House of Commons Hansard #37 of the 35th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was rights.

Topics

Canadian Human Rights Act
Government Orders

5:50 p.m.

The Speaker

I declare the motion carried. Accordingly, the bill stands referred to the Standing Committee on Human Rights and the Status of Persons With Disabilities.

(Bill read the second time and referred to a committee.)

Canadian Human Rights Act
Government Orders

5:50 p.m.

The Acting Speaker (Mrs. Ringuette-Maltais)

It being 5.55 p.m., the House will now proceed to the consideration of Private Members' Business as listed in today's Order Paper.

Criminal Code
Private Members' Business

May 1st, 1996 / 5:50 p.m.

Bloc

Pierrette Venne Saint-Hubert, QC

moved that Bill C-217, an act to amend the Criminal Code (protection of witnesses), be read the second time and referred to a committee.

Madam Speaker, I am proud to rise today to introduce Bill C-217 in this House. The purpose of this bill is to protect any person testifying in criminal proceedings in which the accused is charged with a sexual offence or a violent crime.

Under this bill, the accused could no longer personally cross-examine witnesses. In such cases, witnesses would be examined or cross-examined by the court.

First of all, I would like to thank the members on both sides of this House who have already told me they would support my initiative. I wish to thank them all. I hope that my presentation will convince other members and that a majority in this House will feel that my bill is well founded.

Bill C-217 is a solution to the problem of accused people defending themselves. In fact, the accused can choose their own defence strategy, including defending themselves. They can then cross-examine their victims and confront them face to face. I have two examples of legal proceedings supporting my arguments.

My first example is the trial of former Concordia University professor Valery Fabrikant. That circus lasted five months, ending in August 1993. Fabrikant assumed his own defence after firing his lawyers. He was finally found guilty of murdering his four colleagues, and he is currently serving a life sentence in the Donnacona penitentiary, close to Quebec City.

The second case is that of Ferreira, whose trial took place in Montreal, last fall. This person was accused of forcible confinement and sexual aggression. As in the above-mentioned case, Agostino Ferreira assumed his own defence. He even personally cross-examined his two victims. I deplore the fact that these aberrations in our legal system were not more strongly condemned outside Quebec. I presume that a certain regionalism prevails when it comes to news items of this sort.

For example, reaction to horrible murders committed in British Columbia is not as strong in New Brunswick. To fully understand the purpose and the objectives of my bill, it is imperative to see the facts in these two legal cases that led me to propose this solution.

Here are these facts. On August 24, 1992, around 3 p.m., Valery Fabrikant, a teacher and researcher at the mechanical engineering

department, entered Sir Henry F. Hall, in Montreal's Concordia University. He was carrying three fully loaded revolvers, as well as boxes full of ammunition. He went to his office on the ninth floor with his union president, professor Michael Hogben, 52, and shot him point-blank.

He then killed in the same manner professors Ziogas, 48, Saber, 46, and Matthew Douglas, 66. He also shot secretary Elizabeth Horwood several times, 66, without managing to kill her. He then locked himself up in an office with the security guard, Daniel Martin, and Georges Abdou, who managed to disarm him when he was momentarily distracted. That is the first horror story.

On January 4, 1995, Agostino Ferreira entered a clothing store on Saint-Denis in Montreal. It was 10.30 a.m. and the store was empty. He indicated to the two young female employees that he needed their help to write a suicide note, but they did not take him seriously. In the face of this reaction, Ferreira showed them a bomb attached to his belt. He said it was powerful enough to blow up the whole neighbourhood.

He was also armed with a pistol. He calmly told the girls to get into a taxi. They were afraid that he would set off the bomb, and did what they were told. The three went to Ferreira's apartment. In a gloomy room, lit by candles, he had one of them write a suicide note in which he confessed to a double murder five years earlier.

He then bound the girls with tape. He gagged them, blindfolded them and tied their hands and feet. He cut the clothes off one of them with a knife. He then raped both girls. They managed to escape when he left the apartment to get some cocaine. So much for the facts.

The Fabrikant and Ferreira cases caused quite a stir in the metropolitan Montreal area. Apart from the cruelty and the perversity of these individuals' actions, these two sordid affairs have one fundamental point in common. These two individuals presented their own defence, without legal representation, and took advantage of their rights to personally cross-examine the victims of their crimes.

In the case of Valery Fabrikant, the trial lasted five months. Fabrikant, who refused to plead insanity, as his lawyers had suggested he do, wanted to show that he had been persecuted by Concordia University. He wanted to mount a defence mid-way between that of provocation and the battered woman syndrome. In all, the accused rejected 10 lawyers.

His defence, obviously, was not admissible in law. Provocation supposes that the accused has been subjected to an insult or an unfair action such that a reasonable person in the same situation would have been unable to maintain control and, in the heat of the moment, would also have killed his victim. This is a defence which, if accepted by the court, would not have led to an acquittal, but to lessened criminal responsibility. The individual could have been found guilty of involuntary homicide rather than murder.

I dare not even touch the battered wife syndrome argument for fear of losing my cool. There can be no more twisted and abject individual that one seeking to justify his foul crime by identifying himself with a woman who has been the victim of spousal violence. These are nothing more than the dreadful machinations of a paranoid and narcissistic mind.

The right to a full defence is a fundamental one in our society, and probably the grounds on which Mr. Justice Fraser Martin allowed Fabrikant to parade 77 witnesses, mostly from Concordia University, despite the inadmissibility of the defence of provocation.

During the entire trial, Valery Fabrikant presented himself as the victim of persecution, of a plot by the Concordia University community. He even summoned Elizabeth Horwood, the secretary who survived the massacre. Our system allows such things.

But I would ask this: Is our system better served when someone who has been accused of attempted murder can cross-examine his victim and attempt to discredit him or her? No. When there is a legal counsel, he or she serves as a middleman to cross-examine the victim without confrontation with the attacker.

I will give you an example of the type of question Fabrikant was allowed to ask Mrs. Horwood, whom he had shot at: "Where did I hit you? What did I look like at the time? Can you describe what I did?" Mrs. Horwood acquitted herself very well under the circumstances, but might she not have been spared a second attack by the perpetrator?

Take a moment to imagine the state of mind of Mrs. Horwood, when she again saw her attacker coming toward her to question her on the events that have left a permanent scar on her life? After five months of trial, the jury deliberated seven hours before finding the ex-professor guilty of the charges against him.

During the trial, Fabrikant did not hesitate to insult Judge Martin, which earned him six citations for contempt of court. The Supreme Court of Canada finally sealed this murderer's fate on June 2, 1994, by refusing him leave to appeal. That put an end to the circus trial.

The story of Agostino Ferreira is scarcely any better, in fact in some ways it is more loathsome. I shall not go into the facts of the case, except to point out that Ferreira was charged with forceable confinement, kidnapping and assault. At the trial, the victims were cross-examined by Ferreira himself, who did not have a lawyer.

He started out by apologizing to the first of the two victims for asking her questions. He asked her if the suspect-the suspect being himself-had acted not out of spite but out of love. Ferreira also asked questions related to his statement that someone or some

force may have been with him in the room when he committed these rapes. This cross-examination lasted an hour and and a half.

The next day, Ferreira cross-examined the second rape victim for an hour and ten minutes. Referring to a crucifix, he asked her is her legs were spread apart in the shape of a cross at the time of the rape. He also asked her: "Were you flogged? Did you have to wear a crown of thorns?" This, to me, is an abomination.

I readily admit that such incidents are fortunately not representative of most cases before the courts. Nonetheless, we as legislators have a duty to review Canada's criminal law so that it recognizes the rights of the victims.

If this House cannot give them an active role in legal proceedings, the least it can do is protect them adequately. This is the logic behind Bill C-217.

This bill would amend the Criminal Code so that the protection already provided to victims of sexual or violent offences who are younger than 14 is extended to all victims.

That is why I am asking the members of this House to support my bill.

Business Of The House
Private Members' Business

6:05 p.m.

Vancouver Centre
B.C.

Liberal

Hedy Fry Secretary of State (Multiculturalism)(Status of Women)

Madam Speaker, I rise on a point of order. An agreement could not be reached under the provisions of Standing Orders 78(1) or 78(2) with respect to the committee stage of Bill C-33, an act to amend the Canadian Human Rights Act.

Under the provisions of Standing Order 78(3), I give notice of my intent to propose at the next sitting a motion to allot a specific number of days or hours for the consideration and disposal of proceedings at the said stage.

The House resumed consideration of the motion.

Criminal Code
Private Members' Business

6:10 p.m.

Vaudreuil
Québec

Liberal

Nick Discepola Parliamentary Secretary to Solicitor General of Canada

Madam Speaker, I would also like to offer my comments on Private Member's Bill C-217.

In our opinion the bill itself would extend to all witnesses certain provisions of the Criminal Code which protect witnesses under the age of 14 years in prosecutions for sexual offences and offences involving violence. The proposed bill would extend these protections to all witnesses.

I believe that all members would agree with the member's goal of removing any traumatic element and facilitating witness participation in the criminal justice system. However, because the amendment would affect fundamental principles of the criminal justice system, such as open justice and the right to conduct one's defence, I think it needs to be examined seriously before we agree to include it in the Criminal Code.

The protection granted to witnesses in the criminal justice system has been improved significantly in recent years. The Criminal Code already includes a number of provisions to safeguard adult victims of sexual offences. At the discretion of a judge, he or she may exclude members of the public, place publication bans on the identity of complainants and witnesses, make evidentiary provisions such as restrictions on questioning about previous sexual activity and even hold in camera hearings for the determination of admissibility of certain evidence.

All of these safeguards would apply even where the accused is not represented by counsel. These protections have been granted to ensure that victims and witnesses can provide their testimony without being intimidated. We must examine Bill C-217 in light of the protections that already exist.

Bill C-217 would extend to adults protections that are currently provided to children. What protection would be extended to all witnesses under Bill C-217? Basically there are two protections. The first would allow the judge to exclude the public from the courtroom when he or she believes the interest of the witness requires this. The second would permit a judge to prevent an accused from personally cross-examining a witness.

Bill C-217 would build upon the recent Criminal Code provisions enacted on August 1, 1993. The issue is whether these protections which are justified by the particular vulnerability of young persons would also be justified if extended to adults.

Let us examine the first protection. The prohibition for an accused to cross-examine a child witness comes from concerns that a cross-examination conducted by the accused would nullify the protection granted by allowing the child to testify behind a screen. In the case of a child, it is therefore justified by this concern and the need to avoid that child from coming face to face with the aggressor. This is particularly important because we know that child abuse occurs in part because of the dominant position of the adult in relation to the child.

Cross-examination by an accused of a child victim would continue that abuse. This is the reason the Criminal Code provides that an accused shall not personally cross-examine a witness under 14 years, unless the judge is of the opinion that the proper administration of justice requires that the accused do so.

What happens when a judge does not allow an accused to personally cross-examine a child? The judge in that case can appoint counsel to conduct the cross-examination of the child. This provision applies in all sexual offences and in all offences in which violence against the person has been used, alleged or threatened. This provision, coupled with the provision for the use of screens or closed circuit television, ensures that child victims will not have to face their abusers. This may assist them in providing their evidence.

Bill C-217 would extend that protection to all victims and witnesses of sexual offences and crimes of violence. In all cases of sexual or violent offence the judge could appoint counsel for an unrepresented accused to conduct the cross-examination not only of the victim, but also of any witness.

I readily agree with the hon. member that this protection would be beneficial. I would question however whether this protection is necessary and I would like to examine its implications. There would be implications on costs when counsel is appointed by the court to conduct cross-examination for an unrepresented accused.

The Criminal Code already provides for the appointment of counsel for unrepresented accused persons in specific circumstances. For example, the court can appoint counsel to act for an accused considered unfit to stand trial.

The Supreme Court of Canada can appoint counsel when it appears that the accused, whose case is brought before the Supreme Court, is financially unable to retain counsel and it is in the interest of justice to have the accused represented by counsel.

Who pays for these lawyers? As members know, under the Constitution the administration of justice is a provincial responsibility. Where a judge appoints a counsel to act on behalf of an unrepresented accused, it will in most cases be the responsibility of the provincial attorney general to pay for that appointment.

Bill C-217 would significantly increase the number of cases where the courts would appoint counsel, if the courts were permitted to appoint counsel, for an unrepresented accused in sexual offences, sexual assaults and crimes of violence against the person regardless of whether the witness is a child or an adult.

This would create the potential for imposing major costs on the provinces, which have already expressed their concerns about the cost implications where counsel is appointed in the rather exceptional circumstances covered under present Criminal Code provisions. Cost implications would significantly increase if the amendments provided for in Bill C-217 were to in effect become law.

Because of this, I would think it is absolutely essential that all provinces be consulted about the proposed bill before it is passed. I doubt if the hon. member has had the time to perform these consultations.

I now want to examine another protection that would be extended in Bill C-217, the exclusion of the public from the courtroom. It is a general principle of our criminal justice system that all proceedings take place in open court. The presiding judge does, however, currently have discretion, provided by section 486(1) of the code, to exclude all or any of the members of the public where the judge is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to do so.

In addition, section 486(1.1) of the code currently directs the judge, when considering the term "proper administration of justice", to include in that consideration ensuring that the interests of witnesses under 14 are safeguarded in proceedings arising from a sexual offence, a sexual assault offence or an offence involving violence against the person.

The proposed bill before us would expand the direction given to the judge in interpreting the proper administration of justice. In interpreting the proper administration of justice the judge would have to consider that the interests of all witnesses, not just those under 14, are safeguarded in sexual offences, sexual assault offences and crimes involving violence.

Can we believe that a judge who is asked to decide on whether the public should be excluded from court does not already consider whether a particular witness would be able to provide the necessary and relevant evidence in a public courtroom? I believe the discretion to exclude members of the public is carefully exercised by all judges. I do not believe it is necessary to require the judge to consider the interests of all witnesses in determining whether to exclude members of the public.

While I am in agreement with the hon. member's intentions in introducing the bill, I cannot support it for two basic reasons. First, some implications of the bill involve provincial jurisdictions, and we should not impose on them without proper consultations. Second, I believe the actual modifications proposed are not necessary at this time.

Criminal Code
Private Members' Business

6:15 p.m.

Reform

Diane Ablonczy Calgary North, AB

Madam Speaker, I commend the drafter of this bill, my colleague from the Bloc, for her compassion and concern for the comfort and rights of victims of monsters such as in the case she talked about in her presentation. I am a little surprised she did not see fit to support our motion that a victims' bill of rights be drafted and passed by the government

because I see in her presentation today that she is very concerned about victims' rights.

However, in this draft bill we have to balance two competing interests. The first is the desire to put as little stress and unfairness as we are able on victims of terrible crimes in order for them not to have to relive their horror. We also have to look at the principles of jurisprudence that will be affected by the changes being suggested by my hon. colleague.

There are two principles of jurisprudence which will be affected by this bill. One is the right to face one's accuser, which has long been a cornerstone of common law. Second, justice will be done in the open. Justice must not only be done, it must be seen to be done, to quote a very long established principle of our justice system.

This proposal would amend two subsections of section 486 of the Criminal Code of Canada to allow in certain circumstances, particularly those of sexual assault and violent assault, that even in the case of an adult victim, the victim or the witness could give evidence in a closed courtroom and also that the accused could be prevented from personally facing their accuser.

As has been pointed out in the previous intervention by a government member, there is already in the Criminal Code the flexibility, the discretion of a court to protect witnesses in certain ways. These discretions are sufficient to prevent the excesses the member moving the motion is talking about.

For example, in the murder trial of Fabrikant which was alluded to, the judge ended the testimony of one witness after Fabrikant, acting as his own lawyer, became, in the judge's words, insulting, sarcastic and brutal. The judge did have and did exercise discretion to prevent further abuse of and unwarranted interference with the witness.

We do not condone trials behind closed doors. When it is absolutely necessary, we do allow judges in the interests of public morals, the maintenance of order and the administration of justice, to curtail somewhat the right of the public to access to a public trial. We saw that in the Bernardo trials and in others.

Because an open court is fundamental to the pursuit of justice in Canada and it is guaranteed under the charter of rights and freedoms, we should be very careful about further interference with that right. Section 11(d) of the charter states: "Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal".

It is interesting to note that when the current age restriction of 14 was introduced in Bill C-126, the matter was referred to the Standing Committee on Justice and Legal Affairs. The criminal lawyers association testifying before that committee questioned why the legislation decided 14 was the proper age at which the interests of the witness could be better protected than by provisions already in the code. Previously there had been a very full debate into the whole question of at what age and in what circumstances special protections for witnesses should be written into our legislation.

In a society which values the principle of open court and where the principle of open court is deemed essential to our legal system so that Canadians can have faith in it, we as legislators should be extremely cautious about changes which will affect those fundamental rights.

I concur with the mover of the bill that it is terrible and repugnant that victims who have already gone through a tremendously traumatic and terrible experience be unfairly asked to relive this and should be further abused in the trial. Our courts should do everything possible, and there are discretions available to the courts, to prevent that.

Legislating for the most extreme scenario, for cases furthest out on the swing of the pendulum, is not the proper way to structure our justice system. We have to deal with those kinds of extreme cases by other measures, not changing fundamentally our entire justice system because there has been a very extreme and unusual abuse of it.

The second amendment to the Criminal Code being sought by this private member's bill deals with a person's right to cross-examine a witness. Currently the code provides for a witness under the age of 14 not to have to face direct cross-examination. Instead the court may appoint counsel to conduct the cross-examination. Bill C-217 would remove the age restriction of a witness whom a defendant could personally cross-examine.

This part of the Criminal Code also deals with people who act as their own defence lawyers. As the mover of this bill quite properly pointed out, there are some occasions when an accused acting as their own defence lawyer very much abuses the system. That should call for the proper intervention of the court.

Again, denying or limiting that person a right to defend herself or himself does interfere with the fundamental element of our system of jurisprudence and we should be very cautious about expanding further the erosion of that principle.

While giving protection to a witness to avoid unpleasant court room tactics by a defendant is something we all recognize is a desirable aim, there is the competing interest of upholding the established principles of our justice system. The issue has been studied by a number of organizations in the past, including the law

commission. As I said, there has been legislation dealt with by the justice committee of the House of Commons.

It appears the protections and the discretion available to the court are already present to prevent the excesses this bill is trying to address. An expansion to the extent contemplated in this bill would not be warranted. We should be very cautious about expanding these every time an extreme case comes along.

I recommend to the House that we applaud and recognize the intent behind the bill and the humanity which motivates it but reject the logic and the necessity for the measures being proposed.

Criminal Code
Private Members' Business

6:25 p.m.

Prince Albert—Churchill River
Saskatchewan

Liberal

Gordon Kirkby Parliamentary Secretary to Minister of Justice and Attorney General of Canada

Madam Speaker, Bill C-217 seeks to extend certain protections in the Criminal Code currently provided to young witnesses under the age of 14 in prosecutions for sexual offences and offences involving violence. The bill would extend these protections to all witnesses.

I applaud the member's intentions in proposing these amendments to the Criminal Code. The criminal justice depends on victims and witnesses to report crimes and co-operate to the fullest extent possible, including participating as witnesses at preliminary inquiries and trials. The criminal justice should therefore facilitate a witness's participation. Participating as a witness should not turn out to be more traumatic than the crime itself.

Over the past 10 years many improvements have been made to ensure that victims and witnesses can provide their testimony without fear of intimidation. While Bill C-217 would build on these improvements, we would be cautious in supporting the amendments without a very careful examination of their implications and without consideration of the background of the current provisions.

I am well aware of a recent sexual assault trial in Montreal where the accused represented himself and subjected the victims to hours of cross-examination. This case has naturally outraged victim advocates and the public. If those victims had been under 14 years the Criminal Code would have permitted the judge to appoint a lawyer to act for the accused and conduct the cross-examination. The victims would not have had to be personally questioned by their attacker.

The member's proposed bill would respond to that case by extending these procedures to all witnesses. My concern is that the amendments may be too broad and too far reaching and may not in the current form be necessary.

The Criminal Code already includes several protections to ensure that young victims and witnesses are able to provide necessary testimony. In addition there are several provisions to facilitate the participation of sexual assault victims whether young or adult. While these recent reforms to the law are designed to assist victims and witnesses, we cannot ignore the fact that people have an obligation and a duty to report crime and provide relevant information and evidence. In some cases it will not be a pleasant experience.

In the case of young victims and witnesses there is a requirement in the Canada Evidence Act that the judge must conduct an inquiry to determine if a witness under the age of 14 is able to communicate the evidence and understands the nature of an oath or affirmation. Even where a young witness cannot be sworn they may still be able to provide evidence wherever young witnesses are deserving of special protection.

The provisions of the Criminal Code which the proposed bill would amend, that is sections 486(1.1) and 486(2.3), were only proclaimed into force August 1, 1993. The amendments were included in Bill C-126 which proposed a wide range of proposals which in part responded to the recommendations made by the parliamentary committee that reviewed the child sexual abuse provisions of the Criminal Code.

Bill C-126 resulted in additional reforms to the child sexual abuse provisions of the Criminal Code, including abrogating any requirement that the court warn a jury about convicting an accused on the evidence of a child; providing for special prohibitions and probation orders for persons convicted of certain offences against children, for example, prohibiting offenders from seeking employment or volunteer work involving children.

It also included providing for peace bonds where it is feared a person will commit a sexual offence against a child; permitting a support person to accompany a child while testifying; providing that the judge consider the need to safeguard the interests of the witnesses under the age of 14 when determining whether the exclusion of the public from the courtroom would be in the interests of the proper administration of justice; permitting a judge to prohibit an accused from personally cross-examining a child.

These amendments were designed to enhance the reforms made in 1988 by Bill C-15 to effectively deal with child sexual abuse. One of those original amendments provided that child sexual abuse offences and sexual assault offences, the complainant could testify from behind a screen or by closed circuit television if the judge is of the opinion that the exclusion is necessary to obtain a full and candid account of the acts complained of from the complainant.

In other words, if the face to face contact with the alleged abuser would make it difficult to obtain the necessary evidence, the judge could order the use of a screen or closed circuit television.

However, the protection provided for young complainants by this section was illusory where the accused chose to represent himself. The accused, acting as his own lawyer, could come face to face with his young victim. The amendments passed in 1993 were designed to address this problem and were accordingly focused on young witnesses.

We know that child abuse occurs in part because of the inequalities between children and adults in size, knowledge and power. Cross-examination by an accused of a child victim continued the abuse. Therefore, the Criminal Code was amended to provide that an accused shall not personally cross-examine a witness under 14, unless the judge is of the opinion that the proper administration of justice requires the accused to do so. The judge can appoint counsel for the unrepresented accused to conduct the cross-examination of the child.

This provision applies in sexual offences or in an offence in which violence against the person has been used, alleged or threatened. This provision, coupled with the provision for the use of screens or closed circuit television ensures that child victims will not have to face their abuser which may assist them in providing their evidence.

The private member's bill before us would open that protection to all victims and witnesses of sexual offences and crimes of violence. The judge could appoint counsel for unrepresented accused to conduct the cross-examination of a victim or witness.

I have no doubt this protection would be beneficial and desirable, but is this protection necessary for all adult witnesses or only certain more vulnerable witnesses? We must carefully examine the implications of such proposals.

As I indicated, these provisions were designed to address the problems of child sexual abuse to ensure that young victims of abuse could provide the necessary evidence. However, adults are presumed to be able to provide necessary and relevant evidence.

The Criminal Code already includes a number of provisions to safeguard adult victims of sexual offences, including the discretion of a judge to exclude members of the public, to order publication bans on the identity of complainants and witnesses, to make evidentiary provisions such as restrictions on questioning about previous sexual activity and in camera hearings for the determination of admissibility of certain evidence. All those safeguards would apply even where the accused is not represented by counsel.

We must also consider the cost implications. Who will pay for the lawyers appointed to act for unrepresented accused? As members know, under our Constitution, the administration of justice in the provinces is a provincial responsibility. Where a judge appoints a counsel to act for an unrepresented accused, it would in most cases be the responsibility of the provincial attorneys general to pay for that appointment.

If we permit the court to appoint counsel for unrepresented accused in sexual offences, sexual assaults or crimes of violence against the person, we are creating the potential for imposing major costs on the provinces. It is therefore absolutely essential and necessary that all provinces be consulted about the proposed amendment.

The Criminal Code already includes similar provisions to appoint counsel for unrepresented accused persons in specific circumstances. For example, where an accused is thought to be unfit to stand trial, the court can appoint counsel to act for the accused. For appeals to the Supreme Court of Canada, that court can appoint counsel where it is in the interests of justice and where it appears the accused is financially unable to retain counsel.

These are exceptional cases that arise rather infrequently. Nevertheless, the provinces have expressed their concerns about the potential cost implications where counsel is appointed in these circumstances. Perhaps we should consider permitting a judge to appoint counsel to conduct the cross-examination on behalf of an unrepresented accused where the victim makes an application and where in the judge's view, the interests of justice demand. However, even this more limited measure should be discussed with the provincial attorneys general.

It is a general principle of our criminal justice system that all proceedings take place in open court. The presiding judge does, however, have the discretion provided by the act to exclude all or any members of the public.

There are many protections in place at this time. We acknowledge the positive intent of the bill but we believe that consultations should be conducted with the provinces and all aspects of the bill reviewed.

Criminal Code
Private Members' Business

6:40 p.m.

Bloc

Pauline Picard Drummond, QC

Madam Speaker, I am pleased to rise to give my unconditional support to Bill C-217, tabled by the hon. member for Saint-Hubert, whom I want to congratulate. This bill will amend the Criminal Code to provide increased protection to witnesses who were victims of sexual assault, or against whom violence was attempted or threatened.

These witnesses would therefore avoid being cross-examined by the accused, as is currently the case for persons under 14 years of age. This would eliminate a sometimes absurd situation which has gone on for too long.

Recently, an increasing number of people charged with assault have decided to undertake their own defence. Every time an accused decides to do without the services of a lawyer, his victims run the risk of being once again confronted with their aggressor, this time in public.

Moreover, the legal system is also affected by austerity measures. Among others things, eligibility criteria for legal aid are becoming more stringent. This means that an increasing number of people are not eligible for legal aid, since their income is deemed too high. Still, these people do not have enough money to afford a lawyer.

Undertaking one's own defence then becomes an alternative that many will choose, thus increasing the risk of a court confrontation between the aggressor and the victim. It is important to think about the plight of a victim having to testify in court before the person who assaulted her.

Our adversarial system is based primarily on the confrontation of two parties: the state on one side, represented by the crown attorney, and the accused on the other side, usually represented by a lawyer. The victim of a criminal act is not considered to be a third party in the case. However, he or she remains a key witness who can often provide invaluable evidence. Therefore, it is important to ensure his or her protection and to see that his or her testimony is made in the best possible conditions.

This is precisely what Bill C-217 seeks to ensure. It is not a magic formula that will turn the victim's testimony into a fun thing, but it is a simple way of making sure that he or she does not have to go through the absurd ordeal of facing the aggressor again and be forced to answer his questions.

A few years ago, the federal government amended section 486 of the Criminal Code in a fashion similar to the one proposed by the hon. member for Saint-Hubert in her bill, except that it legislated to prohibit the accused who has undertaken his own defence from cross-examining victims under the age of 14. This goes to show that the federal government is aware of the fact that, in some cases, to ensure the protection of the witness who is also a victim, the court may have to impose on the accused that the cross-examination at least be conducted by counsel.

Age is not the only factor that makes a victim vulnerable. In rape or verbal, physical and psychological abuse cases, the victim often ends up in a cruelly and painfully fragile emotional and psychological state. Having to take the stand is already hard enough, and answering questions from their aggressors represents quite an ordeal for victims who often are still in a state of shock.

Beyond the legal aspect, there is also a whole human aspect, which cannot be ignored. Our system certainly recognizes the rights of the accused. The accused has every right to conduct his case without counsel. But many experts maintain that it is suicide to go it alone, the rules and proceedings being far too complex to be readily assimilated by lay persons and used in a trial.

However, for various reasons, some individuals accused of violent and sexual crimes choose to conduct their own defence. The risk remains then that the accused could misuse this right to once again confront and traumatize his victim by asking abusive questions, making the victim relive every instant of this painful experience.

Recently, two cases have clearly illustrated the absurd nature of the situation that prevails at this time. We need only to think of the notorious Agostino Ferreira, who was allowed to cross-examine, for several hours, the two employees from a boutique on rue Saint-Denis in Montreal, whom he had assaulted and raped.

We can barely imagine the state of mind of these two victims, when brought face to face with the same person who had humiliated them in the worst possible way. Imagine what was going through their minds when the person responsible for their rape was asking them questions about the details of this horrible event.

Let us remember the Concordia killings as well. The person responsible, Valery Fabrikant, dismissed his lawyers and cross-examined the witnesses himself, which was truly a verbal torture for them.

In most cases where the accused himself cross-examines the victim, the victim, after having been humiliated by the accused, is forced to relive the whole event, this time in public.

There is a way of sparing the victims this additional torture, without infringing on the rights guaranteed to the accused by law. Restricting the rights of the accused to defend himself in assault cases of a violent or sexual nature, as proposed in the bill of my colleague for Saint-Hubert, would afford the victims additional protection during the trial process.

In conclusion, the system can be as efficient as possible, but one fact remains: the key element in the legal process in cases of assault and sexual abuse is the victim's reporting of the attack and charging the attacker or attackers. If, for one reason or another, the victims do not testify as to what they experienced, any legal system, even the best in the world, will prove totally ineffective.

But, as long as assault victims continue to courageously bring their abusers to justice, and as long as the law makers and legal precedent recognizes their rights, the basic and vital objectives of criminal law-protecting society and setting an example-still have a chance to be met.

These are the reasons why Bill C-217 represents a giant step toward a more efficient and effective legal system, through a greater understanding and protection of those who are still the key element in the system, the victims.

Criminal Code
Private Members' Business

6:45 p.m.

The Acting Speaker (Mrs. Ringuette-Maltais)

Is the House ready for the question?

Criminal Code
Private Members' Business

6:45 p.m.

Some hon. members

Question.

Criminal Code
Private Members' Business

6:45 p.m.

The Acting Speaker (Mrs. Ringuette-Maltais)

Is it the pleasure of the House to adopt the motion?

Criminal Code
Private Members' Business

6:45 p.m.

Some hon. members

Agreed.

Criminal Code
Private Members' Business

6:45 p.m.

Some hon. members

No.

Criminal Code
Private Members' Business

6:45 p.m.

The Acting Speaker (Mrs. Ringuette-Maltais)

All those in favour will please say yea.