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.