Thank you very much for inviting me to speak about this rather important piece of legislation.
I bring to you today the perspective of a criminal lawyer as a practitioner.
So that you know who I am and where I'm coming from in my testimony and give it the appropriate weight, I will tell you that I'm certified as a specialist in criminal law by the Law Society of Ontario. My practice is exclusively in criminal and quasi-criminal law. My firm has an appeal division, and prior to coming today, I consulted with them rather extensively.
Writ small, what that means is that I'm the trial lawyer who will be dealing with this legislation if it passes. What I bring to you is, I hope, both something of the 30,000-foot approach, but it's also about what happens when I see this in the latest Criminal Code.
I'll give you a précis of what I'm going to say: There are significant problems with this legislation.
First I should say that despite the flaws in the proposed bill, the goal is laudable. Mr. Bezan has brought forth this amendment to the Criminal Code for the purpose of alleviating the stress and suffering of the families of victims. That is a noble goal and one that is supported by all stakeholders in the criminal justice system, both Crown and defence. Nobody wants to see victims suffer or suffer again and again.
However, the question is how to do that. It is critical to remember that this bill is not designed to be punitive, but if it passes and is challenged, that is going to be an issue in the inevitable charter challenge.
Mr. Bezan has been quite clear: This legislation is designed to target a small group of individuals who have committed such egregious crimes that they statistically and realistically are not going to be paroled. They are the Clifford Olsons of the world. By narrowing the legislation in this way, Mr. Bezan seeks to ensure that the benefits of the bill, such as preventing families from having to attend numerous parole hearings, are not truly in competition with the deleterious effects of preventing release for persons who would otherwise be released. In other words, the people targeted by this bill are not getting out. That is the premise upon which this bill is proposed.
Mr. Bezan is not seeking to balance freedom against victims' rights. This is important, because if the legislation were designed to be punitive, it would run into a whole new series of challenges under section 12 of the charter, and these are challenges that it would likely not survive.
However, even if we accept that this is not a punitive bill and is strictly a procedural bill to alleviate the suffering of the families of victims, this is the wrong forum for it.
My first argument is that the Criminal Code is not where this problem should be remedied or where this goal should be set out.
The Corrections and Conditional Release Act, CCRA, is the statute that governs the parole process. Modifying it to change the frequency of parole hearings for this narrow group is much easier than modifying the Criminal Code, and it would not trigger any of the problems that I will be discussing.
Further, modifying the CCRA so that the families of victims can have their evidence recorded and played at subsequent parole hearings would also alleviate the pain of providing evidence at each parole hearing.
One or the other or both of these modifications to the CCRA accomplish the goal of alleviating their stress. It would not complicate trial matters. It would not lead to an infringement of the charter. It would also receive little or no push-back from any constituency or stakeholder.
My second argument is that Bill C-266, as it's written now, is likely unconstitutional for the following reason: The text of Bill C-266 reads, “In respect of a person”—and I underline the following—“who has been convicted, in respect of the same victim and the same event or series of events....”
What you need to understand is that with regard to murder, there is a provision under section 231 of the Criminal Code that allows second degree murder, which is all murders, to be elevated for sentencing purposes and classification purposes to first degree murder.
The language of this deemed elevation is subsection 231(5):
Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person
—and I underline this part—
while committing or attempting to commit an offence under one of the following
What are the differences?
In Bill C-266, a conviction for one of the offences is required. In section 231, which is already the law and has already passed charter scrutiny, no conviction is required. What does this mean practically?
If the trier—the jury, usually—based on the charge of the judge finds that a sexual assault occurred as part of the same series of events but not “while committing”, a second degree murder would not be elevated to first degree murder. This is the trickiness, right?
If it's part of the same series of events but it's not “while committing”—there's a temporal break, or a location break, or the jury's left in doubt in respect of those differences of wording—you're not going to trigger the elevation to first degree murder, but you might be triggering Bill C-266. What that means is a charter challenge, because you're punishing a second degree murder more harshly than a first degree murder. The jury may acquit a deemed first degree murder under section 231 and the offence would still be captured.
In other words, the series of events is not as clear as “while committing”, and that is likely a charter violation.
I know from reading the Debates that the member proposing this legislation believes that only a very few people would be captured. Respectfully, he's wrong. What will happen is that the trial Crowns, the people who are tasked with implementing the laws you pass, will have to start charging sexual assault and forcible confinement on the indictment, so an indictment that used to have a single count of murder—very clean, comparatively easy—will now have to have a minimum of three counts: the murder, the underlying sexual offence and the underlying confinement offence.
Presently when those facts are present but not necessarily charged, the Crown can charge first degree and rely on the facts as proven of the forcible confinement and/or sexual assault to elevate the murder to first degree, but because Bill C-266 requires a conviction, the Crown would now have to charge those offences. If the Crown did not charge those additional offences, the victims' rights advocacy groups would quite properly take the Crown to task for not taking the steps to trigger the most onerous sentence possible.
Thus, when the Crown does charge those additional offences, you would have a judge charging a jury that they might find that the sexual assault occurred, but to what standard? If charged, it would have to be beyond a reasonable doubt. There would be a necessarily complex and full charge on the elements of that offence, and then what happens if the jury is left in reasonable doubt about whether or not the sexual assault occurred? What happens to the underlying murder elevation? Would there still be a first degree murder conviction if there's a reasonable doubt about the separate charge of sexual assault on the indictment? We don't go into the jury rooms. We don't know.
What we do know is that the more complicated you make the indictment, the more complicated you make the judge's charge to the jury. The more complicated you make the judge's charge to the jury, the more likely an appeal.
Also, if we're talking about alleviating the stress on the families of the victims, imagine the year that it takes to get to the prelim, and then testimony on the prelim, and then the year it takes to get to trial, and then the testimony on the trial—and now there's an appeal. There's an appeal because this is not clear.
What if the appeal is successful? That's another year for the appeal, and then there's a retrial, which is another year. Now we're talking about four or five years not of potential parole hearings but of annual testimony, not of having the option of reliving the nightmare of being a family member to a victim as captured here, but of actually having to testify and actually having to hear the evidence of the forensic officers and the witnesses and reliving the traumatic effects of the trial.
This is a mess, because it's treating potential second degree murder charges like firsts and adding in a number of complications. It's ripe for challenges.
My third argument is a similar legal argument. It is the question of subsumed offences.
Forcible confinement is often an element of the offences of both murder and sexual assault, so where a choking is part of the sexual assault, it would now be charged separately, and that necessarily means another and more complicated charge.
The people who were contemplated and mentioned in the debates would not be captured by this, because they were not charged separately. What you will have is not the few people intended, but necessarily many more people charged on much more complicated indictments, leading to many more appeals, and that is not the goal.
I urge the committee to reject this bill and invite modification to the CCRA to accomplish the same goal.
Thank you, Mr. Chair.