the superior court bench, he can talk to me about it.

Mr. Jack Ramsay: Thank you.

The Chair: Okay, thank you.

[Translation]

Ms. Dalphond-Guiral.

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Ms. McLellan, I'd like to thank you for coming here this afternoon. Before asking my questions, I'll make two comments.

I must say I am pleased to see the letter S before the bill we are dealing with, since for once the Senate makes it possible to accelerate things. I hope this desire to accelerate the process will mean that we can adopt the bill as quickly as possible. That is my wish, particularly since the majority of people who look after the disabled have made known to me their satisfaction with this bill which, although it does not provide everything they want, is at least a step in the right direction.

I listened to you carefully since my arrival and many of your comments clarified some of my concerns, though not all of them. In French when we talk about les gens de robe, it is a traditional reference to the legal profession. I consider myself to be une femme de robe, although I am not a member of the legal profession. So I'll ask you the kind of question that many people like me ask themselves.

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Clause 2 amends the Criminal Code to establish a maximum sentence for a person who sexually abuses a person considered to be disabled. What is the maximum sentence for a person found guilty of sexual assault of a person who is not in this category?

[English]

Ms. Anne McLellan: Who is not handicapped...?

[Translation]

Ms. Madeleine Dalphond-Guiral: Yes.

[English]

Ms. Anne McLellan: Do you have the code, Mr. Berlin?

Mr. Mark Berlin: Yes, I do. It's section 264.

[Translation]

Ms. Madeleine Dalphond-Guiral: I thought you knew that by heart.

[English]

Ms. Anne McLellan: I understand that you're asking me about the maximum sentence for someone who is not disabled...a sexual assault. Here it is. Everyone who commits an assault is guilty of:

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

[Translation]

Ms. Madeleine Dalphond-Guiral: So it's the same sentence. You know that we are not particularly in favour of tough sentences or excessive punishment but I'd like to make a personal comment.

[English]

Ms. Anne McLellan: Yes. I do know that.

[Translation]

Ms. Madeleine Dalphond-Guiral: I admit I'm quite disturbed to see that the maximum sentence is the same for people who are in a position of trust and authority towards other persons who do not have the same mental or physical abilities as you and I. It makes me think of very young children who are the victims of sexual assault: My Goodness, it's quite dreadful to be sexually assaulted at the age of 15 but if the victim has normal intelligence, it's not quite the same thing as a person with a mental disability.

In any case, the fact is that we are dealing with people who are particularly vulnerable. I imagine the matter has been properly studied and once a certain amount of time has elapsed, we will be able to assess the situation. We do know, however, that children in particular and the weak are extremely vulnerable to such assaults.

This situation is of great concern to organizations and groups that look after the disabled. It's a rather dramatic situation. In my opinion, the purpose of this kind of bill is to provide the greatest degree of security possible without resorting to extreme measures. That is a personal comment that reflects my own view.

I'd like to ask you a second question. The tribunal to which reference is made can be considered an administrative tribunal, I take it. Was consideration has been given to having a proper tribunal with real judges, similar to the procedure in Quebec?

[English]

Ms. Anne McLellan: I understand the first point you raise, and I thank you for expressing it. That's why you see section 153.1, which will amend the Criminal Code, in the form it is. It speaks to the relationship of trust and dependency. We are setting that out to flag for society that we view this as a particular breach of society's rules of conduct. We're signalling to people that if you are in such a position of trust or authority, we view very seriously acts such as touching, either directly or indirectly, or anyone who, directly or indirectly, invites or counsels or incites a person with a disability to touch. That's why the provision is there. We do view that as a particularly serious breach of good faith and trust in our society.

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In relation to the second question you ask, when you talk of an administrative tribunal, are you referring to the jurisdiction and authority of the Human Rights Tribunal, or is your question in relation to proposed section 153.1?

[Translation]

Ms. Madeleine Dalphond-Guiral: Yes, that is correct. I'd like to check it with my legal counsel who is sitting behind us.

[English]

Ms. Anne McLellan: About that breach of trust, in fact this is going in the Criminal Code, and this would be dealt with by a court. This would not be dealt with by the Human Rights Tribunal. It would be dealt with by either a provincial court judge or a superior court judge in the province of Quebec or any other province. It would be dealt with in exactly the same way other Criminal Code matters would be dealt with.

[Translation]

Ms. Madeleine Dalphond-Guiral: I see. Provision is made in this bill for a tribunal that will deal with other breaches relating to the disabled. That was the tribunal I was referring to.

[English]

Ms. Anne McLellan: Yes.

[Translation]

Ms. Madeleine Dalphond-Guiral: It is obvious to me that anything relating to the Criminal Code involves proper judges. I was referring to a tribunal that would be called upon to deal with other breaches. Would this tribunal be similar to an administrative one? Yes or no?

[English]

Ms. Anne McLellan: Well, there are provisions in Bill S-5 where matters would be brought before the Canadian Human Rights Tribunal, and that is in fact an administrative tribunal. That tribunal deals with allegations or complaints regarding discrimination on a number of grounds—and they're listed in the Canadian Human Rights Act—one of which is disability.

So whether the complaint of discrimination is on the basis of disability, gender, religion, or whatever the case may be, those issues are brought before the Canadian Human Rights Tribunal, and you are quite right, that is an administrative tribunal. But this issue we have been talking about in relation to proposed section 153.1, sexual exploitation of a person with a disability, is a Criminal Code offence and will be dealt with by the ordinary courts of the land.

The Chair: Thank you, Madame.

I'm going to go to Mr. Alcock, but Mr. Berlin, I'll just stick a bug in your ear now, and maybe you can answer this for me later. I'd like to know how you can consent to an invitation per proposed section 153.1. I'd like you to address that.

Mr. Alcock.

Mr. Reg Alcock (Winnipeg South, Lib.): Thank you, Madam Chairperson.

It's a rare moment when I regret not being a lawyer—

Some hon. members: Oh, oh!

Mr. Reg Alcock: —but this may be one of them.

First, Madam Minister, I'd like to congratulate you. This is a terrific piece of legislation. I've worked with disability groups for very many years, and I know the work that's gone into developing it.

I thought I understood one provision, and then after the previous questioner talked about it, I'm not certain I do. You have determined in the bill that there is a special relationship between a caregiver and a dependent adult, and as a result you've identified a penalty specific to an action by that caregiver against their charge, correct? And you say if an individual assaults another individual who is not in their care, where there's no dependent relationship, they are liable to, upon summary conviction, up to a maximum of five years.

Ms. Anne McLellan: No, no, an indictable offence. If it's done by indictment, you possibly can be imprisoned for a term up to but not exceeding five years. If you go by summary conviction, in a situation involving a non-disabled individual, it's up to six months, as I understand it, whereas in our act, for a summary conviction you can be liable to imprisonment for a term not exceeding 18 months. We have increased it if there is a violation of this relationship of trust.

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Mr. Reg Alcock: So there is a differentiation. It wasn't just a restatement of an assault clause.

Ms. Anne McLellan: On indictable it is the same, but on summary conviction we've increased it up to a maximum of 18 months.

Mr. Reg Alcock: Is that in addition to a charge for assault or is that the charge for assault?

Ms. Anne McLellan: No, it would be either/or. This is a specific assault provision identifying a violation of that relationship of trust. I suppose if you wanted to you could proceed under the existing provisions of the code. There's no reason why you couldn't. We simply want to clarify that society views this kind of breach or defines it as a breach or violation of our norms and values if in this situation a disabled person is counselled, incited or invited to touch directly or indirectly the body of another person.

Mr. Reg Alcock: Help me understand this duty to accommodate. Is this a duty that's imposed on the courts and the judicial system alone, or can it be expanded to request accommodation in other services that will be provided, particularly by levels of government?

Ms. Anne McLellan: The duty to accommodate that we're establishing would apply generally within the jurisdiction of the Canadian Human Rights Act. So it does apply to us. It applies to employers who come within federal regulatory jurisdiction, which is why, of course, the Canadian Bankers Association has expressed its views in relation to that duty to accommodate. So the duty to accommodate will apply to any organization, public or private, or any entity, public or private, that comes within the jurisdiction of the Canadian Human Rights Act.

Am I correct in that?

Mr. Reg Alcock: Just to move to a more specific example, I work very extensively with the deaf community and it has argued for some time for the need for ASL interpretation in the courts, and the courts have provided that. It's quite common now to get interpreters. It has also had those same discussions within the health care system for when people are in hospital or when they're dealing with a government on a specific provision of service that may be less related to justice but more related to the normal conduct of business. Does this provision really strengthen their ability to request those kinds of service?

Ms. Anne McLellan: It doesn't in relation to hospitals, because hospitals are within provincial jurisdiction and this legislation only extends to those organizations and entities within federal jurisdiction, so I want to clarify that.

Mr. Stephen Sharzer (Senior Counsel, Human Rights Law Section, Department of Justice): I think the important thing to remember is that with respect to the administration of justice, as the minister has said, it comes within provincial jurisdiction. So this act would not generally apply to the provincial courts or the superior courts of the province. Issues like this would come under provincial jurisdiction but it might well apply to the federal level.

Ms. Anne McLellan: It could apply to the Supreme Court of Canada.

Mr. Steven Sharzer: I haven't seen a case on that, because it would have to bring itself within the idea of being a service customarily available to the general public. But it might well be.

Mr. Reg Alcock: In the range of services provided by the federal government it would apply, outside of the courts, in all other jurisdictional areas.

Ms. Anne McLellan: Yes.

Mr. Steven Sharzer: The other thing I might mention is there are other provisions within the context of the criminal system where rights to interpretation would be available. But I think Mr. Berlin could speak more to that.

Ms. Anne McLellan: They're in relation to the rights to a fair trial. That's comprehended.

Mr. Reg Alcock: Yes, and that portion is pretty clear. I don't think there's a lot of concern about that at all. Broadening that sense of access will be of great interest to people.

• 1625

The Chair: Thanks, Mr. Alcock.

Mr. Reg Alcock: Thank you.

The Chair: I want to go to Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): I think I'm going to get a little technical here, but I want to focus on the section raised by Madame Dalphond-Guiral, proposed section 153.1.

Can you tell me, was this bill amended in any way in the Senate before it arrived here?

Ms. Anne McLellan: It was, but not in relation to this provision. There was a minor amendment proposed by Senator Kinsella, but it had nothing to do with proposed section 153.l.

Mr. Derek Lee: Is it your view that proposed section 153.1 creates a new offence involving elements that are not present already in the Criminal Code? If so, what are the elements of the offence described here that are not already in the Criminal Code?

Ms. Anne McLellan: I'll let Mr. Berlin answer that.

Mr. Mark Berlin: It's a great question and it arose in our consultations. There are a lot of aspects of this provision that are covered by general sexual assault provisions or assault provisions.

Mr. Derek Lee: May I stop you there?

Mr. Mark Berlin: Sure.

Mr. Derek Lee: As I read this section, I do not see any element of assault contained in the major elements of the section. The essential element of this offence is inviting, counselling or inciting. So any reference to assault is misplaced, unless I've missed something. Am I correct?

Mr. Mark Berlin: You're absolutely right. Let me clarify this. This offence...let's characterize it. It would be calling it an offence of sexual touching.

Mr. Derek Lee: What would it be?

Mr. Mark Berlin: An offence of sexual touching.

Mr. Derek Lee: This offence?

Mr. Mark Berlin: This offence. You can—

Mr. Derek Lee: I'm sorry sir, you didn't hear me. As I read this, the essential element of this offence is inviting, counselling or inciting, not to touching.

Mr. Mark Berlin: But it's inviting, counselling or inciting an individual to touch himself or herself.

Ms. Anne McLellan: For the purposes of touching.

Mr. Derek Lee: I understand. But if a touch never occurs, the offence can still have taken place. You may invite, counsel and incite to touch, but if the touch never occurs you still have an offence under the wording of this section, the way I read it. Am I correct?

Ms. Anne McLellan: Yes. That's how I read that section.

Mr. Mark Berlin: Okay.

Mr. Derek Lee: Thank you.

Now, can you describe to me the elements of this offence that are not already in another offence in the Criminal Code?

Mr. Mark Berlin: The aspects that we felt were not in this offence, which mirrors clearly proposed section 153.1 already in relationship to young persons—

Mr. Derek Lee: That is what is referred to generally as the invitation to touching offence.

Mr. Mark Berlin: That's right.

Mr. Derek Lee: Correct. Okay.

Mr. Mark Berlin: This would be a companion offence in relationship to the specific instance of persons with disabilities. The thought was about the uniqueness of persons with disabilities, and the difference here would be that there would be the possibility for a person with a disability who is an adult, as opposed to a child, to consent to the invitation for touching, which could not be carried out by a young child, who could never provide that sort of consent. In one respect it is very similar to the existing section in relation to young persons, but unique in relationship to persons with disabilities.

Mr. Derek Lee: You've placed focus on the consent.

Mr. Mark Berlin: That's right.

Mr. Derek Lee: I suggest to you that it's irrelevant and misplaced, the concept of consent here, because you don't need to have a touch to constitute the offence. Therefore, you never have to have the consent, unless you're saying that you have to have the consent to make the invitation. Is that what you're saying, that you have to have consent?

Mr. Mark Berlin: No. The way I would characterize this, and it speaks to the chair's earlier comment and invitation for me to respond, we would characterize this as consent in relationship to touch. It is not consent to invite, it's not consent to counsel, it's not consent to incite, it's consent to the touching.

Mr. Derek Lee: But there is not touching required under the wording of this offence. Why would you ask me to concern myself with consent issues when there is no touching required?

• 1630

Ms. Anne McLellan: Yes, I see your point, Mr. Lee, and I think we should just take a look at the drafting of this section. I do see your point.

Mr. Derek Lee: Now, I want to get to another point. I want to direct your attention to line 15:

and the body of the person with the disability,

I just want to direct your attention to it. You don't have to spend too much time on it because I'm going to put my comment in context.

As I read this proposed section, that particular phrase must be included with a phrase above. I'm going to read it so it's in context and you'll understand what I'm saying. I'm going to paraphrase a little bit to get through it. My ability to do this, Madam Chairman, comes from a point in time in 1971 when I was forced to learn section 22 of the Income Tax Application Rules in law school.

The Chair: Poor man.

Mr. Derek Lee: It took me all night, and I finally did it by about 4 a.m.

The Chair: Did you pass your exam?

Mr. Derek Lee: I did. Thank you.

Now, I'm going to paraphrase:

Every person who...without the consent of the person with the disability...invites, counsels, or incites the person with the disability to touch...with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels, or incites and the body of the person with the disability...

That's awfully difficult to read, but I'm going to suggest to you that the inviting, counselling, or inciting must require that the proposed touching be of both the body of another person or that of the inciter and the body of the person with the disability.

I'm going to suggest that this is not worded “and/or”, as it's conjunctive, not disjunctive, so you need to have a double proposed touching in order to have an offence of inciting or counselling.

You may wish to reply. I'm sure she will give you a moment.

Mr. Mark Berlin: Part of the intent here in this provision is that it doesn't necessarily have to be an action between individuals in a touching. For example, it could be where the accused invites the person with the disability to simply masturbate themselves in front of the accused person. So that would be an instance where there is no mutual touching of bodies but simply an insisting that the person with the disability do a sexual act to himself or herself. In that respect, we're trying to capture this in that provision.

Mr. Derek Lee: I understand that, but the wording is that the person must be invited to touch the body of any person—

Mr. Mark Berlin: That's right.

Mr. Derek Lee: —including the person doing the inviting and the body of the person with the disability. You cannot read it any other way.

Ms. Anne McLellan: So you would suggest that we need—

Mr. Derek Lee: You need “and/or”. A conjunctive/disjunctive, or “and/or”, would do the trick.

Mr. Mark Berlin: What I'll try to do is get back to our drafters.

Mr. Derek Lee: You bet.

Mr. Mark Berlin: I'm told that the way the comma is worded.... I understand your question quite well. I understand from our drafters that in the way it's worded, it provides for the interpretation I'm providing. I can get you a drafter's explanation. If it doesn't do that, then we can get back to the books and figure that out.

Mr. Derek Lee: Let's figure that out.

Having raised those two issues with you, I want to ask if you're aware—I'm sure you are—that the sentencing act passed by the last Parliament provides for an enhanced sentence when there's a relationship of trust. Are you familiar with that?

Ms. Anne McLellan: Yes.

Mr. Mark Berlin: Yes.

Mr. Derek Lee: So in the legislation of this new offence, the reason that there is a relationship of trust is arguably redundant in terms of sentencing, because we've already addressed the issue of position of trust in sentencing.

• 1635

Mr. Mark Berlin: I think the sentencing provisions spoke to a much broader category of offences.

Mr. Derek Lee: Relationship of trust is relationship of trust. I suggest that it's the same relationship as the one we're describing here.

Mr. Mark Berlin: As you indicated, the sentencing provisions essentially provide that the judge may take into consideration other factors in sentencing when the individual has had a crime perpetrated against him by reason of certain characteristics. Those could include anything religious or racial, sexual orientation or a disability. You're quite right. But this speaks to a much narrower category.

Mr. Derek Lee: I'm going to close by asking a question. It's on the same section, but in this case the party on whom the additional potential criminal liability is placed—that would be the helper, the volunteer, the caregiver, the professional who is assisting or working with the person with the disability—is the person on whom we've placed the additional criminal risk, if you will.

What concerns me about this is.... Let's say you have an innocent caregiver—it doesn't have to be a caregiver, but somebody assisting a person who has a disability. Some very innocent things can happen. Subject to my reading of that last phrase disjunctively—if I may read it disjunctively and not conjunctively—if the caregiver were to.... Let's say the person is in a wheelchair. The caregiver wheels somebody into a room and says, here's a lovely young man who is going to help you with your reading today, or here's a lovely young man who's going to assist with whatever is going to happen. The person in the wheelchair reaches out and says, yes, what a lovely young man—it might be a male or female, but let's disregard the gender issue—and touches the third party in an inappropriate place.

It certainly wasn't intended that something like that should occur, but the assault, the touching has been of a third party. The party who would allegedly be committing the sexual assault is the disabled person, but the person who gets hung up with the criminal offence is the caregiver who has simply said, isn't this a fine looking young man.

Hon. Sheila Finestone (Mount Royal, Lib.): You're really taken with the subject.

Ms. Anne McLellan: All of this has to be done for a sexual purpose. It's not innocent. Under 153.1, it's for a sexual purpose.

Mr. Derek Lee: Whose sexual purpose, the disabled person's or that of the person who is assisting?

Ms. Anne McLellan: The person who is assisting, and for a sexual purpose. The facts that you've described to me do not appear to come within the basic offence, a key component of which is that the intention has to be for a sexual purpose.

Mr. Derek Lee: There's not a lot of intent or mens rea in my hypothetical, I grant you that.

Ms. Anne McLellan: The other thing I would say is that, as with all other provisions of the Criminal Code, it seems to me we trust courts to discern the facts and make reasonable and fair decisions on the basis of those facts. While each of us may individually disagree with certain judgments in the courts from time to time, I think we would all agree that generally they're quite good at discerning the frivolous or vexatious or, in your case, the innocent. You yourself have described it as an innocent act that would not be subject to criminal conviction.

Mr. Derek Lee: My sole objective here is not to make it more difficult for the people, the volunteers, the caregivers—

Ms. Anne McLellan: No, I understand.

Mr. Derek Lee: —friends of people who happen to be disabled and who might be sexually precocious. By framing a section like this, we place that caregiver or volunteer in a bit of a box in which there's not much room to manoeuvre.

• 1640

I accept that there has to be intention and that there has to be mens rea, but, boy, if I had to construct a set-up for a caregiver—unintentionally—we've created it. And we've enhanced the penalty to boot. I sure wouldn't want to be charged with this section.

Ms. Anne McLellan: Mr. Lee, I doubt if you're going to be charged.

Mr. Derek Lee: It could happen anyway. Thank you very much.

Ms. Anne McLellan: I trust your—

The Chair: Thanks, Mr. Lee.

Mr. Berlin and Minister, if I could just point out to you what's been pointed out to me, the French version is much clearer. In that one section the French version says to “touch him, to touch oneself or to touch a third party”. It's very clear.

Mrs. Sheila Finestone: Read it in French.

Ms. Anne McLellan: Madam Chair, in relation to his first two points, Mr. Lee raised important drafting issues, issues of drafting clarity, and I thank you for pointing out that the French version is clearer. I think I will request that the officials in my department take a look at both the French version, which they drafted, and the English version to see if it is possible to clarify the English version in ways that help achieve what I think is a shared purpose here on the part of all of us, which is to capture and condemn the abuse of a position of trust in this circumstance.

The Chair: Thanks.

Minister, I know you have something on at 5 o'clock.

Ms. Anne McLellan: Unfortunately, yes.

The Chair: Can I just let Mrs. Finestone ask a brief question?

Ms. Anne McLellan: Sure.

Mrs. Sheila Finestone: Thank you, Madam Chair. I'm not even really expecting an answer.

I just wondered, Madam Minister, how you will react to two issues. The committee on human rights, in the last session, undertook a very extensive study on privacy rights. The study was called Privacy: Where do we Draw the Line?

I'm sorry, can't I be heard? I'm sure the minister could hear me. Did my Gravel Gertie voice get to you?

Ms. Anne McLellan: Yes, I can hear you.

Mrs. Sheila Finestone: And I must apologize, Madam Minister, but I had to be in the House to speak to a bill. One of your colleagues asked me to do that, so here I am now.

The study was called Privacy: Where do we Draw the Line? It was deposited the day before the House prorogued and there was a call for a response. Now, I know you don't have that obligation, but I think that the issues of privacy have—don't shake your head, Stephen, before we even have a minister have the right to make a ministerial decision, okay? I think that's very bad public policy.

Some hon. members: Oh, oh!

Mr. Stephen Sharzer: It's a positive shaking of the head.

Some hon. members: Oh, oh!

Ms. Anne McLellan: Actually, that's right. He was just confirming my—

Mrs. Sheila Finestone: During all these years I've spent a lot of time studying body language, so if that was a yes, it was the strangest looking negative shake of the head I ever saw.

Ms. Anne McLellan: I understood, Madam Finestone, what he was conveying. I understood exactly—

Mrs. Sheila Finestone: Then you understand that no means yes?

Some hon. members: Oh, oh!

Mrs. Sheila Finestone: Oh, now I understand.

Mr. Jack Ramsay: I want to know if it was an invitation.

Ms. Anne McLellan: No. I wouldn't want my last comment interpreted in that way at all, as you might imagine.

The Chair: You didn't consent to an invitation there, did you?

Ms. Anne McLellan: Especially not with Mr. Bindman in the room.

Some hon. members: Oh, oh!

Mrs. Sheila Finestone: Mr. Bindman, I thought, might want to promote the issue of privacy rights, because once—

Ms. Paddy Torsney (Burlington, Lib.): There's something he needs to know.

Mrs. Sheila Finestone: Yes, there's something he needs to know, because once lost, as he well knows, it's very hard to get it back.

So, Madam Minister, I really am quite serious about the issue of privacy.

Ms. Anne McLellan: I know.

Mrs. Sheila Finestone: It impacts on our individual lives. It has implications for the banking industry, the insurance industry, etc.

Ms. Anne McLellan: Yes.

Mrs. Sheila Finestone: I would sincerely hope that you will have the time and would be open to further amendments or look at where it could be included in the bill, if it is not already there.

Ms. Anne McLellan: Do you mean in this bill as opposed to other—

Mrs. Sheila Finestone: You are dealing with privacy rights in proposed section 16.1 of the bill. That to me seems to be an area where we could...or are you going to bring in a separate privacy act? That's my first question. And may I ask my second?

Ms. Anne McLellan: In fact, yes, and in fact we are, as you are probably aware, reviewing the privacy legislation.

Mrs. Sheila Finestone: Good. And with the intent, shortly—

Ms. Anne McLellan: With the intent of determining whether the act continues to meet its purposes, whether those purposes have changed and what might need to be done in terms of amendment of the Privacy Act.

• 1645

Mrs. Sheila Finestone: Madam Minister, I hope you will acknowledge through our own findings the fact that the revolution in technology has effectively—

Ms. Anne McLellan: Absolutely, I couldn't agree more. That's why I and colleagues like John Manley and others are working very hard on trying to determine how we achieve the recognition and enforcement of privacy rights in the context of some of the things that have happened, especially in terms of the application of technology to all our lives. It is an important concern both in my department and in others.

Mrs. Sheila Finestone: My concern with Minister Manley is not that he hasn't taken an interesting perspective on privacy rights, but he has not taken a human rights perspective from the same point of view as he has taken an industrial perspective. Industrial espionage is very important and technology is vital, but in the meantime one's individual life and the contents and information of one's life are equally if not more important to the individual Canadian, and it's from that perspective I ask you the question.

Ms. Anne McLellan: You raise a very good point, and in fact that's why the Department of Justice is an important partner in these issues. It is within our department that we bring that human rights perspective and we build upon the good work that you and your committee members and others have done in this area.

Mrs. Sheila Finestone: And section 16 is not the appropriate place to put that in. It's rather in—

Ms. Anne McLellan: In our overall review of the Privacy Act.

Mrs. Sheila Finestone: All right, thank you.

The same question actually would be with respect to the disability study, which that committee also did. It tabled an extensive report on disability, which led to Solicitor General Andy Scott's report in the end. But it was this committee's report, which is still vital—and I don't know that all issues have been addressed. Perhaps they have. But if in the course of the work we're to undertake we find from the disability communities that they perceive some errors or omissions, would you be open to a review or a recommendation for amendment in that regard?

Ms. Anne McLellan: What you have before you, I would say, is an important further step in our recognition of the rights of the disabled and their protection. As you are aware, we intend to do a more broadly based review of the Human Rights Act, and therefore I think my preference would be to see that which is proposed here dealt with on its merits, and if there are areas separate and apart from those addressed here....

I would expect that if you see omissions or errors in terms of these sections, these matters we're proposing, we would deal with them here. But if there are other separate and independent rights issues dealing with the disabled communities, I would be very happy...and in fact I intend to deal with them in our broader review of the Canadian Human Rights Act.

Mrs. Sheila Finestone: Thank you for that guidance, Madam Minister.

The Chair: Thank you, Minister. I know you have to leave. I would just say to colleagues, who I know still have questions, that these officials will be back towards the end of the process so that we can—

Ms. Anne McLellan: Or they could stay.

Mr. Mark Berlin: We could stay now if you like.

Ms. Anne McLellan: Unfortunately, I do have to go. I apologize, but I have a phone call with one of my provincial attorney general colleagues.

Mr. Jack Ramsay: You always do this to us.

Ms. Anne McLellan: I do what?

Mr. Jack Ramsay: You always do this to us. You leave when we have many questions to ask you. Can you come back?

The Chair: She'll be back.

Ms. Anne McLellan: I'm happy to return.

Mr. Jack Ramsay: Good.

The Chair: Thank you, Minister.

Ms. Anne McLellan: It's just that I think it was made clear to the clerk that today I was going to have to leave at around 4.50 p.m.

The Chair: Yes, we knew that.

Ms. Anne McLellan: Thank you very much. My officials can stay to answer further questions and I would be happy to return. In fact, I am returning to deal with other subjects, including estimates, in the near future, so I would be happy to answer questions.

Mr. Jack Ramsay: We'd look forward to that.

Ms. Anne McLellan: I am sure you do, Mr. Ramsay. Thank you. Thanks very much.

The Chair: Thanks.

Mr. Ramsay, did you have some questions for the officials?

Mr. Jack Ramsay: I would like to ask this question. Can the two points Mr. Lee raised be addressed simply by drafting?

• 1650

Mr. Mark Berlin: That's my belief. I think the discussion we had was a fruitful one. The way I tried to express what our intention was may not be reflected adequately in the English draft. The French is better. We'll go back to our draftsperson, get an explanation and come back to the committee.

Mr. Jack Ramsay: I have mixed feelings about some areas of this bill in that it provides those who have a disability to better communicate in a court setting. For example, someone who is blind, according to my understanding of this bill, would be allowed to identify the accused through voice recognition rather than by visual identification. Is that right?

Mr. Mark Berlin: Essentially, yes.

Mr. Jack Ramsay: We had a witness I will always remember who appeared before the committee recently on the DNA bill. She was the director of the Innocence Project in Toronto. She said the most frail of all evidence is eyewitness testimony.

As I say, I have mixed feelings about this. I see the benefit and the justice in allowing identification through voice recognition, yet if it is true that eyewitness testimony is in the category of being the most frail of all testimony, is this not in a higher category of frailty?

Mr. Mark Berlin: Let me try to answer the question with two responses. First, the matter of witness identification is simply something else that would be brought before the decision maker to take into consideration in rendering a decision. It's not the end-all and be-all. The person gets identified by means other than visual. We are told by our prosecutors across the country that this is already taking place. Again, it's a practice that exists already and we're simply statutorily entrenching it. They are permitting other means of identification.

Just as visual identification is simply a matter of evidence brought before the court to be tested and scrutinized through the prosecutor and defence in the thrust and parry of a normal court setting, this type of identification would be subject to the same sort of scrutiny, review and decision making by the decision-making authority. In that respect I don't see it to be on any different footing.

The other aspect of talking about the access to the justice system is in the provision we made for juries. Where a person is blind, for example, and a lot of documentary evidence will be brought before a court, it may not be appropriate for a person with that disability to be eligible to sit in that court setting.

The way we word it in our decisions under jury speaks to whether the person, with adequate assistance, can carry out the functions of a juror in that jury setting. For example, if the person is deaf and requires a sign language interpreter but can still see all the documentary evidence, why should disability, writ large, be a prohibition to that person serving on a jury?

However, if the person is blind and can't see the documentary evidence, the provision says maybe that person shouldn't sit on the jury. So we've tried to allow for a certain amount of flexibility.

Mrs. Sheila Finestone: On a point of privilege, speaking for the disabled person, for those who are visually impaired—and there are all levels of visual impairment today—there are all levels of new technology that were not even heard of five years ago, let alone two years ago. I would suggest the decision of whether the party can participate is far more one of the technology that has been designed today and the obligation we have to provide three or four different forms of making visual material accessible to the visually impaired. I would think where our colleague Mr. Ramsay is asking this question, there certainly has to be some accommodation for recognizing the potential for new technology to enable someone who could not have handled it before to handle it today.

I think you have to be very careful how that is worded so there isn't an automatic exclusion because one happens to be either deaf or blind. In either one of those impairments there's dramatic change.

• 1655

Mr. Mark Berlin: You're quite right. The way it's currently written, there's an automatic exclusion now. What we're proposing to do is allow for there to be the automatic inclusion where the person with the appropriate assistance or technology can carry out the functions. So indeed, that's what these amendments speak to.

The Chair: Of course, then, in reality what happens is everybody tries to bail out of jury duty anyway.

Some hon. members: Oh, oh!

Mr. Mark Berlin: Well, somebody once said to me, “Why do you even want to be on a jury?”, which is a question we were asked. You're quite right.

Mr. Jack Ramsay: I'm not thinking of jury duty. I'm thinking of a victim testifying against an accused. From my own experience, I know that eyewitness testimony alone can convict. I know in the case of Wilson Nepoose it was that eyewitness testimony that resulted in a miscarriage of justice.

If the voice recognition falls below the value of eyewitness testimony, then I have some concern. I'm very sensitive to the situation that I think Mr. Lee was pointing out. I would not want to see laws being passed that could make it easier and perhaps more likely that a miscarriage of justice could take place. So when I look at some of this evidence, and particularly with those who are disabled, I have concerns in that area.

I would like to ask you one other question, though. If you want to respond further, you may, but I've heard your response and it's on the record, and I'm satisfied with that inasmuch as I think you've covered the ground. I would like to ask you this. I had a phone call and I had a long conversation with a lady who was very interested in this portion of the change in the law, which is about a person who is mentally disabled being invited to have sexual relations with a person in a position of trust. She was very concerned about there being a prohibitive piece of legislation in that area.

Let me ask you this question: if a person is emotionally disabled, does the bill cover or encompass emotional disabilities?

Mr. Mark Berlin: Our legislation talks about mental or physical disability. Emotional disability or any other characterization of that would fall within the rubric of the criminology mental or physical disability. Some people might characterize an emotional disability as a mental disability, and so under proposed section 153.1, it would fall within that.

As for the scenario that your constituent was pointing out to you, current provisions on sexual assault in the Criminal Code would probably take care of that situation. This legislation doesn't speak to either sexual assault or assault provisions. Current sexual assault and assault provisions take care of those types of scenarios.

Mr. Jack Ramsay: Well, let me give you the example. She gave an example of a person who had serious emotional problems as a result of abuse, and when she went to a doctor for assistance, the doctor convinced her that the proper treatment involved sexual relations with the doctor.

Mr. Mark Berlin: Right. There's case law.

Mr. Jack Ramsay: Does this bill provide greater protection for those people?

Let me make it very clear. The point she was making is that the doctor, in a position of trust, took advantage of the emotional disability of the individual. The consent was there, but through the emotional disability and through the violation of trust.

• 1700

Mr. Mark Berlin: There is a provision in our legislation, under proposed subsection 153.1(3), which talks about where consent is not.... Proposed subsection 153.1(2) says consent means “the voluntary agreement of the complainant to engage in the sexual activity”. However, right after that, in proposed subsection 153.1(3), it says, “No consent is obtained...if”, and there's a number of activities. In other words, it's simply that no means no and yes means yes.

There can be a provision where it says no consent is obtained if the complainant is incapable of consent to the activity. It may be that in that situation the person was incapable of consenting to the activity and therefore might be captured by that proposed subsection. What we try to say is that if there is no real consent, that provision would indicate there is no real consent in that circumstance. If the consent is elicited by that sort of intimidation, we hope we've captured that.

Mr. Jack Ramsay: It's not intimidation. In the mind of the patient, it formed part of the treatment process.

The Chair: Because the patient was weak and wasn't invulnerable.

Mr. Jack Ramsay: Yes, was emotionally vulnerable.

Mr. Mark Berlin: Without knowing that particular case, I would suggest that would be a very strict case of laying a charge of prosecution for sexual assault.

Mr. Jack Ramsay: Under what section?

Mr. Mark Berlin: Under the current sexual assault provisions of the Criminal Code, the existing sections 273 and 274.

This was never intended to cover a wider area. Assault exists and covers a lot of situations. Sexual assault exists and covers those pure situations of sexual assault. This was simply intended to be another provision of sexual touching; that's what this was.

Mr. Jack Ramsay: Then can I go back to this lady and tell her there is a prohibition now under the Criminal Code from that type of act?

Mr. Mark Berlin: I would say she should get in touch with her local crown attorneys and see whether or not charges should be laid in that case.

Mr. Jack Ramsay: Yes, well, we went into that, and she has done that, but it's a matter of proof.

Mr. Mark Berlin: Always, it's always going to be a matter of proof.

A voice: That's true.

Mr. Jack Ramsay: Thank you.

The Chair: Thank you, Mr. Ramsay.

Let me just ask a politically incorrect question, but sometimes you have to do this. Has anybody suggested to you in your consultations that by enacting a section like this, maybe we're being a little patronizing to people who are adults, by giving them a section of protection in the Criminal Code that we give to children? How do you respond to that and how are the people who you're consulting on this responding to it? And isn't this already covered somewhere else in the code?

Mr. Mark Berlin: That's a great question, because that formed the heart of our consultations. The people who argued against having a provision like this were organizations such as the Canadian Bar Association, the police, and the defence bar. They said, “You don't need this. This is redundant, given other provisions in the Criminal Code simply for assault or sexual assault if you want. Why do this?”

The ones who were most vociferous in demanding this provision were the disability organizations: the Canadian Disability Rights Council, the Canadian Association for Community Living, and I could go on. We have a number of disability organizations who asked us particularly; they said, “Please understand that, given the fact that we are dependent on caregivers for the normal exercise of our life, our normal practice in the course of a day, because we're so vulnerable to these individuals, we feel particularly vulnerable to sexual abuse.” Statistics show that they're more sexually abused than others, and they asked us clearly if we would consider this.

When we sat down, we brought the Canadian Bar Association together with the Canadian Association for Community Living, the Canadian Disability Rights Council and all the other disability organizations, and the Canadian Bar Association was convinced by their arguments. In fact they changed their views and said, “We would support an amendment and provision exactly like this, because it serves an educative function, we think it's required, we think it's necessary.”

So indeed, all the persons or stakeholders, such as the police, the defence bar, and the Canadian Bar Association, that initially did not support this, after our full consultation with the disability organizations, changed their views and accepted the fact that there should be this added protection. They worried about the paternalistic argument, but they rejected it and said they were persuaded by the arguments of the disability community.

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The Chair: Just to follow on that item, Mr. Lee has a question too.

So this is similar to the position taken when government members pushed the department to take on female genital mutilation. I don't know whether you were involved in that, but this is just as an editorial comment.

Mrs. Sheila Finestone: That's exactly what I was thinking.

The Chair: In the last Parliament, the department said that you don't a section of the Criminal Code to deal with female genital mutilation. The politicians said that they may not have needed it, but they wanted it because of the educational function. It was the same kind of thing. It was the same kind of argument.

Colleagues, you don't have to comment on that.

Mr. Mark Berlin: Thank you.

The Chair: I'm just glad that we got something that the Senate didn't so far today. Anyway, Mr. Lee, go ahead.

Mr. Derek Lee: I just wanted to say that, notwithstanding my virtual cross-examination on this, all of us recognize that this matter of sexual assault involving people who have disabilities is a serious bundle of a problem in our society. I certainly am supportive of the initiative.

Now, to get picky again, I want to direct your attention to the next part of that section: proposed subsection 153.1(3). I want to leave you with two questions. I don't expect you to answer them today because you're going to go back and redraft it anyway, I believe. I think you have to. I think we'll see an amendment here.

The Chair: We could do it. That will be fun.

Mr. Derek Lee: We could do it. Let us do it, Jack.

What happens to a person if that person is the spouse of the disabled person? You can see that in this section: “Every person who is in a position of trust or authority”. That could include a spouse.

Mr. Mark Berlin: It should include a situation where the spouse is the caregiver, that's right.

Mr. Derek Lee: So a spouse is included in the range of persons who could have a problem.

Mr. Mark Berlin: Sure.

Mr. Derek Lee: So a spouse who invites sexual activity, then, is definitely going to commit an offence here.

Mrs. Sheila Finestone: No.

Mr. Mark Berlin: It's where for sexual purposes the person with a disability is asked to do something they don't wish to do.

Mr. Derek Lee: It's definitely for sexual purposes.

Mr. Mark Berlin: The point is that it's without the individual's consent.

Mr. Derek Lee: Yes, but essentially, if I may characterize what's happening, the spouse who is in a position of trust here is not allowed to invite sexual relations without the consent of the spouse.

The Chair: It's that “invite” word. If you don't mind my just dropping in here—

Mr. Derek Lee: I can handle it, but I'm happy—

The Chair: —the issue that Mr. Lee is raising is this word “invite”, which is problematic. How do I consent to allowing you to make an invitation?

Mr. Mark Berlin: I'm sorry...?

The Chair: Invitations are spontaneous things by their nature, and invitations between husbands and wives would be spontaneous, I hope, by their nature.

Mrs. Sheila Finestone: Hopefully.

Mr. Mark Berlin: Sure.

The Chair: But now, basically, if I have a disability and my husband is caring for me and makes an invitation to some form of sexual activity, he's technically breaking the law.

Mr. Mark Berlin: But that would almost be no different from the circumstance in which one partner in a relationship demands to have a sexual relationship with another partner without that individual's consent.

Mr. Derek Lee: With “invite” you can't even ask. Under this section, the spouse can't ask.

The Chair: We're just talking about the logical absurdity of the words that are on the paper.

Mr. Derek Lee: I want to take an exception—

Mr. Mark Berlin: I should say that we did follow the Criminal Code. I'll tell you where this came from, how we picked this up. This mirrors, for better or worse, the Criminal Code provisions that exist right now.

Mr. Derek Lee: For assault?

Mr. Mark Berlin: No, subsection 153(1), which is the exact sexual touching, sexual exploitation in relationship—

The Chair: There's no consent with a child.

Mr. Mark Berlin: There's no consent, but the words “invite, counsel or incite” are exactly the words we adopted.

The Chair: But a child can't consent.

Mr. Mark Berlin: That's right, and that's why we added the consent element here. It was to consent to the touching.

Mr. Derek Lee: Now let me take it a step further.

Mr. Mark Berlin: Sure.

Mr. Derek Lee: Proposed paragraph 153(3)(c) says that there is no consent if the accused invites, counsels or incites in terms of engaging in an activity by abusing a position of trust or authority. I'm not clear what abusing being in a position of trust or authority is, but does that not then create a catch-22? If the person doing the inviting is capable of avoiding a charge by having the consent there, proposed paragraph 153.1(3)(c) removes the consent simply because the person is in a position of trust. You can never have consent because you are in a position of trust.

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Mr. Mark Berlin: No, what I think we're trying to achieve here is that there is no consent if the person abuses the position of authority.

Let me give you an example. Take the case in which the caregiver says, “I will not clean you today. I will not bathe you today if you do not do what I say. I will not give you your food today. I will not take care of you today.” That's where the abuse of the authority comes in.

Mr. Derek Lee: This I understand, and I don't have a problem with it. But on a purely conceptual basis, I would ask that as you reread this, reread it in light of my comments that proposed subsection (3)(c) is arguably—or maybe more than arguably—a catch-22 that would make it impossible for a person to communicate sexually with a person with a disability.

Think about it in terms of a spouse. Would it be possible to exempt a spouse so that the spouse could at least suggest sexual relations without there having to be consent? I'm not talking about sexual relations themselves. I'm talking about the idea of them, the concept, the very consideration that there might be some sexual contact between the two parties.

Mr. Mark Berlin: Okay.

Mr. Derek Lee: Thank you.

The Chair: I've just had this pointed out to me—and it was pointed out to all of us in our notes from our excellent researchers. If you go back to subsection 273.1(2) of the code, which is your reference point here, and if you then go back to this 153.1(3)(c), you have replaced the word “induces” with “invites, counsels or incites”. Perhaps the word “induces” is a helpful word to clarify the situation.

Mr. Jack Ramsay: You think “invites” should be replaced with “induces”.

Mr. Mark Berlin: Your reference is 273—

The Chair: Paragraph 273.1(2)(c) says: “the accused induces the complainant to engage”, and in what you've proposed for 153.1, you have repeated “invites, counsels or incites”. I don't know if that helps, but that's what we're talking about—inducing someone.

Mr. Mark Berlin: We'll look at that, thank you.

The Chair: Thank Nancy here.

Well, we've had some fun.

Mr. Mark Berlin: So have I.

Mr. Jack Ramsay: May I ask one question?

The Chair: One question, and then we'll get out of here.

Mr. Jack Ramsay: Did you folks appear before the Senate?

Mr. Mark Berlin: Yes.

Mr. Jack Ramsay: And the senators missed all this?

Some hon. members: Oh, oh!

Mr. Mark Berlin: They were focused on other issues.

The Chair: Good boy, Jack.

Mr. Jack Ramsay: Thank you.

The Chair: We're out of here. Thanks.