Justice Committee on Oct. 23rd, 2017

[Voices]

Oh, oh!

[The Chair, Liberal, Anthony Housefather]

Sorry. Go ahead, Mr. Johns.

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

Mr. Spratt, you touched on the reverse disclosure provisions for sexual assault. Can you please elaborate on this section of the bill and expand on what you talked about earlier?

[Michael Spratt]

Besides the fundamental shift from the state disclosing information to the defence providing this information, I think there might be some room to clarify in this bill what exactly is meant through that disclosure. What does it mean when we talk about “detailed particulars”? Does that mean, if we're relying on text message communications, just the date and the time and the general subject matter? Does it mean that the specific details of those text messages need to be communicated?

Above and beyond that, I think there needs to be some definition about what we mean when we say a “record” that there's some privacy interest in. Unless you want to leave it to the Supreme Court or to judges to make that law for you, I think it might be good to demarcate exactly what we're talking about. If there are joint insurance documents, if there are joint bills, if there is information that is lawfully held but someone still might have a residual privacy interest in, what exactly is included and what's not included? There's a lack of specificity there that makes it, I think, very dangerous. It's going to lead to litigation. It's going to lead to disparate results from various courts, and it's going to lead to a lot of appeal lawyers making a lot of arguments about what exactly is meant here.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair.

In regard to proposed subsection 278.92(1) which seems to be the subject of the bulk of this discussion, Ms. Davies from the previous panel suggested a number of changes that could be made to that provision. One of them was that “no record relating to a complainant or a witness” could be changed to “no record relating to a complainant”, dropping the words “or a witness”. Would that go any distance towards making you happier with the provision?

I'll start with Ms. Savard please.

[Megan Savard]

The short answer is yes, but it wouldn't go far enough. You would also have to clarify the use to which defence counsel proposed to put the record in order to trigger the application. The first step is clarifying what you mean by a “record”. Narrowing it to the complainant is one step, but then it is also necessary to clarify what you mean when you say that defence counsel intending to use this record has to bring an application.

You can narrow it further at that stage by saying that it's only when defence counsel actually wants to put the private record into evidence that these applications are triggered. This would remove a lot of ambiguity about other ways in which we sometimes rely on material in our possession to prepare our defences.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Would anyone else like to comment on this?

Ms. Savard, you commented that you had a problem with the word “adduce” in that section, and that you would like to see better language. Instead of “adduce”, would you like to see language such as “and which the accused intends to introduce into evidence”, or could that whole phrase between the em dashes be removed entirely?

[Megan Savard]

I think replacing “adduce” with “intends to introduce into evidence” would clarify, and it would be consistent with the subsequent application, which is all about assessing admissibility. It doesn't seem to make sense to me to go through the hoops of assessing admissibility when all you're doing is relying on the document to prepare a draft cross-examination. You should only be assessing the admissibility of documents that you want to admit.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Okay.

Going back to Ms. Davies' testimony, she had suggested that the categories of documents should be changed to exclude—I believe she said—documents that should be expected to be already in the possession of or known by the complainant. For example, emails to the complainant or from the complainant should be excluded from this because the crown should already have them or know of them. Would you agree with that?

[Megan Savard]

Yes, absolutely.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

With these several small amendments, is this provision salvageable in your view?

[Megan Savard]

Almost. I can't promise I wouldn't bring a constitutional challenge.

In my view, the remaining failing that hasn't been addressed by the changes you just went through would be the complexity of these motions. If we can take the three party, the notice requirement, and the separate in-camera hearing, and condense them down into a codification of the common law rules for a mid-trial application, then that, on top of the changes that you all suggest, will go a long way towards minimizing the constitutional problems, the problems for the complainant, and the problems for the administration of justice generally of having these things drag out to potentially unconstitutional lengths.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

My other questions relate to the provision of the right to counsel for a complainant. This pertains, I believe, only to the hearings in relation to the evidence. Several of you expressed concern that this puts a burden on the complainant. I don't see that. I think that right now there is no right to be represented in these hearings, but having the right is not the same as having an obligation to do so.

Ms. Leamon, I think, is looking to comment on that one.

[Sarah Leamon]

Yes, Mr. McKinnon, I would love to answer that question.

I can tell you that in addition to my role as a criminal defence lawyer, I also work extensively with marginalized communities in the non-profit sector in Vancouver's Downtown Eastside, so I have very close dealings with many individuals who are highly marginalized. It makes me uncomfortable—not only as a lawyer but as a Canadian citizen and as a human—to think about this two-tier system, whereby a complainant who is privileged, has a good income, has support, perhaps of his or her family, and has all the advantages in life to hire a lawyer, can access counsel, receive legal advice, and get better representation.

That's wonderful, but when you put that into the reality of the world, we have marginalized people who disproportionately fall victim to sexual assault. The mere perception that they aren't going to access the same kind of representation in the judicial system—let alone the practical reality of it—in my view, is enough to deter them from even coming forward, let alone their experience with the system itself, feeling further disenfranchised, further marginalized.

Yes, it is an action, but it's an action that has to be accessible to every complainant. Again, practically speaking, I don't see how we can use the public purse to adequately fund that when we're seeing legal aid programs being so underfunded. I have a lot of problems with how that's going to be implemented, and a lot of concerns about how people who are less advantaged will experience the system.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I think we have a chicken-and-egg problem here. I can't see legal aid being expanded to support this kind of activity if there is no right to such counsel. It's a question of whether or not you create the right and then bring legal aid on board as the different provinces upgrade their legal aid. Legal aid isn't going to respond unless there's a need for it.

[Sarah Leamon]

Even if we can find the public funds to do it, I still feel there would essentially be a two-tier system in place. We have these marginalized people who are now accessing legal aid lawyers. As we know, legal aid lawyers are unfortunately very overworked. Then we have more privileged complainants who are able to access their own private counsel.

Again, this is a situation where there's going to be a two-tier system. We're essentially allowing marginalized people to be further marginalized. There are serious problems about those optics, and also how it's going to play out in people's experience of the justice system. If we're looking to support and help complainants in feeling as though they are having better access to justice, this isn't the way to do it.

Crown counsel is there to assist them, and crown counsel should have better training. I believe Ms. Savard brought that up earlier. This can be properly addressed and properly dealt with through crown counsel. Creating a right for a third-party lawyer not only frustrates the system and frustrates the role of the crown, but also creates a system whereby we have a two-tier system.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Now, colleagues, we're going to deal with shorter questions. Does anyone have any shorter questions they want to ask this panel?

Mr. Nicholson, and then Mr. Fraser.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

With respect to judicial training in this area, as you are probably aware, Rona Ambrose's private member's bill was passed by the House of Commons and apparently is being held up in the Senate. It is directly focused on the whole question of judicial training.

Ms. Leamon and Mr. Spratt, both of you made a point that section 176 is not necessary. Ms. Leamon, you said that more general sections could perhaps be used. Mr Spratt, you said there are public disturbance sections. First of all, just earlier this year, about six blocks from here, a woman was charged under this section for what took place in a church. As much as people's religious rights are one of the fundamental freedoms of this country, is it so unreasonable or so unnecessary to have a specific section of the Criminal Code that protects religious services?

Many people may not be part of any religion but probably would agree that disturbing a religious service is more serious than causing a commotion in an arena, say, or in a meeting somewhere else. What do you think?

[Michael Spratt]

That's why it would be viewed as an aggravating factor. A judge, undoubtedly, would view causing a disturbance and interrupting a baptism, a bar mitzvah, or another solemn religious service much differently than he would someone screaming on the corner of a busy street. That is, I submit, the appropriate place where that aggravation would be taken into account. The trade-off is that we have a Criminal Code with that section and other sections, and sections on theft—on theft from a clam bed, on theft of firefighter equipment, on theft of cattle—and then we get into an unwieldy code that has other issues.

I take your point, and I think your point would be of much more moment if there were no other way or no other mechanism in the Criminal Code to address the situation that you spoke of.

[Sarah Leamon]

Perhaps I could elaborate very quickly. I agree with Mr. Spratt's submissions on that point, but if section 176 is to remain, I would encourage that it be amended to be more inclusive. Remove that language of “clergyman” and use better language instead.

[Rob Nicholson, Conservative, Niagara Falls, ON]

It has actually been expanded. I mentioned that even the federal government has expanded the definition in terms of national defence, but thank you for your input.

[Sarah Leamon]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

I have just a quick point.

I just want to go back a moment ago, Ms. Leamon, to your exchange with Mr. McKinnon. I take your point, but we rely on legal aid to represent criminal defendants oftentimes in cases such as this. I don't think it's fair to say that it would create a two-tier system where if a legal aid lawyer were representing a complainant in this case, that would be somehow completely unfair and an affront to our way of thinking of fairness, when many times accused are represented by lawyers who work for legal aid.

I just want your comment on that because I do think it's important to recognize the important work that legal aid performs in our country. I take your point on the issue of resources, but I don't think it's fair to say that it would be a two-tier system and indicate that they would be receiving a lesser service when we rely, of course, on accused people being represented by these people all the time when their liberty is at stake.