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.