Evidence of meeting #51 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was rights.
A recording is available from Parliament.
Conservative
The Chair Conservative Mike Wallace
If you are sending it to one member, please send it to the clerk, and it will be distributed to everybody.
Liberal
Sean Casey Liberal Charlottetown, PE
As I said, all of the lawyers we've heard from so far, except those at the Department of Justice, don't share your view. I think it's important that we have all of this.
Liberal
Sean Casey Liberal Charlottetown, PE
Staying with clause 17, I have a question for Mr. Woodburn and Mr. Gottardi. It's the same question that I posed to the Criminal Lawyers' Association.
On this clause 17, Mr. Woodburn, you were more unequivocal than Mr. Gottardi. You said that it is unconstitutional. We heard a similar position from the defence bar. The CBA says that it will invite “rigorous constitutional scrutiny”.
President, Canadian Association of Crown Counsel
It can be viewed as unconstitutional.
Liberal
Sean Casey Liberal Charlottetown, PE
Within the act, under clause 2 of the act, we have all of the declarations of the various rights. Clause 20 within those declarations is one that talks about the “Act is to be construed and applied in a manner that is reasonable in the circumstances” and doesn't “interfere with the proper administration of justice”, and “discretion”, and all of these other sorts of things. It's an overriding interpretation clause or a broad interpretation clause, if you will.
I come back to the constitutional concerns with respect to clause 17 and protecting the identity of witnesses. When read with that clause that I just referenced, can you offer me your opinion as to whether you take any comfort in the existence of this clause 20 contained in clause 2 of the bill when expressing your concerns with respect to the constitutionality of clause 17?
President, Canadian Association of Crown Counsel
I'd have to say no, because a justice or a judge can still order that the identity of somebody—including name and everything—be hidden from anybody in the courtroom and still consider all parts of clause 17 and the other part in clause 20 and still say, “Yes, we can still do it”. I don't see how they can work in conjunction. It's still there. It's part of the problem.
Chair, Criminal Justice Section, Canadian Bar Association
I agree with my friend.
When we're talking about clause 20, we need to understand—at least in my view of it, which comes from some of the concerns that were expressed early on in the process and during the consultations—that you have to recognize the fundamental pillars of the system and the independence of the judiciary, the independence of the prosecution service, and the independence of an independent bar.
The concerns were that if some of the provisions in the victims bill of rights went too far, they would impinge on the constitutional imperative of prosecutorial independence. It's my belief and understanding that clause 20 is here in this bill of rights to ensure that nothing in the bill is going to override that constitutional principle. It's a safeguard to protect the constitutionality of the bill.
I don't see it as impacting on clause 17. Clause 17 seems to stand alone in terms of a code amendment. There is lots of ambiguity in this section. When the proposed subclause 486.31(2) says:
The judge or justice may hold a hearing...the hearing may be in private.
it's unclear to me how private that's going to be. Is it simply in camera so the public won't be there, or is it ex parte so the defence and the accused won't be there? It's ambiguous to me.
I agree with the comments from Mr. Goguen that the only possible situation I could envision is where death is at issue, but it's not clear to me in the section that this would be the reality there.
I'd also be interested in seeing the case law, because I took a look, based on the exchange at the committee with Mr. Krongold, who was here. I can't find any cases, appellate or higher, that deal with anonymity of witnesses. There is the use of pseudonyms and that kind of thing, but what is contemplated in this bill, in terms of any information that could disclose the identity, is unheard of.
I haven't found it in my research. I'd certainly consider any cases that do come along, but I think this one is particularly problematic as it's currently drafted.
President, Canadian Association of Crown Counsel
With regard to the “life and death”, there are measures in place that we deal with.
A couple of weeks ago we brought in a witness in witness protection. I think everyone in the courtroom except for me had a bulletproof vest on. They didn't know where he was coming from; they didn't know where he left to; but he testified very comfortably in the courtroom. The courtroom was cleared of all individuals who didn't need to be there. The safeguards were put in place.
It's one of those things. When it's life and death, it's dealt with that way. We just don't allow people to waltz in and waltz out.
When it's a child, we also take very great care with them to ensure they're not emotionally or physically harmed by the process or by anybody around. It's extremely important to us that people walk out whole, or sometimes better, when they walk out of that courtroom.
Liberal
Sean Casey Liberal Charlottetown, PE
Again, back to the two practitioners who are within the criminal justice system on a daily basis, you have expressed concerns over delays and demands on resources as a result of some of the measures in this bill, including the clause we just talked about, the notification of guilty plea, the complaints mechanism.
Specifically concerning crown counsel and legal aid budgets, what are your comments on how the rights that are enshrined in this bill will impact on the demands on those two, especially in consideration of their adequacy today?
Conservative
Liberal
Chair, Criminal Justice Section, Canadian Bar Association
I'll defer to my learned friend.
November 6th, 2014 / 4:55 p.m.
President, Canadian Association of Crown Counsel
If I have longer than 10 seconds I can attempt it.
Conservative
The Chair Conservative Mike Wallace
Well, the longer you wait, the less time you have. Are you going to answer the question?
President, Canadian Association of Crown Counsel
Yes. Thank you.
It's a matter of where the resources.... We just don't have enough people; we don't have enough staff in order to deal with the amount of work that's going to be added. It's not only for us in legal aid; I'm also incredibly worried for the people in our victims services. In my view they work extremely hard on a shoestring budget, and this is going to impact them greatly.
Conservative
The Chair Conservative Mike Wallace
Thank you very much.
Our next questioner from the Conservative Party is Mr. Dechert.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you, Mr. Chair.
Thanks to each of our witnesses for being here today and for sharing their expertise with us.
Just by way of a response to the question that Mr. Casey raised earlier about cases supporting clause 17 of the bill, there are two that I know of, and there may be others. There's the case of the Vancouver Sun v. Named Person. It was a decision by the Supreme Court of Canada. Another case was R. v. Moosemay, the citation for which is [2002] 2 WWR 581. As I said, Mr. Chair, there may be others that certainly support the constitutionality of this provision. I'm sure many of the lawyers around the table today are aware of those cases.
I wanted to address the issue of clause 21 and the notice of plea bargain, which was raised by a number of witnesses today. As you know, clause 21 proposes a new subsection 606(4.1) of the Criminal Code, which is to say that in a case where there has been a serious personal injury:
the court shall, after accepting the plea of guilty, inquire of the prosecutor if reasonable steps were taken to inform the victims of the agreement.
In proposed subsection 606(4.2):
If the accused is charged with an offence, as defined in section 2 of the Canadian Victims Bill of Rights, that is an indictable offence for which the maximum punishment is imprisonment for five years or more
—again, after accepting the plea of guilty—and:
the court shall...inquire of the prosecutor whether any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement.
Proposed subsection 606(4.3) says that where the victim was not informed of a plea bargain prior to the guilty plea being made in court:
the prosecutor shall, as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea.
Further, proposed subsection 606(4.4) goes on to say that:
Neither the failure of the court to inquire of the prosecutor, nor the failure of the prosecutor to take reasonable steps to inform the victims of the agreement, affects the validity of the plea.
It seems to me there are a lot of qualifications for the prosecutor. In the heat of trial, in a busy courtroom, he simply has to meet the test of having taken reasonable steps and done what is feasible. It seems to me that in the days of the Internet and electronic communication devices, which virtually everyone carries these days—Canada has one of the highest incidences of cellphone and Internet usage in the world—it would be pretty simple for most prosecutors to get the email address of the victim prior to the day of trial and to tell them that the trial would be on such a date and that they might be sending them some information so they should stand by their email. I would think that a lot of victims would do that.
It's also been stated here by a number of people that it's really a question of resources. Of course, as we know, the administration of justice at the court level is under the purview of the provinces, and at the cost of the provinces. When we last met, we had the Alberta Minister of Justice, who was asked this question several different ways by some of my colleagues on the other side of the table, and who didn't seem to have a concern about the costs. Presumably, at least that minister of justice is prepared to make available to the crown prosecutors the resources that are necessary in order to inform victims that a plea bargain has been entered into. From my dealings with victims, it's been pointed out many times to me that this is a significant issue for victims. They feel they have a right to be informed when a plea bargain has been entered into.
I should also point out that the committee has invited all of the provincial and territorial ministers of justice to appear before the committee or provide some comment to the committee, and thus far we've heard from only the Alberta Minister of Justice. There's more time to go in this study. We may hear from the others yet, but I would have thought that the two biggest provinces, Ontario and Quebec, which must have the greatest number of cases before the courts, might have stepped up and said, “Hey, wait a minute. This is going to cost us far too much. We can't possibly provide these resources.” The evidence so far is they haven't said that.
I would have thought that, from the point of view of the prosecutor, the prosecutor would say, “I'll do what I can do within the time and resources that are available to me, but perhaps the provincial attorney general needs to provide me with more resources”. At least the Alberta attorney general seems to be prepared to do that.
I want to ask the victims groups what they think of clause 21 and of the right of a victim to be informed of a notice of plea bargain after it's been accepted by the court—given, as I said earlier, that the prosecutor only has to meet the test that he has taken reasonable steps and done it as soon as feasible.
Perhaps we can start with Ms. Lindfield.
Co-Founder, Manager of Education and Community Outreach, Canadian Parents of Murdered Children and Survivors of Homicide Victims Inc.
I think it's really important that the victim be informed. As you suggest, in this age of technology it does not take much to type up a little email and send that out.
I talked about the web portal. That's something where all that information can be put in and the victim can access that. The minute a plea bargain process is under way, that information can be put into that. By way of email, the victim can go in there and actually see what's going on. It saves time for the crown's office, and it doesn't impede the process.
Conservative