Good morning, Madam Chair and honourable members of the committee.
My name is Jody Berkes, and I am chair of the Canadian Bar Association's criminal justice section.
I join you today from the traditional territory of the Wendat, the Anishinabek Nation, the Haudenosaunee Confederacy, the Mississaugas of the Credit First Nation and the Métis Nation. This land is covered by the Dish With One Spoon treaty.
Thank you for inviting the CBA to participate in the committee's study of the Canadian Victims Bill of Rights, which I will refer to as the CVBR. One of the things that the CBA's criminal justice section prides itself on is that its members come from both the Crown and defence bars. As such, we can bring a unique, comprehensive perspective to how legislation is implemented in the criminal justice system.
The Canadian Bar Association, the CBA, is a national association representing 36,000 jurists across Canada. The CBA's primary objective is to improve the law and the administration of justice, which is why we are here this morning on behalf of our Criminal Justice Section.
Although the CVBR uses the term “victim”, the CBA prefers to use the neutral term “complainant” prior to any finding of guilt. Therefore, when discussing the pretrial and trial process, I will use the term “complainant”. I will use the term “victim” when discussing sentencing and post-sentencing issues.
The section supports, as a general proposition, increasing resources to allow complainants to receive independent legal advice on the criminal justice process. Independent legal advice assists proper functioning of the criminal justice process by respecting the Crown's role as an independent minister of justice and not as an advocate for the complainant, as well as the court's role as an adjudicator rather than as a party that assists the participants in understanding and navigating the legal system.
Additionally, the section supports complainants being provided information with respect to all areas outlined in sections 6 through 8 of the CVBR, with the caveat that confidentiality is needed while criminal investigations are ongoing. Similarly, the section supports sections 9 through 13 of the CVBR regarding complainant protection. For the most part, these were already dealt with through the sections of the Criminal Code regarding bail, obstruction of justice offences, publication bans, third party records applications and testimony accommodations such as screens, remote testimony and the use of support persons while giving testimony.
On the other hand, the section is concerned about expanding the role for complainants in criminal prosecutions, which can result in the creation of unreasonable expectations or conflicts between Crown prosecutors and complainants. For example, section 14 of the CVBR states, “Every victim has the right to convey their views about decisions to be made by appropriate authorities in the criminal justice system that affect the victim's rights under this Act and to have those views considered.”
The Crown's legal and ethical obligation is not to secure a conviction but to ensure that all relevant facts are placed before judge and jury so that justice may be done. Therefore, the Crown must be allowed unfettered discretion in choosing how to prosecute offences. Similarly, decisions on whether to continue or to withdraw prosecutions must remain within the Crown's discretion. While it is appropriate to solicit a complainant's views on procedural issues and in determining whether to continue a prosecution, the Crown cannot be bound by those wishes. This operates the same way regardless of whether the complainant's desire is to continue or to withdraw a prosecution.
The section acknowledges that the CVBR requires the Crown to discuss and inform complainants about trial applications. However, we voiced concern about the amendments to the Criminal Code in Bill C-51, which granted standing to complainants for certain trial applications in sexual assault prosecutions. The addition of a third party with a right to make submissions about the law is problematic for two reasons. One, it has the potential to create friction between the Crown—the party in charge of prosecuting offences—and the complainant, who would likely be the main Crown witness. Two, it has the potential to complicate and lengthen pretrial applications as well as to cause mistrials, which squander judicial resources.
In summary, the CBA criminal justice section welcomes additional resources to support providing complainants with information and assistance in the criminal process. On the other hand, we suggest that prosecution decisions, including responding to legal arguments, be left in the capable hands of Crown prosecutors.
Madam Chair, I know I am out of time but I hope you can indulge me for a few more seconds. This is my third appearance before this committee, and I want to thank you for the opportunity. I have found your questions thoughtful and engaging, and I wish every Canadian had the opportunity to experience their democracy in this way.
Last, I want to thank each and every member of the committee staff and technical support. All of you exemplify the highest standards of professionalism.