Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 5 - Evidence for November 16, 2011
OTTAWA, Wednesday, November 16, 2011
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:19 p.m. to examine 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 afternoon. I would like to welcome our invited guests and members of the public who are viewing today's proceedings on the CPAC television network. I am Senator Wallace, from New Brunswick, and I am chair of the Standing Senate Committee on Legal and Constitutional Affairs.
We are here today for our fourth meeting of this parliamentary session to examine and report on the provisions and operations of the act to amend the Criminal Code in regard to the production of records in sexual offence proceedings.
In 1997, in response to the Supreme Court of Canada's decision in R. v. O'Connor, Parliament enacted Bill C-46, an act to amend the Criminal Code as regards the production of records in sexual offence proceedings, and thereby 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 of private records to the accused that are held by third parties. The bill incorporated a list into the Criminal Code of reasons to be insufficient for granting access to personal or therapeutic records, along with the factors 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 concerns about 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 operations of the act. In the last parliamentary session, the committee held two meetings on this issue. In February 2011, we heard from the Department of Justice, the Public Prosecution Service of Canada, Statistics Canada and Professor Karen Busby from the University of Manitoba faculty of law.
Recently the committee has heard from Jennifer Stoddart, Privacy Commissioner of Canada, the Canadian Association of Sexual Assault Centres, Ottawa Victims Services, the Ottawa Coalition to end Violence against Women, the Ottawa Rape Crisis Centre and the Canadian Council of Criminal Defence Lawyers.
Colleagues, I am extremely pleased to welcome before our committee today Professor Donald Stuart from the Faculty of Law at Queen's University. Professor Stuart teaches in the area of criminal law and, in particular, criminal law procedure. He has produced numerous publications and texts on criminal law.
We are very honoured that you are with us today, albeit through the technological means of videoconference. We are happy to have you here and anxious to hear your thoughts on Bill C-46, so without further ado, I understand you have an opening statement. We would be interested to hear that, following which each of our committee members, I am sure, will have questions for you.
Donald Stuart, Professor, Faculty of Law, Queen's University, as an individual: Thank you very much for the invitation. Also, the opportunity to videoconference means I did not have to cancel law classes, which would be disruptive at the law school. I apologize in advance for my lack of ability to speak French.
I have read the minutes of the appearance of your previous witnesses. Given that, I have four positions for you to consider today.
First, any Criminal Code amendments which would make it even harder to get access to third party records in sexual assault cases would inevitably lead to successful Charter challenges. Therefore, I am of the view that you should stay put.
Second, Justice L'Heureux-Dubé's view that records should be only rarely available under the scheme was adopted by Parliament. I believe that has triumphed and they are rarely accessible. In that context, though — and this is my major point today — I believe the provisions that Parliament enacted, as interpreted by Mills, in respect of the test of likely relevance and the inability of judges to see the record before they make the next decision is unfortunate, possibly making it unjust for some accused and certainly very much too complicated.
Third, the assertions by Parliament and by the Supreme Court of Canada in Mills of equality rights for complainants in sexual assault cases has certainly produced difficulties and has led to anomalies.
Finally, I join other witnesses that you have heard before saying that there is an urgent need for more investigation as to what is actually happening before any steps are taken to change the existing law.
I understand I have seven minutes, so I will have a chance to elaborate on some of those points when you get to questions.
However, I do want to say that whenever I speak on sexual assault, I make some disclaimers. First, I think that we all recognize, and I certainly do, that sexual assault is a vastly under-reported crime. I also think it is helpful to remind ourselves that we have one of the toughest sexual assault laws in the Western world.
We have a rape shield law that applies equally to prior sexual history with the accused. We have got rid of a lot of discriminatory evidentiary laws. We have a broad brand approach to sexual assault; under tier 1, which is the most commonly charged form of sexual assault, it could be what we used to call rape, it could be an unwanted kiss or it could be some other sexual touching. Indeed — and this is not on the agenda today — I think in some considerable respects we have trivialized the crime of rape by doing it in this particular way.
I think it is also an undoubted reality that notwithstanding our very tough laws, complainants still are reluctant to report to the justice system. Therefore, I do not see how toughening up any laws, including this set of laws, would help. A far better approach would be through education.
I have to say that recently, in the last year, one of my students reported that she had been sexually assaulted — of course, confidentially. I referred her to a sexual assault crisis counsellor. She came back later on and said the counsellor said, "You will never prove this, so do not bother to proceed."
I was shocked, so I tried to persuade her to go to the police department. However, by then she said she was not going to go, so I think there was a lack of proper education and advice that she was given.
Finally, just by way of an opening statement, I think it is very important when we consider access to records to consider that the undoubted reality is that judges and sometimes jurors are acquitting in some sexual assault cases. That is not because of their sexist attitudes necessarily. I think it is much more likely that there are some cases of sexual assault that reach the courts that are difficult to resolve if you believe in the presumption of innocence and proof beyond a reasonable doubt.
When we think of whether or not there should be a softening of the laws relating to access to third party records, we should not be thinking of the obvious cases where no possible defence should be mounted, is mounted and there is likely to be a conviction. We should think of cases, for example, where it is quite clear that there was consensual activity in advance and then the parties diverge as to whether or not there was further consent to whatever happened next.
We should also think of cases where there are multiple actors and quite a lot of alcohol consumed, so credibility of the various witnesses should be tested. It is in that context that we get to consider the issues of access to records.
I do not know how much time I have. I could start my points or leave it open to questions.
The Chair: Professor, you mentioned that you had been told about seven minutes. Take the time you need. What you are saying is very important to us. Do not feel time constrained.
Mr. Stuart: I did distribute notes in English. I only had two days' notice, so I am sure they have not yet been translated. They will be in the record of the committee somewhere.
I also want to say that, and I do not want to lecture anyone here, this committee is very adept at looking at this very complicated picture of legislation. My concern is addressed to only two aspects of it. The rest of it, as declared constitutional in Mills, does not concern me at all.
My four concerns relate first to the assertion of equality rights through the preamble, but then, second, the likely relevance test, which, as you all know, is complicated. It is section 278.3(4). That is only the first part of the first stage. The second part that concerns me also is 278.5, which makes it difficult for a judge to get a look at the record before he or she decides on the next stage, which is whether to produce it to the accused.
My first point is that I would oppose more restrictive amendments. I think some of your witnesses were saying to go back to an absolute privilege of this type of material. I think it would definitely lead to a successful Charter challenge. I remind us all that it was Justice L'Heureux-Dubé who rejected the notion of a class privilege in O'Connor. She said the trouble with class privilege is that there will always be the argument that you need to break the privilege to make full answer and defence. She thought it was a great idea, and it was very imaginative and hard-working on her part to come up with an idea of balancing Charter rights. Against full answer and defence she obviously said we need to balance privacy and also equality rights. That whole scheme, as we all know, was legitimated under the Charter view in Mills, so it seems to me that the balance is there, the balancing test is there, and to go back on this would be just to invite further Charter challenges.
My second point, and this is the major one, is that I think Justice L'Heureux-Dubé set out to ensure that these records were rarely available and rarely accessible to defence counsel. I think undoubtedly she has achieved her objective. Statistics in cases that have been documented by the Department of Justice and so on indicate that you rarely get access to any of this information, whether it be therapeutic records, a diary or journal of the accused, a hospital record or any sort of record. There are cases, though, where records are ordered to be produced.
I think she did achieve her purpose in that respect, but I do wonder about whether the regime that we have in place at this likely relevant stage is fair to all accused, remembering particularly of the accused where there is a triable issue as to whether this was consent or mistaken belief.
I have five points to make under this point. First, Justice L'Heureux-Dubé said in O'Connor that the reason why these should be rarely accessed is that therapeutic records are not the type of records, like those by sexual assault centres and so on, that are searching determination of the truth. Most sexual assault counsellors do not ask questions like, "Did it really happen? Was it really that bad?" It is a much more affirming, supportive environment.
I absolutely agree with her, but we must recall, too, that the majority in O'Connor, five other judges, said they could imagine other situations where records could be helpful and should be available to the accused. They mentioned the examples of how the complaint unfolded, use of therapy to influence memory. Since this time the Supreme Court of Canada, by the way, in a case called Trochym, has decided that hypnosis-induced memory is so unreliable that it should never be admitted in a court of law. If this was the case in this case, there would be some evidence that there should be access even to that therapeutic record in that particular case.
There are some cases, wider than therapeutic records, that could be imagined that should be available to defence counsel ultimately.
Of course, Parliament sided with Justice L'Heureux-Dubé. The drafters of the legislation were all consummately impressive lawyers, and they set out this very complicated scheme to make it harder and harder to get access to any of this material. From their point of view, they did a fine job.
In particular, the first part of why it is so difficult to get access to these records is paragraph 278.3(4) of the Criminal Code. That is a whole list of things that make it not relevant — just a bare assertion makes it not relevant. The list is very long. I cannot think of a list that is more comprehensively designed to make it difficult for defence counsel. You cannot get it if you assert the record exists, or there is some inconsistency in a prior statement, or it relates to the credibility of the witness, or it relates to this particular event, or it relates to presence or absence of a recent complaint. I understand that one. There are others.
In particular, the notion that you should not be just asserting that it is relevant because it relates to this event or to prior inconsistent statements, the whole of our justice system depends on the right to cross-examine and the right to point to inconsistencies on the issues of credibility. What happened in the case of Mills was that the Supreme Court of Canada read this down and they said that it is not so bad as someone like me would make it out to be, because all we are suggesting is it cannot be a bare assertion of counsel. Counsel cannot stand up and say, "I think that therapeutic record might be relevant." That is not good enough. There has to be an evidentiary foundation, and with that in mind they read it down so it is constitutional.
The trouble is that in this particular respect they said that the evidentiary foundation can be found in the preliminary inquiry in particular. The real trouble with that now is, and it has been true for a long time, most sexual assault trials do not have preliminary inquiries. Many of them, to an unknown degree, take place at provincial court with no preliminary inquiry. This committee will be aware that the preliminary inquiry has been restricted and it is not necessary that it is mandatory in sexual assault cases even where the case is going to a higher court for trial. My concern is whether there is any realistic or properly fair basis upon which defence counsel can set out and find an evidentiary threshold.
Let us assume defence counsel is trying to persuade a judge that it is likely relevant. You have to get over these bare assertions. You have to find some evidence to back it up. Remember that the defence counsel usually has not seen the record and the way it is set up by Parliament, nor has the judge. The judge and the defence counsel are both in a complete vacuum.
The next stage at the first stage of this two-part process under the parliamentary scheme is that the judge under section 278.5 has to go through a whole range of considerations. I notice that Senators Baker and Joyal the last few times ago were upset that judges were not regarding this as mandatory. They must consider the right to defence, privacy and equality and then a whole list of other rather general considerations, (a) to (h), in 278.5.
We all know what happened to this and why judges are not necessarily going through every single criterion or giving their reasons to deal with every single criterion because, once again, in Mills, the Supreme Court of Canada read this down and said the judges do not have to engage in a conclusive and in-depth evaluation of every factor at this early stage.
The court was quite mindful of the fact that this was all proceeding in a vacuum. The implication from some of your previous witnesses is, one thing we can do as parliamentarians is to make it mandatory and make judges consider all these factors in every case and give reasons covering every factor in every case. I am with one of your witnesses, Phil Downes, who said that shows somewhat of a lack of trust in the ability of judges to do the right thing, exercise judgment and to be aware of the pertinent details, and it also shows that the experience of judges dealing with these records applications under the Mills scheme is that some of the criteria are extremely difficult to understand.
For example, if you are dealing with trying to get access to a diary of a complainant in a sexual assault case — a very private document for the witness — how can you take into account whether or not the judge wants to see the diary? How do they take into account that there might be a discriminatory belief involved here? Most judges resort to privacy versus full answer in defence, and how probative is this document.
Most judges I know prefer the old regime under O'Connor, where they would actually take a quick look at the document first. They cannot do so under this scheme because they have to go through all this criteria. I think it would be much more conducive to justice. Many judges have told me personally — and I am not in active practice at the moment — when I deal with records cases, it is much easier to look at the record because I can dismiss it as a fishing expedition easily. It is more difficult if I am not able to look at the record.
This is probably my major pitch for the committee. I suggest this idea of a likely relevance test and keeping the document away from the judge before he or she can decide whether the defence counsel can hold it should be reconsidered. There should be an amendment that makes it simpler for the judge to make a quick assessment. In most of these cases it will be a fishing expedition, have no value for the case and get rid of it right from the beginning.
The last thing I would say on this point is that we can see which way the Supreme Court is going on this. There is another case called McNeil, which was handed down in 2009. This was not a records case involving sexual assault. This was a case involving whether defence counsel should get access to the fact that a police witness had a severe disciplinary record in another case. The justice gave a judgment for the court. This was not a sexual assault case, so she said in every other case than sexual assault, the original O'Connor view is to be applied. As I read that case, she says we have to be realistic. No one has seen the record, so we cannot expect much if the defence counsel has not seen the record. She said that once you have met the likely relevance test and once the judge has had a chance to inspect it, it is likely a decision can be made rather quickly.
I think judges with experience in the area of criminal law practice would realize we should trust them more and not put criteria on them — that do not seem to have much legitimacy in some cases — as to how they should decide whether this private document should be disclosed to defence counsel.
My next point is a more difficult point to get across. Originally, in this context of sexual assault, Justice L'Heureux- Dubé and Parliament decided that enforceable equality rights should be recognized for complainants in sexual assault cases. I think this is causing some difficulties.
For example, when we normally deal with a section 15 claim, it is not easy; none of them are easy. If someone argues that a law is not a question of equality but is this law discriminatory on the basis of gender, we have to make arguments. We have to ask, is it discriminatory of women? Is it discriminatory on the basis of age? If that is made up all the lawyers will know in the case of Kapp. If that test is made out, the next question is can this discriminatory law be saved under section 1? If it is not, the law disappears. This use of equality rights in this context is not the same. No one is saying the laws are inoperative because of section 15 issues. What we end up with here is that in this one context of sexual assault — because there is a gender aspect to it, many offenders are men, many victims are women or children — we recognize the equality rights and we instruct to consider the issue of myths and stereotypes.
In addition, the other situation is that Justice L'Heureux-Dubé implicitly said there must be a counsel appointed to make this argument. What do we have? This committee has well documented the issue of whether their independent counsel to protect the records assigned is variable across the country. Take Ontario, where it seems to be the most entrenched, and they also get legal aid, such as Phil Downes in his other capacity to represent the custodians of records. You have this little in camera hearing to deal with records, and because the court set it up this way, someone like Phil Downes can represent the complainant and victims' rights.
You have three lawyers: Crown counsel, the victim's rights — the records lawyer, and defence counsel. Once that is over, he leaves. The next thing the court will conduct is a rape shield hearing, in which case presumably there are still equality rights for complainants in sexual assault cases, but no recognition of independent counsel rights. I think this is extremely anomalous.
The other thing is that sexual assault is not the only gender offence. Take, for example, domestic assault. There is absolutely no right to have all this balancing going on and the resistance of a likely relevance test in that context. For example, in a domestic assault case, if someone was charged with assault on the partner and the partner was female, it would be handled under O'Connor. Even if it was a hospital record, there would be no balancing. I do think this is fairly anomalous and is not helped.
I also think, given the fact that legal aid across the country is in crisis, Chief Justice Beverley McLachlin has repeatedly spoken out about the lack of access of accused to have counsel. It seems to impose a layer where legal aid programs are paying counsel for complainants in sexual assault cases. It is not something you would want to take away from the budget given to legal aid. I say that advisedly because I also believe strongly why not trust the judgment of professional Crown attorneys. They are there to protect interest of the state, Ministers of Justice and represent victims' interests in every other case except this one.
A case called Shearing is one of the reasons I think that if you were to toughen up this regime, making it more difficult to access these records, it would be challenged successfully. It is not an access to records case. It is a case where defence counsel had been given a diary of a complainant in a sexual assault case. It was a 7 to 2 majority judgement. Justice Binnie implicitly said that there is no hierarchy of privacy, equality or defence rights. He specifically said that the balance is shifted from the rights of the accused. He said — for the majority of seven judges — that that is wrong, even in the context of the production of third party records. I think already in that case — and there is lots of evidence to think about in that case — judges are realizing that the assertion of enforceable equality rights for complainants in sexual assault cases is somewhat unruly. The policy issues — like some of the ones I have been addressing — are not fully thought out. He speaks not so much of rights but of interests. If this was toughened up, there would be a successful challenge.
The last thing I will say is that I definitely agree with others that there should be a need for updated information before any action is taken on this file. We know so little about sexual assault. To go back to an earlier thought, we have no idea how many sexual assault charges are actually rape cases. We have no idea how many cases are tried in provincial courts or what the acquittal rates are. Remember, we just curtailed preliminary inquiries; Parliament did so in 2004. We have no idea how many preliminary inquiries exist in sexual assault cases where they are going upstairs to higher courts. We certainly have no idea, as other witnesses have said, as to the full number of rulings about access to records.
I happen to edit Criminal Reports, which is a national reporting series, so I get to read every judgment for which there are written reasons in English. We have a French editor in Quebec. I have great difficulty seeing a lot of rulings in this area. I think the reason is that judges often give reasons on evidentiary rulings verbally, and so it would be very difficult to research what rulings are actually made in a comprehensive way, across the country, on these sorts of issues. Certainly, as you have already been told, there are unexplained differences as to how this seems to be operating in Nunavut and Quebec, although that might just be a reporting basis.
In conclusion, the part of this that troubles me the most is that some of the implications of equality rights have not been sorted out. My major point is that I think there is room for making the process simpler at the first stage of likely relevance and whether the judge should get to see the record before making the further decision about whether to disclose it to defence counsel.
Thank you for listening. I look forward to your questions.
The Chair: Thank you very much, Professor Stuart. Your comments were obviously very thoughtful and comprehensive. I know, and I am sure my colleagues feel much the same following this hearing today, that it will take considerable thought on our part to research and consider some of the cases that you have referred us to and some of the points you have made. We have had a considerable amount of evidence on this issue, but you have brought somewhat of a different light to it, with a different emphasis. We thank you very much for that.
Senator Fraser: You took a number of the words right out of my mouth, Mr. Chair.
Thank you very much, Professor Stuart. It was indeed a very learned, thoughtful and, above all, thought-provoking presentation. Members of this committee will mull it over very seriously.
I would like to put two questions to you on the likely relevance matter, for which I thought your points were extremely interesting. Everyone knows that we do not have the information we need. However, in your capacity as a member of the legal fraternity, have you been made aware, on an informal if not formal basis, of any cases where the current scheme set out for likely relevance has quite possibly led to what a layperson might consider a miscarriage of justice?
Mr. Stuart: I am not aware of that, Senator Fraser. I think the difficulty is that whether or not there is access to a record is just a small chip in the big scheme; it is just one piece of evidence.
For example, I recently had debates in my law class about the access to diaries. It seems to be a somewhat gendered issue, at least in my classes. Women are more likely to keep journals and diaries than men, and they feel very strongly about privacy issues. If you do a search, there have been a fair number of diary cases, some of which have had access given and some of which have not. It is very difficult to work out. Especially, of course, if there is a jury trial, you have no idea. Did the access or non-access to the diary make a difference? We have set up an extremely complicated regime for this one aspect of the law. I was reading some of the statements made by some of the counsellors about how demeaning and discouraging it was for some of the victims when it did not go forward. It was an important point.
We do have to remember, at the end of all this, that we do have a presumption of innocence. We have very tough sexual assault laws, jail terms and mandatory ones showing up on sexual offender registries — there are no exemptions any more — and we had better make sure we have a just system.
I have evaded your question because I do not really know. There is just one evidentiary ruling in the big scheme of things.
Senator Fraser: I thought it was worth asking, just in case.
If you were writing our report, what would you recommend? Would you recommend ditching paragraph 278.3(4), or would you recommend putting in section 278.5 the capacity for the judge to see the record and make, therefore, his or her own judgment? How would you do this? In your view, what should we specifically recommend?
Mr. Stuart: It was clearly Parliament's intention to make it hard for the judge to get access, at the first stage, to look at the record. I understand the thought. The thought is — and everyone seems, rightly, to focus on it — that we have enforceable privacy issues for complainants. Remember, of course, some absurdities have resulted. For example, in the original O'Connor case, we had two Aboriginal women charging that the bishop sexually assaulted them, and they were ordered to disclose all of their medical records over 20 years. I wonder how many of us would feel absolutely violated by that.
I understand that your argument is that not even the judge should violate privacy without good reason, but my argument would be that we trust judges to make very difficult decisions all the time. Most of the judges I have talked to on this matter liked the old O'Connor system. For example, if there was a diary, at the early stage of the first part of the proceedings, before the defence counsel even has it, the judge would look at it and see that there was absolutely no relevance to the case, a fishing expedition, and that would be that. They do not like to make this judgment in a vacuum. They would prefer to look at the document.
In the gossip category, I was talking to a judge last night over the phone because I knew I was going to do this today. I was talking about something else. She is a very well-respected judge. She said to me, "In my long career associated with criminal law, I have looked at lots of records, and I could see, at a glance, that many of them had nothing to do with this case. Every now and again you come out with one that is very relevant to the case." We are denying the ability of judges to do that. We have set up so many criteria that they cannot even look at the document at the early stage. We are not even talking about whether or not to disclose it to defence counsel. That is stage two. I am not opposed to stage two or to the criteria to be exercised at that point, just at this early point. I think it would streamline justice if you drastically shortened section 278.3. I do not think it is a good idea to even talk about factors not being likely relevant if they point to inconsistencies and evidence relating to this event. Most lawyers I know would say, "What are you talking about? Likely relevance? That looks sort of like likely relevance to me." I think those should go, and I think it should be easier for judges at an early stage, before they make the decision to produce or not, to have a look at the document. I am on a fairly good basis for this because, in the McNeil case, we have someone as experienced, trusted and revered as Justice Louise Charron who says that in every other case the production decision should be made after the judge has had an early opportunity to look at it.
Senator Fraser: I think I have a clearer picture now. Thank you very much.
The Chair: If the judge was able to review the document without applying the likely relevant test, that test, as you say, will remain for the ultimate production of the document if that was ordered by the judge. In determining whether or not the document is likely relevant, the judge would have access to it. If that were permitted, what downside would there be in terms of encouraging or discouraging complainants to come forward? If that change were made, would it have an adverse impact on encouraging complainants to bring their charges forward?
Mr. Stuart: That is a good question. I think some of your previous witnesses have said that any sort of hint of access to records would discourage complainants from coming forward; but I have no way of testing that. As I indicated before, there are lots of protections for complainants currently in place in Canada — probably more than in most countries. However, there is a reluctance to come forward. Unless we change our system of justice, most complainants will have to testify and will have to be subject to cross-examination in the trial proper. I would have thought that is probably the factor that most hinders people coming forward. I am not sure that this would make a difference. In the vast percentage of cases, it would lead to a quicker proceeding in which the judge looks at hospital reports, a diary, a report of a therapeutic session or other documents and says quickly that it has nothing to do with the case; that is the end of it and the hearing is over.
Senator Baker: Before I ask my main question, I want to ask a preliminary question relating to your reference to McNeil.
I congratulate the committee for inviting Don Stuart to appear; it is truly an honour to have him here. Arnold Schwarzenegger is known as the "terminator," Don Stuart is known as the "annotator." He has made some great annotations to court judgments since 1979 or 1980, as I recall.
Mr. Stuart, you mentioned McNeil. If I understand you correctly, you would prefer the McNeil standard. That judgment was made in February 2009 and involved the "Ferguson Five" standard, as I recall. It said that Stinchcombe would apply if the matters were serious regarding the disclosure of the records; and that if adjudication was needed by the court, the O'Connor rules would apply. I presume that is what you are suggesting when you say that the McNeil standard should prevail. Am I correct? You said that the judge would be able to examine the record if an O'Connor application is made.
Mr. Stuart: That is correct.
Thank you for your earlier remarks. I knew you were going to ask me a hard question, as you have done before in this committee.
I deliberately did not speak in detail about that particular case because it is mostly about disclosure. In other words, the document was already in the hands of the Crown attorney, so it does not deal fully with what we are talking about today. However, in the course of that judgment, she says quite definitively that unlike the provisions in prior sexual assault cases, which are in the Criminal Code as interpreted in Mills, in all other cases when you are trying to gain record access, defence counsel wants to know what the police disciplinary record is. For example, "I have not seen it, but I understand this officer has been disciplined before. May I see the record?" This is a production case, so she says quite specifically, "We have to be realistic about this." As I read the few remarks in the very long judgment related to this topic, she is definitely back to the original O'Connor ruling for every case but sexual assault. As I pointed out, that includes domestic assault, which is heavily gendered. For example, if defence counsel wants to get access in a domestic assault case to a hospital record for a domestic assault victim, it would go with O'Connor. The likely relevance test is low threshold and, as I read that judgment, the judge will get access to the record, will read it and will decide quickly whether it has any relevance to the case before him.
Madam Justice Charron says that different considerations apply in sexual assault cases because everyone is bound at the moment by the Criminal Code regime as interpreted by Mills.
Senator Baker: "Likely relevant" has been interpreted by most judges of the superior courts of the provinces on that decision as meaning "if it would go to the credibility of the witness."
Mr. Stuart, I want to ask you mainly about your statement in support of witness testimonies that we have heard and that will bear greatly on the determination of this committee in terms of our recommendations. You claim that we should know more about what is actually happening. You say that we need more information on the judgments that have been made pertaining to these particular sections of the Criminal Code. This committee's report cannot demand that judges put in writing everything from every single pre-trial argument or argument made in chambers and supply it to the world generally. We all know that trial judges simply go on the decisions that are reported, which you have commented on yourself every day, and that are in play in each province. What do we suggest? We cannot force judges to make written decisions on all of these matters.
Mr. Stuart: Well, there is a requirement for reasons to be given.
Senator Baker: Yes, but they are not all written.
Mr. Stuart: When Phil Downes, Director of the Canadian Council of Criminal Defence Lawyers, appeared before the committee, he said that changing the law and demanding reasons to be given on every factor that Parliament has mentioned would be burdensome on the trial bench; and I agree. Also, generally speaking, there is a constitutional duty on all judges to give reasons; but the courts have been backing off that a bit because of the issue of practicality.
Having read the material that you have, as a committee, I would be loath to say that we already know what the actual picture is; and I certainly do not know. For that reason, there is probably a need to be a bit cautious about any major recommendation you make. I go back to my original position. Madam Justice L'Heureux-Dubé, her work on O'Connor and her acceptance by Parliament certainly triumphed in the sense that we all know it is very difficult to get access to these records.
Senator Baker: On the matter of paid counsel for the organization or the person from whom the third party records are being sought, the committee has to make recommendations. Every person who has appeared on behalf of organizations that may hold records said that there should be a compulsory provision for counsel. You mentioned that the majority of these cases are heard in provincial court simply because the accused has a choice when he or she elects.
If we were to make that recommendation, we would be imposing on the provinces an incredible expenditure of money, and perhaps it would be unconstitutional. I do not know of anywhere in law that says we have to provide counsel. Provincial laws require counsel for children, for example, and so on; but if it were the superior court, the judge would have inherent jurisdiction in the name of justice to order counsel at Attorney General rates in certain cases. What do you suggest we do with that suggestion by all of our witnesses regarding counsel?
Mr. Stuart: I agree with your analysis, senator. I would say that the decision to have the sexual assault trial at a provincial court level is often the decision of the Crown if there is a hybrid offence, if they are not going for a penalty of more than 18 months and if they are going by way of summary conviction. I agree with you that even at the Supreme Court level in ordering Charter standards, I am not aware of any area where our court in criminal law has made a judgment that produces obligations on provincial governments to adjust their budgets.
I am so upset and concerned by the increasing numbers of accused across Canada who are unrepresented and legal aid budgets seem to be stretched everywhere. I think you should be cautious for the reasons you gave, but also because there is not enough money.
We talk a lot about law-and-order politics and the need to toughen criminal law, but it is often not accompanied with any readjustment of money. When you compare, for example, any provincial government deciding how much to put into legal aid vis-à-vis health care, the answer is always the same; it is a very small amount given to the justice system.
For example, I said it seems odd to me that in Ontario you have legal aid paying for the likes of Phil Downes in his non-defence counsel capacity to represent victims in record applications for sexual assault, but then not be able to represent them on the rape shield laws. Some people might say just make it represented there too. Again, you have just increased the financial commitment with not much jurisdiction, I think.
Senator Angus: I wanted to ask basically the same questions that Senator Fraser, as supplemented by your good self, asked about the present rule of the judge not being able to see the documents in question.
I am pretty happy with the answer, but perhaps just in the interest of clarity, Professor Stuart, would you be so kind as to reiterate what I think we are all supposed to know? Was it due to the jurisprudence that we got to that point, O'Connor? I was not here when Bill C-46 was enacted.
Mr. Stuart: My understanding is that this has a very interesting career. If you go back, it was 1991 that the R. v. Seaboyer came down. It struck down the then-existing rape shield laws. It was misconstrued because the court actually put in place a very tough series of criterion, which were eventually adopted into our present rape shield laws.
Given that, at the same time there was R. v. Stinchcombe, which said you have a Charter right for the first time in Canadian history for full disclosure of the Crown case. That had produced defence counsel being quite active, to say the least, and making routine requests for all medical records of complainants in sexual assault cases.
My understanding of the chronology is that the parliamentary committee, spearheaded by the Department of Justice, was already looking at this case before O'Connor came down. When O'Connor came down, you had the choice of a more open system, by the majority of five, and a more closed system, by a majority of four, with Justice L'Heureux-Dubé, so Parliament took Justice L'Heureux-Dubé.
The parliamentary scheme was a lot more detailed. It was written by — I do not mean this in a derogative way — people who were activists, who really cared about the rights of victims in sexual assault cases. I have great respect for their energy and the ability of lawyers; they wrote all these documents saying likely relevance does not mean this and likely relevance does not mean that. This was because of a heartfelt feeling that there should be no access to these records.
I think they went overboard. I think most judges who have had experience with records would prefer to have a looser regime, especially the second part of it — that they would like to be able to have access to read the document at an early stage.
Senator Angus: Thank you for that. I think I understand. It was by no means a great groundswell of unanimous opinion to get to this point, but it was driven by interests — at least supposed interests — of the complainant.
Mr. Stuart: I would say that clearly this was at a time in Canadian history that voices of women were being heard for the first time as really dominant forces in sexual assault laws. I have been bold enough over the years to stick my neck out occasionally to say that sometimes we went too far.
For example, and completely off the topic here, it is still my view — and recently was the view of Minister Toews, although he backed off it quickly — that we trivialize rape by not having a separate crime of rape. We are one of the very few countries in the world that does not do it, but that is a topic for another time.
Every time I say that, people say what are you talking about? I say I am actually talking, in that particular case, about the need to be tougher on rape. When people talk about sexual assault issues, I find most think of rape examples, whereas we have a much broader context which would include teenagers' sexual experimentation, touching and miscommunication. It is all in the same bag of sexual assault — tier 1 often — and I do not think it should be.
Senator Angus: Without in any way wanting or presuming to paraphrase your eloquent testimony, if we were to recommend any specific change in our review of this legislation, it would be along the lines of, hey, let us get real; we have judges that are discreet, responsible and balanced — supposedly. It is not the press, defence counsel or a whole lot of people. The interests of the complainants would be enhanced, as opposed to being prejudiced, by making this slight change and you would like to see us recommend it. Is that fair?
Mr. Stuart: That is correct.
[Translation]
Senator Boisvenu: Thank you very much for being here. You gave me a law 101 course on sexual assault; I appreciate that very much. My questions will be mostly about your comments. You said that it is not known how many legal proceedings are related to sexual assault. Is that indeed what you said?
[English]
Mr. Stuart: Most of the statistics are about sexual assault offences reported to police, and the inevitable question comes up, what actually is the acquittal rate in sexual assault and what are the punishment statistics? I have had many students over the years who think I am a bit right wing in this area and who have gone looking for statistics, but they are nonexistent. People do not accurately have a sense in Canada of what is the result of our sexual assault trials.
If that is the case, and I am sure it is because I have looked over the years — every year, we look at Statistics Canada on sexual assault, special reports. If you read them carefully, they say at the bottom that this takes into account provincial courts but not superior courts, or superior courts but not provincial courts. This is not complete data, so we cannot accurately say what the acquittal rate is for sexual assault.
Because of the change in the law, we certainly have no figures that would say what the prevalence of rape is in the country of Canada — is it going up, is it going down, is there a high conviction rate or a low conviction rate? We would simply not know because it is all mixed in with the generic offence of sexual assault.
[Translation]
Senator Boisvenu: You know that, for about 10 years, I think, some types of crime have been delegated to municipal courts. I am thinking of Montreal, where the municipal court can now hear cases involving sexual assault and domestic violence. Does that not complicate the issue further when it comes to knowing how many sex crimes are committed in Canada?
[English]
Mr. Stuart: I think that is correct. Of course, I have also not been particularly swayed by statistics over the years in sexual assault areas — going up, going down, more reporting, less reporting. Any one sexual assault case is serious, and that is enough for most of us, but I am just saying that the figures are inaccurate.
I am more familiar with the Ontario system than any other system. There are experimentations in Toronto with domestic assault courts. As far as I am aware, there is no specialist sexual assault courts, and I am not recommending them either, but they do tend to get mixed up with the hurly-burly of provincial courts, which are dealing with a whole raft of cases that are a lot less serious.
I have no data for this, but my assumption is that many sexual assault touching cases end up in provincial court, mixed up with all sorts of other much less serious offences. That is because of the pragmatism of trying to get things over quickly, avoiding preliminary inquiries, as long as the Crown is satisfied with no more than 18 months imprisonment.
[Translation]
Senator Boisvenu: What do you think about an amendment whereby independent counsel would be used to provide victims of sexual assault with better representation in court? That type of amendment would make the statistics clearer. It would also contribute to a higher reporting rate. Currently, only 1 out of 10 victims reports sexual assault.
[English]
Mr. Stuart: Senator, I find that a difficult question to answer. Our prosecutorial system, as I understand it, across the country is stretched for lack of resources. I do see all our prosecutors, or most of them, anyhow, as being extremely committed to the idea that they are not persecutors but ministers of justice. Their job is to present evidence that is favourable to the Crown and also unfavourable to the Crown, or to disclose it.
I also think that in every case about sexual assault, most Crowns that I have ever met — and I was a Crown for a year — would be very sensitive to the needs of victims. They have been better trained over the years to do so. No one would suggest that victims have not been shuttled out of the system over the years. Things are better than they used to be, but they are not great. However, every time you expand services, including independent counsel to represent the victim, the costs are amazingly high.
Senator Meredith: Professor Stuart, you mentioned two points in your presentation, which was quite enlightening and thank you for that. I want you to elaborate a little on equality rights. In the framework currently, is there a balance between the accused's right of defence and the privacy of the victims? Can you elaborate on that? What recommendations would you make going forward in terms of how we can balance this?
Mr. Stuart: It is quite clear that the best guidance we can get comes from the Supreme Court of Canada in the Mills case, where it accepts that there is a need to balance full answer defence, privacy and equality. I think it is extremely instructive to go back and read what the justice said in that case. There is an expansive discussion of full defence and it says, though, that there are some qualifications in this context. Full answer and defence does not mean the most favourable procedure favouring the accused. It does not mean there is a right for defence counsel to distort the truth.
Then when it gets on to privacy, which is the biggest section of the judgment, it talks a lot about the need to balance the rights of the complainant to privacy. It also talks about things like this value is the strongest, says the Supreme Court, where confidential information contained in a record concerns aspects of one individual identity or where the maintenance of confidentiality is crucial to a therapeutic or other trust lack relationship. I read that as being a very full statement that it is not just the accused's rights, but you have to balance privacy.
My problem here, though, is that because Parliament said so, and because Justice L'Heureux-Dubé asserted it, we have to go on, as the court says, to balance equality rights. I urge senators to read Mills because when it gets to that point, the court seems to be saying they have done all the analysis they need. It is very hard to see, if you are trying to decide whether this document of this complainant should be disclosed to the accused, whether or not somehow or other, if I do it, I am guilty of sexism or discrimination. That is why most judges are not doing it. They cannot do it in this concrete case of should this diary be disclosed.
That is why I think that sometimes the assertion of the equality rights has been difficult for courts, and that is why I go back and say, as I did in my opening, that the most recent pronouncement on this is Shearing, where the Supreme Court of Canada seems to be backing off their balancing. I think they recalibrate the rights and say we can deal with full answer and defence and privacy, but it is only equality interests, because lots of these considerations have nothing to do with gender myths and stereotypes.
For example, in section 278.3(4), and I have already read some of it out, most of the considerations that are not supposed to be taken into account on credibility, on the issue of likely relevance, seem to me to have nothing to do with myths and stereotypes. They have to do with traditional ways of assessing credibility. That is why judges are not writing much about equality, because once you have decided it is a factor to be considered in this case, it is hard to actually operationalize it. That is why judges say the real balance here is between how probative this material is, does it really prove anything that is relevant in this trial, and, on the other hand, if made accessible to the defence, will it compromise the privacy of the victim. That is what most judges are doing. As I say, I think it would be better if the judge actually had a chance to look at the record before making that call.
Senator Meredith: With respect to rulings, others have appeared before this committee and indicated that, in terms of research, going back to your last point with respect to judges and their rulings, how could we rectify this in our report, or what would you recommend in terms of the documentation of some of these rulings for future cases?
Mr. Stuart: I read through the Department of Justice Quicklaw research, which is now pretty dated. That is one thing that could be done, presumably without a great deal of cost, to just update the picture. I am not terribly sure. It is easy to say, do not do anything without making sure you have updated statistics, but for reasons, for example, that Senator Baker was very well aware of just now, as one of the other senators, it is very hard to get accurate information about evidentiary rulings made by judges in the hurly-burly of everyday existence of being a trial judge where you have five or six trials to manage in one day.
The Chair: I have a supplementary question on that. As with all laws, it is important that there be as much consistency as possible. In the application of this test, the likely relevance test and whether the production of documents is necessary in the interests of justice, there has to be confidence that there is somewhat of an equal application of those principles across the country and there is some consistency.
To Senator Meredith's question, judges are required to provide reasons as to when the documents are to be produced or not. What can we do to create more consistency? What can we do to have greater certainty that there will be a more consistent application by judges in considering this test? At present, they are not required to address each of the factors. You referred to that. I am not suggesting they should. However, the principle here is not only appearance. There must be as much consistency as possible in the application of our laws. Through our efforts, how can we create more consistency in how these tests dealing with the production of documents are applied?
Mr. Stuart: That is a very challenging question. We do trust judges to make the final determination in criminal trials where there is proof beyond a reasonable doubt. As anyone who has practiced criminal law knows, the Supreme Court of Canada has given considerable advice to judges as to how to apply the doctrine of reasonable doubt and how to interpret it for juries. At the end of the day, consistency cannot be guaranteed.
If you happen to be a practitioner of law, many defence counsel would say things like "that judge does not know reasonable doubt when he sees it; he never acquits." Someone at the Crown might say, "That judge always acquits."
I do not think we can guarantee. We have to set up criteria either by the courts or Parliament, and hope that we trust our judges. I think most of us have respect for the judiciary. This area of records is very hard. All I would say is that the criterion in both the two parts of the first part, section 278.3(4) and section 278.5 are excessively complicated and can be simplified.
The Chair: Just to clarify — and I suspect you understood the thrust of my question — it was not that there would be a guarantee of consistency, but is there anything that can be done to improve consistency? You have addressed that, but certainly it was not in my mind it was possible to guarantee that consistency from the judiciary.
Senator Runciman: I have a brief question. When you looked at the Mills judgment — I read something earlier with respect to your appearance here today — you said the judgment "reeked with politics." You were referencing the pressure that was applied from a range of organizations with respect to these legislative changes. It strikes me that one of the primary goals of the legislation and changes was to encourage greater reporting of assaults. In some of the testimony we have heard in these hearings, it has not occurred. Whether those statistics are there or not is another issue. We have heard testimony and seen submissions that indicate there has not been any significant change.
In your comments at the outset you talked about one of your students in law school going to a sexual assault counsellor. That is a scary prospect when you have a law student who is still intimidated by the process of getting fair treatment in the courts with respect to assault on her person. I wonder if it is broader than that. That could be part of the equation and concern if there are other aspects of the system itself — which you are very familiar with — that tend to discourage people from coming forward. You are talking about a law student versus someone in a much lower place in the social strata, if you will. If someone like you referenced is reluctant — and this may not deal directly with the legislation — I think we have the opportunity to incorporate observations at the end of this exercise as well. Perhaps you can offer insights with respect to the education component you referenced and on how the system could be adjusted to encourage victims to a greater extent than is the case today to come forward.
Mr. Stuart: That is again a very demanding question, Senator Runciman. I would say that making things tougher in this context — you know to get access to any of these records — there could be an amendment that someone could make through the parliamentary process. As I said, the dangers of that would invite another Charter challenge which would succeed. We do have a balancing process in place and I agree with Phil Downes that it is more or less working. Justice L'Heureux Dubé's system was achieved. We are not likely to get access to these records. What I am suggesting is will not change this much, but it might make it fairer to the accused and cut down on the complexity of the system.
When it comes to why complainants who have been sexually assaulted do not report — we see in celebrated cases, for example, recently we have heard of a fair number of sexual male predators being reported — once someone breaks the bank and reports, other people come forward. Essentially it is the fear of the court process.
I do not know what the other option is. We do not believe in secret trials. We believe in the presumption of innocence and proof beyond a reasonable doubt. If witnesses want to take the oath in a courtroom and as a result of that someone will go to jail and be on the sexual offender registry, we have to take it seriously or else the whole system of justice would be up in the air.
I probably should not have raised the issue of my student because I was absolutely shocked. I was also disappointed at my inability once the advice was given that "you will never be able to prove it." I pointed out to her that you do not have to prove anything; you are the victim. I wanted to take her to the police, but she would not let me. It was not my job to do any more than that.
I have no doubt this is an underreported offence and is problematic. It is the fear of reliving these events, especially the ones where there might have been some miscommunication or even there was no issue of defence and it was as clear cut as anything. Even in those cases we know it is an underreported offence. I do not have any other answer.
Senator Joyal: Professor, I would like to come back to the bottom of page 5 in your notes and the top of page 6, where you write, "In the context of a criminal trial which focuses on just punishment of the person charged rather than compensation of complainants, it is the rights of the accused that must be given priority. Inconsistent rights cannot be balanced. The majority of Shearing goes out of its way to backtrack and reinforce the view that even those charged with sexual assault must have a fair trial. The court implicitly abandons the view that there is no hierarchy of rights. Some rights are more important than others."
Do you have an impression that sections 278.3(4) and 278.5 have unbalanced the system and introduced into the criminal trial what I would call the "rights of complainants"?
Mr. Stuart: In this context, the introduction of the need to balance equality rights is problematic in the sense that judges and other decision makers do not know what to do with it — since O'Connor with the need to balance section 8 privacy rights of all sorts of victims. The Supreme Court got itself into a bit of a botch because it said there is no one right that trumps the other. How could that work? Let us assume I have a fight over a document and the decision is that I have to balance "full answer in defence" and privacy. I choose privacy, so you are not getting the document. That is not balancing; one right wins.
Other courts in different countries have not gone down this route saying that there is no such thing as a hierarchy of rights. In the Shearing case, that is what Mr. Justice Binnie recognized; it was a very controversial case. The issue was whether you should cross-examine on a diary. The defence counsel was given this. It is a different context, but the defence wanted to ask the complainant: "How come you did not put anything about this sexual assault in your diary?" Somehow, Mr. Justice Binnie and the court ordered a new trial to consider that issue. Many people pointed out that that indicates a return to the doctrine of recent complaint that says she should have put it in a diary, otherwise she is leaving an adverse inference. That is a controversial decision on the facts.
Mr. Justice Binnie had seven judges say, "Maybe we have gone too far in setting up this model of competing rights." When it comes down to it in a criminal trial, it is not an issue about the complainants suing for money; it is an issue of whether this man should be punished, sent to jail and put on the sexual offender registry. That is why in a borderline case, and I could read the Supreme Court in Shearing that says even in a production case, we must give prominence to the rights of the accused. I do not read Mills in that way at all; so I think it is backtracking. We have new members of the Supreme Court now. Who knows what they would say if they had to reconsider this issue. I do not know how that would work out.
I want to add one other thing. I pride myself in having a number of former students over a long period of time leaving Queen's University and becoming criminal law practitioners, defence counsel and Crown attorneys. Some of my students decided that the right way to resolve serious issues of sexual assault was through civil action; sue and get money. Many students have reported back to me that once they try to do that, it does not really work. The issue of sexual assault is not resolved by money alone but by fair punishment. Many of the people who went off to practice criminal law through the vehicle of civil actions have given up on it.
The balanced response to an alleged sexual assault is the criminal process. We should always bear in mind that in the end result, you better be darn sure that all the elements of the offence have been proven beyond reasonable doubt before we send people to jail and put them on the sexual offender register, which does not distinguish between minor or major sexual offenders. It is very serious business. Maybe in one or two cases, the records section could be simplified for the benefit of the judges and also for the benefit of the lawyers arguing on these criteria.
Senator Joyal: In your brief you quote Madam Justice L'Heureux-Dubé to such a point there is an impression that Parliament has yielded to her. I noticed you quoted her at least five times, including "Parliament sided with L'Heureux- Dubé; and Justice L'Heureux-Dubé's position in O'Connor;" and so on. You create the impression that we have yielded to introduce into the criminal system a notion that was non-existent before and that the notion is unwelcome because it could thwart the fair trial of an accused. I am not sure that was done without due consideration of the fact that when women and children find themselves in court, they are in a difficult position. Sexual offences are sui generis. A person who makes a complaint has much more at risk than a person who makes a complaint about the theft of $100. The system must reflect that sexual offences are crimes on their own. The system must be adapted to take care of the vulnerable position of women and children facing the person charged with a sexual offence. You do not seem to be sensitive to that in your presentation, unless I am totally out of sync with your position on that.
Mr. Stuart: My overall position is that these records should be rarely accessible; and they are rarely accessible under the present regime. I have supported the privacy rights for complainants in sexual assault cases, as has every Supreme Court judge that has dealt with this matter. The rogue elephant, in my view, is the exact meaning of "equality rights" in this particular context.
For example, if we are dealing with an adult male charged with sexual assault against another adult male, is that person entitled to use equality rights that were designed to deal with women and children? If so, why not? I think the answer is that we do not have the answer to that, because now that we have recognized equality rights, we just go ahead and use the criteria; but judges will not mention equality.
Certainly, this is a highly controversial and difficult area. I also point out that in my writings I have not been consistent. I believe, in other contexts, for example, that we should return to a separately defined "offence of rape." I also believe that in terms of the definition of "reasonable doubt" — and you will be familiar with the W.D. formula, the criticism by Mr. Justice Binnie of that doctrine should be taken to heart and changed. I am not entirely one-sided.
I also want to point out that your heartfelt and justifiable concern for the plight of the sexual assault victim applies equally to the plight of the domestic physical assault victim, also a deeply gendered offence, for which these special rules do not apply; and I am not quite sure why that is.
Senator Baker: In conclusion, I have one question. Mr. Stuart, your many annotations that accompany all of the judgments we see in Carswell have certainly been used by our courts over many years. You have played a major role in making law as well as in teaching law. I congratulate you on that.
For clarification, everyone, including you, has remarked that we do not have enough evidence as to the adjudications and the reasons given in the adjudications for these matters under review here today. When we pass the law, we put in section 276.2(4) of the Criminal Code — record of reasons — one sentence: "The reasons provided under subsection 3 shall be entered in the record of the proceedings or where the proceedings are not recorded . . . " — for example, in chambers — " . . . shall be provided in writing."
We thought when we passed that law it would take care of the matter. There are not many instances in the Criminal Code where we demand that a judge provide reasons. As you point out, they must provide reasons for every judgment that is for appellate review. Yet we have identified in the Criminal Code now, and we continue to do so with greater frequency, that a judge must give reasons.
I think we did our job here when we passed this law, but you and every other witness has said, look, we cannot examine the judgments because we do not have the records pertaining to them. What do you suggest this committee do in our recommendations to provide the information that is so badly needed in order to adjudicate the effect of these provisions under review?
Mr. Stuart: Senator, I agree with you that if you demanded reasons, as Parliament did, you could not have done any more. It is just so difficult to imagine if you are a criminal court judge at the provincial court level, and my understanding is something like 95 per cent of all trials in Canada take place at the provincial court level. We have an increasingly experienced and knowledgeable bench at all provincial levels who seem to be the experts in criminal law, more perhaps than Superior Court judges, by training. Therefore, judges make a lot of these quick determinations all the day.
It is just that if I am a provincial court judge and I have a hearing on records in the afternoon, I have already got five other things to do that day for which I give reasons. Therefore, as a practical matter, my reasons will probably be quite short in all of the matters. I will abide by the parliamentary instructions on me, but they will be short.
The next question is, are they disseminated in any way? To get them into an electronic database, someone will have to order a transcript. That simply does not happen because even though the aim of companies like Carswell — or Thomson Reuters, the one I work for — is to publish or get onto an electronic database everything that is said by any judge, there are tons of cases where they do not.
Take another example. One of the high-profile areas of Charter law is section 11(b) of the Charter, which is a stay for unreasonable delay. There are tons of applications and tons of rulings; not all of them result in being recorded somewhere.
Often when I, as an editor of this service, look at them, they are not worth recording because they are fact driven. They are applying proper principles; they just make a determination that there was an unreasonable delay in this particular case and stay the proceedings.
There is really nothing much to report, other than a judge, trying on the criteria given by the Supreme Court, decided in that case there was a delay in the proceedings — case stayed. It is a very high-profile issue in which the data is the not there either.
Again, senator, I think Parliament has stated its preference. I think the judges are presumably abiding by their duty to give reasons. They have also been aided in that respect by the Supreme Court, who wrote it down in Mills to say we do not have to consider every fact we have mentioned, and they are not.
Senator Baker: In other words, it is the adequacy of the reasons. You are absolutely right.
Mr. Stuart: Yes.
The Chair: Professor Stuart, that concludes today's hearing. On behalf all of my colleagues, I sincerely thank you for the detailed thought you put into this matter and the information you brought before us.
I must say, in some cases it is a new emphasis and new thoughts for us to consider. I can assure you we will give all of what you said serious consideration as we move toward the conclusion of our work. Once again, thank you very much. We look forward to seeing you perhaps providing us with assistance on another matter down the road.
Mr. Stuart: Thank you very much. Over the years, I have had great respect for the work of this committee.
The Chair: Colleagues, before adjourning, I remind you we will continue with our consideration of Bill C-46 tomorrow at 12 o'clock in this room. I look forward to seeing you at that time.
Senator Angus: I was wondering about the change of time. I must have missed something. Is that a new time for this committee now?
The Chair: Yes, it is. We have a videoconference witness tomorrow.
Senator Angus: Is it just for the one day?
The Chair: Yes. We will have our same times in following weeks.
(The committee adjourned.)