Justice Committee on Oct. 30th, 2014

[Frank Tremblay]

I am not a legal expert. I am appearing as a victim.

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

Yes, but what is your opinion?

[Frank Tremblay]

I am appearing as an individual who has long been involved in this situation, as part of proceedings. I feel that tremendous progress has been made. Budget envelope or not, codification or not, regardless of things being taken too far or consideration being given to clause 17. This could lead to many meetings, but I think what's important is that significant progress is being made.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions, and thank you for those answers.

Our next questioner, from the Conservative Party, is Mr. Wilks.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thanks, Chair.

I thank the witnesses for being here.

I just want to clarify something if I could, Grand Chief Yesno, with regard to your testimony. You said that you believed that victims could make a referral to restorative justice regarding charges they may be affected by. It would be hard for me to understand that someone would want a referral to restorative justice on a significant, serious sexual assault case or, for that matter, manslaughter or second degree murder. Where would the line be?

That would be my question on that, just for some clarification.

[Grand Chief Harvey Yesno]

Thank you for that question.

One point I will express to the committee is that out of the 133 communities, we have 39 communities that are what we call remote—there is no road access, and so on—and I represent 34 of those, so we don't have the normal justice processes. The court process is a fly-in one. We have no women's shelters. We lack policing and other services in the community.

When we did the restorative justice pilot, it was something that the community had been talking about as far as involving the victim and also the assailant was concerned. Yes, there are easier ones to deal with, such as property damage and so on, but there is even assault. As you mentioned, when it does get to sexual assault, and perhaps even murder, there have been discussions with the community that.... It's not necessarily the first avenue of dealing with justice, but at some point in time that individual will come back to the community. Some of the views in the community are that you will still have to deal with that, because the person might be incarcerated for 10 years or 15 years, but we still have to deal with them returning.

[David Wilks, Conservative, Kootenay—Columbia, BC]

I clearly understand where you're coming from, and I'm a huge supporter of the restorative justice system, having been involved in it in police work. I think there are some great assets to it, but it does have its limitations I believe.

Mr. Krongold, you mentioned clause 17. With regard to evidence going to be provided to the courts, would you agree that there must be a full disclosure of evidence between crown and defence lawyers?

[Howard Krongold]

Yes, that's the normal rule, absolutely.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Given that there would be a full disclosure of evidence, even if a witness were not to appear—if they were to give evidence outside of the courtroom—their evidence would be given to both the crown and the defence, would it not?

[Howard Krongold]

This is one of the questions that I have, because it would certainly normally be the case that the fundamental right to a fair trial would require disclosure of the identity of witnesses, the statements that have been—

[David Wilks, Conservative, Kootenay—Columbia, BC]

You agree that it's been set already with regard to disclosure.

[Howard Krongold]

I would hope so. If this provision doesn't mean what it perhaps means, if it doesn't mean that the accused isn't going to have any idea who the witnesses are who are testifying against him or her, I suppose I don't understand it but I guess I don't object to it.

The difficulty is that what it seems to be saying is that information that could identify the witness not be disclosed in the course of the proceedings. If that means at any time during the course of the proceedings, including immediately after the person is charged before disclosure is provided to suppress that person's identity, then I do have issue with it because it would violate the fundamental principle that everyone is entitled to disclosure of the case against them.

[David Wilks, Conservative, Kootenay—Columbia, BC]

I think there has been a case in the Supreme Court of Canada that can set a precedent for this. It's the Named Person v. The Vancouver Sun case, which you may or may not be familiar with. It found that the courts must balance the right to face your accuser with other rights, such as the truth-seeking function of the courts, protection of the witnesses, and so on.

I think the Supreme Court of Canada has heard evidence from the perspective of Named Person v. The Vancouver Sun that clause 17 may not be a problem. But I leave it at that.

[Howard Krongold]

Perhaps I could comment on that, though, because I—

[David Wilks, Conservative, Kootenay—Columbia, BC]

Quickly, because I do have a question for Ms. Walker.

[Howard Krongold]

I will be very quick.

But respectfully, that case was about a confidential informer. A confidential informer is somebody who gives information—you're a former police officer and I'm sure you're aware—

[David Wilks, Conservative, Kootenay—Columbia, BC]

I used them a lot.

[Howard Krongold]

Absolutely. A confidential informer is a citizen who comes forward and says, “I want to help the police but I want to be kept anonymous.” That's an incredibly important part of our justice system, but those witnesses don't testify in court. They're not witnesses but people who provide information, and it allows the police to do an investigation, get a search warrant, get evidence, or find other witnesses who will testify. That preserves the anonymity of those whose safety is in danger while also preserving fair trials.

Respectfully, this provision wouldn't do that.

[David Wilks, Conservative, Kootenay—Columbia, BC]

I would suggest that you're somewhat inaccurate on that, because there are confidential informants who are utilized to infiltrate organized crime.

[Howard Krongold]

Sure, absolutely.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Their identity must be protected and/or they may face grievous bodily harm.

[Howard Krongold]

Absolutely.

[The Chair, Conservative, Mike Wallace]

Mr. Wilks, you have 30 seconds.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you.

Ms. Walker, could you quickly speak to me about the complainants' mechanism with regards to being updated on how the trial or the investigation is moving forward? As a former police officer, I can tell you that it's very difficult sometimes. Once it's gone into the court system, the police sometimes sever themselves from it and say, “Okay, it's the court's responsibility now.” Could you maybe explain how we could better keep the victims informed?

[Megan Walker]

I think there are a few things. I think that there needs to be a process that's very clearly outlined because right now what happens—and again best intentions are put forward—is sometimes the police think the crowns are doing it, and the crowns think the police officers are doing it. So it needs to be very clearly outlined who's responsible for contacting victims so it's not accidentally overlooked.