We have talked about clause 17 at length, but I am not sure that I interpret it like you, Mr. Krongold. I would like that to be on the record. I do not want to get into a long discussion about it, but, in my opinion, the way in which the clause is written is vague enough. That is also the case with several other sections in the bill of rights. It actually says: “the judge or justice may”. So it is understood that it is not an obligation. It continues: “…on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information…not be disclosed…in the interest of the proper administration of justice.”
A hearing is held only if the judge so decides.
We also have all the wording that, in my opinion, provides protections that defence counsel may need in order to ensure that the proceedings are public and fair, depending on the nature of the offence.
In my opinion, this clause tries to protect a principal that everyone believes in, including the witnesses here today, the presumption of innocence. We also have to give victims back their place, by which I mean a place at the centre of the proceedings. This is not like a civil trial where there is a plaintiff and a defendant. We are all fully aware of that. That is perhaps why you see us as trying to prevent things getting turned around. I would hate to build up victims’ hopes just to dash them later. I dread that. We are not here to hoodwink you.
Mr. Tremblay, Mr. Fortier, you talked a lot about the order and about the possibility of restitution. I understand. Criminal cases often move slowly: we heard earlier about the justice system moving at a glacial pace, or about rigor mortis. But in civil cases, it is sometimes worse. Imagine someone having gone through a criminal trial and then having to run around trying to get restitution. There again, I am afraid that you may be disappointed. I would like you to see our comments in that way. I am expecting support groups like yours to be the bill’s main advocates once it is passed. You are going to have to talk to your people about it so that they can take as much advantage of it as possible. For me, that is where the interest of our exercise today lies.
Clause 16 talks about the right to restitution. That is the basic principle. The word used in the clause is “consider”. It is not even a guarantee. My colleagues asked you whether we should use a phrase indicating that such a right would be granted, rather than simply being considered.
I have other concerns, and that is not such a bad thing, if it means that these people are going to be going home telling themselves that the clauses need to be expressed differently. It is also said that it must not be complicated to establish that restitution before the court. That was the crux of your testimony, Mr. Tremblay. These are the major damages mentioned by Statistics Canada. Victims absorb about 80% of them. Senator Boisvenu states that it is the victims who assume most of the damages, and he is right. But these damages we hear so much about are hard to quantify. The bill of rights will not help you with that. That is why I feel that some things could be done differently.
