Madam Speaker, I commend the drafter of this bill, my colleague from the Bloc, for her compassion and concern for the comfort and rights of victims of monsters such as in the case she talked about in her presentation. I am a little surprised she did not see fit to support our motion that a victims' bill of rights be drafted and passed by the government
because I see in her presentation today that she is very concerned about victims' rights.
However, in this draft bill we have to balance two competing interests. The first is the desire to put as little stress and unfairness as we are able on victims of terrible crimes in order for them not to have to relive their horror. We also have to look at the principles of jurisprudence that will be affected by the changes being suggested by my hon. colleague.
There are two principles of jurisprudence which will be affected by this bill. One is the right to face one's accuser, which has long been a cornerstone of common law. Second, justice will be done in the open. Justice must not only be done, it must be seen to be done, to quote a very long established principle of our justice system.
This proposal would amend two subsections of section 486 of the Criminal Code of Canada to allow in certain circumstances, particularly those of sexual assault and violent assault, that even in the case of an adult victim, the victim or the witness could give evidence in a closed courtroom and also that the accused could be prevented from personally facing their accuser.
As has been pointed out in the previous intervention by a government member, there is already in the Criminal Code the flexibility, the discretion of a court to protect witnesses in certain ways. These discretions are sufficient to prevent the excesses the member moving the motion is talking about.
For example, in the murder trial of Fabrikant which was alluded to, the judge ended the testimony of one witness after Fabrikant, acting as his own lawyer, became, in the judge's words, insulting, sarcastic and brutal. The judge did have and did exercise discretion to prevent further abuse of and unwarranted interference with the witness.
We do not condone trials behind closed doors. When it is absolutely necessary, we do allow judges in the interests of public morals, the maintenance of order and the administration of justice, to curtail somewhat the right of the public to access to a public trial. We saw that in the Bernardo trials and in others.
Because an open court is fundamental to the pursuit of justice in Canada and it is guaranteed under the charter of rights and freedoms, we should be very careful about further interference with that right. Section 11(d) of the charter states: "Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal".
It is interesting to note that when the current age restriction of 14 was introduced in Bill C-126, the matter was referred to the Standing Committee on Justice and Legal Affairs. The criminal lawyers association testifying before that committee questioned why the legislation decided 14 was the proper age at which the interests of the witness could be better protected than by provisions already in the code. Previously there had been a very full debate into the whole question of at what age and in what circumstances special protections for witnesses should be written into our legislation.
In a society which values the principle of open court and where the principle of open court is deemed essential to our legal system so that Canadians can have faith in it, we as legislators should be extremely cautious about changes which will affect those fundamental rights.
I concur with the mover of the bill that it is terrible and repugnant that victims who have already gone through a tremendously traumatic and terrible experience be unfairly asked to relive this and should be further abused in the trial. Our courts should do everything possible, and there are discretions available to the courts, to prevent that.
Legislating for the most extreme scenario, for cases furthest out on the swing of the pendulum, is not the proper way to structure our justice system. We have to deal with those kinds of extreme cases by other measures, not changing fundamentally our entire justice system because there has been a very extreme and unusual abuse of it.
The second amendment to the Criminal Code being sought by this private member's bill deals with a person's right to cross-examine a witness. Currently the code provides for a witness under the age of 14 not to have to face direct cross-examination. Instead the court may appoint counsel to conduct the cross-examination. Bill C-217 would remove the age restriction of a witness whom a defendant could personally cross-examine.
This part of the Criminal Code also deals with people who act as their own defence lawyers. As the mover of this bill quite properly pointed out, there are some occasions when an accused acting as their own defence lawyer very much abuses the system. That should call for the proper intervention of the court.
Again, denying or limiting that person a right to defend herself or himself does interfere with the fundamental element of our system of jurisprudence and we should be very cautious about expanding further the erosion of that principle.
While giving protection to a witness to avoid unpleasant court room tactics by a defendant is something we all recognize is a desirable aim, there is the competing interest of upholding the established principles of our justice system. The issue has been studied by a number of organizations in the past, including the law
commission. As I said, there has been legislation dealt with by the justice committee of the House of Commons.
It appears the protections and the discretion available to the court are already present to prevent the excesses this bill is trying to address. An expansion to the extent contemplated in this bill would not be warranted. We should be very cautious about expanding these every time an extreme case comes along.
I recommend to the House that we applaud and recognize the intent behind the bill and the humanity which motivates it but reject the logic and the necessity for the measures being proposed.