Justice Committee on Oct. 30th, 2014

[Howard Krongold]

Yes. To call it a constitutional problem is almost an understatement.

If what's being suggested here is that the identity of a witness not be disclosed—it says in the course of the proceedings—at any point in the proceedings to anybody outside, presumably the police and the crown, that will result in the spectre of people testifying behind some sort of anonymity shield, giving evidence, and the accused having no idea of who the person is. Is this a well-meaning neighbour down the street who saw a crime and wants to report it, or is it the next-door neighbour who has a grudge against them who said two weeks ago he'd get them if they didn't move their fencepost off his land?

It's a fundamental principle of our justice system that the accused knows the case and the person who's accusing them, knows who the witness is, and is able to confront them to make a full answer in defence. There is not a single example in Canadian criminal law in the history of this country that I'm aware of whereby people could be tried based on anonymous, secret evidence.

I hope the problem with that is apparent to everybody. This is completely out of keeping with the traditions of justice in this country and of British justice, from which our system derives.

It is a massive change if that's indeed what's intended. It's hard to understand what this provision is, but my concern is if what's being suggested is that the identity of the witness not be disclosed in the courts of proceedings to anybody, including the accused. I know proposed subsection (2) talks about having a hearing in private. In private from whom? Does that mean ex parte? Does that mean without the accused present?

If that's the case then this is a massive sea change to the law. This is not about protecting the identity of victims, because that's protected elsewhere. This is not about protecting them from abusive cross-examination or necessarily being cross-examined by the person whom they are accusing. This is something different entirely. And I haven't seen any debate about it, and it troubles me if I'm reading that correctly.

I should just say in response to Ms. Walker that in a domestic assault situation, the accused is going to know pretty quickly who is accusing them. There's no secret there about why a person is being arrested, unless we're not going to tell them why they are being charged either.

Presumably we're talking about a situation where a witness is somehow going to give evidence anonymously, and that is a profoundly troubling prospect. It's difficult to see how we could ever imagine justice to be done in those circumstances. I think it would be a massive constitutional problem. It's inimical to our very notions of a fair and open trial.

[Sean Casey, Liberal, Charlottetown, PE]

Okay.

I have two follow-ups to that.

The first is with respect to clause 20 of the proposed victims bill of rights on page 6, where it talks about the following:

This Act is to be construed and applied in a manner that is reasonable in the circumstances....

Then it goes on with a bunch of criteria.

You've said that if it's to be interpreted this way, it's unconstitutional. Can it be saved by clause 20? How is it to be interpreted? Where clause 20 says that the interpretation that we have to give of it is constitutional, what would that interpretation be? And how would you recommend it be clarified so that everybody knows that's what was meant, and that it is to be constitutional?

[Howard Krongold]

Again, in my reading of clause 20, it's not clear to me whether that clause applies to the act as a whole or only to the Victims Bill of Rights. It seems to me that clause 20 seems to be talking just about the manner in which the rights described in the previous 19 clauses are to be construed. I don't know that it would have any application to these other amendments that are going to be part of the Criminal Code. Clause 20 isn't part of the Criminal Code—it's a different legislative provision and I don't think it would apply. The other side of it is that clause 22, I believe, talks about how, if there is an inconsistency, the rights take precedence over the limiting section.

There's an intention in clause 20 to say, let's not unduly interfere with other important interests here such as law enforcement interests, delay, ministerial discretion, and those sorts of thing. If there's a conflict one seems to err on the side of the right and not the other interest at stake. To me clause 20 doesn't seem to address these concerns.

In terms of delay, I'll just say that the concern about delay isn't that crowns are going to consult with witnesses or victims in the course of prosecutions. That already happens. There's no reason why that should delay a proceeding. The problem is that the amendments to the Criminal Code talk about applications by victims and applications by witnesses. That means a witness is going to show up at trial. Some witnesses are absolutely well-meaning, honest people. Some witnesses are troublemakers. And some witnesses fall somewhere in between.

[Sean Casey, Liberal, Charlottetown, PE]

Like society in general....

[Howard Krongold]

Right, like society in general. Absolutely.

We're going to have a situation where people are going to be showing up at trials, on the day of trial, and everybody is ready to go. You may have a complainant who is ready to go and wants to go, and some witness shows up who is maybe somewhat peripheral—maybe it's the landlord of the building who saw the accused running out of the building after the fight—and all of a sudden the witness says I want a publication ban on my identity. The court proceeding stops at that point because that witness has a right to make that application. The crown may say to them, this is ridiculous, there's no point in having this, you don't need a publication ban, there are no reporters here, and what are you talking about? But if that witness wants to bring that application, the proceeding will come to a halt and months and months of delay will accrue, and that's not good for anybody. That's my concern about delaying the process.

[The Chair, Conservative, Mike Wallace]

You have one more minute.

[Sean Casey, Liberal, Charlottetown, PE]

How do we need to change clause 17 amending the Criminal Code to ensure that it's not struck down as unconstitutional based on the interpretation that was given?

[Howard Krongold]

It's difficult to imagine how that provision could be saved. There is no precedent in Canadian law. There are lots of situations where people give information to the police anonymously. The law has always protected confidential informers who want to be tipsters and keep their identity anonymous. That privilege is assiduously protected by the courts. But this is talking about giving evidence secretly. There's been no precedent for it in Canadian law and it's difficult to imagine a situation where that would be permissible. Certainly, just saying it's in the best interests of justice doesn't seem to take into account all the concerns here. It's difficult to imagine a way that this provision could be made to be constitutional. It's simply unprecedented.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Our next questioner is Mr. Dechert from the Conservative Party.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Thank you to our guests for being here today.

I have some questions for Mr. Krongold as well, about clause 17, which is proposing adding a new section 486.31 to the Criminal Code. First of all, you'll note it requires a judge or a justice to come to the conclusion that such an order to protect the identity of a witness “is in the interest of the proper administration of justice”. In making that determination the judge shall consider:

(a) the right to a fair and public hearing;

(c) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(d) whether the order is needed to protect the security of anyone known to the witness;

(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

I assume you didn't have a chance to read or hear the testimony of Timea Nagy, who appeared at our last meeting—the transcript is probably not available yet. She's a woman who was a victim of human trafficking herself, and has assisted more than 300 victims of human trafficking. She made a very clear case for why some of those witnesses would need this kind of protection: they are significantly intimidated by criminal organizations that are involved in human trafficking. I'd suggest you take a look at that.

Second, it's my understanding that the right to face the accuser is not an absolute principle. In fact, the Supreme Court of Canada has found that this right must be balanced with the truth-seeking tradition of the court and protection of witnesses. For example, there would be situations where the ability to give anonymous testimony would be a matter of life and death, such as when the accused is a member of organized crime and an undercover officer might testify, or is a terrorism suspect and a CSIS agent might be testifying.

I also understand that these similar provisions are found in both the United Kingdom and New Zealand, in their criminal codes, which allow witnesses to testify anonymously where the court finds that it's in the best interests of the proper administration of justice to do so, and taking into account the right to a fair and public hearing.

What's your comment on those protections?

[Howard Krongold]

I guess what I'd say is this: the cases that I'm aware of where the Supreme Court has spoken about the right to confront one's accuser have to do with situations where, for example, the accused wants to personally examine a complainant or a witness in a case, and that's been held to be constitutional in appropriate circumstances.

We're not talking about the accused personally cross-examining, confronting the accuser literally, in court, but the ability to confront the allegations that have been made against a person.

It was my understanding as well—I wasn't aware of New Zealand—that this provision has been put in place in the United Kingdom, and has been—

Pardon?

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

You did mention British law earlier, and our traditions.

[Howard Krongold]

That's right. It has been put in place in England. I'm not aware of how that's played out. I know it was extremely controversial when it happened. I hope that if this is being considered, it's going to be extremely controversial here.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

My guess is your colleagues at the criminal bar would argue against this vociferously in any particular case, and it would be up to the judge to decide whether or not it's absolutely necessary to protect the security of a witness. We have heard from people who have been in these situations where they think, first, it's absolutely critical to the safety of the witness and, second, it's absolutely critical to ensure that people come forward to report crimes.

As you point out, it's not going to be the victim per se, but peripheral witnesses who help to bring these types of people to justice.

[Howard Krongold]

I suppose the concern is this: it creates a tremendous danger of wrongful convictions if a person can come forward and not testify publicly—not publicly in the sense that their name is going to be published in the paper, but not testify in a way that the accused can identify who the person is.

In order to challenge a witness you have to know something about them, right? You have to know what their possible motives are, right? Why is the person here before the court? What's this person's background? Has this person lied to people in the past? All of these things are naturally important to understand.

The difficulty is that you have a judge put in the position of having a secret hearing in private, alone with the prosecutor, where the prosecutor explains why everything's necessary—and no doubt they'll think that's true—but with no one on the other side who can explain why this is not the case, why this witness's history is relevant, why there may be dishonesty in the witness's past that is important to know.

As I say, it is as fundamental as any right in the Canadian law that a person know the case they're facing, and that includes knowing who the person is who's accusing them. How can you respond to an allegation when all you know is somebody—I won't tell you who—says you did x three weeks ago at this location. How do you respond to that? There's no way to do that.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

I put it to you that it's not an absolute principle, and the Supreme Court has ruled on this. I suggest that perhaps you take a look at that and consider that there are witnesses who are in very difficult circumstances and who need to be protected.

I'd like to ask a question of Megan Walker—

[The Chair, Conservative, Mike Wallace]

One more minute.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

—of the London Abused Women's Centre.

First of all, thank you for being here and thank you for the good work you and your organization do to work with the victims of abuse.

You mentioned that you would like to say something about the restitution orders provision of Bill C-32 and also about the spousal immunity provisions of Bill C-32, so please tell us.

[Megan Walker]

First about the restitution, it's very simple. I'm just so delighted to see that now emotional abuse will be covered under that. It's something that women have been asking of us for a long time. Of course, now they can ask for restitution for their car windows that have been smashed in, but that doesn't go far enough, so thank you for including that.

Secondly, with respect to spousal immunity, I think that it's very important to continue to include the clause that allows spouses to testify, not for the reasons that have been mentioned by my colleagues to the right, but because it.... You know, at one time in history, spouses were not allowed to testify, mostly because women were not considered to be persons, and therefore were not credible to testify. I think this, first of all, alleviates that and makes women more equal in society.

But, secondly, I know that there has been some concern raised about women in fear, and I'm counting on the new subsection 486.31(1) on page 17 to help with that. I am not minimizing the thinking that every abused woman is going to go and testify behind this shield. Certainly women are called upon to testify on an ongoing basis right now as witnesses against their abuser. I'm talking about these very serious cases where women are threatened, battered, beaten, and end up in the hospital for weeks on end, where it could result in an attempted murder charge, where organized crime is involved, where their abusive partner is involved with organized crime, and where we would like to see these women pursue charges but they don't because of fear. We believe in those cases and that this section will be very helpful for them.

[The Chair, Conservative, Mike Wallace]

Okay, thank you very much for those questions and answers.

Our next questioner is Madam Péclet, from the New Democratic Party.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you, Mr. Chair.

I also want to thank all the witnesses for joining us today.

In the committee's latest meetings and in today's meeting, the witnesses—and I do not mean all of them, but I am just summarizing—talked about Manitoba and a number of other provinces that have adopted this way to proceed over the past few years. I am talking about victims rights, compensation and so on. Manitoba, for instance, created the Victim Rights Support Service, which helps victims gain those kinds of rights.

I would like to put my question to everyone, but I unfortunately have only five minutes. That is so little time when I have so many things to say. So my question is for Mr. Tremblay and Mr. Fortier.

This is definitely a codification of a practice that already exists in a number of provinces. I would like you to tell me what will change once this bill has been passed, codification or not. There has been a lot of boasting about the codification of those rights, and that is fine and well, but who will enforce those rights?

A number of individuals have told us that victims will have difficulty navigating this system. We don't even know who is supposed to enforce the bill. Will complaints be received by federal prosecutors or by the federal ombudsman? I would like to ask you whether the government shouldn't rather review victims' social rights—including the right to assistance—instead of codifying rights that already exist. I don't know if you understand my point.

[Alain Fortier]

Honestly, the question is not very clear, but I will try to answer it in relation to the bill.

In Quebec, a lot of emphasis is currently being placed on rehabilitation. In the case of sexual assaults, a lot of work is being done with offenders and little with victims. I think the bill will help victims become involved in the process, as they are currently not involved. We know that, when prosecutors receive the complaint, they are the ones who handle the process. Sometimes, we are not aware of that. Even when I filed complaints, I did not know what was happening. It was difficult to obtain information, and I was kept in the dark. The bill will give us the right to information. It will provide safeguards, assistance and guidance, and it will grant victims additional rights.

The right to restitution currently does not exist in Quebec, either. In the case of sexual assaults, individuals rather than goods are attacked. The consequences are huge, and the victim may need years to recover. We feel that the restitution proposed here is a nice step forward. That can help someone pay for care or at least pay for part of it.

Should this be handled by the federal government or by the provinces? That is the question. According to what I have heard so far, this would mostly come under provincial jurisdiction. What will the rights be? How will they be enforced? I really don't know, but when it comes to rights, it is certain that something has to be done for victims. There is absolutely nothing for them currently in Quebec. I think this would have to come from the federal government.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

However, no funding is attached to this bill. That's what I was trying to tell you. Bill C-32 is perfect with regard to what you are saying because it will create a feeling of safety for victims. The issue is that it does not come with any funding.

The Manitoba Minister of Justice told us that it was very nice that the federal government was adopting this bill, but that the government would simply pass the responsibility on to the provinces, which would have to deal with this on their own. We are talking about delays and justice system issues, but if the government is adopting a bill and it really cares about victims' rights, it should walk the talk, as we say in such cases.

Currently, none of those rights are guaranteed. The victim files a complaint, but we don't even know where this complaint will end up and who will examine it. That was my point.

Mr. Tremblay, do you have anything to say about this?

[Frank Tremblay]

You are asking why all this should be codified. Why was the Charter of Rights and Freedoms created? The charter can be invoked in a good number of criminal cases. Is it invoked often? It exists, but our rights can be violated in a criminal trial. In case of reasonable doubt, the individual is acquitted.

This new bill will not fix everything. You are saying that no budget envelope is attached to it, but if there is a plea bargain, at least the victim will be informed. If it has been codified, crown prosecutors would know it, as would others. Mentalities will not change overnight.

When I was little, my father's friends would come home with a beer between their legs. That was 40 years ago.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Do you think this bill is fine as it is, or should it be amended?