Justice Committee on Nov. 25th, 2014

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Chair, this is an amendment that seeks to give voice to the wishes of the Chiefs of Ontario and to take account of the unique position that our aboriginal communities have in this country.

In particular, this amendment adds the aboriginal identity of victims, witnesses, or accused as a consideration for a prosecution application for testimony behind a screen or other device. It's my submission that the committee should respect the principles articulated by the Supreme Court of Canada decision in Gladue and extend special consideration for aboriginal circumstances to the victim's side of the equation. The court should be granted the discretion to keep an open mind about special testimony circumstances in aboriginal contexts as requested by the Chiefs of Ontario.

(Amendment negatived)

[The Chair, Conservative, Mike Wallace]

Clause 15 was amended because G-2 carried.

(Clause 15 as amended agreed to)

(On clause 16)

Due to G-2 passing, G-4 is no longer needed, except for a small change. G-4 says “replacing lines 38 and 40”. It should be “replacing lines 38 to 40”. It's not those two lines, 38 and 40; it's lines 38 to 40. Is that okay with everybody? Consequentially, let's vote on that.

(Amendment agreed to)

(Clause 16 as amended agreed to)

(On clause 17)

There's a little bit of verbiage I need to read here.

The next amendment we're going to deal with is LIB-7. The vote on LIB-7 applies to LIB-8, LIB-9, and LIB-10, as they're all consequential. I'm assuming if LIB-7 passes, we don't need to deal with them. They would be adopted automatically. If LIB-7 is adopted, PV-12 and PV-13 cannot be moved because they amend the same lines. As I mentioned before, you can't amend lines more than once. If LIB-7 is adopted, PV-14 cannot be moved and the section amended by PV-14 would no longer exist.

There we go. That's the information for everybody.

On amendment LIB-7, Mr. Casey, the floor is yours.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Chair, this amendment is to remove a part of clause 17. The subsequent amendments that would follow from that propose to delete the rest of clause 17.

We heard significant testimony before the committee from the crown prosecutors, from the defence bar, from the Canadian Bar Association, and from those who practise criminal law that we are headed for a likely successful constitutional challenge of clause 17 if it remains.

This is to avoid another loss before the courts when this is challenged on the basis of constitutionality. It respects the evidence we heard from those who practise in the area. Unless we want to end up back before the court and have another section of the code struck out as being unconstitutional, we can save everyone the trouble now by adopting this amendment or by defeating this clause.

[The Chair, Conservative, Mike Wallace]

Monsieur Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Allowing witnesses to testify using a pseudonym in appropriate cases in which a court has determined that it's in the best interest of the proper administration of justice will encourage more witnesses to come forward and will enable them to testify in a manner that doesn't jeopardize their safety.

This will not be taken lightly and will only be used very sparingly in cases, and only when the facts warrant it.

[The Chair, Conservative, Mike Wallace]

Thank you, sir.

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Goguen, that is the least persuasive argument. I say that with all due respect.

I don't think my interpretation is the same, but that is the beauty of having so many lawyers around the table and among the witnesses. Section 486.31, which was just added through clause 17 of the bill, has so many nuances that the court will be able to proceed in a reasonable and constitutional way.

I agree with other proposed amendments. There are actually cases where that may be necessary. However, I am trying to figure out when that would help victims and people to testify. The most representative case of what you are saying is perhaps organized crime, where an individual might be too afraid, for their own safety and that of their family, to appear in court or have their name released. Amendments will therefore be introduced in that sense.

I don't see clause 17 in the same way as my colleague Mr. Casey. If we establish a good framework and the courts do their job in terms of all the factors listed under paragraphs 483.31(3)(a) to (j), things will go well. I am aware that this does not eliminate the risk of slippage, but we must think of safety and the fact that someone cannot decide not to disclose their name on a whim. At any rate, I don't think courts would accept that a person does not testify without knowing who the person is in such a context. Our courts and our judges are more serious than that in Canada.

There are certainly specific cases to which this might apply and for which section 486.31 will be necessary under the described circumstances. If we repealed the entire subsection, we would deprive ourselves of a tool that might turn out to be important in some cases, but the scope is very limited and limiting.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

We're about to pass a clause that allows for a witness's identity to be withheld from the accused. If there is anything that would offend the right to a fair trial, it is that, and this is what we've consistently heard. It's about the charter.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Is there anything further on amendment LIB-7?

(Amendment negatived [See Minutes of Proceedings])

The amendment has failed, which means that amendment PV-12 is in order.

Madam May, the floor is yours.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

I will reiterate what Sean Casey just said. It's a fundamental aspect of the right to a fair trial to know your accusers. I note that in an earlier response, Mr. Goguen referred to it as using a pseudonym, but that's not what proposed section 486.31 contemplates. It says the judge can “make an order directing that any information that could identify the witness not be disclosed”. That's going far beyond using a pseudonym.

It's not clear from the testimony of Mr. Krongold, of the Criminal Lawyers' Association, who said:

I'm not sure if I'm reading the provision right. I hope I'm not reading it right. But it's hard to imagine a more fundamental change to Canadian law, one less consistent with Canadians' visions of open, fair justice, where everybody has a chance to a fair trial, where they can make full answer and defence and confront the witnesses against them.

A similar point was made by the Canadian Bar Association, that this clause “contemplates at least the possibility”—and I'm now quoting from Mr. Gottardi from the CBA:

that the accused and counsel for the accused and the crown might have to cross-examine or direct examine a witness when they have no idea who the witness is. I haven't found a single case that talks about that, and I can't imagine a scenario, short of life and death and someone essentially amounting to a confidential informer, where that kind of process would pass constitutional muster.

Drawing from that evidence, and frankly preferring the deletion approach, I have crafted a series of amendments that attempt to at least circumscribe the opportunities for such application of the judge's discretion to those cases in which there is in fact a life and death situation. The first of a series of amendments that all work to this purpose is Green Party amendment PV-12, which amends it to read:

that establishes that the disclosure of the witness' identity could endanger their life

So the amendment is that in the application of the currently proposed section 486.31, the application of this anonymity provision for a witness be very much circumscribed to a life and death situation.

I'm still not sure whether that would be constitutional, but it would be better.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I wonder what the officials' views of this section would be. I understand that the test here is the interest of the proper administering of justice, and it's well understood by the judges. It gives them the ability to exercise their discretion while considering the relevant factors and considering the safety of the witness.

What are the views of our witnesses?

[Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice]

Drawing on a few things, the test is well established, including within the various testimonial aid provisions within the Criminal Code. This is very well established, as Madame Boivin pointed out. Proposed subsection 486.31(3) articulates the different criteria that a court will be guided by in making its determination.

When we appeared initially on this, the question was asked, and I made reference to some case law that had already proceeded with this; courts have made the order using a common law power. The example given was that the victim didn't want the name or identity known to the accused. The name of the person who was testifying, the complainant, was still written down; the court knew. The court could set whatever criteria are important based on the facts of the case. Should the name be disclosed to the lawyer for the accused but not disclosed to the accused? Again, the court has the tools, as proposed by this provision, using a well-established test, to set conditions that would be appropriate and that will safeguard the open principle—the accused's rights—in the circumstances.

[The Chair, Conservative, Mike Wallace]

Is there anything further?

Monsieur Goguen?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

There is not from me.

[The Chair, Conservative, Mike Wallace]

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I would like to come back to Mr. Goguen's question specifically.

I think Ms. May's amendment fits in nicely with what you just said. There is no harm in specifying in the proceedings against the accused that the judge or justice may, on application of the prosecutor in respect of a witness, make an order.

I cannot see any other reasons in this context, unless you tell me that there are considerations for the safety of the individual or their family for instance, or that the case law you are referring to listed other cases. That is the only reason why Mr. Casey's amendment seemed too broad perhaps.

I can understand because I know there is case law and there have been very specific and limited cases, but I don't think we want to open Pandora's box. We simply want to put on paper what you so well determined when you appeared before us the first time. That has been done before, but not on a large scale. It is good to have it written, because that will help the courts avoid an issue of common law power. They will actually be able to use a specific piece of legislation to make an analysis in a certain light.

I think it makes sense to clarify it further, as proposed in amendment PV-12.

[Carole Morency]

There's no question that the safety of the witness might be the most common consideration, but it might not be the only one. Even in the case that I believe Mr. Krongold referred to and that we would refer to, the Named Person v. The Vancouver Sun case, the Supreme Court said there could be an issue for a confidential source as well.

At the end of the day, the proposal before the committee seeks to provide a framework for a court to make a decision based on the facts and circumstances of that case as appropriate, using a test that is well established. As Madame Boivin has indicated, these are not decisions the courts take lightly, and they're not made on a frequent basis. It's to provide another tool so that the evidence can be brought before the court. If a witness testifies using a pseudonym, the court still has to assess the weight to be given to that evidence. The accused will still have the right, through counsel, to cross-examine the witness. So it is being proposed within the context of what exists now.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, Mike Wallace]

We are on amendment PV-13.

Madam May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

Well, again, I'm thanking the expert guidance we have here from Justice. This amendment again is attempting to circumscribe very specifically the only kinds of instances where this rare opportunity should be used. I again draw the attention of everyone to the fact that the way section 486.31 is drafted, it is not limited to a pseudonym. If it were limited to a pseudonym, that would be something very different. We're much more used to that in criminal law. Although I haven't practised law in some time, I do know pseudonyms can be used, but this says to make an order that directs that any information that could identify the witness not be disclosed. I think this goes beyond what we've done up to this point. In this second attempt, Green Party amendment PV-13 seeks to expand the ambit of those who could be at risk from a life and death situation affecting the witness to one that establishes that disclosure of the witness's identity could endanger their life or the life of anyone known to the witness.

I think that should satisfy the concern. I would love to think we would not be wanting to take this notion of secret witnesses any farther than a life and death situation.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, Mike Wallace]

Amendment LIB-8 is no longer available to us. LIB-9 is no longer...as LIB-7 has been defeated.

We're on amendment PV-14.

Madam May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you.

Having moved on from an attempt to fix 486.31(1), this attempts to insert a new subsection 486.31(3.1) after the listed directed considerations for the judge's discretion, which reads:

For greater certainty, the paramount consideration to guide the court under this section is whether the disclosure of the witness' identity could endanger their life, with the factors set out in subsection (3), in all cases, being subordinate to this consideration.

In other words, one of the considerations here, Mr. Chair, is the importance of the witness's testimony to the case. If you're really, really wanting to convict somebody, then you're going to say, “Well, on the balance of things, their right to a fair trial is going to go down because we really want to convict them.”

I think this is a very slippery slope for criminal justice in Canada, and I hope that proposed subsection 486.31(3.1) at least can be accepted to mitigate the risk.

[The Chair, Conservative, Mike Wallace]

Madame Boivin, on PV-14.

[Françoise Boivin, NDP, Gatineau, QC]

Yes, on PV-14, I have a comment and a subamendment.

Since I agree, I am not going to repeat what my colleague just said.

I really liked that, in her previous amendment, PV-13, she was trying to include anyone known to the witness.

I would like to suggest the following subamendment:

For greater certainty, the paramount consideration to guide the court under this section is whether the disclosure of the witness' identity could endanger their life or the life of anyone close to the witness...

It makes sense to clarify that.