Evidence of meeting #28 for Justice and Human Rights in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A recording is available from Parliament.
Liberal
Patricia Lattanzio Liberal Saint-Léonard—Saint-Michel, QC
Once again, this amendment is a technical one, and it has the same reasoning that I mentioned earlier in G-16.
(Amendment agreed to [See Minutes of Proceedings)]
Liberal
Marilyn Gladu Liberal Sarnia—Lambton—Bkejwanong, ON
This is another technical amendment. It changes the English language portion to say the prosecutor may “produce” the listed records, rather than “disclose” them, as was in there. It's just a linguistic change.
(Amendment agreed to [See Minutes of Proceedings])
NDP
Jenny Kwan NDP Vancouver East, BC
Mr. Chair, as with the previous NDP amendments, this would ensure that the complainant has the right to independent legal advice, ensuring that this bill would truly uphold victims' rights and not leave them without protections in court proceedings.
Conservative
Roman Baber Conservative York Centre, ON
We're contemplating a scenario here where the complaining witness—the alleged victim—would obtain counsel.
Conservative
Roman Baber Conservative York Centre, ON
I have a quick question for the officials. In theory, I don't object to this, but it's highly unusual to insist on the complainant being represented in a criminal context. Am I correct?
Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Yes. There are very specific circumstances within the sexual history regime and the private records regimes where a complainant has limited forms of standing. In this case, this would be an amendment to a portion of Bill C-16 that replaces what we call the explicit waiver provision, which is currently in the production regime. When the Crown is in possession of private records, currently under the law, it can produce those records if the complainant waives the application of those protections, essentially. The court will consider admissibility later.
Bill C-16 proposes to reduce delays by changing the explicit waiver power to the new “authority of the produce” power that is in the bill. That was just amended with the change in that language from “disclose” to “produce”. This is the power of the Crown to produce documents to the defence that are in its possession.
This amendment would require that before the complainant can give their permission for certain records to be disclosed to the accused, they would first have to have the opportunity to obtain counsel. That would be a step up from the current existing law, where just a waiver is required. This would actually require counsel first. It would, in theory, lead to potential further delays as a complainant would have to first hire a lawyer, get their advice and then go back to the Crown and answer yes or no for whether they can produce.
The intent of the amendment here is a different balancing of victims' rights versus efficiency.
Conservative
Roman Baber Conservative York Centre, ON
I have a quick follow-up question. How is the waiver or consent regime being contemplated here? How is that balanced against the Crown's duty to produce?
Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
The Crown has its general duty to disclose. That comes out of the older cases such as Stinchcombe, of course, as you know. In that duty to disclose generally the fruits of the investigation to the accused person is tempered and restricted by the private records regime. The private records regime says if you have this category of records, even if it's part of the investigation, you must hold off and you must notify, and then an application must be made so that we can ensure that these protections are in place.
The explicit waiver provision that is in existence right now in the code allows for you to override that and produce those documents just for disclosure to the defence at this time.
Conservative
Roman Baber Conservative York Centre, ON
I don't know. I don't want to make a mistake here. I understand the intent of the NDP amendment. I am concerned, however, that the intent of the bill is to try to move proceedings along to avoid Jordan dismissals. I am a little concerned that we may be holding up proceedings and actually deviate from the intent of the bill. I don't know.
I see Mr. Housefather nodding, but I'm not sure where the Liberals are at on this amendment.
This is a friendly conversation, not political. Do you have any thoughts?
Liberal
The Chair Liberal James Maloney
I think you'll find out their intentions when they vote, Mr. Baber.
Are you finished, Mr. Baber?
Liberal
Anthony Housefather Liberal Mount Royal, QC
It was just to say that I agree with what Mr. Baber said.
Liberal
The Chair Liberal James Maloney
Okay, shall NDP-13 carry?
(Amendment negatived [See Minutes of Proceedings])
On NDP-14, go ahead, Ms. Kwan.
NDP
Jenny Kwan NDP Vancouver East, BC
Thank you, Mr. Chair.
Once again, this will ensure that input and consent from the complainant must be considered before their records are disclosed in legal proceedings. Many of these amendments are in the interests of the victims, which I think is an important component. While I understand there's a need to expedite, at the same time protecting victims' rights is critical as well.
Conservative
Larry Brock Conservative Brantford—Brant South—Six Nations, ON
To the officials, what is the nature of the communications that are contemplated by this amendment?
Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
This was discussed in the case of R v. J.J. This is an issue that has occupied a lot of time in court.
When it comes to communications, what we're primarily looking at here are electronic communications that are slowing down court proceedings. For example, in a human trafficking investigation, a Crown could theoretically receive from the police of jurisdiction thousands of text messages between a complainant and an accused person. Before those thousands of messages can be disclosed to the accused, assuming they're going to be used to prove the case, it not only has to go through the Crown vetting procedure, with them exercising their duties to protect a victim through properly vetting disclosure, but it also has to go through the entire production regime.
This has been one sticking point in particular, especially in human trafficking cases but in sexual assault and related cases as well, which get more and more complex when we have large volumes of communications. Communications have been singled out as something we can clearly save time on. We can allow the Crown to exercise its responsibilities as a minister of justice to properly fulfill its disclosure obligations to protect the victim and to get those records to the accused that are going to be used at trial, in any event, because the Crown will lead them. It will give them the time to do that, and we don't necessarily then have to wait all the way until we have a trial judge to make a decision on production, and then, at that point, the defence would understandably be upset that the trial is very close and they now suddenly have thousands of communications. We're primarily talking about electronic communications.
Conservative
Larry Brock Conservative Brantford—Brant South—Six Nations, ON
You used, as an example, human trafficking. I'm looking at this through the lens of an IPV case, particularly in the context of a marital union, which would be protected. Communications between a married couple, if one is the accused and one is the complainant, would be protected. This would not apply to that. Is that correct?