Justice Committee on Oct. 23rd, 2017

[Sarah Leamon]

Absolutely, I agree with you, and I do take your point on that. Certainly, my comments are not meant to undermine the hard work that legal aid lawyers do every single day. I certainly don't want to be misconstrued on that point, but an accused person is up against the criminal justice system. That person is up against serious allegations, and when it comes to sexual assault, those are some of the most stigmatizing allegations that are possible to be brought forward. It forecloses numerous opportunities for that person—sometimes even just being accused, let alone being convicted—so the need for representation when accused of a criminal offence is paramount.

When it comes to a complainant, however, this endeavour to allow complainants to be now represented by counsel is exceptional. It has never happened before in criminal law in this country. Again, I have concerns about extending already underfunded services in legal aid to complainants as well. Complainants have the assistance of crown counsel. They have the assistance of victim services. In my view, there is no reason to further complicate the process and have them be further represented by counsel.

Again, I made the point earlier and I would like to reiterate it as to why this is being extended only for complainants in sexual assault cases. Not extending it for complainants in other cases where there are interpersonal relationships and very complex dynamics—for instance, in spousal assault situations—marginalizes people who experience that violence. It trivializes people who experience that violence because there is no sexual component to it, which is unfair, so—

[Colin Fraser, Liberal, West Nova, NS]

That isn't the point, though. There is a specialized regime that's being proposed with regard to hearings; that's why it's different.

[Sarah Leamon]

Yes, but why wouldn't that be extended then to complainants in, say, for instance, spousal assault cases?

[Colin Fraser, Liberal, West Nova, NS]

It's because here isn't the specialized regime for the hearing with the purpose of allowing the person to be represented to ensure their procedural rights and personal integrity is respected.

[Sarah Leamon]

Yes, of course.

[The Chair, Liberal, Anthony Housefather]

Colleagues, does anyone else have any questions? If not, I have a short one.

By the way, I just wanted to note this for the witnesses. People were suggesting that additional zombie laws should be attacked in this law, and I just want you to understand that it would be unreceivable for us to simply add new provisions that weren't mentioned in the original bill. Much as maybe we would like to include some, we as a committee cannot. I just wanted it to be understood that, if we don't act upon your suggestions, it is because we're not empowered to. They would be unreceivable.

I have a question for Ms. Savard because I got your point about replacing the word “adduce” with “intends to introduce into evidence”. I just want to go back to the premise of the three-pronged different types. You introduce, for example, a document that would certify that a witness was legally blind without wearing glasses. You gave three options.

First, you would learn information from that document and you would ask the question to the witness if he or she was indeed blind. Alternatively, should the witness then fail to answer the question appropriately by not being truthful, you would then perhaps put the document in front of the witness in order to refresh his or her recollection and say, “Does this document assist you in answering that question?” If the witness were still to lie in both of those circumstances, then the eventual intention would be to produce the document because you would be impeaching the credibility of the witness.

I understand the sequential approach, but in any of these cases, there would be an intention, if something happened, to introduce this into evidence. While I appreciate it—and I do think we have to really look very seriously at the approach—I'm not sure that actually works to separate it because in the end result, in all of these, if the witness is going to lie, you're going to introduce the document into evidence, would you not?

[Megan Savard]

Yes. The thing currently in proposed subsection 278.92(1) that triggers the application is the defence intent to adduce into evidence. "Adduce” is confusing.

[The Chair, Liberal, Anthony Housefather]

Yes, I completely agree.

[Megan Savard]

If we change it to “intends to introduce into evidence”, it clarifies what I think was the underlying intent, but I may be wrong about that.

[The Chair, Liberal, Anthony Housefather]

I think you would probably be right. I think that is correct. At least that's how I would read the intention there.

[Megan Savard]

You've also accurately captured the dynamic process of a criminal trial. The problem is that you don't form the intent as defence counsel to introduce a document into evidence. In fact, it is inadmissible in evidence up until the point where the witness, number one, says something unexpected on the stand, and number two, then doubles down on it in cross examination even after being confronted with the document.

I think it may be contrary to the message that Parliament wants to send to complainants that we're going to require defence counsel to bring these applications on the assumption that all complainants will lie and then double down on it. I think that is not the message you want to send.

The way to address the issue that you've raised, which is that eventually it might all come to it, is to recognize that the time at which it will all come to admitting into evidence is in the middle of trial, and the process should be flexible and streamlined enough to deal with the fact that it's a mid-trial application.

[The Chair, Liberal, Anthony Housefather]

Thank you. That's really helpful.

If no colleagues have any other questions, I just wanted to advise my colleagues on the committee that on Wednesday we have three panels. Because of votes, we're going to have the first two hours at our normal meeting time, then we're going to have the votes, and then we'll have our third panel immediately after the votes.

Thank you so much to all of the witnesses. You've been, as always, enormously helpful. It is very much appreciated. Thank you so much for coming.

The meeting is adjourned.