Mr. Speaker, as I alluded to before question period, the most substantive part of Bill C-51 deals with amendments to the Criminal Code related to Canada's sexual assault laws. I support many of the amendments to the Criminal Code brought forward in Bill C-51, including those amendments that clean up the Criminal Code by codifying law determined by the Supreme Court of Canada, including the Regina v. J.A. and Regina v. Ewanchuk decisions.
That being said, there is one area of Bill C-51, in terms of changes to sexual assault laws, that causes me some concern. That area of concern relates to the defence disclosure requirements. Bill C-51 would require that in order for the defence to tender evidence in terms of records that relate to the complainant, it would have to bring an application to the court. In other words, records that relate to the complainant would be deemed inadmissible unless the court determined otherwise. Such an application would have to be brought prior to the trial. Moreover, the complainant would have the right to counsel and would be a party to that application.
I have a number of concerns with that. First, the definition of “records” is very broad. The type and scope of records that would be captured are just about any records related to the complainant. That would potentially include joint records, records that both the accused and the complainant otherwise have a right to access, records that are subject to crown disclosure that are in the control of the crown, and records that were ordered subject to a third-party application. When we talk about the breadth of records that would be captured, we could be talking, in some trials, about thousands and thousands of records that would be subject to such an application.
That would potentially result in delay. In addition to the potential for delay, the timing of the application is of some concern. The application would have to be brought prior to a trial. What is the problem with that? One problem is that there are often issues that arise in trials that are not necessarily foreseeable prior to the trial. Therefore, from a practical standpoint, that would mean there could be records that do not appear to be relevant prior to a trial, but could become very relevant as a result of an issue that arises in the course of a trial. That would mean inevitably that there would be applications brought prior to trial. However, in those instances where records become relevant that were not necessarily obvious or apparent prior to trial, it would result in the need for mid-trial applications. That would mean the adjournment of trials and delay in the administration of justice.
That is particularly concerning in light of the Jordan decision. In Jordan, the Supreme Court determined that delay is presumptively unreasonable where 18 months pass between the laying of charges and a trial in matters before provincial courts, and 30 months in the case of matters before superior courts.
Over the last while, since the Jordan decision was rendered, we have seen dozens and dozens of serious criminal cases thrown out of court, cases involving everything from murder, to sexual assault, to other violent offences. In addition to that, we have seen hundreds, if not thousands, of cases that would otherwise be perfectly prosecutable, but for the Jordan decision, dropped as a result of delay.
The prospect of adding further delay to a system that is stretched to the limit is problematic. What it will potentially mean is more sexual assault cases being thrown out than otherwise would be the case. That is less than comforting to victims of sexual assault. Frankly, it is unacceptable that we could be opening that possibility, and certainly runs counter to the purported objectives of the Jordan decision, which include ensuring that the victims see justice.
I believe that some legitimate questions have been raised about the appropriateness of a complainant being party to such an application with the right of counsel. Very often in sexual assault cases, the outcome of the case rests on the credibility of the complainant. The fact is that most complainants are truthful, but not all complainants are truthful, and in some exceptional circumstances, complainants are not truthful. The effect of this would be that a complainant would gain insight into the defence's case and potential lines of cross-examination. This in turn could undermine trial fairness in a significant way.
In closing, I would like to quote the recent caution of Ontario Superior Court Justice Molloy in the Nyznik case, at paragraph 17, where she stated:
Although the slogan “Believe the victim” has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence.
That pronouncement of Justice Molloy is something that we as members of Parliament need to be mindful of as we try to strike the right balance between ensuring that victims of sexual assault are protected and that their dignity and privacy are upheld with the right of the accused to make full answer in defence.
