Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 4 - Evidence for November 3, 2011
OTTAWA, Thursday, November 3, 2011
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:32 a.m. to study and report on the provisions and operation of the Act to amend the Criminal Code (production of records in sexual offence proceedings), S.C. 1997, c. 30.
Senator John D. Wallace (Chair) in the chair.
[English]
The Chair: Good morning and welcome Senate colleagues and our invited guest, to whom I will introduce you in just a moment.
I am John Wallace, a senator from New Brunswick, and I am the chair of the Standing Senate Committee on Legal and Constitutional Affairs.
Colleagues, as you are aware, we are here today for our third meeting of this parliamentary session to examine and report on the provisions and operation of Bill C-46, An Act to amend the Criminal Code in respect of the production of records in sexual offence proceedings.
In 1997, in response to the Supreme Court of Canada decision in R. v. O'Connor, Parliament enacted Bill C-46 and in doing so created the present legislative framework that is set out in sections 278.1 to 278.91 of the Criminal Code.
Bill C-46 was intended to strengthen the protection of the privacy and equality rights of complainants in cases involving sexual offences by restricting the production to the accused of private records that are held by third parties. The bill incorporated a list into the Criminal Code of reasons deemed to be insufficient for granting access to personal or therapeutic records along with the factor that a judge must consider in determining whether the records should be produced, including the right to privacy and equality of the complainant and the accused's right to make full answer and defence.
The preamble to the bill stressed Parliament's concern with sexual violence against women and children and the need to encourage victims to report sexual offences. It stated that the fear that personal information would be made public had a deterrent effect on victims who might otherwise have reported sexual assaults to the authorities and sought necessary treatment.
This committee received an order of reference from the Senate on October 4, 2011, to examine the provisions and operation of the act. In the last parliamentary session, the committee held two meetings on this issue and received evidence from a number of witnesses. During the past two weeks, we have heard from Jennifer Stoddart, Privacy Commissioner of Canada, as well as four separate organizations that are involved with matters concerning the prevention of sexual assaults and the provision of services to victims of sexual assaults.
Colleagues, I am pleased to welcome to our committee today an individual who has appeared before us on a number of occasions and is always extremely helpful with his comments. Mr. Phil Downes is a director with the Canadian Council of Criminal Defence Lawyers.
Mr. Downes, the floor is yours.
Phil Downes, Director, Canadian Council of Criminal Defence Lawyers: Thank you, Mr. Chair, and good morning honourable senators. As always, we are grateful to have this opportunity to address you. Our chair, Mr. Trudeau, whom many of you know, reminds me that it is about 20 years that our organization has been coming to meetings such as this to try to assist you. We are always grateful for the opportunity to do so.
This one, I suppose, is a little unusual. We are usually here offering criticisms or suggestions on proposed legislation. Here we have an opportunity to reflect on an important piece of legislation that has been in play for a number of years. We think that an extremely positive feature of the legislation is that it built in this review period. It is something that we will see again in other crime legislation. We think it is a healthy aspect of our democracy that we have the opportunity, while we are otherwise busy with other proposed pieces of legislation, to look at legislation to see how well it has functioned, particularly when it is as important as this.
As a caveat to that, and not as a criticism of anyone in particular, the timeline that the legislator had contemplated to do the review has obviously been exceeded. If these reviews are built in, it is important that we try to do them within a reasonable period of time so that the public can have confidence that Parliament is indeed following its own legislation in these reviews.
I have had a chance to look at the evidence that you have already heard on this review. It is very interesting and much of it very thoughtful and helpful.
The legislation had a number of goals, as we know from the preamble. At the time it was introduced, our organization took issue in principle with many aspects of it. I had a chance to look back at what we said at the time. Hopefully no one will cross-examine me on it. I was not the witness at the time.
In any event, we recognize that the legislation has now had an opportunity to receive constitutional scrutiny by the Supreme Court of Canada and that it is here to stay. Defence counsel are ever vigilant to ensure the fair trial rights of accused persons, but we also recognize that at the end of the day it is Parliament's duty and sovereignty to pass legislation such as this, especially now that it has satisfied the constitutional rigours of the Supreme Court of Canada.
With that context in mind I will say a couple of things. First, we think that section 278 of the Criminal Code has worked. We think it has achieved a balance between defence counsel who may engage in an unrestricted fishing expedition for private records and any failures in disclosure.
Second, we submit that the section requires no amendment, tweaking or tinkering at this time.
When the legislation was introduced, there were two extremes. On the one hand there was the view that these records are always private, must be subject to something akin to solicitor-client privilege and must never be disclosed. At the other extreme there was the view that there should be no restrictions at all and that this kind of evidence should be subject to only the normal rules of relevance and admissibility that a trial judge would impose. In our submission, time has shown that the balance that this legislation achieved has satisfied all but the most ideologically extreme of those perspectives.
Bear a couple of things in mind. There are, in our experience, relatively few of these kinds of applications, particularly in light of the number of overall sexual assault charges that are laid every year in Canada.
In the brief time I had before knowing I was coming here, I canvassed some of my colleagues. I received very little feedback on people who had actually engaged in many of these applications.
My experience, in fact, has been more in representing the subjects of those records — the complainants or the alleged victims in court proceedings as independent counsel to them. That has given me another perspective on this legislation.
As you know, the majority of these applications are ultimately not successful. Judges, we say, therefore, are performing their gate-keeping and their screening role carefully and properly and in exactly the manner that we expect them to when we entrust them with the positions that they hold. We think that the legislation represents an admirable balance between the differing views in this very difficult area of the law.
Let me say a few specific things, if I may, which I have tried to frame in terms of the evidence that you have already heard, in particular, what I thought was the very interesting and thoughtful evidence of Professor Busby. I have some critiques of what she offered to you because, to a certain extent, I think some of the analysis sets up a false dichotomy. In other words, Professor Busby had offered the suggestion that it is rare, if ever, that it can be shown in the cases that these records constitute the smoking gun of the defence; that they will ultimately prove to be the crucial factor in a successful defence. She offered the view that nowhere has it been alleged that there was a wrongful conviction as a result of a refusal of one of these applications.
I fear, therefore, that the other side of the equation is that therefore, defence counsel are only using these provisions to hector or badger or engage in discriminatory reasoning with respect to alleged victims of sexual assault. In my submission, that is not an accurate view of the way responsible defence counsel approach this legislation and these kinds of applications. It does, in effect, ignore the possibility that there may be evidence in some of these records that will be helpful as one aspect of a defence, not the ultimate issue and not the ultimate factor that succeeds in a defence, but one factor that a trial judge or a jury may take into account. We continue to say that a blanket prohibition on the admissibility of or access to these records is not appropriate and surely would attract a greater degree of Charter scrutiny if that were the case.
We must, I guess, remember the overall context. The fundamental bedrock of our criminal justice system is the presumption of innocence and that no one can be convicted unless the prosecution has proved its case beyond a reasonable doubt. The consequences for an accused person found guilty of one of these offences are obviously severe. The consequences for a victim of a sexual assault are severe. These are the two wrongs that we want to avoid — a wrongful conviction and the wrong of an offence in the first place. Prohibiting access to these records completely, in our submission, falls into that category of two wrongs not making a right.
The reality is that trials are difficult, stressful and very hard on everyone involved. I want to quote from a Department of Justice report, I believe from a number of years ago. It is the Caselaw Review on Bill C-46: Records Applications Post-Mills in 2003. The authors said:
It is important to bear in mind, however, that the criminal trial is a process which involves the telling of events of an intimate, sexual nature, and not just telling. One is questioned, rigorously on these events, in such a way that one cannot help feeling personally attacked, even if it the testimony that is being attacked.
In other words, and as the Ontario Court of Appeal has said, a trial is not a tea party. In order to get to the truth, everyone's evidence, defence and prosecution alike, must be fully tested. I fear that is something that simply cannot be avoided in our system of criminal justice.
With respect to some of the specific proposals that you have heard about, one was: Should there be built into the legislation a requirement that judges provide more detailed reasons, particularly in reference to the criteria that are in the legislation? We say that is not necessary. It is my observation that, as someone who does a fair bit of appeal work, appeals in these kinds of cases are not usually, if ever, taken on the grounds that the trial judge has not adequately addressed one particular factor or the other. Our appeal courts are increasingly telling us: Do not pick on the aspects of trial judges' reasons. Trial judges are expected to know the law. If they get it right and say that they have reviewed the evidence and considered the criteria in general, absent some clear indication that they have gone astray, we should trust that trial judges are following the law. Of course, in many cases, trial judges will simply dismiss the application at the initial stage on the basis of one or two of the criteria and not need to go any further. In our submission, I know the legislation says judges "shall consider" all of the factors. In our submission, there is no need to go any further and amend the legislation to say that they need to refer to each and every one of the criteria.
With respect to the issue of the appointment of counsel for a complainant or a victim, we agree. Frankly, I take issue with some of the testimony you heard earlier that defence counsel do not like that because, in effect, they know they will be caught out by counsel for the complainant. As a defence counsel, I want to have everyone's interests properly and fully represented by counsel, so any measures that are taken to support the appointment of independent counsel for a complainant are welcomed. That includes ensuring that there is funding for them, in many cases through the provincial legal aid programs.
With respect to the issue of the reporting of sexual offences, which comes up a lot because it was part of the goal of the legislation, it seems clear from what I have seen that there is really been no change in the statistics with respect to rates of reporting. I do not know what to make of that other than to say that if there was under reporting before and there is under reporting now, I am not sure that one can say this legislation affects it one way or the other. It seems to me there are many complex, difficult reasons that people will not report crimes, particularly crimes of a sexual nature.
Do we need to include in the legislation a requirement that judges must base their decision on case-specific criteria? We do not think so. The Supreme Court of Canada has said that judges should do that in Mills. The Ontario Court of Appeal said it in Batte, one of the leading cases in this area. When you read the legislation and look at the criteria that are permitted and not permitted, it should be obvious. If as a defence counsel you are not tying your application to the particular facts of your case, then your application is doomed to fail, it seems to me.
With respect to the issue of records inadvertently falling into the hands of defence counsel, I want to make one point. I had read in previous evidence that on occasions record holders will send records to the defence counsel directly. That does happen occasionally. In our submission, when that happens, it is very clear what the ethical and professional obligations of defence counsel are, and they are not to take advantage of that by simply reading, going into and using the records. If it is clear that that has happened, defence counsel has an obligation to bring that to the attention of the relevant parties and proceed along the proper application route. It would be incorrect to say that defence counsel simply takes advantage of that or should take advantage of that. They should not do so.
Should the preamble be included in the body of the legislation? Again, we do not think so. I think section 278.5(2) effectively captures much of the preamble.
As a matter of advocacy, counsel should be drawing a trial judge's attention to the preamble to ensure the trial judge takes it into consideration. We cannot legislate every last criterion that makes for good or bad advocacy.
Professor Busby advocated increased training for participants in the justice system. We welcome that for everyone, especially on these kinds of issues, where the risk of discrimination and stereotypical thinking is ever-present.
Does the legislation restrict full answer and defence somewhat? Yes, of course it does. That was acknowledged at the time. However, there is a balance. Having found it to be constitutionally sound, we say the legislation works well. No one is entitled to perfection, neither defence counsel nor Crown counsel in the system. In our submission, this was an example of well-consulted, well-drafted and well-thought-out legislation that trial judges are applying properly and, in virtually all cases, coming to the right result. We do not think there is a need to add or take away from the legislation as it stands.
The Chair: Thank you for the comments.
In your presentation, you referred to an Ontario Court of Appeal case and said you could provide us with a citation. If you could do that following today's hearing, we would appreciate it.
Senator Fraser: There are a couple of areas I would like to pursue, but I will hold the second one for the second round of questions.
The first is the question about counsel for victims. I was interested that you said that you had experience in this area. You have read the testimony before the committee, so you have seen that this question has been raised. Can you give us any sense of the degree to which provincial legal aid systems across the country do provide funding for counsel for victims of sexual offences?
Mr. Downes: I have seen the evidence that you have heard and I have no reason to disagree. There seems to be fairly good coverage in most of the country. I know in Ontario, there is. As I understand it, a trial judge has the authority to appoint counsel and make an order. At least in Ontario, once the judge makes that order, counsel's fees will be covered by the government and administered through the legal aid program. That is my understanding of how it works.
I was looking at it yesterday. It is not clear where the authority comes from to do that in the legal aid legislation. However, I do agree with what previous witnesses have said on that, to the best of my knowledge.
Senator Fraser: We will probably try to pin down more precisely what the situation is.
Here is a real lay question. Can you describe for us the difference that it makes when a victim has counsel? In a real case, what difference does it actually make?
Mr. Downes: I am strongly of the view that the biggest difference it makes — and the biggest failing in our system — is knowledge and information. People who are part of the system, witnesses and victims need to understand what is happening to them. A Crown counsel is not counsel to the victim. They are there to perform a function. In most cases, they do very well in terms of keeping victims and their families informed, but not always. There are victim witness programs. What I saw when I represented complainants or victims in these situations is that they do not understand what is happening. "Why am I being told that my psychiatrist is being subpoenaed? How is someone allowed to do that?" I can sit down and explain to them what allows them to do it. This is what the accused person will have to persuade the trial judge of in order to get to see them.
They take a lot of comfort from that. They may not like it or agree with it and think that is the perfect way of doing things. However, if they know what is happening on what date and how it will be decided, I think they feel more comfortable.
Senator Fraser: I would assume that quite often the victim's counsel takes the position that minimal production of records is necessary and defence counsel argues the other way. Where would the alignment tend to come versus the Crown? We keep being told the Crown is there to represent the state, which it is. The victim's counsel is there to represent the victim. Will there often be much daylight between the positions of the Crown and the victim's counsel?
Mr. Downes: In my experience, if the victim has counsel who is doing their job, the Crown is very often aligned with them. They will not work in tandem, but they will talk to each other about what is happening when and what your position will be. It is not common, but it does happen that victims will consent to the release of records and say, "I do not care. That is fine. You can have them because I know there is nothing in there that will matter anyway." I would not say it happens frequently, but I have seen that happen.
Senator Fraser: How do most victims find out that they have the right to counsel?
Mr. Downes: Frankly, I do not know that there is any one way. Victim witness services in Ontario, called the Victim/ Witness Assistance Program, will help them as much as they can. I am not sure that they always tell them that they can have counsel. Of course, they do not — and I do not mean to be picky — have a right to counsel in the sense that an accused person does when they are arrested, but in the context of this regime, counsel is available. Often either the victim witness will tell them, the Crown may tell them or they may consult a lawyer independently once they hear what is going on. I have seen that happen as well. There are a number of ways.
Senator Fraser: There is not necessarily a system that will kick in?
Mr. Downes: I am not aware of one, although I think most Crown counsel in these types of cases would have their eye to that and say, "How do we ensure that the victim has counsel under these provisions?"
Senator Runciman: I think the bigger problem is unreported incidents and the fear that drives most individuals to not report what occurred.
I am personally sympathetic to the idea of utilizing a government program, perhaps legal aid, if there was a way. You consider it especially unfair if you have someone who is milking the system — and is continually in front of the court three, four, five, six times, and the taxpayers are footing the bill — and you have victims who struggle to address this situation. That is a personal view. I think there should be some cut-off for people in terms of access to taxpayer dollars to fund continuing appearances before the court on criminal charges.
We had a couple of witnesses last week. Senator Wallace was curious about the testimony from the individual who was representing the Canadian Association of Sexual Assault Centres. In her testimony, she said, "There is not a single case where access to the records was a determining factor in the outcome of the case." Do you have a view on that?
Mr. Downes: I read that. I thought maybe more than one witness said that. I think it is an impossible thing to know. If records are produced to the defence — and if they are used at a trial, for example, in cross-examining a witness — and you are in front of a jury, there is no way anyone will know how the jury used those records. You might be able to look at a trial judge's reasons for judgment. However, it comes back to what I was saying. It would normally only be one component of an otherwise multi-faceted defence.
I have not read all of the cases on this and when I read that I thought that maybe the person who said that had. I did not understand how one could come to that conclusion without knowing how the triers of fact are thinking about all of the evidence that they have heard.
I agree that there are many times when defence counsel will pursue these applications on a legitimate, good faith basis, get the records, and then either say that there is nothing in them that is helpful or decide that if they try to manufacture the records to use them the judge or the jury will not like what they are doing. Juries are very sensitive to the way in which counsel treat victims when they testify.
Senator Runciman: Another element of that testimony was a suggestion that the applications for the records go beyond criminal law and that they infringe on the equality provisions of the Charter. Do you have a view on that?
Mr. Downes: That was part of the preamble. Part of the concern that animated this legislation in the first place was equality groups saying that we need to factor in an equality analysis. I believe one witness said that judges never refer to the equality factor.
To me, this legislation does address the equality analysis, because it has that balance. I agree that judges will not always refer to it, although they sometimes do. I do not think it is being ignored. It is in the preamble and is included in many of the components. If you look at the actual components in the legislation about discriminatory beliefs, credibility of a complainant, those kinds of things, those are really what make up the equality analysis.
I think it is there. I think the legislation covers it.
Senator Runciman: You referenced the trial judge's reasons, and we have heard testimony about the need for written reasons and lack of consistency in terms of application. Do you have a position on that?
Mr. Downes: I saw that. Legislation requires that they give reasons. One concern was that trial judges will give reasons orally so they are on the record, but unless someone orders the transcript they are not out there to be studied. If judges give oral reasons, they are giving reasons. It is more from the perspective of researchers and appellate lawyers wanting to see those reasons that that should be a concern.
I do not know how you fix that. I do not know that you can legislate that a judge must order the transcript or produce written reasons in this case. If you did, you would have to be doing that for a whole lot of other pre-trial motions and you would add to the already incredibly overburdened court reporting system.
Senator Runciman: You have had some experience with this. I know that some cases will be more complex than others with respect to an application, but how much additional time does this take in dealing with a case that is before the courts?
Mr. Downes: From the perspective of a defence counsel, it eats up a good chunk of time. In terms of court time, you will generally set aside a day to hear this kind of application. That does not sound like a lot but, as you know, court time is very valuable.
Senator Runciman: If either side disagrees with the judge's decision and appeals, does that put the case on hold?
Mr. Downes: No. I say a day, but because it is a two-stage analysis, if the defence counsel succeeds on the likely relevance stage you will be back to argue the second stage on production. Usually these things are bifurcated.
An appeal cannot be taken on that until the end of the trial. In a criminal trial there is no interlocutory appeal, so you would have to await the result of the trial and then take an appeal.
To add one thing to your first comment about legal aid, in Ontario, at least, legal aid accused who burn through multiple lawyers will very quickly be cut off by legal aid, in these days in particular. They are very protective of their resources.
Senator Runciman: According to some of my policing friends, that is not happening in the jurisdiction in which I live.
Senator Frum: The same witness to whom Senator Runciman referred said it would have been her preference to see a blanket prohibition on records. If I am not mistaken, she identified the problem as the vulnerability of records when they are already in the hands of the defendant. You addressed that in your remarks and said there is already an ethical framework in place which negates the need for legislative prohibition. Can you amplify for me what that ethical process involves?
Mr. Downes: To be fair, I was talking about a particular situation. Let us say a psychiatrist receives a subpoena to bring the records to court under seal and they are dealt with in the litigation. On occasion a record holder may misread or misunderstand that and, having got that subpoena or having heard from their patient that they will be getting it, they may send the records to defence counsel.
In that particular situation, defence counsel, in my view, has an ethical responsibility to realize that someone has made a mistake. It is akin to solicitor-client privilege. If I receive privileged documents in error, which sometimes happens, my obligation is to return them unlooked at and notify the other side. I think that is defence counsel's obligation if a record holder sends them the records.
There are other situations, although I have not come across them personally. I think the witness referred to where the accused person knows or has access to the records.
Senator Frum: Teachers, doctors or psychiatrists themselves who have the records.
Mr. Downes: I think there was an example of stealing the record. I might be more sympathetic to the theft example where there should be some obligation to go through the procedure. If records are otherwise legitimately in someone's hands, the problem is that the reasonable expectation of privacy of the subject of those records with respect to that person has now gone, through no fault of that person. There is one interpretation of the legislation, however, which would say that even under those circumstances you must go through the analysis.
I think, from a practical point of view, that it will be very difficult to say that if you have them, not through any ill gotten gains or illegal activity, and you have looked at them, you should be able to use them. It is a tough one, I do agree, but I do not think there is a consistent analysis where you can say that, having obtained them legitimately, you cannot use them.
Senator Frum: I suppose that the principle at stake is the privacy of the victim, which is what this is partly about. Once it is up to the discretion of the defendant to reveal private things, I do not know if the judge can then interfere in that, but the victim does not then have very much protection.
Mr. Downes: I suppose the protection is this: If defence counsel has them and wants to use them to cross-examine someone, he puts the record forward and provides a copy to the other side. There will virtually always be a relevance objection. A judge still maintains discretion to say that it is completely irrelevant and prejudicial. The fundamental evidentiary principle is probative value versus its prejudicial effect. Even under those circumstances, the judge still has a gate-keeping function on the admissibility of that kind of evidence.
Senator Frum: The intention is to encourage the reporting of crime. I suppose that if the perpetrator is someone in a position of authority over the victim and has these records, this legislation does not help.
Mr. Downes: It does not. You cannot tell the victim of a sexual assault crime not to worry, that their records will never be seen by anyone. I do not know how you could have a regime that could do that and still be fair to everyone. My sense is that there are many other factors that influence reporting other than the fact that records may be disclosed under this fairly rigorous regime.
Senator Lang: I very much appreciate your testimony today. It was very balanced and quite enlightening on how the system works, or does not work in some cases.
I want to go back to the records, following on Senator Frum's question. I call on your experience and perhaps your understanding of others within the world where you live. These kinds of situations must be very difficult to deal with from both sides of the equation. Is it an automatic step for defence counsel to request and look for records on the victim when acting for the accused or is such a request out of the ordinary? How often is this done?
Mr. Downes: It should be an automatic step for a responsible defence counsel to turn the mind to whether there is any evidence of or indication that there may be relevant records. No, it is not an automatic thing to bring an application to simply say that you want to know whether this victim has ever been to counselling. You may make that request to the Crown, if they are aware, but they will likely say that they will not tell you. It should occur to defence counsel, if there is a preliminary inquiry, for example, to inquire along those lines. For example, a question could be: Have you ever been to counselling with respect to this incident? You have heard testimony like that before.
By no means is it automatic for defence counsel to bring the application. Clients have limited funds, whether for legal aid or otherwise. A responsible defence counsel will consider the realistic prospects of succeeding in an application, and if successful, will consider whether any of it will help in the case. He might ask himself: "Will I alienate a trial judge by bringing a frivolous application? Is it obvious on the disclosure I have that there is a link between private records and what happened in this case? If so, I need to pursue that." Often it will go nowhere and simply be a dead end. I cannot tell you the numbers, senator; I wish I knew. Looking at the raw numbers that came out in some of the studies you have looked at and knowing how many sexual assault cases and trials there are each year, it seems to me that a small proportion engage in these applications.
Senator Lang: There are more significant reasons that victims do not necessarily report. I wanted to hear your observations in a general sense as a defence counsel and from your experience as independent counsel. Some of these cases occur in small-town Canada where everyone pretty much knows everyone in the community. Some bans are put forward, perhaps on the victim's side but not on the accused's side. They go through the court system and the accused is found not guilty. Yet, at the same time, his or her reputation is destroyed.
Do you have any thoughts on what could be done so that everyone is treated fairly to the best of our ability, keeping in mind today's technology? I would like to hear your observations on the Internet and how it affects the situations that you deal with.
Mr. Downes: I will probably stray well beyond the scope of what I prepared for, but I am certainly happy to try. With respect to reporting what victims feel, I suspect that one thing that frustrates them is how long things take. We know how long it takes for cases to work their way through the justice system in Canada, and many people feel disillusioned by that. Many of their concerns are increasingly addressed, such as having to testify and face the defendant in court, which is often taken care of by closed circuit television, screens and publication bans. We are fairly rigorous on publication bans. On the broader question of reputation, I have always been of the view that when a front page headline announces the occasion of someone's arrest and that person is subsequently vindicated or found not guilty, the media should be required to provide equal space to advise the public of that. We see in wrongful conviction cases that at the moment of arrest, the accused is the worst person in the community. It may be factually proven that he was innocent but it is addressed only at page 5 of the newspaper, not the front page. I do not know what you can do about that. The Internet is part of our world, with Twitter and all the rest. Well beyond my thoughts right now is how to deal with that. It will really challenge the justice system in these kinds of cases; I am sure of that.
Senator Angus: I believe that you are here today in your capacity as a defence counsel in criminal cases. Is that right? Is that what you do?
Mr. Downes: Yes, for the most part.
Senator Angus: The job of this committee is to do a review of Bill C-46 to know how it is working. I was quite interested in hearing that you think it is working fine and is a well thought-out and consulted on piece of legislation. My natural instinct was to question you no further.
On the other hand, as a defence lawyer in these kinds of cases germane to Bill C-46, we have heard from other witnesses, to which you referred.
Mr. Downes: Yes.
Senator Angus: Some witnesses have pointed to the defence bar as exploiting loopholes, if you will, in the guidelines of Bill C-46 to the disadvantage of complainants and with the net effect of discouraging them from coming forward.
I agree with Senator Lang that you have given a very balanced and rational statement before us this morning. I sense that you will give me an objective answer, which is a good thing.
Is there any merit in these criticisms, as far as you are concerned? Certainly, there are bad apples in every barrel and unfortunately it is the one bad apple that ruins the rest of the barrel.
Mr. Downes: Allow me to pick on one aspect of the previous evidence that you have heard, which is what you are talking about, and that I take issue with. I am not picking on Professor Busby because her evidence was interesting and clearly she is an expert in this area. She said:
One way accused persons get records today is by saying sexual assault complainants must be emotionally disturbed. Then they say that if she is not emotionally disturbed, she probably was not assaulted, and if she is emotionally disturbed, then she cannot be trusted. That is the logic that applies. The court will then say, "Oh, okay, so there must be evidence of emotional disturbance somewhere, and you can have access to the record."
In my submission, that is not an accurate portrayal of how these applications are dealt with. If I were to make that application before a judge, I would fully expect the judge to get rid of me pretty quickly.
Legislation builds that protection between the hectoring, badgering and bullying defence lawyer in pursuing the records and the concern of the victim. It is a different issue, senator, when the witness is on the stand and the complainant is testifying about what happened. If my client says to me, "I did not do it; she is lying," then I am duty bound as a defence counsel to test her evidence as vigorously as I can. If I stray into bullies or arguments with the witness, a trial judge will have none of it; and if I have a jury, they will not like me. There is no doubt about that.
We have a job to do. It would be wonderful if our system meant we could have a truth without a trial, but that is not what we have. We are duty bound as counsel to cross-examine vigorously, even if it means we may leave at the end of the day and say, "I did not enjoy that."
Senator Angus: That is helpful. Building on that — and some of the other issues that have been brought to our attention, as being loopholes or to close loopholes for criminal defence lawyers — are there other examples you could cite that you do not agree with that testimony?
Mr. Downes: That was the one that stood out to me. There are only two options. Either the records have nothing in them, or defence counsel is seeking to engage in discriminatory reasoning or bullying of a witness. In reality, a well-run trial is much more sophisticated than that, but that was the kind of thinking that stood out to me. To repeat myself, the legislation deals with it. It is a balancing legislation. It does not adopt one extreme or the other. Defence counsel many complain about it and say, "We should have access to everything." That is what "full answer" in defence is, but that is not the way we have developed it.
Senator Angus: You are aware some testimony we have had suggests it might be helpful if we had specialized courts to deal with alleged sexual offences. I believe there is a trend. Perhaps we discussed this before with you in the area of drug abuse, specialized judges and so forth. Is there any merit in that suggestion or is it even practical in your experience?
Mr. Downes: I think we have touched on this before in the context of white collar crime and fraud. The U.K. has started specialized judge-alone cases because of the complexity of some of them. There are drug courts and mental health courts. I am not sure we need to go down the road of specialized sexual offence courts. We will end up with so many specialized courts that we will not know what to do with them. If we have a rigorous judicial appointments process — and we do in my submission — those judges should be capable of dealing with all those things. It should be the very careful case where we even think about specialization.
Senator Lang: What has occurred to me in this interplay between the two of you is that perhaps a more logical step to take is to identify those in the legal fraternity who are specialized and involved as lawyers in this particular area of law. The individuals who are in a situation like that are going to be represented by people who know the law inside and out. They will get the necessary counsel. I have personally seen a situation where I do not think the individual was well represented. I do not think the legal counsel had the background that he or she should have had. Perhaps there may be a better way to have an identification of those individuals from the legal fraternity. There could be a list that one could draw from and say, "They have been involved and know the court system in this particular area better than others." I would like your comments on that, as opposed to special courts.
Mr. Downes: Are you referring to people representing accused persons or representing victims?
Senator Lang: Either side.
Mr. Downes: When it comes to people representing complainants in these situations, the practical reality is that local jurisdictions develop informal lists of people who do this kind of work. There is a de facto specialization. When it comes to representing accused persons, we are into the air of law society regulation of competence and professionalism. There are certified specialists in criminal law and people who are known to specialize in certain areas. That is part of the public education and information to the public. Law societies try to refer people to specialists in certain areas.
Senator Lang: Do you think they do that? Do they do it well?
Mr. Downes: I think to a certain extent they do. In Ontario, there is a certification program that is fairly rigorous for people who are specialists, and members of the public can find that.
Straying off a bit, I think there is a real issue with public information about legal services. People are often buying legal services in a real vacuum, based entirely on what a friend or a relative may have told them.
Senator Angus: Counsellor, as you know I am also a member of the bar, albeit not criminal defence bar. My specialty was shipping and insurance, but I always fantasized how much I would like to be a criminal defence lawyer. I dabbled in it a few times. I was very depressed that a considerable amount of evidence was denigrating our system of justice. Witnesses said flat out that the system is not working at all in a general sense. We know there is not a perfect world, there are not unlimited budgets and there are many areas that could be improved. In its small way, this committee is hoping to have some influence in improving those things.
In respect to the issue of Bill C-46 we are seized with, we heard in the testimony that a small percentage of complainants are coming forward due to the flaws of this terrible system of justice we have. Do you have any comment on that? I was quite disillusioned to hear that.
Mr. Downes: I always find it hard to get my mind around how one accurately gets statistics for studies about unreported crimes. However, accepting them as they are, I do not think one can look at this legislation and say, "This is why sexual assault complainants are not coming forward." Those reasons have to do with a general fear of being exposed in a small community, things will take too long or there will not be any satisfaction at the end of the day. There are a lot of things. Solving those within the system of justice that we have cannot be done unless we compromise a whole myriad of other things. It is a difficult, complex human system. For the most part I think we do a good job.
I took my nephew to the courthouse in Durham region. He met with a judge and watched a jury trial. Everything he went to was done in a professional way. He came away with interesting questions and I think was impressed with what he saw. There are many flaws, but I do not think this legislation is the prime factor in people not reporting cases.
Senator Joyal: I would like to draw your attention to section 278.5(2)(c) of the code whereby, among the factors to be considered by a judge before ordering the production of a record, the judge must take into account "the nature and extent of the reasonable expectation of privacy with respect to the record."
I am wrestling with the factors to be considered. I want your comment on my perception. A victim who has been under professional care — a doctor or a psychologist, or who has a relationship of authority — a supervisor or a teacher, and who has been frank and open with that professional, is disadvantaged by the fact that the person who holds the record could know the personal history of the victim and use it as a defence. A judge has to consider "the reasonable expectation of privacy" but in such a case, that section would benefit from an improvement. I just drafted wording, as I listened to you and Senator Frum, to improve that phrase. I suggest adding: "in particular when the information was given when the person was under professional care or authority." We have to send a signal to the judge. It is totally unacceptable to unbalance the condition of the victim when that victim has been open and has trusted the professional. The day when the professional finds himself or herself accused of a sexual offence, that person would have the advantage over another professional who would not have the capacity to retain privacy information.
I feel that since we do not have jurisprudence, because the witnesses we heard at previous meetings told us that those decisions are rendered on the bench and there is no record unless we look into all the transcripts of cases, which are not easily available, it would signal to the judge that in such a situation the judge must be more attentive and has to take special care for the victim, who trusted the person accused of the sexual offence. At least it would give comfort to the victim who might have to face a former teacher, doctor or psychologist. The judge would understand that the information retained by the accused could not be used easily against the victim. How do you react to that?
Mr. Downes: The particular subsection does not get much attention, I would suggest, because it is almost a given that a victim has a high expectation of privacy in medical, psychiatric, counselling, educational records and all other records in the definitions section. One reason you do not see judges lingering over it is that they do not need to. I think that is why.
If your concern is that the accused person is the person holding the records, I do not think their expectation of privacy under this is diminished, because if that privacy is part of the proceedings, it will relate to the wider exposition of those records in the context of a trial.
This comes back to the question earlier: Does there need to be a specific provision about waiver if the records are in the hands of someone who already has them? I have to tell you that I am a little uncertain about that. The legislation says that it applies to a record in the possession or control of any person, unless the complainant has expressly waived the application.
I am not sure that a doctor who already has those records would be any differently situated. I do not know that it needs change in the way that you suggest because everyone understands the high level of privacy in those records. I do not know if I am assisting you. If I am not, please tell me.
Senator Joyal: When a victim of a sexual offence has to face his teacher, for example, that teacher could rely on information that he or she was detaining in the exercise of his professional capacity and the victim would be disadvantaged because he or she could not oppose the fact that the accused has the records and can come forward, table it and use it in his or her defence. That is where I have difficulty.
If the person retained the information, he or she should submit to a test, which would be more stringent for someone who has been entrusted with the records in a professional capacity.
Mr. Downes: I take the point. There should be something to address the accused that retains information because of a professional status and the person should still be subject to a screening.
Senator Joyal: Absolutely.
Mr. Downes: I disagree that the test should be higher. The test should be the same regardless of who is holding that record. The test is the balance of likely relevance and all the rest of it.
Senator Joyal: They should be tested. I do not think it is fair that a teacher, for example, who retains information on a person who has been the victim of a sexual offence, could go forward and divulge personal information that might discredit the person because of the mere fact that he or she retains the records. Essentially, it is all about trying to discredit the victim. What is the use?
The Chair: I know you feel passionate about that, and you have made your point clear. I believe that Mr. Downes has answered your question.
Mr. Downes, do you wish to add anything?
Mr. Downes: No, thank you.
The Chair: Senator, do you have other questions?
Senator Joyal: No, thank you.
Senator Meredith: Mr. Downes, did I hear correctly when you indicated that the Crown did not have an obligation to advise complainants about seeking counsel? Is that correct?
Mr. Downes: I do not want to give information I do not necessarily have. There may be a directive in Crown policies that they have to do that. I am not aware of it, but that is something we could easily find out by looking at Crown policy manuals. They do not have the same obligation as the police have in terms of an accused under arrest. In reality, I would suspect that most Crown counsel will turn their mind to the issue of a complainant getting counsel in the context of section 278 because it is in the legislation.
Senator Meredith: Do you believe that Bill C-46 goes far enough in protecting those who are vulnerable — Aboriginal women, the disabled — and meeting their needs in terms of comfort level and being fully represented in the courts?
Mr. Downes: I think the legislation does. You have heard testimony before about how it operates in different parts of country, but not so much in the North. There are other areas where people whom you have just described do not get serviced, through adequacy of counselling or drug treatment or all kinds of resources. I think this legislation, in and of itself, sets up an adequate framework to balance all of the interests, including the groups that you just mentioned.
Senator Meredith: As someone who respects those who serve and protect our communities, and oftentimes you hear reports of an officer who fails to do his job properly in documenting a complainant's case and passed on remarks and so forth.
In your opinion, what do you think needs to be done, in terms of your experience, with respect to the sensitivity that law enforcement officers need to have around collection of proper information? Then when a case does come to court, they have actually supported the victim rather than further intimidated them or ensured that their case is not substantiated, where a defence lawyer will then jump in and say: Based on this, adequate information was not collected.
Mr. Downes: I guess what you are really talking about is ensuring that police officers are adequately trained in these particular areas. I know that certainly any police service of any size has a sexual assault dedicated unit, and sometimes even child sexual assault specialist officers, who are trained in how to interview those people effectively to get the best evidence out. I think police do a very good job at ensuring that complainants give their statements on videotape, what we call the KGB statement, under oath. That is almost standard practice now.
I think, as I said at the outset, one of the big things is simply communication as to what they should expect and what the processes are. It is one thing to take a complaint, take a statement, and then head off, and the next thing a complainant knows is something is happening in six-months' time. I think there has to be an emphasis on keeping them informed as to what is happening.
Other than that, as I say, you are talking about whether our police officers are properly trained in the many areas that they have to engage in. This is one of them. The specialized units generally do a pretty good job.
Senator Meredith: To go back to a point that Senator Joyal raised, I have a question regarding our judges and the sensitivity they demonstrate and the role they play in relation to their decisions, in allowing records to be obtained or, in some cases, allowing them to be brought forward; and then their comments towards victims. Can you elaborate in terms of what needs to be fixed there with respect to our judges and the important role they play in the lives of these victims?
Mr. Downes: Judges play an important role in the lives of accused persons too, and of witnesses and victims and police officers and everyone else.
Senator Meredith: Do not get me wrong, I understand that. We have seen and heard the cases that too often come to light with respect to their position and sensitivity.
Mr. Downes: One of the witnesses, I think it was Professor Busby, talked about the importance of education of all participants, including judges. I agree with that. Judges do get that kind of training as to how to deal with vulnerable witnesses and sensitive situations.
I would venture to guess that the kinds of cases you are talking about where judges make outrageous comments about a victim's appearance — the way she dresses or things like that — are few and far between these days. We have seen them in years gone by, and the Supreme Court of Canada has had things to say about those kinds of cases. I really believe that judges today, judges who are being appointed today, are much better informed about those issues, much better trained about them. I speak sometimes at new judges' seminars. I know they get training in these areas.
The other thing is that, if it does happen, then our courts of appeal and our Supreme Court of Canada are there to call them to account for that. I venture to suggest that a judge who goes down that road of the kind of language that we have seen in years gone by will likely very soon be held to account in one way or another. Generally speaking, senator, I think they do a pretty good job.
The Chair: Mr. Downes, obviously all of us were very interested to hear your opening comment that, generally speaking, the bill has worked, that it has struck a reasonable and fair balance between the rights of the accused and the rights of victims. That certainly was highlighted in the questions that were asked of you by Senator Angus. That is fine.
It is one thing to look at the legislation as it is, and it seems to have accomplished generally what it was intended to do, but from our point of view and the responsibility we have, could it be any better going forward?
Having said that, maybe just drill down a little bit into two of the fundamental tests that a judge would apply in considering whether to order, for his review, the production of a document, and ultimately whether the document would be produced to the accused. The test or consideration is, as you know, is the document likely relevant to an issue at trial, and is it necessary in the interests of justice to have that document available to the accused?
Both of those terms, likely relevant and in the interests of justice, are, to laymen at least, very general. It is hard to wrap your hands around that and understand what that means and what a judge would actually consider in making that determination.
Of course, layered on that is the third part of the test, and that is the factors that are in 278.5 that a judge would consider. Each of those factors — and Senator Joyal has focused on one of them — are quite general in nature.
The question I would ask you is the following: Are you, as a defence counsel, in your experience, satisfied with the terminology that is used in the bill to establish this critical test, or is there anything else, other factors that perhaps we should be considering, or the judges should be considering, or any other language we might have around those tests?
Mr. Downes: That is really at the heart of it, is it not? Are we giving judges good enough guidance on it? I have to say honestly, senator, I think we are. There are some factors I would, as a defence counsel, probably want to take out, because they do make it very challenging.
If you look at the insufficient grounds section that talks about how the following assertions are not sufficient on their own to establish relevance, it talks about that the record relates to the subject matter or relates to the credibility of the witness. These are things that, in normal course, we adduce evidence and we think that just goes without saying, that if it relates to their reliability, that evidence is admissible. These set up real hurdles.
There are almost too many criteria for judges to consider. There is certainly none that I would add. Having the "interests of justice" there, I think that is always a helpful phrase for a judge, because it allows for those situations that we may not have thought of that may arise, and a judge could say: The legislation does not consider that, but it is or is not in the interests of justice.
It adds this super layer to relevance that I think is detailed and helpful. I think judges rely on them, and you see it in the reasons that they give.
The Chair: To understand what "likely relevant" means and "in the interests of justice," is there case law that would in any way define what that means, or is it left to the discretion of each individual judge to apply his own test?
Mr. Downes: Ultimately, each judge will assess the facts before him or her, but there is guidance on what we mean by that. "Relevance" is usually couched in terms of, is it logically probative? Does the existence of fact, A, make the conclusion, B, more or less likely? That is the classic test for relevance. If something is here, does it help prove or disprove a proposition? In a logical way, not in a stereotypical way. Yes, there is guidance on that.
"Interests of justice," we find all over the place in the Criminal Code, so there is some guidance there. Really, "interests of justice" are captured by all of these criteria, I think.
The Chair: I know you are aware that judges can impose conditions on the release of the documents. As you know, there are examples set out in the act, 278.7(3), as to what those conditions could be. Again, those are not exclusive.
Do you have any comments to make about those conditions, maybe from two perspectives: Is there anything you would think of that should be included that is not, and what has your experience been in terms of circumstances in which judges have imposed those conditions? Have they done it enough? Obviously, that is an important issue in protecting the rights and interests of victims.
Mr. Downes: I have not seen enough examples of getting to that stage and editing it in any way other than one that we would expect, to offer any useful comment. In other words, judges routinely will edit personal information out. I saw a judgment just released two days ago, in fact, on this very issue, where the judge, in the reasons, included a copy of the letter that the psychiatrist had sent and redacted all of the personal information. The judge refused the application.
In fact, for defence counsel it is not a big concern. Defence counsel are more concerned about getting and using the record. What happens to it afterwards, most defence counsel will not take issue that it should not be distributed, copied or edited. I think it is a pretty thorough section.
The Chair: I have one final question. You have touched on this, and with Senator Lang's questions, in particular, you may have addressed it.
The focus, of course, is on Bill C-46. I am wondering whether, in your experience as a defence counsel, one who has defended victims of sexual assault, there is anything else that we should be thinking about that could be done, if not within the confines of this act but beyond that, that would encourage victims of sexual assault to come forward.
Obviously, there are still significant issues and reasons why it does not happen. However, having heard the stories and dealt with the victims themselves, is there anything else within our experience as legislators that we could look at doing to better encourage these victims to come forward? Because that is ultimately what I think all of us would want.
Mr. Downes: It is such a difficult issue. The only thing I am going to offer you — because it comes concretely from an experience I have, which I cannot, for obvious reasons, go into in any detail — is very specific.
If an accused person who is accused of sexual offences, particularly criminal harassment offences — such as stalking, those kinds of offences — insists on being self-represented, thought might be given to situations in which judges are given the authority to, and supported in, restricting the manner in which that self-represented person can conduct themselves or insisting that they have counsel, funded counsel — unfortunately, we will have to pay for it — to conduct the case, notwithstanding that self-represented person's desire not to have it. In my experience, it is better to use public funds to conduct an efficient case that protects everyone's interests than it is to have a self-represented person take up days and days of court time harassing and engaging in techniques that are harmful to not just the victim but to the whole process.
The Chair: As well as that the whole nature of the questions that someone who is defending himself may put before the court could be inappropriate.
Mr. Downes: There are protections in that regard, that a judge will appoint counsel to cross-examine the complainant. Usually a self-represented person is not allowed to do that, but they can influence the process in other ways, for example, by delaying things. I do not know how you do it, but I think that is one area that, because we see an increasing number of self-represented individuals, does have an impact on a victim who is saying: Why is this taking so long and why is that person controlling the process and not me?
The Chair: That is very interesting. Thank you for that.
Senator Fraser: Actually, Senators Meredith and Lang covered the ground that I had hoped to ask about, but let me just ask one quick question of Mr. Downes. I think the answer can also be quite quick.
As you know, there has been discussion — I think you mentioned it yourself — about the possibility or need for greater training of judges in these matters, sensitivity training as much as anything else. I assume they are trained in the law. What about members of the bar, the lawyers on both sides, on all three sides in this case? Do bar associations provide training or do other people provide training of this nature for lawyers who will be engaged in these cases? If so, do many lawyers take advantage of it?
Mr. Downes: With respect to Crown counsel, undoubtedly yes. Their training programs are extensive, formalized, and often directed to these kinds of situations. That is fairly easy.
With respect to defence counsel, obviously there is less control. No one controls independent practitioners such as myself, except to say this: The law societies in many provinces are now imposing mandatory education hours each year. The Law Society of Upper Canada has done that. What they do not say is what kind of training you have to take. That may be a much more challenging proposition.
There is a lot of training out there and available. We could talk another day about who funds that and the impact of big firms versus sole practitioners and that kind of thing, but there is certainly a lot out there available. If you want to be a good lawyer, I say you take advantage of it.
The Chair: Senators, that concludes our questions and Mr. Downes' presentation.
Once again, we want to thank you very much, Mr. Downes. As I said at the outset, you have appeared before us a number of times and your comments today were no exception; they are always very thoughtful comments and very helpful to us, and we deeply appreciate it.
Colleagues, if we could suspend for a moment. There is one further issue I would like to discuss with you.
(The committee continued in camera.)