Evidence of meeting #34 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was defence.
A recording is available from Parliament.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
If I'm understanding correctly, that section maybe should have been a bit more extensive in incorporating the Daviault decision.
Prof. Elizabeth Sheehy
That was Professor Grant's point, yes. There was no vacuum created by the Brown decision with respect to that standard of proof, but in the new version of the legislation, it might be wise to rearticulate that standard of proof.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Right. In the sort of hierarchy of fixes that you suggested, I guess my view of that is that if we could act quickly to enact Bill C-28, we should be able to act quickly on any of these fixes. That would be my hope.
Is there a hierarchy in those fixes, not just in terms of their simplicity, but in terms of their certainty for narrowing the defence?
Dr. Froc, you laid out those three, so maybe I can just ask you that.
Associate Professor, University of New Brunswick, As an Individual
As a matter of fact, it was Professor Grant, so I'll allow her to answer.
Prof. Isabel Grant
Thanks. I think I listed them in the order of preference. I think the simplest, but also the most effective, is to get rid of subsection 33.1(2). Judges know how to apply a marked departure standard. They've been doing it for decades in other criminal contexts, like criminal negligence. My preference would be to get rid of it altogether.
The second choice would be to clarify what the standard is but also to reiterate that the burden of proof in showing that something wasn't foreseeable should be on the accused and not on the Crown.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Would the third, then, be the least favourable from your point of view?
Prof. Isabel Grant
The third would retain a standard that's unworkable, but it would shift the burden onto the accused. The best thing to do is to get rid of the standard, but if you want to keep the standard, it needs to be clear that the burden is on the accused to show why he couldn't possibly have foreseen the likelihood of harm. Making the Crown prove that beyond a reasonable doubt is impossible. It's a very high threshold to prove that beyond a reasonable doubt.
That's what we do in the context of the mental disorder defence. An accused who's saying they are not responsible for a crime because they were mentally ill has to prove it on a balance of probabilities. I would say the same should apply here. The courts have upheld that as constitutional in a case called Chaulk and Morrissette.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
On the question of the foreseeability standard, shifting that to loss of control rather than the foreseeability of harm—Professor Grant was arguing this—is that narrowing the ability to use the defence or simply clarifying it?
Prof. Isabel Grant
I think it's narrowing it a little bit, but not very much. I think the standard is problematic, and that's why I think either of the other options would probably be better.
I think it narrows the defence by allowing a chance that the Crown will be able to meet its burden and deny the defence to an accused in a particular case. I still think the Crown is going to have a lot of problems with any standard, given the things we've seen in cases like Daviault, Chan and Sullivan.
I think it gives the Crown a bit of a better chance, but getting rid of it gives the Crown a better chance.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thanks very much.
I know I'm out of time at this point. I want to come back in the next round to the problem of charging that exists.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Garrison.
For the next round, we have Mr. Caputo for five minutes.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Thank you, all three professors, for being here.
I think it was Professor Grant who talked about British Columbia. Everybody around this table knows, but I'll repeat it for the benefit of our witnesses, that I was a prosecutor in British Columbia and most of what I did was regarding sexual offences against children. For the benefit of our report writing, what generally happens is that, in some jurisdictions, the police lay the charge, but in British Columbia, the charge comes through a report to Crown counsel and then a prosecutor will look at that. They have to evaluate all defences and whether a legal threshold is met, which is a substantial likelihood of conviction. That's actually quite high a threshold. It's not just likelihood; probably around 90% is what most people would put it at.
If I understand your comments, particularly those of Professor Grant and Professor Sheehy, you're asking how a charge can be laid under the circumstances, because you don't know what might be around the proverbial legal corner when it comes to a defence.
Do I have that correct?
Prof. Isabel Grant
Unless you've been able to apprehend the accused immediately, do all the tests and ensure what his alcohol and drug levels were, which is rarely the case in sexual assault, the Crown simply won't have the information as to how intoxicated the accused was at the time of the event. It's just not going to be there.
Given this legislation, meeting that threshold of substantial likelihood of conviction is going to be very difficult in cases where the accused was very intoxicated, even where the standard of extreme intoxication might not necessarily be met.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
It's because this is information that is 100% in the hands of the accused.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Right.
How can proof beyond a reasonable doubt occur when theoretically this defence could be raised after the Crown's case is in? Do you understand what I mean by that?
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
In other words, the Crown has put its full case in, and then the defence could raise this in its evidence without the Crown being aware.
Does that accord with your understanding of how this might play out?
Prof. Isabel Grant
My worry would be that the complainant has told the Crown, “He seemed really drunk” or “He seemed out of it” or “He seemed high”, so that the Crown will have some indication that this is an issue, and that may impact charging decisions.
I'm less worried about the cases that make it to trial. I worry for the reasons I set out about the standard being unprovable. A woman may be put through a trial with no chance that the perpetrator is going to be convicted. In terms of the impact on sexual assault more widely, I'm worried that the charge won't even be laid to begin with.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
You're worried that, at the charge approval or consideration stage, there would be consideration that intoxication, or extreme intoxication, is a live issue here. We may have proven beyond a reasonable doubt not necessarily that there was an assault of a sexual nature but that this person wasn't so intoxicated as to negate the general intent of the offence.
Prof. Isabel Grant
We know that if you're very drunk and sexually assault someone, that's no defence in Canadian law. If you're very, very, very drunk and [Technical difficulty—Editor].