Mr. Speaker, I wish to make a few brief comments with respect of subsection 41.4(4). In dealing with this issue about a possible prosecution where the committee has considered the matter, subsection 41.4(4) says, both in subsection 41.4(4) and in subsection 41.5(4), and the wording here is very important. Subsection 41.4(4) states:
In any prosecution under section 41.1, the prosecutor shall provide the judge with a copy of the opinion of the Committee, and the judge shall consider the opinion in determining whether an offence was committed.
There are two serious concerns I have with that subclause. First of all, the binding of the prosecutor's right to determine how he or she should conduct the prosecution by requiring a specific report to be tendered as evidence as to guilt or innocence.
The point that I would like to make is that this raises all kinds of questions under the Canada Evidence Act with respect to cross-examination on reports and the like. I think it introduces a very serious restriction on the prosecutor's ability to prosecute. It also may create difficulties for the prosecutor.
The other point, though, is a much more serious point. That is:
--the judge shall consider the opinion in determining whether an offence was committed.
The committee itself does not rely on formal rules of evidence. It may hear all types of evidence, whether it is hearsay, opinion, whether that is admissible under the strict rules of criminal law or not. The opinion then is created by the committee, probably in many respects in a way that does not respect the proper criminal law trial process.
Then the judge is compelled to consider what may be evidence that is not properly before him in any other context. The judge is required to consider the guilt or innocence of a person on less than satisfactory evidence.
Even if the subclause were to say that the prosecutor may tender the copy of the opinion or the judge may consider the opinion, I would think it would be highly irregular for a judge ever to consider that. If the evidence is relevant to the guilt or innocence of an accused, the prosecutor should be required to put that evidence into trial in accordance with the proper rules of evidence.
I would submit that there is a serious Charter of Rights and Freedoms problem in terms of a fair trial. Second, there is a serious problem in terms of requiring a judge, a judicial actor, to consider the report of the committee which performs a very different parliamentary function.
I have spoken to some of the other members here. I believe that there may be a solution in the works to this particular problem. I wanted to put my concerns on the record and perhaps the member from the Liberal Party would want to address this in a formal manner if that could be done.