Bill C-51 (Historical)

An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act

This enactment amends the Criminal Code to amend, remove or repeal passages and provisions that have been ruled unconstitutional or that raise risks with regard to the Canadian Charter of Rights and Freedoms, as well as passages and provisions that are obsolete, redundant or that no longer have a place in criminal law. It also modifies certain provisions of the Code relating to sexual assault in order to clarify their application and to provide a procedure applicable to the admissibility and use of a complainant’s record when in the possession of the accused.
This enactment also amends the Department of Justice Act to require that the Minister of Justice cause to be tabled, for every government Bill introduced in either House of Parliament, a statement of the Bill’s potential effects on the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms.
Finally, it makes consequential amendments to the Criminal Records Act.

[Laurelly Dale]

Thank you, Mr. Chair and committee members. It is my honour and privilege to be here.

My name is Laurelly Dale. I'm a criminal defence lawyer of Dale Legal Firm. I've been practising for more than 10 years. I practise in two areas: downtown Toronto and northwestern Ontario, covering the large district of Kenora. I attend today to focus on clause 25 of the proposed amendments in Bill C-51, specifically the amendments to add proposed new sections 278.92, 278.93, 278.94.

I've listened to the testimony of Breese Davies and the Criminal Lawyers' Association. I'm a member of the Criminal Lawyers' Association; however, I attend today as an individual. I'm not here to repeat their submissions. Ms. Davies takes a position that the amendments are overly broad and should be specified. I can indicate that I am in opposition of the proposed amendments in their latest form, entirely.

Our laws are progressive. They must be fair. They must uphold the principles of our supreme laws, namely the Canadian Charter of Rights and Freedoms. They must not be reduced to social media hashtags. We must not feed into the myth that all complainants of sexual assault are survivors of sexual abuse and therefore are always to be believed.

The amendments that I am here today to discuss have also been referred to as the Ghomeshi amendments. They violate section 7 and section 11(b) and (d) of the charter, ultimately allowing for the conviction of the innocent. Violations occur in a variety of ways. Today I'll focus on the main three.

First are the section 7 and section 11(d) violations to the accused's presumption of innocence and fair trial by declaring these records inadmissible and requiring defence disclosure.

The second major area of concern is the section 7 violations as, for the first time ever, they interject the complainant as a party to the criminal proceedings against the accused. It is the state versus the accused, not the state and the complainant versus the accused. Tied into this is the violation arising from allowing the complainant to be part of this hearing, usurping the very valid reasons for excluding witnesses, and allowing them to make submissions.

The last violation relates to the potential delays that this will ultimately cause, violating the recent Supreme Court of Canada decision in Jordan, upheld by Cody, by creating at the very least an additional three- to four-day pretrial hearing for the accused, and by the addition of the third party.

The onus is on the crown to prove allegations of sex offences. It is its obligation to prove each and every element to the offence. The accused is not required to do anything. The crown attempts to prove its case by putting forth the evidence of the complainant. Sexual assault cases are most often about the credibility of the complainant, as there is no other evidence. Crown evidence of the offence is presented to court on the basis that what the complainant is saying is true. The defence is then allowed the opportunity to test the evidence of the crown and demonstrate that the complainant is not credible.

Testing is through cross-examination and must always be relevant. The accused can then choose to testify or call other evidence. The crown is then able to cross-examine as well. The trier of fact, considering all admissible evidence, makes the decision.

Minister of Justice Jody Wilson-Raybould claims that the amendments will boost protections for sex assault victims and ensure trial fairness. I ask how this can be achieved in light of these charter violations. The justice minister indicated in committee last week that the amendments would not create defence disclosure obligations. I ask how this would be possible when this is clearly the procedure set out in the section.

Relevancy and materiality can be canvassed at the time of introducing the material during cross-examination. Why must the accused disclose evidence that he or she wishes to use in cross-examination? We must not water down reasonable doubt in these cases. The presumption of innocence is the cornerstone of our criminal justice system.

Under clause 25, all correspondence in the possession of the accused is presumptively inadmissible unless they can persuade the judge that it should be disclosed in accordance with eight substantive factors. I point out that seven out of eight of these factors are drafted with the purpose of protecting the complainant, and only one references the accused's right to make full answer and defence. I concede this is not a popular perspective, but it's one that must be stated, that the accused is presumed innocent and we must protect their charter rights.

As well, it's important to note in interpreting this section that the information in the possession of defence is communication that's authored by the complainants themselves. This is information that the complainant has intentionally chosen to withhold from the police and the crown attorney that is relevant to the alleged incident.

The Ghomeshi amendment requires defence to give this information to the complainant and the crown ahead of trial. To notify the complainant in advance that defence can expose their dishonesty invites the complainant to come up with a fabricated answer. The amendment serves to allow the complainant to correct their mistakes at the expense of trial fairness to the accused.

In acquitting three accused of sexual assault, in a recent decision in 2017, Ontario Superior Court Justice Molloy in Nyznik states at paragraph 17 the following:

Although the slogan 'Believe the victim' has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence.

The current system works. In the recent case of D.A.E., found at tab 5 of my materials, defence counsel utilized the material in their possession, and based on the totality of evidence, considering that this was utilized during cross-examination, the judge still convicted the accused.

Found at tab 5 is a recent Ontario Superior Court case, where it was held that myths about victims and sex offenders have no place in our criminal justice system. At paragraph 60 the judge states:

I agree with the trial judge that we must be vigilant to reject...stereotypical thinking about the behavior of women. At the same time, we must not adopt...assumptions about men and their tendency to rape.

The public outcry from Ghomeshi should not be used to undermine the presumption of innocence. Trial by media should not invade the rights of the accused.

I'll briefly touch on the second major amendment, as previously stated.

A criminal trial, by its nature, is the state against the individual. No one else is a party to these proceedings in any case. The complainant is not a party to the proceedings. The consequences of a criminal judgment do not apply to them. It is a slippery slope, allowing the complainant to participate in other aspects of the case against the accused, such as crown or judicial pretrials. There is, therefore, a risk that innocent people will be convicted.

Further, it is routine at the commencement of a criminal trial for a judge to make an order excluding witnesses. The reason is obvious. It is essential for the discovery of truth. As Justice Abbey stated in Jenkins:

The general and overriding principle which lies behind an exclusion order is to maintain, to the degree possible, in the search for the truth, the purity of the evidence.

Section 7 of the charter is violated, as this amendment permits the complainant to testify knowing what the evidence is beforehand, undermining the accused's trial fairness. Chapters of cross-examination are revealed, and the opportunity exists to resolve issues with their testimony.

The last violation relates to potential delays this will inevitably cause by creating an additional three- to five-day hearing 60 days in advance of the trial.

As noted at tab 9, the Jordan case is the law upheld by the Supreme Court of Canada that relates to delay that is presumptively unreasonable when it is longer than 18 months at the provincial court level, or 30 months at the superior court level. The resources allotted to the accused are not the same as those allotted to the complainant. It is not known whether, post these amendments, other resources would be available, such as legal aid, and whether these pretrial applications would be funded. I echo the comments of Breese Davies with respect to her concern about imbalance of resources.

Last, in my materials I have included a number of materials relating to the consequences of conviction for sexual assault that must be at the back of minds when considering these amendments as well as wrongful convictions. If accepted, the balance of the trial will be entirely upset. Charter violations will occur, and it will ultimately result in the conviction of innocent people.

Those are my submissions. Thank you.

[Hilla Kerner]

Thank you.

I'm hoping my accent will be clearer in the beginning.

The women who work in a rape crisis centre did not need the “Me too” campaign to know how common it is for women to experience sexual assault and rape. Being a girl and a woman in this world means we are likely to be sexually assaulted. If we are poor, indigenous, women of colour, or women with cognitive or physical disabilities, we are even more likely to be sexually assaulted. I would say it's almost guaranteed and, yes, me too.

In preparation for this submission, we looked at almost 6,000 cases of sexual assault and rape of women who called our rape crisis centre in the last five years. Twenty-five hundred women were raped by their husbands, boyfriends, or lovers, and another 422 women were raped by their ex-male partner after they broke up with him. Two hundred and thirty-four women were sexually assaulted, most often raped, by their male supervisor or co-worker. Eleven hundred women were sexually assaulted by someone they knew professionally, often through social circumstances like a party, mutual friends, or someone they had a first or a second date with. Three hundred and thirty women were raped by their own fathers when they were young, and another 471 women were sexually assaulted or raped by other family members or family friends. Five hundred and nine women were assaulted by men who were a stranger to them.

We appreciate the Minister of Justice's efforts to advance sexual assault provisions with the amendments proposed in Bill C-51. We have one objection, and that is to the addition of “no consent is obtained if the complainant is unconscious”. Of course an unconscious woman cannot consent, but this is already captured under the existing law which says, “No consent is obtained” if the “complainant is incapable of consenting to the activity”.

The addition can be misused by defence counsels to argue that unconsciousness is a threshold for incapability, and since we too often see cases where judges do not know sexual assault laws, the intent behind the laws, and the intent of Supreme Court judgments instructing the application of the law, there is a serious danger that the judges will accept the defence arguments in this matter.

We support the proposed articulation that no consent is obtained if there is “no evidence that the complainant's voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct”.

We also support the expansion of rape shield provisions to include communication of a sexual nature or communication for a sexual purpose. We support the right to legal representation for victims in rape shield proceedings.

About the amendment concerning victims' private records, it has been exactly 20 years since the passing of Bill C-46 which amended the Criminal Code with specific provisions regarding the production and disclosure of records of the accused in sexual assault proceedings.

We have been members of CASAC, the Canadian Association of Sexual Assault Centres, since 1978. Early on, members of CASAC faced the need to protect a record; so in 1981 CASAC members passed a resolution to protect the confidentiality of records and to protect the confidentiality of what women told us regardless of legislation. Seeking women's records from rape crisis centres is a clear and blunt attempt to undermine a victim's credibility and violates their privacy and dignity. It is also a direct attack on rape crisis centres and our role in supporting individual victims, our demands that violent men be held accountable, and our overall fight for women's equality and liberty.

When Bill C-46 passed, the feminists who advocated for it described it as second best, because the full demand was for no records at any time. The current proposed amendments regarding women's records in the possession of the accused gets us closer to that demand, and we support this.

Alas, good laws mean nothing when judges do not know the law and therefore do not uphold the law. We are aware of the recent attempt by Parliament to address this issue, and we are looking forward to speaking to the matter when Bill C-337 is discussed at the relevant committee in the Senate.

Judges' ignorance is only one element in the utter failure of the criminal justice system as a whole to hold men who commit violence against women accountable. Of the 6,000 cases that I mentioned earlier, 1,800 were reported to the police. About 30 resulted in charges, and fewer in convictions.

The common sexism and diminishment of women in all aspects of our private and public lives teach men to see and treat us as things and not as full human beings. Pornography is a devastating and effective promotion and reinforcement of men's sexualized violence against women. Prostitution is a devastating and effective promotion of the sexual commodification of women, where women are used as a commodity that can be bought and sold by men.

The problem is not that men do not know if a woman really consented or if she really wanted to have sex with them; the problem is that they don't care. They are allowed not to care, because they know they can rape women with impunity.

We often use the term rape culture to mean the acceptance, the collusion, the promotion of male violence against women. Men use rape culture to sustain rape structure, a structure that keeps men in domination and keeps us women in submission. The accumulation and the impact of all the individual rapes that men commit against individual women sustain all men's power over all women.

Of course, we know it's not all men. We know that not all men are wife beaters, sex buyers, rapists, or pornographers, but for sure, many are. We know that because of all the women who call our and other rape crisis centres, and because of all the women who are living in our and other transition houses. And now,anyone who pays attention knows it too, because of all the women who say “Me too.”

We believe men can change, but not as long as they get permission and encouragement to violate our bodily integrity and autonomy. We need to shake the pillars of the rape structure and start by holding men who commit violence against women accountable. So far, the Canadian state and its criminal justice system has been failing to do so.

The Canadian Charter of Rights and Freedoms promises us, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law.” It is now 2017, and we women still do not have it, not the equal protection nor the equal benefit of the law.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Colleagues and guests, we are going to start today's meeting.

I'd like to welcome our witnesses to the Standing Committee on Justice and Human Rights as we resume our study of Bill C-51.

Today we are delighted to welcome, as individuals, Ms. Laurelly Dale, barrister and solicitor of the Dale law firm. Welcome, Ms. Dale.

Petitions

[Diane Finley, Conservative, Haldimand—Norfolk, ON]

Mr. Speaker, today I rise on a point of order to apprise the House of an issue that I recently came across when attempting to have a petition certified by the clerk of petitions.

A few weeks ago, I received a number of petitions from constituents in my beautiful riding of Haldimand—Norfolk, calling on the government to remove clause 14 from Bill C-51 so that the rights of individuals to freely practise their religion will continue to be protected. Now, while most of these petitions were certified and sent back to my office for tabling, there was one petition that was not approved. According to the office of the clerk of petitions, this petition was rejected, because it did not meet the usual paper size requirement under Standing Order 36(1.1)(c). While the petition contained all of the required information as stated in the Standing Orders, it was printed on ledger-size paper and was determined to be not of the “usual size”, which is why it was rejected.

What exactly does “usual size” mean? Some people would interpret it as letter or legal-size paper, which is exactly what was decided upon by the clerk's office. However, “usual size” does not mean the same to all Canadians. As I am sure members are well aware, people who have a vision impairment use a larger font and paper in order to read the text. To them, ledger-size paper may be the usual size.

As someone who was legally blind at one point, and as the former minister for disabilities, I regularly encourage many institutions and organizations to adopt more accessible-friendly policies. Therefore, it is very disappointing that the House has not taken the same approach.

Not only does this guideline fail to provide accessibility to Canadians who are visually impaired, but we are the only jurisdiction in the Commonwealth that has this requirement. I looked into how the United Kingdom, Australia, New Zealand, and the Province of Ontario handle their petitions. In each of these jurisdictions, they have no paper size requirements. The closest is the Province of Ontario, where the clerk's office recommends that the paper size be 8 1/2” by 11” or 8 1/2” by 14”. However, as long as it contains the prayer and at least one name, address, and signature, the petition can be tabled by any member of the legislature. Even our very own Senate does not have requirements on the paper size of the petition that is tabled.

On page 1,166 of O'Brien and Bosc, footnote 32 states, “Prior to the adoption of this rule, petitions of unusual style were presented from time to time and judged by the Clerk of Petitions to be in accordance with the prevailing requirements as to form.”

The Annotated Standing Orders at page 110 seem to suggest that this requirement and definition of usual style came to be in 1986. In 2004, after the election of Steven Fletcher to the House of Commons, the first quadriplegic to be elected, a new Standing Order was adopted, Standing Order 1.1, which states:

The Speaker may alter the application of any Standing or special Order or practice of the House in order to permit the full participation in the proceedings of the House of any Member with a disability.

While I appreciate this Standing Order addresses specifically a member with a disability, the spirit of this relatively new Standing Order could be applied to me, since I am prevented from representing my constituents in participating in proceedings of the House of Commons, not because of my disability, but because of the disabilities of my constituents.

Justice

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Mr. Speaker, Liberal Bill C-51 would eliminate Criminal Code protection for clergy and places of worship across Canada.

Last week, the minister either accidentally or deliberately misled Canadians when she insisted that rabbis and imams were not defined as clergy. That is nonsense. CRA, border services, and Statistics Canada have always included them in the government's definition of clergy.

The number of attacks and incidents are increasing. These provisions are still being used in court. When will the minister stop putting faith communities at risk and leave these protections in the Criminal Code?

[Wesley Wark, Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual]

Mr. Chairman and members of the committee, I thank you for the invitation to appear and testify on Bill C-21, an act to amend the Customs Act. I'm going to read my remarks, in a desperate academic attempt to stay within your 10-minute time frame.

Bill C-21 provides statutory powers for the final phase of the entry-exit initiative. As the committee will be aware from previous testimony, the entry-exit scheme dates back to promises made under the Beyond the Border action plan agreed to in 2011 between Canada and the United States. Its provisions are, for now, Canada-U.S.-centric. The Beyond the Border action plan is the latest iteration of agreed schemes for post-9/11 border security, dating back to the safe border accord of December 2001. The Liberal government affirmed its commitment to the entry-exit information plan during a summit meeting between Prime Minister Trudeau and then U.S. President Obama in March 2016.

The entry-exit scheme has had a staged rollout since its first phase, which lasted from September 2012 to June 2013. It served to test the data exchange between Canada and the U.S. at select land border ports of entry. The second phase began in June 2013 for fuller land border crossing information exchange for third country nationals, permanent residents of Canada, and lawful permanent residents of the United States. The final stage of entry-exit, requiring statutory force in Bill C-21, would see the biographical exchange of information on all travellers, including Canadian citizens, at the land border, and the collection of biographical exit data on all air travellers, again including Canadian citizens, leaving Canada.

Biographical data acquired under Bill C-21 would consist, as you've heard, of the page 2 information from Canadian passports presented to Customs and Border Protection officials at U.S. ports of entry when crossing the land border. This information includes, as you'll know, name, nationality, date of birth, sex, and place of birth.

For the air mode, it would involve what is referred to as API/PNR, or advance passenger information/passenger name record, data provided by air carriers and air reservation systems for exit records for air travel. API data includes page 2 biographical passport data plus flight information. PNR derives from airline departure control and reservation systems, and varies depending on the collector. It can include type of ticket, date of travel, number of bags, and seat information.

The information flow that Bill C-21 augments is meant to be automatic. It would involve the passage of electronic data from U.S. CBP at land entry—U.S. entry data becoming Canadian exit data—in near real time. For air travel, it would involve the transmission of electronic passenger manifests from air carriers. All of this information would go to the Canada Border Services Agency for processing.

The backgrounder published by the government when the legislation was first introduced in June 2016 indicates that the entry-exit initiative is meant to serve a large number of objectives. It is not specifically a national security tool, but could, in my view, enhance investigations into the movements of suspected terrorists, foreign espionage actors, and WMD proliferators, among other actors of concerns, and it could provide a useful investigative supplement to other powers available to security and intelligence agencies.

It is worth noting that Mr. Bolduc of CBSA testified before this committee on October 3, making the point that one additional benefit that Bill C-21 powers would provide was “it will bring Canada on par with the rest of the world and our Five Eyes partners. There's a huge, huge benefit for Canada.” This was a direct quotation from Mr. Bolduc. I am not quite sure how to read this enthusiasm, except to say that Bill C-21 measures are, in keeping with a long tradition in Canadian national security, meant to demonstrate our ally worthiness.

In this same vein, it is also important to note the restrictions that the government has said it will put in place in terms of information sharing from the vast pool of data that will be collected under Bill C-21. Land border exit information will inevitably be shared with the United States government, because the information is collected by U.S. CBP agents. We are assured that exit information from the air mode would not be shared with the United States or any other foreign government. Whether this blanket restriction makes sense is questionable, in my view. The committee may wish to consider an amendment to the legislation in this regard, which would bring it more into line with the Secure Air Travel Act, of which I'll speak a little later.

Minister Goodale has testified before this committee that “exchange of information both within Canada and with the U.S. will be subject to formal agreements that will include information management safeguards, privacy protection clauses, and mechanisms to address any potential problems.” These are important promises that presumably will be fulfilled through regulation. Notably absent, however, is any commitment to transparency around the entry-exit initiative. There is no requirement, for example, for any annual report to Parliament and the public on its application and efficacy.

This lack of a transparency commitment is compounded by the current absence of meaningful independent review of CBSA, the core actor that will operationalize Bill C-21.

While government officials have testified that the information flows provided for through Bill C-21 will be seamless and automatic, the real issues, it seems to me, involve analysis of the data by CBSA, retention and security of the data, and information sharing. Bill C-21 legislation is a black box in these regards, leaving much to regulation. There is a question in my mind as to whether the legislation needs to be more forthcoming in three particular areas: data retention schedules, information sharing protocols, and transparency requirements.

Before I come to some modest proposals to improve Bill C-21, a note on a parallel and existing legislative power might be in order. There exists already a limited form of entry-exit controls for air travel, which have been in place since 2007 but which were amended with Bill C-51 in 2015 under the title of the Secure Air Travel Act or SATA. SATA, often referred to as the passenger protect program, creates a list of persons that the Minister of Public Safety “has reasonable grounds to suspect will (a) engage or attempt to engage in an act that would threaten transportation security; or (b) travel by air for the purpose of committing” a terrorism offence. I'm slightly paraphrasing the sections of SATA here.

SATA contains some provisions that are not held in common with Bill C-21, including specific powers and information disclosure, both domestically and through written agreements with foreign states and entities. These are under sections 11 and 12 of the Secure Air Travel Act. These sections, incidentally, are not proposed to be amended in Bill C-59 as that bill comes forward, presumably, to this committee.

There is also an important statutory reference to retention of data received from air carriers or air reservation systems in the SATA legislation, and this requires:

The Minister of Transport must destroy any information received from an air carrier or an operator of an [air] reservation system within seven days after the act on which it is received, unless it is reasonably required for the purposes of this Act.

That's section 18 of SATA. In other words, the minister is empowered to retain records of air travel for the listed persons but not for the general public.

To bring Bill C-21 into closer alignment with SATA on data retention and information sharing protocols and to enhance transparency and ensure independent review of its powers, I would suggest the following responses to Bill C-21, which the committee might want to take under consideration:

First, Bill C-21 should adopt the explicit SATA references in sections 11 and 12 for information sharing domestically and internationally. I think this would be an improvement on doing this by regulation.

Second, Bill C-21 should adopt a reasonable retention schedule for entry-exit data based on expert government advice on the minimum period necessary for the retention to meet the many different objectives of the entry-exit initiative as listed in the backgrounder document published with the bill in 2016. A seven-day retention cycle as provided for in SATA would be self-defeating, but so would overly lengthy retention periods. CBSA must not become a data swamp.

Third, Bill C-21 should contain a mandatory requirement for annual reporting to Parliament on its provisions by CBSA.

Fourth, the committee should encourage the government to be explicit about its plans for the conduct of regulatory review of CBSA national security activities, either through an independent body or captured by the paragraph 8(1)(b) mandate for the proposed national security and intelligence review agency, NSIRA, under Bill C-59. This may require future clarifying amendments to Bill C-59.

Fifth, the committee should encourage the government to finalize its plans for an independent complaints mechanism for CBSA. There have been discussions under way about this for some considerable time now.

Sixth, and finally, I would encourage the committee to hold early hearings on CBSA and its rapidly expanding mandate. Doing so might serve as a foundational exercise for the new national security and intelligence review agency when it is created.

Thank you for your time and attention.

[Gord Johns, NDP, Courtenay—Alberni, BC]

First, thank you to all the witnesses for your important testimony.

We know Bill C-51 seeks to remove unconstitutional provisions from the Criminal Code.

I'll start with Mr. Spratt. Do you believe it goes far enough? I know there was no mention of removing minimum sentence provisions. Could you please speak further to that?

[Christine Silverberg, Barrister and Solicitor, Chief of Police (Retired), As an Individual]

Thank you. I am very glad to have all of these criminal defence lawyers here who have articulated some of the issues so well. The comments that I have reflect what my colleagues have already said.

There is a different issue that I want to address, but let me say at the outset that, viewed as a whole, Bill C-51 should be commended as an effort to modernize the Criminal Code. The government should be applauded for that, for taking the initiative to develop a legal framework, imperfect as it is, to ensure that our communities are protected and victims are treated with respect and so on. It's a laudable goal.

I want to first of all address the so-called “rape shield” provisions. I agree with my colleagues that it upsets the delicate balance between the rights of the accused and those of the victims. These rights are at the very basis our our rule of law. I cannot support the proposed amendments that create what are described as “reverse disclosure” obligations, requiring, as Megan has said, the provision of certain records at a juncture that wouldn't be appropriate, or at all.

Causing the accused to make disclosure may seem at first blush to be a laudable approach, but this disclosure will be tendered during an application where the criteria that are actually set out in the bill for judicial discretion read more like a social policy framework. Those criteria suffer from drafting so broad that, in my view, they are actually rendered as meaningless platitudes. I have a really hard time going through that list of criteria while saying to myself, “This is going to really extend the length of trials while these issues are all being considered.”

What is the real consequence? The real consequence is that the victim intentionally or unintentionally governs her own evidence based on these known records. Whatever happened to testing evidence through effective cross-examination?

I practise civil litigation. I don't practise criminal law other than in parallel proceedings. I'm well used to the relevant and material disclosure by both parties, but the civil law, as has been said, is fundamentally different from the criminal law. What is it that we are trying to fix, exactly? Is it inadequate or under-resourced police investigations, or overworked crown prosecutors?

So far as I understand it, these provisions were made by the justice department without any consultation with major stakeholders such as LEAF or the Barbra Schlifer Clinic. Many stakeholders feel blindsided by having these kinds of substantive changes to sexual assault provisions sandwiched in the middle of a bill that has as a primary goal the cleaning up of the Criminal Code. I encourage the committee to rectify that anomaly by integrating the input of these valuable stakeholders before proceeding further.

Further, these so-called “rape shield” provisions—and frankly I'm old enough to know that's a pretty anachronistic term—would likely not survive a charter challenge. I won't go into why because it's already been set out. If we start to require this reverse disclosure for sexual assault offences but not for other egregious offences, we begin to erode the basic principles of our criminal justice system. These unprecedented provisions on the disclosure may inadvertently lead to wrongful convictions.

The stakes are high for both accused and victims. For both parties there is a high risk of social condemnation and stigmatization. Yes, we must support the rights of sexual assault victims who suffer untold consequences. But in my view, this must not be at the expense of the fundamental rights of the accused, or by weakening the social fabric because of a lack of forethought. While protecting the rights of both victims and accused may pose substantial challenges, it is, in my view, a challenge that this government should and can embrace. For all of these reasons, I cannot support the proposed reverse disclosure amendments to the sexual assault provisions.

I want to turn briefly to policy frameworks, leadership, and capacity.

In my view, a significant failure in enforcing sanctions against sexual assault is not a failure of the law. Rather, the failure is in the capacities of, implementation by, and performance standards of both the police and prosecutorial branches, and dare I say, the lack of particular knowledge and training of the judiciary.

As I'm sure is well known, this was aptly illustrated by the Ghomeshi trial where, given the evidence that was later produced in the defence in cross-examination, the crown failed to adequately prepare its case and probe the likely evidence regarding three key witnesses, which led to a finding by the trial judge that the witnesses were not credible, and indeed, were “deceptive and manipulative”. Was there a systemic failure in the crown's hands, or was the crown handicapped by lack of solid police work in gathering the evidence and vetting these witnesses?

This is not only a Ghomeshi issue. We have all witnessed the rather startling comments of judges across the country in sexual assault trials. We have specialized training, protocols, and required knowledge for other types of offences, such as domestic assault, and even, indeed, for bankruptcy, economic crime, and organized crime matters, among others. Surely specialized training and knowledge should be required for police, crown prosecutors, and the judiciary dealing with sexual assault proceedings.

After almost 30 years in policing, after serving as chief of police of a major city in this country and after some 15 or 16 years in the study and practice of law, there are some things that I know about. I know that there must be a broader examination of organizational systems, and structure, and leadership, if we are to avoid a crisis of social values, particularly in this area.

The fact of the matter, in my view, is that changing a law doesn't always get us where we want to be. We have to look at the supports that make our laws work for the benefit of all. We also need to make more resources available to support crown prosecutors. In my view, this is a major, though not only, issue of capacity. While acknowledging that the crown is not prosecuting on behalf of a sexual assault complainant per se, but rather on behalf of the state, we still have to allocate sufficient funds, training, and other supports to make sure that sexual assault victims are not revictimized by the system. We have long advocated this in Canada on behalf of domestic assault victims. The same should be done for victims of sexual assault.

Laws must not only be responsive and meaningful, but be effective. The proposed revision to the sexual assault laws that provide for a complainant's right to legal counsel is the first step. What is required, however, is more funding—government, quasi-government, and institutional—to be put in place to allow for, by way of example, reasonable and appropriate legal aid or alternative funding for this kind of representation.

But this is not simply a matter of funding. Sexual assault victims must be supported in other ways as well. For example, such victims may need counselling and other mental health services, as well as more knowledge of how the system works. We need a collaboration between the many professionals supporting sexual assault victims, federal and provincial authorities, and between the public and the private sector, all to create a sustaining attitude to support victims of sexual assault. Thus, a full infrastructure of support should be provided for sexual assault victims in addition to the proposed independent legal representation.

I cannot imagine much worse than putting a law in place that doesn't have the grounding required to make it work for all parties. This is not about or should not be about feel-good law. It is about getting down to the grassroots to meet the needs of those who are truly victimized, children or adult.

I want to very briefly touch on the unconscious person business. With specific reference to that amendment, it purports to clarify that an unconscious person cannot provide consent. I agree with the position submitted by LEAF that such a provision is not necessary, as this principle is well established in our common law.

The introduction of such a statutory section might create a bright line, short of which a lack of consent might not be found. Determination of whether consent has been given is a matter for the trial judge, and his or her discretion shouldn't be shackled in that manner, in my view.

There are numerous circumstances that I can think of beyond unconsciousness, and while one might say we covered that off in the drafting of the bill, I just don't know why it's there at all. I don't think it needs to be there. I think that issue of consent should be left to the court, where the facts can be considered.

That's all I'm going to say, and I'm happy to answer questions.

[Michael Spratt]

That's great. It's going to be the first time.

One of those positive aspects is the removal of reverse onus provisions. A fundamental principle of our justice system is that the crown and the state must prove all elements of the offence beyond a reasonable doubt. Reverse onus provisions have the effect of imposing legal burdens on an accused person. Presumptions of those types, a reversal of the burden like that, can conflict with the Canadian Charter of Rights and Freedoms and the constitutional right to be presumed innocent until proven guilty. Removing those reverse onus provisions is good, but practically speaking, that's pretty low-hanging fruit. It's not something that comes up on a daily basis, and it's not something that is going to change too much in our court.

The repeal of outdated offences, similarly, is a good thing. The Criminal Code should be a simple document. It should be a general document that we can apply to specific situations. We are all, after all, presumed to know the law. The more complex and, literally, weighty the Criminal Code becomes, the more mistakes will be made by members of the public, judges, and triers of facts. Offences like alarming Her Majesty, possessing crime comic books, or disrupting religious services are simply unnecessary and add to the complexity that ought to be avoided.

Any harm caused by those activities—for example, disrupting a religious service—is covered by other sections of the Criminal Code: general public disturbance sections, harassment sections, and sections dealing with threats or assaults. Of course, as my colleague said, any actions that are motivated by hate, prejudice, or extreme ideology can be adequately dealt with as an aggravating factor on sentencing, and they already are. The only people who are really upset about removing those zombie laws and outdated laws are law professors, who are going to have one less funny story to tell their students about outdated and absurd Criminal Code sections. It's good that those are being repealed.

This bill doesn't repeal all outdated or unconstitutional sections, nor does Bill C-39, which I'm sure this committee will be dealing with as well. For example, the unconstitutional mandatory minimum sentences, which have been found to violate the charter at various courts of appeal, and by the Supreme Court in the case of Nur, are left untouched by both of those bills. If we are really serious about taking out sections that have been found to be unconstitutional, there is no principled reason not to include those sections as well. The bill should be amended to include that. That's a glaring omission that should be corrected.

The other aspect of this bill is about sexual assault. It codifies some existing law with respect to sexual assault. I don't see too much of a problem with that. Too often, common law developments are hidden from the public. You have to have a subscription to CanLII or Quicklaw, or to be following a case, to actually see those developments in court. I think it's a good thing to codify some of those sections. It would be really good if we had a law reform commission again, which could take a broad look at our Criminal Code.

For example, the Supreme Court has made it clear that an unconscious person can't consent to sexual activity. That's the law. It's common sense, but it's also currently the law. Bill C-51 doesn't change that, but it makes it clear, and I don't think anyone could be faulted for that. It's a good thing as well.

One of the changes in this bill is unlike all the others, and that is the process for reverse disclosure—in my view, an unconstitutional expansion of the Mills regime with respect to documents in the possession of an accused person. It's a major fault of this bill. There are three issues with that. The first is the reverse disclosure problems. The second is overbreadth issues, which was touched upon by the previous panel, and the third is the impact that this would have on access to justice and to trial delays in our courts.

Dealing with the reverse disclosure aspect.... An accused has to bring this application within 60 days of their trial, and they have to disclose on the record, as part of that application, not only the record and the detailed particulars of the record and the information that they want to adduce, but also their trial strategy, why that's important. This is all prior to hearing the crown's case, prior to the complainant testifying. That's unprecedented in Canadian law. It infringes upon the right to silence.

The Supreme Court has confirmed that disclosure flows from the state to the accused. In the context of the adversarial system, the defence need not disclose any material to the crown. This isn't a civil system, after all; life, liberty, and security of the person are at stake.

This change also impacts the right to a full answer and defence in a fair trial. It undermines the process of cross-examination, which is a crucible for the discovery of truth. The Supreme Court of Canada has said that Canadian courts, as in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenets of our justice system that an innocent person must not be convicted. It follows from this that the prejudice must be substantially outweighed by the value of the evidence before courts can interfere. We cannot assume in our courts that all complainants are honest and credible. We can hashtag and believe all survivors outside of court, but not in court. That's a recipe for wrongful conviction. That is the fundamental tension with this process of reverse disclosure.

What we have to realize is that when the defence discloses this information, if a complainant is not telling the truth, if they are lying—and that happens—then you're disclosing that information to a liar. You're disclosing the information that could prove they're lying to a liar before they testify in court, so that they have time to change their stories and they have time to shade the truth. That is not the crucible of cross-examination that will result in accurate findings. It's a legislative woodshed for false allegations.

You can think of examples. For instance, a complainant who says that they were stabbed in the past and has the scars and shows them to the police, but the accused has lawfully obtained medical records showing that the scars came from surgery; or the example of a text message that the complainant sends to a third party, and that message is then forwarded to the accused and it is damning evidence that the complainant is not telling the truth. It's not in the interests of justice to disclose that information in advance.

I'd be happy to answer any questions about the other issues, with respect to trial delays and the like, but I would like to echo what Ms. Davies said in the previous panel, that this is also overbroad. There's a case before the Supreme Court right now touching on this issue, and for anyone who says that text messages aren't covered, we can turn to the B.C. Court of Appeal, which said they probably are, so we might have answers soon.

But in terms of breadth, I think this committee should take a hard look at that. I have some amendments that I can suggest when I'm questioned.

[Michael Spratt, Lawyer, Abergel Goldstein and Partners, As an Individual]

Thank you very much for the opportunity to appear before you and make submissions on this important bill.

Bill C-51 seeks to amend the Criminal Code to remove or repeal provisions that have been ruled unconstitutional or that raise issues with the Canadian Charter of Rights and Freedoms, as well as provisions that are obsolete or redundant.

It also modifies provisions in the Criminal Code relating to sexual assault, to clarify their application and to provide a procedure for the admissibility of records when they're in the possession of an accused person.

I'm going to do something different and start with some positive things, because there are some positive aspects of this bill.

[Kyla Lee, Associate Lawyer, Acumen Law Corporation]

Thank you.

On my behalf and that of my colleague, Ms. Leamon, I'd like to thank the committee for having us here today.

I'm going to deal with the provisions of Bill C-51 that address the sexual assault changes to the law. In particular, one of the elements that concern us is the change to the “mistaken belief in consent” defence that effectively eliminates that defence by adding a provision to the legislation that requires an individual to have actual consent, either through actions or words. It has the effect of eliminating the defence of mistaken belief in consent and a significant problem in our criminal justice system of essentially eliminating the mens rea component from any sexual assault case, as long as it is proven that somebody was essentially engaged in sex that they then say was non-consensual.

The burden shifts to the defence to show that there was actual consent, and they can't say they thought she was consenting unless they have proof that he or she was consenting to the act. That's significantly concerning because it either eliminates the ability of individuals who are innocent to raise their innocence or to raise that issue. It's also completely out of step with the realities of human sexual interaction, which are dynamic, which are not normal.... Most people when they are engaging in sexual situations are not asking if you would like to do this, with the response being, yes, they would, and then creating a record of that, so it's going to create practical hurdles for the defence that are going to be impossible to meet in the trial process.

My other main concern with this legislation is the manner in which it's going to enhance trial delays. In particular, this is going to disproportionately affect small communities and circuit courts where these cases are often more troubling because they affect the community at large.

Because of the way the applications to introduce the records that the defence intends to rely upon have to be made, it requires the seizing of a judge, who then has to come back and hear the subsequent application after deciding the written application, and then because they hear factual issues, may well become seized on the trial itself. That's going to lead to extreme problems for courthouses across this country, but most particularly in rural communities, which are understaffed, have fewer judicial resources, and have fewer judges, or sometimes only one judge. It's going to make it practically impossible for those cases to proceed in a timely fashion. It's also going to detract from other cases taking place in those courthouses, whatever they may be, and it's going to lead to delays in those cases because the judicial resources are going to be taken up dealing with all these pretrial applications with a seized judge who's now required to decide this particular issue.

One amendment I would suggest if this portion of the bill is passed is to allow those applications to be made before any judge. The judge who decides the written application shouldn't necessarily have to be the judge who then decides the in-person hearing, and shouldn't necessarily have to be the trial judge. That will allow for easier scheduling, particularly for communities affected by circuit courts where you might not have the judge returning for another six or eight months, and it then might not be the same judge.

I'll turn it over to my colleague, Ms. Leamon, to add her comments.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair, and thank you to our very informative panel today who are talking about three very distinct areas that Bill C-51 covers.

Mr. Mirza, you spoke about section 176 of the Criminal Code, specifically about clergymen. You mentioned repealing it and what the impact would be on Canadian society. Do you know if this provision has been used recently, and if so, has it been frequently used?

[Prof. Jamie Cameron]

I would say that it's important to repeal all three because all three relate directly to the rationale of Bill C-51. I would say, in particular, that blasphemous libel is like seditious libel in that both are essentially obsolete. They're inactive as Criminal Code offences, and if blasphemous libel is obsolete enough to be within the purview of Bill C-51, then seditious libel is as well.

In addition, both of those forms of libel pose charter risks in the terminology of the minister, because of the wording and the way in which they threaten freedom of expression under section 2(b) of the charter. Defamatory libel is not obsolete, but sections 300 and 301 are frequently misused to target those who criticize public actors in an uncivil or vehement way. As my colleague Professor Taylor noted, there are alternative offences available to prosecute this kind of transgressive conduct.

Section 301 has been found unconstitutional by several lower courts in several provinces. The definition of “defamatory libel” in the Criminal Code is highly problematic. Finally, I would just repeat and rely on, in particular, the Law Reform Commission's report of 1984 and the U.K. initiative, which recognized that all forms of common law or criminal libel are essentially artifacts that have come and gone and been replaced by other forms of criminal offences that can address whatever criminal behaviour needs to be prosecuted that is similar to, or a default from, those kinds of criminal acts.

I hope that answered your question.

[Prof. Jamie Cameron]

I don't think it will make a tangible difference, because it really just picks up a small part of the Supreme Court of Canada's decision in R. v. Lucas, which confirmed that in order for the offensive defamation to be made out, the publication has to be to a third party and not only to the victim of the defamatory statement. I don't see it as very significant.

If you don't mind my adding a comment, because I didn't get a chance to say it in my primary submission, Bill C-51 is a very important initiative. What the Minister of Justice has done is take a look through the Criminal Code in its entirety and try to identify critical provisions that are either obsolete or raise charter risks.

What the centre would simply like the committee to know is that it would be unfortunate if blasphemous libel were identified when the other forms of libel that share the rationales that are operative for Bill C-51 were not included in the inquiry. That's really why we're here.

To answer your question a bit more directly, the proposed amendment to the definition of defamatory libel really doesn't address the issues that are of concern to us, which have to do with the existence of the offences.

[Ali Ehsassi, Liberal, Willowdale, ON]

Absolutely.

As you stated, Bill C-51 really doesn't deal with the issue of defamatory libel. However, there is a change in the requirement for publishing. Could you speak to the significance of that, whether that's a good development or whether it will make a tangible difference?