Madam Speaker, Bill C-217 seeks to extend certain protections in the Criminal Code currently provided to young witnesses under the age of 14 in prosecutions for sexual offences and offences involving violence. The bill would extend these protections to all witnesses.
I applaud the member's intentions in proposing these amendments to the Criminal Code. The criminal justice depends on victims and witnesses to report crimes and co-operate to the fullest extent possible, including participating as witnesses at preliminary inquiries and trials. The criminal justice should therefore facilitate a witness's participation. Participating as a witness should not turn out to be more traumatic than the crime itself.
Over the past 10 years many improvements have been made to ensure that victims and witnesses can provide their testimony without fear of intimidation. While Bill C-217 would build on these improvements, we would be cautious in supporting the amendments without a very careful examination of their implications and without consideration of the background of the current provisions.
I am well aware of a recent sexual assault trial in Montreal where the accused represented himself and subjected the victims to hours of cross-examination. This case has naturally outraged victim advocates and the public. If those victims had been under 14 years the Criminal Code would have permitted the judge to appoint a lawyer to act for the accused and conduct the cross-examination. The victims would not have had to be personally questioned by their attacker.
The member's proposed bill would respond to that case by extending these procedures to all witnesses. My concern is that the amendments may be too broad and too far reaching and may not in the current form be necessary.
The Criminal Code already includes several protections to ensure that young victims and witnesses are able to provide necessary testimony. In addition there are several provisions to facilitate the participation of sexual assault victims whether young or adult. While these recent reforms to the law are designed to assist victims and witnesses, we cannot ignore the fact that people have an obligation and a duty to report crime and provide relevant information and evidence. In some cases it will not be a pleasant experience.
In the case of young victims and witnesses there is a requirement in the Canada Evidence Act that the judge must conduct an inquiry to determine if a witness under the age of 14 is able to communicate the evidence and understands the nature of an oath or affirmation. Even where a young witness cannot be sworn they may still be able to provide evidence wherever young witnesses are deserving of special protection.
The provisions of the Criminal Code which the proposed bill would amend, that is sections 486(1.1) and 486(2.3), were only proclaimed into force August 1, 1993. The amendments were included in Bill C-126 which proposed a wide range of proposals which in part responded to the recommendations made by the parliamentary committee that reviewed the child sexual abuse provisions of the Criminal Code.
Bill C-126 resulted in additional reforms to the child sexual abuse provisions of the Criminal Code, including abrogating any requirement that the court warn a jury about convicting an accused on the evidence of a child; providing for special prohibitions and probation orders for persons convicted of certain offences against children, for example, prohibiting offenders from seeking employment or volunteer work involving children.
It also included providing for peace bonds where it is feared a person will commit a sexual offence against a child; permitting a support person to accompany a child while testifying; providing that the judge consider the need to safeguard the interests of the witnesses under the age of 14 when determining whether the exclusion of the public from the courtroom would be in the interests of the proper administration of justice; permitting a judge to prohibit an accused from personally cross-examining a child.
These amendments were designed to enhance the reforms made in 1988 by Bill C-15 to effectively deal with child sexual abuse. One of those original amendments provided that child sexual abuse offences and sexual assault offences, the complainant could testify from behind a screen or by closed circuit television if the judge is of the opinion that the exclusion is necessary to obtain a full and candid account of the acts complained of from the complainant.
In other words, if the face to face contact with the alleged abuser would make it difficult to obtain the necessary evidence, the judge could order the use of a screen or closed circuit television.
However, the protection provided for young complainants by this section was illusory where the accused chose to represent himself. The accused, acting as his own lawyer, could come face to face with his young victim. The amendments passed in 1993 were designed to address this problem and were accordingly focused on young witnesses.
We know that child abuse occurs in part because of the inequalities between children and adults in size, knowledge and power. Cross-examination by an accused of a child victim continued the abuse. Therefore, the Criminal Code was amended to provide that an accused shall not personally cross-examine a witness under 14, unless the judge is of the opinion that the proper administration of justice requires the accused to do so. The judge can appoint counsel for the unrepresented accused to conduct the cross-examination of the child.
This provision applies in sexual offences or in an offence in which violence against the person has been used, alleged or threatened. This provision, coupled with the provision for the use of screens or closed circuit television ensures that child victims will not have to face their abuser which may assist them in providing their evidence.
The private member's bill before us would open that protection to all victims and witnesses of sexual offences and crimes of violence. The judge could appoint counsel for unrepresented accused to conduct the cross-examination of a victim or witness.
I have no doubt this protection would be beneficial and desirable, but is this protection necessary for all adult witnesses or only certain more vulnerable witnesses? We must carefully examine the implications of such proposals.
As I indicated, these provisions were designed to address the problems of child sexual abuse to ensure that young victims of abuse could provide the necessary evidence. However, adults are presumed to be able to provide necessary and relevant evidence.
The Criminal Code already includes a number of provisions to safeguard adult victims of sexual offences, including the discretion of a judge to exclude members of the public, to order publication bans on the identity of complainants and witnesses, to make evidentiary provisions such as restrictions on questioning about previous sexual activity and in camera hearings for the determination of admissibility of certain evidence. All those safeguards would apply even where the accused is not represented by counsel.
We must also consider the cost implications. Who will pay for the lawyers appointed to act for unrepresented accused? As members know, under our Constitution, the administration of justice in the provinces is a provincial responsibility. Where a judge appoints a counsel to act for an unrepresented accused, it would in most cases be the responsibility of the provincial attorneys general to pay for that appointment.
If we permit the court to appoint counsel for unrepresented accused in sexual offences, sexual assaults or crimes of violence against the person, we are creating the potential for imposing major costs on the provinces. It is therefore absolutely essential and necessary that all provinces be consulted about the proposed amendment.
The Criminal Code already includes similar provisions to appoint counsel for unrepresented accused persons in specific circumstances. For example, where an accused is thought to be unfit to stand trial, the court can appoint counsel to act for the accused. For appeals to the Supreme Court of Canada, that court can appoint counsel where it is in the interests of justice and where it appears the accused is financially unable to retain counsel.
These are exceptional cases that arise rather infrequently. Nevertheless, the provinces have expressed their concerns about the potential cost implications where counsel is appointed in these circumstances. Perhaps we should consider permitting a judge to appoint counsel to conduct the cross-examination on behalf of an unrepresented accused where the victim makes an application and where in the judge's view, the interests of justice demand. However, even this more limited measure should be discussed with the provincial attorneys general.
It is a general principle of our criminal justice system that all proceedings take place in open court. The presiding judge does, however, have the discretion provided by the act to exclude all or any members of the public.
There are many protections in place at this time. We acknowledge the positive intent of the bill but we believe that consultations should be conducted with the provinces and all aspects of the bill reviewed.