Thank you very much, Madam Chair.
There are three components, essentially, that are important here, if I can take our eyes off the language and explain them in more general terms to begin with. Two are of a technical nature, and one is substantive. The technical amendments, I expect, will be easier for this committee to deal with as a matter of course, so I'll address them first.
The first, which you'll see in part (a) of the proposed amendment, is simply to achieve a coordinating amendment. Section 159 of the Criminal Code has been deemed unconstitutional. There's a bill before the House to actually remove it from the Criminal Code. This is simply to erase from the books a zombie law that has been deemed unconstitutional. I don't anticipate that will be a problem, but I'll leave it to the members of the committee to object if they see one.
The second theme of this amendment is in new proposed subsection 278.92(5) and is also with respect to the word “judge” as opposed to “court” under part (a) under the proposed section 278.92. The reason for these proposed amendments is that, under the common law, and I believe it's enshrined in the Criminal Code as well, there's not an obligation on a jury to produce reasons. By adopting this motion, we would be potentially running afoul of legal principles that I think we have no business interfering with. I expect this is something I would not have caught had I been drafting it, but when we ran it through some extra sets of eyes, this concern was raised, and I support it entirely.
The third and perhaps trickiest amendment—we had some conversations with other members of the committee, some department officials, and our legislative clerk—might give us some problem here, but the substance of this issue is really the requirement for written reasons. We heard compelling testimony actually from Professors Elaine Craig and Jennifer Koshan. I studied under Professor Craig while I was in law school, and I appreciate the need for written reasons for two main purposes. One, the exercise that a judge goes through in preparing written reasons improves the quality of the decision. There's no question that, when you take the time to write something down, you think it through, and you're less likely to make an offhand offensive comment, and I accept that.
The second reason, in my mind, is really about the access of interested audiences. I can think of a need for access to decisions for academics, for NGOs, for the press, for the litigants, of course, for the public at large, and for lawyers dealing with sexual assault matters who want to research the jurisprudence that's currently not being reported.
The tricky part today is that, if there's not a reporter sitting in the room, oftentimes these reports aren't made public. Generally speaking, I support the requirement for written reasons. I propose an amendment that I believe is similar in spirit to the amendment proposed by Ms. Malcolmson that I'll address in a moment, but my concern about having a requirement for written reasons in 100% of cases was borne out only weeks ago in one of the communities that I represent.
In the small university town of Antigonish, Nova Scotia, we have seen what I believe is the first decision of its kind in my province of a sexual assault charge against a university professor having been stayed under the Supreme Court of Canada's Jordan decision. If we specifically require written reasons in every sexual assault case, we will be adding a procedural step and presumably some additional delay, specifically to sexual assault cases, which will lead to, presumably, more people who could or should be convicted of sexual assault getting out without ever having their matter go to trial. I expect that is not the outcome that anyone on this committee wants, and it really becomes a matter of how we address it.
Ms. Malcolmson, I initially took a shot at drafting this and had almost identical language about whether the judge considers it in the interest of justice to do so. Upon further reflection, the “interests of justice”, in my understanding, is a legal term of art that can have a specific meaning in different sections of the law. For example, if you're considering whether to allow a third-party intervenor to take part in litigation where they don't personally have an interest, there are concerns about whether they bring a new perspective, whether they have something of value to add. I have concerns that my initial thoughts as to the appropriate language, which are reflected in your proposed amendment, will lead to unintended consequences that we as a committee have not fully thought through and have heard no evidence on.
I took a shot—the best I could—at some plain language writing that would suggest that, despite the proposed subsection requiring written reasons, the “reasons for a decision need not be given in writing if the judge does not consider it practicable to do so.” This would require, in my mind, that the judge make an assessment, and they have to decide that it is not practicable for them to offer written reasons.
The real reason I wanted to include this is that of delay and the Jordan decision under the Supreme Court of Canada. I think this will allow a judge to say that if this is going to literally let an accused person go free without trial, that's unacceptable, and if judges can give an oral decision in shorter order to ensure justice is served, they will have the ability to do so.
However, to protect against the potential trend that would see judges do this as a matter of course, because they don't feel like it, I inserted proposed subsection (3) and proposed subsection (4) that says that if proposed subsection (2) applies—meaning if the judge decides they can give oral reasons—the court shall prepare a paper or electronic transcript. I've said paper or electronic now. It's not actually in this, but this is something I expect will need to be borne out in further discussion with the assistance of the clerk, of the reasons delivered orally or ensure access to an audio recording of the oral reasons. Then under proposed subsection (4), “Any written reasons given or transcript prepared under subsections (2) or (3) shall be entered into the record of proceedings”.
After a discussion we had with a departmental official and briefly with the legislative clerk, what I really hope we land on here, as someone who worked as a lawyer and relied on legal research tools in my career before politics, is an electronic site on which we can search the decisions, even if they're not officially published in the way that written decisions typically are.
We run into some serious difficulties if we require that a court develops a database, because there are constitutional concerns under the sections 91 and 92 divide that put the administration of justice squarely within the purview of the provinces. If we require the provinces to spend money on the administration of justice in federal legislation, the clause could be struck down entirely as being unconstitutional and render moot the exercise that we're going through and the purpose of this proposed amendment.
I would suggest that the language I've put forward may not be perfect, and if the chair would allow a brief suspension to discuss with members of the different caucuses represented here, the legislative clerk, and potentially, a department official with expertise on this specific matter, I think the legislation would be significantly improved.
Madam Chair, with your permission, I'd recommend we suspend for a few minutes to sort out the details.
