Thank you, Mr. Chair and committee members. It's a privilege for me to appear before this committee once again.
In my testimony today I hope I can bring a broad perspective to the discussion. As Ms. Schellenberg mentioned, I primarily work as a criminal defence lawyer in Vancouver. I have worked as a crown prosecutor in British Columbia and in Ontario. I'm also a victim of crime: property, financial-related crime, and serious violent crime. Like many victims, I have been frustrated by a lack of information about my case and its progress through the courts. That is, in part, why I am so pleased to comment on Bill C-32, the victims bill of rights act.
The Canadian Bar Association had an opportunity to consult with the minister quite extensively over the course of his cross-Canada consultation. I myself met with the minister in Vancouver, and our members consulted with the minister in Saskatchewan, Nova Scotia, and myself again in Ottawa.
The CBA recognizes that an effective criminal justice system must balance the interests of victims of crime, the procedural rights of those accused of crimes, and the public interest in seeing the efficient administration of justice. As such, we were quite pleased to see that the minister had quite wisely declined to create full-party status for victims and had worked to protect the prosecutorial discretion of our crown prosecutors, in section 20 of the act, which the CBA strongly supports.
As Chief Justice McLachlin said in the decision of O'Connor many years ago:
What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process, like complainants and the agencies which assist them in dealing with the trauma they may have suffered. Perfection in justice is as chimeric as perfection in any other social agency. What the law demands is not perfect justice, but fundamentally fair justice.
On the whole, the CBA section believes that this bill is an important step forward, improving the way the criminal justice system responds to victims of crime; however, some of the proposed amendments fail to strike the appropriate balance, leading to fundamental unfairness and some inefficiency.
I will outline some of our concerns and our recommendations to better balance the important interests at stake.
First, clause 21 of the bill proposes to enact a new provision that would require prosecutors to take reasonable steps to inform victims of guilty pleas. The provision would also require courts, after accepting the plea, to enquire whether prosecutors took such steps—laudable on its face.
These proposals, however, will place a significant burden on crown counsel and public resources. The onus seems to be on the crown to inform a victim that the accused intends to plead guilty prior to the guilty plea, and this may potentially lead to a delay in the actual sentencing.
It would also require additional staff time and resources in already overburdened and overworked crown prosecutors' offices across this country.
It may also raise victims' expectations about the extent to which their input will be considered in the agreement between defence and crown. Dissatisfaction with that level of input might give rise to more complaints under the proposed complaint provisions, at least insofar as it impacts on our federal prosecutors.
This concern is really one of perception. By using the rights terminology in the bill of rights, I'm concerned the victims may see their role as a competing one with the accused. That would be unfortunate, in a way that's consistent with the concerns expressed in writing to this committee by the Canadian Criminal Justice Association in their brief of September 25.
Second, the bill proposes amending the sentencing principles in the Criminal Code to include reference to the harm done to victims or to the community, in proposed paragraphs 718(a) and 718.2(e). These proposed amendments, in my submission, are unnecessary, as paragraph 718(f) already says it's the fundamental purpose of sentencing:
to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.
Repetition will only lead to confusion and litigation, clogging the justice system even more. For example, it's unclear whether the repeated reference to harm done to victims or to the community means that judges should attribute greater weight to that consideration than to the other important considerations in sentencing, including proportionality, the circumstances of the offence and the offender, and rehabilitation and reintegration.
The addition to paragraph 718.2(e) is particularly problematic. Paragraph 718.2(e) calls for restraint in sentencing generally and, in particular, in sentencing aboriginal offenders. It's a response to the problem of over-incarceration in Canada generally and, in particular, to the disproportionate incarceration of aboriginal offenders.
The Supreme Court of Canada in Gladue, and more recently in Ipeelee, recognized that aboriginal Canadians are overrepresented in Canadian jails, and the sentencing process may help address this unconscionable situation by requiring sentencing judges to pay particular attention to the unique circumstances of aboriginal offenders.
By adding a reference to the harm done to victims of the community in paragraph 718.2(e), the proposed amendment may suggest that greater weight must be placed on the harm done to victims than on the unique circumstances of aboriginal offenders. In this way the proposed amendment, combined with the increased use of mandatory minimum penalties in Canada and the elimination of conditional sentence orders for many non-violent offenders, seriously risks adding to Canada's overreliance on incarceration, particularly for aboriginal and marginalized communities.
This CBA section, therefore, recommends that the amendments to section 718 of the code or at the very least those to paragraph 718.2(e) of the code be deleted from the bill.
Finally, clause 17 of the bill proposes a new regime allowing for the non-disclosure of a witness's identity in the course of the proceeding. On application of the prosecutor, the judge shall consider several factors, including the right to a fair and public hearing and the importance of the witness's testimony to the case in determining whether or not to make the order.
Concealing a witness's identity from the accused in the criminal proceeding is fraught with difficulties, including constitutional hurdles. Restricting the disclosure of a witness's or victim's identity in open court will seriously hinder an accused's right to make full answer in defence, and the CBA section is of the view that this proposal will not survive constitutional scrutiny.
There are also practical concerns. How can crown or defence counsel effectively direct a direct examination or cross-examination without revealing any information about the identity of the witness or the victim? Those are practical considerations that this committee should keep in mind. We therefore recommend that clause 17 be deleted.
But overall the section agrees that protecting victims is a very laudable goal and that the bill generally strikes an appropriate balance among the competing interests in the criminal justice system. While some aspects of the bill skew that balance, resulting in unfairness to the accused or, worse, inefficient administration of justice, we understand that perfect justice is not required but that there has to be fundamental fairness.
Thank you.