Hon. Serge Joyal:
Honourable senators, I rise this afternoon on Bill C-51 — of course, on another issue than the consent that has been debated in this chamber in relation to Bill C-51 — following the hearing we had at the Standing Senate Committee on Legal and Constitutional Affairs and the testimony we have heard from the Canadian Bar Association, from the Canadian Civil Liberties Association, from the Indigenous Bar Association and of course from lawyer and criminal law expert Michael Spratt, who happens to contribute to the work of the committees on many occasions.
I rise, honourable senators, because there is a problem with this bill, in my humble opinion, in relation to Charter rights, especially section 11 of the Charter, which reads:
11. Any person charged with an offence has the right
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
Those are the two paragraphs of section 11 that, in my opinion, are at stake in Bill C-51 in some very specific paragraphs of the bill. I apologize to you for adopting maybe a technical tone in relation to the Criminal Code, but such is the Criminal Code. It’s complex. It’s sometimes obscure when you read it. Nevertheless, it involves the freedom of citizens. Before we vote on this, I’m totally of the opinion that those issues will probably find their way to court sooner or later. I think it speaks to the credibility of this institution to put those concerns on the record because the day they will be raised in court, I think what we could say would be helpful to the court in its deliberation in respect of the content of those rights enacted at sections 11(c) and (d) that I just mentioned.
Let me read to you two conclusive remarks in the brief of the Canadian Bar Association:
The fundamental understanding of a trial in a fair, free and democratic society includes the notion that the vast power of the state is counterbalanced by allowing the accused, with few exceptions, to keep their defence secret from the Crown until they choose to bring it to bear in the trial. Bill C-51 would upset this important balance.
The brief continues that the reverse disclosure obligation enacted in Bill C-51:
. . .would impact defence counsel’s ability to conduct an effective cross-examination. The Canadian Bar Association questions the constitutionality of creating this disclosure obligation on an accused person and its potential impact on the Charter-protected rights of an accused to make full answer and defence.
I’ll read an extract from the brief of the Canadian Civil Liberties Association:
. . . Bill C-51 is unconstitutional, unworkable and ineffective —
— for three reasons:
Number one is that the defence disclosure obligation is unconstitutional because it infringes on the right to silence and interferes with trial fairness.
Number two. . . is that adding counsel for complainants in a section 276 application and the proposed section 278.92 applications creates an unfairness for the defendant.
Three is that expanding the reach of section 276 to include communications jeopardizes the right to a fair trial and introduces unworkable ambiguity into the criminal law.
Honourable senators, I would like to submit to you some arguments that the Honourable Senator Sinclair, the sponsor of the bill, has been making when asking us to support Bill C-51 at third reading.
Senator Sinclair — with all due respect to Senator Sinclair and the friendship that I have for Senator Sinclair — contends:
Bill C-51’s changes safeguard the privacy interests of victims while upholding an accused’s right to a fair trial, and they reinforce the long-established rule that it is never permissible to introduce evidence of prior sexual activity in a criminal trial for the sole purpose of showing that a victim is more likely to have consented to the sexual activity at issue or is less worthy of belief.
Those were one of the arguments that Senator Sinclair proposed to us in reflection.
Respectfully, senators, the change in Bill C-51 does much more than this. It is very important to note that when dealing with the reverse disclosure provisions that the admission of this material is governed by section 276 provisions of the Criminal Code and cannot be admitted for “the purpose of showing that the victim is more likely to have consented to the sexual activity at issue or is less worthy of belief,” which is, of course, the same words as section 276 of the Criminal Code.
In fact, the evidence that is the subject of Bill C-51 must be admissible, relevant and not subject to any of the section 276 exclusionary roles. I think senators will concur with me that this is the right interpretation of the nature of the substance of the disclosure obligation in Bill C-51.
This was the second point the honourable senator proposed to us:
The process does not impinge upon the right to a fair trial because, in my view, it is simply a requirement that the accused must disclose, as they do in some other circumstances as well. For instance, if they have evidence of an alibi, they must disclose the evidence of an alibi. I recognize that counsel who made submissions to us at committee say there is a distinction between an alibi defence and cross-examination on documents, and I accept that. Nonetheless, it’s the same idea; it’s the same principle.
Again, respectfully, honourable senators, the disclosure in Bill C-51 is not the same as the other situation mentioned by you in your speech. These comparisons are misleading. The defence is only required to disclose a copy of an expert report after the Crown closes their case. There is no requirement that the defence provide this information to the Crown experts prior to the cross-examination.
Similarly, the defence must provide notice that they will produce business records, but there is no requirement that the defence disclose the records in advance. There is no statutory requirement that an accused disclose an alibi. Non-disclosure of an alibi does not affect the admissibility of the evidence, only the weight it will be given by the court. Importantly, when advance notice of an alibi is given, there is no requirement to provide the exact details or evidence that will be called in support of the alibi.
The disclosures of the record as contemplated by Bill C-51 impact fair trial rights, because the content and nature of the disclosure is much broader than the examples that were quoted by Senator Sinclair. Fair trial rights are engaged because the evidence must be disclosed to the very witness that the evidence will be used to impeach. This type of disclosure, unlike the other cases, will more fundamentally impair the truth-finding function of the trial.
The third argument proposed by Senator Sinclair is the following:
They also argue that it impinges upon the accused’s right to silence, but it does not do that because an accused does not have to testify either during the proceeding regarding the documents nor does an accused have to testify at all in the trial. It is his lawyer who can use those documents if the trial judge determines they can be used for cross-examination purposes. So the accused’s right to silence is not impinged by that requirement.
Respectfully, again, Senator Sinclair, this is a fundamental misunderstanding of the right to silence. The right to silence encompasses more than the choice to testify; the right to silence extends to all aspects of the proceedings, not just the trial. As an example, the exclusion of information provided by an accused after a traffic accident is routinely excluded from trials due to right-to-silence issues. Forcing an accused to disclose information engages the right to silence. An accused should only, under the rarest of circumstances, be compelled to provide information to the Crown. A robust right to silence is necessary to preserve an accused’s dignity, autonomy and privacy interests. In fact, a 2003 Supreme Court case, R. v. S.A.B., is very clear in that case at paragraph 57:
. . . the principle against self-incrimination rests on the fundamental notion that the Crown has the burden of establishing a “case to meet” and must do so without the compelled participation of the accused.
In giving this principle full effect, the Supreme Court affirmed that while an accused is constitutionally entitled to disclosure from the Crown, there is no general defence disclosure obligation. I will quote R. v. P. (M.B.) at paragraph 39:
With respect to disclosure, the defence in Canada is under no legal obligation to cooperate with or assist the Crown by announcing any special defence, such as an alibi, or by producing documentary or physical evidence.
Then there’s the quote from R. v. Stinchcombe, which all the lawyers will know:
. . . the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution.
Honourable senators, in other words, the defendant is “entitled to assume a purely adversarial role toward the prosecution.”
Honourable senators, in the presentation from Senator Sinclair, he did not address the fair trial issue. Even if the concern about right to silence can be addressed, there is still the issue of fair trial rights that needs to be considered. In this case, the balance still mitigates against the disclosure mandated in Bill C-51 in breach of section 11(c) and (d) of the Charter.
Honourable senators, I know these are very technical, complex issues, but these are part of what we are voting on in Bill C-51. As I suggested to you after having read the brief from the Canadian Bar Association, the Canadian Civil Liberties Association, after having had an exchange with the lawyer and criminal expert Michael Spratt — and I thank him for his contribution to my own reflections — I would submit to you that this bill runs the risk of not only being challenged in court but being found wanting in relation to section 11(c) and (d) of the Charter. The scope of the reverse disclosure obligation is very wide and is not qualified. To read from the bill, it’s:
. . . any communication made for a sexual purpose or whose content is of a sexual nature.
— with no time limit.
In other words, you would have to disclose in a procedure within the trial, with the assistance of a lawyer for the complainant, any communication that an accused might have had, in the past, of any nature, with the complainant. That, in my opinion, stated in that wide scope, challenges the protection that is afforded to a fair trial and the right to silence.
For that, honourable senators, I would have found that I had failed in my duty to draw your attention to those issues, because when a bill has been adopted in this chamber, becomes the law of the land, is challenged in court and found to be in breach of the Charter, it reflects upon our work individually, especially those of us who sit on the Legal and Constitutional Affairs Committee. As chair of that committee, it is my duty to bring those issues to your attention, because it’s part of the responsibility that you share when we vote at third reading of Bill C-51.
Hon. Michael Duffy: I have a question, if the senator would take a question.
The Hon. the Speaker: Senator Joyal, your time has expired. Are you asking for time to answer a question?
Senator Joyal: I ask if honourable senators would give me the authorization.
The Hon. the Speaker: Is it agreed, honourable senators?
Hon. Senators: Agreed.
Senator Duffy: Senator Joyal, as always, you’re very thorough in completing your work, and we all appreciate the contributions you make here on these important issues. The nation and, indeed, much of the world, is caught up in concerns about sexual assault, and we all share that concern.
Listening to your intervention on defence disclosure, I wonder if you fear, feel or believe that if this is allowed to go ahead in cases of sexual assault, it will also bleed over into other criminal cases and in effect undermine one of the foundations of our criminal justice system, which is the accused’s right against self-incrimination.
Senator Joyal: Thank you, senator, for your question. I have reflected along those lines also because I remember very well the amendments to include the alibi in the Criminal Code. If an accused has an alibi, the accused is invited to inform the court as soon as possible that there is an alibi. It’s not definitive, as I mentioned in my remarks. The alibi defence can still be raised at any point during the trial, but, of course, it will bear on the weight and the credibility to be given. Nevertheless, the proof can be made, of course, in front of the court.
It’s the same with the production of records. An accused should inform the court that he or she intends to produce records. He or she is not compelled to produce the details of the records, contrary to this obligation, whereby you would have to communicate any communication in relation to sexual activity, be it only sexual chat on the Internet, on Twitter or on any kind of non-material communication.
Once you start introducing in the code those kinds of exceptions without limits on the criteria, without the capacity to define the extent to which those exceptional circumstances are addressed, you create, of course, precedent. Anyone, at a point in time, can claim that the protection afforded in the cases of sexual assault should be extended in other criminal offences before the court that are also repugnant, that also influence the reaction of society as a whole in relation to a certain type of criminal offence.
That’s why, honourable senators, I raised this today and tried to draw your attention to it. What we’re doing in this bill in relation to addressing sexual offences, which all of us abhor, all of us would want to see eliminated, all of us would want to be addressed — I’m thinking of sexual harassment, because it’s all part of the same phenomenon. It is part of the same attitude of society to women, generally, most of the time.
I feel that if we are to embark on that kind of opening, the capacity of the code to limit the right of self-defence, of fair trial, of capacity to cross-examine a witness who lies or exaggerates — the trial is a search for the truth. That’s essentially what a trial is. It’s to know what happened, to know who is responsible and to measure the extent of the responsibility so that the penalty is attached to something that the court, as much as possible, has been able to understand and has been able to go beyond a reasonable doubt, which is the measure of the credibility of everything.
As I say, I have listened to all the questions that honourable senators at the committee asked the witnesses that I mentioned, the experts we heard. Those points, in my opinion, have consequential impact to future amendments of the Criminal Code, and that’s why I had to draw your attention to this.
To all the senators who have listened and participated in the work of the committee, I’m sure those issues will find their way into the court sooner or later.