Mr. Speaker, I am pleased to speak on behalf of the official opposition and to address Bill C-46, an act to amend the Criminal Code, particularly as regards the production of records in sexual offence proceedings.
Incidentally, the 35th Parliament will probably go down in history as the one during which the largest number of criminal issues were dealt with. A large number of bills have been on the House agenda, and the Standing Committee on Justice and Legal Affairs has been particularly busy throughout this Parliament, and it seems that it will continue to be until the end. I do not think there was a need to speed up things in every case. In some cases yes, but not all the time.
The hon. member for Prince Albert-Churchill River just made a speech in which he was already referring to Bill C-46 as an achievement for the government. Let us not rush things. We are currently building the foundations of a bill, and I take the hon. member's word to the effect that this bill will be thoroughly reviewed by the Standing Committee on Justice and Legal Affairs. I do hope this exercise will not be conducted hastily, as has been the case with certain bills in recent months.
That having been said, Bill C-46 includes some interesting and valuable provisions, as well as others that may be more questionable or that raise concerns. The witnesses who will appear before the Standing Committee on Justice and Legal Affairs will shed light on these, so that we can deal with them accordingly.
Restricting the disclosure of some files to the defence and, consequently, to the person accused of a criminal offence of a sexual nature that often involves a woman or a child, is a laudable principle.
The hon. member said earlier that this bill does not in any way violate the constitutional rights of the person accused. At first glance, I have doubts about this, because the act includes a preamble with seven whereases before we get to the following: "Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada-".
When the government includes such whereases in a bill, it is because it thinks the legislation does not meet the Oakes test. The restrictions contained in this bill have no justification in a free and democratic society. It seems, at first glance, that they will have to be justified before the courts, since there are probably grounds for a charter challenge.
However, the possibility of a charter challenge is not grounds enough to prevent our legislating. I would say that the likely success of a charter challenge should be a much more serious caution. In my opinion, however, the mere possibility must not preclude the examination of legislation.
In order to better understand Bill C-46, let us draw a parallel with the situation when rape was a criminal offence. The term we use now is "sexual assault".
For a long time in Canada, when rape was defined as a criminal offence and an offence related to the commission of a sexual act, the victim's past was open to all and sundry. At a rape trial, it was not clear whether the accused or the victim in the witness box should be responding to the accusations from the way they were going after the victim's past. Quite simply, in an effort to cast doubt in the minds of the jury, to colour the victim's testimony, the victim's sexual history was scrutinized in an effort to discredit her testimony and to show that she had had numerous or bizarre experiences, according to the customs of the time. Regardless, they hit into the victim, regardless of the ultimate intent. In many cases, the ultimate intent for the defence was to cast doubt in the mind of the jury or of the judge, if the trial was before the judge alone.
The legislator changed the situation in somewhat the same way Bill C-46 is attempting to do. If, during a trial for sexual assault, the victim is to be questioned on her earlier sex life to find out whether, for example, as we used to put it, she was previously of chaste character, the course of the questioning must be presented to the judge in a voir dire.
Before the jury is allowed to hear the evidence on the victim's past, the judge is entitled to know exactly what link the defence
thinks it can establish, not to simply imply that the victim who may have behaved in a certain way had no credibility.
Through Bill C-46, a norm is set. Before an accused can seek production of personal records that may be in the hands of a psychiatrist, a member of the medical establishment, teachers or guidance counsellors, and even the production of personal diaries that may be in the hands of a complainant, he or she will first have to convince the judge that this evidence is likely to be relevant to the trial.
The accused will have to demonstrate to the judge, who will be sitting without a jury and conducting a hearing very similar to a voir dire, that this evidence will convincingly raise a reasonable doubt. The first time around, the accused will be required to back up the grounds for making an application, and the judge will hear this application in camera. The complainant could be heard. I read the bill to mean that the accused could be heard as well.
We have reached here a breaking point, a cut-off point between the rights of the victim and those of the accused, who is entitled to a full defence.
One can wonder how, without having reviewed records such as those being requested, the accused can be expected to prepare an application and make sufficiently detailed allegations to convince a judge of the relevancy of presenting the evidence.
This is an issue that will be very difficult to resolve. Perhaps we will manage to find both a positive and a clever solution that respects the rights of both parties, because, in law as in every other area, matter is neither lost nor created. What you gain on one side you lose on the other. The balance on which the economics of our entire criminal law rests must be maintained.
Regarding the evidence that may be disclosed at trial, for the jury's information or for the presiding judge to review, Bill C-46 seeks to ensure and give us the assurance that they will be relevant and pertain to the issue at trial.
I noted in passing that this is the only case where the accused is required to use this procedure, i.e. make a voir dire type of application for the production of such records. This is specified in clause 278.3(2), which reads, and I quote:
For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.
What about the accused who wishes, at the preliminary hearing stage, to submit to voluntary examination and plead on voluntary examination to have charges against him dropped for total want of evidence, I wonder? Is he precluded from serving subpoenas on those who have possession of these documents? This is a matter for the Standing Committee on Justice and Legal Affairs to look into.
At the preliminary investigation and voluntary examination stage, assuming the person charged agrees to such a voluntary examination, given its explicit conditions, will the person be deprived of certain means of defence? If we seek to deprive that person of certain means of defence, again we are possibly violating the guarantees provided during a full defence.
And what happens if the documents are in the hands of the Crown, a third party, a member of the medical profession, or a psychiatrist? Is the Crown, given the Supreme Court decision in the Stinchcombe case, not required to make these documents available to the defence? This is another issue which the committee will have to look at.
These are measures which may sound appealing, but which have to be taken carefully, in small doses, because they have an impact on the fundamental rule of justice in our legal system, a system that includes the Criminal Code of Canada, the civil code of the Province of Quebec and the municipal codes in the various provinces, which are the cornerstones of our whole legal system. When these cornerstones are altered, our whole legal system is affected.
The civil code reform took place over a number of decades in Quebec, beginning in the fifties. In fact, the process had started long before with the Pérodeau act, in 1915, the Dorion report, in 1931, and then the change regarding the rights of married women in civil matters, in 1954. All this took several decades. The changes were not imposed overnight.
The people of Canada-and the people of Quebec in the case of that province's civil law, know what their legal system is based on. A civil code and a criminal code are basic documents in our society, just as the Holy Scriptures are fundamental to religion.
We should not rewrite the Scriptures every two or three years. It is a genuine document. We do have various translations and, from time to time, exegetes who provide a new interpretation, but we always come back to the same text. The Scriptures are made more meaningful because they have never been rewritten. Apocrypha are dismissed because they do not meet the same authenticity standards as the Scriptures, as we know them.
This little digression was meant to show you that the basic instruments in our legal system should not change too much or too often. Let me loop the loop I started at the beginning of my speech, when I said that we have passed too many pieces of criminal
legislation during this Parliament: the people subject to trial, the solicitors, the lawyers and probably many judges no longer know what the law is any more. Yet, one basic requirement for a society like ours based on the rule of law, under the 1982 Constitutional Act, is that those who are subject to the law of the land must know what the law says, which is why our basic laws like the Criminal Code should not change too often or according to the whims of those in power who, for some reason, maybe because of some pressure from a lobby group, may decide to make changes.
So this bill will have to be examined thoroughly in order to weigh the ins and outs of the proposed reform. At first blush, its intentions appear laudable, there is no doubt. But if we were to ask Canadians, whom the justice system is there to serve, to name one of the important rules of criminal law, they would probably immediately mention the presumption of innocence, without any prodding whatsoever. An accused cannot be presumed guilty; he is even entitled to remain silent, to remain seated during his trial and say nothing.
Furthermore, the Supreme Court and even the Privy Council have had to make this point again on several occasions, overturning juries' verdicts when crown prosecutors went too far with their arguments from time to time, or when judges overstepped the bounds, because it is not even permitted to comment on an accused's silence, if he decides not to present a defence. When the crown has finished presenting its evidence, and the accused does not rise, the next step is arguments, and neither the crown prosecutor nor the judge may comment on the accused's silence; he is entitled to remain silent. This is one of the key principles of our criminal justice system and, for once I agree with many colleagues in this House, a system which compares very favourably with criminal law systems in other countries.
We now realize that, with Bill C-46, we are going to oblige the accused to present evidence, obviously not before a jury, just before a judge, showing that certain elements of evidence are relevant to his defence in order to be able to produce them later on.
In certain cases, the accused will be forced to speak and to reveal part of his strategy because, in a trial, there is the element of strategy. This may lead the crown to say: "If that is the defence they are preparing, I will adjust my evidence accordingly".
The accused's right to silence is, of course, affected by this bill. Although not in itself grounds to oppose this bill, this is a reason to ask whether we are affecting basic rights which have taken hundreds of years to become established in our British system of criminal law.
We must not, in the space of a single legislative session, demolish piece by piece, without truly really realizing what we are taking away, what we are changing, values which have been unanimously acknowledged by our forefathers and are the fundamental guarantee of our democratic freedoms, deemed so important that they were entrenched in the 1982 Constitution, particularly, but not exclusively, in sections 7 through 15.
The official opposition will, with an open mind, give its agreement in principle to the adoption of this bill on second reading.
In doing so, however, we wish to make it known that we will be keeping a watchful eye in committee in order to ensure that, in its guidelines and in its practical application, our system of criminal law, the envy of a number of nations, remains a system that continues to be the envy of many countries.