Hon. Mobina S. B. Jaffer:
Honourable Senators, I rise today to speak on Bill C-51, An Act to Amend the Criminal Code and the Department of Justice Act.
I would like to thank Senator Sinclair, the sponsor of Bill C-51, who has clearly set out the main elements of this bill.
I would also like to thank Senator Dyck, who raised the issue for the elimination of peremptory challenges, which has been used to discriminate against Aboriginal jurors.
I would also like to thank Senator Pate, who, amongst many other things, has spoken about mandatory sentencing.
And I would also like to thank Senator McIntyre, the critic of Bill C-51, who has also set out several concerns that we will examine at the committee level.
Bill C-51 will affect what I believe is a fundamental part of our criminal law, that is, the right to silence. The right to silence is a fundamental right of all Canadians. I owe this conviction to my principal, mentor, and later, law partner, the Honourable Thomas Dohm., QC.
Mr. Dohm taught me that there is always a power imbalance when a person is charged with a criminal offence. On one hand, the Crown can use the whole power of the state against the accused. On the other hand, as an individual, the accused has very little power to wield by comparison to the power of the state.
Happily, our law system does provide some tools against the overwhelming power of the Crown, or the state; that is, the accused’s legal rights in criminal law, especially the right to silence. Mr. Dohm would always stress to me the importance of protecting the rights of the accused. He always said to me that the right to silence was sacrosanct in criminal law.
The right to silence is special in Canada, since it is not protected by just one section of the Canadian Charter of Rights and Freedoms, but by two: sections 7 and 11.
Combined, these Charter rights create a system where accused people cannot be compelled to be witnesses against themselves. The Crown may only use statements that have been made voluntarily by the accused to the police as evidence, and even then those statements are only admissible if the accused has been informed of their legal right to counsel.
The right to silence counterbalances the power that the Crown has over the accused. When the police arrest the accused who has been charged with a crime, the accused is on his own against a highly trained police force that is working to help the prosecution and build a case against the accused. When the case is later brought to trial, anything that is disclosed to the prosecution can also be used to help build the government’s case.
To paraphrase the Department of Justice in its summary on the right to silence provided to us, the accused has the right to “sit back, secure his or her silence and put the Crown to its proof.” In other words, it is the Crown’s job to prove the case against the accused. The accused should never be forced to make a case against themselves.
Honourable senators, I know you agree with me that we all guard the right to silence zealously. Given the importance of this right, it is of great concern to me that clause 25 of Bill C-51 could possibly violent the right to silence.
Clause 25 of Bill C-51 will modify section 278.92 of the Criminal Code to forbid, and I quote:
. . . record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce. . .
The application to use documents at trial must be made to the court 60 days before the trial. Simply put, Bill C-51 would create a system of positive disclosure obligation.
Honourable senators, what do I mean by “a positive disclosure obligation”? This is where the accused has to show the prosecution any documents that they could possibly want to use over the course of the trial, including documents that may be used in cross-examination of the prosecution’s witnesses.
Honourable senators, the reason for the inclusion of this section may be in response to the controversial Jian Ghomeshi case that concluded last year. In the Ghomeshi case, the defence had several emails, texts and other electronic records that contradicted what the complainant said. Eventually, these would be a significant part of why Ghomeshi would be acquitted, since the complainant’s testimony was portrayed as unreliable.
People from across the country were outraged by his acquittal and rightly called for some kind of change that would prevent a case like this from ever happening again.
I have no firsthand knowledge of any part of the Ghomeshi case; neither do I know any parties in this case. From far, some within the legal community hold the opinion that the police or prosecutor should have spent more time with the complainants to find out about all the emails and then there may not have been an acquittal. I have no personal knowledge of the amount of time they did spend with the complainants.
If more time and resources are spent on cases, we do not have to erode right to silence. Senators, I believe that there are ways in which we can help the complainant and we can have a stronger case, and that is in providing more resources to make sure that the trial is well resourced and the complainant is well prepared. We do not need to erode the right to silence.
Under this bill the complainant will have her own lawyer. This will further help the complainant. This is a positive step in this bill. I’m happy about that because in the future the complainant will have her own lawyer who will prepare her thoroughly.
Honourable senators, the goal that the government is pursuing here is an admirable one. I support the rest of the bill, and I support the spirit of what the government is trying to do. Sexual assault is one of the most horrifying forms of violence that a person could ever experience and its victims do have rights that should be respected.
There are many lessons learned from the Ghomeshi case that I’m sure the police and the Crown has implemented, so we do not need to pass laws to erode the right to silence.
Clause 25 of Bill C-51 places the accused charged with sexual assault charge in a clear and unfair disadvantage. To quote Megan Savard of the Canadian Legal Association, who appeared before the Standing Committee on Human Rights in the other place:
. . . if passed into law, this will be the first time in Canadian law where a criminal defendant, in advance of trial, has to disclose his case strategy, the fruits of his investigation and the lines of questioning to both the prosecutor, and the prosecution’s key witness.
Several lawyers from across the country have spoken out against this erosion of right to silence as it completely undermines our adversarial legal system. Instead of determining innocence, it forces the accused to help the prosecution build their case. For example, in their submission on Bill C-51, the Criminal Lawyers’ Association stated:
The right to silence has been described by the Supreme Court as “intimately linked to our adversarial system of criminal justice and the presumption of innocence” and “the single most important organizing principle of criminal law.” It encompasses the defendant’s right not to participate in building the Crown’s case against her.
For those reasons, the Supreme Court has explained that disclosure of relevant material in advance of trial is a one-way street. There is no general defence disclosure obligation. The accused is — and I quote from the Supreme Court — “entitled to assume a purely adversarial role towards the prosecution. The defence disclosure obligation in Bill C-51 is in tension with this right.”
Presently, the accused has to disclose to the Crown in the following circumstances. First, if there are expert reports, business records or if the accused is going to use the defence of an alibi. There are only three very small, specific places where the accused has to give the documents beforehand and this is held very strongly by the courts because they have to respect the rights of the accused.
Honourable senators, I would like to give you another perspective. I liken trials with the building of a house. Before a trial, disclosure that alleges facts of the complainant’s case against the accused are given by the Crown to the accused. This is like a blueprint of a house. After disclosure, the defence can use this disclosure blueprint to understand what the complainant and the prosecution will allege at trial, and the accused will use this disclosure to build his own case. However, just as blueprints only provide a plan and do not show the finishing touches or details on a house, trials are never simple reflections of disclosure or blueprints.
During the trial, the defence is given the opportunity to cross-examine the complainant and the witnesses and put the complainant’s case to the test. This allows the testing of credibility of the testimony of the complainant and the witnesses of the evidence that has been presented over the trial by the complainant.
The process of cross-examination allows for the judge or jury to examine the testimony and evidence before them critically and to come to an informed decision as to the credibility of the complainant. This step in the trial is especially important for the accused as it is the cross-examination that will enable the judge or jury to decide on the guilt of the accused.
In most cases, defence lawyers do not exactly know what evidence there will be during cross-examination. As builders do not know what finishing touches a house will need from the blueprints alone, lawyers will decide during the trial what evidence they will need to produce during cross-examination to prove the accused’s case.
The evidence the lawyers will produce will be determined by what and how the complainant and other witnesses have testified at trial. The defence lawyers may use all the documents that they have in their possession or may use some of them openly. It all depends on what the defendant chooses to use from the testimony the Crown has led.
If we do not amend Bill C-51, the accused will have to share the documents they want to use at trial of their case before having an idea of how the trial could possibly unfold. Cross-examination would lose some of its meaning too, since it would not involve putting the complainant’s claims to the test. Instead, the complainant will be alerted to the accused’s case.
Honourable senators, this is undeniably wrong. Our whole justice system has been based on protecting the right to silence. Cross-examination has withstood the test of time and has been used to stop many innocent people being wrongly convicted. If Bill C-51 passed without any amendment, this will no longer be the case.
Once again, I understand the motivation behind Bill C-51. Victims of horrifying violence like sexual assault need to be protected with rights of their own and privacy. However, as former Chief Justice Beverley McLachlin famously said last year: “No one has the right to a particular verdict.”
While the rights of victims are undeniably important, they cannot overshadow the rights of accused people. I simply cannot agree with a part of the bill that will take away the rights of the accused people.
Senator Pate tells us almost on a daily basis how vulnerable and marginalized people often find themselves at odds with our justice system and end up in prison, and we heard yesterday the gut-wrenching account from Senator Sinclair about women in prison, especially Aboriginal women. Senators, we need to be vigilant about protecting the right to silence.
Our own studies with the Standing Senate Committee on Human Rights only confirm how important it is to protect these rights. Over the last year, under the leadership of Senators Bernard, Ataullahjan and Cordy, the committee has heard about countless cases where our justice system has mistreated marginalized people in pursuit of justice for crime victims. There are many people in prison today who were not represented well, and their rights were infringed.
If we pass Bill C-51 in its current form, we are only making these people more vulnerable. We are also jeopardizing the study we are all very carefully following. What is the point of doing a study on the rights of prisoners and then, at the same time, taking away the rights of accused?
Ultimately, criminal law is about achieving a balance in the name of achieving justice for all people, both the accused and the victims. Our belief in the pursuit of justice is what led to the creation of the Charter and its protection of the right to silence. To upset this balance is to abandon our pursuit of justice.
I’m pleased to say the Minister of Justice also understands the importance of the right to silence, since she has accepted an amendment in the other place that no longer forces the accused to disclose records that are unrelated to the complainant.
Unfortunately, Bill C-51 still violates Canadians’ right to silence and places the accused at an unfair advantage when these cases go to trial. It is for this reason that I urge us all to examine Bill C-51 carefully as it goes to committee stage and third reading and study how forced disclosure obligations violate the right to silence.
I have faith that our Legal and Constitutional Affairs Committee under the leadership of Senator Joyal will do the appropriate study on Bill C-51 before modifying one of our most sacrosanct rights: the right to silence when charged with a criminal offence.