Thank you for the invitation to address this honourable committee.
In my practice, I represent exclusively complainants in criminal matters almost always in the area of sexual assault or human trafficking. Human trafficking complainants are among the most vulnerable who engage in the criminal justice system, and I thank the committee for the attention to and concern for the vulnerable victims of human trafficking.
I would support any amendment to the code that would assist my clients in their journey through the criminal process, and particularly amendments that would provide human trafficking victims with the same protections granted to victims of sexual assault. The absence of such protections represents a notable gap in the present law.
Since I was contacted by the committee last week, I have thought very carefully about the various impacts of the proposed legislative changes, but reluctantly I must advise the committee that I cannot support the proposed amendment.
I have two main reasons for taking this position. The first is that it is unnecessary, and the second is that the amendment would result in unintended delays and constitutional challenges that would be to the detriment of complainants.
I say the amendment is unnecessary because it is based on a misapprehension of the law, at least as it stands in Ontario. It is not necessary for the Crown to prove that the complainant is fearful. The Sinclair case in the Ontario Court of Appeal indicated that actual fear on the part of the complainant is not an element of the offence.
My point here is that the stated reason for the amendment is to remove the fear component from section 279.04, but that is unnecessary given the current law. Specifically, the Sinclair case lists a number of circumstances the court may consider in assessing whether the complainant objectively had a reason to fear even if no fear is expressed by the complainant. Those circumstances are expansive and include “vulnerability due to age or personal circumstances, such as social or economic disadvantage and victimization from other sources”. There are also other considerations.
In totality, these considerations listed in Sinclair appear to provide a broad range of circumstances the Crown can rely upon to satisfy the court that the complainant had an objective reason to fear as opposed to having a previous subjective fear.
My second concern is about the constitutionality of the amendments. The bedrock of Canadian criminal law is that at all times the Crown attorney bears the burden of proving guilt beyond a reasonable doubt. This burden must never shift. The presumption of innocence is of fundamental importance in the criminal justice system as it serves to place the burden of proof squarely on the Crown.
Let me pause here. I advocate for complainants. My job is to ensure that their rights are protected and that they receive all the benefits they are entitled to under law, but amendments that lead to time-consuming constitutional challenges do not benefit complainants. In fact, they have a detrimental impact on the criminal justice system as a whole.
The proposed amendment would undoubtedly lead to constitutional challenges, and in such challenges it is not uncommon to review parliamentary proceedings to decipher the intention of Parliament. The parliamentary record in this matter may well lead to the conclusion that the intention of Parliament was to shift the burden of proof to the defence and, therefore, lead to a finding of unconstitutionality.
As we know, it takes years for cases to wind through the system. Constitutional challenges are time-consuming and deflect energy and resources. There would be a ripple effect that would add to the delay that continues to plague criminal courts. Please bear in mind that the court system continues to struggle with the burden of COVID-related delays. Further, a finding of unconstitutionality may lead to numerous cases being thrown out.
Again, I raise the issue of constitutionality of the proposed amendments from my perspective gathered from years of experience representing hundreds of complainants in sexual assault and human trafficking cases. We know that the delay in getting a case to trial is torturous for a complainant as they anxiously anticipate facing their abuser in court.
My fear is that this amendment would introduce confusion in this area and be found to be unconstitutional.
Thank you very much.