Justice Committee on Nov. 6th, 2014

[Some hon. members]

Oh, oh!

[The Chair, Conservative, Mike Wallace]

Thank you very much for that presentation.

We are going to do the rounds of questions, and we have about an hour.

Our first questioner, from the New Democratic Party, is Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I also thank our witnesses.

This group of witnesses is probably the most diverse ever, and that is a good thing. Indeed, there are as many opinions as there are witnesses. We have lawyers from the Canadian Bar Association, and crown attorneys. It must be specified that the representative of the Canadian Association of Crown Counsel is a crown attorney. He is probably the one who, without being the victims' attorney, works most closely with them. There are also other groups representing victims, who do not necessarily share the same opinion

This gives us some of the real backdrop to bill C-32.

I think everybody agrees that Bill C-32 is a good step. It's a step in a good direction. It has good at the heart of it.

Ms. Illingworth showed all the weaknesses of the bill, if I can call them that, in the sense that there is not much that is enforceable. A lot of things the victims will have to seek themselves. We have others who are raving.

I'll play the lawyer that I am, and I will address some of my questions to the lawyers, because I am not sure that I agree totally with what they have been saying.

I will begin with the representative of the Canadian Bar Association.

Mr. Gottardi, regarding clause 21 and the guilty plea notification, you have said that the proposals were ambiguous and might delay trials unnecessarily. I believe M. Woodburn said approximately the same thing. You are also asking us to withdraw that clause from the bill.

And yet, when I read the bill, I get the impression that this will not prevent you from obtaining guilty pleas, and that following the request from the judge, even if you have not had time to inform the victims, this will not prevent guilty pleas from being entered. You will simply have to inform the victims that that is taking place.

Moreover, subclause 21(4.4) states that:

Neither the failure of the court to inquire of the prosecutor, nor the failure of the prosecutor to take reasonable steps to inform the victims of the agreement, affects the validity of the plea.

What the hell are you afraid of with that clause? I mean, for me, it's a clause that's at the heart of what I hear a lot from victims, that sometimes they are not informed.

That may not include you, Eric, because I do know a lot of crown attorneys who do take the time with the victims.

But to infringe that in a charter, to say it's a right to know that there's a deal coming, that there's a plea coming—what's wrong with that?

I would address that first to “Mr. CBA”.

[Eric Gottardi]

Yes: the two Erics.

Madame Boivin, there are a couple of answers to that, I think. On its face, I think this provision has a lot to recommend it. From my own experience, and participating in consultations with the minister, one of the main criticisms from many victims is the lack of information about what's going on. Certainly the agreement to enter into a guilty plea is the culmination of the case, and often leads directly to the sentence.

I think the concern arises more from the practical side for those of us who have been in the busiest provincial courts in our busy cities or centres. Rick can speak of Halifax. I can speak of Vancouver. In Hastings, when you have 50 cases on the docket and 10 of those accused in custody wish to plead guilty, it does become a resource issue if the crown has to step out of court and notify those 10 victims.

I take your point that the language of the statute talks about the judge accepting the plea and then inquiring about the notice—

[Françoise Boivin, NDP, Gatineau, QC]

Even with the case experience you're citing, I mean, that would be deemed reasonable, but I can't see a judge saying to someone, for instance, “I will wait. We'll finish this. We didn't have time. It just happened. We will take a few minutes after and we will notify.” I think there is the space there, so to strike down the whole point....

I want to go to Mr. Wamback's point. He talked about resources. If it's a question of resources behind the point of view of CBA and Juristes de l'État on striking some of those, well, then, let's force the government to put the money where their mouth is and to say “You know what? We believe in those rights. We will put in the resources.”

I feel for you, because I know that my colleagues in the courts will have to.... We had a justice minister who told us that they will have to adapt on those issues.

[The Chair, Conservative, Mike Wallace]

You have one minute left.

[Françoise Boivin, NDP, Gatineau, QC]

Okay.

I'm very interested also in the point you're making on proposed paragraph 718.2(e) and the Gladue case. Are you saying to the committee today that the way the new section is worded would set aside the Gladue decision? Or would it just maybe be bringing in some new lawyers' discussions in front of the court to know if it still applies or not?

[The Chair, Conservative, Mike Wallace]

A succinct answer would be nice.

[Françoise Boivin, NDP, Gatineau, QC]

Better than the question.

[Eric Gottardi]

Well, listen, lawyers are always going to argue about words. Those principles are present in the sentencing sections. There are two distinct concepts in proposed paragraph 718.2(e). One is the principle of restraint generally. The other is the impact of the sentence on aboriginal offenders. It's just that by grafting on that phrase there, it's really unknown what impact that will have on aboriginal offenders. It's unpredictable at this point.

All we are saying is that this factor is there. It's enhanced by this bill. It's enhanced in other subsections. So even if the committee were to just edit out that phrase from that one subsection, I think you'd have an enhancement of the balancing. You could still have an emphasis of victims rights without potentially throwing a wrench into the works of the Gladue considerations.

I don't know that it's necessary. I don't see the benefit. And certainly the downside far outweighs the benefit.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Our next questioner is Monsieur Goguen from the Conservative Party.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Chair, there certainly is a wide swath of opinion and a variety of angles being taken here. We have the father of the victim, the victim, the crown, the defence counsel, and the victims group. It's certainly not surprising that there is a diversity of opinion. But I think we all agree that this is a step forward. It's trying to give the victims a voice. Certainly, perfection should not be the enemy of good. While lawyers will always argue about the wording and the structure of how things should be put forward, I think jurisprudence will fill in the blanks. The colouring book will be coloured by jurisprudence—the crayon. I think moving forward is the proper thing in this context.

I want to talk to the Canadian Centre for Child Protection. I want to commend you on the great work you do in assisting children and young adults. We all know that they are the most vulnerable witnesses and victims. You commented on the testimonial aids, such as being able to testify behind a screen, not to be cross-examined by someone who has been your perpetrator, and even issues of personal security and factors to be considered.

Do you feel that this will help encourage the reporting of offences, the bringing forward of witnesses, and having those witnesses participate in a criminal justice system that is completely foreign to them and very frightening?

[Lianna McDonald]

Yes.

I will answer first and then my colleague, Monique, will speak specifically to your question.

One of the things our agency has been dealing with over the last number of years is, again, the recognition that most victims of sexual assault or abuse do not come forward. For the ones who do come forward, there are a number of barriers along their criminal justice journey that get in the way of their proceeding. We know that they have so many things working against them, even from a child development perspective, in terms of how they face the types of questions and the different processes that they have to go through. I think we have a couple of comments we want to make on those aids.

[Monique St. Germain, General Counsel, Canadian Centre for Child Protection]

I would like to say that there is definitely a history to these provisions. They were brought in specifically to help ensure that testimony could come forward. What we like about this bill is that the test is being tweaked and being made a little bit easier in some cases. We like the fact that it applies to more victims. We like the fact that victims can request these aids directly, and we think that the addition of all of the different considerations will help ensure consistency of case law across the country.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Can I ask your opinion of clause 17? I know Mr. Gottardi and a friend from the crown have mentioned clause 17. Of course, the whole issue is the disclosure of the identity of the informant—or the victim in some cases—and a fair trial.

You deal with many vulnerable witnesses and victims. I'm looking at clause 17. It seems to me that it would be a very extreme situation in which this type of a remedy would be granted. It requires a special application. The parameters seem to be, for the judge to grant this special application where the identity is not disclosed, that there be the right to a fair and public hearing, and whether effective alternatives to making the proposed orders are available. It would be something used very leniently, almost as in the protection of someone's life, to combat a very horrific crime. We can easily think of a situation in which you have a police informant, the information is sacred, and if his or her identity gets compromised it could lead to death.

We had Ms. Nagy who came to testify. She was a victim of human trafficking. When she confronted her perpetrators, the brother of the accused was in the court going like this, signifying: if you keep going, I'm going to cut your throat.

Although it's controversial, what's your perspective on this clause?

[Monique St. Germain]

I agree with you. This is a clause that is definitely not going to be applied all of the time. There are a few things that we would like to highlight about this clause. One of them is that this clause is a discretionary provision. It is going to require the judge to take into account a lot of different considerations. There is some case law to support this kind of a provision in the right sort of circumstances. Certainly, the considerations that the judge needs to go through are quite thorough. There are a lot of different things they need to consider.

One of the things that we like included in this provision is whether or not the witness needs the order for their own security, or to protect them from intimidation or retaliation, which I think is an important consideration. You shouldn't need to fear giving testimony in this country.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I guess it's all about striking a balance, although that's certainly not an easy one in this context. It would have to be life and death, in my mind, for this application to be granted.

I have a question for the Canadian Bar Association and also our friend with the crown prosecutors.

We're always very concerned about the uniformity of the application of laws from province to province. Different justices have different approaches. Do you feel it would be appropriate to give some sort of training on the application of the VBR, because it will be somewhat new? I know some of it is codification. Is this something that's warranted in your mind, in order to ensure a more uniform application Canada-wide?

[Eric Gottardi]

Maybe I'll only say the following. At some of the consultations that I attended, education of all of those involved in the justice system—the police, prosecutors, defence counsel, even judges—was something that was asked for by many victims' groups around the table.

The other thing I'd say is that around the table and just from my own experience I know that a lot of what's recommended here, in terms of informational rights and procedural ways to go about including the victim in the system, are often found in many crown counsel policy manuals across Canada. Those often are the best practices that are recommended. Of course, problems arise out of the implementation from time to time.

[Eric Woodburn]

I agree. Education's important from this point of view: when we're sitting around the table discussing it, the pitfalls of how you use a certain section, I think it's important that it will be educated police and judges on the uniformity of the use of this act, but they also need to know so that they can inform victims of their rights.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I suspect you'd agree with me that when it would come to educating, whether it be the crowns or it would be the judges, basically bringing in some of the crown prosecutors and some of judges who deal in the day-to-day, the bear pit, the provincial court, the criminal offences, in getting the guiding, the streamlining, would be useful. We do argue about words, but we're also very good, when it comes to lawyers, in streamlining processes and making them work.

[Eric Woodburn]

Even now, in its form, our provincial policy-makers are interpreting the language themselves and we're running into problems because we're going down to their office and saying, no, I don't think that's the way it's supposed to be interpreted. As for the complaints, for example, against crown attorneys, they thought, we have to set up our own complaint department for crown attorneys. But we already have the Canadian Bar Association and internal measures in order to combat any issues there. Sometimes also, like I said, universal application and interpretation of the act would be helped by education, I would think.

[The Chair, Conservative, Mike Wallace]

Okay, thank you very much.

Our next questioner is Mr. Casey, from the Liberal Party.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chairman.

Ms. St. Germain, I want to start with you because you're the first lawyer who's appeared before us who wasn't of the view that there were severe constitutional issues with clause 17. In your answer to Mr. Goguen, you indicated that there is case law to support clauses like this in other jurisdictions.

Can you tell us about the case law now or can you send it to us? I'd be interested to have the two lawyers who think that it isn't constitutional comment on what you say might support it.

[Monique St. Germain]

Yes, I can send that case law to you.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.