Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 18 - Evidence for June 30, 2005
OTTAWA, Thursday, June 30, 2005
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:47 a.m. to consider Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.
The Honourable Lise Bacon (Chairman) in the chair.
[Translation]
The Chairman: We are resuming consideration of Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.
Our witnesses this morning are, from the Barreau du Québec, Ms. Nicole Dufour, Research and Legislation Services and Secretary of the Criminal Law Committee, and Ms. Lori-Renée Weitzman, member of the Criminal Law Committee. Welcome. I think you are familiar with this committee.
Unfortunately, we only have an hour together due to an upcoming caucus meeting. I think we should be able to make a great deal of progress over this hour.
Ms. Nicole Dufour, Research and Legislation Services, and Secretary of the Criminal Law Committee, Barreau du Québec: Madam Chairman, my representation will be very brief. I simply want to inform you of the existence of the Quebec Criminal Law Committee. Experienced defence and crown prosecutors make up this committee. Ms. Weitzman has been a member for over seven years. She has 18 years of experience as crown prosecutor in Montreal. She will be commenting on our behalf.
Ms. Lori-Renée Weitzman, Member of the Criminal Law Committee, Barreau du Québec: Madam Chairman, as was just stated, I am a crown prosecutor in Montreal, but I am here as a representative of the Criminal Law Committee of the Barreau du Québec.
My presentation is split up into six themes. Some aspects are more substantial than others. I will follow along with the order set out in the bill.
I will start with clause 6 of clause 7 of the bill. This is a detail, but we do believe that there may have been an oversight here. Clause 7 mentions paragraphs 163.1(2)(a) and (b), defences, the defence based on the fact that the acts alleged to constitute the offence may be based upon a legitimate purpose related to the administration of justice, et cetera.
We have noted that this clause has been amended. In Bill C-20, in the same clause, not only was the act constituting the offence included but also matters relating to two aspects of defence, including possession as such, as set out here, which may have a legitimate purpose.
There is the classic example of a police officer who has in his possession pictures of young children for the purposes of his investigation. Possession is the act in question. But the material as such, which could for instance be art work, is no longer covered by the amendments under C-2. What we would suggest, once again, would be to keep the items as set out in Bill C-20 within Bill C-2.
Under subclause 163.1(7) the contentious issue remains a question of law. We have discussed this matter in our committee. The difficulty for us is that this distinction would remove a person's fundamental right to a trial by judge and jury, because the issue is whether it constitutes an offence. Do the items in question meet the legal test? By stating that it is a question of law and not a question of fact, it is being removed from the jury's consideration.
Senator Joyal: The judge will decide?
Ms. Weitzman: Yes, the judge would be alone in making that determination and if an accused were to choose a trial by judge and jury, we would imagine it would be a directed verdict because the judge will say: ``I tell you that as a question of law, it is an offence.'' All power is removed from the jury.
Senator Nolin: It is subject to appeal, it is a question of law.
Ms. Weitzman: Yes, that is where the difference lies. That is correct. When the person is convicted, there is always the right to appeal, but if the person is acquitted and it is a question of fact, the Crown does not have the right to appeal because it does not have that right on questions of fact. That is where the misunderstanding lies. That is correct. However, given that this is the only issue, it would be like removing the right to a trial by judge and jury in the case of those offences. That was the idea behind our second point.
Our third point has to do with clause 486.1(6).
Senator Nolin: What number?
Ms. Weitzman: Page 16 of Bill C-2, clause 486.1(6). It states that a person can be accompanied by a support person while testifying, and under clause 486.1(6) ``no adverse inference may be drawn from the fact that an order is or is not made under this section.''
This may be a little less significant for the person but it is important to us. The fact is that ``no adverse inference may be drawn'' from the order. We believe that the same objective would be reached, but more fairly, if we stated quite simply that ``no inference may be drawn'' be it positive or negative, whether it were to be in the accused's favour or not.
I would like to raise the same point about clause 486.3(5) relating to counsel appointed by the judge when the accused is self-represented. The same inference is referred to. Once again, we believe it should state ``no inference'', we should withdraw the word ``adverse'' which has a negative connotation.
Since we are dealing with clause 486.3(5), I should mention that we also have some concerns about having a judge appoint counsel for a person who does not want counsel. It is a good idea. It is important to limit the accused's possible cross-examination of his or her own victim which is, quite often, abusive. Unfortunately, as a crown prosecutor, I have experienced this, it is offensive, and we are conscious of the fact that something needs to be done.
However, the Barreau had suggested striking a working group to consider and set out parameters which would help to define counsel's status. If members of our committee, who are defence lawyers, had such a duty imposed upon them, they would have a great deal of difficulty representing a client who does not want to be represented, who wants to represent himself. Counsel would be in a dangerous situation given the code of ethics. His client, who is not really his client, may not have given him sufficient information. What is the nature of the relationship? Would counsel be amicus curiae?
A study needs to be carried out to define the parameters here, because this counsel's status is precarious and perilous given the fact that this imposed duty is not consistent with ordinary ethical responsibilities when a defence counsel represents his own client in his own client's interests. The dynamics are completely different.
Our fifth point has to do with the Canada Evidence Act, changes regarding the definition of witnesses and how to swear them in or not.
We have some difficulty and some concerns with the wording of clause 16.1(1) of Bill C-2, on page 26. It seems somewhat illogical that the Criminal Code would state that ``a person under 14 years of age is presumed to have the capacity to testify.'' Let us remove ourselves from this legal framework and ask what ``a person under 14 years of age'' means. I would imagine that any person has the capacity to testify. Are those under 14 more able to testify than those over 14? That seems illogical. In terms of the subsequent sections, it would not be desirable to presume anyone has the capacity to testify, regardless of his or her age. Take a three-year-old child, who has the capacity to testify. That person will not have to take an oath nor make a solemn affirmation. This witness only needs to be presented as someone who is able to understand and respond to questions. The person will promise to tell the truth. No inquiry can be conducted as to what telling the truth means to this person.
Once again, we are conscious of the difficulties brought about by discussions prior to testimony, as to what telling the truth means. What does swearing to tell the truth mean? Obviously, it is a cumbersome process. We have had difficulty in the past with this type of inquiry, but we are far from convinced that the solution is to do away with it entirely. A three-year-old or a four-year-old may testify. I am not exaggerating. Children of this age can understand a question and respond to it. They clearly satisfy the code's criteria.
They will simply have to testify and say: ``I promise to tell the truth.'' No one will be entitled to ask what ``the truth'' means. What is the truth to you? How significant is it for you that we are in a courtroom? The entire inquiry is being set aside and we have some concerns about that.
Under section 16.4 it seems inappropriate to us to put the burden of truth on the party which challenges the capacity of a proposed witness to testify. We believe the party that calls the witness is in a better position to bring this evidence forward and to indicate to the court the youth's history, his capacity and his level of understanding. The opposing party — often the defence lawyer — has no idea who he is dealing with and is in the difficult position of having to cast doubt on a person and to question a person on his or her abilities, never having met the witness. The Crown, of course, does get an opportunity to meet a witness before producing this witness. Oftentimes, the police, the child protection services and the Crown meet with the witness and are in a position to explain to the judge that this witness is fit to testify, despite his young age.
It seems to us that the system would be lacking proper checks and balances. We think this may be dangerous. The last thing we would want to do would be to call a witness when we have no way of assessing whether he knows what telling the truth means. Obviously, corroboration is not required in this case. It is quite serious to base a conviction on the testimony of a young child whose level of understanding or whose capacity was never properly tested.
I would now like to get to our final point, which is completely new. We did not address this issue before the House of Commons committee because we just learned that, now, in this new bill at second reading, there are minimum sentences. This is not something we discussed in our committee when we were considering the bill because the amendments had not yet been made. However, we had already discussed minimum sentences in committee. Generally speaking, we object to this. As crown attorney, I am affected by this. I will explain why.
In general, the idea of completely removing the judge's discretion in sentencing does not fit within our legal system. We have worked hard to legislate and insist on the judge's discretion and on the criteria he should apply in sentencing. Removing this discretion by imposing minimum sentences flies in the face of criminal law. It is contrary to the Supreme Court's rulings, in the Sharpe case and in the Wust case, more recently. The specific offences I am referring to, such as sexual interference or sexual offences on youth, are, in most cases, crimes that are carried out in family situation or by people in positions of authority. Moreover, some offences are specifically aimed at persons in positions of authority.
We fear that minimum penalties will lead to less disclosure to police. Children are already afraid of disclosing what goes on within their own homes, not only because of relationships, but also because of possible family outcomes. Moreover, consider the blame they will have to shoulder for sending that person to jail — something that is out of their hands, and the idea of appearing before a judge. All of this could decrease the person's desire to disclose the information.
There may also be some reluctance on the part of the Direction de la protection de la jeunesse, which has a somewhat strained relationship with crown prosecutors. We have the same interests in mind, but approach the issue from two different angles and, once again, won't they be reluctant to disclose information, to cooperate, when they know that regardless of their position in a given case, minimum penalties will be imposed? We are also worried about a decrease in the number of guilty pleas, because from the start, a prison term is to be expected, so the Crown has no discretion left to negotiate, given mitigating factors, on an appropriate sentence.
Finally, it seems illogical that for all lesser offences — sexual interference, invitation to sexual touching — there should be a minimum sentence, whereas for sexual assault, there is no minimum sentence. Once again, that is a discrepancy which is hard to explain within the Criminal Code. Finally, the idea of managing these short sentences and of automatically setting out 14 days and 45 days is not, in our opinion, the best way to take section 718 into consideration during sentencing. Will a 14-day prison term meet the criteria? In my opinion, only rarely. More importantly, the idea of removing the judge's discretion, specifically for these crimes, seems inappropriate to us.
Those were the six points we wanted to address with you. We are now ready to answer any questions you may have.
The Chairman: Thank you very much Ms. Weitzman. Yesterday we heard from writers' representatives who expressed their concerns regarding this bill. They are worried about the definition of child pornography being broadened and about the use of the expression ``for a sexual purpose'' which seems too vague to them. The thrust of their argument was the fear of being accused and of having their reputation sullied by the charge. It is not so much about being found guilty. I think they may be charged without being guilty, but it is the issue of how easy it is to bring damaging charges.
I would like to have your point of view on this because this bill aims to strike a balance. On the one hand we have child welfare on the other the possibility that an artist may be prosecuted. We do have to ensure child protection.
Ms. Weitzman: This is similar to what was discussed during our testimony before the House of Commons Justice Committee. This is not a subject that was discussed by our Criminal Law Committee. The Criminal Code leaves room for this type of definition. Sexual offences, or acts for sexual purposes, these are things we find in the Criminal Code, and as far as I know, it has not led to wording which is overly vague, difficult to construe or define.
Representatives from the arts community were with us the last time. They were not exactly agreeing with my position as crown attorney. I answered that we had to trust crown attorneys who check charges and lay them. This would not be a tool we would use any which way, to accuse the average person and frame the issue in sexual terms. We understand the aim of this legislation. We understand the danger children could be exposed to. Let us be consistent. The Crown has been given a great deal of discretion and authority. Let us be consistent, let us be logical, and let us give them the opportunity to use this discretion and authority appropriately, as is done, for instance in the case of child punishment.
Could a parent be charged with spanking his or her child under the strict wording of the Code? Yes. We do have to be sensible in enforcing the law. I think it comes back to what you said before. It is not just the conviction that matters. Merely charging a person is enough to have a significant impact on individual rights. We are aware of that, and I am speaking as a crown prosecutor.
We have a duty and a code of professional conduct. We have to do our job and we also have professional and personal liability. We have to be careful about charging a great writer like Mr. Nabokov for writing his book, Lolita.
I hope that answers your question.
The Chairman: Your position on minimum sentences is similar to the position of the Minister of Justice, who appeared before us and discussed that too.
Ms. Weitzman: I am glad to hear it.
The Chairman: Apparently it took a compromise to go ahead with Bill C-2. A 2002 study commissioned by the Department of Justice argues against minimum sentences. Were you consulted in the course of that study?
Ms. Weitzman: Do you mean our committee?
The Chairman: Yes.
Ms. Weitzman: I do not know. Not to my knowledge. That is easy to check, and I will give you the answer in writing.
The Chairman: Yes, please do let us know.
Ms. Weitzman: We will.
[English]
Senator Pearson: On the Canada Evidence Act, you are the first witnesses we have heard to have a discussion on this question of child witnesses.
This is one change that I personally feel quite happy about. I need to hear your reasons for feeling less content with it.
Proposed section 16(1) requires that the child witness understand and respond to questions. That is very important. Obviously, if the child cannot understand a question, there is not much point in asking one. However, there is an assumption that children can testify.
Ms. Weitzman: Yes.
Senator Pearson: I think the presumption is based on the fact that, in many cases, it would be helpful to have the word of the child. It might not change things, but it would be helpful to have it. My view is that a lot of these changes have been made to facilitate the capacity of children to present testimony in a way that does not totally unnerve them, make things worse for them or re-victimize them, et cetera.
The provision permits the party challenging this capacity to raise the issue. Then the judge will inquire. Earlier, you talked about judges being given less discretion; here we are giving them discretion.
Should there be any concern that children will give evidence when they have no ability to do so? I do not think the judge will go ahead if the party is challenged and that judge has decided the child cannot give evidence. I do not see it as a real concern.
It is up to the tryer of fact to assess the credibility and the weight of the evidence. It is not that that evidence will overbalance something else.
The importance to me of this change is it enables children, in particular young children, who can understand usually quite well what it means to say ``I promise,'' but they would never be able to explain it. I have spent lot of time with three-year-olds. I know perfectly well they can say they promise to tell the truth. Back when we were first talking about child sexual abuse, the rule of thumb was that any question you ask a child should have as many words as the child's age. If the child is three, the question should only have three words, although here we have ``promise to tell the truth,'' which is more than three. In any case, could you elaborate on your concern?
Ms. Weitzman: I understand your concerns.
Our position is that among the members of the committee, which, as Ms. Dufour mentioned, groups Crown and defence and seasoned lawyers on both sides, we had not seen tremendous difficulties with 16(1) as it presently is in the Canada Evidence Act or a need for reform. You are speaking to the importance of allowing children to testify; section 16(1) allows children to testify. Wherever possible, we do try to have the child testify, because that is the only person with firsthand knowledge. We do whatever we can to put the victim of the crime on the stand, and the parameters of section 16(1) as it exists allow us to do that.
Most of the time, unless it will cause them tremendous trauma or they are unable to communicate, children do testify. Section 16(1) presently allows us to have a mini-inquiry. You are right; philosophically, it is impossible to have a child explain what truth is. In the old days, when we had to have them swear on the Bible, we would say, ``What is the Bible, what is God?'' It was unfair and led to discussions that made no sense.
However, it does help the tryer of fact in assessing whether the child can testify; and then later on, what weight to place on this testimony. The mini-inquiry does help when you speak to a three-, four- or five-year-old and say, ``Can you promise to tell the truth? What does that mean for you? Is it different for you to tell the truth today here in court than with your friends in the schoolyard? Is there something special about being here that makes it important?''
It exposed the solemn nature of the proceedings and gave everyone an assurance that not only can children answer three-word questions and thus communicate, but they have some understanding of the importance of what they are doing there. We are concerned about it, because unfortunately, everything is a double-edged sword in these matters. The crimes, in my opinion, are the most reprehensible in the Criminal Code. It does not get worse than sexual assault on young children.
The flip side of it is the ease with which it can be manipulated. Unfortunately, to our great chagrin, it can be used in family matters, in family court, in divorce situations, and children become pawns. You have situations where a four- year-old answers these questions and the judge does not ask if the child thinks it is important to tell the truth, what happens if you lie in court or if you tell something that someone told you to tell, even though you are not sure it happened that way. Our concern is the danger of allowing that when there is no corroboration.
The last thing the Crown and defence want, believe me, is a false conviction. We want all the tools to convict those who deserve to be convicted, but we do not want to do it by taking shortcuts that will leave us with the fear that we might be making a mistake. That is the worst scenario.
Senator Pearson: However, in this case, it is possible to challenge the capacity.
Ms. Weitzman: Yes; our position is simply we are happy with section 16(1) as it is. We did not understand the need to change it. We are not sure that the changes are helpful. We think children could still testify under the existing regime.
[Translation]
Senator Nolin: I would like to come back to the Evidence Act. Subsection 1 clearly creates a legal presumption. The Evidence Act does not currently mention any legal presumption.
Ms. Weitzman: No.
Senator Nolin: What is the need for such a presumption? How might that help to achieve the purpose? We share your concerns. We too want an effective tool, but a tool that works fairly. No one wants any miscarriages of justice. So what is the reason for this legal presumption, in your opinion?
Ms. Weitzman: Are you talking about Bill C-2?
Senator Nolin: Yes.
Ms. Weitzman: It may be a reaction to the current subsection 16(1), which calls for an automatic inquiry, and which reads:
Where a proposed witness is a person under 14 years of age or a person whose mental capacity is challenged, the Court shall, before permitting the person to give evidence, conduct an inquiry...
Some 13-year-old girls are better able than any adult to give evidence, swear on the Bible, or take an oath. It is unnecessary to conduct an inquiry in each and every case. I think the reaction is to say that we will not proceed that way. It will be the opposite. The presumption will be in favour of the testimony, and it will be up to you to challenge it.
It seems to me that we should be logical with our code. If it has to be changed in reaction to the current subsection 16(1), why not just say: ``no presumption, but any witness whose mental capacity is challenged, here is how to conduct the inquiry.'' It is up to the legislator to decide whether or not to call an inquiry into the promise to tell the truth. There is no need to start with an overly broad or overly narrow presumption.
Senator Nolin: If the new presumption is maintained, you would like an addition to the text of clause 3?
Ms. Weitzman: Yes. In other words, perhaps we are aiming at very young children. It is really clause 3 combined with clause 7, which says that the judge is not entitled. The judge is authorized to conduct a mini inquiry. If the defence challenges, it has the burden of proof, it has to satisfy the judge, and the judge conducts an inquiry.
If I were a judge, before convicting someone of a crime as serious as sexual assault, I would at least want to know for sure that the main witness of the act knows what he or she means when promising me to tell the truth. I would like to be able to inquire into that. The code does not authorize me to do so.
Senator Nolin: I would like to come back to the Department of Justice study. It is important to point out that you are a provincial crown prosecutor.
Ms. Weitzman: Yes.
Senator Nolin: The chair's question had to do with the study produced in 2002 by the Department of Justice.
Ms. Weitzman: That is why we were not involved.
Senator Nolin: We can get you a copy of that study to make sure there is no misunderstanding.
I would like to come back to the question of law. Your second argument has to do with subclause 163.1(7), the question of law. I would like to come back to your concern. There appears to be a balance, in our opinion, because the Crown can appeal. You add, and it is a very valid point, that this question does not come under the jurisdiction of 12 jurists. Could you go back over that argument and try to convince us that it is not O.K., because this new position seems valid to us.
Ms. Weitzman: I do not know how to further clarify the position than I did earlier. What bothers us is not the fact that certain questions are taken away from the trial of fact. That often happens in criminal law. It is more a matter of the legal questions that require in-depth legal knowledge, beyond the reach of jurors, and that involve legal definitions that fall squarely within the purview of a judge.
When you read the text here, you realize that this is actually the fundamental question. When an individual is accused of the offence set out in clause 163.1, the question is: does that activity advocate or counsel sexual activity with a person under the age of 18 years, yes or no? That is the question.
There may be identification or credibility issues. There maybe peripheral issues, but the crux of the question remains: did the accused intend to kill when he was charged with murder? If we were to say that the question of intent was a question of law, we would be taking this crime out of the hands of the jury. They will deal with the peripheral issues. As for the crux of the matter, i.e., whether the alleged act constitutes a crime, we would not need jurors of fact anymore, the judge would decide. Given the significance of this matter, we are taking issue with that and saying that there is not much point in the accused availing himself of his right to be tried by his peers. We think that in most cases that would be the fundamental issue.
Senator Nolin: Did you raise that issue with the Department of Justice?
Ms. Weitzman: Yes.
Senator Nolin: You had the same kind of discussions?
Ms. Weitzman: We were not asked any questions about that. A lot of questions were asked, but not about the question of law. It may be that they simply did not agree with that. We were not asked to say anything further about that.
Senator Rivest: I would like to come back to the concern of the arts community. In the old version, which was not an offence, it just said ``artistic merits''. That notion is being substantially altered. That is the concern of artists, who are required to prove two things. The first is that the act, in paragraph 163.1(6)(a) ``has a legitimate purpose,'' and in paragraph 163.1(6)(b), ``does not pose an undue risk of harm to persons under the age of 18 years''.
Based on your experience, is it really necessary, given the way the court has interpreted ``artistic merit,'' to amend this provision? The artists who appeared before us yesterday could easily live with the old definition. But now, they claim we are imposing a requirement on them, theoretically, assuming an artist were charged, a writer, in particular, to prove two very difficult things.
Senator Joyal also asked what kind of evidence an artist has to produce in order to prove those two things that will exonerate him or her.
Ms. Weitzman: I do not think the case for the defence of an artist attempting to defend his or her work of art or writing would be any different. What we are trying to define here is artistic merit. What is meant by a legitimate purpose related to art? It means that it has artistic merit. That is what we are talking about.
They did not like the way it was worded. However, I believe we are talking about the same thing. I do not really think we are going too far. In terms of risk, we are talking about ``undue risk of harm.'' That is quite a burden for the Crown. The problem — I saw this in person when we testified together with the artists' representatives — is that they are being too literal. We are not after the writer who wrote something describing a sexual episode. No. We know what we are talking about when it comes to child pornography. It is a scourge; we want to combat it.
Artists will not settle for being told: ``Trust us, we know what we are talking about.'' I understand their concern. The legitimate purpose related to art is their protection and a defence by the same token as the artistic merit wording. Again, when it comes to artistic merit, you have to make sure the work does not pose an undue risk of harm. The work may have some artistic merit and still pose some risk to children.
Senator Rivest: So written material could give rise to charges if it is done for a sexual purpose. However, an author may describe a sex scene in a novel. In that case, the main idea is clearly, as common sense would suggest, to produce an artistic work. It could not be said that the work was written for a sexual purpose. That is another part of the problem.
Senator Nolin: On page 7 of Bill C-2, in the new version of paragraph 163.1(1)(c), reference is made to the principal offence.
Senator Rivest: It says:
(c) any written material whose dominant characteristic ... for a sexual purpose.
Ms. Weitzman: I think that just reading it explains it precisely. I do not mean to suggest there is any panic. I think they are worried because they want to make sure they do not get charged when they have no malicious or criminal intent. The legislation is crafted so as to target the people we want to target, not artists.
Senator Rivest: In light of judicial interpretation of the artistic merit principle, does this not change the factors that a crown prosecutor has to consider in deciding whether or not to prosecute?
Ms. Weitzman: I do not think so. This is clearly the context within which we have to analyze the file. With respect to the crown prosecutor's discretion, in a hundred or so child pornography cases, there are various degrees. In extreme cases, there will be no possible defence. There are of course ordinary cases, but there are also the extreme cases, on the other hand, the border-line cases, where it will be readily apparent, on the face of it, that it is a work of art more than anything else. In those cases, we take all the time we need to assess, check and go over all of the elements to make sure we do not charge someone with child pornography, possession or reprehensible crimes when all the person has done is write, like many writers have done before, since time immemorial.
Senator Rivest: As a crown prosecutor, you seem to have a lot of confidence in the judgment of crown prosecutors.
Ms. Weitzman: I have to, otherwise I would change jobs. That's part of the system.
Senator Ringuette: First of all, I would like to thank you for your evidence. I am going to more or less pursue Senator Rivest's line of questioning. In light of the evidence we heard yesterday, the fears expressed by artists appear to be directed at prosecutors. Repeatedly, we were told that some people will complain, even if those complaints do not lead to charges. So we have to consider all of the time prosecutors spend considering the well-foundedness of a complaint.
We also heard, last week, evidence from the Police Association of Ontario. The witnesses told us that about 50 per cent of charges lead to sentencing. In your experience, are the Quebec statistics roughly the same?
Ms. Weitzman: They are not the same at all, and I will tell you why. A task force was set up in cooperation with a number of provinces to attempt to respond to this illogical situation. A person may be charged and found not guilty. However, that individual will have run up legal fees and his or her reputation will be tarnished. This does not happen in Quebec, because we have a fullproof system whereby crown prosecutors authorize files. In all of the other provinces, except one, the authorizations come directly from the police officers, who not only make the arrests but also bring them directly before the justice of the peace. This has led to overbilling problems, but also to technical and legal problems for which police officers are not trained to determine the precise nature of the crime. The end result is that the charges are often dropped.
In Quebec, we have a preliminary investigation. The police officer puts together a case and recommends charges. However, it is exclusively up to the crown prosecutor to sign the authorization form that is brought before the justice of the peace in order for an information to be laid. In my opinion, that is why our statistics are very different.
Senator Ringuette: What are your statistics, under the process you have just identified?
Ms. Weitzman: I wish I could tell you, but I do not know.
Senator Ringuette: The task force you mentioned, was that an interprovincial initiative to standardize the process in this area?
Ms. Weitzman: I am not a member of that committee. However, as I understand it, it is an exchange of information and a system check to see whether we need to come up with a new way of doing things. I am talking about charges that get withdrawn.
There are also acquittals. Some legitimate charges meet with a defence. Just because a person is acquitted, that does not mean that a mistake was made in the beginning. There are multiple reasons for an acquittal. I do not know the statistics on the number of charges that lead to conviction. As a matter of fact, I do not even know whether that kind of statistic is kept.
Senator Ringuette: I am not a legal expert. However, I wonder whether the Quebec process is different because of its legal system, which is different from that of other Canadian provinces?
Ms. Weitzman: I do not think so. Across Canada, we share the Criminal Code. The powers have been divided up that way for a long time. The other provinces could do like Quebec if they saw fit to.
Senator Ringuette: I can understand a police officer proceeding in that manner in the case of a highway traffic offence.
Ms. Weitzman: Police officers do so directly whenever they issue tickets, even in Quebec.
Senator Ringuette: In criminal cases, however, things are quite different.
Ms. Weitzman: We would like to have the opportunity to ask for complementary investigation and to see whether the witnesses confirm the facts. In many cases, we advise the police that we will not give the authorization right away because the data is not complete. Sometimes, the facts do not stand up to the criteria of criminal negligence, because such cases are difficult to prove. Sometimes, there is no point in laying charges of sexual assault, unlawful confinement, and use of a firearm all at the same time. There is no need for laying 15 charges when three would be enough.
This comes back to your reluctance regarding minimum sentences as well as the frustration of the police in other provinces when they see that 50 per cent of charges are dismissed and do not result in a sentence. Should there not be a procedure for laying charges, like the one that you have in your province, to make sure that when charges are laid and even before they are laid, the solicitors have had the time to carry out a preliminary inquiry?
On the one hand, we do not want frivolous charges to be laid against individuals in a community, and, on the other hand, we want to make sure that when charges are laid, the victims of certain offences see that justice is done. Bill C-2 has no such balance.
Ms. Weitzman: What you mean by balance is the general balance of all offences, in this bill or in any other bill. This is always our objective. We want to lay charges against those who deserve it and not to lay charges against those who do not deserve it.
As for those who deserve to be charged, we hope that they will be properly sentenced pursuant to the Charter of Rights and Freedoms. We are seeking a balance among essential values. We work day in, day out to ensure that the legislation be followed down to the details.
Senator Ringuette: The interprovincial committee that you created is basically meant to reinforce the system for laying charges that you already have.
Ms. Weitzman: I cannot say too much because I do not sit on that committee, but some members of our Bar committee belong to it. This working group is trying to carry out a comparative exchange among the provinces to see what can be done to cut down the number of charges that are dropped and withdrawn and that should never have been laid in the first place. We want to know whether there is a problem with this, and at what level it exists. This concerns us. Unfortunately, I have nothing more to tell you.
Senator Joyal: You mentioned that a judge cannot cross-examine children less than 12 years old to test the credibility of the witness' statement. Is this not an even greater concern to you in the current situation, where we have been seeing children laying false criminal charges against adults, teachers, certain groups, resulting in great damage to their reputation? As you said, when someone is charged with assault, aggressiveness, pornography or attempted sexual assault, society reacts in a direct and immediate way. I think that, in view of these cases, we should provide, in Bill C-2, some way of testing a witness's capacity to understand the obligation to tell the truth.
Ms. Weitzman: This comes back, more or less, to what I said in my brief. Senator Rivest spoke of balance. I think that we are talking about the same balance. We want a system with sufficient checks and balances to avoid the deviations that you have mentioned. With regard to children, as they make no oaths or solemn declarations, we think there should be provisions giving the judge the responsibility of verifying the child's reliability and ability to understand what is going on in court when he or she promises to tell the truth.
Senator Joyal: In your opinion, does this bill, as it stands, contain any risk of seriously unbalancing the system?
Ms. Weitzman: We are afraid of that, but the article we are referring to is not as broad.
Senator Joyal: In support of minimum sentences, the Canadian Police Association argues that most sentences are conditional discharges. The accused are released and do community work. These are not formal sentences.
To your knowledge, are there any statistics in Quebec covering the past five or eight years, regarding sentences handed out for the types of offences mentioned in Bill C-2?
Ms. Weitzman: If there are such statistics, I do not have them. Counting the number of people on parole will not tell us whether or not the Criminal Code is adequate.
I trust the crown prosecutor, as well as the system. I also trust the judges because the judges will enforce section 718 of the Criminal Code.
Whether the Canadian Police Association likes it or not, there are cases of minor sexual contact that truly warrant parole. If parole is not warranted, the case can be brought before the Court of Appeal. If the Court of Appeal does not change the sentence, it means that the criteria were properly applied by the trial judge.
When policemen tell me that such criminals are always paroled, I do not pay any attention to such comments because I trust that the judge has imposed the right sentence. We have to take things case by case. Not everyone accused of sexual assault is necessarily a serial rapist. I leave it up to the judge's discretion to deal with things case by case.
Parole statistics have nothing to do with the need to change the sentences and to take this discretion away from judges.
Senator Joyal: Regarding paragraph 6 of section 163.1 of the Criminal Code, on page 8, at the bottom of the page, subsections 163.1(6) and (7) of the same act are replaced by the following.
(6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence:
(a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and
(b) does not pose an undue risk of harm to persons under the age of 18 years.
There are two conjunctions in this article. It does not say ``or,'' but ``and.''
Ms. Weitzman: The English says ``and''. We could add the same in French to make things clearer.
Senator Joyal: There are two elements.
Ms. Weitzman: Artistic values or legitimate pursuit of art are not enough if there is undue risk.
Senator Joyal: We agree about the article's structure.
Ms. Weitzman: Entirely.
Senator Joyal: If we read the current article 6 as it stands under subsection 163.1.1.6 on page 274 of the Criminal Code — I have the English version:
[English]
Defences: Where the accused is charged with an offence under subsection 2, 3 or 4, the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific, or medical purpose.
[Translation]
Thus, there are two kinds of defence, namely, defence based on artistic value or defence based on educational, scientific or medical purpose. As we come back to the proposed amendment before us, we realize that there is a substantial difference between the current article 6 and the one proposed in Bill C-2.
What I am concerned about is the fact that in the Sharpe decision, Chief Justice Ms. McLachlin said the following:
[English]
To restrict the artistic merit defence to material posing no risk of harm to children would defeat the purpose of the defence.
[Translation]
In other words, if we bring forward the defence of risk for the child, we negate the defence of artistic merit. We understand that if it is proved that the artist has a legitimate purpose in producing this work of art, he would be covered by article 6 as it stands. But if we bring in the criterion of undue risk for a reasonable person under the age of 18, the criterion of the average person, we add another element to the defence that practically negates the first defence. This is where the defence based on artistic merit fails. In practice, this seems fair. Does this work constitute undue risk for a person under 18?
The defence in article 6 is certainly being changed and, above all, the defence has to prove that a work does not pose undue risk for a person under 18. The child before us is not the victim, it is rather the work in its objective nature, as it practically relates to all children. In my opinion, this considerably increases the burden of proof on the accused in his defence.
Ms. Weitzman: What we wanted to add to the defence under article 6, is the fact that even when there is artistic value, this material should not pose any risk. This comes back to the sentence from the Sharpe decision. The burden of proof lies on the accused. This is part of the defence inasmuch as there must not only be artistic value but it must not, moreover, pose any undue risk.
Senator Joyal: Do you mean by that, that what you wanted to do in this article was to avoid the repetition of another decision similar to the Sharpe decision?
Ms. Weitzman: Precisely. We must legislate within the parameters of the rulings of the Supreme Court. It told us that if there is no risk of harm to a child, no charges should be laid. This is what the Sharpe case tells us.
Senator Joyal: Thus, you seem to be saying that the current defence has been basically changed to avoid the repetition of other decisions like the Sharpe decision.
Ms. Weitzman: Yes, I think that this legislation was made to bring our code into line with the rulings of the Supreme Court.
Senator Joyal: No, this is not the gist of the Supreme Court rulings. Not at all. The Supreme Court told us that John Robin Sharpe could not be found guilty of being in possession of his own writings because the court recognized that they had artistic value. The court said that given their artistic value, it could not concern itself with the risk they could pose for children. That is what the Chief Justice said.
[English]
To restrict the artistic merit defence to material posing no risk of harm to children will defeat the purpose of the defence.
[Translation]
Ms. Weitzman: This phrase ``no risk of harm'' was taken to mean that when the material has artistic value and poses no risk, no charges can be laid. That is what the Supreme Court told us. As far as we, the defence, are concerned, we say that if the material is of an artistic or medical nature and poses no risk, then the defence is valid. However, if we are dealing with material of a scientific nature that poses a risk, unfortunately, charges can be laid and you can be found guilty because your defence does not stand up on account of undue risk.
Senator Joyal: Yes, in the current bill.
Ms. Weitzman: Precisely.
Senator Joyal: Not in section 6 as it stands.
Ms. Weitzman: No, there is no such thing in section 6.
Senator Joyal: This shows what I meant.
[English]
Senator Pearson: I had a question on the child as a witness. I wanted to put on the record that one reason I was pleased with this change is that it is in accord with the Convention on the Rights of the Child, which says that every child has a right to be heard in a proceeding that affects him or her directly, and that there is no age limit. I am happy that they are presumed to have the capacity to testify.
I can see the questions, but I still think that the court is able to inquire if there is a challenge. It seems to me that this restricts when the court conducts an inquiry into whether the child is capable. Certain types of questions will not be allowed. We will be getting further clarification on that. I do not have trouble with it. Thank you.
[Translation]
Senator Nolin: Let me come back to that. I want this to be very clear. In the Evidence Act, the introductory section to subsection 1 of section 16 only clarifies the text that might have been somewhat ambiguous, but the judge still has the power to investigate. Through this investigation, he will seek to determine whether, among other things, this person under 14 understands the nature of an oath or of a solemn declaration.
Ms. Weitzman: No, you are reading the current section 16.
Senator Nolin: Yes, but section 16 still stands.
Ms. Weitzman: Yes, it is still applied on a daily basis.
Senator Nolin: Then, how do you explain section 7 of the new section 16(1)? Where it says that ``any questions regarding their understanding of the nature of the promise...''
Ms. Weitzman: This is what we want to change.
Senator Nolin: This is what I wanted to clarify. The judge's power to investigate is maintained.
Ms. Weitzman: Yes, the judge's power to investigate is maintained when capacity is contested.
Senator Nolin: My colleague is right in saying that the power to investigate still stands. The judge can still test a prospective witness to see if they understand the nature of the promise. Is that not so?
Ms. Weitzman: No. Under section 5, the judge can only investigate so far as to verify the witness's ability to understand the questions and answer them. He makes sure that the person is able to speak, understand and answer. That is as far as the investigation goes. But now, the investigation can go further.
Senator Nolin: That is the point. Were subsections (a) and (b) of the current section 16 not amended?
Ms. Weitzman: Yes, they were struck. Besides, there is no more solemn declaration.
Senator Nolin: Let us see what the bill says. Section 26 of the bill says that section 16(1) of the Evidence Act should be amended and that paragraph (a) should be kept after the introductory paragraph.
Ms. Weitzman: No.
Senator Nolin: Now look closely. The passage from subsection 16(1) of the Evidence Act preceding paragraph (a) is replaced by what follows. Paragraph (a) is therefore maintained. Only the introductory paragraph of section 16(1) is amended.
Ms. Weitzman: Wait a second.
Senator Nolin: There is a contradiction.
Ms. Weitzman: Section 16(1), yes, there is.
Senator Nolin: Do sections 16(1)(a) and 16(1)(b) still stand?
Ms. Weitzman: No.
Senator Nolin: I am confused.
Ms. Weitzman: Excuse me, I did not want to confuse you. If we look at section 27 —
Senator Nolin: Look at section 26 before going on to section 27.
Ms. Weitzman: All right, I follow you.
Senator Nolin: Because section 27 adds another section, which is section 16(1). Let us come back to section 16 for a moment.
Under section 16, the introductory paragraph to paragraph 1 has been changed.
Ms. Weitzman: Yes.
Senator Nolin: So paragraphs (a) and (b) still stand.
Ms. Weitzman: For witnesses at least 14 years old or 14 years old and over. I was concerned about witnesses under 14. This is 16(1) under section 26.
Senator Nolin: This was my mistake.
Ms. Weitzman: Do you follow me?
Senator Nolin: All right.
The Chairman: There is nothing worse than a bunch of lawyers. We thank you very much for your testimony today and the light you have shed on our problems. I think that this will help us make our decisions next week.
[English]
We will adjourn until Wednesday. I will ask for leave of the Senate to sit at 4 p.m. on Wednesday to hear officials from the department. After that, if it is acceptable, we will proceed to clause-by-clause consideration of the bill.
The committee adjourned.