Justice Committee on Oct. 23rd, 2017

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thanks very much.

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair, and thank you to our very informative panel today who are talking about three very distinct areas that Bill C-51 covers.

Mr. Mirza, you spoke about section 176 of the Criminal Code, specifically about clergymen. You mentioned repealing it and what the impact would be on Canadian society. Do you know if this provision has been used recently, and if so, has it been frequently used?

[Faisal Mirza]

It's an infrequently used provision. The danger that I'm trying to cite for this committee is that, if you put it in the context of current events, the current acts of hate and the rise of nationalism, which through media is uninhibited by borders, what you have is the potential for this provision to be more relevant than it was in the past. My suggestion is that the government take some time to study further, in conjunction with motion 103, whether or not the results support repealing it or perhaps putting forward an appropriate amendment.

That being said, I take the minister's point. I think it's valid that there are other criminal law provisions capable of dealing with the same type of underlying mischief, if I can call it that. The real tension here is that you have this provision, which is focused on a vulnerable sector right now, and you have to determine whether the timing is right to repeal it.

That's why I provided my input, in what I hope was a balanced way, to give you both sides of the argument.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

It was a clear way of positioning yourself. I take your point, but I wonder if there are other provisions of the Criminal Code and if this has not been frequently used, would the change have as big of an impact as you think?

Are we talking about a direct impact on somebody who could be charged with this, or an impact on the greater society, in that it gives a green signal, as you said earlier? Can you expand a little on that difference?

[Faisal Mirza]

There are a few ways to look at this. One that politicians in the room are well acquainted with is that criminal laws are often passed to send a message of accountability to the public, but also as an implicit deterrent. This type of provision could arguably send a message—particularly if police agencies were better educated about its applicability—that could be used as a basis to deter future misconduct in relation to synagogues, temples, and mosques, which unquestionably are on the rise. That's why I provided those examples.

It has that benefit in terms of dealing with protecting religious leaders, which is the terminology that I support, because I think it's more inclusive. We're in 2017 and it makes sense to be more inclusive. I take Mr. Nicholson's point that for jurists and other members of the government maybe this is including rabbis, imams, and other religious leaders, but at the end of the day we might as well get it right. If you're looking at amending it, you might as well get the language right so that it reflects the multicultural heritage of our country.

In terms of law enforcement, it may also come down to educating them about its applicability. The reason it may not have been used in the numerous examples I have provided is that it does have a level of obscurity to it in the Criminal Code. The first impulse of any police agency, and similarly of a prosecutor or criminal lawyer, would be to look at the assault provision, the threats provision, and the mischief provision, and not to think of section 176.

I can tell you, to be perfectly candid, that when I was asked to give testimony on this and it was referenced to section 176, despite having practised criminal law for 15 years this was the first time I came across this section. That's where there is some life to the argument of whether we really need this. However, I think you have to put it in the social context of today and not be blind to that reality.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Mr. Mirza.

Ms. Davies, you raised a very interesting point with respect to the inclusion of witnesses as well as complainants with respect to records. As well, you said that this was maybe overbroad in terms of its applicability. Can you describe some instances where witnesses as well as complainants would need to be protected when dealing with sexual assault cases?

[Breese Davies]

I think the problem with the language is that, if your intention is to protect complainants to deal with what's already been referenced, the under-reporting of incidents of sexual violence, making complainants feel like the process is more fair to them, I can't actually think of a scenario where you also need to extend that protection to a witness—a complainant is a witness, but a particular category of witnesses—for any of the purposes that have been articulated for this legislation.

That is precisely the problem. As drafted, it would apply to everybody. It would apply to police officers, family members of complainants, the friends who were with complainants earlier in the evening when something.... There are all sorts of people who testify in criminal trials, and as drafted it would apply to everybody. I cannot think of a scenario where you would need to extend that protection to address the goals and objectives that have been set out for this legislation.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you.

We only have a couple more minutes left with this panel today. Does anybody have any very short questions they would like to ask?

If not, I want to thank all three panels of witnesses. You were all incredibly clear. You came exactly as we asked, and you gave amendments and suggested amendments that were appropriate based on what you had talked about, and we really appreciate that.

We'll take a short break as we move to the next panel.

Again, thank you so much for coming to join us today.

[The Chair, Liberal, Anthony Housefather]

We will call the meeting back into session. It is a pleasure to be joined now by our second illustrious group of panellists, some of whom are returning and some of whom are first-timers.

We are joined by Acumen Law Corporation, with Kyla Lee and Sarah Leamon; as an individual, Michael Spratt; from the Criminal Lawyers' Association, Anthony Moustacalis, the president, and Megan Savard, who is an attorney there; and finally by Christine Silverberg, barrister and solicitor from Silverberg Legal, and a retired chief of police from the Calgary Police Service. Welcome, everyone.

[The Chair, Liberal, Anthony Housefather]

We're going to go through your statements one at a time. We'll start with Acumen Law Corporation.

[Kyla Lee, Associate Lawyer, Acumen Law Corporation]

Thank you.

On my behalf and that of my colleague, Ms. Leamon, I'd like to thank the committee for having us here today.

I'm going to deal with the provisions of Bill C-51 that address the sexual assault changes to the law. In particular, one of the elements that concern us is the change to the “mistaken belief in consent” defence that effectively eliminates that defence by adding a provision to the legislation that requires an individual to have actual consent, either through actions or words. It has the effect of eliminating the defence of mistaken belief in consent and a significant problem in our criminal justice system of essentially eliminating the mens rea component from any sexual assault case, as long as it is proven that somebody was essentially engaged in sex that they then say was non-consensual.

The burden shifts to the defence to show that there was actual consent, and they can't say they thought she was consenting unless they have proof that he or she was consenting to the act. That's significantly concerning because it either eliminates the ability of individuals who are innocent to raise their innocence or to raise that issue. It's also completely out of step with the realities of human sexual interaction, which are dynamic, which are not normal.... Most people when they are engaging in sexual situations are not asking if you would like to do this, with the response being, yes, they would, and then creating a record of that, so it's going to create practical hurdles for the defence that are going to be impossible to meet in the trial process.

My other main concern with this legislation is the manner in which it's going to enhance trial delays. In particular, this is going to disproportionately affect small communities and circuit courts where these cases are often more troubling because they affect the community at large.

Because of the way the applications to introduce the records that the defence intends to rely upon have to be made, it requires the seizing of a judge, who then has to come back and hear the subsequent application after deciding the written application, and then because they hear factual issues, may well become seized on the trial itself. That's going to lead to extreme problems for courthouses across this country, but most particularly in rural communities, which are understaffed, have fewer judicial resources, and have fewer judges, or sometimes only one judge. It's going to make it practically impossible for those cases to proceed in a timely fashion. It's also going to detract from other cases taking place in those courthouses, whatever they may be, and it's going to lead to delays in those cases because the judicial resources are going to be taken up dealing with all these pretrial applications with a seized judge who's now required to decide this particular issue.

One amendment I would suggest if this portion of the bill is passed is to allow those applications to be made before any judge. The judge who decides the written application shouldn't necessarily have to be the judge who then decides the in-person hearing, and shouldn't necessarily have to be the trial judge. That will allow for easier scheduling, particularly for communities affected by circuit courts where you might not have the judge returning for another six or eight months, and it then might not be the same judge.

I'll turn it over to my colleague, Ms. Leamon, to add her comments.

[Sarah Leamon, Associate Lawyer, Acumen Law Corporation]

As my colleague Ms. Lee has stated, the problems with this bill are numerous, and while we all accept the seriousness of sex assault and the effect it has on our communities, this bill relies on the mistaken assumption that amendments to the Criminal Code will somehow significantly solve the problem.

It is misguided in that it seeks to solve a social problem that cannot be remedied through the criminal justice system alone. Not only will the rights of the accused person be unduly compromised, but it will also, in my view, have some significant issues with respect to the rights of complainants. That's particularly so for complainants from marginalized and disadvantaged backgrounds.

The amendment that seeks to allow a complainant to access counsel raises significant concerns in this regard. Without answers as to how such counsel will be provided for, access to counsel can be compromised when complainants do not have the monetary resources to secure such counsel. It has the effect of creating a two-tier system, in a sense, for sex assault cases. Complainants who can afford the services of a lawyer will receive the best representation, while those without it will be left in the cold. That's made all the more concerning by the fact that there is a relationship between sexual victimization and marginalization.

In my view, it's also concerning when we consider that this exceptional measure is only extended to complainants in sex assault cases and not any others. If we consider, for example, the very complex and difficult circumstances that are often involved in domestic assault allegations, for instance, it makes no sense to me that a complainant in a domestic assault case would not be afforded the same kinds of resources as one who's involved in a sex assault case solely on the basis of those allegations. It, again, has the effect of creating essentially a two-tier system within our criminal justice system.

There are significant concerns, as well, about how public funding could potentially pay for access to counsel if this is going to be provided through the public purse. We already have very serious concerns with legal aid. It is chronically underfunded, and without increasing funding to legal aid, I don't see how it's possible to fund further access to counsel for complainants in sex assault cases. The practical result would be that if we don't increase funding to legal aid first, but provide public funding for counsel for complainants of sex assault cases, we could have an accused person who ends up either unrepresented or under-represented, while the complainant is represented by their own counsel and also has crown, as well.

Complainants' access to counsel is also further likely to contribute to delays. In my view, it will also frustrate the role of crown counsel in making their case. It could lead to an increase in stays, mistrials, and delay to access of justice on a whole. In my view, it is contrary to the objectives that are achieved in this bill.

In my view, it would be amiss not to consider how restorative justice programs may better fit the needs of this community in terms of dealing with a very serious social problem of sex assault. Our brief does go through one of those programs, RESTORE, at length, so I won't discuss that any further now due to the limited time.

I'd also like to very quickly touch on the eradication of these so-called “zombie laws”. In my view, this is in line and consistent with modernizing our Criminal Code with principles of clarity and consistency.

With respect to section 176, again this is covered by more general application sections of the code, and crimes motivated by religious intolerance will be treated as aggravated in any event. If this is to remain, then I would suggest that we do expand the wording to be more inclusive and again to expand beyond “clergyman” and include any kind of religious leader, and that is keeping in line, of course, again, with Canadian values of multiculturalism and inclusivity.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will move to Mr. Spratt.

[Michael Spratt, Lawyer, Abergel Goldstein and Partners, As an Individual]

Thank you very much for the opportunity to appear before you and make submissions on this important bill.

Bill C-51 seeks to amend the Criminal Code to remove or repeal provisions that have been ruled unconstitutional or that raise issues with the Canadian Charter of Rights and Freedoms, as well as provisions that are obsolete or redundant.

It also modifies provisions in the Criminal Code relating to sexual assault, to clarify their application and to provide a procedure for the admissibility of records when they're in the possession of an accused person.

I'm going to do something different and start with some positive things, because there are some positive aspects of this bill.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's allowed here in this committee.

[Michael Spratt]

That's great. It's going to be the first time.

One of those positive aspects is the removal of reverse onus provisions. A fundamental principle of our justice system is that the crown and the state must prove all elements of the offence beyond a reasonable doubt. Reverse onus provisions have the effect of imposing legal burdens on an accused person. Presumptions of those types, a reversal of the burden like that, can conflict with the Canadian Charter of Rights and Freedoms and the constitutional right to be presumed innocent until proven guilty. Removing those reverse onus provisions is good, but practically speaking, that's pretty low-hanging fruit. It's not something that comes up on a daily basis, and it's not something that is going to change too much in our court.

The repeal of outdated offences, similarly, is a good thing. The Criminal Code should be a simple document. It should be a general document that we can apply to specific situations. We are all, after all, presumed to know the law. The more complex and, literally, weighty the Criminal Code becomes, the more mistakes will be made by members of the public, judges, and triers of facts. Offences like alarming Her Majesty, possessing crime comic books, or disrupting religious services are simply unnecessary and add to the complexity that ought to be avoided.

Any harm caused by those activities—for example, disrupting a religious service—is covered by other sections of the Criminal Code: general public disturbance sections, harassment sections, and sections dealing with threats or assaults. Of course, as my colleague said, any actions that are motivated by hate, prejudice, or extreme ideology can be adequately dealt with as an aggravating factor on sentencing, and they already are. The only people who are really upset about removing those zombie laws and outdated laws are law professors, who are going to have one less funny story to tell their students about outdated and absurd Criminal Code sections. It's good that those are being repealed.

This bill doesn't repeal all outdated or unconstitutional sections, nor does Bill C-39, which I'm sure this committee will be dealing with as well. For example, the unconstitutional mandatory minimum sentences, which have been found to violate the charter at various courts of appeal, and by the Supreme Court in the case of Nur, are left untouched by both of those bills. If we are really serious about taking out sections that have been found to be unconstitutional, there is no principled reason not to include those sections as well. The bill should be amended to include that. That's a glaring omission that should be corrected.

The other aspect of this bill is about sexual assault. It codifies some existing law with respect to sexual assault. I don't see too much of a problem with that. Too often, common law developments are hidden from the public. You have to have a subscription to CanLII or Quicklaw, or to be following a case, to actually see those developments in court. I think it's a good thing to codify some of those sections. It would be really good if we had a law reform commission again, which could take a broad look at our Criminal Code.

For example, the Supreme Court has made it clear that an unconscious person can't consent to sexual activity. That's the law. It's common sense, but it's also currently the law. Bill C-51 doesn't change that, but it makes it clear, and I don't think anyone could be faulted for that. It's a good thing as well.

One of the changes in this bill is unlike all the others, and that is the process for reverse disclosure—in my view, an unconstitutional expansion of the Mills regime with respect to documents in the possession of an accused person. It's a major fault of this bill. There are three issues with that. The first is the reverse disclosure problems. The second is overbreadth issues, which was touched upon by the previous panel, and the third is the impact that this would have on access to justice and to trial delays in our courts.

Dealing with the reverse disclosure aspect.... An accused has to bring this application within 60 days of their trial, and they have to disclose on the record, as part of that application, not only the record and the detailed particulars of the record and the information that they want to adduce, but also their trial strategy, why that's important. This is all prior to hearing the crown's case, prior to the complainant testifying. That's unprecedented in Canadian law. It infringes upon the right to silence.

The Supreme Court has confirmed that disclosure flows from the state to the accused. In the context of the adversarial system, the defence need not disclose any material to the crown. This isn't a civil system, after all; life, liberty, and security of the person are at stake.

This change also impacts the right to a full answer and defence in a fair trial. It undermines the process of cross-examination, which is a crucible for the discovery of truth. The Supreme Court of Canada has said that Canadian courts, as in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenets of our justice system that an innocent person must not be convicted. It follows from this that the prejudice must be substantially outweighed by the value of the evidence before courts can interfere. We cannot assume in our courts that all complainants are honest and credible. We can hashtag and believe all survivors outside of court, but not in court. That's a recipe for wrongful conviction. That is the fundamental tension with this process of reverse disclosure.

What we have to realize is that when the defence discloses this information, if a complainant is not telling the truth, if they are lying—and that happens—then you're disclosing that information to a liar. You're disclosing the information that could prove they're lying to a liar before they testify in court, so that they have time to change their stories and they have time to shade the truth. That is not the crucible of cross-examination that will result in accurate findings. It's a legislative woodshed for false allegations.

You can think of examples. For instance, a complainant who says that they were stabbed in the past and has the scars and shows them to the police, but the accused has lawfully obtained medical records showing that the scars came from surgery; or the example of a text message that the complainant sends to a third party, and that message is then forwarded to the accused and it is damning evidence that the complainant is not telling the truth. It's not in the interests of justice to disclose that information in advance.

I'd be happy to answer any questions about the other issues, with respect to trial delays and the like, but I would like to echo what Ms. Davies said in the previous panel, that this is also overbroad. There's a case before the Supreme Court right now touching on this issue, and for anyone who says that text messages aren't covered, we can turn to the B.C. Court of Appeal, which said they probably are, so we might have answers soon.

But in terms of breadth, I think this committee should take a hard look at that. I have some amendments that I can suggest when I'm questioned.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll move to the Criminal Lawyers' Association, with Ms. Savard.

[Megan Savard, Lawyer, Criminal Lawyers' Association]

Good afternoon. It's an honour to speak before the committee for the first time.

I am a criminal lawyer, as is my co-presenter, Mr. Anthony Moustacalis. Mr. Moustacalis is the president of the Criminal Lawyers' Association. I am just a member. My practice is largely focused on sexual offence cases. I act for defendants. I also provide legal advice to complainants. Mr. Moustacalis in his past life was a crown attorney who focused on sexual prosecutions and child abuse cases.

The organization's history and expertise in this area is set out in my written brief, so I won't go into it. I would like to talk about some practical implications of the proposed procedural amendments to sexual offence law.

Before I do that, I want to echo what Ms. Davies said. It is absolutely within Parliament's power—and it's Parliament's job—to limit what defence lawyers can do. I'm not here to whine about tools being taken out of the defendant's tool box. I am here to say that you should only take an important tool away—a tool that, as Mr. Spratt said, strikes right at the heart of the right to silence and the right to full answer and defence—if you're going to do so with something that meaningfully protects the rights of complainants, which is the stated purpose of this bill.

I want to talk about how the proposed amendments not only are neutral in that respect, in that the current law, properly applied, provides all the protections that these amendments would provide, but are also harmful in a way that's been touched on by some members of the panel.

The first of the proposed amendments that I would like to focus on is the requirement that defence counsel apply to a court for a prior determination of admissibility for records that they intend to use. That's been addressed by other members of this panel and the previously panel. The second thing I'd like to talk about is the new requirement or the new rule that complainants would have a participatory right and a right to counsel for the first time ever in decisions about admissibility. They have the right already in third-party production applications where they have something to bring to the table as the third party, but this would be the first time in criminal law that a third party would be allowed to participate in evidentiary decision-making in a proceeding that has significant liberty consequences to the accused.

I'd like to start with what Mr. Spratt called the defence disclosure obligation, or the requirement that the defence have the admissibility of its materials vetted by the trial judge in advance of the trial.

My first practical request is that the committee look at clarifying exactly what type of use would trigger the application of this procedural mechanism because there are a number of different ways that we use records in our possession when we're preparing our defence. I'll use an example. Let's say we have a sex assault case where identity is an issue and I have a medical record showing that the complainant is legally blind.

First, I might use that record only to inform my preparation for the defence. I might draft a line of cross-examination in which I put to the complainant that they can't see and I expect them to agree. It's three steps back from admitting the document, but there's no question that I'm using the information in order to prepare my defence.

Secondly, I might use the record itself without ever applying or intending to admit it into evidence. For example, if the complainant doesn't remember they're legally blind, I might just silently put the document before them after they've had a chance to put on their glasses and ask them if that refreshes their memory about whether or not they have trouble seeing. No one ever needs to know what that record is, but I'm definitely using the document.

The third way, the way that seems to be captured by the proposed section 278.92, is introducing the record itself into evidence. Only that third scenario clearly triggers the new admissibility regime, but if Parliament's intent is in fact to go beyond regulating the admission of records to regulate their use by defence counsel in formulating theory and developing lines of cross-examination, then that should be clearly stated. Right now the word “adduce” is used in proposed section 278.92, which has a very unclear legal meaning. That provision should be clarified so that the scope of what triggers the application is clear.

My submission suggests that it should be restricted to scenarios where the defence intends to introduce the record itself into evidence. Anything further is, as Ms. Davies put it, an overbroad reach that goes beyond protecting complainants or protecting privacy interests. If I show a document to the witness, and no one needs to know what it is, and all it's doing is refreshing their memory, I should be entitled to do that without having to jump through the procedural hoops of having its admissibility assessed when no one wants it admitted anyway.

If I am going to ask a complainant a question about their eyesight, and I expect them to answer honestly—why wouldn't they?—then I shouldn't need to bring a pretrial application saying, “By the way, here's where that question came from, and here are all the other questions I might ask, and here's my thinking underlying those things as well”. It's really, I would suggest, the third scenario, the scenario where you're introducing a record itself into evidence or there's a risk that might happen, where the pretrial application process should be triggered. That would be my first suggestion for an amendment that could narrow the scope of the bill.

My second request on behalf of the Criminal Lawyers' Association is that the proposed section 278.92 pretrial procedure be reimagined as a mid-trial application. What I mean by that is, make it less complicated, and make it the kind of admissibility ruling that can be dealt with mid-trial, because experience shows us that this is when most of these applications are going to arise.

Let me make two points about that.

First is that nobody knows what the evidence at a criminal trial is going to be until the evidence comes out. I have no reason to think that a complainant is going to lie about being legally blind in a criminal trial. The first time that's likely to come out is in the middle of the evidence. Whether it's a 60-day notice requirement or a seven-day notice requirement, I can't possibly know in advance that my record about her eyesight is going to become relevant. It's the middle of the trial when that kind of issue is likely to crystalize.

The second point I would make is that it's at that point when the trial judge, the person who has to decide these applications, has the maximum amount of information about what the evidence's probative value is, what its prejudicial effect is, and what its legal relevance is. The test for admitting evidence, when the defence seeks to put it in, is “does its probative value exceed its prejudicial effect?” To make that decision, the trial judge should know as much as possible about what the live issues are and how the record might be used in the trial, which can't be done in a effective way on a pretrial application. If you make defence counsel do it, and we try to guess at what might happen, and then the evidence comes out differently, all we're going to do is renew our application in the middle of trial, and it's still a mid-trial application.

What amendment would accommodate that reality, when you're talking in real life about the kind of application that's going to come up in the middle of a trial and ideally should be dealt with in an afternoon or a couple of days?

Let's turn to what the law already offers. Here I would echo what Mr. Spratt has to say about the Criminal Code being a tool for communicating a message for educating people: judges, prosecutors, and defence lawyers. What you can do is codify the existing common law rules for dealing with this kind of mid-trial voir dire instead of creating a whole new procedure. I've set out in my speaking notes what the current law does. I would suggest that be codified in the Criminal Code as a way of sending a message, number one, to complainants that the law protects them, and number two, to defence lawyers that, by the way, you and other parties to the trial have a job to do in making sure that privacy isn't invaded needlessly.

I won't go into the steps of that because they are set out in my submissions, but it's simple. Counsel raises the issue, the witness is excluded, the trial judge hears submissions, the trial judge gets to see the document and hear about the proposed line of cross, and the trial judge makes a ruling. Defence counsel and crown have an ethical obligation to raise the issue if it's likely to come up.

To the extent that the current law is not protecting complainants, that is a failure in our education as defence lawyers and in the crowns' education as prosecutors. By the way, crowns actually have a positive duty to protect complainant privacy as part of their quasi-judicial role as quasi-ministers of justice. If you educate us, allocate funding to making sure we know what the rules are and set those rules out in the Criminal Code. That will go a long way to preserving the goals that you stated are the objectives of the bill without removing the flexibility that we need as defence lawyers to stop trials from grinding to a halt in the middle of the evidence.

I'm out of time, so I'm happy to answer further questions about that. Thanks again for this opportunity.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Silverberg.

[Christine Silverberg, Barrister and Solicitor, Chief of Police (Retired), As an Individual]

Thank you. I am very glad to have all of these criminal defence lawyers here who have articulated some of the issues so well. The comments that I have reflect what my colleagues have already said.

There is a different issue that I want to address, but let me say at the outset that, viewed as a whole, Bill C-51 should be commended as an effort to modernize the Criminal Code. The government should be applauded for that, for taking the initiative to develop a legal framework, imperfect as it is, to ensure that our communities are protected and victims are treated with respect and so on. It's a laudable goal.

I want to first of all address the so-called “rape shield” provisions. I agree with my colleagues that it upsets the delicate balance between the rights of the accused and those of the victims. These rights are at the very basis our our rule of law. I cannot support the proposed amendments that create what are described as “reverse disclosure” obligations, requiring, as Megan has said, the provision of certain records at a juncture that wouldn't be appropriate, or at all.

Causing the accused to make disclosure may seem at first blush to be a laudable approach, but this disclosure will be tendered during an application where the criteria that are actually set out in the bill for judicial discretion read more like a social policy framework. Those criteria suffer from drafting so broad that, in my view, they are actually rendered as meaningless platitudes. I have a really hard time going through that list of criteria while saying to myself, “This is going to really extend the length of trials while these issues are all being considered.”

What is the real consequence? The real consequence is that the victim intentionally or unintentionally governs her own evidence based on these known records. Whatever happened to testing evidence through effective cross-examination?

I practise civil litigation. I don't practise criminal law other than in parallel proceedings. I'm well used to the relevant and material disclosure by both parties, but the civil law, as has been said, is fundamentally different from the criminal law. What is it that we are trying to fix, exactly? Is it inadequate or under-resourced police investigations, or overworked crown prosecutors?

So far as I understand it, these provisions were made by the justice department without any consultation with major stakeholders such as LEAF or the Barbra Schlifer Clinic. Many stakeholders feel blindsided by having these kinds of substantive changes to sexual assault provisions sandwiched in the middle of a bill that has as a primary goal the cleaning up of the Criminal Code. I encourage the committee to rectify that anomaly by integrating the input of these valuable stakeholders before proceeding further.

Further, these so-called “rape shield” provisions—and frankly I'm old enough to know that's a pretty anachronistic term—would likely not survive a charter challenge. I won't go into why because it's already been set out. If we start to require this reverse disclosure for sexual assault offences but not for other egregious offences, we begin to erode the basic principles of our criminal justice system. These unprecedented provisions on the disclosure may inadvertently lead to wrongful convictions.

The stakes are high for both accused and victims. For both parties there is a high risk of social condemnation and stigmatization. Yes, we must support the rights of sexual assault victims who suffer untold consequences. But in my view, this must not be at the expense of the fundamental rights of the accused, or by weakening the social fabric because of a lack of forethought. While protecting the rights of both victims and accused may pose substantial challenges, it is, in my view, a challenge that this government should and can embrace. For all of these reasons, I cannot support the proposed reverse disclosure amendments to the sexual assault provisions.

I want to turn briefly to policy frameworks, leadership, and capacity.

In my view, a significant failure in enforcing sanctions against sexual assault is not a failure of the law. Rather, the failure is in the capacities of, implementation by, and performance standards of both the police and prosecutorial branches, and dare I say, the lack of particular knowledge and training of the judiciary.

As I'm sure is well known, this was aptly illustrated by the Ghomeshi trial where, given the evidence that was later produced in the defence in cross-examination, the crown failed to adequately prepare its case and probe the likely evidence regarding three key witnesses, which led to a finding by the trial judge that the witnesses were not credible, and indeed, were “deceptive and manipulative”. Was there a systemic failure in the crown's hands, or was the crown handicapped by lack of solid police work in gathering the evidence and vetting these witnesses?

This is not only a Ghomeshi issue. We have all witnessed the rather startling comments of judges across the country in sexual assault trials. We have specialized training, protocols, and required knowledge for other types of offences, such as domestic assault, and even, indeed, for bankruptcy, economic crime, and organized crime matters, among others. Surely specialized training and knowledge should be required for police, crown prosecutors, and the judiciary dealing with sexual assault proceedings.

After almost 30 years in policing, after serving as chief of police of a major city in this country and after some 15 or 16 years in the study and practice of law, there are some things that I know about. I know that there must be a broader examination of organizational systems, and structure, and leadership, if we are to avoid a crisis of social values, particularly in this area.

The fact of the matter, in my view, is that changing a law doesn't always get us where we want to be. We have to look at the supports that make our laws work for the benefit of all. We also need to make more resources available to support crown prosecutors. In my view, this is a major, though not only, issue of capacity. While acknowledging that the crown is not prosecuting on behalf of a sexual assault complainant per se, but rather on behalf of the state, we still have to allocate sufficient funds, training, and other supports to make sure that sexual assault victims are not revictimized by the system. We have long advocated this in Canada on behalf of domestic assault victims. The same should be done for victims of sexual assault.

Laws must not only be responsive and meaningful, but be effective. The proposed revision to the sexual assault laws that provide for a complainant's right to legal counsel is the first step. What is required, however, is more funding—government, quasi-government, and institutional—to be put in place to allow for, by way of example, reasonable and appropriate legal aid or alternative funding for this kind of representation.

But this is not simply a matter of funding. Sexual assault victims must be supported in other ways as well. For example, such victims may need counselling and other mental health services, as well as more knowledge of how the system works. We need a collaboration between the many professionals supporting sexual assault victims, federal and provincial authorities, and between the public and the private sector, all to create a sustaining attitude to support victims of sexual assault. Thus, a full infrastructure of support should be provided for sexual assault victims in addition to the proposed independent legal representation.

I cannot imagine much worse than putting a law in place that doesn't have the grounding required to make it work for all parties. This is not about or should not be about feel-good law. It is about getting down to the grassroots to meet the needs of those who are truly victimized, children or adult.

I want to very briefly touch on the unconscious person business. With specific reference to that amendment, it purports to clarify that an unconscious person cannot provide consent. I agree with the position submitted by LEAF that such a provision is not necessary, as this principle is well established in our common law.

The introduction of such a statutory section might create a bright line, short of which a lack of consent might not be found. Determination of whether consent has been given is a matter for the trial judge, and his or her discretion shouldn't be shackled in that manner, in my view.

There are numerous circumstances that I can think of beyond unconsciousness, and while one might say we covered that off in the drafting of the bill, I just don't know why it's there at all. I don't think it needs to be there. I think that issue of consent should be left to the court, where the facts can be considered.

That's all I'm going to say, and I'm happy to answer questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Each of the witnesses was very helpful. We'll start with Mr. Cooper.

Go ahead.

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

Thank you, Mr. Chair.

Thank you to the witnesses.

I'm going to direct my first question to Ms. Savard or Mr. Moustacalis. I agree with Mr. Spratt when he stated that the reverse disclosure requirements for defence could potentially tip their hand to a liar who would then be given an opportunity, as a result of sitting in and getting access to those records and having an understanding of the defence's litigation strategy, to explain away inconsistencies and contradictions.

There is another component to this, which is that of course for these section 276 applications, the complainant would be entitled to counsel. It raises the question therefore that not only would these reverse disclosure requirements potentially tip the defence's hand to someone who is not being truthful, but they might also make it much more difficult for a defendant to cross-examine the complainant on the basis of how that complainant prepared in light of the fact that part of that would be subject to solicitor-client privilege.

[Megan Savard]

That's entirely correct. It is a point that's made in the Criminal Lawyers' Association's brief. Right now, section 276 applications that require the defence to vet questions about other sexual activity with the trial judge before trial are a limited exception to the rule that the defence does not have to disclose its case strategy. That was something Parliament was allowed to do. They did it, but unsurprisingly, the history of that provision has always kind of walked a fine line between constitutionality and unconstitutionality because it is so unique.

One of the things that I would say make it constitutional now is that it is the crown that can share the defence's case strategy with the complainant, and the crown that solicits the complainant's input on a section 276 application. None of those discussions is subject to privilege. There's a police officer present, and if I want to explore the degree to which a complainant used my section 276 materials to prepare, I can ask him or her about it in cross-examination.

If the complainant has his or her own counsel, that's no longer something I can do. We will never know. It will frustrate the search for truth, whether the complainant has in fact prepared in an ethical way just reminding themselves of things they forgot or if they prepared in a more woodshedding kind of way, trying to tailor their evidence to material that exists. That's not something we can look into if the complainant is represented.