Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 72 - Evidence
OTTAWA, Wednesday, June 9, 1999
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-79, to amend the Criminal Code (victims of crime) and another Act in consequence, met this day at 3:50 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we have with us this afternoon the Minister of Justice.
The Honourable Anne McLellan, Minister of Justice and Attorney General of Canada: It is a pleasure to appear before your committee today as you begin to review Bill C-79. These Criminal Code amendments, which are designed to improve the situation of the victim in criminal proceedings, are the product of over two years of consultation and consideration. When I became Minister of Justice, I indicated that improving the criminal justice system to restore the confidence of the people of Canada, beginning with victims of crime, is one of my key priorities.
[Translation]
I know this committee's study will provide another essential opportunity to examine these amendments. But let me assure this committee that these amendments have been shaped by victim advocates, victims' service providers, academics, members of the bar, police, and by my provincial colleagues who have been encouraging necessary reforms for several years.
[English]
The amendments in Bill C-79 reflect the recommendations of the report of the Standing Committee on Justice and Human Rights entitled, "Victims' Rights -- A Voice, Not A Veto." They also reflect recommendations of a federal-provincial-territorial working group on victims that includes all provincial and territorial directors of services for victims. Moreover, they address concerns brought to my attention in my face-to-face meetings with victims and victim advocates. The need for Criminal Code amendments and the specific amendments in Bill C-79 have also been discussed with provincial attorneys general on several occasions.
The Standing Committee on Justice and Human Rights conducted a preliminary review in the spring of 1997 to examine, among other things, the notion of a national victims bill of rights. In their report, the committee recommended broader national consultations on a wider range of issues.
Last spring, the committee conducted their review of the victim's role in the criminal justice system. An issues paper was sent to over 60 organizations. The committee scheduled hearings during May and June and hosted a national forum on June 15. It was attended by victim service providers, victim advocates, academics, restorative justice practitioners, police, members of the defence bar and Crown attorneys, among others. In addition, several members of Parliament hosted town hall meetings to ensure that the committee considered the concerns and views of their constituents.
The committee tabled their report, which included recommendations for specific Criminal Code amendments, in October 1998. "Victims' Rights -- A Voice, Not a Veto" was aptly named. The report and recommendations emphasized a balanced approach to responding to victims -- one that is not vengeful and does not detract from the rights of persons accused of crime.
The government's response was tabled in December 1998. It indicated our endorsement of the committee's recommendations and our commitment to implementation. Bill C-79 is the first step in implementing our response.
As I have said before, the process of improving the justice system is an ongoing process. These amendments are neither the starting point nor the end point. The Criminal Code already includes many provisions to ease the burden on victims. These amendments build upon the existing provisions and enact new provisions. I am committed to the ongoing review of our criminal law. If further reforms are necessary in the future, they will be carefully considered.
As I have also said before, one of the guiding principles in the development of these amendments is the need to reflect the right balance between the rights of victims, witnesses and accused persons. The amendments will enhance the role of victims without infringing on the rights of accused persons. This principle is highlighted in the preamble to Bill C-79 and in the specific amendments.
I do not intend this afternoon to describe the bill in detail. I should like to focus on a few, significant provisions. I would be pleased to answer any questions that you may have. My officials will also appear later this afternoon and can provide more detail about the specific provisions and how they will work in practice.
The amendments deal with several key concerns of victims of crime and victim service providers. They enhance the victim impact statement provisions, expand protections for victims and witnesses to facilitate their participation, ensure that the concerns of victims and witnesses regarding their safety are taken into account when determining whether an accused person should be released on bail, and revise the victim surcharge provisions. The amendments will enhance and expand the opportunities for victims of crime to make a victim impact statement and address the manner in which the statement can be made.
Along with all other relevant information, the sentencing judge must consider the victim impact statement. The statement is a description of the harm done or loss suffered by the victim. In other words, the impact is stated from the victim's point of view.
The amendments will make it clear that it is the victim's choice whether or not to read his or her impact statement. It should be noted that the current code provisions require the judge to consider the written victim impact statement, which has been prepared and filed. That will continue to be the case. In other words, when the victim does not choose to present the statement orally, the judge will still be required to consider the written statement. It is always the victim's choice whether or not to prepare a victim impact statement. Some victims choose not to do so.
The amendments will also require that a judge inquire, after a determination of guilt and before sentencing, whether a victim has been informed of the opportunity to prepare a victim impact statement. In most cases, the judge will direct the inquiry to the Crown attorney, who should be aware of the prevailing policy in the jurisdiction for advising victims about victim impact statements. In some jurisdictions, the police may provide a card to all victims with whom they come in contact. The card would provide a referral for the victims to victim impact services and/or a victim impact program. Or the Crown may have a notation in the file that the victim has been advised.
The amendment is intended to provide a final check on the information a victim should have received. The ability to prepare and submit a victim impact statement is of little benefit to a victim if the victim is not aware that the opportunity exists.
Essential changes to the victim surcharge provisions are also included. The new regime will make it clear that the obligation to pay the surcharge rests on the accused. A specific order from the sentencing judge will not be required. The amount of the surcharge will be a fixed or mandatory minimum amount. The judge will, however, have discretion to impose an increased amount in appropriate circumstances or to waive it completely where the offender establishes that the payment would cause undue hardship.
The revenue raised by the victim surcharge stays in the province or territory and goes into a dedicated revenue fund to provide essential programs, services and assistance to victims of crime. This new surcharge regime should result in a significant increase in the revenue available to provinces and territories to help victims. Equally important, the victim surcharge will hold the offender accountable, if only in a small way, to victims of crime as a group. In fact, let me say to honourable senators that this was one of the provisions and one of the changes very strongly supported by all my provincial and territorial colleagues.
Bill C-79 also includes provisions to ease the participation of victims and witnesses in proceedings. These amendments expand provisions already in the code. For example, the amendments will extend to victims of sexual or violent crime who up to 18 years of age protections that restrict personal cross-examination by self-represented accused persons. Provision will be made for the appointment of counsel to conduct the examination. The current provision, as some of you may be aware, applies only to victims and witnesses up to the age of 14. We are increasing that age up to 18.
We will permit a victim or witness with a mental or physical disability to have a support person present while giving testimony. The current provision applies only to victims and witnesses up to the age of 14.
We will permit a judge to restrict publication of the identity of a wider range of victims or witnesses where the victim or witness establishes the need for the order and where the judge considers it necessary for the proper administration of justice. This provision will codify the prevailing common law and procedure as established by the Supreme Court of Canada in the case of Dagenais and will fully respect the need to balance the rights of the victim, the accused and the public.
I know that you will hear witnesses representing the media who oppose codification of the existing discretionary publication ban on the identity of a victim or witness. I would ask you to bear in mind that the amendment we are proposing reflects the prevailing common law applied in courts on a daily basis. Judges have a discretion to prohibit the publication of the identity of any victim or witness in any proceedings where the need for such a ban is established in accordance with a careful balancing of sometimes competing Charter rights. I underscore that we are codifying the existing common law as defined by the Supreme Court of Canada in the case of Dagenais.
The amendment will codify the discretion that I have described, but it remains a discretion to be exercised by the judge in accordance with the Charter and guided by the factors set out in the legislation. A publication ban will be the exception, not the norm, and will require the party seeking the ban, whether a victim or a witness, to make an application that sets out the grounds relied upon to establish that the order is necessary. Bear in mind, also, that all that will be banned is identity -- the naming of the person -- not the details of their evidence.
[Translation]
Proclamation and implementation of these amendments will significantly improve the experience of victims within the criminal justice system. As I have said so many times, victims need a voice that is listened to and respected. These amendments provide that voice in a concrete and practical way.
[English]
The proclamation and implementation of the amendments that I have outlined briefly for you today will significantly improve the experience of victims within our criminal justice system.
In conclusion, Madam Chair, let me say that all of us who have either worked with victims or who have spoken with victims or who perhaps have been victims ourselves understand the prevailing sense of exclusion from the criminal justice system -- a sense that something terrible has happened to them through no fault of their own. They did not ask to become part of the criminal justice system. The circumstances under which they do become involved are often some of the most tragic and horrific that any of us could imagine.
In my dealings with victims and victims organizations, some of whom you will hear from this afternoon, I have been struck by the fact that they seek respect, inclusion, and to be treated with dignity. They seek a system that acknowledges that they, as the victims of crime, have something to say -- be it to the judge, the prosecutor, the police or the jury. I have also been struck by the fact that those who are victims and those who work with victims, in the vast majority of circumstances, are reasonable people who do not seek vengeance. In fact, as I said a few moments ago, they seek respect, dignity and inclusion.
In a society such as ours, where we put a premium on thinking of ourselves as a civil society, it is time for us to acknowledge the virtual exclusion of victims from our criminal justice system and take the small but important step of sending a signal that, in all parts of our legal system, victims have the right to be heard and to be treated with respect and dignity. That is all they are asking for. Hence, at the end of the day, the name of the committee's report is "A Voice, Not a Veto."
I thank you very much, Madam Chair, and I look forward to your questions, comments and discussion.
[Translation]
Senator Beaudoin: I must begin by saying that I completely agree with the objectives of this bill. It is high time that we look at the victims of crime.
[English]
My question is on the surcharge. We already have, in Criminal Code section 737, a victim fine surcharge. I understand that according to the bill before us, this surcharge has become mandatory unless the accused is in a position to establish that it should not be applied.
Ms McLellan: That is right.
Senator Beaudoin: As we say in French:
[Translation]
The burden of proof has been reversed. The burden of proof falls on the accused's shoulders. This does not mean that it violates the Canadian Charter of Rights and Freedoms. Several Supreme Court rulings say that placing the burden of proof upon the accused does not necessarily violate the Canadian Charter of Rights and Freedoms.
Now how is this bill truly different from what we already have in the Criminal Code and how does it respect the Canadian Charter of Rights and Freedoms?
[English]
Ms McLellan: The major difference in relation to the surcharge is that we are making it automatic. Across the provinces, provincial attorneys general will tell you that there is variability of imposition of the fine. Quite truthfully, some judges are conscious and good about it. Others simply forget in some cases. There is no conspiracy involved; they simply forget. We chose to make the surcharge automatic.
Senator Beaudoin: You are making it automatic and mandatory.
Ms McLellan: Absolutely. We are increasing the surcharge to $50 in the case of summary conviction and $100 in the case of an indictable offence.
As I indicated in my comments, a judge can increase that amount in exceptional circumstances, reduce that amount or, in the case of undue hardship, the judge can say that no surcharge will be imposed.
You are right to raise the issue in terms of the Charter. It is quite clear, on the basis of existing jurisprudence, that this does not constitute a violation of the Charter because it does not deal with guilt or innocence. It is in addition to the sentence that would otherwise be imposed, in addition to the fine, prison term or whatever would be imposed as the sentence. The surcharge is simply that.
It is called a surcharge because it is in addition to the sentence imposed by the judge. In our opinion, it does not violate the Charter. Furthermore, we believe that there is jurisprudence that supports that position and raises no reasonable doubt about it. We think it is important to send a signal that when harm is done, there is an expectation that victims, as a group, have the opportunity, albeit a small one, to benefit from these surcharges. We have no quarrel with the provinces whatsoever in the sense that, under agreement with us, they guarantee that those dollars are used for services for victims.
Across the country there is growth in services for victims now that we, as a society, acknowledge the necessity to help victims repair the harm, heal and pick up the pieces of shattered lives. The provinces are the primary providers of services for victims. Our assistance relates primarily to the provision of those services that, in the provinces, come from the victim surcharge that is imposed by the courts. We believe that this is appropriate and just. Furthermore, we do not believe that this violates any of the Charter rights, contrary to what an accused person may argue.
Senator Beaudoin: In other words, it does not change this shifting of the evidence.
Ms McLellan: Absolutely not.
Senator Beaudoin: It has nothing to do with whether he is guilty or not guilty.
Ms McLellan: Absolutely not.
Senator Beaudoin: It is only when a person is declared to be guilty that the surcharge comes into the picture; is that right?
Ms McLellan: That is right. Under these amendments, only after a person is found guilty and sentenced would a surcharge be imposed -- $50 for summary, $100 for indictable.
Ms Catherine Kane, Counsel, Criminal Law Policy Section, Department of Justice: I would point out that the surcharge was mandatory in the current code. However, as the minister indicated, despite its mandatory nature it was not frequently imposed as an order. This provision will move it beyond mandatory to almost automatic, although there is still the discretion to waive it if undue hardship is demonstrated.
Senator Beaudoin: The fact that it is automatic does not change its character.
Ms Kane: It does not change its character as part of the sentence.
[Translation]
Senator Nolin: Thank you for being available to appear before the committee. I would like the proceedings of this meeting to indicate that you and your officials are setting a wonderful example of being available to answer our questions and provide us with all the additional information that we need for our work.
[English]
I have two lines of questioning; the first is about your statement concerning the government's answer to the report, and the second will refer more to the bill. I should say that I am more of a messenger for my colleague, Senator LeBreton, who, as you know, is a member of the board of MADD. I do not know if you have read the speech she gave yesterday during the second reading. It relates to the centre that the government is to create.
Ms McLellan: The policy centre, yes.
Senator Nolin: According to the press release published on your department's web site on December 16, 1998, it appears that it is probably in the making. Is it already in place?
Ms McLellan: I indicated in December, when we made public our response to the committee's report, that as far as I was concerned the work to establish the policy centre within the Department of Justice would begin. Ms Kane is the key person in that policy centre in relation to victims. She could tell you more about the work plan, the personnel and that sort of thing.
The policy centre exists within the Department of Justice. Of course, we want to work with the provinces, victims groups, the territories and others to develop a work plan that meets the needs of victims and their organizations but is also respectful of provincial jurisdiction. For example, my then colleague Serge Ménard, who was basically very supportive of the overall orientation of our work, said, "Madam, I expect that the victim's policy centre does not duplicate the work that we are doing in the provinces." It is important to underscore that we want to create in the long run in this country a seamless system in which the federal government plays its appropriate role within its jurisdiction and the provinces play theirs. Part of that seamless system of services, programming, research, information, and education will be the work that is done in the federal policy centre within the Department of Justice.
Senator Nolin: If I may, I will read the three comments that Senator LeBreton made about that:
I would ask that these be taken into account when this bill is before committee, and that the committee seek the following assurances of the minister:
First, in establishing the office, victims need more than a reference-and-resource centre. The office must be a victim's point of entry into the federal government, which provides an individual with teeth to cut through the bureaucratic mazes and processes.
Second, the office should act as a vigilant watchdog of government activities to advocate victims' rights throughout government processes. It should be established as a source of information for government departments and agencies on the rights of victims of crime.
Finally, the office must act as a liaison between government and victims' advocacy stakeholders. The office should facilitate an annual round table on the rights of victims of crime at which formal dialogues with national stakeholders and advocates could be established and maintained.
Perhaps you can comment on that. I will pass along the text.
Ms McLellan: I would be happy to. I have no problem adopting those three points. In fact, at least in relation to parts of all three, that is exactly what we will be doing.
I agree that it needs to be more than a reference or resource centre. It must be a point of entry into the federal government; that is key. Again, we must be respectful of the fact that there are provincial parallel organizations.
If the provinces think that we are somehow providing a point of entry into their programming and initiatives, that could create confusion and problems. However, I certainly agree that the policy centre can play an important role as a point of entry into the federal system. For example, if someone wishes to connect with the National Parole Board, which is within federal jurisdiction, then this could be the place they can call, or the web site they can consult to obtain the information they need. The information could in some cases be as simple as who to call in the region if you know someone is up for parole and you want to know if you or your family can go to the hearing. I think we need to be that kind of entry.
Should we be vigilant watchdogs? Yes, absolutely. I have spoken about this before. The policy centre must provide what we call "a victim's lens" on federal legislation, programs and initiatives. Just as we have within the department a gender unit where legislation, policies and programs are looked at in terms of being sensitive to unintentional impacts of a law on one gender as opposed to the other, we want to have that same kind of approach through the policy centre for federal legislation, policies and programs -- "the victim's lens." That way, vital questions such as the following would be considered: Does this take into account the views of victims? If so, does it do so in a way that is appropriate, respectful and meaningful for victims?
That is very much part of the education, information and liaison functions. In fact, where appropriate, we will be able to help organizations liaise with provinces. Again, it will give victims and victims groups the opportunity to access the province that is providing the services or whatever may be the case. It would be that link or facilitator in some cases between victims and the provinces, which actually are the deliverers of most of the services for victims in this country.
Senator LeBreton raised good points. They are points that we very much acknowledge. This is the kind of work that we would want the centre to do.
Ms Kane is on the front lines; dare I say, she the very essence of our centre. Ms Kane, do you want to add anything now that I have given you all this work?
Ms Kane: I would reiterate that the work has begun. Since the government's response was tabled, the minister has made it clear that the first priority of the policy centre's work should be the implementation of Bill C-79. That was regarded as the priority. We will be working with our provincial colleagues to ensure that it is implemented to its fullest extent and as soon as possible.
Senator LeBreton's recommendations are entirely consistent with what we view to be the mandate. As a matter of interest, a meeting is scheduled for next week here in Ottawa with all of our provincial and territorial colleagues, all of the directors of services for victims. One of the key issues on that agenda is how to engage victims groups in this process. We are particularly interested in those we may not be readily aware of in order that we may plan a round table, as has been recommended. We have to all work together to create the appropriate network so that we know where to get the information we need and where to refer people. We need to establish a good relationship so that we are working together for common purposes rather than appearing not to be working together. There is great scope for collaborative effort on these issues.
Senator Nolin: I am sure my colleague will be very glad to hear your answer.
The Chairman: I hope, Senator Nolin, that you will take the blues of the committee meeting to Senator LeBreton.
Senator Nolin: Of course. I certainly shall.
I should like to turn now to the bill and in particular subclause 17(3). You are amending the definition of "victim" in subsection 722(4) of the Criminal Code. I do not have the Criminal Code in French with me, but I do have the English. You are changing "the person" to "a person." That is the substantive change.
Is there an equal amendment in French? In French, you have "la personne." There is a difference between "a person" in English and "la personne" in French.
I do not want to be picky, but I want to ensure that more than one person can be considered the victim. The victim is not only the person to whom harm was done but also those who might have suffered physical and emotional loss. It can be more than one. We have everything we need in the English version, but in French, when you say "la personne," it is restrictive. In English, it says that the court can consider any statement, which means that there can be more than one victim. With "la personne," it may be interpreted differently in French.
What do you think, Mr. Roy?
Mr. Yvan Roy, Senior General Counsel, Criminal Law Policy Section, Department of Justice: It was my understanding that the purpose of the amendment was to include in French "matériels, corporels ou moraux." That was in the old version.
[Translation]
In the French version of the current section 722, all you have is "les dommages-matériels, corporels ou moraux." Could that include a loss suffered by the person? The English version does not have this problem since it said, "suffered physical or emotional loss."
We wanted to improve the French version by adding this word so as to completely cover the situation that we had in mind. I am not convinced that the difference between "et" and "le" in the overall context of the clause makes a difference.
Senator Nolin: I am not an expert. People with more experience with this provision could correct us. I just want to be sure that this is not being interpreted in a restrictive manner and that the courts do not end up restricting the possibility of making a statement to one single person.
Ms McLellan: That is right.
Senator Nolin: It is open?
Mr. Roy: I do not believe that an interpretation such as that one is open within the definition of "victim." This bill amends the definition of the term "victim" in subsection 1. In this context, I am not worried that this would restrict an entire other category of persons. Quite frankly, I am not worried about that.
[English]
Senator Bryden: I want to ask some rather basic questions that probably every one in the world understand except me. What is the purpose of the victim impact statement as it relates to sentencing?
Ms McLellan: The purpose is to provide the opportunity for someone who has suffered loss, damage, harm, or physical or emotional pain to share that at the sentencing component of the trial. Let me make it clear that this takes place at sentencing, after the finding of guilt or innocence. It provides the victim, on behalf of himself or herself, the family and perhaps in some cases even friends in a small community, an opportunity to share with the court and with the accused person, quite truthfully, the impact of the accused's actions on these people's lives.
Beyond that, the preparation of that statement often has a therapeutic effect. That is not the main reason, obviously, for providing for a victim impact statement in the Criminal Code, as there are other ways by which one could meet that therapeutic objective. However, when victims or family members come together and write a statement dealing with the pain, harm, hurt and impact the crime has had on their lives, it does often have a therapeutic effect.
Victims have talked to me about sitting down with their families to prepare a statement and it being, for them, one of the most important events as a family in terms of coping, especially when one has lost a family member through murder or impaired driving or whatever the case may be. The family comes together and has the opportunity, at least as the law presently exists, to have the court read that impact statement and, one hopes, take something from it to acknowledge the victims' perspective and vindicate their feelings and experience.
We are proposing that if a victim chooses, and they will not in all cases because this is incredibly painful and difficult for most of them, they will have the opportunity to prepare their written statement. They can read it if they so wish. If some of you feel that a victim might get on the stand in court and take the opportunity to go well beyond the bounds of that which describes what has happened to them, that will not happen because the victim will read a prepared statement. It is an opportunity to give voice to that which the victim and the victim's family have written.
For some victims, this is a very important inclusion and acknowledgement of their role in the justice system. They are there. Something happened to them. They count, and they must be heard. Unfortunately, our criminal justice system too often forgets that actual living, breathing people may have been profoundly damaged or hurt. You have the Crown representing the state and you have the defence representing the accused. Too often, there is no one there to acknowledge, and remind us as a society, that there is a victim.
Senator Bryden: Is it not possible for the Crown, and do they not do this in arguing sentences, to put forward for the court's consideration the impact that the event has had on the people involved?
Ms McLellan: They not only can; they do. Our system had evolved, even before these amendments, to at least the extent of acknowledging that it is important in the criminal justice system to permit victims to explain in their own words what has happened to them.
Senator Bryden: I am troubled by this philosophically, if that is a fair statement. We have gone past the conviction. The prosecution has represented the state and the Crown, the defence counsel has represented the accused, and a conviction has occurred. It is now possible currently -- so we are not adding that -- for the victims to personally come forward and read their written statements. In the interests of balance, even if the accused has not taken the stand in his own defence, would it not be possible for him to read a statement regarding the sentence to be imposed? I refer not to defence counsel, but to the defendant himself.
Ms McLellan: I do not think there is anything to prevent him from doing that. Judges can call upon the accused at the sentencing part of the trial and ask whether there is anything he wants to say. They do that.
The other thing is, senator, that you can be cross-examined on the victim-impact statement.
Senator Bryden: You made the point earlier that for a long period of time during the development of the criminal law through the common law and so on, victims were excluded from the criminal justice system. Was there any reason for that?
Ms McLellan: If you were to go back probably three or four centuries in the development of the criminal law of the United Kingdom, you would find a move away from individual, personal prosecutions and towards a decision that the crime perpetrated was a crime against all of society, not just the individuals involved. That was an important transition. I have not heard victims suggest that they in any way disagree with that important transformation of the criminal justice system whereby the state or prosecutors, on behalf of society, on behalf of all of us, prosecute this alleged prohibited action or crime. Our system still acknowledges in the code the possibility of personal or private prosecution.
In the context of victims, we are saying that we should acknowledge the fact that there are three parties in our criminal justice system. Once we made that transition to state prosecution and away from private prosecution, for too long we forgot that there was a damaged victim and an individual who had to cope with pain and suffering and loss, as well as the offence against the larger society.
Because we live in a civil society, we expect everyone to obey the law. If you do not, or if you violate the prohibitions in the code, then we as society expect some action to be taken in response to vindicate society's interests. We are saying there is a third party, and they have been excluded from our criminal justice system for far too long. Reasons can be offered for that.
We now see around the world, especially in western democracies -- and it was probably in Scandinavian countries that it first started -- the importance of acknowledging the victim in the criminal justice system. They are ahead of us in terms of the research that they have done on victim issues and perhaps even the services they provide. We are playing a little bit of catch-up in this country in terms of acknowledging what has been an important change in most western democracies -- putting that third party back into the criminal justice system.
Senator Bryden: How much of the value of the victim impact statement relates to assisting the court in arriving at the right sentence as opposed to the therapeutic effect, as you refer to it, of allowing this to occur? In addition to that, should our criminal justice system be used for therapeutic purposes?
Ms McLellan: As I say, it is a secondary consideration in terms of the writing of the statement and its presentation in court. Personally, I feel it is important. You are being given the right, as a member of a community, to stand up in that courtroom, in that public forum, and share with others how you have been hurt. That is not only therapy for some, though not for all, it is also an acknowledgement of their role in the criminal justice system.
Mr. Roy may well be able to answer the first part of your question better than I.
Mr. Roy: Certainly not better; however, I can offer my comments on this question.
It is useful to remind members of the committee that in 1995, Parliament passed a new part of the code dealing with sentencing that became law in 1996. In particular, I should like to draw your attention to section 718 of the code, which deals with the fundamental purposes of sentencing in this country; what we are trying to do when we sentence someone. Obviously, one of the things is that we are trying to deter people from committing crimes. Denunciation is another.
However, I should like you to keep in mind and, if you have an opportunity, to read subsections (e) and (f), because they refer directly to what it is we hope to do with respect to victims. The following are the fundamental objectives and purposes of sentencing: to provide reparation for harm done to victims or to the community; and (f) is to promote a sense of responsibility in offenders, an acknowledgement of the harm done to victims or to the community. If these matters are not put squarely before the judge, it is clear -- at least it is to me -- that we will not be able to achieve those basic purposes.
If you are telling me, Senator Bryden, that you do not want this to turn into a way for the victim to be vengeful in some fashion, for the courts to take that into account and to impose a penalty forcing that person to pay a heavier price than is required, then I am completely in agreement with you. We are in good company because the Supreme Court of Canada told us, in a case a couple of years ago referred to as MCA, that certainly retribution is one of the purposes of sentencing, but vengeance is definitely not. If this were to be used by the courts to impose sentences that are not appropriate, courts of appeal would intervene; they do intervene when it is for that purpose.
All that is required is to bring before the court the appropriate information and for it to pass the appropriate sentence in the circumstances, and as the minister pointed out, when you file a victim impact statement, or if these amendments are passed by Parliament, if the person reads the statement to the court, that person can be subject to cross-examination. It is expected that, given the fact that more of them will appear in court, there will be more of those cross-examinations, as there should be, because the accused must also be protected in this process.
Senator Bryden: You made the statement that some victims may choose not to give a victim impact statement. Would there be any negative implications of that for the purposes of sentencing?
Ms McLellan: No. In fact it is a very individual choice. You will hear from some victims and victims organizations later today. They would be much better equipped to talk to you about why some victims choose not to even prepare a written statement, let alone think about, under the new law when passed, appearing to read that statement. No adverse inference would be drawn from that in any way.
Senator Bryden: My last question relates to the mandatory surcharge, which, it says, is 15 per cent of any fine and then $50 for a summary conviction and a $100 minimum for an indictable offence. That money is then left with the provinces to set up programs, I assume, for the assistance of victims.
Ms McLellan: Absolutely. The money all stays with the provinces and the territories.
Senator Bryden: I cannot help but think that this is probably an inappropriate comparison, but it has always been said that "If you do the crime, then you do the time." Now we have a user fee instead of doing what we normally would do. I will give you an illustration. I live in a fishing community. It used to be that our taxes went to keep the wharves repaired and the channel dredged. Now, if you use the wharf, you pay so much, and you pay so much to get the dredging done. The justice system appears to be moving towards using some method of indirect taxation to fund programs that probably should be funded, or could be funded, in another manner.
Ms McLellan: Victim surcharges are not new in the criminal law. We are not proposing anything new; they are mandatory now. All we are doing is making them automatic. Courts have considered these and found no constitutional problems with them. You have used the statement, "If you do the crime, be prepared to do the time." Part of the "time" in our justice system, and most others, is the imposition of victim surcharges.
Senator Bryden: I was aware the victim surcharge existed; however, I was questioning whether it is an appropriate means of funding.
Ms McLellan: We believe, as do the provincial and territorial attorneys general, that it is part of the sentencing process. It is part of the sentence.
This surcharge acknowledges the fact that crime not only hurts society, it hurts individuals, who need grief counselling, for example, individuals who may need psychological therapy for years, if not for the rest of their lives, and who did not ask to be part of the criminal justice system. They did not ask for that terrible thing to be done to them or their child, and therefore, as a caring society, we -- federal and provincial governments -- and, I believe, the vast majority of Canadians, believe that it is important for us as a society, and partly through the imposition of fines on the people who have created the pain and the suffering, to help those people heal.
Senator Carstairs: We will hear later from CC and from the Canadian Newspaper Association. They are, of course, making recommendations for amendments. They think the publication bans that could potentially be imposed would, in fact, limit their freedom of speech. I should like to know what your response is to that.
Ms McLellan: First, as colleagues are probably aware, there is already a mandatory publication ban that has been upheld by the Supreme Court of Canada as it relates victims of sexual offences and victims up to 18 years of age.
Senator Pépin and others around this table who have fought so hard for women's rights and against domestic violence and sexual abuse in families were part of the fight to get those provisions in the Criminal Code in order to encourage the victims of sexual assault or violence to come forward. We all know now, although we did not perhaps 25 or 30 years ago, of the particular psychology of sexual assault offences. Therefore, there are mandatory bans in the Criminal Code on publication of the identity of sexual assault complainants and the Supreme Court has upheld those.
I want to make that clear to people. Publication bans are not new. Some of those that presently exist have been upheld by the Supreme Court of Canada.
We are expanding the discretion beyond that context of sexual offences and witnesses up to the age of 18 years. I take that back -- that is not accurate. We are not expanding the discretion. The court itself, in the Dagenais case, expanded their discretion and set out the criteria on which they would exercise the discretion to protect the identity of a victim or witness in circumstances other than sexual assault or witnesses up to 18 years of age, where the ban is mandatory.
We are simply codifying the common law of Dagenais, which is applied in the courts of this country every day. We are codifying it because we began the process some years ago of codifying, to the greatest extent possible, the common law principles developed by the Supreme Court in relation to sentencing. We have many of those already in the Criminal Code in the sentencing provisions. Much of that is codification of common law. We are continuing that process now by codifying the principles of Dagenais and the criteria that the Supreme Court of Canada outlined in Dagenais.
I can understand the concern of media outlets. They seek, quite rightly, a balancing of their rights against the privacy rights of victims and witnesses. I believe it is a case of balancing those apparent competing Charter rights.
The court does that every day all over this country. They do it on the basis of Dagenais. We want to codify the principles of Dagenais in our sentencing provisions as we have codified much that the Supreme Court has said in relation to sentencing.
If a ban is to be imposed, it has to be requested by the victim or the witness. The onus is on the victim or the witness to make the case to the judge that the ban is necessary for the proper administration of justice. Moreover, the ban applies only to identity; it does not apply to the details of the evidence. The ban might also be, and probably would be, limited geographically or however the court might find appropriate in a given case.
The Supreme Court has spoken. We are codifying what the Supreme Court has said, and the Supreme Court acknowledges, as we all do, that it is a case of the balancing of competing interests. The courts are well placed after hearing the evidence and hearing the request of the victim or the witness to do that balancing process.
Senator Carstairs: In the CBC recommendations for proposed amendments, they say that they think the ban should be completely waived upon the death of the person. I must say that I do not agree with that, personally; I think that you can be a victim and your family can certainly be victim long after you are dead. However, I should like to hear from you, minister, as to why specifically you have decided to place a ban that would not be lifted automatically upon the death of the person.
Ms McLellan: I think, senator, that you have just answered your own question. That is the reason. Death in and of itself should not automatically trigger the lifting of the ban. However, it might well be a change of circumstance that would easily allow a media outlet return to court. It is their right to do so. Media could say that the victim, or one of the victims -- because there may be the person to whom the harm was done as well as the family -- has died and that they now request respectfully that the court consider lifting the publication ban. The court would take that change in circumstances into account in deciding whether or not the ban should be lifted. I do not think it should be automatic because, as you have so rightly pointed out, there may well be other victims.
The Chairman: If I may, I have a quick follow-up on Senator Carstairs' question. Is it quite clear that a victim over the age of 18 years could waive that ban on publication if he or she wanted to make the case public?
Ms McLellan: Yes. The victim or the witness would have to request the ban. If they had no problem with their identity being revealed they would not make the request in the first place.
The Chairman: We are pre-empting a great deal of the testimony that will come before us later from the CBC.
Thank you, Madam Minister, for appearing today.
Ms McLellan: I appreciate the opportunity to talk about these important issues and engage in this discussion. I always find honourable senators well prepared. Thank you very much.
The Chairman: Our next witnesses are from Canadian Resource Centre for Victims of Crime and from CAVAC. Please proceed.
[Translation]
Ms Marthe Vaillancourt, Director, Centre d'aide aux victimes d'actes criminels: I am pleased to appear before you today. I am from the Saguenay-Lac-Saint-Jean area, more specifically, from Chicoutimi. I have been working with the victims of crime for a number of years now. I first worked for the Sûreté du Québec, then I worked at a CLSC, a local community service centre, and for the past 10 years, I have worked at a crime victims' assistance centre.
Last year, I won the Prix de la justice for the work that we did in this crime victims' assistance centre, thanks to the activism and commitment of all the stakeholders.
I have a great deal of material, but unfortunately it has not been translated into English. I wrote this over the weekend. I have tried to provide you with as much content as possible, including the famous project that we have worked so hard on to ensure proper respect for victims.
At the outset, I would like to give you a summary of our material because I also served as the co-chair of the national committee that examined the whole issue of violence against women. Women's groups and victim advocacy groups told us a great deal about the fate of people who find themselves unprotected, marginalized and once again victimized when they find themselves before the justice system.
Some victims are even more vulnerable because of discrimination, racial prejudice, or physical or mental disability. I currently sit on a consultation committee that is trying to help physically or mentally disabled victims who appear in court.
The justice system has restrictive criteria to define good witnesses. For example, a good witness is white, middle-class, able-bodied, heterosexual, a person who leads an orderly life, a person who gives testimony quickly, accurately and without forgetting anything. You have heard this many times. It still holds true. Anyone who does not match this ideal is perceived as being less credible, and this perception primarily works against the interests of women, in all cases, whether the woman is a victim or the accused. For example, a woman who has had trouble with the justice system and who might behave violently would clash with the popular image of the ideal woman and will be treated differently. Similarly, a woman who has been assaulted and who does not match the ideal is often accused of having put herself in a situation to become a victim.
How many times have I heard that the system is totally unbalanced, and that we will never be able to create the right balance by making little changes here and there. Only major changes would be effective.
It has already been said that we must respect the rights of the accused in a democratic society, but these rights should never take precedence over the individual rights of the victim, nor over society's right to ensure that person's safety. Of course, the lack of policy to guarantee the safety of victims causes difficulties.
For example, one might say that women who have suffered violence can go to a shelter, but there are problems with that too. If a disabled woman is living in housing that has been adapted to her needs, it's not easy for her to leave. Consequently, we have to consider measures to ensure that someone else leaves, namely the assailant.
Previously in committee, some people were very concerned about this order to an accused that he not communicate with the victim. If the judge says that the assailant must not communicate with his victim, this order has to be enforced strictly if you want to maintain some credibility in the system and if you want people to speak out against violence.
I have been working on the issue of victims appearing in court for 10 years. I can assure you that things are not changing quickly. Does each courthouse have a room for the victims and the witnesses? People have been talking about this for so very long. The various ministers of justice that have come and gone in Quebec say that this is a policy and that there will be a room for victims and witnesses. Yet only a handful of courthouses have such facilities. Quebec now has 11 crime victims' assistance centres, and they play a very important role, for victims need to be helped, supported and informed of court procedures and operations, what they must expect during a trial, and on their rights as victims and witnesses.
Victims are disappointed when they see the release from custody of an aggressor who has already infringed an order to keep the peace or a communications ban. I imagine you have already realized how disturbing and incomprehensible it is for victims when they see counsel for the accused and the Crown engage in negotiations to determine the plea and sentence without consulting the victim. Victims do not understand the nature of such a procedure and why it is allowed. Would it not be possible to establish guidelines or protocols governing plea bargaining?
What can be more stressful for victims than dealing with over-worked Crown prosecutors who do not follow up on their cases; in other words there may be two or three different prosecutors, with whom the victims have had very limited conversations, if any at all? The defence lawyers have far more time to prepare their case. On the pretext of providing the best possible defence, they do not hesitate to resort to tactics such as harassing and humiliating the victim during cross-examination. That only aggravates the damage already done. We have all seen lawyers using calculated effects, raising their voice, striking a pose and making categorical statements, standing within a few inches of the victim and asking all sorts of insidious and unimaginable questions. Even if the judge tells them to stop, saying that they have gone too far, once the question is asked, the victim is destabilized. I have mentioned two or three such questions, concerning the way the victim was dressed, her style of walking and the classic, "What were you doing out on the street at nine o'clock in the evening?"
If interveners in the legal system were more sensitive to the dynamics of victimization, they would realize what is at stake and be in a better position to conduct the trial according to the interests of the victims.
We have attempted to do some work on the time period between the laying of the charge and the end of the hearings. The slowness of the legal process and the adjournment of trials cause problems for the victims. Recently I accompanied a group of women who were victims of sexual harassment by an employer. The first time they came to court, it had been a year since the complaint was made. They then expect the victim to correctly repeat everything that took place and if there is a discrepancy, they say it is not right, it is her fault, she did not give the same account as that she gave to the policeman. It is hard to do a year later.
Each territorial and provincial bar has an important role to play in making the legal profession accountable for its acts. Unfortunately, equality for women and the safety of victims are still not seen as priorities.
The absolute power of judges often allows them to give full rein to their prejudices and their preconceived ideas with many discriminatory attitudes, as has been often demonstrated. When the judge gives the counsel for the defence full latitude to harass the person testifying, this person is re-victimized. It would be significant progress towards an enlightened judiciary if we were to provide them with adequate training aimed at challenging all their ideology, their deeply rooted prejudices relating to sex, race and social class in Canada. Programs offered by law faculties do not show a real awareness of such questions. Since all judges and prosecutors do have legal training, it is essential for law faculties to revise their training programs.
Let me return to the trauma undergone by victims. Bill C-79 has been described by several journalists as a call to change the culture of our legal system so that victims as well as witnesses are treated with more compassion and respect.
This bill is intended to correct certain anomalies. In my opinion, it is a step in the right direction that now has to be taken further. It must be expanded and improved in order to meet victims' minimal needs.
Taken point by point, all of these recommendations are part of a very logical initiative, and we can wonder why it took so long, and common sense obliges us to give it our wholehearted support.
I will address several points. Clause 2.3 states that the accused shall not personally cross-examine a witness who is under the age of 18 years at the time of the trial or preliminary hearing.
I am the chair of a task force against violence, abuse and neglect of the elderly. We have unequivocally stated our objection to the fact that an accused can personally conduct his defence in cases where women have been subject to violence or sexual assault or when the elderly have suffered violence at the hands of their children, for the following reasons: the extent of the trauma is amplified because of the unique link between the victim and the perpetrator, the vulnerability of the elderly, the prolongation of the procedures, since the defendant is not skilled in the rules of procedure, and the stress and anguish created by the habits of cohabitation. Imagine the case of a parent who has charged his son, and who will be examined by the son who has decided to defend himself?
In the context of self-defence, it requires courage and energy to maintain the participation and co-operation of the victim throughout the judicial proceedings, and many victims, especially the elderly, do not have these resources.
Self-defence should be limited in cases involving sexual offences, assault or where the elderly may be cross-examined by a child.
I support, and you will understand why, any provisions limiting the publication of a plaintiff's name. The publication ban must be fully respected.
As for the victim impact's statement, victims' service providers have been taking these into account for a long time. I welcome this measure. It is important that a victim who has suffered material, bodily or moral damage as a result of an offence, be able to make a statement about the damages that will be credible, confidential and treated seriously.
In my organization, we help many victims to prepare their statements. I heard the minister say that sometimes, they do not want to make statements. I think that we have to support victims. We cannot write it for them, and they have to be entirely free to say what they want, but they should be supported in this process. I know of a number of occasions where the payment of a victim surcharge was waved. Bill C-79 strengthens the provisions regarding the victim surcharge, taking into account the offender's ability to pay.
We could go further by regulating even the way that some offenders are obliged to make gifts. It is shocking to think that in some cases the offender will make a donation to a charitable organization or even to a victims' service centre before appearing in court. This entitles him to a charitable receipt. I have not checked whether it is possible to get a receipt. He can get all the benefits of this, and I find this totally unacceptable. A donation should go to victims' services organizations. The judges are subject to intense lobbying. We have noted that donations have been made to all sorts of organizations that are not related to justice, and for us, this is very often our only source of income. You have to remember that the victims' assistance office is financed by victim surcharges and donations.
The staff in victims' service centres are adequately trained to help victims. Their expertise should be recognized and they should be allowed to accompany all victims who ask for help.
When I worked for the Sûreté du Québec, I had no trouble attending in-camera proceedings. When I became a social worker in a CLSC, I could no longer do so, unless authorized by the judge. My status has changed as soon as I was no longer a member of the Sûreté du Québec. I must tell you that I was not a police officer. I was a social worker in the system.
The government must ensure that victims are fully aware of all the steps of a judicial proceeding, reasons why charges were not laid, what happens after the trial is finished, parole, in short, anything that may have an impact on them and their safety.
We should clean up and clarify the Criminal Code if we really want to help victims.
In the interest of clarification, the crime victims' assistance centre and certain organizations that help the elderly asked that gang rape be defined with a minimum sentence, and we did not receive a satisfactory reply. Things that are not explicitly stated do not have a real existence, and can be so ambiguous that they no longer have any meaning. You have to call a spade a spade, and gang rape is the reality. It is not as is presently written, one or two people. It has to be named, and it requires a minimum sentence.
Some victims complain about being stalked. I could not find a French word to replace this word. This involves all inappropriate communication between an abuser and another person. It is the type of abuse that leaves victims afraid and frustrated. Victims' service providers could try to see what happens in cases of sexual harassment and stalking when victims are pursued and harassed, and it is sometimes difficult to have police intervene because it may be very subtle. It has taken many crimes and a lot of tears have been shed before we came to this bill which recognizes that victims have certain rights.
In the project that I will soon tell you about, there were three main elements to develop attitudes and behaviours that would be respectful towards victims, reduce procedural delays and improve conditions for witnesses. Since the crime victims' assistance centre was created, we have had a suitable office at the court.
The most effective projects and the finest initiatives to help victims will be only be successful if they are supported by the entire judicial apparatus.
Will the proposed victims' service centre consult with the agencies in the field, assess interesting initiatives, strengthen victims' services, and respect the initiatives that already exist in the provinces? Will it look at a new procedure for court summons? An article by the Quebec Deputy Minister of Justice states that it is chaotic to summon everyone to report at 9 a.m. When you go to the dentist, not everyone is called for 9 o'clock. That's not how it works. In the courts, everyone is summoned at the same hour. There are postponements, many people are inconvenienced. This is not considered important, since they are "only" victims and witnesses. That's acceptable.
On a number of occasions, various ministers of Justice who learned of the Chicoutimi project asked me to have it assessed by their department. At that time, I wasn't thrilled to do so, but if the victims' centre were to assess the projects that already exist, and there have been some in Manitoba and British Columbia, it might be interesting to see what could be done across the country to help victims.
In conclusion, I have two articles from La Presse. The most interesting one is the one by Michel Bouchard. I have some copies where he says that if the lawyers don't change their behaviour, he will get personally involved. There's also a judge who spoke out at the famous Bar convention, and who is not proud of the justice system.
We learn from our earliest years that we can call upon the judicial apparatus to gain justice and safety. The police officer is your friend, justice has a long arm, justice will have the last word. Unfortunately, as has often been repeated, this is not always the reality.
The components of the court system, the parole boards, police services, Parliament, and the law faculties cannot be viewed in isolation. All of those who operate within our judicial apparatus have to decide as individuals and as professionals working with our institutions whether or not they support the basic objectives of equality and safety for all citizens. They have to make this commitment if we want our judicial institutions to constitute a true justice system.
It was the Chicoutimi project, within the legal framework, that gave rise to the victims' service centres. We have documented all of this. We have a couple of copies, unfortunately, in French only.
Senator Nolin: We often receive documents in English only, do not worry about that.
Ms Vaillancourt: In fact, there were three or four workshops at a conference organized by the Chambre des notaires and the FTQ (Quebec Federation of Labour). They made many recommendations. What did they discuss? The legibility of the Criminal Code, the lack of understanding of the justice system, the need for information. If we have the time and if I were to review this 1999 document -- this does not go back to the Saguenay floods or to Noah -- you would see that people need to gain respect for witnesses, understand the terms used and be able to read the Criminal Code. I also have the statement made by Mr. Ménard and the Quebec judges when I received the Prix de la justice.
Senator Nolin: You could complete your presentation if you have anything else to say.
Ms Vaillancourt: I will finish here. I am available to answer questions. I would like to remind you that I am not a legal specialist, only a social worker who has devoted her life to victims.
[English]
Mr. Steve Sullivan, Executive Director, Canadian Resource Centre for Victims of Crime: Honourable senators, I have circulated a document that addresses various issues concerning victims' rights, including provincial issues, parole and that type of thing. Chapter 4 deals specifically with the types of issues that we are dealing with today.
We gave that document to the Justice and Human Rights Committee in the other place when they were conducting their broad review of victims' issues in the criminal justice system. You will see that some of our recommendations are reflected in the bill.
I should first like to acknowledge the important work of that committee in getting us to this stage. It was their report that this bill is based on. In particular, I would like to personally acknowledge the dedication of the late Shaughnessy Cohen. I know, from my personal discussions with Ms Cohen, that this was an important issue for her. She worked diligently on it, and she deserves the acknowledgement.
As well, the minister deserves acknowledgement for her speedy reaction to the recommendations in the report, in getting this bill here as quickly as it was done.
I have spoken with victims and victims' groups across the country about the bill since its introduction and I can tell you that there is overwhelming support for the bill, victims of violence, CAVEAT, and I know MADD has been referenced as well. What is also encouraging for those groups, and for us as well, are the minister's comments that this is not the end. There is acknowledgement that this addresses many of the concerns held by victims and victims' groups, however, it is certainly not the end and that more reform may be necessary. My colleague has identified some of the remaining issues that this bill does not address. However, it is an important first step and it is a bill that we support wholeheartedly.
I will not bother going over the bill in detail. The minister did that quite well, and I know all senators are familiar with the bill. I would like to say that the areas with regard to victim impact statements, at both sentencing and at 745 judicial review hearings, are things that victims have been talking about for a number of years. The clarification at the sentencing stage for first- and second-degree killers with regard to the existence of 745 is another important area that victims have been talking about for a long time, so we are not surprised 15 years later when the judicial review hearing takes place. They have that warning.
The expansion of protection for witnesses is important. Of importance also are the amendments to the victim surcharge to ensure that that surcharge is being imposed consistently across the country, which will ensure that the provinces have the proper funding for services for victims at the base level.
The provisions regarding the judicial interim releases and to bail are also an important step. Those steps help to ensure that the concerns and safety of a victim, not just the public, in general, are taken into consideration when release is considered. Those provisions also relate to what conditions should be placed on someone when release is granted.
When we appeared before the House of Commons committee on this bill, we did make some technical improvements or suggest some recommendations to improve the bill. I will not do that today. The bill is a positive one, and our recommendations simply built on what was already there. Realistically, we wish to see this bill come into law as quickly as possible.
Let me refer to the minister's comments that this is not the end. She is committed to this issue. Although we are not sure what form the victims' policy centre will take, I believe there is a commitment there that we will be able to work with that centre, to build on what is in this bill, as we see what the deficiencies are and what the other problems are. We are simply urging this committee to pass Bill C-79 quickly. We think it is positive.
Regarding comments that you will hear later from other groups on the subject of publication bans, I will just make a few brief comments. As the minister said, there is nothing new in this bill when it comes to publication bans. Certainly, with regard to sexual assault victims, publication bans have been around for a number of years. They have been upheld. The minister spoke about the common law with regard to other types of witnesses. Certainly there is, again, nothing new here. I do not believe that the concerns to be raised are supported by a majority of victims and victims groups, certainly not the ones that we work with. The recommendation that the publication bans ceases when someone dies is not one that we support.
This bill is about giving choice to people who have been victims of crime. For someone who has made the choice not to have their name identified, that choice should be respected after their death. We respect the ability of victims to make those choices.
Bill C-79 incorporates a discretion for a judge to impose a publication ban. There is a requirement that a victim, through the Crown, actually make the application. We think all of those certainly weigh the concerns of victims and victims' groups and offer the proper protections.
I will stop here. Once again, it is not often that we come here and endorse a bill. We do that today, however.
I look forward to any questions you may have.
[Translation]
Senator Beaudoin: Thank you, Ms Vaillancourt; I agree with just about everything that you have said. If this can be of comfort to you, I have spent part of my life in law faculties. There are more and more women in our law faculties. We teach male and female lawyers to plead cases. There is a teaching court and, now, women constitute the majority in the law faculties. Some day, this will be reflected in the number of women appointed to the judiciary. This will surely improve our judicial system, because it will more representative of our society.
Having said that, what do you think of the bill? We can obviously improve all of those things that you have addressed, and you are right. There are many abuses, society is not perfect. That is certain. But are you pleased with the bill? Do you think that it represents progress? Do you think that it is a step in the right direction?
Ms Vaillancourt: It is a step in the right direction, but at my age, I am very anxious to see the next step. There have to be a number of steps, we have to go on.
When the bill refers to the victims' safety, is this limited to the time when the victim is in the courthouse? Who will look after this? Ensuring the safety of the victim is easy to talk about but not to do. A number of factors come into play in this bill.
For example, will there be any sensitivity towards cultural communities and differences? Justice is not at all sensitive to people with differences. When I say that justice exists for the white middle class, it is not a sophism but a fact. The victim is expected to rise above any emotion and relate events in a particular way. In the condition in which he or she finds himself, is it possible to expect this of the victim?
As for the presence of women in law faculties, women have not yet imposed their vision. We have not reached the stage where important changes have taken place. Of course society is evolving. I do not claim that things are not changing.
As for lawyers, I feel comfortable with this subject. The article I distributed by the journalist Bouchard is very vindictive towards lawyers. If I were a lawyer reading the judge's comments, I would feel very bad. Does the search for truth require all these things that are occurring nowadays?
I know some young lawyers who are able to bring evidence and obtain the truth without resorting to insulting the victim. They don't torture the victim for hours. This type of lawyer is very sought after. This kind of improper procedure should be regulated.
I can assure you that if I quoted some names, you would understand the point I am making. I have seen victims who were completely wiped out, girls who are unable to go back to school because of improper questioning on the part of the accused lawyer. Of course, a judge may be sensitive and put a stop to this. But once these insidious questions have been asked, it is over, the victim is destabilized.
Sometimes it is so vulgar that I could not repeat the questions in front of you. It happens and there is no reason to imagine that the City of Chicoutimi is any different from other cities. Lawyers all have the same training and know that they can attract clients when they engage in theatrics and in demolishing victims.
Senator Beaudoin: You raise several subjects and I appreciate this. There is a great deal of truth in what you say. Given my rather optimistic nature, I believe the situation is improving.
Faculties have different concerns today and since there will be more women lawyers and judges, it is probably a step in the right direction. Society will change for the better.
We have a bill that strikes me as a good one. The administration of justice is not solely a federal responsibility, it is also provincial. Courthouses are built and paid for by the provinces. We are not alone in this endeavour and provinces must also do their own soul-searching. I agree with what you say and I think it is good for us to hear it.
Ms Vaillancourt: With respect, I would say to you that we cannot leave it up to women alone to bring about a change in the law faculties and the bar. We are told that things will change once women are in the church. We cannot expect women alone to take on the responsibility for correcting something that has been in existence for 2000 years.
Senator Beaudoin: We will see a proper balance at one point.
Senator Nolin: Ms Vaillancourt, you have given us a different perspective from what we often hear. The administration of justice is not our responsibility. However we are responsible for the nebulosity of the Criminal Code. We have taken good note of your statement. Whenever we examine the Code, we attempt to clarify it and to make it more concrete and comprehensible.
When the minister was questioned, she talked about a strategic centre for victims. I am sure you understood that she didn't intend to simply concentrate federal efforts but also try to coordinate and participate in both the provincial and federal effort to help victims. Do you have any comments about that?
Ms Vaillancourt: I know that many members of Parliament are opposed to the creation of this bureau. If the minister thinks she must do this, she must do it. However, the bureau should not be created simply for the sake of creating a bureau.
Will this bureau see the stakeholders? Will it examine projects that are currently before the court? If this bureau is detached from what goes on in the field, we don't need it. If it takes into account the work that is being done, examines the projects that are implemented and gets closer to the victims, I say great. All will depend on the direction it's given and the work that will be done there.
One of the first things that should be done is to look at how the new provisions of bill C-79 will be experienced by the victims. Sometimes there are emergencies and they have to be taken into account. The whole issue of parole, victim testimony and victim safety must be reviewed. How will the safety of victims be ensured?
Senator Nolin: All Canadian provinces have a responsibility to administer criminal justice. According to the minister's statement, an attempt will be made to seek co-operation between the various jurisdictions.
Ms Vaillancourt: I think so, yes.
Senator Nolin: I am trying to determine if you have the same feeling I do.
Ms Vaillancourt: I am well aware that the administration of justice is a matter of provincial responsibility. I fought so hard for the implementation of this famous project. I know what it costs and I know how difficult it is.
The federal government can play a leadership and coordination role with the provincial Ministers of Justice. There will certainly still be interprovincial meetings between ministers of Justice. The federal government can play that role since it is proposing changes to the Criminal Code.
The issue of the victim surcharge is a concern to me because it is used for the funding of victim assistance centres. When the judge does not order a victim surcharge, there is always a smirk. For us, it is a source of funding.
Senator Nolin: That is a point in favour of Bill C-79. You should be in favour of it.
Ms Vaillancourt: I am also in favour of the victim impact statement. Victims are concerned with making very accurate statements. I can tell you that those that I have read did not contain great exaggeration. The victims stuck to what they had experienced and how they had experienced it.
There is nothing more frustrating than coming before a judge or Crown attorneys who do not take into account statements that were drafted as accurately as possible.
Are there any other questions?
[English]
The Chairman: There are no other questioners on my list.
Thank you, Mr. Sullivan, for appearing today. This is the first time we have heard complimentary words from you; however, I do not expect it will last.
Mr. Daniel Henry, Senior Legal Counsel, Canadian Broadcasting Corporation: We have, at CBC, specific concerns that we wish to address. We believe that these concerns fit within the philosophy of the legislation and that they can be addressed quickly and in a fashion that satisfies groups, to a certain extent, like that of Mr. Sullivan. I spoke to Mr. Sullivan briefly about his position.
The first position that I will advance to you is one on which we have the support of a number of victims. You have letters from four victims. There is a fifth victim who may send a letter to you within a day. I believe Mr. Sullivan's group also supports the concept. I would put it to you that the minister and the government also support the concept of "A Voice, Not a Veto." Our first submission is that there should be a voice for a victim when a victim wishes to have that voice. That is fairly simple.
Senator Carstairs asked the minister whether a victim can waive that right now, should the victim so desire. The minister replied that a victim must request the ban, therefore, it is obviously within their control. The problem we are addressing within this provision is that part that the minister is saying has been upheld by the Supreme Court of Canada, therefore, she does not wish to touch it. However, it deals with the same kinds of people; it deals with victims. Those victims who we are addressing, whose voices are not able to be heard, are victims of sexual assault now covered by the bans; witnesses in sexual assault cases who are now covered by these mandatory bans. Why should they not have the same rights as the other victims who are being principally addressed by, in our view, the expansion, in the minister's words the codification of the Dagenais principle? Why should those victims not be treated in the same fashion? They should have the same right.
If you look at page 2 of our brief, we say that the amendments that we propose would ensure that adult victims and witnesses are treated by the criminal justice system as adults, able to exercise their own freedom of expression without court intervention.
The problem that we have -- and we have a number of cases of this -- is that bans are put in place without the knowledge of the victim, without the involvement of the victim, without the consent of the victim. The victim finds out about these bans afterwards. The victim then must ask permission.
One of the problems, the minister says, is that they are just attempting to codify law in the Criminal Code. There is no codification of the concept that a judge can rescind a ban. If you look at the Criminal Code provision dealing with this, there is no provision that says how it is taken off and how long it lasts.
Those victims who were first to be protected by Parliament are now shunted to second place, if you like, and that should not be. They should still be in first place in terms of their concerns.
Each victim, from our point of view, should have the right to be consulted in advance before a ban is imposed on their identity. The individual should have the right to ask far a ban or to decline a ban. They should have the right to waive the protection of an existing ban simply by waiving it, without having to ask a judge for permission.
For television and radio, this is a real problem, because we tell stories by interviewing people. If someone comes to us and we put them on television, their picture is there. Someone might say, why do not you put them in silhouette? The answer is that you can only sustain an audience for a short time with someone in silhouette. Furthermore, the story is not as convincing as it would be if a person is telling their own story, in which case you can see how they react, especially when they want to be identified.
We propose the amendment found on page 6 of our brief. It reads:
(4.10) No order made pursuant to subsection (3) or (4.1) shall be made <#0107>
Therefore, it would cover sexual assault victims as well as other victims.
Our proposed amendment continues, as follows:
(a) without notice to each affected complainant, victim, or witness that such an order is contemplated, unless notice cannot be effected,
(b) without either providing that complainant, victim, or witness an opportunity to indicate to the court their wish to obtain or decline the publication ban contemplated therein, or satisfying the court that such an opportunity can not be exercised or has itself been declined, and
(c) in respect of the identity of any complainant, victim or witness, in the event that person, or if they are under 18, their parent of guardian, declines such a publication ban.
The above seems logical. One of our supporters, who was given the option of declining a ban, supports us and says it is common sense. It is vital. If a victim is to be in control of their circumstances, they should have this right. A woman had a problem because The Leader-Post, a Regina newspaper, had a policy not to identify victims. Even though she did not have a ban on publication, they refused to identify her. She convinced the newspaper to change their policy, so that if a victim wanted to be heard, he or she should be heard.
The second problem not codified in the legislation is the duration of these bans. Do they last forever? These bans are being put in place by the thousands. Fifty or 100 years later, should the ban still be in effect?
Senator Carstairs believes that the ban should not be lifted on death because the family may want protection, and the minister confirmed that that indeed was the reason. The media can always go to the courts and ask them to lift the ban. The ban is not there to protect anyone other than the victim. That is the purpose of the ban. The object of the ban is to protect the victim. However, the victim may want to be identified after death.
We have a case in point. The case involved a lady in the Northwest Territories who was a sexual assault complainant. She testified at a preliminary inquiry. She was despondent because of her circumstances, and went to a reporter's house to talk about her case. Unfortunately, the reporter was not home. She then became drunk and was picked up by the RCMP, who put her in a holding cell overnight. She was left unsupervised and she committed suicide in the RCMP holding cell. Consequently, the coroner called an inquest. The CBC felt it should report on the inquest and on this woman's death. We did. She was one of the many victims of a particular individual. We decided that, since the purpose of the ban was to protect the privacy of the victim, it would not apply to her because she was dead. We identified her in a report on the sentencing of the accused, who was then a convicted person. There were many other victims who were alive then, but we did not identify any of them, only her. As a consequence of identifying her, we were prosecuted and convicted.
When we reported on the coroner's inquest into her death, which is supposed to be a public proceeding, we were prosecuted for that. We are still being prosecuted for reporting on the coroner's inquest into the death of this woman.
The coroner had no problem talking about this. Neither did the family of the woman; her mother testified for us. We should not be convicted because there should not be a ban.
If someone is writing a book about history, should they have to search for publication bans? History is history. If any one of us dies, apart from this ban, anything can be said about us. There is no action for defamation as a general principle. Why should this narrow exception be carved out because a court issued a mandatory ban without discussing it?
That is the essence of our proposal. We address that issue on page 6, in the following proposed amendment:
(4.11) No order made pursuant to subsection (3) or (4.1) shall continue in effect
(a) after its protection is waived by the person, whose identity is protected by it, or the parent or guardian of a person under 18 whose identity is similarly protected,
(b) after it is rescinded by a judge or justice, on application by an interested party, or
(c) after the death of the person whose identity is protected by it.
I believe this is logical.
As to why it is important to identify people, Esther Enkin can speak to that.
The idea of allowing a sexual assault victim or witness the choice of identifying herself/himself, or not, was the only subject discussed in the committee of the other place in the clause-by-clause review. Derek Lee asked questions to the Department of Justice representatives. There were about eight or nine points made by the Justice officials that I would be delighted to answer. After the discussion, Mr. Lee said, "I am not Solomon. I do not have enough wisdom to craft a band-aid for that kind of problem." Mr. Lee recognized the problem.
We are here today because we are hoping you are Solomon in these circumstances. These changes are something that can and should be addressed. There is no valid reason for not allowing sexual assault victims and witnesses in those cases to have the same rights as any other victim.
Ms Esther Enkin, Managing Editor and Chief Journalist, CBC English Radio: I want to provide a journalistic context as to why this is important to us. Very often, in the cases where people presented letters of support, the issue is not the crime itself. The minister mentioned that the details of the crime can be reported. Frequently, when a victim comes forward and wants to be identified, it is because there are issues concerning the criminal justice system or other issues about how the case was handled. That is why there is a public policy question that becomes very important.
I want to assure honourable senators that we have a very clear policy on these issues. Ordinarily, we do not want to name crime victims. If we do, there is a very serious discussion about it. However, we also do not want to make accusations or raise important public policy issues without putting a name to that person. In fact, we frown on that practice, unless there is real evidence of danger or harm.
As Mr. Henry pointed out, for radio and television, you can disguise a voice or show a person in silhouette. It is not an aesthetic issue. It is an issue of credibility, if you cannot come forward and put your name and reputation on the line.
A case in point would be the recent series of stories about a pedophile ring in Cornwall. Once we began doing the research, people were coming forward to speak to the reporter. However, we could not use their names because of the ban. These were people who felt so strongly about various issues surrounding the case -- not so much the assault itself but about how the case had been handled -- that they came forward. It was not us trying to talk them into it or exploiting their weaknesses.
It is important to be able to raise important issues and to give voice to victims, who in some cases feel victimized twice over when, because of a publication ban, they cannot talk about aspects of the case or issues they believe pertain to their cases.
To have a ban lifted does not seem as straightforward as has been presented. One of the people said, "I asked that the ban was lifted, and it has been." Being diligent, we went to check. We could not find a court record. It seems that there is not a simple procedure to enable that to happen. It is important to be true to our own policy when we weigh harm and good. We must be true to our principles of ensuring that our stories are well-sourced. It is equally important to ensure that people are identified when they are raising these questions.
[Translation]
Mr. Marc-André Charlebois, President and Chief Executive Officer, Canadian Newspaper Association: My role is simply to introduce my colleagues who are eminently competent to discuss the problems we have with some aspects of the bill. You have here Mr. Stuart Robertson, legal counsellor for the association, and Mr. Russ Mills, Editor of The Ottawa Citizen.
[English]
Mr. Russ Mills, Chairman, Canadian Newspaper Association; Publisher, The Ottawa Citizen: Thank you, honourable senators, for allowing me the opportunity to appear today and to provide my views on the issues included in Bill C-79.
The Canadian Newspaper Association represents 102 Canadian daily newspapers published in English and French in every province of Canada. Our members are a primary source of information for the Canadian people about their laws and the administration of justice in Canada.
Our members have day-to-day experience in dealing with laws that impact the freedom of expression, affecting the role of journalists and what newspapers can publish.
While Canadian courtrooms are open for all to observe, few Canadians have the time or ability to attend many proceedings taking place each day. Newspapers and the other media are there to act as the eyes and ears of citizens and to ensure that justice is conducted in public, as our Constitution requires.
The CNA agrees with the intent of Bill C-79 and with most of the proposed amendments to the Criminal Code. We agree with the bill's preamble that victims and witnesses to offences should be treated with courtesy, compassion and respect.
Our concerns in regard to Bill C-79 are with the sections that would appear to be in conflict with the constitutional guarantee of freedom of expression and with decisions of the Supreme Court of Canada that have defined this vital Charter right.
The most important of these decisions was the Dagenais v. Canadian Broadcasting Corporation decision, in 1994, in which the Supreme Court held that the constitutional right of freedom of expression can be as important as the guarantee of a free trial. The rulings set out guidelines for consideration by courts when faced with applications for publication bans.
We listened to the Minister McLellan's presentation. We do not agree that this bill codifies the Dagenais decision; we think the opposite. The Dagenais decision stressed the very limited circumstances in which a publication ban can be put into place.
Essentially, the Supreme Court held that a judge must consider all other options to a publication ban and find that there is no other reasonable alternative. The judge must also consider all possible ways to limit the ban.
The court appeared to recognize that the greatest safeguard for the effective operation of our justice system is public scrutiny. Without public scrutiny, Canada cannot have a justice system that is truly integrated and accepted by the citizens of the country.
There are several parts of Bill C-79 where the limits on freedom of expression are not narrowly and carefully drawn, as the Supreme Court requires. The first example of this is that a victim is not defined in the legislation.
The discussion of a victim that we heard during Minister McLellan's presentation dealt with the impact statement section of the proposed legislation.
The fact that "victim" is not defined casts the net very widely and could conceivably include those indirectly affected by a crime, such as family members, deceased persons or corporations. Should a bank that has been robbed be entitled to protection as a victim?
Second, the bill presents a list of factors for the judge to consider when asked to make an order banning publication of the identity of a victim or witness but does not provide any guidelines on how to weigh these factors.
Two of the items on the list, the right to a fair and public hearing and the right of freedom of expression, are constitutional guarantees. However, they are given no more weight than the other items on the list. This appears to be an invitation to litigation.
Third, the legislation provides that, even when there is an order in place to ban the identification of a witness or victim, there is a further ban on reporting the proceedings in which the ban was issued.
Surely we believe that if something is to be kept from the public, in an otherwise public process, the reason for making the process secret should itself be as clear and public as possible. For one reason, this should be done to ensure that people who are privileged and wealthy get no more benefit from the law than people of modest means or the poor.
We respectfully suggest that clause 2(3) of Bill C-79 -- that clause deals with section 486 (5) of the Criminal Code -- does not appear to have been carefully drafted and will invite extensive and expensive legal challenges. If this bill is passed without changes, it is certain that the first time a family member, corporation or deceased person is defined as a victim some of our members in the other media will be in court to challenge this.
The first time a publication ban is issued that appears to ignore the Dagenais decision and does not give proper weight to the constitutional guarantee of freedom of expression, some of our members will be in court to challenge it.
The first time we are prevented from telling the public why a ban on identification has been issued, some of our members are certain to be there to challenge it.
We suggest that these definitions, directions and limitations should be clarified by legislators and incorporated into the bill and not left to be clarified over many years by a series of court decisions.
We respectfully suggest that the Senate should exercise its right to insist that these few clauses of Bill C-79 be more carefully drafted. These few, loosely drafted clauses should not be allowed to impair this laudable initiative to treat victims of crimes with greater courtesy, compassion and respect.
By insisting that the few clauses of the bill be more carefully drafted, the Senate can save the Canadian public many years of expensive litigation without impairing the broader intent of this legislation.
Mr. Stuart Robertson, Legal Counsel, Canadian Newspaper Association: Honourable senators, we heard earlier this afternoon from Minister McLellan that the publication ban portions of the statute are to codify the Dagenais case. The was the case in which members of the Christian brothers were being prosecuted in different courts in different parts of Ontario for allegedly having committed offences against young persons. There was an order banning publication of all information relating to any of the ongoing trials until they were complete. In particular, it related to a CBC docu-drama relating to the general issue of the church and young persons and the protection of young persons.
The Supreme Court was very clear for the first time on this particular issue as to the relative weight of the right to a fair trial, on the one hand, and the right to tell people about the trial on the other. It had always been thought until that time that the right to a fair trial should probably supersede the right to tell people about it.
The Supreme Court said that that was not the case at all. It was agreed that it is extremely important that the process be open and that the right to tell people about the trial is as significant a right in our country as is the right to a fair trial.
That is an important decision. As Mr. Henry set out, there are a number of different factors that the judges should go through when there is a possibility of closing up the process in some way. To some degree, those considerations are set out in this provision. Honourable senators can see the role that Dagenais has played in the drafting here.
However, there are some very substantial things that would cause shortcomings. The first is that there is nothing in the considerations that the judges have here that tells the judge what to think about these various considerations. Are some more important than others? Can you balance one off against the other? How do you look at it?
Dagenais was abundantly clear, as was our Supreme Court in a number of cases, that the compelling, overriding principle is that the courts be open unless there is a compelling reason for them not to be. That is not in here.
I do not believe that Dagenais has been even remotely codified, at least in that most essential point.
The minister said that there would probably be few bans, that it will be an exceptional kind of thing. Mr. Henry rightly said that there were thousands put in place each year. I cannot imagine that there will be less resulting from this process, which is opening up the whole publication ban area to the vast array of Criminal Code offences that were not previously there.
The minister said not to worry, that the person who seeks the order bears the onus of justifying the publication ban. This of course was a very important factor in Dagenais. The constitutional provision says that, if one seeks some benefit, some exemption to the rule, it must be justified in some way. This bill merely says that one must state the grounds on which the application is being made. It does not say that one has to satisfy the court or bear any serious burden or onus whatsoever. In that sense, this clearly does not codify the present law.
I am not belittling the position taken by the minister; I am responding to it. The minister said that if circumstances change and somehow an order is no longer appropriate one could reappear in front of a judge and somehow it can be corrected. That shows a weakness in this particular drafting. There is no provision that would give a judge jurisdiction to hear that application.
Likewise, there is no provision in this drafting that would apply for any appeal of any discretionary order made.
Mr. Henry was right in suggesting that once an order is out there, it is out there. There is not a lot that can be done about it. I do not believe that what we heard earlier today is necessarily the way we think it is.
Just to make it abundantly clear to honourable senators, there are two parts to this particular area about which we are very concerned. The first is the mandatory order part, where the present act, which has been in place for about 12 years now, would be amended by adding a few more specific criminal offences. In these specific cases, a person who is a witness or a complainant -- not a victim -- or the prosecutor can seek an order. Mr. Henry eloquently describe an instance where the witness or complainant may not even know about it. The order was issued because it was asked for and the person aggrieved knew nothing about it.
We agree with Mr. Henry's point, but we take very little issue with that. We take little issue with the mandatory order.
Proposed subsections 486(4.1) through (4.9) are the problem areas. Those are the discretionary orders, where the word "victim" comes in, which we think is imprecise. That is the source of the provision with respect to not being able to even report on the application for such a ban in the first place.
To nail down Mr. Mills's suggestion, it is only the second area -- the discretionary order area -- where we take issue with the present bill.
Senator Beaudoin: My question is on the Dagenais case. The Minister of Justice has said that the purpose of the bill before us is to codify the Dagenais case, as it is. If I understand Mr. Mills and Mr. Robertson, you say exactly the opposite. In other words, Bill C-79 is not a codification of the Dagenais case but a piece of legislation that does not respect the principle of the Dagenais case.
Mr. Mills: That is correct.
Senator Beaudoin: I wish to know exactly what you want. You object to only one clause of the bill. Is that correct?
Mr. Robertson: We object to proposed subsections 486(4.1) through (4.9).
The Chairman: You object to each one of those?
Mr. Robertson: Yes.
Senator Beaudoin: Usually, freedom of expression is broadly interpreted by the Supreme Court. We have many indications of this. The court is not always unanimous, as you know. We had four or five major cases on freedom of expression, but the tendency now is to construe it broadly.
Some of the judges who were dissenting are no longer on the bench of the court. We have new judges, and we do not know exactly on what side they will fall.
Would you say that those proposed subsections, 4.1 through to 4.9, violate the freedom of expression in section 2 of the Charter and cannot be justified in a free and democratic society? Is that what you are contending?
Mr. Robertson: Yes, sir. An order banning publication offends freedom of expression. We do not think it would pass muster under section 1 of the Charter. That is exactly what we are saying.
Senator Beaudoin: There may be prima facie violation. Let us agree on that.
Mr. Robertson: Yes.
Senator Beaudoin: The question is the test. It is one thing to violate freedom of expression. It is another thing to say that it is not justified in a free and democratic society. You say that those clauses of the bill fail on that point.
What was the purpose of the ban in the first place for the young people? Probably, it is a question of protection, because they are young. They do not have the same protection as an adult. That is why we have provided for some form of a ban in our legislation. You say that we are in a democratic society and this ban is going too far. The freedom of expression should prevail.
I agree entirely that it is quite debatable, but where do you draw the line? You are not opposing a certain kind of ban.
Mr. Robertson: No, we are not opposing that at all. It is more the reasoning by which the judge would get there. We are saying -- and we think Dagenais says this very clearly -- that your starting position must be that the whole thing is open. That has to be the starting position. "Give me your reasons, applicant, as to why that should not be the case. Make your case." We think that is what Dagenais said. That is not what this bill says, sir. This bill says that a judge can think of a whole bunch of things, and that is all it says.
Our objection may not be as great as it first seems. This is a curable problem but it is by saying exactly what I have just said. The process should be open unless there is a compelling reason for it not to be. That will certainly assist the judges as they go along, in terms of deciding whether a particular reason is compelling enough to close it. It is just the way you approach the particular issue.
What Mr. Mills said would happen will happen. That is, when orders come out that do not seem to be operating under any kind of presumption of openness, there will be applications. That is when this proposed subsection will be examined.
I believe the minister will be proven right at the end of the day. The Supreme Court will probably have Dagenais number 2. The court will say that, for this legislation, if you just do this and do that, put in the presumption, it will be fine. If you do not have the presumption in, the courts can go any way they want giving weight to anything they chose to give weight to.
I will conclude by saying that there was a victor in Dagenais, and that was the CBC. I would defer to the victor.
Mr. Henry: I should note two things. I was counsel on the case, however, I did not argue it. A certain Mr. Binnie argued it for us. He is now a justice of the Supreme Court of Canada. It was a major victory for the media. It used to be that the courts felt that, when there was an argument between fair trial and freedom of expression, fair trial always won. Dagenais changed that, in very clear terms. It said that there must be a balancing process. You must balance freedom of expression and fair trial; they are equals. That means things, in terms of how the process works. We now do much more publication about court proceedings than before, knowing that we have the protection of Dagenais.
I believe what my colleagues are saying is that the minister is indicating that she is codifying the bill. If this were removed, according to the minister's logic, nothing would be lost because Dagenais would still exist and the protection for people would still be there.
Obviously, there is something more going on here. What is happening is something beyond codification. The minister slipped at one point and said that this was an expansion -- and perhaps I should not hold her to that. She corrected herself and said it was a codification of the existing law. I believe a fair reading of this provision is that it goes beyond Dagenais and does not respect Dagenais.
I have discussed this with my Justice colleagues and I know they feel differently. I leave it to you. Look at the Dagenais decision, if you like. Read the principles. My colleague had done a good analysis of it. You have before you a brief from a group of media lawyers from across Canada, a group called Ad Idem. At page 7 of their brief you, will see another analysis of Dagenais and this provision and why this provision is deficient according to Dagenais principles.
I believe you could say this: The minister said this is part of a process. You could say to the minister: "Let us remove that provision. As the process goes forward, let us consider this provision again and draft it in a fashion that is consistent with Dagenais, because all we are trying to do is codify existing law." That would be reasonable because the minister is saying that all we are trying to do is codify Dagenais.
Certainly, what is not in anyone's interests, victims or the media, is to have a great deal of unnecessary litigation -- not good for the victims and not good for anyone -- to settle an issue that could be resolved by dialogue and debate. Then we can arrive at a provision perhaps that meets the Dagenais principles. It is possible.
Senator Beaudoin: Our problem as a committee is that if it is true that this bill does codify the Dagenais case, that is the end of the matter. We are satisfied with the bill because it is a codification of a case.
Senator Nolin: There is nothing wrong with doing more. That bill will still exist.
Senator Beaudoin: That is right. However, if this bill is codifying Dagenais, the Supreme Court decision, there is nothing wrong with that. This is not what you say. You say, no, that it goes further than that; that it is more than a codification of the Dagenais case. If you are right, it is our duty to look very closely at this and to ask where this bill is not in accordance with the decision of the court.
Of course, you may always improve. You may give more in the bill than a decision of the court. This is not what you say, however. You do not say that the bill is improving the Dagenais case. You say the bill does not codify the Dagenais case. This is the issue, in your opinion.
I know exactly what you say. The reason that you come to that conclusion is that it cannot be justified in a free and democratic society where freedom of expression should be broadly interpreted. That is your argument.
Mr. Robertson: I would make it clear that what would resolve the problem and bring it in line with what we think is the position of the Supreme Court is to build into this discretionary order area, subsections 4.1 to 4.9, the presumption that the court system is open unless there is a compelling reason for it not to be.
I try to make that point as forcefully as I can. This is a solvable problem. It is just a matter of either putting the presumption in or not putting it in. If you do not, there is a problem in the Supreme Court. If you do, I believe it will pass muster in the Supreme Court.
Senator Beaudoin: Do you suggest an amendment?
Senator Nolin: Mr. Robertson, Bill C-79 includes in proposed subsections (4.7) the list of factors. There is a sequence, from (a) to (h). One could argue that (a) is more important than (b), and so on. Even if we try to codify Dagenais, it will be there the day after. The court will be there to tell us, "Look, you have tried that. Nice try, but our decision is still on."
If openness of a trial is the basic principle and we adopt Bill C-79 the way it is now, it will still be the important factor for a judge when he is making a decision. Do you agree? The judge will say, "Bill C-79, yes; however, I still have Dagenais to refer to."
Mr. Mills: Then you are inviting the courts to write the law rather than the legislators here. Why not do it now?
[Translation]
Senator Nolin: No, I understand. We will not get into that debate. What I am saying is that we will not aim for a perfect bill, that is impossible. We have tried before and the courts made us understand that it was impossible. However, when the department tells us that it is attempting to consolidate laws, I do not think the minister believes, fundamentally, that this bill would distance us from the Dagenais precedent. I am sure that is not what she meant. If the Dagenais case sets the order of priorities, you are talking about a presumption. The basic rule states that the trial is to be public. The bill does not state that. The presumption will continue to operate. I am not abdicating my parliamentary power. On the contrary, I think that the bill and the list of criteria will form a good framework for the judges' discretionary power. I am not rejecting your argument. We will take it into account and we also want to hear your colleagues from the Department of Justice.
[English]
Mr. Mills: The problem, as Mr. Robertson said, is that it does not really give the judges much guidance on how to think about these things. Freedom of expression, which the Dagenais case would say is right up there with number (a), is (g) on this list, and we have an implicit prioritization.
Senator Nolin: Someone could argue that, although it is not a good argument.
Mr. Mills: Those two are constitutional rights, and freedom of expression has been subject to this recent decision of the Supreme Court. Somehow there should be a presumption that courts are open. That should be recognized. The other factors, society's interest in reporting of offences and other of those things, are other things that may also be taken into account. However, the basic presumption should be that the system of justice is open and all Canadians should know as much as possible about what is happening in their courts. I do not believe this does that.
Senator Beaudoin: When you say justice is open, I agree with you. There is the famous Sussex case of 1924 that says that justice should not only be done, it should be seen to be done.
That is usually the case used by the media, of course, but I am certain that you have to apply many rights at the same time: fair trial, freedom of expression and other rights. They are all important. To me, it is a question of balancing. At the very end, what is acceptable in a free and democratic society? That is the problem. You say that section 4 as drafted does not comply with those principles.
Mr. Mills: Yes.
Senator Beaudoin: I will think about it.
Senator Pearson: I am not an expert in drafting, although I have been learning a lot of law since I have been here. I am certainly aware of the difference between "may" and "shall." The fact that clause 4.7 says "shall" means that the judge must consider all those principles. It does not matter which is the priority because every single one must be considered.
Of course, the "may" in clause 4.1 is discretionary, which it seems to me comes from the presumption that trials are open except -- and this is where the "may" comes in -- where there is a publication ban, and in order to make a publication ban, the judge has to consider all those things.
I do not have the same concern that you do. I do not feel that this is a vague list. It seems to be a very clear list. Any judge who is operating within the context of the Charter of Rights and Freedoms is aware of all these different things. There is no way they will not be careful about ensuring that they consider them all. The first principle is the right to a fair and public hearing. I do not have a problem with this. You would have to convince me that it is problematic.
Mr. Mills: I will let Mr. Robertson speak to this as well. But I would say that judges are different people. Judges are human beings who come from different life circumstances. Without some guidance, with just a list, some of them will weight these principles or considerations in different ways and you will have different decisions coming from different judges, and those decisions will be the subject of litigation and years of court cases sorting out how it will work out.
Senator Nolin: We will see you in two or three years and we will bend in front of you and say, "You were right."
Mr. Robertson: We do not think you want to be there. That is why we are here now. With great respect, we are trying to point you to the issue. This is a live legal issue that may well be determined by the Supreme Court, at the end of the day, to be consistent with Dagenais. Between now and then, however, there will be hundreds if not thousands of cases across Canada that will come to different results and people will be jumping on the decisions trying to find some way in the act that they could possibly appeal them. There will be a hot bed of litigation. In two years you will say, "You were right, but is that not too bad?" Many victims will have spent a lot of money.
Senator Nolin: What is the real core of your concern, the nuts and bolts of the problem? Is it a conflict between (a) and (b)? Do you have a problem with a judge being asked to assess the conflict?
Mr. Robertson: Not at all. There is no problem with a judge making this determination. That is consistent with Dagenais. The question is: Does the judge go down the list of principles because he or she "shall" look at everything on that list?
Senator Nolin: He can even include something we could have forgotten, like (h). I thought you would raise that.
Mr. Robertson: We just attack the minister, not the judges. No. One most go down the list and look at the various principles. The question is how you sort those out. After you have looked at them all, how do you sort them out? The Supreme Court tells us that the way you sort them out is to start with openness and work back from there. That is all we are suggesting, frankly.
You are right. If you do not do anything about this right now and it sails through as it is, at the end of the day, after a great deal of expensive litigation, the Supreme Court will say, "Judges are bound by Dagenais," and the court will do its best to try to figure out how to interpret which of these seven principles come before others and that kind of a game will be played. That is why we are here. We are not encouraging you to say, "Do not let judges do it; do not have discretionary bans." We are asking you to give them the methodology. Start with openness and work back from there. It is simply a matter of drafting. As you consider the issue, you look at those seven considerations and what you do with them.
Mr. Henry: I think the point is that if this truly is just the codification of Dagenais, it protects victims and witnesses in this way. They can go through this list of principles according to Dagenais, make these points and get these bans now without this codification, without the problems associated with interpreting this codification, and without deciding whether this is a perfect or imperfect law. They can do it now. If this is not adding any protection that is not in Dagenais, which is what the minister is saying, then why sentence us all to that exercise in litigation? That is the question. The minister has not said that this provision is urgent. He said, "This is not urgent in essence because it is a codification."
Senator Beaudoin: It is an advantage for the Parliament of Canada to occupy its own field and to say, "This is the law as we think it is."
I have always said that Parliament sometimes is not brave enough or courageous enough to legislate. Even the Supreme Court invites Parliament from time to time to legislate. If this is a view of the Dagenais case, well, that is not bad at all. I think it is good for Parliament to say that. It means that we agree entirely with what the court has stated in that case. There is nothing wrong with it being a codification of the Dagenais case, but it is controversial. They say it is not a codification of the Dagenais case. Of course that case will stay there until the Supreme Court evaluates it. Remember the Oakes case under section 1 of the Charter; we had many cases on that and law students all over Canada were studying it.
We are in the presence of a very difficult case where we have fair trial, public hearing, freedom of expression, privacy law, security. You name it and it is there. Obviously the solution is that they have to apply all those principles and balance them. There is no other solution. You may come to a conclusion, and we may come to another conclusion. In the end, the Supreme Court will say yes or no. I agree with you that our duty here is to study that to the best of our knowledge.
Senator Nolin: Regarding (b), the right of the victim or witness and the harm that could be caused, the bill that we have in front of us is qualifying. We are not saying "alleged." It needs to be real, substantial risk and significant harm. The judge needs to convince himself that it is there.
We are not perfect, although we are trying to be. You have your opinion. We have ours.
Mr. Robertson: In response, I do not think this provision says that the court must be satisfied that there is a substantial risk that the victim or witness would suffer significant harm if identity were disclosed. That is simply one of the problems with this. This is one of the things the judge must address. He does not have to conclude that there will be.
Senator Nolin: He shall take that into consideration.
Mr. Robertson: Yet, but he does not necessarily so find.
The Chairman: There is not much point considering the question unless we may actually come to some conclusion from that consideration.
Mr. Mills: The other element in Dagenais is that any ban that is imposed must be minimal and limited. There must be no other alternative to achieve the objective of preserving the safety of a witness. The judge must consider every other alternative and make the ban as narrow as possible to achieve this objective. I do not think this says that.
Senator Nolin: You make a point in regard to the time. I am concerned about that subject. However, we can list the criteria, and Dagenais will still be there the day after. If we are wrong and there is a competition between Dagenais and us, guess who will win half the time?
Senator Beaudoin: When we speak about freedom of expression we must be very careful. The court does not like total bans. We saw that in the RJR-MacDonald case. They say that if the ban is not total, then it may be in accordance with the Charter.
In this situation, it is more difficult. There are many rights that must be addressed at the same time. This bill addresses the youth. That is a very precise objective.
There are 350 cases that pertain to the Charter, with many decisions that are five to four, six to three, seven to two and sometimes nine to zero, though that is not very often.
How can we be sure that Bill C-78 is constitutional? The question is always open for debate.
The Chairman: Thank you for attending. You have certainly stimulated some active discussion.
Our next group is from the Department of the Justice. Mr. Roy and Ms Kane, please join us once again. Mr. Roy, have you some answers to some of these controversial questions that were put to us?
Mr. Roy: Honourable senators, I do not know that I have answers, but I certainly have comments and some thoughts.
I agree with Mr. Henry and Mr. Robertson that the decision in Dagenais was to the effect that you must try to balance interests -- that case addressed constitutional interests -- which may at times not necessarily go in the same direction. There is no debate about whether or not this is what Dagenais is all about. That is also our understanding. Indeed, that was the understanding in constitutional law prior to Dagenais.
Some cases have addressed other dispositions or provisions of the Constitution that could be seen as being in contradiction to the Charter. The Supreme Court of Canada said that, in those cases, we should not try to see contradiction between provisions of the Constitution; rather, we should try to reconcile them. In Dagenais, therefore, they said that constitutional rights would not go in the same direction. The question then is whether or not there is a hierarchy among those rights. The court clearly said, "No."
I would disagree with the interpretation given by Mr. Robertson and Mr. Henry that proposed subsections 486(4.1) to 486(4.9) do not constitute a proper codification of Dagenais. With the greatest of respect for those eminent jurists, my reading of proposed subsection 486(4.7) is completely different. That is the heart of this discussion.
In that proposed subsection, at page 5 of the bill, are listed the criteria that the court must take into account in weighing the interests at play. A number of those interests are constitutionally based. I would point out proposed paragraph 486(4.7)(a), the right to a fair and public hearing. That applies to section 11(d) of the Canadian Charter of Rights and Freedoms.
We then turn to proposed subjection (4.7)(b):
whether there is a real and substantial risk that the victim or witness would suffer significant harm if their identity were disclosed;
In French it is even better: "vie privée" translates to the English word "privacy." That is section 8 of the Charter of Rights and Freedoms.
This was the very problem in Dagenais. On the one hand, the media claim that they have a right of expression that is recognized by the Constitution. Indeed, freedom of the press, in so many words, is recognized by the Constitution. The other interest is that of the privacy of people who are before the court. That interest is constitutionally protected, too. That is reflected in this bill.
Turning to proposed subsection (4.7)(c):
whether the victim or witness needs the order for their security...
That is section 7 of the Charter, where we have the right to the security of the person and that security must be protected by the state.
I would bring you to then proposed subsection (4.7)(d), which encourages the reporting of offences. This paragraph is more in the nature of good policy. I will not tell you that this is constitutionally protected, because that is not the case.
Turning then to proposed subsection (4.7)(e)
whether effective alternatives are available to protect the identity of the victim or witness;
We heard from Mr. Mills and Mr. Robertson that we did not take sufficiently into account the fact that we should try something else before we impose a ban. I thought that is what (e) was all about.
I would take you to (f), where the court must balance the interests in play. There are a number of those that we have listed already. The court must be satisfied that the salutary effects of the ban are better, superior and greater than the deleterious effects. There will be deleterious effects because, if there is a ban, we agree that, by definition, the freedom of the press and freedom of expression have been affected in some fashion. There is no question about it. There is no debate.
The court must take those elements into account. If, at the end of the day, they come to the conclusion that the ban must be imposed, let us not forget that that ban is a limited one. The ban relates to the identity of the person involved. We are not talking about prohibiting access to the courtroom. We are not talking about prohibiting the publication of what has taken place in court in that particular case. We are talking about not providing the kind of information that would permit someone to identify that the victim is Mr. X or Ms Y.
If this is unconstitutional, we have a problem. You may have judges who are not giving the proper weight to some of those factors. I would take issue with the notion that the freedom of the press should prevail over the other rights we have been talking about here.
Indeed, I thought that is what Dagenais decided. There is no hierarchy. At the end of the day, a judge must make a determination. If the proper weight has not been given, then the Supreme Court of Canada, in the case of Dagenais, provided for a way of appealing these decisions.
You may ask why we have not codified that part of Dagenais in the legislation. The reason is that we wanted to have a bill that was dealing with victims. One of these days you will see me or someone else from the Department of Justice come back with a bill that will revamp the whole issue of appeals and remedies much more broadly than the context of Dagenais. We think that when that is to be done, it will have to be done comprehensively. This is not the instrument to do so.
From my perspective, these factors are nothing other than those that should be taken into account to get to a proper decision. I agree fully with Senator Beaudoin and Senator Nolin that Dagenais, in regards to what kind of weight should be given to those factors, continues to inform the decision of judges with respect to publication bans. That is still part of our law.
This bill gives the framework. It does not go into what kind of weight should be given because the law in that area, like in others, is evolving every day. We have not gone so far as to try to crystallize or stop the evolution of the law with respect to that issue. I know that Ms Kane wants to jump in.
Ms Kane: I have two small points. With respect to the comment that there was no provision to make the ban as limited as possible, we make it quite clear here that the ban that is imposed can be subject to any conditions that the judge imposes. It could be limited to an area; it could be limited in time, or whatever. Certainly that is captured. The utmost flexibility is provided for the judge when crafting the appropriate ban.
On a point of clarification, this has been portrayed as a codification of the Dagenais case. I should like it portrayed as codification of the Dagenais principles, because it is often impossible to codify the decision of the court in the Criminal Code. We have to make it fit within the language of the code and, in this case, we are dealing with a ban on the identity of victims and witnesses. In the Dagenais case, it was the accused seeking the ban and not only on his identity. He was seeking a total injunction on the total broadcast of a particular mini-series. It was a much greater ban. The court set out all the factors to be considered. When we draw from those factors in drafting this legislation, it is the principles that we have incorporated in this bill. It has been very carefully crafted.
I am very troubled personally that we have now on record that the media will challenge it because those who will suffer will be victims who need the benefit of the ban. In this day and age, we fully anticipate that there will be challenges to legislation. We will be prepared to defend the legislation.
[Translation]
Senator Nolin: You have raised the issue of timing. The notion of time is of some concern to me. I understand that the judge can add all the conditions he deems necessary to his ruling. You have read the briefs. What are your comments about that? It can happen that a judge imposes no limits or that no one asks him to impose any. We end up in a kind of gray zone.
Mr. Roy: With regard to the limits, it is important to note the comments made by the minister when she was asked that question by Senator Carstairs. It is part of the record.
In this regard, it's important for victims or witnesses to be relatively certain about court orders. There have been cases including one that went all way to the Supreme Court, involving a person named Adams, where the judge had ordered a publication ban like this. While hearing the trial, this judge came to the conclusion that he longer believed the victim. To punish the victim, he decided to lift the publication ban so that the name of this person could be made public.
As you have seen, one of the objectives is listed in the preamble and in clause (4.7)(d). It seeks to encourage the reporting of offences. If it's possible for a judge to lift a publication ban as he sees fit just because he decides to do so, we have a serious problem on our hands. When a judge is told through legislation: you can impose certain conditions like a time limit, that seems to be a clear indication that it can be done. If it is not done, it is because the judge will have taken into consideration other interests recognized in clause (4.7).
Should there be a way to automatically lift a publication ban because the victim is deceased? There are victims and families involved in this. The bill states that a victim is defined as someone who has been subjected to something. There are broader concepts. There are families that must be protected. Such things must be taken into consideration by the judge when handing down his ruling. If all the circumstances have not been properly weighed in the decision, appeals will be possible.
[English]
With respect to a comment that the minister made, we should clarify this for the committee.
Ms Kane: The issue of lifting the ban needs to be clarified. Mr. Roy referred to the Adams case in the Supreme Court of Canada that dealt with how a mandatory ban could be rescinded or revoked. The court made it clear that the way to go about rescinding the ban would depend on the nature of the ban imposed. A mandatory ban imposed under statute would require the person who sought the ban in the first place and the person who benefited from the ban making a joint application to a court to have the ban revoked.
In certain circumstances, where a ban was imposed under discretionary provision, a more flexible approach might be appropriate. It would be required to show some change in the circumstances that did not exist at the time the ban was requested. For example, let us say that someone sought the ban because they could not face the prospect of the trial, or they thought they could not, but in the course of proceedings had a change of heart and decided that they wanted to tell their story, or following the trial they decided they wanted to disclose what happened to them. In the course of trial, they could raise the issue with the judge, who still has control over his own proceedings and can rescind an order that he is already made. If the trial has concluded, that application could be brought before a superior court judge through the joint application of the person who sought the ban, for example the Crown, and the victim.
This might seem to be an inconvenience to a victim who wants to tell their story later but must first bring application to the court. However, when you look at the balancing between the rights protected earlier on and victim's change in circumstances later, it is not a huge burden to accomplish it in a motion before a judge.
We would not want, at this point, to look at codifying a provision to revoke a ban because for many people that would send the message that the ban is not of a certain duration and that it would be subject to revision later. Many people need that certainty for them to participate fully in the criminal process.
The Chairman: Supplementary to that, what if the victim who wants to have the ban limited is unable to find the other person who is the one who asked to have the ban put on? The prosecutor could be at the other end of the country.
Ms Kane: In most circumstances, it is the Crown. It may not be the particular Crown that prosecuted that case. The initial application is most likely to occur in sexual assault offences where the Crown takes advantage of the first opportunity to seek the ban. In an ideal world, the Crown would be consulting with the victim. Often, if they have not had a chance to discuss it fully with the victim, they will seek the ban at the first opportunity so that they do not miss that opportunity and so that the victim's identity is not disclosed before they can consult with the victim more fully.
As I say, in the ideal world, where the Crown is consulting with the victim and the victim expresses no desire to have a publication ban, there will be opportunities at subsequent appearances in the court to have that ban revisited. That Crown and that complainant will be present to address necessary issues. The judge will be satisfied that that is what the victim truly does want and that they have not been pressured or misled into thinking that perhaps the trial will be a breeze for them. Most complainants and victims have no idea at the outset of the trial process what it will involve and how they may not want the publicity or stigma particularly associated with sexual assault prosecutions.
The Chairman: I am quite sure of that at the time, but five years later they might have worked through things in their own mind and want to make it public. Then it becomes much more complex.
Senator Lewis: There is always a remedy.
Ms Kane: That is true. There is always a remedy. These provisions have been in the Criminal Code to protect sexual assault complainants since 1988. To our knowledge, there has never been an occasion where a complainant has been prosecuted for breaching a publication ban that has been issued for their benefit.
The Chairman: That is a good answer. I assume some of the people in the room are listening.
Mr. Roy: I should like to put on the record something that may be of assistance to Mr. Robertson and Mr. Henry or other practitioners in the future. There is no particular order to the factors that are found in proposed subsection 486(4.7). If some people think that what we find in paragraph (g), the reference to the freedom of expression, is simply an afterthought, that is not the case.
Again, this is perhaps stating the obvious, but these factors are to be weighed by the court. Given the understanding that we have with respect to each and every one of them, freedom of expression carries a great deal of weight. There is no doubt in our mind that the courts will continue to give it weight. Nothing should be read into the sequence in which these factors have been listed in proposed subsection 486(4.7). Such is not the case.
Senator Pearson: I have learned that when these amendments happen you have a bill, but in fact you must know the whole Criminal Code to know how it all fits together. What does not seem to be in the bill may be in the code.
We are on the issue of the publication ban for persons under the age of 18. That is automatic.
Ms Kane: That is the provision that applies in sexual offence proceedings for the complainant and for witnesses under 18. In those circumstances, it is automatic.
Senator Pearson: We are really talking about prosecutors or Crowns bringing application for a ban on behalf of people other than young people under the age of 18.
Ms Kane: That is right. There have been some cases where that has happened. There was a case in the British Columbia Court of Appeal called Paterson. Three witnesses sought to have their identity protected. They were witnesses in a murder case. They were homosexuals and did not want that revealed because of the detriment to their professional lives. The B.C. Court of Appeal upheld the publication ban imposed on their identity, saying that the court had gone through all the factors that had been set out in Dagenais and had done the proper balancing and that it was a reasonable limit on freedom of expression and the discretion exercised by the judge in that case was in conformity with the Charter. The same result would occur if they were applying this particular code section rather than the common law.
Senator Pearson: In a practical application, for people under the age of 18 who then want to go on and tell their story, how does that work? They are 30 now and want to write an autobiography.
Ms Kane: They want to disclose their own identity as a victim of sexual assault. They want to ensure that they are not breaching the publication ban benefiting them but also benefiting other people, because often in proceedings involving young persons, family members are involved. In institutional abuse, other people in the institution are involved. They must be very careful they are not violating the protections for those other persons.
They should seek to have the ban rescinded. That would require an application suggesting that there is a change in circumstances. One such change would be maturity. At the time the ban was imposed, they were young. Now they are ready to face whatever.
Senator Pearson: Might your office become an entry point for these young people? Say they moved somewhere else and do not know what to do. Who do they turn to?
Ms Kane: We can provide them with information about what the proper process might be. Beyond that, it is a matter for the courts. They would need to make an application. That is certainly beyond the capacity of what the federal office would be doing. We would not be providing any legal assistance to individuals. We do not do that now in any context. We would be providing general information that they could use to seek the right remedy.
Senator Lewis: Then it is up to the lawyers.
Senator Pearson: There seem to be many cases where people have written about their childhood experiences. Have they all gone through the process of having a ban lifted?
Ms Kane: It is quite possible that they were not subject to a publication ban in the first place, because those cases may not have been in the courts. Often, people writing their memoirs were not considered complainants in a criminal prosecution. Perhaps the perpetrator was not charged or prosecuted.
As I said, we are not aware of any circumstance where a person has been charged with violating his or her own ban.
Senator Pearson: Will you keep an eye on that? More and more people are telling their stories. You do not want to have a young person find they have broken some kind of ban they did not even know existed. It is a question of information sharing.
Ms Kane: Yes.
Senator Beaudoin: I have one question for Mr. Roy. I agree that there is no hierarchy among all the liberties and freedoms involved. The Supreme Court has said that quite often. Now that you have heard the two sides of the question, do you still agree that it is, to a certain extent, a codification? I agree, Ms Kane, that it is not codification per se. We put in the bill the principles established in the Dagenais case.
The previous witnesses proposed two amendments. I believe you have not changed your mind and you still think that those amendments are not necessary in this case.
Mr. Roy: Yes. You have read my mind.
The Chairman: That is one of the briefest answers ever from Mr. Roy.
Mr. Roy: I can volunteer more. We heard from Ms Vaillancourt earlier today about the importance of understanding what is in the code. Indeed, Senator Nolin was looking clearly in my direction when he agreed with her that there is a need for that. I am aware of that need.
Think about ordinary people, ordinary Canadians, being asked, when they want a publication ban, to try to figure out what the Supreme Court of Canada may or may not have said in some case called Dagenais, which they may or may not ever have heard of, that is to be found in a book that we cannot find in our local library. The Minister of Justice has a clear bias in favour of having something in legislation that will give some direction to Canadians instead of having them rely on case law that they may not be able to find and may not be able to understand.
Senator Beaudoin: That was the purpose of this. Obviously, Parliament can do that.
Mr. Roy: I agree.
Senator Beaudoin: There may be some controversy, because you can always find a line of thought that is different. That is unavoidable.
Senator Nolin: I am going back to the definition of "victim." I think I already know the answer, but I want to be clear. The definition of "victim" is not limited. It includes what is there. You will probably tell me that we should keep in mind the definition we have in proposed amended section 722.
Ms Kane: The definition in that proposed section is only for victim impact statements. It says who can prepare a victim impact statement. The general definition, I think we agree, is not really a definition. It just ensures that "victim" includes a victim of an alleged offence for all those situations in the code where the word "victim" appears.
We do not want any argument to be made that you cannot be a victim until there has been a conviction. In many of the provisions, we are asking the court to consider the interests of the victim at bail and so on before there has been a conviction. It is clear that you can be a victim whether or not the person has been convicted of the crime for which he is charged. The two concepts can exist independently.
Senator Nolin: Going back to my question, an individual can be defined as a victim under proposed section 722 where it is found in the code.
Ms Kane: I would not go that far. We have left the definition of victim open so that common sense and judgments of the courts will decide who is a victim. Sections in the Criminal Code use the word "victim" where the definition in proposed section 722 may not be the appropriate definition. It may be either too limiting or too broad. Common sense will determine who the victim is. There is no doubt in most people's mind who the victim of an assault or sexual assault or break and enter is.
Senator Nolin: I am not thinking of a direct victim; I am thinking of the family, the parents, the relatives. Is the mother of a daughter who has been sexually assaulted a victim?
Ms Kane: Yes, that person may well be a victim, but when you are interpreting the provisions that say to consider the victim's safety when making a bail decision, the court may be looking at the person who has been the direct victim, not at all the family members. That definition may be too broad in those circumstances. That is why we have left it as a non-definition. It is a concept that judges will deal with on a case-by-case basis. We trust they will do so in the spirit of these amendments.
Senator Lewis: The judge may say, "You are not a victim." It will be up to the judge.
Ms Kane: He may, but it would be a fairly obvious case.
Senator Lewis: I am thinking of the other cases.
Ms Kane: Certainly.
The Chairman: Thank you very much.
If there are no further questions at this point, we will go in camera for a few minutes.
The committee continued in camera.