Bill C-2 (39th Parliament, 2nd Session) Committee on Nov. 20th, 2007

[The Chair, Conservative, Rick Dykstra]

Continue, Mr. Comartin, with NDP-11.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Both NDP-11 and the ones I've just withdrawn were recommendations from Mr. Cooper to deal with the very practical aspects of problems of prosecuting these cases to a successful conclusion. I think it was the best evidence we've had with regard to the difficulties of prosecuting these cases. It was interesting. He said twice—once when he was giving his original testimony and then in response to a question—that he really wasn't intending to change his practice if the dangerous offender part of C-2 went through. I thought that was pretty telling about the usefulness of the amendments we brought forward. But he was saying that we could help him and the prosecutors across this country by getting them access to better evidence so the judge can make better informed and higher-quality decisions, because all of the evidence with regard to the person's history, behaviour, conduct, and criminal activity would be before the court.

I am disappointed that the government was not prepared to support those amendments. I would hope they would at least support proposed section 753.02. As it is written now, the only evidence that is recorded and kept for the purpose of these applications, and then applied to the applications subsequently, is the evidence of the victim of the crime. The effect of the amendment would be to expand that so any evidence under these provisions, whether it's from expert witnesses, eyewitnesses, family members of the victim, or family members and friends of the offender, could be used in the subsequent applications under paragraph 753(5)(a) or subsections 753.01(5) or (6).

It's a practical, fairly straightforward amendment. We're moving the evidence, not just the victim's evidence but all of the evidence that has been put before a court and has been found admissible in those court proceedings. It's a wise, practical, simple solution to the problems the prosecutors have across the country. I'd urge all committee members to support it.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Comartin.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I put the question to the parliamentary secretary. Since the other three amendments have been withdrawn, all that remains is for us to dispense with amendment NDP 11. Has Mr. Comartin indicated to the committee that the government would not support broadening its definition of admissible evidence to include evidence other than the testimony of the victim? If the government does not support this amendment despite the testimony given to the committee, then can it give the reason or rationale for its position?

[Rob Moore, Conservative, Fundy Royal, NB]

I understand NDP-12, NDP-13, and NDP-14 have already been withdrawn.

On NDP-11, this is narrowly allowed under the provisions that we've put forward, to avoid revictimizing the victim. A victim has given testimony, so we allow that testimony to be used in a subsequent hearing. The reason that's done is to avoid having a victim revictimized.

As to the vast amount of other evidence that would come into a hearing of this nature, that does not involve revictimizing someone. In order to move in that direction, we would have to have consultations with the provinces, with the bar, with other stakeholders. I think there's a sound reason for the one we are allowing, which is that the victim or the narrow group of people who have maybe been very seriously abused by an offender and who have mustered up the courage to give testimony will avoid having to give testimony again. I think this is a worthwhile effort, but if we're going to have a hearing, we want to err on the side of hearing that evidence in its original format.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Moore, if I understood correctly, this would allow evidence other than the victim's testimony to be deemed admissible. Therefore, I don't understand your answer. It does not seem logical, given what the amendment is proposing.

With your permission, Mr. Chairman, perhaps Mr. Comartin could explain the aim of the amendment once again. As I see it, the purpose of this amendment is to allow evidence other than the victim's testimony to be deemed admissible. Therefore, I fail to see the rationale behind the government's position. I'm missing something here.

Would you be open to letting Mr. Comartin clarify the aim of the amendment? The parliamentary secretary's answer is not logical given the motion on the table. The parliamentary secretary has two fine qualities: he is very rational and very loyal. He possesses these two qualities, although I can't say which is more important to him in terms of his set of values.

[The Chair, Conservative, Rick Dykstra]

I will allow Mr. Comartin to re-explain, but perhaps we should allow him to speak last so we can get through a couple more questions or points.

Madam Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you, Chair. I have a question about Mr. Comartin's NDP-11 amendment. If my reading of this is correct, then it would allow any evidence adduced during a hearing for an application made under subsection 753(1) to also be deemed to have been adduced. So we're talking not just the narrow opening that the government's amendment would seek, which is the actual physical victim of the criminal act. The government's amendment would not include, in a case in which the victim was murdered, or was suspected to have been murdered, or had disappeared, and the charges were abduction, etc., the evidence provided by the families of the victims. The evidence that they might have provided at the initial application would not be considered to be or deemed to have been adduced in this particular instance, under the government's amendment.

Am I correct?

[Rob Moore, Conservative, Fundy Royal, NB]

Right. It's just the victims themselves who had to give testimony.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

It's just the victims themselves.

So in fact, if we are to show sensitivity, not just to the individual victim who is still living and breathing, or who may be living and breathing but is unable because of a vegetative state, because of severe physical injury done to them, to testify on their own behalf, but to the families of these victims who are called upon to testify.... Under the government's amendments, those witnesses would still be open to being called to testify.

[Catherine Kane]

As you know, in the Criminal Code there is a definition of “victim”, but it's for the purpose of victim impact statements, and it's quite an expansive definition. It indicates that it's not just the primary victim—that is, the dead, ill, or otherwise incapacitated victim; it can be the representative of the victim, a dependant, or a family member. Although that's only for the victim impact statements, the courts have often given a fairly liberal interpretation to “victim” in other contexts. To an extent that's been an evolution in the law: you're recognized as a primary victim if one of your loved ones has been murdered or can't be there on their own.

We would expect that the provision now in Bill C-2 that provides that the victims' evidence be deemed to be adduced would be interpreted in the same liberal way, but there isn't a provision in the Criminal Code that makes that crystal clear; it's only with respect to victim impact statements.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I was asking because I do understand that with victim impact statements, the definition of “victim” does broaden from the actual primary victim, if one wants to use that term. Families of victims have been called in the past to testify because they may possess some information pertinent to the case being mounted by the crown. My concern was that given that there's not a broad definition of “victim” codified in the Criminal Code, except for the victim impact, the government's amendment would not cover and exempt the members and families of victims. You're telling me that even if it's not codified, jurisprudence has now established a much broader definition of the term “victim”, and therefore the government's amendment would in fact protect these individuals from the pain of having to give evidence again.

[Catherine Kane]

That's correct, and in the case-by-case analysis of who the victim is, it may not be your neighbour down the street, but judges are certainly taking notice of who the victim is and who has suffered.

[The Chair, Conservative, Rick Dykstra]

Go ahead, Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I'm just trying to understand this.

The intention of this—--not the amendment, but section 753.02, as it was in the bill—was to prevent the victim from having to give testimony again, thus revictimizing the victim. I understood the parliamentary secretary when he said that, and I think we all would agree with it.

The amendment, however, doesn't affect that at all. It doesn't move from that first principle. If I understand it, the last time I supported Mr. Comartin in an amendment, he criticized my logic, but I'll try it again in support of him and see how it works out—

[Some hon. members]

Oh, oh!

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

As I understand it—perhaps putting it with some clarity, Mr. Comartin—Mr. Cooper, who frequently is an agent of the Ontario crown in these types of cases, makes it clear in his brief that he is also a practitioner in this area of law and he's trying to be even-handed. I think he's trying to say what the unintended consequence is. We know what the intention was, but--and I'll read it--the unintended consequence was that:

—a specific statutory reference to the admissibility of victim evidence, may be to suggest that other evidence tendered—is not admissible in a similar fashion.

In other words, he thinks that as it is drafted it would be harmful to the outcome to specifically mention the victim's verbal testimony and not mention all the evidence; someday down the road it might be possible to attack the method by which the evidence was given. In other words, I do think that Mr. Comartin is correct in suggesting this is a valid amendment. It doesn't detract from the intention, which is not to revictimize the victim. He also adds what seems to me to be the very sensible wording that evidence given and evidence adduced are two different meanings, and all your original wording intended was the verbal testimony. What the amendment suggests is that all evidence shall be adduced.

Maybe Mr. Hoover can answer this. If the floodgate argument is in play here—that you don't necessarily want to give a buy to all evidence—Mr. Cooper seems to say that at the Supreme Court level, hearsay and conjecture evidence is often very much acceptable at sentencing; it's not a trial of innocence or guilt.

Maybe Mr. Hoover would be best to answer this. I suppose you're going to throw out the consultation thing, but what are the real, concrete legal objections to the amendment?

[Douglas Hoover]

Consultations aside, the first thing to note is that this particular provision replicates an intent for the rehearing—and I'm talking not about the motion but about the original Bill C-2 provision—what already exists in subsection 753(6). That section has been around since the mid-1970s. There is abundant case law on the ability of crown and defence to not be restricted to evidentiary rules that are in place during trial. They have more latitude as it stands.

I think the issue here is, from the perspective of the motion, what its impact might be. It is clearly quite broad. I think it deserves significant analysis. On the face of it, I would agree it would probably be supported by many crowns. I'm not so sure it could be supported in the same manner by defence counsel. It may give an advantage beyond what, on its face, is apparent. I would also suggest you may need to consider ability to challenge that as it stands. While there's good rationale for victims, I think because we know what that rationale is, when we go beyond victims you have to ask yourself, is it proper for the state to be able to, for example, table evidence introduced at a prior hearing for a current hearing and suggest that there is no opportunity for cross or for examination of what has already been determined?

So it's not just broad on its face. I think it also has significant impacts that we haven't really been able to consider yet. It is clearly something that is out there, is being considered, but I don't think we're prepared at this time to suggest it will work as fully as intended and without some unintended consequence.

[The Chair, Conservative, Rick Dykstra]

Thank you.

Mr. Comartin, Monsieur Ménard had a point, and I'll certainly allow you to speak and to clarify anything that may have been misinterpreted over the last few minutes.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I wanted to start in my summary response, Mr. Chair, by acknowledging Mr. Murphy's brilliant comments. They showed a great deal of intelligence and introduced several additional points that were all valid. So I just want to get that on the record. Although that was all said a bit facetiously, it is accurate. He brought forward several additional points. In particular, the different terminology from using “given” to “adduced”.

I think that raises the point that we're not just talking here—and I think I can safely say this about Mr. Cooper: he probably is more interested in the psychological, psychiatric, medical evidence that would have been adduced at a prior hearing than the oral testimony. So I wouldn't say “exclusively”, but I think that's what he was primarily wanting to have on record and to be able to be reused. Part of the point you have to make in that regard is that witnesses get lost. They move out of the country, they're in ill health or even die, and are not available on the rehearing.

To limit it to just a victim, I understand why they do that. Again, as Mr. Murphy said, we would all support that. But why limit it to that? Mr. Hoover has suggested you limit it because you don't have the opportunity to cross-examine, but there would have been a cross-examination of that evidence on the prior hearing, so I don't think that's a valid argument.

With regard to the point Mr. Hoover made about subsection 753(6), that subsection also limits the evidence coming in from the victim of the offence only, and we really are looking to expand beyond that.

I'm sorry, I haven't answered Mr. Ménard's inquiry. Could I ask, Mr. Chair, if he could repeat it?

[The Chair, Conservative, Rick Dykstra]

Very briefly. We're getting into a—

[Réal Ménard, Bloc, Hochelaga, QC]

You have already answered the question clearly. I have all the information I need.

Thank you.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Those are all my comments. Thank you, Chair.

[The Chair, Conservative, Rick Dykstra]

Okay. Thank you.

The question is on amendment NDP-11 to clause 43.

(Amendment negatived)

(Clause 43 agreed to on division)

[The Chair, Conservative, Rick Dykstra]

Based on the withdrawal of NDP-12, NDP-13, and NDP-14, I would ask that clauses 44 to 56 inclusive carry.

(Clauses 44 to 56 inclusive agreed to on division)