Evidence of meeting #26 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was code.
A recording is available from Parliament.
Noon
Liberal
Colin Fraser Liberal West Nova, NS
I appreciate your testimony. Thanks for being here today.
Picking up on that last point, would you imagine a situation where a prosecutor wouldn't proceed on both? There's nothing that would prevent a prosecutor from charging for both aggravated assault and torture. Wouldn't you see it as something that would, as a norm, happen that way?
Noon
Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association
I think the more likely scenario is that a number of charges are proceeded on, including the torture charge. The situation as described previously could arise and would be very troubling. It could happen, but I think an equally troubling situation is someone who is charged with assault, assault causing bodily harm, kidnapping, forcible confinement, torture, aggravated assault, attempted murder, and a number of other offences. I think that is probably the more likely scenario, and I've already touched on some of the dangers, risks, and costs with that type of charging.
Noon
Liberal
Colin Fraser Liberal West Nova, NS
It would happen quite often if somebody was charged with something, but then, after going through a preliminary hearing or something, it may be that a person would plead on the lesser included offence, if you can use that term in this case. Even if they weren't charged with aggravated assault, there could be a plea deal reached on that charge.
Noon
Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association
Yes, that's quite possible. That could happen at an early stage or at a late stage. It might happen after a victim has already testified at a preliminary hearing. It might happen before a victim has testified at a preliminary hearing. It may be driven by such factors as the stigma attached to the offence, the offender's status—in custody or out of custody—and other behind closed doors agreements that might be reached between the defence and the crown which again aren't very transparent.
Don't get me wrong. Those sorts of agreements are necessary. They're an essential part of our system, but when you're dealing with a bill that is dealing with a sensitive area specifically to educate the public as one of its main purposes, perhaps that sort of plea negotiation that is essential in other areas may not be best utilized in this case.
12:05 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
I agree with you. One of the other examples, though, would be if the victim had a difficult time testifying, that could be used as a means for the prosecution to not proceed with the torture but accept the plea deal on something less.
12:05 p.m.
Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association
That's right. There can be that negative impact, and there is also the risk which I think must always be guarded against, meting out justice and the appropriate penalties based on specific victims. I think there's been a right move to increase victims' rights, informational rights, and to include victims in the process. I think there were some laudable initiatives with respect to that. At the same time, we don't want the same offence but different victims, where one victim suggests and drives the prosecution in one way, and the other victim for whatever reason—fear, embarrassment, mercy—drives the prosecution in the other direction. That can lead to different justice for the same offenders and the same offence.
12:05 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
On that point with regard to victims' rights and victims being in the process, we heard testimony from one of the witnesses that somebody was not allowed to include the word “torture” in their victim impact statement. Does that sound right to you?
12:05 p.m.
Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association
It doesn't sound right. There are definitely areas that are inappropriate to be included in the victim impact statement, and there is lots of case law that deals with that. In my experience in court, there is very little if no editing or cross-examination—although it can be done, I've never seen it done—on a victim impact statement. I've seen a lot of things that the courts have said are inappropriate in victim impact statements, but nonetheless, they're included, and then the court does their appropriate job in exercising their discretion in, not condoning, but also not including as factors those comments in the ultimate decision on sentence.
12:05 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
To pick up a point that you raised earlier with regard to private members' bills, they are not subject to mandatory charter compliance. What are your thoughts then on charter issues that may arise with regard to this bill?
12:05 p.m.
Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association
There could be issues with respect to the breadth and application of the bill. There aren't the issues that we've seen in the past around cruel and unusual punishment and mandatory minimum sentences, so the charter concerns decrease somewhat in that respect.
Certainly, with respect to the breadth of conduct captured, and perhaps some of the inconsistencies, there might be some charter issues that arise, but I'm less concerned with the charter issues in this case.
I've had no trouble before saying, as I'm going to say again later this afternoon before the public safety committee, “There are unconstitutional sections in here for sure”. I'm not saying that here today.
12:05 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
With regard to sentencing, we heard in some earlier evidence that sentences were perhaps too low. You touched on that. Obviously, the maximum sentence is there for the worst circumstances and the worst offender. You touched on it being perhaps better utilized as an aggravating factor. The courts, obviously, would already take this into account in imposing a sentence, the maximum penalty being for the worst offender and worst circumstances. Could you explain how this could be codified as an aggravating factor?
12:05 p.m.
Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association
In section 718 of the Criminal Code, there's a list of aggravating circumstances. If indeed the goal of the bill is to drive home a point, to send a message, and to remind the judiciary to make sure that this is not only considered but explicitly recognized, I think aggravating factors are a good way of doing that in that they don't carry some of the other potential costs and issues that I talked about earlier.
12:05 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much, Mr. Fraser.
Mr. Spratt, I would like to thank you so much for appearing before us today. Your testimony was extremely helpful.
We're going to go to an in camera session. Let's break for a couple of minutes to let the room clear out, and we'll be back.
[Proceedings continue in camera]