Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 22 - Evidence
OTTAWA, Wednesday, December 12, 2001
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-15A, to amend the Criminal Code and to amend other Acts, met this day at 3:35 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Today we will continue with our consideration of Bill C-15A with three panels of witnesses. The first panel consists of representatives from the Canadian Bar Association and from the Barreau du Québec.
From the Canadian Bar Association we have with us Ms Perkins-McVey, chair of the National Criminal Justice Section. On our right is Ms Tamra Thomson, Director of the Legislation and Law Reform Committee. From the Barreau du Québec left is Ms Carole Brosseau, lawyer, Research and Legislation Committee.
I believe all three of you will make opening statements.
Ms Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association: Ms Perkins-McVey and I appear today on behalf of the Canadian Bar Association.
The Canadian Bar Association is a voluntary national organization whose members are jurists from across the country. There are approximately 36,000 to 37,000 members. Our objectives include improvement in the law and improvement in the administration of justice. It is with that optic that we make our comments to you today.
We have provided the clerk a letter that was written by members of the National Criminal Justice Section and the Committee on Imprisonment and Release. The Criminal Justice Section comprises both Crown and defence attorneys, and the Committee on Imprisonment and Release is a subset of that section whose members are expert on sentencing matters and imprisonment and parole matters.
The section and the committee have had a long involvement with many of the issues that are dealt with in Bill C-15A, which is before you today. Although the letter is short, it represents a number of years of dialogue with the Department of Justice officials and with prior parliamentary committees on these issues.
I will ask Ms Perkins-McVey, who is the chair of the Criminal Justice Section, to address the substantive issues that we would like to raise today.
Ms Heather Perkins-McVey, Chair, National Criminal Justice Section, Canadian Bar Association: The key areas that we feel should be addressed by the bill are those pertaining to the section 690 review process. While we would like to think we are working hard towards a better criminal justice system, the existence of section 690 points out the fact that we do not have a perfect system; there will be injustices and there will be wrongful convictions.
Section 690 of the Criminal Code provides a process to remedy cases of wrongful conviction. It has been the position of the Canadian Bar Association for many years that there must be an independent review of those wrongful convictions. We do not support the amendments that are contained in Bill C-15A. In fact, we are very disappointed that the Department of Justice has not listened either to Justice Cory or to other recommendations that were made in the Marshall, Milgaard and Guy-Paul Morin inquiries. All of those cases of wrongful conviction, and particularly most recently Justice Cory in the Sophonow report, indicated there was a need to have an independent review of the 690 process to deal with these wrongful convictions. It is disappointing that the Department of Justice has not thought to incorporate the kind of system that is currently used in the United Kingdom as a model for amendments to the Criminal Code in this area.
We also feel that in Bill C-15A the question of whether a case should return to the court still remains in the hands of the Minister of Justice and is based on a criterion of reasonable basis to conclude that a miscarriage of justice likely occurred. In our view, as indicated, an independent agency should make this decision and the test should be: whenever there is a credible basis for believing that a conviction may be wrongful.
One of the other concerns we have is that under proposed section 696.2(1), the minister is to review an application in accordance with the regulations. Further, the Governor in Council is to make the regulations prescribing the process of review.
Until those regulations are available for discussion, it is impossible to properly assess the integrity of that process. One of the primary criticisms of the existing process is its lack of accountability and its lack of openness. We cannot even begin to give you our opinion as to whether or not the amendments will solve the problem until we see those regulations.
The power to delegate the investigative powers that are contained in the bill is an important amendment, but once again will depend on when the power is exercised, the choice of the delegates, and the limits that are placed on that delegation. That is something we have yet to be able to assess.
Furthermore, the concern about the lack of openness of the process and lack of public accountability is also not addressed in this bill. This bill does not contain any requirement that applicants be given reasons for why their cases were turned down or why there has been no referral back to the court.
We believe that it is fundamental that applicants should be given reasons for why their cases have not been sent back for review by the courts. We believe that those reasons should be made public. Once again, when one is dealing with a situation of miscarriage of justice or possible miscarriage of justice, public accountability in the integrity of the system is fundamental. We believe that key concern is not addressed in the bill before you.
We have addressed the concerns that are raised in the proposal of section 348.1 to add home invasion as an aggravating factor in sentence. In our view, it is unnecessary to add to the already extensive list of aggravating factors in sentence, this particular factor. To continue to add aggravating factors only dilutes the importance of the existing list. We believe the amendment is unnecessary because several related offences, such as breaking and entering into a dwelling house, robbery, and unlawful confinement, already carry the maximum sentence of life imprisonment. Furthermore, existing case law and sentencing courts have already determined that home invasion is an aggravating factor on sentence.
We believe that all sentencing courts have the necessary discretion, given that these are all offences that carry a maximum of life imprisonment, to appropriately tailor sentences for those most serious cases. We strongly believe that that discretion should be retained, and that in light of the existing case law there is no need for this amendment. We see no advantage to continuing to add this kind of factor to the list of aggravating circumstances.
Looking at the criminal harassment section, we have no objection to increasing the maximum penalty for criminal harassment from five to 10 years' imprisonment. Provided that there is no mandatory minimum, we do not object to the need to properly increase sentence where the case warrants it.
We recognize that criminal harassment is a very serious offence and courts increasingly are also reflecting that by their sentences, both in the appeal and the trial levels of court. Our only concern when one raises the bar in this way is that one sometimes inadvertently increases the sentence for all cases where it is not merited. However, generally, as indicated, we support the increase in sentence to allow the judge, where necessary, to impose a more significant sentence for those worst-case scenarios.
Looking at clause 79 of the bill as it pertains to the use of agents, we support the use of agents as outlined by the bill but very strongly wish that this limit be noted, such that the use of agents is limited to those offences that would carry a maximum of six months' imprisonment.
In our view, at any time we are dealing with the liberty or the possible liberty of a subject, and given that we have had to deal with section 690 and the wrongful conviction, we feel it is imperative that trained legal professionals be available to all persons charged with offences that would carry any term of imprisonment. We strongly believe that the use of paralegals and agents must be limited to ensure that trained persons properly represent persons before the courts.
Without a proper regulatory system for paralegals and agents, there is a concern without this kind of limitation being adopted.
With regard to the sections pertaining to the preliminary inquiry, we have some serious concerns about the proposed amendments to the preliminary inquiry and the attempt to limit the availability of preliminary inquiries.
The Canadian Bar Association has looked at this issue and provided a submission to the Department of Justice as far back as 1994. We appreciate that there may be increasing political pressure to do away with preliminary inquiries, and we recognize that this bill does not, in and of itself, do that.
However, any erosion of the preliminary inquiry is something we do not support. There is still a need for a preliminary inquiry and we do not believe that there has been sufficient statistical data to suggest that the preliminary inquiry is not a useful way of allowing an accused to ensure that he can make full answer and defence to the courts.
We believe that while case law such as Regina v. Stinchcombe have indicated that there should be full disclosure given by the Crown Attorney, that is not a statutory obligation as of yet. In the experience of the Canadian Bar Association, both Crown Attorneys and defence lawyers, we agree that the area of disclosure is still an area of litigation. There are still problems with interpretation of the law of disclosure, and there are far too many miscarriages of justice as a result of nondisclosure of information in the hands of the Crown and the investigating authorities.
We are opposed to any dismantling of the preliminary inquiry because of the twofold purpose of a preliminary inquiry. Not only is it necessary in order for the justice system to determine whether or not the accused should be made to stand trial, but it also has a discovery function that aids both the Crown and the defence. That has to be noted. This is not a one-sided process. It is not something that is only there for the benefit of the defence. The Crown Attorney can assess its case. The Crown Attorney can also get a strong idea of where the defence is going with their own defence in the matter.
With regard to proposed section 536.3, dealing with procedures concerning statements of issues and witnesses before a preliminary inquiry, we are concerned about limitations. We are concerned that, as drafted, judges may not allow questions that may arise, issues that may come up as a result of issues that may not have been foreseeable.
We are also concerned that, according to proposed section 29.2, in the amendment of section 540, evidence that is not admissible at trial can be received at a preliminary inquiry if it is credible or trustworthy in the circumstances. In our view, inadmissible evidence should not be admissible at a preliminary inquiry if it would not be admissible at trial. Our concern is that this may have serious Charter implications at trial. We do not support that section in Bill C-15A.
How can a determination properly be made as to whether or not an accused should be made to stand trial if that determination is made on the basis of inadmissible evidence?
We also have to look at the whole issue of the preliminary inquiry in light of other changes that have been previously made to the Criminal Code. With the number of hybrid offences that are currently in the Criminal Code, there are fewer and fewer preliminary inquiries being held. In those cases where the Crown Attorney has decided that it is a serious case that warrants an election by indictment, then that decision should also then warrant a full exploration of the charges by both the Crown and defence through the mechanism of the preliminary inquiry.
Because of the presence of so many hybrid offences, more often than not, the Crown is electing to proceed summarily, and as such, of course, a preliminary inquiry is not available. The concern that may have been rampant 10 years ago is not currently what we are seeing in the courts, because there are so few cases that proceed by indictment.
Before there is any attempt at erosion of the preliminary inquiry, there should be a full study to determine exactly the current effect the continued presence of the preliminary inquiry, as it now stands, is having on the dynamics of the courts.
Looking at the proposed sections as they pertain to additional offences of child pornography and Internet luring, we completely support the purpose of the legislative proposals as they pertain to the need to protect children from exploitation - particularly sexual exploitation. The only concern we have is that those sections as they are drafted are clear, such that, for example, looking at section 163.1 - that is the offence of accessing child pornography - for greater clarity we simply wish that the word "knowingly" be inserted before the word "accesses," so it would say "knowingly accesses any child pornography."
We acknowledge that the word "knowingly" is contained in the definition of accessing, but for the purposes of making it absolutely clear, we strongly recommend that "knowingly" be in the substantive section as well, not something that has to be inferred from the definition.
The same issue arises as it pertains to the new offence of Internet luring under proposed section 172.1 of the Criminal Code. We believe the word "knowingly" should be added to the first part of subsection (1), so that it would read: "Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), knowingly communicates with..."
The addition of the word "knowingly" in this circumstance would avoid the creation of a strict liability offence. In our view, this offence should be a full mens rea offence, given the stigma attached to the conviction and the possible penalty when the Crown proceeds by indictment. We believe that that has to be considered as an amendment.
The other concern we have is the use of the word "facilitating." You have all heard this word before. You heard it in Bill C-24. You heard me talk about it in that circumstance. You heard it in Bill C-36. You will hear it, perhaps, when it comes to the Public Safety Awareness Act, Bill C-42.
Our concern is that while facilitation is used in the Criminal Code, in this Bill C-15A, there is no definition of "facilitating." If you heard the submissions that we have made vis-à-vis Bill C-24 and Bill C-36 - and you will hear them again on Bill C-42 -, our position is that there is not a common definition of "facilitating" and that there should be one that is consistent throughout the Code. In this circumstance, it should be clarified, given that it is used in this section of the Code.
We also wish to bring to your attention that section 172.1(4) appears to omit recognition of a mistaken belief of the person communicating in regards to the age of the recipient of the communication. We believe that the defence of mistaken belief should be preserved and that the omission should be remedied.
We do generally support, as I indicated, those sections of Bill C-15A. It is a very difficult and complex area. We support the fact that there is an attempt made by the Department of Justice to protect children in this way. It is important that we recognize that changes in technology have to be incorporated into the Criminal Code.
However, we would ask you to look at these amendments, bearing in mind the comments we have made and the need to make them full mens rea offences, given the increased penalties that are set out.
I would be happy to answer any questions.
[Translation]
Ms Carole Brosseau, lawyer, Research and Legislation, Barreau du Québec: As spokesperson for the Barreau du Québec, I would like to thank you for having invited me to come here to make representations to you regarding Bill C-15A.
As in the case of the working groups of the Canadian Bar Association, the proposals I will be making today flow from discussions of the criminal law committee of the Barreau du Québec, made up of Crown attorneys and defence attorneys as well as of professors you have had the opportunity to meet during previous committee meetings. In order to avoid redundancy, I will not be repeating those points of our presentation that fall in line with the suggestions put forward by my colleague. I will rather dwell on those points that are different.
I would like to talk about the reform of section 690 of the Criminal Code and of the miscarriage of justice review process. As you are aware, there was consultation by the minister of Justice prior to the proposals contained in Bill C-15A. Le Barreau du Québec had at that time intervened so as to underscore some points in particular.
Several of these points have been included in the version of the bill you have before you today, but other suggestions were not.
As an example, those points that appealed to us and that have been maintained related to the fact that the review power remained in the hands of the minister. We favour this approach because of a historical fact.
Another matter was the broadening of the minister's power to include all infractions under a federal act rather than limiting it solely to indictable offenses. That satisfies us. Thus, the investigation commissioner powers granted the minister are much more interesting in the context of an investigation. Lastly, there is an improvement in the procedure thanks to decision criteria that are now much clearer in the act compared with past practice.
Furthermore, certain weak points are mentioned. Among others, for the purposes of transparency and independence that are necessary within the system, given the very specific context that recognizes, as my colleague was saying, the fact that our system is not perfect, the Barreau du Québec had suggested the creation of an independent organization to deal with these complaints. I will quote you the suggestion made at the time by the Barreau:
... the creation of an independent committee that would see to the analysis of the file as well as to the gathering of information.The suggested makeup of the committee was in our view essential in order to guarantee independence. Collegiality was also a determining factor in the realization of the aims of the review and conviction process. We are obviously disappointed to note that the suggestion regarding the creation of this committee was not taken up.
With regard to the composition of the committee, we had suggested that there be a representative of the Crown, a representative for the defence as well as a third person able to represent the interests of others, such as victims within society. We have also suggested that there be established two review levels, the first one dealing with the sorting of information and the second with a more comprehensive study of the application.
This committee would make its recommendations to the minister. The minister would set out conditions relating to the factors outlined. This would not reflect the structure and rigidity of what is proposed and does in fact exist in the United Kingdom, but would nevertheless have the advantage of offering independence.
Another comment that I would like to make relates to section 696.34 of the Criminal Code. This section provides that the minister's decision is not subject to appeal. However, upon reading the text, one might think that the judicial review itself is not excluded. The Barreau du Québec does not believe that judicial review is an avenue that could be pursued in this context. Appeals must not be allowed on the basis of some vague doubt. It is in this context that the section lacks precision. Whatever the intent of the legislator, this should be made more explicit.
I will now rely a little bit on the structure my colleague followed in her presentation. In fact, I had taken the reverse position and my tendency was to follow the flow of the bill, but for the purposes of our presentation, we will now move on to the preliminary inquiry.
We believe that the changes made to the preliminary enquiry are essential. Indeed, we have repeatedly, since 1994, asked for and demanded changes to the preliminary enquiry. As my colleague mentioned, there are more and more hybrid offences. Depending upon the choice that will be made by the prosecutor in the case, one might believe that the choice, depending upon the events in question, may lean towards prosecution by way of summary conviction. But when the offence is judged to be so serious that it requires a preliminary inquiry, the very principle of preliminary inquiries should not be put in question.
Furthermore, I would like to remind you of a problem that is very specific to Quebec and that the rest of the provinces do not encounter: municipal courts. As you know, in Quebec, municipal courts have rather broad jurisdiction. They have jurisdiction in the area of criminal law over any issue covered by section 27 of the Criminal Code. You can well imagine that this jurisdiction is of consequence. As we are seeing, the rules with regard to preliminary inquiries are being determined by the courts themselves, subject to the approval of the lieutenant-governor in council. In the case of Quebec, this really does constitute a problem that the Barreau has often denounced.
As you are aware, and this was much talked about in the papers - I do not know if people in the other provinces were informed of this - but Quebec has undertaken a rather important municipal reform in the area of municipal amalgamation, and this has stirred up a wind of reform at the municipal court level.
No decision has thus far been made by the minister of Justice, but this is creating a real problem for us with regard to preliminary inquiry applications before municipal courts. The bill provides for this. I believe that, unfortunately, your committee will not be able to reach an enlightened decision in this regard, but it is important that this situation be brought to light. Let us say that we are raising a red flag for you here in saying that we are faced with a very specific difficulty in Quebec. The idea of operating by way of regulations is not a bad one, but the rules of practice should not be of a substantive nature.
For example, with regard to time frames, they should not allow for the imposition of certain deadlines on the courts. Rather, there should be some standardization of the way of proceeding, independent from the authority that will be hearing the case. That was my first point.
The other more general point with regard to preliminary inquiries relates to the fact that, as you are aware, preliminary inquiries will in future be carried out upon request. What was of concern to a large number of committee members was the ambiguity they saw in the role of the preliminary inquiry which had previously been very clear.
The new provisions are however such that we will not really know what the true impact of the preliminary inquiry will be on the legal process. In the end, our real fear is that the preliminary inquiry be a substitute for the trial and that it cancel out, for all intents and purposes, the impact of section 548 of the Criminal Code.
Furthermore, more specifically - and I will here, in the fashion of my colleague, refer to the bill - the same comment applies to section 540. We share the same opinion. With regard to the procedures preceding the preliminary inquiry that are found in section 536 and following in the bill, and more precisely in section 27 of the bill, we have concerns with regard to the rules: in other words, section 536.3 is an example of the fact that, through the rules, we are substituting ourselves for the legislator with regard to certain aspects of the inquiry.
As to section 536.4, I wanted to give you the example of the application of rules of practice in substantive law rather than simply that of rules of practice. I would refer you also to clause 15 of the bill, where the Barreau has some concerns with regard to aggravating circumstances. There was also a problem with 848.1a), relating to the dwelling-house.
It is our belief that this provision is redundant and that it should be eliminated. In fact, we are saying that in this case, the person was aware of the fact that the dwelling-house was occupied and that he or she paid this fact no heed. Finally, the way in which the clause is drafted, this would apply to all situations and we would question that.
Moving on now to the provisions of Bill C-15A relating more specifically to child pornography, the Barreau du Québec is in agreement with the principles and aims of the legislator in view of better defining these issues. The Barreau does see enforcement problems related to the language of some of the provisions, especially that for seizure. This provision is contained in clause 7 of the bill and amends section 164 of the Criminal Code.
In section 164.1, we object to the provision requiring that a person supply the necessary information - in this case, the custodian of the computer - in order to identify and trace the culprit responsible for posting the material. This is like being an informer, and the Barreau du Québec is very uncomfortable with this provision, especially since the information activity is carried out independently from the accusation that will follow.
Furthermore, determining who is the custodian of the computer system will create an identification problem. If we refer to section 164.1(5), the first provision required the seizure of the information. If the court is satisfied, on a balance of probabilities, that the material constitutes child pornography, it may order the custodian of the computer system to delete that material.
The Barreau du Québec has concerns with regard to the burden of proof as set out in this provision and what we often see in matters of seizure is a lessening of the burden of proof. It is not a matter of proof beyond any doubt but rather on a balance of probabilities, and this is of grave concern to us.
The final point somewhat comes back to what my colleague was saying. It is the matter relating to section 172.1. Here, I would simply ask that you refer back to what my colleague said in this regard, including her explanation relating to the notion of "facilitation."
At the Barreau du Québec, we have a specific act entitled the Loi sur le Barreau. This law sets out certain acts that are reserved, in other words that are reserved exclusively for the exercise of the legal profession in Quebec. Within this framework, any appearances before a court fall exclusively within the role of the solicitor.
With regard to the provision relating to paralegal interveners, it is as if this provision of the Criminal Code were in contradiction with our own legal texts, but I would simply like to insist on the fact that paralegal representatives would not be able to intervene before the courts in Quebec.
That does not mean that they would have no work prospects, but they would be barred from representing individuals. This is specific to Quebec and I do not believe that the other bars throughout the country have a similar rule. I simply wanted to inform you of this.
We have court appearance training and the evidentiary and procedural rules should be the exclusive domain of lawyers, especially in criminal matters. In stating this, I am not guided by a desire to preserve the role of lawyers, but simply by the aim of protecting the rights of the public. I would not want my statements in this regard to be misinterpreted.
Senator Beaudoin: Madam Brosseau, you aroused my curiosity when you established a relationship between the municipal court system and that of the amalgamation of municipalities. Obviously, if municipalities are being amalgated, that could have an impact on municipal courts, and I would like to know in what way.
Ms Brosseau: In Quebec, certain municipalities were historically created by specific charters. Take, for example, the Charte de Québec and the Charte de Montréal. Within these charters, there were specific provisions relating to the role and jurisdiction of municipal courts.
Senator Beaudoin: Contained in the charters?
Ms Brosseau: Yes, indeed, which means that in Montreal, Laval and Quebec City, the exclusive powers set out in clause 553 could be exercised by the municipal court judges of Montreal and Quebec City. Up until December of this year, the provisions relating to municipal courts were maintained, but they will fall as of January 1st.
The Barreau du Québec has made representations in this regard and the Bellemare report, commissioned by the Quebec minister of Justice, makes specific proposals, but the minister of Justice has not yet given any follow-up.
In principle, this means that it would be the Loi sur les cours municipales du Québec that would apply and that the jurisdiction under section 553, historically reserved for the municipal courts of Montreal and Quebec City, would no longer be.
Senator Beaudoin: The province of Quebec has a special system for paralegal workers?
Ms Brosseau: The province of Quebec wished to regulate all professions, and not only the legal profession. The province at the time also established the Professional Code. There are in Quebec 44 professions that are governed by a Code of professional conduct and by specific acts. This Code of professional conduct and these specific acts were primarily established for the purpose of protecting citizens. This is the reason why we are here before you making our representations. We have a governing body, a code of ethics, et cetera. I am giving you a little summary of what professional law is.
With the creation of the Bar Act, the position was that lawyers, given their training, the guarantees they could give the public both in regard to professional responsibility and to training and ability, should be the only persons authorized to intervene before the courts. This did not include notaries, who do not plead before the courts. This does not contradict what Ms McVey stated earlier. It is exactly the same thing with regard to competence and the examination of evidence.
Senator Beaudoin: That does not change substantive law?
Ms Brosseau: No.
Senator Nolin: The Charter is an essential tool in the protection of individuals.
[English]
Senator Joyal: It is always fascinating to listen to your presentations. I have two questions. I will start with the second one, which is related to the preliminary investigation and the admissibility of elements of proof that would not be otherwise admissible. You mention in your brief that that is against the traditional principles that we have followed in our system and could be contrary to the Charter, because there have been many judgments in relation to that.
One of our roles in this committee is to ensure that provisions of bills respect not only the letter, but also the spirit of the Charter. We have had other bills, Bill C-36 and Bill C-7, which had provisions that seemed to introduce elements of "proof" at various stages of legal proceedings that are not founded on principles that we have followed traditionally in terms of weighting the proof.
[Translation]
In Bill C-7, it is the admissibility of a piece of evidence that could be doubtful on a technical basis, in section 146.5 or 146.6. Bill C-36 contains provisions that are more or less equivalent, not technical, but with regard to elements of proof that have not been fully established during preliminary hearings.
[English]
I think it is clause 39 of the bill. Now we have changes that seem to bring it to the preliminary level. It is as if we are bringing, through various bills, an element contrary to what we have traditionally had as the normal evaluation of proof. I refer you to your brief.
[Translation]
I am reading from page five, under Preliminary Inquiry Reform:
... According to clause 29.2, on page 20 of the bill, amending section 540, evidence that would not be admissible at trial may be received if credible or trustworthy in the circumstances of the case. In our view, inadmissible evidence should not be admissible at a preliminary inquiry ...and you state further down:
... we believe that the section ... gives rise to concerns about compliance with Charter protections against self-incrimination and the right to full answer and defence by permitting consideration of inadmissible evidence.[English]
This is a serious allegation. Could you substantiate that with reference to Supreme Court cases so that we have a better illustration of the doubts that you have raise here? This is serious in terms of our role of ensuring that what we do in this committee is in conformity with the Charter.
Ms Perkins-McVey: We also have to look at where this is coming from. The judicial interim release section allows a Justice of the Peace at a bail hearing to receive information that is traditionally hearsay. It uses similar language, "evidence...that the justice considers credible or trustworthy in the circumstances..." The Justice Department appears to be trying to expedite matters so that if a Crown does not have a witness available, they can tender the statement that would otherwise be hearsay.
You asked for a specific case. Fairly recently, about two weeks ago, a case was decided in Toronto. It was a decision of a Provincial Court judge, and I will obtain a copy of that decision for you. It specifically spoke about the dangers of the admissibility of hearsay evidence at a preliminary inquiry. It essentially indicated that it may affect the trial proper down the road. That judge did not have the ability to decide that issue at the time, not having the power to determine Charter issues.
While it is not specifically on point, this case was highlighted in Alan Gold's newsletter because of the dangers that are pointed out of the admissibility of this type of evidence. It could, for example, affect the admissibility of the statement made by the accused. It could affect the right to remain silent. Clearly it pertains to the right to make full answer and defence.
We appreciate that under this section found on page 20 of the bill itself that there are certain provisos that the Justice Department has attempted to put in place to remedy any potential Charter problem. The issue then becomes that it is entirely discretionary by the Justice. We do not believe that the right to make full answer and defence should be such a discretionary process and that the power should be in the hands of the Justice in this way when the clear focus of the bill is to extremely limit the preliminary inquiry.
[Translation]
Ms Brosseau: I share the view of my colleague. It is the only example of the admission of hearsay in exceptional circumstances, on the basis of youth protection laws that often have a hybrid nature, in other words a mix of civil law and criminal law. They have a very particular structure. There is admission of hearsay in very specific contexts, in emergency situations. The problem that we have is that we are dealing here with an Act of general application, that would apply generally - of course the preliminary inquiry could be limited, but it nevertheless is a matter of general application -, a principle. We talked in the context of Bills C-24 and C-36 of an element of contamination of our law. That is one element. It has an impact on the right to full answer and defence, and that would not work.
It seems to me there is a Quebec court of appeal decision dealing with this issue in particular. I will try to find it and forward it to you.
[English]
Senator Joyal: It is always in relation to page 20, clause 29(2), amending section 540 of the Criminal Code.
When you say the section contains some limits that could bring it very close to the "skin" of the Charter - just scratches it just a little - we have to weigh the proportionality.
Is it acceptable, for the matter of expediting the procedure, that we introduce an element in the system that has impact over the overall definition of the right to...
[Translation]
... full answer and defence.
[English]
That is what this is, if I understand correctly. We add foreign elements to the system as we have known it at that level, but we try to make it close to the Charter by maintaining the capacity of a judge to say "yes" or "no," but in fact, we change or tilt fundamentally the system in favour of an accusation. That is what we are doing by introducing this element, if I understand the way it will work in practical terms.
Ms Perkins-McVey: Let us talk about the practical terms, because that is where we have to start.
Do not forget that there are so few cases where the Crown proceeds by indictment that there has already been an extensive screening process by the Crown Attorney to determine that this is one of those most serious cases. Let us start with that objective in mind and realize that this is one of those difficult, serious cases that contain all the aggravating factors we have heard listed in the Criminal Code.
That being said, this is the accused who most vulnerable to the system, whose liberty is most at risk, and therefore, in our view, should have the greatest opportunity to defend himself or herself. That hurdle of how to define this case has already been passed.
Yes, the section does say that there has to have been notice given of the fact that this evidence is to be tendered, if it is to be received. Looking at subsection 8, there has to be reasonable notice of an intention to tender it as well as a copy of the statement. However, all that means is that there has to be a notice. It does not give you a power of procedure of how to challenge it.
I am sure you are all aware of case law developed over time as it pertains to the admissibility of hearsay evidence. It starts with the seminal case of R. v. KGB and Chief Justice Lamer's decision. You must be aware of all the safeguards that have been put in place in determining the admissibility of that evidence. None of these safeguards are inherently within the section.
Second, it indicates that a person can be required to attend for cross-examination. Those are the safeguards that have attempted to be put into this process. However, we believe that we should not even get there, because there is a danger of never getting past that first hurdle. The evidence will be determined as being subject to consideration for committal at that initial stage on the basis of otherwise inadmissible evidence.
We also must remember that the preliminary inquiry - if it is held on these very serious cases - frames how the case will proceed, and it frames it for both the Crown and the defence.
Senator Joyal: I still wrestle with that concept for the reasons you have just said. All of us have an idea of how it works. The preliminary inquiry is really the various elements of the proof and how the trial will develop. It shocks one's mind to go through that procedure with an element that, in fact, tilts the balance against the accused, while in fact we have always wanted the burden of the proof to be on the Crown. However, we are here giving to the Crown an additional element in its arsenal that goes beyond what we normally have had as a starting point for the parties.
Ms Perkins-McVey: We must go back and be concerned about how our current system is working. We have more and more unrepresented accused. Will they know that they have to request a preliminary inquiry? Will they, standing before the court, to be able to make an informed decision about waiver, limitation of statements and issues? No. Yet, the determination has already been made that they are in that serious category of persons, because it is only for those very few indictable offences.
I think we have to be looking at these amendments in light of that and be very concerned about the erosion of the preliminary inquiry. We have a judicially defined obligation of disclosure, but I can tell you that probably on any given day, at the courthouse down the road here, you would find matters where full disclosure is not being made.
The case law gives certain guidelines to the Crown Attorneys about the how and the when and the why of disclosure and gives them some discretionary power without a real statutory obligation setting out a sanction against the Crown for not disclosing. I am not talking simply about precedent defined by the court, but a statutory one. There has to be that ability in those serious cases that are proceeding by indictment to fully determine the scope of the jeopardy of the accused.
If we are eroding other areas of the integrity of the justice system, in our view, by some of the legislation that is before the house, then at least we must allow the accused to be able to fully defend themselves once they get into court.
I have made this comment before. We should not be looking at the development of the judicial system on a bill-by-bill basis. You have to think about what you did last week as well as what will happen next week. Some people may say they are still preserving the preliminary hearing, you simply have to ask for it and this just means they are trying to limit the issue, but this very tinkering of the system is - in our view - the thin edge of the wedge.
So be it. You hybridize; you allow the Crown some discretion to determine which category the offence falls into. Once you are in that higher zone, I believe we have to really ensure that justice is done, and is seen to be done. Otherwise, we will have to come back and deal with section 690, the miscarriage of justice section, a lot more often. I will be back asking for that independent review.
Senator Joyal: I would like you to consider the proposed section 696.2(3), which states:
Despite subsection 11(3) of the Inquiries Act, the Minister of Justice may delegate in writing to any individual the powers of the Minister to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence and otherwise conduct an investigation under subsection (2).
What I do not like about this provision is that it is a procedure akin to a formal trial, or at least it should be. The provision states that the Minister of Justice may delegate "in writing to any individual." Again, I make a parallel to the extradition bill, wherein the Minister of Justice had sole discretion to extradite a Canadian to a country where the death penalty was imposed.
As much as possible, we should remove discretionary powers in such cases. They are the most sensitive cases. They involve the credibility of the system. They involve the trust that people have in the judges. They involve trust in the police. We have seen the horror stories behind the police. However, I will not single out one element. I do not want to do that today. We must protect the overall judicial system, all those involved in the enforcement of the law.
The Minister of Justice has here the discretion to appoint any individual over and above the Inquiries Act. One would think the Minister of Justice would appoint someone who has the capacity of a judge because that person will have to preside over an investigation in as close a procedure as a hearing. Why do we have here "any individual"? In many cases, the Supreme Court has defined the characteristics that a person in that capacity should have. We have known for the last years about the cases of the miscarriage of justice that have entailed the lives of people, if they had been in other countries, and we know those stories.
As much as I can rely on the Governor General in Council to adopt regulations that would implement a procedure that is close to an independent commission, this person is the head of that system. Why should we not vest that person with the qualities that normally should be reflected in the procedure, which is independent? Why should we not have someone with a legal background? After all, the person has to lead an inquiry, probably with lawyers and other related to the legal system. They will have a difficult task because the system tends to defend itself. By reading the stories of those miscarriages of justice, we all know what that implies.
I am puzzled with the word "individual." How would you define the status of that person to better protect the system that is put in place there?
[Translation]
Ms Brosseau: Your question refers us to several phenomena. This provision was introduced to counter negative comments with regard to the independence of the process from the decision of the minister. In our opinion, we must ask ourselves if the mechanism introduced by the Act is sufficient with regard to the independence and transparency of the system. The choice of a single person is to our mind insufficient. It is for this reason that we suggested the establishment of an independent two-level committee. This committee would be made up of at least three persons, namely a lawyer for the defence, a lawyer for the Crown and a citizen, who could be a victims representative. This provision does not fulfill the independence objective.
Furthermore, your line of questioning also relates back to the fact that we must give consideration to the importance of the financial consequences of judicial reviews. Certain claims, flowing from these judicial reviews, are proven to be founded.
Your concern as to the selection of the person by the minister is further emphasized by the monetary element. When you ask if we might contest the choice of this person, I would answer that we should do this on the basis both of the person's training and of the independence or transparency of the process. This is how I see things.
[English]
Ms Perkins-McVey: Our position has been that there must be an independent body. The Minister of Justice cannot be both the prosecutor and the one who will fix the wrong at the same time. The model that the Canadian Bar Association has supported is the Criminal Cases Review Commission in the United Kingdom. That group has its own separate investigators. Once a decision has been made to look into a matter, there is a board that reviews. It consists of both Crown attorneys, retired judges, sitting judges and regional representation. Thus, there is that cross-section of the public as well, that is, representatives of the lay public.
Senator Joyal: In your proposal, you seem to put forward the appointment of a three-person panel, with one representing elements of the legal system. Here we have one person who has to offer the qualities of the three-member panel you mentioned. The problem is that nothing of the sort is required. When you say appoint "anyone," it means anyone - a retired policeman, or retired lawyer or a retired judge. It could be anyone. There are no criteria.
I do not doubt the reputation of the present Minister of Justice or her successor, but we have to look at the law as it is written, especially in the context of a miscarriage of justice. We have to be critical of the person we appoint because of the sensitivity of that person's role.
Ms Perkins-McVey: It should never be one person. I agree with you 100 per cent. That is why we have always supported the fact there must be a board comprising at least three to five persons. The question is that there is no more critical time in the justice system to have that independence and accountability. We are talking about when there has been a wrong done, when our justice system is under scrutiny and attack.
If we want to maintain the integrity of the justice system as a whole, then this should be the time when we ensure it is done, and that it is seen to be done. No one is suggesting that the present, future, or past ministers of justice have hidden agendas. We are dealing with a system that is looking at its own infallibility. Even the defence lawyers involved at the time may not want to think they participated in a wrong, knowingly or unknowingly. It is that time when there needs to be an objective view.
Senator Joyal: I do not want to continue with this. The point has been made. As Madam Chair will remember, the first panel of witnesses we had raised this issue. We have on the agenda today the Department of Justice.
The Chairman: We also have the next panel here from the Canadian Association of Internet Providers and the Canadian Cable Television Association. They are here waiting.
Senator Beaudoin: You said you do not support the bill?
Ms Perkins: Absolutely not. When I said we were very disappointed by the amendment to 690, we could not say it more strongly. There are models out there that could easily be adapted to our use and they have not been adopted. They should be.
[Translation]
Ms Brosseau: This provision simply confirms present procedure. It reproduces the difficulties that have been outlined and denounced. This is why it is unsatisfactory to us. We have suggested to you two models. We are attempting to propose one. But I believe that the overture we are making is that there really must be an independent organization. As my colleague was saying earlier, with section 540, we risk having more difficulties and this process could become even more necessary.
Senator Beaudoin: Your answer is clear.
[English]
The Chairman: Thank you very much for coming before us again so soon after the last time.
We have appearing before us next, from the Canadian Association of Internet Providers, Jay Thomson, President, and from the Canadian Cable Television Association, Lori Assheton-Smith, General Counsel and Vice-President of New Media.
Mr. Jay Thomson, President, Canadian Association of Internet Providers: I am President of the Canadian Association of Internet Providers, based here in Ottawa. We are also called CAIP, for short.
CAIP is the national trade association representing Internet service providers, or ISPs. Our members, which include such large companies as Bell Canada, Telus and AOL Canada, as well as many smaller ISPs across the country, provide approximately 80 per cent of the Internet connections in Canada.
It is a pleasure for me to be here this afternoon, along with my colleague from CCTA. We have worked closely with CCTA on this issue from the start. We are here to reiterate our general support for the provisions of Bill C-15A, which deal with child pornography and child luring on the Internet. At the same time, I must advise you of our real concern that those provisions could have serious but clearly unintended consequences for ISPs and the Internet.
Let me say at the outset that CAIP members take Internet content issues very seriously. We have launched a number of our own self-regulatory and consumer awareness initiatives to help address concerns that Canadians have about illegal and offensive content.
Last February, we joined the Government of Canada in the launch of its Strategy to Promote Safe, Wise and Responsible Internet Use. In fact, we are mentioned 19 times in this document, which outlines how the government, non-profit organizations and the private sector are working together to make the Internet a safer place for Canadians and their families.
At the same event, we launched a protection portal: a fully bilingual educational and public awareness Web site that profiles organizations, communities and individuals who are addressing Internet content issues in a positive and constructive manner. One of those organizations is LiveWires Design in Vancouver, which uses computer games and cartoons to warn children about the dangers of luring on the Internet, something addressed in Bill C-15A. I encourage committee members to visit the portal, which is available through our Web site at www.caip.ca. We are also currently participating, along with CCTA and others, in the multi-sector group working on building a Canadian Internet child pornography hotline.
While we strongly believe that responsible self-regulation is generally the most practical and effective means to address Canadians' concerns about Internet content, we also recognize that there may be some matters where a combination of self-regulation and properly drafted legislation can be of great help to Internet users, law enforcement and ISPs. This is why we generally support the relevant sections of this bill.
Nevertheless, we also have serious problems with this bill as it is drafted. We are aware that the Minister of Justice has assured members of this committee, as well as the Commons committee studying Bill C-15A, that the bill is intended to target child pornographers and predators, and not ISPs. Those are indeed welcome comments, however, with all due respect to the minister, the bill still does not clearly state that. Instead, we fear that the language used in the bill remains so broad that it could permit a court to hold ISPs liable for criminal acts of others over which they have no knowledge or control.
Bill C-15A would amend subsection 163.1(3) of the Criminal Code to add new offences for a person who "transmits" or "makes available" child pornography. Despite the minister's assurances that these terms are clear as regards their impact on ISPs, neither of them is defined or circumscribed.
As a result, we fear that notwithstanding the minister's welcome comments, a Crown prosecutor could still claim that Bill C-15A grants the authority to lay charges against an ISP for the "transmission" or "making available" of someone else's illegal content. Even if a court were to rely on the minister's statement that this was not the intent of the bill and, therefore, not convict - which is in no way guaranteed - the damage would already have been done. The costs of defending such a charge could put many of my members, our smaller ISPs, out of business.
Not only would this be unfair and unjustified, it would run contrary to the approach taken by other democratic countries with similar criminal law principles, namely the U.S. and the European Commission, and it would place Canada at a competitive disadvantage in its efforts to be a leader in the Internet economy.
The Senate has been considering Bill C-36, the anti-terrorism bill, which among other things proposes to amend section 13 of the Canadian Human Rights Act to make it clear that it is illegal to disseminate hate messages over the Internet. I would like to point out that section 13 of the Human Rights Act does clearly provide that an owner or operator of a telecommunications undertaking is not itself liable when someone else uses its facilities to disseminate hate messages.
Unless Bill C-15A is clarified, we will have a situation where an ISP is clearly not liable when some unknown third party uses the ISP's facilities to transmit hate messages but may indeed be held liable if that same third party decides to add images of child pornography. This inconsistency is neither fair nor tenable in Canadian law.
For these reasons, we urge this committee to amend Bill C-15A to clarify that it does not create unintended liability for ISPs. There are at least two ways to do this: you can rely on the same language used in section 13 of the Human Rights Act; or you can use language designed to achieve the same objective, which is contained in the Copyright Act. We have set both these options out in out brief.
Lastly, Bill C-15A would also create a judicially ordered takedown regime for Internet content found by a court to be child pornography. The exact same concept for hate messages is proposed in Bill C-36. It is a good concept; however, there are some small, but serious, technical problems with some of the wording proposed. We have therefore also offered language that easily corrects these problems without changing the substance of the provisions.
In closing, I reiterate that we at CAIP believe that what is intended with these particular amendments to the Criminal Code is a good thing. We urge you, however, to ensure that the good work in this respect does not have unintended, unfair and anti-competitive consequences for small and medium-sized Canadian businesses.
I look forward to your questions.
Ms Lori Assheton-Smith, General Counsel and Vice-President New Media, Canadian Cable Television Association: The CCTA represents over 800 cable systems across Canada. Collectively, our members deliver entertainment, information and telecommunications services to approximately 6 million Canadian households, including over 1 million subscribers of cable high-speed Internet access services. As a world leader in the provision of broadband Internet access, the Canadian cable industry is significantly interested in this bill. As Mr. Thomson has mentioned, we have also consulted with the Canadian Association of Internet Providers in preparing our response and we fully share their concerns and general recommendations.
We are here today for two purposes. First, we want to express our strong and unqualified support for the intent of the proposed changes to the Criminal Code that would criminalize the sexual exploitation of children on the Internet. Those who are responsible for the creation, dissemination and consumption of child pornography should not be treated any differently under the law merely because they use the Internet to commit their offences.
In response to the presence of criminal activity on the Internet, cable ISPs have developed a close and cooperative relationship with law enforcement agencies across Canada. Our members consult frequently with local law enforcement and provide technical expertise through established response teams. We will continue to work actively and cooperatively with law enforcement to enhance the efficiency and effectiveness of our joint efforts. As partners in the fight against child pornography, we are fully supportive of clear, fair and appropriate measures to identify, investigate and prosecute on-line perpetrators.
As noted by the Minister of Justice in her comments to the Commons committee and before this committee, industry self-regulation and education of users are also key elements of an overall strategy to combat child pornography and sexual exploitation of children on the Internet. CCTA is a strong supporter of Industry Canada's Strategy to Promote Safe, Wise and Responsible Internet Use, and we are an active participate in the task force to establish a national Internet hotline to receive and deal with complaints regarding the on-line sexual exploitation of children.
In addition, CCTA members are co-founders and major sponsors of the Media Awareness Network, which provides individuals and families with information and education about safe and responsible Internet use. The cable industry has decades of experience with self-regulation, and we are confident that our excellent track record in this area will be mirrored in our response to the emerging challenges of the Internet environment.
The second reason for our appearance here today is to seek two short but important amendments to the bill, both of which we believe would provide greater clarity as to the intended scope and effect of the legislation.
The first amendment that we are seeking is to the section of the bill that creates the new offences of "transmitting" and "making available" child pornography. CCTA is concerned that, without legislative clarification, these offences could inadvertently capture Internet service providers, or ISPs, even where they do not themselves have knowledge of, or control over, the illegal content. In our view, an ISP should no more be liable for the content that flows through or is stored on its network than should the telephone company be liability for the content of telephone conversations that flow through its wires or the voice-mail messages stored on its computer systems.
We acknowledge in this regard the minister's statement that this bill is not aimed at Internet service providers. It is aimed at child pornographers that use the Internet to commit their crimes. She emphasized that ISPs will not be held liable where they have no knowledge or control over illegal content on their systems. She also confirmed that the legislation does not impose on ISPs an obligation to monitor the content on their systems.
Let me acknowledge that we very much appreciate the minister's statements clarifying the scope of the legislative intent with respect to this bill. Notwithstanding her verbal assurances, however, CCTA remains concerned that, unless the clarification of intent is made explicit in the legislation, ISPs could still be prosecuted and convicted for the criminal acts of third parties.
CCPA is therefore proposing an amendment that would expressly relieve ISPs from criminal liability under proposed section 163.1 of the Code where they merely act as ISPs without any evidence of criminal intent. Of course, if an ISP knowingly and deliberately assisted in the commission of one of the stated offences, that ISP would not be able to avail itself of the proposed exemption. In other words, the amendment that we are proposing would still allow for the investigation and prosecution of any person, including an ISP, who should properly be held responsible for criminal conduct.
The specific language of our proposed amendment is set out in our written brief that was provided in French and English to the committee members. This language is based on a similar provision in the Canadian Copyright Act, which exempts common carriers from liability for copyright infringement by users - an exemption that has been interpreted by the Copyright Board to extend to ISPs. As Mr. Thomson has indicated, similar language is contained in the Human Rights Act with respect to the liability of telecommunications undertakings for the dissemination of hate propaganda. Our proposed amendment is also consistent with the general approach to ISP liability for on-line content adopted in a number of foreign jurisdictions, including the United States and Europe.
The second amendment that we are seeking is a change to the wording of proposed section 164.1, which creates a notice and take-down procedure for alleged child pornography that is hosted on Canadian servers. While we are supportive of the overall procedure, we have serious concerns with the wording of paragraph 164.1(1)(b), which requires an ISP to ensure that the alleged illegal material is "no longer stored on and made available through the computer system."
Our problem with the provision is this: The requirement to ensure that content is no longer stored on an ISP's system would be almost impossible for an ISP to comply with. First, content is often stored in multiple locations. It would be highly impractical and burdensome for an ISP to permanently remove specific material from all of these locations. Second, it is virtually impossible for an ISP to guarantee that any content has been permanently removed from its system. Even if it does delete the impugned content from its servers, the content could be reposted with relative ease almost immediately, either within the ISP's system or on another ISP's system. Clearly, it is simply not feasible for an ISP to actively screen the vast amounts of material on the Internet to ensure that specific content is no longer stored on its system. We have proposed a simple and appropriate way to address this concern, and the precise language is set out in our written brief.
In conclusion, CCTA commends the government for taking this important step to protect the safety and well-being of children on the Internet. We do not take issue with the aim of the legislation, only with its potential scope.
In our view, the amendments that CCTA and CAIP are proposing would add technical and legal clarity to the legislation, recognizing the traditional treatment of telecommunication carriers with respect to the content on their networks. These amendments would also, we believe, more accurately and fairly reflect the intent of the government to render criminally liable only those persons whose are criminally responsible.
I would be pleased to answer any questions that committee members might have.
Senator Beaudoin: Near the end of your presentation you state that Bill C-36 proposes to amend section 13 of the Canadian Human Rights Act to make it clear that it is illegal to disseminate hate messages over the Internet. I would like to know a bit more about that because, as you say, unless Bill C-15A is clarified, we will have a situation where an ISP is clearly not liable when some unknown third party uses the facilities, but may indeed be held liable if the same third party decides to add images of child pornography. That is different in both cases, is it not? We are not experts in that field so could you elaborate more on this?
Mr. Thomson: I am not an expert by any means in the Canadian Human Rights Act. I am not particularly familiar with the legislative history behind these particular sections. Nevertheless, they do clearly recognize that with respect to content that is transmitted through a telecommunications service - which initially included a telephone system but also now would include an Internet system - that that is a carrier function for the provision of the facilities. Often, the provider of those facilities does not know what is the content and cannot find out what is the content.
Senator Beaudoin: Do you say, "often: does not know?
Mr. Thomson: I should clarify that. They never know, unless they take active efforts to listen in on private conversations. They will not know what the content is that is transmitted. It is clear that Parliament has recognized that the provider of telecommunications facilities should not be liable in the circumstances in the Human Rights Act. We are asking for the same recognition in this new legislation.
Senator Beaudoin: Is that for Bill C-15A, to have the same treatment for child pornography?
Mr. Thomson: Exactly. We are arguing in favour of consistency between pieces of legislation.
The Chairman: I would like to make absolutely clear that we are talking about the same thing. Ms Assheton-Smith, you are supporting, I believe, the second amendment particularly that Mr. Thomson has made, and for the senators' benefit, that is on page 3, clause 7, 164.1(1)(b), to delete the words "stored on and," so that (b) would then read, "that the material is no longer made available through the computer system;"?
Ms Assheton-Smith: That is correct.
Senator Pearson: This is an area that in which the general public is interested. We must be able to get a handle on this. Yet, it seems to be that the harder you put a hand on it the more it expands. As you said, there is three times more traffic than when we first talked.
Mr. Thomson, you say you have 80 per cent of the Internet connectors in Canada are covered by your association. Why not 100 per cent? This is really a question of information. I am curious. I know that there are these small people, but who are they and how does it work?
Mr. Thomson: It is an excellent question. The members of our organization provide connectivity to approximately 80 per cent of Canadians on the Internet. We as yet represent even 80 per cent of all ISPs. We would certainly like to be able to but with any industry association it is always a challenge to bring in new members.
We also do not represent, for the most part, the cable television companies, which are offering Internet service as well. Those companies are represented by CCTA.
Senator Pearson: Between of two of you, do you cover the whole spectrum?
Ms Assheton-Smith: Pretty much.
Mr. Thomson: We cover the spectrum in terms of the industry and the different kinds of businesses. We do not cover every company yet, but we are both working on that.
Senator Pearson: I think all of us agree - as indeed does the minister - that no more than the telephone can you be held accountable for what goes on it to some extent. It is just technically impossible and unthinkable.
I am wondering if the possibility that you raised, Ms Assheton-Smith, that there might be an Internet provider who was actually knowingly engaged in this? Are there illicit Internet providers out there lurking in corners?
Ms Assheton-Smith: I do not know of any. In fact, I am not aware of any prosecution of an Internet service provider in Canada to date. I do not know if my colleague can answer.
Mr. Thomson: I would agree with that. We are constantly in communication, both of our organizations, with law enforcement agencies and officials. They certainly have never raised with me the concept of a "bad ISP" who is out there engaged in child pornography. It is always to the contrary, where law endorsement officials advise us that they have great relationships with ISPs who cooperate fully with them in all cases.
Senator Pearson: I vaguely remember a story about a small one in Alberta that was involved some years ago.
Mr. Thomson: There was a case involving a small ISP in the interior of B.C. That was related to hate propaganda and there was a prosecution.
Senator Pearson: Were they closed down?
Senator Joyal: In fact, they were closed down based on community pressure more than anything else.
Senator Pearson: I remember that. I think the chances of the ISPs being pursued obviously seem remote anyway. I understand your concern, but it does not seem likely because it has not really happened in the past. What about in other countries?
Ms Assheton-Smith: Just because it has not happened in the past does not mean it will never happen in the future. There are instances in some countries where ISPs have been prosecuted criminally for the content made available on their systems. This is an area that is somewhat in flux internationally. Many jurisdictions are trying to come to grips with the same issues that Canada is grappling with right now. There are a number of different approaches being tried and implemented. In Europe, this has been an issue that has received a great deal of attention, both with respect to child pornography and with respect to other types of content. They are doing a complete review of what they call notice and take-down procedures in 2003.
There are some preliminary measures in place, but they will be reviewing those to see how effective they are over the next few years. That is an approach that you will probably see in many jurisdictions as they try to grapple with the issues and determine the appropriate balance between liability and flexibility.
Senator Pearson: In a case where the initial Internet provider is in another country but where it operates here, how do the authorities get the person who is accessing pornography here? Do they still need to go through a Canadian-based ISP or can they go through an ISP somewhere else?
Mr. Thomson: The global nature of the Internet means that a Canadian could sign up with an ISP pretty well anywhere in the world to obtain connectivity. Generally speaking, the Canadians sign up with Canadian ISPs because either they are in their community or they are a company that is well-known within the country.
A Canadian would have to access the Internet first, which they would do through their ISP, to be able to download, view or access content that is out there either on the World Wide Web or through e-mail or news groups or whatever. That content may very well be hosted or originate in another country. Nevertheless, a Canadian with an Internet connection could get access to it.
Senator Pearson: Are you members of international organizations that are trying to get a grip on some of this stuff?
Mr. Thomson: Yes, we are. We are part of a loose organization called the World Internet Forum, which is a collection of ISP associations such as ours from other countries. We also have a memorandum of understanding with the European ISP association to work together on issues of common concern, including this one.
Senator Pearson: I know the Europeans have been trying to get a handle on it, but I tend to be wary about some of the other countries that use it. If you were a small ISP in some small country, is there potential profit in being a server?
Mr. Thomson: Arguably, there is. There are people out there that will pay to access certain types of material. There may be a business case for providing that, whether it is child pornography or gambling or whatever it might be. They are not typically bad ISPs because the ISP is providing the connectivity. It is those organizations or individuals that are using the ISPs' resources and facilities to offer the illegal service for a charge.
Senator Pearson: It is a very complex area and hard to get a handle on. Thank you very much.
Senator Rivest: My first question is, what is better, cable or ISP?
Ms Assheton-Smith: I decline to comment on that issue at this time.
Mr. Thomson: I would gladly talk about it, but I had better not.
Senator Rivest: Are you not reassured by the statement made by the minister that all the criminal offences in this bill, particularly those dealing with child pornography, are governed by the mens rea - knowingly, intentionally? Is that not sufficient for you?
Ms Assheton-Smith: Is it helpful? Absolutely. We are very pleased to get that sort of clarification from the minister. Certainly, as we move forward, if we ever find ourselves needing to explain the legislative intent of this section, going back to the committee transcript will be helpful.
Nevertheless, that is not as determinative as the plain words in the statute and we would prefer that that explanation be made explicit. Obviously, if that is not going to happen, we will look to this committee transcript as proof of legislative intent. It is reassuring, yes. I am reassured. I would still prefer to see that in a more ironclad statement inside the legislation, of course.
Mr. Thomson: The difficulty we would face is that the legislative history would not be tabled until we got to a court case.
Senator Rivest: And the damage would be done.
Mr. Thomson: Correct.
Senator Beaudoin: The mens rea is fundamental in criminal law. What would you propose to render it more clear-cut, more evident, more obvious?
Ms Assheton-Smith: The proposal is the language to which Mr. Thomson alluded - either the language in the Human Rights Act or the Copyright Act that explicitly states where the ISP is merely providing the facilities or the means for someone else to commit the offence, that they are not implicated in the commission of that offence. That is what we are asking for.
Senator Beaudoin: You would be satisfied with that?
Ms Assheton-Smith: Yes.
Mr. Thomson: I am not an expert in international criminal law, let alone Canadian criminal law. However, I understand that other countries - such as the U.S. and many European countries - that have criminal principles similar to ours, nevertheless themselves feel that it is necessary to include clarification in either their legislation or their directives with respect to the liability of ISPs. If other countries that have the same legal principles as we do feel it is necessary, then we feel it is necessary.
Senator Beaudoin: I have always considered criminal law as a domain of law where we should be very precise. After all, it is a crime.
Mr. Thomson: Yes.
The Chairman: Thank you very much. We will proceed to our last panel today, which is from the Department of Justice. They will solve all our problems, answer all our questions, and set us straight.
Mr. Howard Bebbington, Counsel, Criminal Law Policy Section: Madam Chair, honourable senators, you will recall that last Thursday William Trudell from the Canadian Council of Criminal Defence Lawyers appeared before you. In the context of his testimony, he referred to a consultation the Department of Justice conducted with the defence bar and Crown in 1999. One of the subjects of that consultation was preliminary inquiry reform. Indeed, the major topic was criminal procedure reform. Mr. Trudell referred to statistics that had been provided by the department with respect to preliminary inquiries and that prompted the committee's request that the Department of Justice provide what statistics we could with respect to this issue.
I am happy to say we can respond in three ways to your request this evening. I have tabled with your Clerk copies of a 1993 study on the preliminary inquiry. I have 12 copies in English and 12 in French. The title is "A Survey of the Preliminary Inquiry in Canada."
In addition to this, I have with me this afternoon two members of our Research and Statistics Division, Stephen Mihorean, Senior Statistician with the Research and Statistics Division of the Department of Justice, and Dr. Kwing Hung, Senior Statistician, again with the research and statistics division of the Department of Justice.
We would like respond to your request this afternoon by having Dr. Hung talk to you about the data that was tabled at the 1999 consultation. In addition to that, these fine gentlemen have spent some of their time since last Thursday trying to gather some new, more updated data on the preliminary inquiry. Again, the study I have given you copies of was 1993, so it is a little dated. The data to which Mr. Trudell referred are 1999. Again, that is dated with some limitations. Dr. Hung has spent some time trying to obtain, from the Canadian Centre of Justice Statistics, more data to update the picture. I will call on Dr. Hung to address you on these points.
Mr. C. Kwing Hung, Senior Statistician, Research and Statistics Division, Department of Justice: I will briefly speak on the most recent data that we have from the Canadian Centre of Justice. The latest data is for the fiscal year 1999-2000, from Adult Criminal Court Survey.
The Chairman: Which graphs are you referring to?
Mr. Hung: I am beginning with the graphs that indicate the proportion of court cases with preliminary inquiry, 1999. I will refer to these few graphs, and I will draw attention to some of the graphs in the previous report with tables that was reported in 1999. The first graph is called "Results of Preliminary Hearings." There are five graphs or tables that we prepared last week.
The first graph shows proportional court cases with preliminary inquiry. We can see that only 6 per cent of the cases involved preliminary inquiries. However, the total includes cases that are hybrid summary or summary cases. Please note that the survey covers only 80 per cent of total Canadian case law for the provincial and territorial criminal courts in only nine jurisdictions. We do not have data from B.C., Manitoba, New Brunswick and Nunavut.
We have superior court data in two jurisdictions - Alberta and Yukon, which cover about 10 per cent of Canada. If we use the 80 per cent for the estimate, there are about 26,000 cases that require preliminary inquiry in adult criminal courts.
Of course, you may deem the 6 per cent figure low, but if you look at some selected offences - noted on page 2 - you will note that the percentage of preliminary inquiry for more serious offences is much higher. For example, for attempted murder, it is 39 per cent; for sexual assault, it is 25 per cent. We have five examples.
The Chairman: These are the five highest categories?
Mr. Hung: No, they are not. Murder would be higher, but because there are fewer such cases, it is less representative. We have selected ones with higher representation numbers.
The third one shows that the preliminary inquiry can have more than one appearance. Our report shows that we have 42 per cent of the cases with only one appearance, while 7 per cent of the cases had six or more appearances. If we estimate the average, it is about 2.5 appearances. There are two to three appearances per preliminary inquiry.
The next graph talks about the position of cases with a preliminary inquiry: Guilty, 62 per cent; 8 per cent sent to superior court; and 21 per cent stay or withdrawn. If you look at this graph alone, you do not know whether there is any change - whether there is a preliminary inquiry versus no preliminary inquiry. I have provided you with the next one with which you can compare.
You can see the cases with the preliminary inquiry compared to no preliminary inquiry. The proportion of guilty verdict is about the same - slightly higher with those who had the preliminary inquiry. However, there are many more sent to superior court as a result of the preliminary inquiry. There are fewer cases with a stay or withdrawn status and there are slightly higher numbers with acquitted status. Those are some of the effects of the preliminary inquiry from this preliminary data.
The data that we provided for 1999 contains many more details. For example, the first one shows the results of preliminary hearings. You will note that 58 per cent received the decision to send the case to trial in superior court.
In the next one, you can see whether the preliminary inquiry had some effect on the pleas. Approximately 20 per cent pled guilty after the preliminary inquiry, about 15 per cent were charged as a result of the preliminary inquiry, 10 per cent pled guilty in the preliminary inquiry, and 1 to 2 per cent pled guilty to a lesser charge, because of the preliminary inquiry.
I will quickly go through the graphs, the first of which contains figures for guilty findings. You will note the effect of the preliminary inquiry - there are many more guilty pleas. However, if you add the two, you will see that the proportion found guilty is just slightly higher than the cases with no preliminary hearings.
Next, we see the final results of the cases. You can actually see a pattern similar to the one in the last table for the most recent data. You can see that there are more guilty pleas, but the proportion of cases that are found guilty is approximately the same; there are a few more acquittals because of the preliminary inquiries; and there are fewer stays and fewer cases withdrawn, but many more are transferred to Superior Court.
As to the figures for indictable proportion of prison sentences, the preliminary inquiry seems to have no effect on this category. The percentage sent to prison is approximately the same.
The next group of figures is slightly different. Even though the proportion is similar, the prison sentences are much longer for those cases where there were preliminary inquiries. This is probably not just the effect of the preliminary inquiries, but rather that they had preliminary inquiries because they were more serious cases.
We move now to median time delays. There are three categories: First, no preliminary inquiry with a trial; second, some preliminary inquiry, without a trial - it probably ended after the preliminary inquiry; and third, preliminary inquiry with a trial. The average time delay is about five months for the last category. That is three months longer than the cases with no preliminary inquiry and trial.
Next, we can see the data for Crown elections, where you will note all the hybrid offences. In 87 per cent, the Crown elected to proceed summarily.
The next category is defence election where 20 per cent opt for superior court, judge and jury, and 20 per cent opt for judge alone in superior court.
The last category shows short and long time delays. That is similar to the prior graph. There would be longer delays with both preliminary inquiry and trial.
If you have time to read the report, you will see more details. We can duplicate what we did in 1999 with the present data, but that requires a special request and some time delays for us to do that.
The Chairman: We appreciate you putting this together for us so quickly. There is a significant amount of data for us to go through. I am sure Senator Nolin, who asked for this information, is particularly happy.
Senator Nolin: I will go through it.
Senator Andreychuk: Why did you signal that if you have a preliminary inquiry, that that may lengthen or shorten sentence? Why was that one of the study areas? I would have hoped that it would be sentencing principles that drive the time and the methodology of length or type of sentence, as opposed to whether you have a preliminary inquiry or not. Were you trying to get at a bias?
Dr. Hung: As I explained, you can see that the proportion of convicted individuals sent to prison is similar, except that the cases were more serious. We did not draw any conclusions based on this portion.
Senator Andreychuk: Why was that question asked?
Mr. Bebbington: I agree with you entirely, senator. That was not a main focus. To some extent, dealing with statistics is a question of getting whatever data is available. The court survey has a wealth of data with respect to sentencing, but not a great deal of data with respect to structural issues.
To some extent, it is a matter of availability. Its only relevance is that it confirms the notion that preliminary inquiries are generally held only in the more serious cases, such as homicide, where you expect the sentence to be longer.
It is interesting to note that defence counsel most often elects provincial court trial. The figure given was 60 per cent. Not only the Crown, but also the defence counsel is self-selecting. The cases where preliminary inquiries are relevant are the most serious. That shows in the sentence length. That was not a main focus of ours in attempting to gather this information.
Honourable senators, your pleasure is our command this evening. I am presuming you have heard enough about the bill to obviate the need for a presentation from us in terms of the content. I would suggest that perhaps the most productive use of our time would be to answer the questions you have as a result of the evidence you heard or of your own reviews of the bill.
The Chairman: If you could deal with some of the issues that were brought up during the hearings, I am sure you are on top of the matters that were brought up. I will make a list of senators who wish to ask you questions.
Mr. Bebbington: Honourable senators, a number of issues have been raised. My sense of the testimony is that there have been questions in regard to the protection of children amendments with respect to Internet service providers. Ms Lafontaine will speak to those.
There have also been issues raised with respect to the section 690 process and Ms McFadyen will speak to those.
Honourable senators will have observed from the materials that we provided to you today that the department was involved in the thorough review throughout the 1990s of the continued existence of the preliminary inquiry. This gave rise to a consultation document in 1994. We have been consulting on this matter throughout the decade in the context of criminal procedure conform.
The one conclusion I can give you is that there is no consensus on the existence of preliminary inquiry. Honourable senators heard testimony from representatives from the Canadian Association of Chiefs of Police, saying, "Get rid of it, it is a vestige of a system that has no usefulness, particularly in the context of Stinchcombe." Equally strongly on the other side, representatives from the Canadian Bar Association, the Barreau du Québec and the Canadian Council of Criminal Defence Lawyers said, "No, keep it exactly as it is."
Many provincial attorneys general are asking the Department of Justice to review this provision again and many would support its abolition on the premise or notion that having no preliminary inquiry will shorten the length of those proceedings.
In our consultations, we have discovered the issue is certainly not that clear. Given the lack of consensus, the minister has attempted in Bill C-15A to walk a middle, balanced ground. That is, to provide the courts and parties with some tools that would allow them to shape the preliminary inquiry, to reserve preliminary inquiries for those cases where they have value, and to tailor them to the specific issues that need to be covered.
Those are the amendments before you in Bill C-15A. Some parties to the debate view these amendments as having no teeth. If an accused wishes a preliminary inquiry, he or she may request one and may have one. There was a question about how an unrepresented accused person would know that a preliminary inquiry is an option. It is clear that when the election is put, the accused will know that they have the choice.
When an accused person does request a preliminary inquiry, there is an onus on the party requesting - whether Crown or defence - to produce a list of the types of evidence they wish to see covered and the types of witnesses. There is also a provision that will allow the court to convene a hearing with the parties to attempt to come to some consensual understanding of what the preliminary inquiry should cover. A pro forma preliminary that goes on for a long period of time, and touches all of the usual things, that adds nothing to the process, can be avoided in this way, again, by agreement of the parties. If the accused wishes to insist on a preliminary inquiry, he or she may have one. We have not taken that right away in any shape or form.
The provisions with respect to evidence have been much debated. We have attempted to allow the provincial court judge conducting the preliminary to admit evidence that the judge considers credible or trustworthy in the circumstances. This is the test that is evolving in what I would call the liberalized attitude to the admission of evidence at all levels. There was a reference to Regina v. KGB; there are other cases as well. This test is not an unfamiliar one.
In addition to that notion, we have added the two protections of requiring the party adducing that evidence to give notice and we are including a provision that says the court shall order that the witness appear where the accused, for instance, wishes to cross-examine or examine that witness.
Again, this is a moderate amendment that attempts to get the parties to move on a consensual basis to make the preliminary inquiry effective and efficient. Again, the notion here with respect to the evidentiary change is that in some cases, it makes more sense at the preliminary - which is a pre-screening process - to adduce a written document as opposed to requiring a witness to appear in person and testify. However, if the accused wishes to have that witness present, they apply to the court and the court shall so order. The protection is there.
However, we were thinking of a circumstance such as allowing a letter from a doctor as opposed to having that doctor take a day off from surgery to sit at a preliminary. Another example would be a police officer would not be required to give testimony and be subject to examination and cross-examination. In the context of the balance, Senator Joyal had concerns about the Charter. This provision applies only to the preliminary inquiry. It does not apply to the trial. That evidence goes to the question or the test outlined by the Supreme Court of Canada in Sheppard as to whether or not there is some evidence to commit the individual for trial. It does not affect the threshold or the evidentiary issue at the trial itself.
With those protections and the fact that it is only applicable to the preliminary, it is a very surgical and judicious tool that would allow the court and the parties to agree to expedite the preliminary inquiry, to focus on what is necessary and not conduct a pro forma preliminary where there is no value added.
There have been other issues with respect to the preliminary and, I must say, you may have questions lingering as a result of those.
At this moment, I will pause and entertain any questions you may have with respect to that part of the bill.
Senator Joyal: You say that it is surgical. We have been mentioning around the table that we find comparable proposals in other bills coming from the Department of Justice. We are concerned that, in the recent past, we have had the kind of approach whereby the right to a traditional full defence has been eroded in comparison to what we had in the past. It is not only with regard to this bill; there are similar provisions in other bills. We have mentioned them. They are in bills coming from your department.
We are concerned about the impact or the culture that we are introducing in the penal code whereby elements comparable to those find their way into the system. As I mentioned, it is not what we used to do and what we used to accept.
For the sake of comfort, I think the principle of proportionality should be weighed. Where an accused person could find himself or herself in a position, the elements of justice that we have must be weighed to ensure we are making the right decision.
As I understand it, to expedite the procedure is a worthwhile objective. We all hear people complaining about the fact that justice is slow and so forth. However, there is no doubt, on the other hand, that we must maintain the balance as a protection that is afforded to someone who is not yet guilty. The system should be working to maintain the elements of the presumption of innocence, not guilt. It is up to the Crown to prove that the person is guilty.
When we are introduce an element that, as you said, is an element of the procedure but is nevertheless a serious legal procedure, it is not just a fact-finding mission whereby no one is hurt. You have here a person whose rights are at stake. It has to be demonstrated that what we are doing is in compliance with the moral weight of the Charter.
I have some problems with the fact that we introduce amendments to the Criminal Code or the juvenile system in various bills that we say are in compliance with the Charter but are against the spirit of the Charter. This goes against the moral value that the Charter gives to our society. It has changed the criminal culture of the system. That is what concerns me.
There might be very good motives for introducing this, as there are for other bills, but we must look at the whole spectrum of what we are doing in the system. As I say, when you do it bit by bit, it does not seem a big thing. However, when you put all the bills together, you ask what we are doing to the system.
That is essentially what I would like you to comment on. It is puzzling to have that question repeatedly in the last months.
Mr. Bebbington: I am not sure I can give you a completely satisfactory answer.
We have before us today Bill C-15A and, in fact, these provisions apply to all criminal cases. These are general amendments. They are not specific or special-purpose amendments such as the Bill C-36 provisions you have been looking at.
I agree with you totally. The minister is conscious of the responsibility to provide and maintain a fair and balanced system. The right to full and fair defence is absolutely critical. It is my view that the amendments proposed here do not impair those rights in any way.
We are talking about a screening mechanism, the preliminary inquiry that occurs in something like 6 per cent of the cases. The information is tabled with you today. I was looking back at the Law Reform Commission's work, going back two decades. It is interesting that that percentage has remained somewhat stable. Only in 6 per cent of cases are there preliminary inquiries. That means that the vast majority of criminal cases proceed to a fair trial and fair determination of the matter without a preliminary inquiry.
We are not proposing the abolition, elimination or even restriction in any significant way of the preliminary inquiry. The right to have a preliminary continues today, and it will before and after Bill C-15A, unrestricted. A party must request one, but where they do, they have a full preliminary inquiry, if that is their wish.
The notion with respect to the evidentiary provision to some extent is intended to codify a practice that exists already. There is already an ability that exists with respect to a preliminary inquiry to allow some flexibility with respect to the evidence.
Again, our proposed amendment provides two very important safeguards with respect to that. One is the notice requirement, but the other is the ability of the party to insist on cross-examination of the individual. Again, ultimately, the evidence that is led at the preliminary goes to the question of whether there is sufficient evidence to commit for trial. That evidence is not adduced, and this slightly expanded rule of evidence will not produce evidence that, by that reason, is admissible in trial. It will not affect that standard.
I agree with your concern and your sentiment that we must look at all these changes together. We must be concerned about lowering the threshold or standard.
I would not characterize any of the amendments in Bill C-15A as being consistent with the letter of the Charter but violating the spirit. In my view, they are all consistent with both the letter and the spirit of the law.
We are attempting here to increase the efficiency of the system. We are attempting to contribute to expeditious proceedings. Again, there is a Charter balance there that is important to preserve. Honourable senators will be aware of the Askov case and the great problems in the system when there are unconscionable delays that lead to staying of charges. There are cases that do not get a determination at all in the courts because of undue delay in the system. We have to be continuously vigilant about that.
When the Minister was here, she spoke about criminal procedure reform as being a work in progress, an iterative process. The amendments in Bill C-15A are the third wave of criminal procedural reform and I can guarantee there will be subsequent waves as well. In each successive wave, we attempt to review the system and find the potentials for delay and inefficiency in the system and rectify them without in any way reducing the measure of full and fair defence.
The question of whether we have achieved the right balance is a question in the discretion of this committee. Your judgment is extremely important on that issue. In my respectful submission, we have attempted here to achieve a balance on that issue.
Senator Joyal: As has been noted by some colleagues around the table and previous witnesses, the cases that find themselves at trial with a preliminary inquiry are usually the most serious ones.
What comes out of the preliminary inquiry is very important. It gets reported. It is an element of the justice system that is public. It is for the most serious crimes, such as attempted murder and sexual assault.
I am very cautious about the kind of media that accompanies the criminal system in Canada. Our colleague, Senator Rivest, called the anti-gang bill, a tabloid bill. I am not sure I agree with him fully, but there are elements of reality. The media essentially covers these types of crimes. They do not cover drunken driving unless you are a senator, a minister, an MP or a public personality. Those crimes are the serious ones. They are the ones that get covered.
Since we have a press that is very eager to cover that, we have to be certain that the person who is in a preliminary inquiry gets protected. Those are the rights of that person. Put yourself in the shoes of someone who would face an accusation of that nature. It is very serious. We are talking about the most serious crimes.
I do not want to lecture you, but we cannot take those things lightly because they involve, at the end of it, the reputation of the person, his entourage, and the way the system works.
There is much at stake in that kind of procedure. As the statistics showed, and as you said earlier, it seems to be limited to a small number of cases. However, they are the most important cases.
The Charter does not protect me today. I do not need the Charter at the moment, as I speak to you, but if I need the Charter some day, I will be in a minority position. When one is in a minority position is when one needs the protection of the Charter. It is not when everything is going well, and you are sailing with the social trends of our time.
When the Canadian Bar tells us that there may be a Charter issue there, then we must think twice, as a House of Parliament, before we move on this.
Mr. Bebbington: I agree completely, senator. We take these issues seriously. There are a number of people in the justice system who believe the preliminary inquiry should be repealed. We have listened to the defence bar and others who argue that we need to maintain it for the serious cases you have mentioned.
Let me provide balance and context for the picture facing the Minister in dealing with these issues. Victims and witnesses often complain about the preliminary inquiry because it provides another context in which they must appear in public, relive the incident and give evidence with respect to the proceedings. Part of the objectives of our criminal procedure reform is to achieve some balance of the interests and the rights of the victims as well.
Mr. Trudell referred to a conversation that he had had with a lawyer from Nunavut. I am glad that he did, because I want to share something with you.
When I was involved with the Nunavut single-level trial court bill, I had an opportunity to do some consultations in the North. I was struck by the consultation responses we got from the Inuit people where there is a cultural disinclination to stand up anywhere publicly and accuse another person. To start, as senators are aware, there is a disinclination to participate in an adversarial justice system where it requires one to stand up and accuse a person of something.
For example, a woman from a small community who has been the victim of sexual assault has to tell her story to the police, to the elders in the community and to the Crown attorney, repeatedly, on several occasions. Then she has to stand up it at the preliminary inquiry, and to give that evidence again, following which she is told that that the process is not over and it must all be done again in trial.
One of the rationales for the amendments in our bill is to try to strike a balance between the full and fair defence rights of the accused and the situation with respect to the concerns about privacy and the concerns about revictimizing the victims and witnesses. If our amendments can allow a court to fully and fairly determine the issue of committal to stand trial, based on documentary evidence where the defence has the right to call for that witness for cross-examination if they feel the need to, and where we can allow that to occur in some cases to alleviate the need and expense of having a witness appear at the preliminary inquiry, then we believe that is a worthwhile improvement to the system. This would be subject to the safeguard that we have indicated so that the defendants may have the cross-examination, if they feel it is necessary.
I hope I have responded to your concern. It is a question of balance between the competing interests in the system and the competing views that exist.
Senator Andreychuk: We have been discussing this issue of preliminary inquiry in many conferences and in discussions with groups of judges.
In one of the meetings, we discussed juggling the caseloads - particularly in rural centres - and the question of whether you must release a judge to do the preliminary and another one to do the trial. Have you taken that into account as well? Have you taken into account that the administration of justice has a measure of just and fair balance in it?
Mr. Bebbington: I am not sure I can usefully add anything to that. I adopt everything you said. It is important to try to achieve a balance in terms of the resources and their allocation.
There are many people who believe we should reform the system to entirely dispense with preliminaries and have trials before provision court judges. As the honourable senator is particularly aware, over the last number of decades, there has been a big change in the provincial court bench. They are well trained and professional.
Senator Andreychuk: You mean they are better trained now than when I was there 20 years ago?
Mr. Bebbington: No, certainly not.
Senator Andreychuk: It is true.
Mr. Bebbington: I was talking more in historical terms.
Senator Andreychuk: They are treated with more respect and I think that they are more legitimized in the system. I did start out as a magistrate, with very little respect. We were transferred into a provincial court and it took some time to build the things around a judge that are necessary. We did not even have the tools when we started, let alone the experiences and the expertise.
Mr. Bebbington: I was referring to the days when magistrates did not even require legal training, many years ago.
Senator Andreychuk: One such person just retired in Alberta.
Mr. Bebbington: Those things have changed. Many people still believe that a trial before a provincial court judge without a preliminary inquiry is a full and fair measure of justice in our system.
We are not proposing that at this point. We are not proposing to abolish the preliminary inquiry. We are retaining it, and it will continue to exist. However, we must recognize the concerns of victims and witnesses and the limits on time and resources within the system. The preliminary must occur before you can move forward into the trial. That must be weighed into the balance.
Senator Nolin: What were the provinces' arguments to ask for the change in the procedure and to abolish the preliminary inquiry?
Mr. Bebbington: I would not presume to speak for the provincial attorneys general, but a number of them are of the view that we should abolish the preliminary. Their primary position is that with the Supreme Court of Canada case in Askov, a constitutional obligation on the Crown to disclose all of the evidence relevant to the case, there is no longer the same need for a preliminary inquiry.
The test for committal for trial is quite low, as many of you are aware. Both Crown and defence are not sure it fills a useful screening function. Its function as a measure of disclosure and its function as a measure of discovery are quite relevant functions.
Provincial attorneys general believe that with the crown being required constitutionally to make full disclosure, the disclosure function of the preliminary inquiry is no longer relevant and that given the time and resource it takes, it ought to be abolished. That is their main position with respect to that. There are a number of arguments on both sides of that issue.
Bill C-15A tries to strike a balance between those two perspectives. It retains the full right to a full preliminary if that is the party's wish. We attempt to give the judge, and the parties, some tools to selectively determine when a preliminary will be held, and to selectively determine how long or how full that preliminary inquiry needs to be in those cases where it is provided.
Senator Nolin: I heard your answer to Senator Joyal's question concerning the proposed section 540(7). Give me an example of what could be "otherwise inadmissible"?
It states, in French:
[Translation]
And I quote:
A justice acting under this part may receive as evidence any information that would not otherwise be admissible...
I never practised criminal law, but I do not understand this.
[English]
Mr. Bebbington: Essentially, the notion there is written statements that would not be admissible because of their hearsay value. That is the kind of thing that this provision is aimed at. Again, it is to facilitate the provision of documents rather than calling witnesses themselves, subject to the protection that the accused may insist on the calling of that individual for cross-examination.
[Translation]
Senator Nolin: You made reference to the statements of Mr. Trudell and of the representatives of the Quebec Bar and the Canadian Bar who all argued very convincingly that we should not tamper with the provisions regarding the preliminary inquiry. What strikes me is that your employees are members of the Quebec Bar and the Canadian Bar. The lawyers of your department are members of those bars. However, to become a member of the Canadian Bar you have to apply, it is not automatic. Some people might say that lawyers do this out of self interest, to make more money. I, for one, believe lawyers have a far greater sense of their professional duty. Their argument for maintaining the preliminary inquiry unchanged sounds good to me. Do you possess information that is different from that used by the two bars?
[English]
Mr. Bebbington: I certainly believe that we ought to give great weight and respect to the views of both the Barreau and the CBA with respect to this issue. However, lawyers - particularly members of the defence bar - like the system the way it is. They would not like us to change things or to remove tools that they have at their disposal. As Ms Perkins-McVey indicated, she is aware that there is a strong move in the system to repeal the preliminary. We are not doing that. We have listened to their views.
We must continually re-evaluate the system to see if there are changes that should be made. In this particular case with respect to the evidentiary provision if, for the purpose only of the preliminary inquiry, we can relieve some witnesses of the requirement to appear and adduce written testimony in documents, we believe that will save time and money for everyone in the system. Of course, that individual would be available to appear at trial and that evidence can be dealt with in that way.
The changes here to the preliminary are very small. To some extent, they are based on procedures and practices that go on now with the preliminary inquiry. We do not see this as a large change.
Senator Nolin: In the proposed section 537(1.1), you want to give the authority to the judge to maintain peace and order in his court. You want to give him the authority to cut proceedings short. It was argued by Mr. Trudell that that authority is provided already to the court. Do they not have that authority? Why would you add that amendment?
Mr. Bebbington: Thank you for that question. This is exactly true. It is already in the discretion of a justice providing in a preliminary inquiry. The difficulty is that not all judges will intervene without a specific provision in the code to which counsel can refer.
This is saying that a justice shall order "the immediate cessation of any part of an examination or cross-examination of a witness that is, in the opinion of the justice, abusive, too repetitive or otherwise inappropriate. This is a pretty high threshold. This is a case where one of the lawyers is dealing with a witness in a completely inappropriate way. We believe this is a codification of the present law, but it adds value to the system to have a specific provision that counsel may refer the judge or justice to give them the basis for intervening where appropriate.
Again, the threshold is quite high. This is not appropriate behaviour. Mr. Trudell was talking about there being no need for these cases; it is simply a matter of good practice. Unfortunately, not all lawyers are at the level of Mr. Trudell in terms of their practice. If they were, we would probably not need much of what is in the Criminal Code. However, in some cases, the judge must be shown specific authority in the Criminal Code that will allow them to intervene. That is the purpose of this provision.
Senator Joyal: Let me take an example, to illustrate subparagraph (7). Proof of hearsay would not be admissible in a trial for attempted murder, for example. According to this provision, it could now be admissible.
Mr. Bebbington: Only on the preliminary inquiry.
Senator Joyal: Exactly. Therefore, the proof is admissible on the preliminary inquiry. Then, subparagraph (9) states:
The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for examination or cross-examination with respect to information intended to be tendered as evidence under subsection (7).
Senator Nolin: Yes, now it is evidence.
Senator Joyal: I am trying to understand how those two paragraphs will work. You will compel somebody to come to testify. If that person does not testify, he or she could be found guilty of contempt of court. That person will come to testify on information in relation to subparagraph (7), which is information that is not admissible, in fact, in a procedure. I do not understand how you can, on proof of hearsay, for instance, that is not admissible, compel that person to come and testify on it.
Mr. Bebbington: I would be happy to clarify that, senator. It is intended here that the Crown would, for instance, instead of attempting to call a doctor to give up a day of surgery to attend to give evidence, attempt to tender a written letter. Under this provision, the Crown must give notice to the defence. The defence says, "The letter is not good enough. I want to be able to examine that individual." The Crown says, "Sorry, this allows me to tender the letter." The defence applies to the court and the justice, on application, shall order the attendance of the doctor to testify, instead of the letter, instead of the written document. What is intended in subsection (9) of this proposed amendment is that where the party objects to the tendering of the hearsay - the written statement - that they have the protection, the ability to demand that the individual appear and give evidence, as opposed to the written document being tendered.
Senator Joyal: There are various elements of "proof" that are not admissible in those proceedings - those 6 per cent of cases, the most serious cases - that will now be found admissible. A person can be subjected to contempt while, in fact, at the trial level, that person would not be compellable to testify. That is what I find a little difficult to reconcile.
I am trying to understand how it will work in practice. A person cannot be compelled to come to testify on hearsay at a trial.
Mr. Bebbington: No.
Senator Joyal: But that person at the preliminary inquiry can be compelled to testify.
Senator Nolin: Mr. Bebbington answered that question.
Senator Andreychuk: Sometimes hearsay is admissible, but not for its contents, but for the fact that it was stated.
Mr. Bebbington: There are a number of exceptions to the hearsay rule, which we do not need to review here. Again, the trend in the law has been a liberalization of rules of evidence. That is, moving away from strict, rigid rules of admissibility to allow courts to admit any evidence the court considers credible or trustworthy in the circumstances. That is the test we have incorporated in proposed subsection (7). As Ms Perkins-McVey indicated, it already exists in the Criminal Code in the context of bail hearings.
The way this provision is intended to work is that a party, instead of calling a witness to appear in person to give viva voce evidence, will attempt to tender that evidence through a written form instead - whether it be a letter from a doctor, a police officer's note or some sort of statement. They must give notice of that to the other party. Where the other party feels that is not adequate or satisfactory, that other party may apply to the judge to have the person appear and give evidence, rather than the written statement. It is a protection that would mean that the inadmissible hearsay is not admitted; it is not offered. The court can require the person to appear to give live evidence.
It is not an attempt to expand dramatically the scope of the type of evidence that may be permitted at a preliminary hearing. It is an attempt to provide another means by which this evidence may be adduced, but only at the preliminary inquiry stage, to allow for greater use of documentary evidence, rather than live testimony, which requires disadvantaging the individual to come and give testimony as well. Proposed subsection (9) is intended to give the other party the option of insisting that, instead of the written document, the actual witness be required to attend - not to give hearsay evidence but to give evidence that he or she would have given at the trial on the matter.
The Chairman: Section 715.1 of the Criminal Code states that evidence at a preliminary inquiry may be read at a trial in certain cases. This particular bill has not altered section 715.1. It seems to me, on reading this section, that in some cases hearsay evidence from a preliminary hearing could be entered into evidence.
Mr. Bebbington: That is a very good question, senator. If I could refer you to clause 72 on page 39 of the bill, we do indeed amend section 715 of the code for that very purpose so that this broader scope of evidence is not admitted in the trial.
The Chairman: Thank you.
Senator Beaudoin: Following along Senator Joyal's question, the Charter of Rights and Freedoms applies equally at the level of the preliminary inquiry. It is the same principle. I am a bit surprised that is rejected at the trial but, because we are only at the preliminary inquiry, it is acceptable. The same principles of the Charter apply at all times.
Another point that worries me is the imprecision. We have had some cases on the imprecision of the drafting of legislation. I cannot go further than that. I am a bit worried by the wording of this.
[Translation]
... otherwise inadmissible ...[English]
It is one thing to say, "If it is just to establish a fact, that is all right. It is not for the intention. It is only for a fact." Is this really useful? You can go further than that with the Charter that we have.
Mr. Bebbington: Of course the Charter applies at the preliminary as well as at the trial, although I find it interesting that last Thursday the Supreme Court of Canada issued a decision in R. vs. Hynes where that court split 5 to 4 on the issue of the preliminary inquiry. The issue in Hynes was whether or not a justice presiding at a preliminary inquiry could rule on Charter issues - in this case, a Charter challenge to the admissibility of evidence. The Supreme Court of Canada, by a majority of 5 to 4, decided that the preliminary inquiry justice may not so rule.
Senator Beaudoin: Which case?
Mr. Bebbington: The case of Hynes that was rendered last Thursday. I offer this decision only to support the proposition that even the Supreme Court of Canada itself is in a state of controversy about the proper role and function of the preliminary inquiry. The majority decision is that a justice presiding at a preliminary inquiry may not rule on Charter questions and provide Charter relief at the preliminary inquiry. This, however, is aside from your question.
The focus in proposed subsection (7) is whether the justice presiding at the preliminary finds the evidence to be credible or trustworthy in the circumstance.
Senator Beaudoin: That is the test.
Mr. Bebbington: If it is not, it is not admissible.
I agree that at first blush the words "would not otherwise be admissible" appear problematic. However, this provision will allow the Crown - and the defence if they wish to invoke it - to offer a written document, as opposed to a live witness where, at trial, strictly speaking, that might not be permitted. The purpose of this goes to the question of whether there is sufficient evidence to commit for trial, not whether an individual is guilty or innocent. Again, a committal for trial can be reviewed by way of prerogative writ.
Senator Beaudoin: Does it apply on both sides?
Mr. Bebbington: It applies on both sides. I emphasize that the case law has been going in the direction of liberalized rules with respect to the admissibility of evidence, even at trial with respect to hearsay. To balance this small incursion into those notions, the protections are that the party tendering the written statement must give notice and that where the other party wishes the person to be compelled to attend to give evidence rather than the written document, there is a mechanism to allow that to occur. We feel it is a very small change to the current law, only applicable to the preliminary. As Madam Chairman has pointed out, there is a provision in the bill that would prevent that type of evidence from being admitted at trial, if it were not otherwise admissible.
Senator Beaudoin: Do you mean what is already in the Criminal Code, section 715?
Mr. Bebbington: Yes.
The Chairman: The next part of the bill that I would like you to reference is the evidence that we have had before us from the Internet providers. I would like your reaction to the specific wording in the amendments that the CAIP group has suggested.
Ms Lisette Lafontaine, Senior Counsel, Criminal Law Policy Section, Department of Justice: The first amendment concerns the word "knowingly." There were two conflicting comments. The Canadian Bar Association wants us to add "knowingly" to the accessing offence because they think it is not clear, that you cannot access by accident or by chance. The Canadian Cable Television Association wants us to add "knowingly" to the other offences. If we put "knowingly" in the accessing offences, we should add the word to the other offences.
Honourable senators, almost all offences in the Criminal Code are mens rea offences, and the knowledge is an important element of the mens rea. If you want to make a strict liability offence, you have to make it very clear. I think it is very clear that these offences are mens rea offences. It would not change anything if we were to add the word "knowingly" to one or two of them. However, what does it do to the other offences of the Criminal Code? What does it do to the existing offences such as child pornography offences for distributing, selling and producing? All these offences now require mens rea. They require that you know what you are doing when you commit the offence, and none of them say "knowingly."
Even though we do not disagree with the idea of what the word "knowingly" would bring to the offence, because this is what it does now. However, adding it would create a difficulty for other offences in the Criminal Code.
I would also like to respond in regard to the luring offence. It has been suggested that we should add "knowingly" to the luring offence at clause 8. Again, the same rationale applies to this offence. However, in addition to that, it is obvious that if you communicate with somebody for a purpose you cannot do it accidentally or by chance. You must know what you are doing.
There was also a comment on the facilitating aspect in this offence, which is not defined. The idea here is to cover the cases where the person who communicates with the child will not be the person who would commit the offence with the child. That person would communicate with the child to bring him or her into a place where someone else would commit the offence. This is why we used the word "facilitating" the commission of the offence and did not limit it to the committing of an offence with the child.
With respect to the luring offence, the CBA has said that we do not cover mistaken belief. Yes, we do cover mistaken belief. It would be a defence if the person has taken reasonable steps to ascertain the age of the child. It is not a defence if you are wilfully blind and you do not want to know.
The ISP association and the cable association have asked for a blanket exemption that would say they are not liable when they act as a conduit. They specify that they recognize that they would be liable if they know what they are doing. I am suggesting that this is exactly what the law says here. They are not required to monitor what is happening on their system. They are not required to find out what is on their system. We recognize that it would be extremely difficult for them to do so; in fact, privacy issues would be raised if they were required to do so. The Internet providers are not required to monitor what is on their system, therefore, they can only be liable if they know and they continue to offer the services and they are voluntary associates or partners in the offence.
The kind of exemption they are asking for is an exemption that not even the police have at present. They are not exempted from possessing child pornography. There is no blanket exemption for them. It is an offence to possess child pornography.
All they have to rely on is public good defence. It is a defence to a charge to possessing child pornography, or other child pornography offences, if you do it to further the public good. The police would rely on that defence to save them from criminal liability.
The Internet service providers face this problem because possession of child pornography is an offence. Whenever the police tell them that there is child pornography on their server we know they cooperate and remove it. If they were at risk of being charged because there is child pornography on their system and they do not know it, then that would have happened by now. This is not a new problem that is created with the ISPs, and they have admitted that they have never been charged.
They also raise a problem of "stored on" and "made available." They say that if they remove the "stored on" their only responsibility would be to not make it available or to block the reception. This would create a serious problem of implementation because the material remains there and it is there for every ISP to access.
To accomplish the same thing and get rid of the child pornography, we would have to go to all the ISPs and ask them to block the sites. You would ask a judge to ask the ISPs in his jurisdiction. However, there are ISPs all across the country so you would have to go to a judge wherever there is an ISP, ask the judge to make an order to impose a kind of blockage. That would be impractical.
In addition, the ISPs would have to deal with that not only when one of their own clients has child pornography, but also whenever there is child pornography somewhere else in the system. They would be asked by a court order to block the pornography. It would be impractical to do that.
The Chairman: You were saying it is impractical from the law enforcement point of view. They were saying it was also impractical from their point of view because these things are stored all over the place.
Ms Lafontaine: The problem is created by the multiple locations when they do automated backups of their systems. The purpose of doing these backups is to be able to tell your client that if the system fails or crashes then the material is there. If you do not know where the material is, that creates a problem.
We recognize that they may in some cases be asked to do some work to find the copies. I think it is unavoidable. However, what is the point of having a backup if you do not know where it is when it is needed? Perhaps they need to change their practice and keep better track of where the things are on their systems.
The other argument was that they could not guarantee that something will be permanently removed because someone else may access it and put it back on the system. However, the court order is to remove what is on their system at the time the order is made. Therefore, they would not be liable for whatever has been put back by someone else later. They are not required to monitor what is on their system.
Senator Joyal: Bill C-36 gives the authorization to monitor Internet communications to CSIS.
[Translation]
This authorization given by Bill C-36 is for purposes of national security, national defence and protecting Canada's relations with foreign countries. However, in practice, it means intervening in the system in order to manage whatever flows through it.
Ms Lafontaine: This is for very limited and specific purposes. What might happen is that when CSIS or any other law enforcement agency monitors the traffic in the system, they could stumble on child pornography. Already, at the present time, even without a court order, when the police, for example, inform ISPs there is child pornography on their system, they will usually remove it. One of the advantages they see in the process we put in place is that by having a court ordering them to remove the material from the site, they are exempt from any liability vis-à-vis their client who will not be able to blame them for stopping the service. They have a court order to rely on.
Senator Joyal: The results of an investigation were made public last week. When I heard about this, my reaction was to try to determine the legal procedure by which law enforcement agencies act to protect young people. What form of authorization do they need to have before they can enter the system?
Ms Lafontaine: They need to go to a judge and ask for a search warrant to access the information and the system of any Internet service provider.
You are referring to the operation in the UK where police had information consisting of Internet addresses. The police had to find the identity and the postal address of those people based on these Internet addresses. I cannot comment on any police investigation, I do not have this information. The investigation is still underway. They are trying to determine if, for each of these Internet addresses, they can find evidence that child pornography has been passed on between people who are already in custody in the UK and whose Internet addresses have been provided to the Canadian police.
Senator Joyal: So the legal procedure is being triggered by search warrant?
Ms Lafontaine: In order to obtain any search warrant, there have to be reasonable grounds to believe that an offence has taken place. You cannot go on a fishing expedition and ask Internet service providers to show you whatever is in their system any given day.
Senator Joyal: They need specific names.
Ms Lafontaine: Yes.
[English]
Senator Beaudoin: Earlier, representatives from the Canadian Association of Internet Providers gave their presentation. I will read from their brief:
So, unless Bill C-15A is clarified, what we'll have is a situation where an ISP is clearly not liable when some unknown third party uses the ISP's facilities to transmit hate messages, but may indeed be held liable if that same third party decides to add images of child pornography. This inconsistency is clearly neither fair nor tenable in Canadian law.
I am not an expert in this field. How would you respond to that?
[Translation]
Ms Lafontaine: He was referring to the Canadian Human Rights Act. This is not a matter of criminal law. The issue is whether there is a discriminatory practice and finding ways to eliminate it if so. It is very different from criminal law. It is true that the Internet is included in the telecommunications sector for the purposes of the Canadian Human Rights Act, but it is a matter of discriminatory practices.
Senator Beaudoin: I agree, this is not in the Criminal Code. It is not even criminal law. It is an issue of discrimination. In other words, you end up with two opposite results. Is this justified under the Canadian Human Rights Act?
Ms Lafontaine: I am not an expert in human rights law but this provision was included at a time when we were dealing only with telephone systems and telecommunications. It is a different situation in those cases. In the case of the phone, no record is left after the call. When the call is over, if you make an obscene call, no trace is left. The company cannot do anything. The content of radio and television broadcasts is regulated by the CRTC. Now the Internet has been included under telecommunications. Maybe the Act needs to be changed. When they say the results would be different, it means they would be liable for compensating the victim. However, the individual could still be found guilty under the Criminal Code if the person willfully transmitted to a consenting partner hate propaganda, or a person could be found guilty if he or she knowingly let it happen. These are the tests required for determining guilt. I do not see any inconsistency.
Senator Beaudoin: There is no substantive inconsistency.
Ms Lafontaine: Not substantive, no.
Senator Beaudoin: The person could still be charged under the Criminal Code.
Ms Lafontaine: Of course, there would need to be evidence to find the person guilty under the Criminal Code, but it is not because the Canadian Human Rights Act says something is not a discriminatory practice that the person who knowingly lets hate propaganda being transmitted cannot be charged under the Criminal Code.
[English]
Senator Andreychuk: The chair may rule me out of order, so I will make this short.
We have moved from "aiding and abetting" and assisting to this popular term "facilitating." Sometimes, as in this act and in other places - Bill C-36 is the most troublesome one - "facilitating" means that you must have mens rea for certain elements. I can understand the uneasiness of these people; the pornography gets through and they do not have a responsibility to monitor it. If pornography is found, it is not their problem.
However, it is now becoming, "I have to prove that I did not do anything," because we will not relieve them. They may be one of the abusers, if I may say that. We cannot exclude them as individuals.
People are beginning to think that the old concepts do not apply because mens rea seems to be watered down. Facilitation does not seem to have a narrowed, finite definition. It seems to be floating around. This is bringing some unease. This is just one group that is beginning to feel uncomfortable with the term "facilitation."
What are the thoughts of the Department of Justice in this whole new area? It is partly driven by technology and partly by terrorism.
The Chairman: Senator Andreychuk, you are going beyond.
Senator Andreychuk: They may have to answer me later if they do not do so now, but this is starting to bother me.
Ms Lafontaine: Senator Andreychuk, the facilitating deals only with the offence of luring. The purpose of using the word "facilitating" there is to cover people who communicate with a child, not because they want to commit an offence themselves with the child, but because they want to put the child into a situation where someone else will commit an offence with the child.
That is the only purpose for the word "facilitating" here. I know there was a long discussion about the word "facilitation" with regard to Bill C-36, but I would like to decline to comment on that bill tonight.
Senator Andreychuk: People often talk about the slippery slope. When you introduce the term "facilitation" in the area of luring and then it goes into Bill C-36, you can understand why the net providers are getting nervous. They are, practically, facilitating it, although we have not criminalized that. They are asking if that is the next step.
Senator Nolin: My first question deal with rules of practice. You heard from the Quebec bar about the authority given to courts to establish their rules. You heard the concerns of the municipal courts in Quebec. There is no problem with the large municipal courts; they already had that authority in their charter. However, as of January 1, 2002, it is no more.
Have you taken that into consideration? If so, to what extent have you done so? What will happen to the small municipal courts?
Mr. Bebbington: This is simply an enabling provision to allow that court to make rules concerning matters that come before it. The feeding of jurisdiction to the municipal courts in Quebec is not something that flows from the Criminal Code. The criminal court system in Quebec is quite different from that in other areas of the country in a number of respects. In fact, the Quebec provincial court exercises a broader jurisdiction than the provincial court does in other jurisdictions. The municipal court in Quebec is also given greater jurisdiction in Quebec. This is not at the instance of the Criminal Code but at the instance of the Government of Quebec.
I have difficulty understanding the concern about the specific provision with respect to rule-making authority. If proceedings are within that court's jurisdiction, surely they ought to have the ability to make rules to govern those proceedings. They may not be ultra vires. They may not be inconsistent in any way with the Criminal Code, and they are subject to other provisions, such as the Charter, as well. I have some difficulty understanding their concerns.
Senator Nolin: Some municipal courts in the province of Quebec already had, under the authority of their own charter creating their cities, special powers and were treated like provincial courts. That was decided for very good reasons, probably related to the capacity of the courts to handle bigger cases.
That will no longer be the case. All municipal courts will be at the same level. Because of this amendment, all municipal courts in Quebec will be treated the same - the small ones and the big ones. That is why they are concerned. The unwritten concern is that not all municipal courts are equal in Quebec.
Mr. Bebbington: I understand. We drafted this with input from lawyers working for the Government of Quebec. If I understand correctly, you are saying that the courts that had the higher level of jurisdiction have changed. This wording was vetted and provided to us, to a large extent, by Quebec lawyers working for the provincial Attorney General.
We are talking about a rule-making authority. This does not provide jurisdiction with respect to the substance of the matter. This is a provision that allows those courts to make rules with respect to matters within their jurisdiction.
Senator Nolin: There is also the overall authority of the Lieutenant Governor in Council in a province to oversee that.
Mr. Bebbington: Yes.
Senator Nolin: You heard the concerns of the Canadian Bar Association about proposed section 348.1, aggravating circumstances. They are saying that it is not needed.
Mr. Bebbington: This is another circumstance in which the Minister is trying to develop a balanced approach to a perceived concern. Some people, such as the Canadian Bar Association, say it is not necessary. Others are advocating and lobbying for a specific separate offence of home invasion.
In a situation where there is no consensus on which way to go and the polls are fairly extreme, the Minister has developed a reasonable and balanced approach that will focus on this particular kind of behaviour and give it a prominence in the Criminal Code. It is not a separate offence because it can be dealt with adequately in the context of break and enter, robbery and other offences with severe penalty ranges. However, this gives it a prominence and identification in the Criminal Code that makes it clear to everyone concerned that home invasion is an aggravating circumstance, a context that must be treated quite severely by the courts.
Senator Nolin: Ms McFadyen, with regard to section 690 of the Criminal Code, I am sure you have heard or read the testimony of the witnesses who have appeared before us. I am sure that you have notes covering their arguments. Why do you not go through your notes and try to convince me that you are right and they are wrong?
Ms Mary McFadyen, Senior Counsel, Conviction Review Group, Department of Justice: We are hoping that the amendments in this bill are a good start to improving the section 690 process. Section 690, as it stands, has not changed since 1895 when it was introduced. It is meant for people who have had all the benefits and safeguards of our court system and claim they have new matters of significance that were not considered by the court or were not available at the time that shows that perhaps they were wrongly convicted.
Section 690 is the last resort for people to get their case back into the courts. The Minister has the power to return cases to the court.
You have heard that the section is very vague. Critics say the process is very secretive. There is a group in the Department of Justice dedicated to reviewing these cases. We try to do it in a non-adversarial manner. These criticisms have been made for years.
In 1998, the minister released a consultation paper. She met with various people and invited submissions. She met with the chairman and a couple of commissioners at the Criminal Cases Review Commission, an independent body in England. She had a frank discussion with them about how their system works and how our system works.
After considering all the available options, the minister concluded that a formal independent body for Canada was not appropriate. One reason is that we have had fewer wrongful convictions than has the United Kingdom. For instance, they have had some very high profile IRA cases in which police tampering with evidence that led to convictions. The problem there is that the home secretary was responsible for the police and was also responsible for sending cases back to court. There was a high conflict of interest.
In 1993, a report was released in England that said that an independent body should be created, and that was done in 1997. That body receives about 1,000 applications per year and has a staff of 80 people.
As the minister said, we get about 70 requests for review per year. The vast majority of requests that we receive are for provincial prosecutions. In Canada, because of our system, criminal matters in the provinces are prosecuted by the provincial attorneys general and not by the federal Attorney General. That is for Criminal Code prosecutions. That is what most cases are. We have 69 active cases now, and only three of those involved a prosecution by the federal Attorney General.
Even though she concluded that a formal independent body was not appropriate, there were things that she wanted to borrow from that system in the United Kingdom, and the minister thinks this is an appropriate saw-off and should work for the Canadian perspective.
Section 690 did not say when you were eligible to apply for a review. The new section says you must have exhausted all your appeals. That was not in the section before. We have included that summary conviction offences will be reviewed, whereas before it was only indictable offences.
It did not set out how one applies for a review. The section allows regulations to set out how one will apply and the information and documents required to complete an application. We hope that this will make the process less secretive and easier to follow and more accessible to applicants.
The current section does not say how an application is reviewed. Proposed section 696.2(1) clearly states an application will be reviewed in accordance with the review process that will be set out in the regulations.
Section 690 did not have powers of investigation. One concern was that it takes so long to review an application. Part of the problem that can be encountered by people reviewing these cases is that it is hard to get in touch with witnesses, or people are not willing to give evidence or documents to conduct a thorough review.
Now we have powers of investigation in the amendments. This will make the review process quicker. That was also a response to the Marshall inquiry. They had recommended that the power of investigation be given to any body reviewing alleged wrongful convictions. It should be noted that our system will be better than the English system because they only have the power to compel documents, not witnesses.
When a remedy will be granted is not in section 690 now. We have set out what tests will be applied. They must have new matters of significance that were not previously brought before the courts. That will be the thing.
For accountability, the Minister of Justice will be required to present an annual report on the conviction review process to Parliament every year. This provides some accountability.
In addition, as the Minister announced, she will be making administrative changes as well as legislative changes. She announced she would be hiring counsel and investigators that would be looking at these cases. A Web site will be set up to give easier access to the process and how one can apply. She will also be appointing a special adviser to oversee the review of these cases. That person would directly report from her and manage the unit. That will give some independence.
Senator Nolin: I am sure you heard the testimony of Ms Green. She recommended that we delete those sections from Bill C-15A and wait for the Milgaard inquiry to make the recommendation.
Ms McFadyen: My understanding from the Saskatchewan government is that the terms of reference have not yet been determined for that review. They have committed that they will not initiate any review until the matter is thoroughly through the courts. It is my understanding that Mr. Fisher's appeal of his conviction is before the Saskatchewan Court of Appeal now. I do not know when it will be heard. I know neither party has filed factums yet. It may be a while before that inquiry is set up and makes its conclusion.
Senator Nolin: They had compelling arguments to wait and examine the recommendations from the Milgaard inquiry: Instead of going piecemeal, why not wait and keep the current system? You have heard it all.
Ms McFadyen: Yes.
Senator Nolin: Perhaps I am the only person around this table who was tempted by that. Perhaps I could reflect on your recommendation and sleep on it.
The Chairman: You have until tomorrow morning.
Senator Andreychuk: Having lived in Saskatchewan for a few years, as I know you have, I found the most compelling thing about Ms Green's testimony was the British system, or some model like that. It is important that justice is not only done, it is seen to be done.
People do not really make the distinction between provincial authorities and federal authorities. It is "the system and me." As long as the Minister does not receive advice from some independent source, anyone who works within the system and gives advice is seen to be part of that system. It is not that independence that we can all rely on.
I wondered what weight the minister gave to that because I have certainly lived through Saskatchewan. I am assured that all the inquiries that were done in Saskatchewan in various cases, including Milgaard, were run well by the people in the system. I think they tried their best, but it would not have mattered on which side of the issue you came out. Someone would still say that the system is reviewing itself.
What is compelling about the British system is the independence. Having a sort of independence is helpful. Why did the minister not give more weight to that?
Ms McFadyen: As I said before, the reason is there was a conflict of interest in Great Britain because the Home Secretary had the power to return appropriate cases to the court, and he was also in charge of policing and prisons. There was more of a conflict there than there is in Canada, considering that the provincial attorneys general prosecute most of the cases.
After the Marshall inquiry, there was a recommendation that the provincial ministers of justice and the federal ministers of justice meet to look at creating an independent body. They did establish a provincial-federal working group to examine the issue 10 years ago. They came to the conclusion that the section 690 process was independent enough because most of the cases were provincial prosecutions. Therefore, it was not a case of prosecutors reviewing themselves. It was the federal minister of justice.
Since the Marshall inquiry, we have made changes to make the process within the department more accountable and accessible. We hope we have been successful in the last five years by setting up our group.
Senator Andreychuk: My point is that the department can continue to change the process and make it more transparent. That is laudable. I had no difficulty, myself, with the process they have inside, because I do think they act professionally and try to get at the truth.
My problem is that it will never be seen to be right until there is an independent review, no matter what rules or processes are put in place.
The Chairman: Yes, Senator Andreychuk, that is something like the Senate not being "seen" to be effective.
Senator Andreychuk: We will not go there, either.
Senator Grafstein: I want to touch on two areas. One is mens rea as it applies to child pornography and so on. I do not think you have convinced me with respect to proposed section 164, because I think that the section that says "knowingly" in a subsection satisfies me that a judge who is looking at the whole section will apply "knowingly." I think you want it for greater clarity. I do not want to regurgitate. I have heard your arguments on that. "Knowingly" in a subsequent section satisfies me that the courts will apply a reasonable test of mens rea.
I am troubled a little more by the clause dealing with proposed section 172. Here is a provision that says, "Every person who commits an offence, who, by means of a computer system within the meaning of subsection 342.1(2), communicates with a person who is, or the accused believes is, under the age of eighteen years."
Is that not a satisfactory test in respect of mens rea - where the accused believes? Is belief not satisfactory for you as a reasonable test? Belief is larger, or more liberal, than is "knowingly." I could believe - I may be wrong in that belief - that a person is not under 18 or not under 16 or 14 and therefore belief is broader than knowingly. Is it not then a more ample or fairer test?
Ms Lafontaine: Are you referring to subsection (3)?
Senator Grafstein: Yes. It states: "a person who is, or who the accused believes is, under the age of eighteen years..." It is a question of when it kicks in.
The Chairman: It is in 172.1 (1)(a).
Senator Grafstein: Is that not a more liberal test? Belief is a more liberal test than "knowingly." Correct me if I am wrong, but from my recall, "knowingly" requires a more definitive test. "Belief" is a much broader test, if not a more liberal test. Therefore, it is less onerous? What is the difference between "knowingly" and "belief"?
Ms Lafontaine: You have to know that you are communicating with a person that appears to under 18, or 16 or 14.
We have put in "appears" or " is represented" to cover a sting operation.
In most cases, the only way you will find an offence like that is when a police is on the Internet and pretends to be a 14-year-old, or they may send photographs of people who are not 14 years old.
Senator Grafstein: Let us use a sting operation hypothetically. The police, in effect, are trying to catch child pornographers or people who facilitate child pornography.
Ms Lafontaine: They are after people who are after children, yes.
Senator Grafstein: They send something along, and somebody is involved in the offence with the belief that the person is under 18. Belief, even in that circumstance, is "belief" not a very generous mens rea test, as opposed to "knowingly"?
Ms Lafontaine: The mens rea is not with the belief of the age. The mens rea is that you want to communicate with a child. It happens that this child was 15, not 14, or it was not a child at all.
Senator Andreychuk: Will that not be the defence - honest belief?
Ms Lafontaine: It is a defence if you were to take reasonable means to ascertain the age of the child.
Senator Grafstein: You are not obliged to do that. Proposed section 4 says it is not a defence to a charge -
Ms Lafontaine: It says, "...unless the accused took reasonable steps to ascertain..."
Senator Grafstein: It also reads "the accused believed that the person ... was at least eighteen years of age, sixteen years or fourteen years of age...unless the accused took reasonable steps to ascertain the age of the person.
That strikes me as being a fair test, because they say that when you see someone, you should immediately act, which you are obliged to do as opposed to being a passive consumer. Is that not precisely what the ministry is trying to get at here? If you are an observer on the Internet, you are to be immediately aware and take some steps? You cannot be caught if you receive something and you disallow it to repeat itself. If you receive something and you do not take steps to find out if the person is over the age, then that is another matter.
Ms Lafontaine: This is not a seeing offence this is a luring offence. You are communicating with a child.
Senator Grafstein: I misspoke myself. Do you not want some sort of requirement, in mens rea, to react quickly, if you in effect are inducing somebody, and then all of a sudden you say: I thought he was over 18. I made a mistake here.
Ms Lafontaine: We want to avoid a situation where the person is able to have a defence when they are wilfully blind. They knew they were dealing with a child, but they said they thought that the person was 18. If they are engaging in a conversation with an unknown person on the Internet, and they want to have sexual relationships with the person - that would be the issue - but you think the person is 15 -
Senator Grafstein: It is really not safe sex, though, is it?
Ms Lafontaine: It may not be safe sex, but still, you have to ascertain, that, indeed, you are not being reasonably blind to the fact that you are dealing with a 13-year-old child.
Senator Grafstein: I have your views on that, and I thank you for that.
I want to turn to a more complex question in respect of proposed section 696 and the question of the issues raised by Ms McFadyen concerning the minister and her ability to delegate her particular powers of review to a non-arm's length person.
There is something historically missing in this exegesis. Historically, from the Act of Settlement forward and the separation of powers between the Crown and the courts in 1688 and the legislation following that, there was a separation of powers between the judge and the Crown. The Crown, in effect, separated its powers between itself and law-making. That goes back to the earlier period of Henry VIII. Hence, in our common era in the United States, there is a distinct separation of powers between law-making, the exercise of the prerogative and the courts. Now we come to the interesting question of injustice.
Again, the history is such that the cabinet has the Royal Prerogative to address injustices quickly under section 748 of the Criminal Code. The minister does not have to wait for anything. She can deem something wrong and give a pardon as she sees fit. She can wipe the slate clean. That is an undiluted power contained in section 748 of the Criminal Code. That is a pure reflection of the Royal Prerogative that can, at any time, pardon anybody for anything - without any reason being given.
Today that power is still vested in some governors in the United States of America. The governor has the power to pardon somebody from the supreme penalty. It is all based on that original prerogative power - the minister has that right.
Ms McFadyen: Any member of the Governor in Council can bring a recommendation for a pardon to cabinet under that section.
Senator Grafstein: That is a pretty broad power. What happened after that, historically, is that there was concern by Fox, Burke, John Stuart Mill and others, on how to remediate from a miscarriage of justice. The British system ends up as it does because of the differentiation between the Home Secretary responsible for police and the Minister of Justice. That is carried down to this day. The Solicitor General is responsible for policing powers. The Minister of Justice is responsible for legislative processes.
That is a curious section because, again, in the English experience, following that division of powers within the executive power, they also did it in the courts. We had two types of courts: the courts of common pleas and the courts of equity. The common plea courts were black-letter law. The courts of equity were there to displace a decision made by the courts of common plea based on equity. It was a simple test - an equitable test. I am sure that historically you studied that quite carefully.
Ms McFadyen: A while ago, yes.
Senator Grafstein: Did you?
Ms McFadyen: I am sure I did when I went to law school.
Senator Grafstein: Many law schools do not teach that anymore. You must have come from my era when that was a very important part of the education.
Now we come to this provision. It causes us some concern. The minister is now engaged in trying to deal with a miscarriage of justice for which she, as the senior law officer of the Crown, can be held responsible in a way.
Ms McFadyen: You mean she is making a decision for which she is accountable.
Senator Grafstein: Yes. Is that your argument?
Ms McFadyen: She certainly is accountable. That is part of the reason why the minister concluded she should keep the power - because she is accountable to Parliament.
Senator Grafstein: What if, in fact, she is encapsulated with responsibility for a miscarriage of justice under her administration? For ease of analysis, let us limit this to miscarriages of justice under the pure accountability paradigm of the Minister of Justice for the Criminal Code. We know the minister is responsible for the Criminal Code but not for the local administration of justice.
This delegation power is in section 696.2(3). It says, "Despite subsection 11(3) of the Inquiries Act, the Minister of Justice may delegate in writing to any individual..." "Any individual." It could be her brother or her mother or her child or her deputy minister.
Ms McFadyen: This proposed section responds in part to the Milgaard inquiry recommendation that those persons who investigate cases on the minister's behalf should have powers of investigation. Certain counsel in the department are responsible for reviewing these cases.
Senator Grafstein: Those are Chinese walls that pretend to divide one part of the Department of Justice from another part, saying there will be no contact between the two sides.
This is deeper than Chinese walls. This is not a business arrangement that might be a conflict as it applies to a bank. We are talking about the criminal power here. This is an abuse of criminal power.
Mr. Bebbington: When the minister was here, she said that if an application deals with a federal prosecution she invariably has outside counsel review the matter.
Senator Grafstein: She is still the one who appoints the outside counsel.
Ms McFadyen: She appoints the power to that person to investigate the matter and report to her. If that outside counsel has trouble getting information from anywhere, he or she could use the Inquiries Act to get that information with this provision.
Senator Grafstein: I understand that. The minister has been generous on the one hand. I have no quarrel with these broader powers of reviewing the evidence. The issue is the very narrow issue of whether the minister can appoint anyone she desires to investigate an abuse of power for which she is directly accountable. That is the issue? Am I putting it unfairly?
Ms McFadyen: I hope you are putting it unfairly. We drafted this with the intention that anyone she appointed to review the case on her behalf could have delegated powers to investigate, to get to the truth of the matter, and to determine whether there had been a wrongful conviction.
Senator Grafstein: I will do a little more research on this. It would be an interesting exercise for the department to look carefully at the history of this question, going back to 1701. I still have those textbooks. Go back to Blackstone.
Senator Nolin: That is why I asked the minister about section 7 of the Charter dealing with liberty and the principle of fundamental justice. No one is questioning that the prerogative should lie in her hands. It is the process we question.
Senator Grafstein: It is a separate issue.
Ms McFadyen: Certainly she is not delegating the power to make the ultimate decision. Those people who assist her in reviewing the cases can gather the information so that she can make an informed decision. This is not for pardons or based on pure mercy. Here they must have factual information to get back into the court system under section 690.
The Solicitor General is the one who reviews pardons by referring the applications to the National Parole Board, which has standards for determining whether pardons are appropriate.
With respect to Senator Nolin's comment, section 7 does apply. A ministerial decision under section 690 is a written decision. The applicant gets a copy. If there is a quarrel with it, it is subject to judicial review in the federal court. That court says section 7 does apply and the minister must review it fairly and conduct a meaningful inquiry into the matter.
Senator Nolin: That was my question of the minister.
Senator Grafstein: I suggest that a history review is important here because the bill was very controversial here, particularly the preamble that harmonized the common law and the federal law. We were told that the preamble was there to demonstrate that the civil law was unique, unlike the common law.
I did spend a couple of hours in the library on that. I found to my surprise and amazement in Coke on Littleton that Littleton - who preceded Blackstone - was first to put together the cases for the common law - in French. The common law was based upon French, and therefore the uniqueness of the civil code is not exactly apropos. It was unique that the common law was in French.
Senator Cools: There are many flaws in what has been said, but may I ask the witness about the Solicitor General and pardons. I believe she was speaking about pardons under the Criminal Records Act.
Ms McFadyen: No, I was talking about all pardons, under the Criminal Code and under the Criminal Records Act.
Senator Cools: Most pardons are brought under the Criminal Records Act.
Ms McFadyen: I think you are right.
Senator Cools: The parole board review has a slightly different process than the section 690 process. There are several avenues.
We hear this mistake again and again: There is only one law officer of the Crown. The Attorney General is not the "senior" law officer of the Crown. She is "the" law officer. The people who work for her are not officers. The three law officers in Canada are the Attorney General, the Solicitor General and the Judge Advocate General.
Senator Grafstein: What is the consequence to this bill?
Senator Cools: It is a question of language.
The delegation of power, at page 37, in clause 71, amending section 696.2(3) is a delegation of the judicial power of the minister.
Ms McFadyen: The minister has a responsibility to review cases and make decisions on cases of miscarriage of justice. As we were drafting this to get the powers of investigation to the right people, it was suggested that the Inquiries Act would be the appropriate way to do that. The Minister of Justice would be given the powers of a commissioner under the Inquiries Act and could therefore delegate those powers to someone to investigate on her behalf. Again, she is not giving up the ultimate decision-making.
Senator Cools: I am not suggesting that. The delegation of power here is a delegation of her judicial powers. The Minister of Justice has had two distinct roles from the time of Confederation when these roles were much debated. Any time the Minister of Justice or the Attorney General shows up in legislation, that legislation must be very clear on the capacity of that role.
There is often confusion between the two roles. One of the finest works written on the difference between the two roles is that by Professor John Edwards.
This legislation makes an enormous mistake in confusing the two roles. Your own Department of Justice Act sets out the differences. The Minister of Justice shall be ex officio of the Attorney General and vice versa. Reviewing prosecutions is the role of the Attorney General. Handling administrative matters before Parliament is in the capacity of the Minister of Justice. It takes a fair amount of skill to balance the two. I suggest this drafting confuses the roles.
Ms McFadyen: My only comment would be that, when the minister reviews these cases, it is in the capacity of Minister of Justice, not as the Attorney General.
The Chairman: Thank you, witnesses.
Honourable senators, we will meet tomorrow morning at 10:45 in room 256-S of the Centre Block.
Senator Nolin: The minister has agreed to an amendment. The House of Commons is probably leaving the place tonight. That means the amended bill must go back there but it need not go back tomorrow. It would be appropriate to give more time to properly read the testimony, at least the testimony from the two bars. There is no rush to adopt this bill. Obviously, we will be back next week.
The Chairman: It may be fair to individual members of the committee to be able to read the testimony, but I have to tell you that other members of the committee have been sitting here and listening to it. I believe we are prepared to go ahead with clause-by-clause tomorrow morning.
Senator Nolin: I requested a document from the department last week on preliminary inquiries. That was received at four o'clock this afternoon. Would it not be fair to read it?
The Chairman: We have it before us, Senator Nolin. I intend to do some reading tonight. We will be proceeding to clause-by-clause consideration tomorrow morning at 10:45.
The committee adjourned.