Justice Committee on Oct. 23rd, 2017

[Anthony Moustacalis, President, Criminal Lawyers' Association]

The only thing I would add is that this could be exacerbated by the proposals to reduce or eliminate preliminary hearings, which would allow for the gathering of some evidence from complainants that could also avoid some of the complications of mid-trial applications. The opportunity that's lost through the potential reduction of preliminary hearings would make this worse.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you.

If any other witness wants to address that point, I'd certainly provide an opportunity.

[Michael Spratt]

I know the committee is looking for helpful suggestions to make this bill better. Assuming that this is the final version that passes, there is one thing that can be done to alleviate some of those concerns. If this application is brought mid-trial, and if there are provisions to have an in-camera hearing at which there is statutorily mandated non-disclosure of that information by the crown or the state to the complainant, a trial judge would still, much as under the current section 276 applications, be able to vet those questions ahead of time.

The defence counsel will know to a better extent what is relevant and what is not relevant, because it won't be brought so far in advance, and some of those concerns we've raised about tailoring of evidence may not arise because that information will not be disclosed to the complainant.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Maybe I'll direct this to you, Mr. Spratt, because you did raise it in your evidence. It's your belief that the reverse disclosure requirements are unconstitutional. The government has said in their charter statement that this is really no different from Mills. Could you perhaps comment on that?

[Michael Spratt]

Yes. It's interesting to look at the charter statement, because there's not very much detail there.

It's very different from Mills, because of course in Mills it's the defence looking for information or bringing an application to get information. Mills is a protection from the complainant against the coercive power of a subpoena, that subpoena power.

Also, of course, there are different stages involved in Mills, and none necessarily involve the type of disclosure that would be engaged by the defence, particularly if you look at some types of materials that the defence may already have in their possession that might be distinguishable from Mills. It may not be looking for medical records or things that are the subject of Mills, but it may be other statements the complainant made to other people that were passed on to the accused.

The subject matter is different. The purpose is different. None of that is really detailed in the charter statement.

[Kyla Lee]

If I could jump in on that as well, one concern that arises there, too, as expressed by the previous panel, is this issue that the disclosure obligation is for a record that's going to be related to any witness, which arguably includes the accused themselves.

You can read that in light of the amendment to the section on mistaken belief and consent, for example, and take the example of a sex tape. If somebody has a sex tape showing active consent to the act that is alleged to be non-consensual, they then have to disclose that and go through this whole application procedure, even though it's something in their possession that relates to them and that the accused would bring up as part of their testimony. When you look at the interplay between these sections, it raises really significant problems.

It's very different from Mills. It's very different from what was being contemplated, because it's not, as Mr. Spratt says, about looking for information. It's now about a proactive obligation on the defence to disclose what, in the example I've provided, could be the very defence to the allegation.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair.

Thanks very much to all of you for being here. I enjoyed your presentations.

If I could, I'll start with Acumen Law first. You indicated—and I can't remember if it was you, Ms. Leamon, or you, Ms. Lee, who said it—that this bill essentially would eliminate the mistaken belief in consent, but as far as I understand it, it codifies Ewanchuk, which basically eliminates the mistaken belief in consent as far as a mistaken belief in the law goes, but not necessarily a mistaken belief in the facts.

The facts would still allow somebody to raise a reasonable and honest belief in mistaken consent if the facts bore that out, but not insomuch as believing that, for example, the person consented even though she was unconscious, which Ewanchuk says is a mistake of law. I'd like your comment on that, please.

[Kyla Lee]

I think this is very different from Ewanchuk, because it relies on an absence of evidence of actual consent. The way the wording is provided is where “there is no evidence” of actual consent, either “by words” or by actions on the part of the person who would be giving the consent.

To rely on the absence of evidence as supportive of the fact that consent wasn't obtained, and as preventative of arguing the issue of mistaken belief in consent, puts an impossible hurdle in front of the defence in these types of situations, because it's watering it down to an issue of just the facts, and if the facts aren't even disclosed by the complainant.... While the crown has a proactive obligation to disclose all of the evidence in their possession, the complainant doesn't.

We saw this in Ghomeshi. We see this in cases all the time where there's information the complainants don't reveal to the crown that comes up in the course of trial.

If you say you can rely on “no evidence” to substantiate essentially a conviction, then you're allowing complainants to get away with not disclosing things that might undermine the validity of their complaint, and hamstringing the crown into a position of not being able to disclose a case because there's no obligation on the complainant to disclose it to the crown, to then disclose it to the defence. I think the way it's worded—and perhaps it's an issue of tweaking the wording—makes it an issue about the factual circumstances, not the legal circumstances.

[Colin Fraser, Liberal, West Nova, NS]

Okay. That's interesting. For the sake of time, I will have to leave it there, but I appreciate your thoughts.

I will turn to you, Ms. Savard. You talked about the fact that the application the accused could bring for adducing evidence of a complainant's personal records would have to happen pre-trial. Maybe I'm not understanding it, but in proposed subsection 278.93(4) I see the seven-day notice requirement, but it doesn't say anything about it having to be before trial, and in fact it gives the judge the ability to do it for a shorter interval if deemed appropriate in the circumstance.

Wouldn't that allow it to happen during a trial? If not, why not?

[Megan Savard]

It would. I actually don't have any problem with that provision in and of itself apart from the fact that most sexual offence prosecutions don't take seven days, so in most cases you would be taking advantage of the short turnaround if you want to keep the rest of your scheduled trial dates.

[Colin Fraser, Liberal, West Nova, NS]

But that would assume the judge would take that.... Obviously, if it's a shorter period, the judge would be able to abridge it for that purpose.

[Megan Savard]

Yes, that's exactly right. The concern the association has is with the rest of the procedural mechanisms. For example, if this arises in a mid-trial application, there's actually a requirement that the complainant have the opportunity to be represented and have standing on these applications as well.

That means the complainant, who up until now has had no reason to have a lawyer, has to go off, figure out if they have funding, secure the funding if they have it—hiring a lawyer is expensive—and go out and retain a lawyer. That lawyer needs time to prepare to address the issue that's arisen because now they have standing and are entitled to make submissions. Then you have to get that lawyer's availability because they are probably also dealing with a busy criminal practice. Then all three lawyers and the assigned trial judge have to get back into a courthouse where, as this committee knows from dealing with recent developments in the law of delay, often requires an eight- or 10-month wait, sometimes shorter if you're jumping up against the Jordan ceiling, but not necessarily.

It's not the notice requirement that is in itself problematic. It's the practical implications of the procedure as currently worded.

[Colin Fraser, Liberal, West Nova, NS]

Okay.

Can you help me understand? Mr. Spratt, you've alluded to this as well with the 60-day notice period, but as I understand it, that's for notice for production of documents, not notice to intend to adduce certain evidence.

Isn't there a distinct difference there?

[Michael Spratt]

Megan's quite right on this point. There's always discretion for the judges to abridge any of the notice requirements, and that happens quite routinely. Already questions about prior sexual history may only become relevant in the middle of the trial, and that's happened on a few occasions when I've been counsel, and they are argued as a mid-trial ruling.

That's quite right. Every time this procedure is invoked, and it will be invoked every time, it is going to result in a delay of six months or more. In Ottawa, we're looking at eight to 10 months to secure a date. That's the reality.

That is going to be the de facto delay occasioned by each occasion. I think you also have to take into consideration what Ms. Leamon has said, and that is that lawyers are expensive, and there's going to be a difference in justice that complainants can receive, if that is the purpose here, based on whether they can afford a lawyer or not.

Provincial legal aid plans may help fund that. There's a limited pot of money there, and that's going to come out of money that can go to accused people to assist in their defence. What you actually are going to be seeing here probably is individuals who are accused who don't have a lawyer, or maybe have a lawyer appointed to ask the complainant questions for that limited purpose, and complainants who will receive funding on a good day, or on a bad day, if they are impoverished and marginalized, maybe not. Either way, you're looking at a delay of six to eight months from the date this application is brought.

[Colin Fraser, Liberal, West Nova, NS]

Is that my time? Okay.

Thank you.

[The Chair, Liberal, Anthony Housefather]

We'll have another chance at the end of the first round.

Mr. Johns.

[Gord Johns, NDP, Courtenay—Alberni, BC]

First, thank you to all the witnesses for your important testimony.

We know Bill C-51 seeks to remove unconstitutional provisions from the Criminal Code.

I'll start with Mr. Spratt. Do you believe it goes far enough? I know there was no mention of removing minimum sentence provisions. Could you please speak further to that?

[Michael Spratt]

We know that the Supreme Court declared some minimum sentences of no force and effect in a case called Nur. Those remain in the Criminal Code despite the fact that they're unconstitutional and don't apply, much like the provisions in the Travis Vader case that the judge relied upon. Those were of no force and effect, and they were in the Criminal Code. We saw the mischief that caused. They're not touched here.

The other things we don't see are the other decisions from appellate courts across the country that have found constitutional infirmities with other sections of the code. They're not in there. Perhaps the reason is that there hasn't been a final determination of the Supreme Court. Only that one province has....

We know that's not the case, however, for the minimum sentence that was at the heart of the Nur case. That is a glaring omission from this bill. If we're truly going to remove unconstitutional sections that have been found to be unconstitutional, finally, then we should actually remove them all.

[Gord Johns, NDP, Courtenay—Alberni, BC]

Ms. Lee or Ms. Leamon, would you like to comment?

[Sarah Leamon]

I would echo what Mr. Spratt said. Again, if the purpose of this bill is to provide consistency and clarity with respect to our criminal law, and to ensure that it is being applied in a consistent manner from jurisdiction to jurisdiction, then certainly we would want to see those portions of the code removed. There's no reason not to remove them.

[Gord Johns, NDP, Courtenay—Alberni, BC]

Ms. Lee, do you have a comment?

[Kyla Lee]

From a practical perspective of being a defence lawyer and advising your client, let's say a case comes to you on something that you're not super familiar with and you resort to the Criminal Code to try to give an answer really quickly to somebody who's saying “What am I looking at here?” If you're not up to date on what has been declared unconstitutional in every single section of the code, and the code is not being cleaned up to keep in line with what the Supreme Court has ruled, then we're going to run into situations where bad legal advice is given to people. They'll then make decisions about how to conduct their trials, or who to hire as their lawyers, based on that bad legal advice that is not up to date.

I've encountered situations—I've seen them happen in court—where people are given illegal sentences, or where prosecutors who aren't aware of findings of unconstitutionality or the elimination of certain sentencing provisions take a position on sentencing that then leads to a trial taking longer, or leads to a plea being entered, God forbid, in circumstances where perhaps the resolution agreed to between crown and defence isn't available any longer. If the code is not being amended to keep up with that, then you'll have people getting advice that will not be the correct advice.

No one defence lawyer can memorize every single section of the code and follow every single case that comes out to know what's unconstitutional. It's impossible for us—I swear.

[The Chair, Liberal, Anthony Housefather]

I actually think Michael can.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes, I think he can.