THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Wednesday, September 19, 2018
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:15 p.m. to bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act.
Senator Serge Joyal (Chair) in the chair.
The Chair: Honourable senators, it’s my pleasure to welcome you to this first hearing of our second part of studying Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act. We are privileged this afternoon to welcome a very select group of lawyers and representatives of stakeholders in relation to that bill. It’s my privilege to introduce them.
Of course, you will have recognized Mr. Michael Spratt that we have heard around this table, I would not say regularly, but at the call of the chair, and the clerk of the committee. And we are indebted that you took the time, Mr. Spratt, to accept our invitation.
Beside Mr. Spratt is Ms. Genevieve McInnes and Ms. Anne-Marie McElroy from the Criminal Lawyers’ Association. Welcome, both of you.
On their left is Ms. Kathleen Dufour from the Outaouais CAVAC.
On her left, Ms. Katherine Hensel from the Indigenous Bar Association. We’re honoured to have you with us this afternoon.
And finally Ms. Samara Secter from the Canadian Civil Liberties Association. It’s a pleasure to you welcome you, Ms. Secter.
You know the general rules we follow. We, of course, invite you to make an opening statement. We have two hours. There is no doubt there will be a lot of questions from all the senators. I will ask you, if possible, to limit your presentation to a maximum of five minutes because, of course, you are a large number this afternoon. You will have ample opportunity to continue to elaborate on your positions and the points that you want to underline in relation to Bill C-51.
Michael Spratt, Partner, Abergel Goldstein & Partners, as an individual: It’s always an honour and privilege to appear before this committee. I have provided a brief I hope you all have copies of. It will be much more detailed than my opening remarks. I won’t introduce myself other than to say that I’ve now been practising almost 14 years, which makes me maybe becoming a senior member of the bar. Over the last two or three years especially, I’ve conducted a disproportionate number of sexual assault trials, both in the Superior Court and in the Ontario Court of Justice, before judges, before juries, that deal with some of the very issues that this bill will touch upon.
Maybe I’ll start with something good because it’s always nice to say something good about a bill before you criticize it. I’m happy to see this bill amends the Criminal Code to remove passages that are obsolete or have been found unconstitutional or may have some dubious features with respect to constitutionality.
Those amendments, from my perspective, are a welcome development. This bill doesn’t remove all of the offences and provisions that have been found unconstitutional. It doesn’t, for example, touch the minimum sentences that the Supreme Court found unconstitutional in the case of Nur, but small steps there, I suppose.
Moving on to what I think is really the meat of this bill, and that is the amendments to the sexual assault regime, the defence disclosure, what I’ll call reverse disclosure. It is a provision unlike all others in this bill.
In practical terms, what this provision requires is that defendants show the prosecutor and the complainant, who have standing on the application, any documents in their possession that they want to use in cross-examination of a complainant if they meet the privacy thresholds set out in the bill. And those, as we can discuss perhaps in questions, are very broad. This covers a wide range of documents, from medical records to court filings, to public documents in some cases, even text messages that a complainant has sent to a third party or even the accused. To start with, it’s a broad provision.
One of the primary critiques of it is it engages an accused’s right to silence.
The defence disclosure requirement departs from some well-established case law. Under this bill an accused who is presumed innocent is going to be forced to decide between a fair trial through rigorous cross-examination — what our courts have called the crucible of the truth-finding process — and a right to silence. They either have to participate in giving information that can be used against them, giving that to a complainant they want to cross-examine and/or remaining silent. That is an impossible choice and one I submit will engage the Charter.
This is not like other situations, like business records or expert reports or alibis. It’s very different.
This has been noted in the House of Commons Standing Committee on Justice and Human Rights as a problem. This is one of the only times maybe where the Conservatives have agreed with me on an issue of criminal law.
The honourable member from St. Albert—Edmonton says the precise problem is that the defence needs to tip their hands to a witness who is lying and give that witness time to tailor their story, or to incorporate new evidence, or maybe inappropriately refresh their memory.
Of course, that sort of process also impacts a right to full answer in defence. Cross-examination has been seen as a very important feature of full answer in defence and something the courts say should not be interfered with, without cause, and should only be interfered with restraint. It is an indispensable mechanism to search for the truth and it is one of the best protections we have against wrongful convictions.
I’d be happy to answer questions about those two constitutional aspects. In my last 30 seconds I want to be clear what I’m not talking about. I’m not suggesting that the current procedures under section 276, the rape shield laws, should be dispensed with. No one is suggesting that information that violates those protections should be admitted into court. No one is suggesting that irrelevant or immaterial evidence should be admitted into court. No one is suggesting a trial by ambush. No one is suggesting that complainants should be prevented from responding while under oath to the material that defence counsel may wish to cross-examine them on. And no one is advocating for the defence to use unlawfully obtained records.
We are talking about lawful records that are relevant and used appropriately. We are talking about a situation where this specific type of charge is going to have special rules that do not exist anywhere else. It will cause not only delays in our court, which we should talk about after, but also some severe constitutional problems.
The Chair: Thank you, Mr. Spratt.
Genevieve McInnes, Counsel, Criminal Lawyer’s Association: Good afternoon. It’s an honour to appear before the committee today. I’m a criminal lawyer. I’ve been practising for 12 years at all levels of court and I regularly defend individuals charged with sexual offences. I regularly deal with the application of sections 276 and 278 in practice.
I’d like to focus my comments on one aspect of the bill that has not, in my view, been sufficiently addressed. There’s been a lot of focus on the reverse disclosure requirement of 278. I’m not going to speak about that. What hasn’t been sufficiently emphasized, in my view, is that the amendments to section 278 also create a two-tiered system of admissibility in favour of the Crown. I’m going to explain what I mean by that by giving you an example in relation to a class of evidence we see every day in criminal trials, and that’s electronic correspondence or text messages.
In my package of disclosure from the Crown, I often get screen shots of text message communications between the complainant and the accused. The police will routinely ask, as they are entitled to, the complainant to send them screen shots of these text messages. The police have a right to get these communications and no warrant is required.
The Crown also has the right, subject to the usual rules of evidence, to introduce these same communications at trial. No application from the Crown is required.
As it currently stands, the defendant is permitted to do the same. My client can give me copies of text messages between him and the client and, subject to the rules of evidence, I may choose to introduce them at trial.
If proposed subsection 278.92(1) as drafted is passed, the operation of this clause will be to keep the Crown in the same position that I’ve just outlined. The defendant will presumptively be barred from relying on this exact same category of evidence.
What you’re creating is a scenario where, for example, if there are 10 text messages between the accused and the complainant after the alleged assault, the Crown may choose to lead five of these 10 text messages. The defendant will be statutorily barred, absent lengthy complex and costly litigation, from introducing the other five text messages shared between him and the complainant. This cannot be the intended result of Bill C-51. The interest of justice, including conserving the dignity of the complainant, which is a goal shared by the CLA, is not enhanced by this requirement.
This requirement doesn’t address the trial-by-ambush concerns that led to the reverse disclosure requirement because at this point all records have been shared. At this second stage, the records have been shared. Yet for only those records the defendant wishes to introduce are they barred from doing so, and the Crown can lead them as a matter of course.
The way the law is now is that it is easier for the defendant to admit evidence than the Crown as a general constitutional imperative. This is in recognition of the significance of exculpatory evidence and the accused’s right to a fair trial.
This aspect of the bill does the exact opposite. It is patently unconstitutional to force a defendant to commence complicated, expensive and time-consuming litigation simply to be put in the same position as the Crown.
I will turn over the remainder of the comments to my colleague.
Anne-Marie McElroy, Counsel, Criminal Lawyer’s Association: Thank you for having me here. It’s an honour to appear before the committee.
I’d like to add a few comments with respect to the procedures that are contemplated in terms of the admissibility of records in possession of the accused. Under proposed section 278.92, and how that might affect delays in the courts, which I think is something that we’re all very live to.
Right now the process is contemplated as a pretrial motion. That means it would happen before a trial commences. We need to remember that a trial is a dynamic process. The evidence we anticipate hearing doesn’t always come out, things change and lawyers are making strategic and tactical decisions throughout a trial, which means the defence lawyer might not know even ahead of a trial whether or not they expect to use a record.
If the bill passes as is, what I think we can expect to happen routinely in sexual assault trials is the evidence will grind to a halt mid-trial because a record that a defendant did not anticipate adducing has suddenly become relevant. This scenario is very problematic for the administration of justice as we’ll likely need to adjourn a trial. The complainant would be permitted to have counsel at that time and then we’ll have to set new dates to argue whether or not the record is admissible and then to continue with the trial.
Right now a seven-day notice period is contemplated. It might be reduced, but it still requires a written application and a time to allow a complainant to get counsel.
Adjourning a trial mid-cross-examination could be enormously stressful for a complainant. The likelihood of the trial being completed in the appropriate time frame so that an accused person’s subsection 11(b) rights to a trial in a reasonable time will be in jeopardy.
There is very much a possibility that the way the proposed clause is contemplated now could cause delays in the courts. When we consider scenarios where there are large volumes of text messages, as my colleague discussed, this could take an enormous amount of time to litigate. I’ll keep my comments to that and I’d be happy to answer questions.
Kathleen Dufour, Director General, Outaouais CAVA: Thank you for inviting me. It is an honour to be here. Thank you also for giving the victim assistance organizations the opportunity to present their views.
Quebec’s network of victim assistance centres, the Réseau des CAVAC du Québec, of which I am a member and that includes 17 centres, is made up of social workers, criminologists and sex therapists who provide front-line services to victims of crime, their families and witnesses to a crime. We have 170 service access points in Quebec, including through police services and criminal court divisions. For 30 years, we have offered psychological support, information, technical assistance, and guidance services. Drawing on my 25 years working with victims, I hope my remarks will be useful.
Following a year marked by the #MeToo movement, we have to reassure victims that they can break their silence when they come forward to the authorities and that they will be treated with respect and dignity. Let me simply say that Bill C-51 holds out great promise if it sends the clear message that consent must be valid throughout a sexual activity and that it can be withdrawn at any time.
That said, will trial courts have sufficiently clear guidelines to determine whether a victim was able to give consent, for example, in cases where there is intoxication or in a relationship with abuse of power? That will of course be for the legal experts to determine.
While research clearly shows that victims freeze at the time of a crime, too frequently, victims of sexual violence still have to justify before the court why they did not say no, scream, fight or try to escape. In our view, the definition of consent in the Criminal Code must be clear enough to encourage victims to come forward. Still today, some victims say they will not be believed because they did not clearly show through concrete actions that they did not consent.
Similarly, a victim of sexual trauma might react in ways that can be misinterpreted by police, prosecutors and judges who are uninformed about the consequences of such trauma. This makes training for the various actors in the system essential.
Beyond the myths and prejudices that are often still too prevalent among various actors in the system, the rules related to victim testimony should also be analyzed. Giving testimony is a key step, allowing a victim to explain why she did not consent to a sexual activity. Victims are still called upon to recount very traumatic and intimate events, although they are not familiar with the workings of the court and still too often are not given assistance. This definitely undermines the victim’s credibility.
Further, access to the victim’s past record and confidential files is an especially sensitive issue. What kind of files might the accused want to use if the victim’s sexual past or reputation can no longer be used as part of their defence? I can only be concerned about the impact if the courts allow victims’ personal files to be used without careful analysis of their relevance. Victims would no longer trust the professionals around them, which could leave them in devastating isolation.
So giving a victim legal representation to prevent her from being subject to questioning and cross-examination about a personal file is essential to upholding victims’ right to support services.
In closing, we see every day that victims’ experience in the justice system depends on various factors that are clearly spelled out in the Canadian Victims Bill of Rights. While these rights include the right to fair and accurate information, the right to protection, and the right to participation, unfortunately these rights are not always consistently upheld. We are still seeing too much disparity among actors in the system and from one jurisdiction to another.
Upholding the bill of rights consistently across the country would have a major impact on victims’ confidence in the justice system. Working with victims of sexual assault has taught me that victims do not want to jeopardize the right of the accused to a full defence or to have harsh sentences imposed on all accused persons. Above all, they want to be treated safely, with respect and dignity, by a system that enables them to tell their truth, and for their truth to be heard. Since the trauma undermines their ability to provide accurate testimony, this should be examined in order to identify questioning and cross-examination practices that enable victims to present their truth in court. The purpose of any criminal trial is after all to shed light on the events and to make sure that those events do not happen again.
That is what the thousands of victims who report sexual violence want to see, and what those who are unfortunately still isolated in their silence also want.
The Chair: Thank you, Ms. Dufour.
It’s my pleasure now to introduce Ms. Katherine Hensel.
Katherine Hensel, Barrister and Solicitor, Indigenous Bar Association: Thank you. Hello, everyone.
[Editor’s Note: The witness spoke in her Indigenous language.]
My name is Katherine Hensel. I am here on behalf of the Indigenous Bar Association. It’s an association of Indigenous lawyers, law students, legal scholars and members of the bench.
We are most acutely concerned about several elements of Bill C-51, unfortunately, although we can see how the bill attempts to meet several objectives that the members of the bar share. Those are, just to name three, reducing the incidence of sexual assault and related violence and protecting the rights of Indigenous victims and complainants where it does occur. We note that Indigenous people are, regrettably, gravely and disproportionately the victims of sexual violence, up to and including murder.
Second, as a laudable objective, reducing the over-representation of Indigenous accused and offenders in the criminal justice system. We are also, regrettably, gravely over-represented among the ranks of the accused, the convicted and the incarcerated, including with respect to crimes of sexual violence.
Finally, the members of the Indigenous bar, as officers of the court, as lawyers and as Indigenous people, aspire to a justice system in Canada that is fair to Indigenous peoples, whether as litigants, witnesses, complainants or victims.
For far too long, Indigenous people have been, on the one hand, over-involved with a justice system that, on the other hand, fails to serve and protect us. The twin goals of a fair and just process and enhanced safety for all members of Canadian society, these are goals that Indigenous people and the members of the Indigenous bar do not see as being readily available to us through the justice system today.
I trust the members of the committee will not take these as particularly controversial statements.
We can see how Bill C-51 attempts to meet these goals by enhancing the quality and the quantity of evidence available to the court, particularly with respect to evidence concerning communications between the accused and the complainant, by balancing the evidence available concerning both the accused and the complainant, by deterring and punishing sexual assault, by clarifying and confirming that unconsciousness negates consent, and by generally increasing the information available to the court and the Crown to find truth and to undermine defences that, in turn, fundamentally undermine the quality of justice available in Canadian courts.
Again, we emphasize these are laudable goals shared by members of the Indigenous bar.
Unfortunately, these goals are not, in our submission, met by the provisions as they exist in Bill C-51. Several of them may, in our submission, enhance quality and fairness and possibly offer some protection to complainants in proceedings such as those involving the allegations against accused like Jian Ghomeshi. They would not have, in our submissions, protected the likes of Cindy Gladue or of Tina Fontaine. A justice system that produces results as we saw in R. v. Stanley — that’s the case involving the death of Colten Boushie — will not, in our submission, protect the rights of an Indigenous accused person where it does not do so sufficiently now.
Any tools in the hands of the Crown to be used against an accused person will, under the current circumstances and the current state of Canadian courts in the justice system, enure to our collective detriment always.
They will not, in our submission, serve to protect Indigenous complainants and victims of sexual assault and sexual violence. There are a number of more technical points set out in our written submissions that have been carefully canvassed by my friends here, which we adopt and share.
There are numerous ways that Canadian society and the justice system can serve and protect sexual victimization of Indigenous people, particularly girls and women: increasing the resources for youth and adult programs in Indigenous communities; correcting systemic discrimination for funding for infrastructure, housing, health, education and child welfare; addressing in a meaningful and effective way the legacies of residential schools intergenerationally and directly; and the legacies and the direct effects of child welfare interventions.
In our submissions, encouraging complainants to come forward and making them feel safe in the courtroom has been described as putting the cart before the horse. A more apt description might be that the horse is out of the barn by the time you’re trying to make a courtroom or criminal proceeding less traumatic for an Indigenous complainant or victim of sexual violence.
The amendments assume sufficient nondiscriminatory and effective access to justice on the part of complainants that does not currently exist for Indigenous complainants and victims of sexual violence.
A concern has been raised by some of our members about the distinction between unconsciousness and other conditions that may render a complainant or a victim incapable of providing meaningful consent. The distinction, the concern or the anxiety that has been identified by our members is that distinction places undue emphasis on consciousness versus the large grey area leading to unconsciousness where ability to meaningfully provide consent is compromised.
We share the concerns raised by the Criminal Lawyer’s Association, as, I anticipate, by my friend from the CCLA, Ms. Secter, about the provisions of section 276 and electronic communications concerning sexual history. We submit that a case-by-case basis, as is currently the protocol in the procedure, is more effective than any blanket extension of the rape shield protections. Like my friend Mr. Spratt, we’re not calling for the existing rape shield protections to be diminished, but the additions and the expansion will operate, in our submission, for the reasons that I’ve submitted earlier, operate exclusively to our detriment in terms of Aboriginal or Indigenous accused people being over-represented amongst the ranks of accused people generally.
Subject to your questions, those are my submissions.
The Chair: Thank you very much.
Samara Secter, Associate, Addario Law Group, Canadian Civil Liberties Association: Thank you to the committee for inviting me to speak today. I’m here on behalf of the Canadian Civil Liberties Association. The CCLA has general concerns with the bill, including its changes to the Department of Justice Act. My submissions today will be focused on the sexual assault amendments.
From the CCLA’s perspective, Bill C-51 is unconstitutional, unworkable and ineffective. The new sexual assault provisions respond to a nonexistent problem. The existing law is vigorously applied and its protection is routinely sought by prosecuting counsel.
Conversely, the new procedural rules squarely interfere with the right to silence and the right to a fair trial where there is no compelling evidence that such interference is required or justified.
The CCLA would like to make three submissions today, but in the interest of time, I’ll give you the highlights and we can come back to them in questions.
Number one is that the defence disclosure obligation is unconstitutional because it infringes on the right to silence and interferes with trial fairness.
Number two, which I’ll elaborate on now, is that adding counsel for complainants in a section 276 application and the proposed section 278.92 applications creates an unfairness for the defendant.
Three is that expanding the reach of section 276 to include communications jeopardizes the right to a fair trial and introduces unworkable ambiguity into the criminal law.
Briefly, on the defence disclosure obligations, the CCLA says that proposed section 278.92 is unconstitutional for the reasons highlighted by Mr. Spratt and also because of how it interferes with defence cross-examination. Cross-examination is a most powerful weapon of the defence. The Supreme Court has agreed with that statement. Particularly that’s true when the entire case turns on the credibility of witnesses.
If a witness is told in advance what the intended areas of cross-examination are, which they may be based on 278.92, and with the benefit of a lawyer is entitled to mould their answers, that will subvert the search for the truth. Proponents of the legislation say the defence has no right to a trial by ambush. That’s the response, but the proposed scheme has the potential to cover communications and records that the complainant will know exist. The ambush concerns are misplaced.
I’d like to speak briefly about inviting complainant counsel in on section 276 applications. It’s the CCLA’s submission that the proposed legislation and its invitation for complainant counsel is unprecedented and includes the complainant as a party litigant in a criminal trial. The complainant has standing to participate and has the right to her own lawyer in a criminal trial and turns the trial into a tri-party proceeding. That party does not have the defendant’s fair trial rights as a front-and-centre concern even though the stakes involve a criminal record and the potential loss of one’s liberty.
The CCLA says that this introduction is unnecessary for two reasons. One is that Crown counsel play a quasi-judicial role, and that includes a duty to consult complainants and advance third party interests. If the Crown is doing its job, an enhanced participation right through counsel for a complainant is unnecessary.
Two, at a 276 hearing or a hearing to determine the admissibility of evidence that is already in the possession of the accused, there is no rationale for complainant counsel. In production applications, regular section 270 applications where the defence does not have access to those records, the complainant has a unique perspective. They’re able to say, “This is in the record, this isn’t in the record, here is why the record may not be relevant,” and the complainant’s privacy interests vis-à-vis the state are indicated in those situations.
The same is not true in a 276 application or an application to introduce evidence to which the defence already has access. There is no subpoena power at issue forcing the complainant to provide something that she does not want people to have access to. The access is already there.
Although there are no identifiable benefits to the introduction of complainant counsel, there are significant negative consequences. One reason for prohibiting third parties from participating in criminal prosecutions is that the dispute is between the community represented by the Crown and the accused. The Crown has Minister of Justice obligations. A complainant’s counsel does not.
As the Ontario Superior Court of Justice judge Justice Dambrot said, fairness to an accused demands that anyone who speaks in opposition to his interests in a criminal prosecution does so bearing the duties and restraints placed on Crown counsel. A complainant’s counsel would not have those restraints.
Two, to introduce complainant’s counsel has the potential to create a skewing effect.
Given the underfunding of legal aid, you may see a situation where the accused is unrepresented, but there is a Crown in the courtroom and a complainant’s counsel in the courtroom. The asymmetry of that situation is obvious. To have no representation for an accused and two lawyers trying to have evidence deemed inadmissible in an accused’s criminal trial is unfair.
Finally, I share the delay concerns that my friends have raised. Trials are dynamic, and questions of admissibility often only crystallize as the evidence emerges. To grant a complainant standing with counsel will turn brief voir dires into protracted mid-trial motions raising section 11(b) concerns.
The last point I wanted to make was about section 276 and broadening that definition to include communications. In the interests of time, I’ll leave that for questions, but it introduces ambiguity that will be the subject of costly litigation.
In short, there is no crisis in the justice system in sexual assault cases. This bill may create one. The government should be focussing on other ways of protecting and respecting complainants’ rights rather than amending what is an already progressive and protective law in an unconstitutional manner.
Senator Dupuis: I would like to pursue the issue of electronic communications. Can you quickly explain your position on the issue of broadening electronic communications? What do you think the problem is?
The Chair: Can you please identify the person?
Senator Dupuis: My question is for Ms. Secter.
Ms. Secter: It’s the CCLA’s position that broadening sexual activity to include communications made for a sexual purpose expands the reach too far about what a sexual activity is. The reason I say that is because many sexual assault allegations in our time start with or end with electronic communications. Many people’s sexual lives or experiences begin or end with electronic communications. There is a risk in the legislation that a judge might interpret proposed subsection 276(4) to include text messages that come right before, during or right after the sexual activity in question.
It’s my submission that Parliament has created a blurred line between the activity on trial and other activity.
There’s also ambiguity in when a communication will be of a sexual nature or for a sexual purpose. There has been litigation about when a photograph is for a sexual purpose, but it’s not always easy to define. It’s likely that the sexual purpose will be even more ambiguous for a communication than for a photograph, and trying to parse through in each case mid-trial what electronic communication is sexual and what is not will add an unnecessary layer of complexity leading to further delays.
There are already rules in place to limit improper use of communications, and Parliament does not need to expand the cumbersome admissibility regime.
Senator Dupuis: I want to make sure I understand your association’s position. Are you saying that, in the case of a sexual activity that began through electronic communications, continued through electronic communications, and led to sexual relations, which continued through a series of electronic communications, possibly including photos, before or after, it is just the sexual activity on that night or morning that would be the sexual activity in question?
Ms. Secter: My position is that often the sexual activity that might take place has communication leading up to it and communication after it. What is at question in a criminal trial might involve all of that, and to say that you need an application to bring evidence of the communication that led up to that sexual activity in question, when really it’s arguably part of this transaction, puts the defence in a unfair position.
Senator Dupuis: Mr. Spratt, you say the following on page 3 of your brief, in the second last paragraph that begins with:
This positive disclosure obligation is unprecedented in Canadian law.
You go on to say that:
It is overbroad in relation to both its scope and application.
Can you clarify what you mean by “overbroad”? Are you saying there is a way to achieve the result we are aiming for in the bill by restricting its scope and application?
Mr. Spratt: In terms of the breadth, I’m referring specifically to the definition of the types of records that would be captured by this section. It is broader now than when this bill was first drafted because the Supreme Court in the case of Marakah dealt with privacy interests in text messages and confirmed that indeed when you’re dealing with Charter applications that there is a privacy interest and standing in those text messages even if it’s sent to a third party. That wasn’t the case when the bill was drafted.
In terms of breadth, we’re looking at records that might not be as private as we would normally think. Normally we think of a diary or some private memoirs that were written or something like that. That’s been the litigation so far. But this would also include text messages sent to a third party or text messages sent to the accused.
I had a case where the accused was on a sponsorship application for immigration and was the sponsor of the complainant so he was intimately involved and had a joint interest in those records as well. There was some material in those records that contradicted what the complainant was saying.
That’s what I mean in terms of breadth, just the number of records that are captured, even including records that may be public through civil litigation or other litigation.
In terms of the scope, we don’t have other sections of the Criminal Code that have this positive disclosure obligation. Some people say defence needs to disclose their expert reports, but they only need to do so at the close of the Crown’s case. They don’t need to disclose their expert report to the Crown’s expert before they cross-examine the expert.
The same with alibis. People have said, we already make the defence disclose an alibi. The disclosure of an alibi isn’t mandatory. It goes to the weight that alibi would be given and even when defence counsel responsibly — as they should — disclose it in advance. They don’t need to disclose the evidence that they will be calling in support of that alibi, just the alibi itself.
Both in terms of the situations it’s going to apply to and how novel it is to expand these obligations, that’s what I’m referring to in that paragraph.
Senator Boisvenu: Welcome to all our witnesses.
I am very pleased to see that there are five women in the group. This is an issue that primarily affects women, and hearing your opinion as women, specialists, and professionals is essential to us. We know that, for a woman, having to admit to being a victim of a sexual assault is a burden that is often overlooked by the justice system. The proof of that is that just one attacker in 30 ultimately receives a sentence or punishment. This is a dismal result for our justice system.
Ms. Dufour, I have two questions for you. Do you think the definition of consent in the bill is too narrow or should it be reviewed, especially as regards victims who may or may not be conscious?
Ms. Dufour: It is hard for me to be sure that the wording is clear enough. As I said, I am not a legal expert.
When I refer to the wording, especially with regard to a victim being unconscious, things certainly seem to be clear enough. I am referring instead to cases where the complainant is unable to consent for any other reason. That is where I wonder if the wording is clear enough.
There are various factors that can prevent a victim from saying she does not consent. As I said earlier, will trial courts have clear enough guidelines to determine that a victim was unable to express consent?
I also talked about the need to analyze what victims say. How should victims be given the opportunity to speak at criminal trials?
Senator Boisvenu: I want to link this to legal assistance. We know that the criminally accused in our justice system receive a lot of government assistance through legal aid. Such assistance is rarely offered to victims.
This leads to some worrisome statistics: 50 per cent of victims of sexual assault drop their case during the trial. According to a study our committee conducted four or five years ago, victims drop their case because they do not feel supported, protected, informed or even helped.
Do you think this bill will provide enough support to victims to prevent 50 per cent of them from dropping their case and in fact lead the majority of them to see their complaint through to trial, to the conclusion of the case?
Ms. Dufour: Various factors can lead to proceedings being completed. When I refer to victim support during proceedings, that can be legal assistance, but at the same time victims are not party to criminal proceedings. One might think that it is up to Crown prosecutors, and to criminal and penal prosecutors in Quebec, to make sure a victim receives the support to which she is entitled in her role as complainant and witness.
I am not sure that a victim who is represented by her own lawyer would be able to fully express her point of view and receive the appropriate support.
In the past 25 years, I have seen favourable developments in victim support. Prosecutors and police are more attentive to victims’ needs, especially as regards the impact of trauma on victims’ behaviour.
I have seen some success stories. When a victim makes a complaint to police and sees the case through to the end, it is because she has received support throughout the process. She received all the necessary support from police officers, prosecutors and agencies. Our organization plays an important role. We are there every step along the way to make sure the victim understands the legal language that is often difficult for her to interpret.
It is a question of balance: the victim’s importance as compared to the importance of the accused person, and the power she has in court. There is obviously an imbalance. It is deeply distressing to me that, in 2018, outrageous things are still being said to victims in court.
I do see progress though. Consent is obviously at the crux of this discussion. It is everything for the victim. She did not give consent. How will this now be addressed in court, legally speaking? The important thing, to my mind, is giving victims the opportunity to speak. This might seem very simple, but we have to examine this. This is what will make a victim feel supported by the system, regardless of the outcome of the proceedings.
Senator Boisvenu: Thank you very much.
Senator Jaffer: Thank you to all of you. Your presentations have been thought-provoking. We really appreciate them.
Some of the things I wanted to ask were covered by Ms. McElroy. I’m still very disturbed by the right to silence. I used to be a defence lawyer, and for me, I thought the exceptions — and nobody is arguing about the exceptions of alibi and all of those. No one is wanting to touch that. I always thought the right to silence was engraved in our criminal system.
What worries me is that the prosecutor knows the case and knows the victim or the complainant and will have the case flow, and the lawyer for the accused or the accused doesn’t necessarily know all the evidence that will come out. To give everything you have beforehand, not knowing what will be the emphasis or how the case will flow, I think that the right to silence is completely gone when it comes to sexual assault trials. I’d like your opinions on this, starting with Mr. Spratt.
Mr. Spratt: The one issue that identifies that, and I think every defence counsel at this table will agree, you can’t tell in advance what is important and what is not important. That plays into the delay issue as well, especially if you’re in front of a jury and especially if you’re waiting for the complainant to retain a lawyer and argue this application.
I can tell you that in my experience, many sexual assault cases are dealt with on issues of proof and on reliability issues. There are plenty of cases that I’ve dealt with where I haven’t called the complainant a liar, or I’m not alleging that someone is fabricating or making things up, but there are some cases where that’s the case. Some people do lie in court.
One of the most dangerous things is if you start from the premise that some small number of witnesses will not tell the truth, to alert that witness before they testify, before they are under oath, that dilutes what the Supreme Court has characterized cross-examination as, and that is an important protection against wrongful convictions and an important protection to bring fairness.
That’s what I was saying earlier. Then the accused is left with a choice. Do you give up your right to silence? We normally don’t have to present evidence. We’re not called upon if we want to present any evidence until after the Crown has closed their case because we’re entitled to know the case against us. If we’re called upon too early to disclose that, not only do you have the problems of giving material to someone who may be lying or who may have a recollection that is not reliable or that may be influenced by the material. It’s this perverse trade-off: to get the fair trial, to have that right to cross-examine, you have to give up your right to silence.
You render your trial unfair to try to make it fair. I think that is going to be a problem that the courts deal with. It’s going to be a problem that is litigated in almost every sexual assault case because these issues arise in a fair number of these cases.
The one thing I haven’t seen, from the proponents of this bill, is the empirical data. How often is it a problem? How often do we cross-examine on text messages? How often does it make an impact? That data isn’t there to justify what is a very monumental change in how we’re going to conduct trials and how these rights are balanced.
Senator Jaffer: Would anybody else like to add to what Mr. Spratt said?
Ms. Hensel: I echo Mr. Spratt’s comments and Senator Jaffer’s concerns with respect to giving up the right to silence. You can see, in the text of the bill, the aspiration that it will prevent what may look to laypeople, and even to people within the justice system, as inequity and unfairness to complainants.
My brief here is on behalf of Indigenous lawyers, specifically with respect to Indigenous people. That’s who we represent generally. Any of the aspirations the bill has have virtually no hope. They may not be worth displacing this almost sacred right to silence for the general public and non-Indigenous complainants. We have virtually no confidence that these aspirations will be met with respect to Indigenous complainants.
Regarding right to counsel, Legal Aid Ontario is conferring with my colleague. Legal Aid Ontario is now issuing certificates for complainants in sexual assault cases for this purpose. Generally — and my understanding is that’s not the case across the country; Indigenous complainants would know this ahead of time — they are less likely to be believed by police. Their intoxication or lack of intoxication and their capacity to consent is more likely to be problemized. Their evidence is more likely to be disregarded. Their prior sexual history and other activities, criminal histories, is more likely to be considered and raised. Then, when they arrive at court in what is effectively culturally and for other reasons a foreign and hostile environment, they are more likely to be characterized as the accused person. To not to be represented by counsel or not to be effectively represented by counsel, and not to be believed by the jury or the court. You’re giving up a huge amount in terms of the right to silence for something that has virtually no chance of trickling down to Indigenous complainants, who are also overrepresented as victims. I think the 1-in-30 is probably less and many of them go nowhere near a Canadian courtroom or the police.
Ms. McInnes: I wanted to add it’s important to realize that, although I understand the goal of the bill is to perhaps address informational inequality from the perspective of the complainant and trying to avoid what is termed — although this really doesn’t agree with the term — “trial by ambush,” once the disclosure requirement is given, nothing prevents the Crown from using it for its own purposes outside of simply ensuring this idea of fairness to the complainant.
This is not a no-prejudice disclosure. Once the information is given, it can be given to the police, used for additional investigation against the accused and can serve the purpose as well outside as to why this has been put into the bill. That’s an element of the right to silence that’s infringed that I don’t believe has been contemplated.
Senator Pratte: Is the definition of “sexual activity” for the purposes of 276 vulnerable to a court challenge, in your view? If so, on what basis? That’s for any of you.
Ms. Secter: The CCLA’s submission is yes, it is, including communication made for a sexual purpose, which introduces ambiguity in the law that would subject to overbreadth. That is, capturing activity that should not be captured and that doesn’t support necessarily the purpose behind the law of protecting dignity of complainants when the sexual activity in question includes some communication.
I think there is a risk of capturing communications in this bill that were not intended to be captured, forcing the accused to bring an application when the communications are highly relevant.
Mr. Spratt: In terms of the application of the broad and sexual activity that explicitly includes communication, I don’t anticipate — and perhaps this can be clarified — that when that communication relates to the subject matter of the charge, directly precedes it, or post cedes it, or deals with what the court is going to be dealing with, I don’t think that will be captured. Perhaps this section can be amended to make that clear. That’s currently what we deal with when we deal with other disclosures that are non-electronic.
In courts now there is, I think, a broadening of section 276 provisions to capture electronic communication already. If you look at distributing intimate images that are unconnected to the offence or sexting, namely, intimate communication over electronic means. I’ve had to bring 276 applications when I think those are relevant and the court has insisted on that. I’m loathe to disagree with the CCLA on this point — I don’t think I’ve ever disagreed with them before.
From a personal perspective, I think that is appropriate. I think if a complainant has sent messages, unrelated to the charge, unrelated to the matter before the court, intimate messages to another person, I don’t think they should be asked about those unrelated intimate messages, or pictures, or other activities in the course of a trial unless can you justify it under the 276 regime.
I think that’s a bit different view there. I think there is some tweaking that can be made in the wording to make it perfectly clear what is intended.
Ms. Secter: I don’t think there is a disagreement. It’s about the ambiguity that results from the broad language. If it is related to the activity in question, there wouldn’t be a section 276 application. The risk is capturing communications that are obviously related. An amendment is welcome.
Mr. Spratt: Maybe our non-disagreement shows that the section could be drafted a little more precisely because we actually are in agreement, I think.
Ms. Secter: Complete agreement.
The Chair: In fact, it could be text messages with a person other than the accused. Sex texts exist by the reality of the technology. There are people who do sex texting and they are happy with it . It’s a different thing to do sex texts that will evolve into an assault. I think there is a distinction to be made. When you put all the text communications on the floor, that is a different kind of situation, as you have properly described.
I don’t want to intervene at this stage. I’m listening to your answers to my colleagues and I could not resist making the distinction. I think that’s what you’re looking for.
Mr. Spratt: Exactly. To be clear, even with my position about not having this reverse disclosure, the rules in 276 would still apply. There would still be those protections because no one in the defence bar, no one in that court, wants questions to be asked that engage those twin myths because that’s antithetical to the truth-finding process that we all want to encourage.
Senator Sinclair: Senator Pratte, I congratulate you on having recovered your good relationship with the CCLA. I have a question for any and all of you who wish to respond. I think all of you have agreed that the issue of trial by ambush is not to be tolerated, or should be addressed, and that you don’t see this as a good piece of legislation that does that.
Do you have some suggested wording or some proposed amendment that would effectively address the issue of trial by ambush?
Ms. McInnes: In the materials of the CCLA, we offered a few suggestions of how to dial back what we consider to be the unconstitutional implications of the bill. One of the ways, in my submission, that the trial by ambush concerns I cited can be mitigated and yet needless litigation and the right to make full answer in defence could also be respected is, for instance, for there to be clarity with respect to what kinds of records will not fall under the new 278 regime.
For instance, it could be clarified that for the purposes of 278.2, records of correspondence as between the complainant and the accused should not fall into the regime — that record and correspondence made public by the complainant, things such as where there’s a joint privacy interest, like bank accounts, tax returns, insurance policies and the kind of documentation that — for instance, the accused and complainant could very well be a married couple. Where there are documents shared between them where there is a joint privacy interest. I think it would be absurd, respectfully, to have a result where the kind of litigation required by 278 is implicated.
There’s an ability to limit the kind of record that would fall into this regime.
The other point is that, following on from my prior submissions, if the concern is disclosure to the complainant, there’s no need to make an additional hurdle for the defendant and render their records inadmissible when the Crown’s records are admissible. That means that if there is an insistence on the accused showing their records, once that disclosure is made, why are you also rendering them inadmissible? The Crown has made their disclosure. The accused has made their disclosure. Everybody is on the same playing field. Why are you making the accused’s records inadmissible and letting the Crown file whatever they want, subject to the usual rules of evidence? That’s a huge disparity that is, from the perspective of the CCLA, unquestionably unconstitutional.
Senator Sinclair: That’s your full answer in defence point, as I understand it?
Ms. McInnes: That’s correct.
Senator Sinclair: Does anybody else wish to comment on my question?
Ms. McElroy: I could add that regarding the records that my colleague has identified, the complainant would have knowledge of those already. It’s not an ambush, so to speak, if they either produced the record as it might be in terms of a text message or they’re aware of it because it’s joint in some capacity. I think this idea of the threat of trial by ambush isn’t really there.
Then, when we think about other records that might be brought before the courts, such as a third-party record, the procedure that’s in place is very robust and allows for a two-tiered approach where the judge may order production if they think it’s going to be relevant. That’s already in place. I think the idea of the trial by ambush is not really there.
Mr. Spratt: To add something, there are procedures in the court currently that mitigate some of that fear. When you’re cross-examining a witness on a record, you have to produce the record to them when they’re in court so they get a chance to see it. They can refresh their memory from that record. Then, always the Crown has the ability to re-examine that witness in case there’s any context that needs to be added or any nuance that was lost. There is an ability to respond currently that mitigates some of that trial by ambush concern.
Ms. Secter: I completely agree. The concept of ambush is misplaced when the complainant is the creator of the record and should know of its existence, and when there are already robust procedures in trial that can be used to protect them.
Senator McIntyre: Thank you all for your presentations. There are two types of records: Those in the hands of third parties and those in the hands of the accused. In the case of complainants’ records in the hands of third parties, the bill only makes one minor change in that it extends the notice period for application from 14 to 60 days.
As for the records in the hands of the accused, we all understand that the new procedure may require — I say “may require” — the defence to disclose elements of its case and evidence in its possession. I understand your concerns; as a former criminal defence attorney, I really understand your concerns. The new procedure would allow a complainant and complainant’s counsel to prepare a response to cross-examination at trial well in advance. These amendments do not balance well with the rights of the accused. As Ms. Secter mentioned a while ago, cross-examination is defence counsel’s best weapon. If you don’t score points on cross-examination, then you’re not going to win your trial. It’s just as simple as that.
That said — and here is my question — the new provisions would require a judge to hold a two-stage process: There would be an application process and an admissible process. In other words, if the application doesn’t succeed, then there’s no admissibility whatsoever.
How helpful will those two-stage processes be? Will they be very helpful in sorting things out?
Mr. Spratt: There’s already a sorting mechanism that we have now, and that’s just the rules of relevancy. We’re already talking about evidence that would otherwise be relevant and admissible. It’s not hearsay evidence, you have to prove it and it has to be relevant to an issue in the case.
The further stage about balancing all the factors is unhelpful, because it’s going to tend to exclude evidence that would otherwise be probative and relevant. The process in which it’s done by risks contaminating the fact-finding process of the court. Then, in addition, there are the delay issues.
I understand there’s a balance to be sought here. Perhaps if a piece of evidence is so marginally relevant but engages some privacy interests, a judge may exclude it. I can’t see many situations where the defence would disclose this material, bring it and want to cross-examine on it when it was so marginal and just barely crossed that threshold of relevancy that the judge would otherwise exclude it.
I just don’t see the impact of this balancing really working practically in our courts.
Senator McIntyre: In round two, I would have another question on consent.
Senator Pate: Thank you to all of you for appearing and for all of your work. As someone who has spent the better part of four decades working with individuals, particularly women who have been victimized, but also youth, men and women who have been criminalized, the interest in a fair and due process is something I see as vitally important.
I’m struck by many of the comments echoing what we heard when the rape shield provisions were initially introduced by counsel in similar positions to those — you are all too young — that you are in now.
It’s important to note that the proponents who are talking about ambush — it’s not just the proponents; it’s the Supreme Court of Canada. At paragraph 55 of the decision you all know well, the Supreme Court of Canada said:
If the defence is going to raise the complainant’s prior sexual activity, it cannot be done in such a way as to surprise the complainant. The right to make full answer and defence does not include the right to defend by ambush.
That’s where that language came in, not from proponents per se.
One of the things that I’m struck by — and I’m curious as I was reading your submission and as I’m hearing you — is where is the evidence, the data, to support the fact that this will result in delay and wrongful convictions? Also, do you have evidence, for instance, that section 276 applications have caused such delays and wrongful convictions? What would you propose? I’ll give you an opportunity to answer what Senator Sinclair asked you: What would you propose in the alternative that would still preserve the issue that’s trying to be addressed, which is to not continue the historical approach to sexual assault with misogynist, sexist and racist stereotypes about complainants that have given rise to this legislation, in fact?
Mr. Spratt: Briefly, in terms of evidence, it should be incumbent on those moving these changes to present evidence.
That’s where we should see evidence — from the party wishing to change the law. That was done in the section 276 debate, and unlike the section 276 debate, we are talking about material that is relevant to credibility. There are no myths here. No one is suggesting that these records would be used in a way that violated section 276. One of the reasons the Supreme Court upheld 276 is because it doesn’t matter what the complainant was wearing. It doesn’t matter when the complainant reported it. It doesn’t matter what her prior sexual history is. I will tell you the Supreme Court will say it does matter that the complainant comes into court and said to the police that it did happen, yet sent a text message to the accused saying it didn’t happen. That’s the difference between the two, I think.
In terms of some amendments that might ease some of the concerns — I think CCLA has made some, and I would agree with — it would be not giving the complainant standing; having the judge in a closed hearing, perhaps at an in camera hearing — where the complainant is not a party — take a look at the evidence; having it incumbent on the Crown not to share anything in that closed proceeding with the complainant.
That would take care of some of the concerns that were raised in the House of Commons and that have been raised by us about having an untruthful or unreliable witness inappropriately tailor or shade their evidence with respect to the information that the defence seeks to use.
Ms. Secter: I would add that CCLA is not suggesting that myth-based reasoning is valuable; no one is arguing for that, or that trial by ambush is acceptable. The point being made is the legislation is so broadly worded that records that would not surprise the complainant, but are relevant and not based on myths, would be caught and an application would be necessary for those types of records.
One of the biggest issues that the CCLA sees with that is the introduction of complainant’s counsel into that process. This is because on a 276 application now, if the Crown is there, hears the evidence and then the witness does come and testify about whether it’s the prior sexual activity that’s at issue, the defence counsel can ask about their preparation with Crown counsel, can understand what went on between Crown counsel and the complainant. If the complainant has her own counsel on a 276 application and the 276 application is granted, those conversations would be privileged. That excludes the defence counsel from understanding what went on regarding the complainant’s evidence in that regard.
Ms. McInnes: I have one brief point. As an FYI, the CLA included alternate wording at page 16 to the 278.92. In it, we effectively indicate that, of course, it’s possible to keep the disclosure requirement and have a requirement that disclosure be made within the notification period as governing whether the record is admissible. If the record has not been disclosed in the appropriate time period — and that could be waived subject to argument — the record can’t be utilized, and taking out the additional admissibility threshold.
In my view, it’s the admissibility portion of the voir dire that would take so much time. You would have a judge, a defendant and their lawyer, a complainant and their lawyer and the Crown all sitting in court reviewing what could be hundreds of pages of records and ascertaining the admissibility of each one. That would take an inordinate amount of time.
If the admissibility component is removed, the Crown, in consultation with the complainant, can choose to object to the introduction of any evidence they take issue with on an item by item basis. And that’s the way our law currently works. It’s the mandatory requirement for a voir dire for every record in every case that will be a colossal use of court time.
The Chair: And the amount of proof to be reviewed, especially if all the text communications come on the table. You will see the amount of material the court will have to go into.
Senator Pate: I do not speak French sufficiently so as to ask you a question in French. One of the issues this is also trying to address is the fact that Crowns often, like defence counsel, have been accused sometimes ascribing to some of the same misogynist and racist attitudes as well. In fact, Ms. Hensel raised that, and the Indigenous Bar Association did in their brief.
If you can address the same question I was asking previously, how will these provisions assist in assisting the court to ensure that usually woefully unprepared victims are better prepared for the court process, given what we know about how many complainants don’t come forward and the attrition rate when they do come before the system in part because of those issues?
Ms. Dufour: I hope I understood your question.
From our point of view, although we are not legal experts, we certainly consider that the rules, especially for cross-examination, are extremely harmful to victims, who appear before the court without preparation and cannot defend themselves on an equal footing.
A Crown prosecutor does of course prepare the victim to testify. The prosecutor and police discuss the facts of the case with her to make sure she clearly explains the deposition she has already made to police. The deposition is often made when the victim makes the report to police, and things evolve so there may be things that were not said at the time of the complaint to police. I was referring to the impact of the trauma.
The majority of victims have never set foot in a court before. They do not know how a trial unfolds during cross-examination by a defence attorney, who of course has certain tactics to bring out the truth, from his perspective. The victim is not used to those kinds of questions: I am referring to multiple questions, double negatives and questions in quick succession. Things are changing, however, since more and more prosecutors are objecting to this and more and more judges are stepping in to ask that questions be put more respectfully.
A victim who has been through a trauma is not able to answer the questions well, even if her answers are truthful. That is why I stressed the need to thoroughly prepare and support victims for their appearance in court. The truth can be sought out while preserving the rights of the accused to a fair and equitable trial. I truly believe in this.
Victims often testify in court and do not do so on an equal footing because it takes time and a great deal of preparation to really understand how a trial works. We do that. We never discuss the facts of the case with a victim, but we take the time to carefully explain the role of each actor. How does a trial proceed? What is questioning? What is cross-examination? We even help victims answer questions that might seem leading or might throw them off. Certain changes are planned to help victims prepare their answers properly. I do not see this as something that stands in the way of seeking the truth. It simply helps prepare victims well to answer those questions.
Senator Batters: First of all, I want to say thank you to all of you for being here. You all play a very important role in the criminal justice system. We appreciate your time in being here. I was a lawyer who practised privately for many years. I know those of you who come to this committee and you take the time to prepare a brief, you’re taking time away from paying work basically to help us and Canadians to understand this bill better and how it might be improved, so that’s much appreciated.
Mr. Spratt, in the brief you submitted to this committee about reverse disclosure, I thought you expressed it very well when you stated:
Cross-examination has long been held to be the crucible of truth our courts rely upon to deliver fair and just verdicts. In short, section 278.92(1) will serve to undermine justice.
You went on to say:
This positive disclosure obligation is unprecedented in Canadian law. It is over-broad in relation to both its scope and application. It violates the right to silence and the right to full answer in defence. Additionally, this unprecedented reverse disclosure will result in protracted constitutional litigation and adjournments of trials and will only serve to exacerbate the delay problems that plagued our criminal and civil courts.
Could you tell us a bit more about why you believe this reverse disclosure provision would be found to be unconstitutional in your view? And why do you specifically think that this particular provision would serve to worsen Canada’s court delay crisis?
Mr. Spratt: I’ll start with the delay issue because I think that’s going to be the impact that’s felt first.
The cases I’ve had where this issue would have arisen include prior cross-examinations based on text messages that were sent to my client and based on medical records that were in possession of my client.
The relevance of that material only became apparent and the contradiction only arose after the complainant gave evidence in chief.
I’m not going to, as a defence lawyer moving forward, should this pass as it is, proactively disclose all of the information I have until I know I’m going to use it and it’s relevant and important.
There is a mechanism for the judge to abridge the seven-day notice requirement and the judges will abridge it. When these applications crystallize in the middle of a trial, it means that day is taken off, I go back to my office and I draft a written application and, importantly, the complainant will need time to have a lawyer, and there will need to be argument on it.
Sometimes that can be accomplished in the middle of a week-long trial just by using that day. But the last two jury trials I’ve done for sexual assault charges, I think the trial itself would have been put at risk, especially if we’re looking at time for a complainant to get a lawyer. You can’t keep a jury sitting waiting for a day or two or three.
I think that we’re going to see delays there, not so much in bringing the applications if it’s apparent before trial starts, because they can be scheduled and, of course, they can take time that can be used on other matters. I think the real delays we’re going to see are the wasted court time and the delays in setting continuations for trials when these issues arise in the middle of trial. I think that’s when we’re going to see them arise the most.
That’s bad for the criminal system. It’s also bad for the civil system, which no one ever talks about. Civil trials are being kicked down the road years and years to accommodate criminal trials so we don’t have charges stayed. That, I think, is a delay issue, and encapsulates the delay issue.
With respect to the constitutional infirmity, it flows from what really is an unprecedented disclosure. We know the defence is entitled to take a purely adversarial role in the process. We know the presumption of innocence and right to silence and fair trial is intimately linked to those constitutional values I spoke about. Perhaps the robust Crown disclosure to defence, which is mandated under the Charter in Stinchcombe, has been a good thing for our system but never has there been a finding that the defence needs to actively participate in a reverse disclosure like that. And when you deal with those novel situations that impact all of those other rights, including the incidental aspects that have been raised by the CCLA about the inability to ask a witness about their preparation — what information they actually received and who they talked to about that information — we can do that with Crown counsel but we can’t do it if they have a private lawyer because of the lawyer-client relationship.
I think it’s not just the impact on the right to silence that I spoke about, but it takes into account these incidental impacts, including 11(b) considerations that might arise.
Senator Batters: Thank you very much. I appreciate your time.
Senator Dupuis: If I understand the position that a number of you have taken, at present, there is no rule of evidence or otherwise preventing complainants, the majority of whom are women, from being treated well by the police, Crown prosecutor and judge. It seems that the system is perfectly organized. So there are no rules that cause problems in the criminal justice system for the victims of sexual assault. That is the impression your presentations have left me with. Perhaps I am mistaken and you will clarify that for me. If so, what can be done to make criminal justice fair because — and you pointed this out, Ms. Hensel — there are in fact problems for members of the First Nations and for Inuit, whether they are the victims or the accused.
Ms. Hensel, what I see in your comments is that the vulnerable members of our society don’t actually find their way, are not represented, and are used in a system as Crown witnesses. As you rightly said, Ms. Secter, a criminal trial is a trial between two parties: the community and the accused. As for those representing the community, nothing indicates that the complainant, the potential victim, will not always automatically be lying or that the accused will not always be telling the truth. So we are faced with a sort of standstill, a real situation, that gives us the impression that the system is not working. Can you help us find ways to make the system work better? If not with Bill C-51, perhaps in another way.
The Chair: That’s a large question, but deserving of a short answer because my eyes are fixed on the clock.
Ms. McElroy: I don’t think any of us would take issue with the fact that being a complainant in a sexual assault trial is not an easy thing. Regardless of how well you’ve been treated by the police, the Crown and so on, it remains a very difficult experience. Most people are not used to being in a courtroom. It’s a foreign experience whether or not you’re Indigenous. It’s something that’s uncomfortable.
I think criminal law is a very blunt tool. To work towards a better system and a better way of dealing with sexual assault in our society, we need to be looking outside of what this bill provides us, whether that’s the resources that Ms. Hensel spoke about or judicial education to make sure that the trials are staying on track and that the provisions in 276 and 278 are being adhered to or providing complainants with counsel so that they just be walked through, like Ms. Dufour was saying: This is what a cross-examination is. Just to prepare them for that experience, I think we need to be looking at those things as opposed to the provisions that have been put forth in this bill that I think will likely attract constitutional challenges. I think we need to be looking wider.
Senator Boisvenu: Once again, I would like to tell our guests how grateful we are for their testimony.
My question is for the group. Three main findings emerged from the Senate’s 2012-13 study on sexual assault: very long delays, victim protection, and lack of support. Sexual assault trials last the longest and have the highest number of postponements, particularly in Quebec.
Will the amendments to the bill reduce those delays? We know that, when there are many postponements, the passage of time influences the memory of witnesses.
In terms of sexual assault trials, do you think the improvements made to the Criminal Code will also make it possible to improve the performance of victims who appear as witnesses? Will they ensure that the witnesses are “more credible” — if I may put it that way? There was a trial, in Saint-Jérôme I believe, and it took eight years. After such a long time, victims lose credibility in their testimony. Will reviewing the definitions in the bill improve that aspect?
Mr. Spratt, go ahead, dive in.
Mr. Spratt: This won’t speed up matters. I agree with you that no one wants to have delays in our criminal courts — not victims. It certainly doesn’t help the quality of evidence. I can tell you with certainty that none of the individuals I represent want to have these matters hanging over their head outstanding. All my clients want speedier trials.
I don’t think this bill is going to help with that. I don’t purport to speak for victims, and I certainly don’t have the knowledge that Ms. Dufour has. I do sometimes see a lack of support for victims where a sexual assault case is transferred from one court to another and a new Crown takes over, and so the victim, or the complainant, is meeting the Crown for the first time that is going to be prosecuting their case and the Crown has just got the file for the first time — or complainants who have never set foot in court before or aren’t informed about the reason for adjournments. I think we can all agree, that sort of information should be provided. It’s maybe a provincial responsibility and not a federal responsibility, but there needs to be better communication there.
The one thing I’ve seen is — and I think this is something that came out of the Ghomeshi trial, and some people, including myself, categorize this as being in response to Ghomeshi — where a complainant says, I was asked if I had any communication with him, or if I went over to his house, or if I did something, and I said no because I thought it would look bad if I gave the answer. Then they’re confronted with a piece of information that shows that their answer wasn’t true. That complainant may have given a different answer if they had known the truth wouldn’t be held against them. The fact you contacted the person who you said abused you after, or the fact you acted in a certain way, or didn’t report, that wouldn’t be held against you. It’s the fact that you aren’t full and frank with your information at the first instance. That is what I submit, rightly, a court may be able to use.
Information like that, so a complainant knows exactly the situation and is on as equal footing as possible as everyone else in the court. I don’t think anyone is going to say that would be inappropriate. I’ll defer to Ms. Dufour. I don’t see that in this bill.
Ms. Hensel: If complainants have access to counsel, not necessarily as parties to these applications, it is difficult to believe, given the events of the last few years, particularly the Ghomeshi trial but also the public debate on these issues, they would not press their clients on the issue of, do you have communications. Really, check again, because that’s what I’m here for — that’s the main thing I’m here for is to make sure. It’s very unfortunate circumstances in that particular trial. Bad facts make for bad law. That may be the case here.
I think the skills and knowledge, insight, circumstances and considerations that counsel will be bringing to the task of advising complainants, which is — well, it’s not a full certificate, but in Ontario it is covered. It may well address the very concerns that were accentuated by that trial.
Senator Jaffer: For many of us this bill is in response to Ghomeshi’s trial. What we saw there was terrible when it comes to the complainants. We’re all upset about that. What I’m struggling with is that I feel the spirit of this bill is credible, but the effect of it is going to hurt the complainant again because there will be longer trials, acquittals, you name it. Could you say one or two things we could do to improve on this bill?
Mr. Spratt: I think one thing that can be done, as was suggested by others, is narrow the scope. We’re dealing with lawfully possessing that third party record. We’re not talking about someone breaking into a home to steal a diary or stealing records. I think narrowing the scope might alleviate some of the concerns about “over-breadth.” I think that loosening the admissibility requirement, where an application might need to be brought that is going to be heard in camera — but if a judge finds it is relevant and otherwise admissible, and doesn’t defend any of the exclusionary rules, that it can be admitted without the balancing that we see in the section here. If that’s a closed hearing there’s a duty on the Crown not to disclose that material, then the problems that have been identified about tainting of evidence would be eliminated as well.
Ms. McElroy: I think what we’ve been discussing partially is the inequity that people are seeing with respect to the complainant. I don’t think that’s necessarily solved by taking a right, such as the right to silence, away from the accused. Perhaps if there was a mechanism where the judge could appoint counsel to the complainant without necessarily having standing, then that could engage that conversation of again, check again, do you have any communication and so on. Without necessarily having that standing piece if the complainant was entitled to have counsel appointed to her.
Senator Pratte: I was wondering what impact there will be, if any, of the extension of the period to serve the application from 14 to 60 days? Does that have any impact at all?
Ms. McInnes: I can say there were practice guidelines set up within court administration where, by and large, in the Superior Court of Justice they want these applications served 60 days, four months, six months ahead of time because they are so time consuming. The court recognizes how much court time these applications take. In practice we all serve them well in advance of that time requirement. In my view there is no distinction in terms of lengthening that.
Senator Sinclair: Senator Pate and I were going to ask the same question. I’ll let Senator Pate ask it when it’s her turn.
Senator Pate: Thank you. A number of witnesses have recommended, and one of the things I’m proposing, is that there be some amendment to this bill to specify what short of unconsciousness equals capacity. It sounds like a number of you agree that it might be helpful if we at least bring this into what the law recognizes right now. I’m curious what your comments are about that.
The Chair: It’s a question that you have raised in your presentations and you were supposed to elaborate more in the answers. I’m glad that Senator Pate raised this because I thought it was an issue that was not covered as much as we would have expected.
Ms. Hensel: The concern is by making a binary between unconsciousness and everything else, it appears that Parliament places such weight on unconsciousness that it will have a gravitational pull and it will diminish the rigour and distort the assessment of conditions short of unconsciousness that will negate capacity to consent.
We’ve identified it as a very live issue for those very few Indigenous complainants who do make it into a Canadian courtroom. I think I’ve stated it. It will distort the analysis in a way that it is not currently distorted. You have to be closer to unconscious. There is a continuum, and it will change the nature of the interpretation with respect to consent. That will operate to the detriment of complainants.
The Chair: Are there any other comments on that issue?
Ms. McInnes: My friend and I were just discussing how difficult it would be. I don’t disagree with the comments made by Ms. Hensel. At common law, there’s no question that a complainant can reach a point of intoxication that is not unconscious, but she’s clearly unable to consent. That’s a fact-based analysis sometimes based on witness observation. Sometimes there’s expert evidence called, which is a bit trickier. It would seem to me practically unworkable to articulate that in the legislation because it’s fact specific based on the presentation of each complainant, how much they may have had to drink and so on.
I understand the position of Ms. Hensel. I’m just not sure how practically you could draft that.
The Chair: Ms. Dufour, I saw you nodding.
Ms. Dufour: Yes, absolutely. In my view, more should be said about the notion of consent. Clearly, I cannot claim to know the legal impact. We can take this a step further by asking ourselves whether, for example, the courts are currently carrying out a proper analysis of all cases of sexual violence within couples where there’s a whole history of violence perpetrated by the husband against the wife and absolute control, so the issues are sexual violence and consent. Are those cases properly interpreted by the courts?
When sexual activity occurs, in cases where a complainant claims to have been intoxicated and cannot have given her consent, the question comes up. For her, it is clear that she had not consented. However, for the court, what is the acceptable level of intoxication required for a victim to give consent or not? That is the big question, and I invite you to reflect on it. The context of consent is at the heart of many debates, not only in court, but everywhere. That is why I think it is important to clarify the context.
In Quebec, fortunately, we no longer see trials that last eight years. The Jordan decision also had an impact. Now, it often takes two years from the time the complaint is filed with the police until the trial begins.
I would like to add a point about delays. It is preferable to give the victim a chance to be well represented and to comment on certain exchanges, text messages and such. It is much more useful for victims to be represented with those aspects in mind, to be able to properly explain themselves without being taken by surprise, to explain certain exchanges, rather than being told that those factors may well extend the procedure. Victims must be able to provide their version of the facts and report things properly. This right must take precedence over the fear that the procedures may take longer.
Senator McIntyre: I have a short question regarding the issue of consent.
I think we can all agree the bill seeks to clarify the law of consent and the defence of honest but mistaken belief in consent. In other words, it seeks to clarify two components, a legal component — how consent is defined — and a factual component — whether the complainant subjectively consented and whether the accused had an honest but mistaken belief in consent.
It appears to me the proposed amendments in clauses 19 and 20 of the bill seek to clarify both of these components and are intended to reflect the Supreme Court’s decision in R. v. J. A., which is a 2011 decision. As we know, Madam Justice McLachlin wrote the majority decision. Justice Fish wrote in dissent, and he was of the opinion that Parliament could take the same approach as the one taken in the United Kingdom’s Sexual Offences Act 2003. I’m sure you’re familiar with this.
In other words, Parliament could enact a provision under which an unconscious complainant would be presumed not to have consented to sexual activity unless the defendant provided evidence proving that it was more likely than not that the complainant had given consent. In other words, he had a different opinion than Madam Justice McLachlin. Could I hear from you on that?
Mr. Spratt: I have no difficulty with those clarifications.
Senator McIntyre: Do you agree with Justice Fish?
Mr. Spratt: My partner Howard Krongold was counsel on theJ. A.case. It’s something I’ve talked with him about quite a lot. I often find myself in agreement with Justice Fish. The majority of the Supreme Court spoke in J. A., and I don’t see any problem codifying the current state of the law in the Criminal Code.
Senator McIntyre: Any other comments? No.
Senator Dalphond: Unless I misread, I understand that the right to counsel will come up in the trial, even if the jury is already made up. There is even a provision that the evidence will be introduced without the jury present. If there is a request for a hearing, the judge must then inform the complainants that they have the right to participate in the process and even hire a lawyer. Am I to understand that if complainants do not have the financial means, they will be eligible for legal aid? If so, will the legal aid be promptly available in the case? I support the privacy protection, which is a fundamental right, and the right to counsel so that victims can exercise their rights. However, if legal aid must be involved, I know that the result in practice is often delays. Do you have any comments on that?
Ms. McElroy: The way I read it, as you’ve mentioned, the judge shall as soon as feasible inform the complainant who participates in the hearing of their right to be represented by counsel.
It doesn’t say appointed by counsel. There are provisions and other areas in the Criminal Code, for example, in a 486 situation where it’s a domestic and the accused doesn’t have the right to cross-examine. In that case the appointment is made by the court, and they’re the ones who — that funding goes there.
This seems to be sort of an informational requirement of the judge. It doesn’t give a specific provision as to whether that goes through legal counsel just as issuing a certificate; whether it’s a court appointment, which is the case in a 486, if I’m not mistaken.
I think that could stand to be clarified in terms of if there is going to be an appointment, either as counsel with standing, or if it’s simply counsel to assist in the informational aspect of things. That’s not something that I’d considered before.
Ms. Hensel: I would add the complainant in those circumstances, after being thus advised, as it’s currently drafted, would be at a distinct disadvantage. It’s difficult for a complainant, an unrepresented complainant without preparation, to prepare such an application unless they have got counsel in their pocket already. And there’s no positive obligation on the part of police or the Crown to provide this information ahead of time.
I think court appointment, making a provision for — a court may appoint. If they’ve already got counsel, then the court shouldn’t have to do it, but “may appoint” would create space for that and would be a clear signal to the courts and to all the players in the justice system that the complainant shouldn’t be unduly burdened with the legal steps necessary to get a court appointment.
Mr. Spratt: An amendment like that I think would be most welcome because in Ontario we do have a legal aid system where Legal Aid does appoint, and I’ve acted for complainants before. In other provinces they don’t. I think the last thing that everyone would want is a complainant in one province being disadvantaged and not being able to get a lawyer and having different representation depending on where you live. That doesn’t seem like it would be fair or ideal.
Senator Pate: Is that one of the constitutional challenges?
The Chair: A Charter challenge on this.
Mr. Spratt: Yes.
Senator Dalphond: Maybe the proper answer is what Ms. Dufour has been proposing to a certain extent — that the system already informs the complainant from the very entrance into the system, and the system will provide legal assistance if she or he does require assistance, that there would be somebody specialized or being available within the system within 24 hours to step in, listen to — discuss with the complainant about what is the extent of that file and why would he oppose or not. Otherwise, if it has to go outside the system, I think it’s going to be a tremendous delay, unfortunately. You cannot hold up a jury for two or three or four days just to say, well, we’re going to fix it up and we’ll come back.
Senator Carignan: My question is for Mr. Spratt more specifically. You raised a contradiction with respect to the testimony, mentioning a point or a document that would contradict what the witness said. However, I think the accused still has some leeway to contradict.
Subsection 278.3(5) on the interval provides for at least 60 days, and the following is added: “... or any shorter interval that the judge may allow in the interests of justice”.
Section 278.92 gives the accused some latitude in determining what they want to produce as a record, and the following is added: “... and which the accused intends to adduce...”.
In fact, you could have the record, not be prepared to use it — unless the person says the opposite of what is on the record — and when that happens, that’s when you intend to introduce it into evidence to attack the credibility and you can make the request outside that deadline, because the section provides for that leeway.
Don’t you think that those two sections combined protect the right of the accused to not be caught by surprise, if I may put it that way, or to at least not signal factors that will undermine the credibility of the witness? That seems to be your concern.
Mr. Spratt: Yes. The ability to abridge time requirements and have short service application is of some benefit. I think that we can’t be, I would suggest, too charitable to look at the requirements of the application and say the court can be provided less information and that would somehow cure the issues that I have.
I can’t see a court granting an application or allowing the admissibility of this, what would otherwise be admissible evidence, unless details are provided. I know that the Minister of Justice has said that may not necessarily mean handing over the documents or giving too much detail. But the amount of detail that would have to be given to make compliance with this not speculative or give the court enough information to actually rule on it and rule on the balancing factors.
I would think that in practical terms it would mean that defence counsel would have to give more information than would be ideal. I think that as defence counsel one of the last things I would not want to do is not give enough information to the judge because I’m trying to protect the integrity of the process and then have the judge deny my application because I didn’t give enough information. Then have some ivory tower appeal lawyer looking at what I did and perhaps calling that into question.
I think there might be an incentive to err on the side of overinclusion even if it’s not strictly mandated.
Senator Carignan: But you agree with me, that can still be done during the trial. Anyway, the jury is taken out because it’s a trial.
Mr. Spratt: Oh, yes.
Senator Boisvenu: I would like to know what Ms. Dufour or one of the witnesses have to say about the substantial headway women have made in the past years in the justice system with section 33.1 where no one can use intoxication in sexual assault cases. Recently, in McCaw, in Ontario, the individual pleaded that he was intoxicated to the point of not knowing what he was doing, and the court acknowledged that he could use that as a ground. The trial resumed with the intoxication defence. In your opinion, does this not actually jeopardize section 33.1 and the protection that women had when it comes to intoxication?
Ms. Hensel: Yes, it does.
The Chair: On behalf of all the senators around the table we are most indebted for your contribution to our reflection. As I mentioned, the presentation was very helpful. I think the answers provided to the questions are enlightening, of course, for the consideration that we have to bring to the bill.
Thank you, each and every one of you, for your contribution. There is no doubt that in the near future, we might call you back again on other sections of the Criminal Code. As you know, when you look at the legislative agenda there are many other issues that might deserve your reflection and sharing them with us.