[Recorded by Electronic Apparatus]
Thursday, April 10, 1997
.1027 
[English]
The Chair (Ms Shaughnessy Cohen (Windsor - St. Clair, Lib.)): Order, please.
We're at BQ-2.4 on clause 1. Madame Gagnon, do you move that amendment?
On clause 1
[Translation]
Ms Christiane Gagnon (Québec, B.Q.): I move that Bill C-46, in clause 1, be amended by replacing line 12 on page 6 with the following:
- defence and on the right to privacy, personal safety and
Mr. Yvan Roy (General Counsel, Criminal Law Policy Section, Department of Justice): The factors considered in this subsection show that Parliament is seeking to balance three points: first, the right to make a full defence, second, the right to privacy for women and other individuals who might use this provision, and lastly their rights to equality, so as to ensure there is a balance.
When I read Ms Gagnon's motion, I think we are becoming involved in another issue. The inclusion of personal safety seems to me to have the effect of lowering the balance of these major interests. I would add here that, as indicated by the English term "personal safety", this deals with the physical safety of the individual. Consequently, I don't really understand how this additional factor fits in with the balancing of the interests sought here, which are issues of principle, that is on the one hand the right to make a full answer in defence, and on the other hand the right to privacy, all of which is intended to ensure that everyone has the same right to equality. I don't see how personal safety fits in with the balancing of these principles.
Ms Christiane Gagnon: It is found in the Canadian Charter of Rights and Freedoms.
.1030
Mr. Roy: Yes, I realize that. In fact this notion is found in section 7 of the Charter, but it is not indicated in this subclause that it had to be included, for example, in accordance with the principle of fundamental justice, since it is those principles which underlie the other point made in section 7. Therefore, unless I have misunderstood the idea behind this motion, it seems to me that by talking about personal safety you are moving away from the area covered by paragraph 278.5(2).
The Chair: Mr. Langlois.
Mr. François Langlois (Bellechasse, B.Q.): I checked section 7 while you were answering. If I understood this correctly, the meaning of the term "personal safety", used in the amendment proposed by Ms Gagnon seems to you to be different from "security of the person", as used in section 7 of the Charter. But as I went to see the researcher to consult the Code, I would be grateful if you could explain that to us again.
Mr. Roy: If the proposal is to include security of the person, as stated in section 7 of the Charter, then it seems to me that we are talking about now could be considered disembodied. In the list of considerations referred to here, neither life nor liberty is included. It refers only to safety. However, life, liberty and security of the person are specified in section 7, which states that nobody can be deprived thereof except in accordance with the principles of fundamental justice.
It seems to me that the notion we are talking about here is that of ordinary physical safety, which I consider to be different from what is referred to in section 7. If we were to refer to the concepts listed in section 7, they would all have to be included because that works both ways. That applies both to the person accused and also to the complainant. So that causes me a problem.
Mr. François Langlois: As they say in English "you can rest your case".
Mr. Roy: Thank you.
[English]
The Chair: Thank you.
Amendment negatived
The Chair: The next one is indicated as G-4. Do you propose that, Ms Torsney?
Ms Paddy Torsney (Burlington, Lib.): I do.
The Chair: Mr. Kirkby, does one of the witnesses want to -
Ms Catherine Kane (Counsel, Criminal Law Policy, Department of Justice): This amendment would be to proposed subsection 278.7.(1). It's basically consequential on the amendment this committee passed yesterday, which would have been, I believe, G-2. We added ``necessary in the interests of justice'' to proposed section 278.5. It's also necessary to add it here to have the same test prevail at both stages of the production determination.
The Chair: We essentially had this discussion yesterday.
Ms Kane: That's right.
The Chair: Are there any further comments on this? Mrs. Ablonczy.
Mrs. Diane Ablonczy (Calgary North, Ref.): I have two questions about this. I have continued to think about this matter since we spoke about it yesterday.
First, how could evidence that is relevant not be in the interests of justice to introduce? I still don't understand that point.
Second, as I understand your argument, you say that we're talking not just about justice for the accused, but justice in the broader sense. I assume that means making some balancing act or determination of justice for the accused vis-à-vis justice for the complainant.
So my second question would be, if that is in fact your argument, how on earth could the judge make that determination in the first instance without hearing any of the evidence? The whole point of the exercise is to determine what is just vis-à-vis the accused and the complainant. But it seems to me you're asking for that determination to be made before the exercise even starts.
.1035
Ms Kane: No, I don't believe we are. Look at how the section will read once the amendment is made. At the first stage, we're asking the judge, after the accused has brought the application and he's had the hearing and he's heard from the parties, to make a determination of whether he'll review the records himself. He's asked to satisfy himself that the application has been properly made - that's just procedural - and that the records are likely relevant to an issue at trial or the competence of the witness to testify.
Your question is very good, because you said that if they're likely relevant, then obviously they're necessary in the interests of justice. That may well be true. There's no conflict there of adding ``necessary in the interests of justice'', but as many witnesses who appeared before this committee pointed out, it didn't seem to tie in very well with the next part in terms of conveying the intent. The drafting seemed to just say to the judge that in determining whether to order the production, meaning whether the application has been properly made - that's all procedural - or whether it's likely to be relevant, please consider these factors.
Those witnesses pointed out that some of those factors didn't really have a great deal to do in every case with whether that information is likely relevant. It was a broader consideration that was necessary. By adding ``necessary in the interests of justice'', there's a better tie-in with the need for the judge to consider those factors.
Mrs. Diane Ablonczy: I'm unconvinced. I won't continue to argue, but I'm unconvinced. I would suggest that the concern you've expressed over and over with respect to amendments introduced by the members from the Bloc is really something we should consider here. It seems to me that if you're going to introduce a broader test than mere relevance, then you're just making the section a sitting duck for a charter challenge.
Ms Kane: In our view, this drafting makes the intention more clear. It will not fundamentally change or enhance the onus on the accused to establish. The bottom line is that the records must be likely to be relevant, but in order to properly ask the judge to consider these factors, he has to have a broader base to do that.
The whole section must be read together, not just individual subsections on their own. It has to be read as a whole. With the amendment, when read as a whole, the test becomes more clear.
Mrs. Diane Ablonczy: This amendment raises a huge red flag right off the bat with me, as a member of this committee. I really think it's most likely going to cause a huge red flag in the legal community in terms of how this section is interpreted and dealt with. As I say, it opens the door much more widely to a challenge, which is obviously something we want to try to avoid.
Ms Kane: Several witnesses addressed the committee and raised the point that they didn't think this section made any sense as it was drafted. With this amendment, we're of the view that the section does make some sense now.
Those briefs didn't seem to have any concern about adding certain wording that would tip the balance either way. We believe the balance is still neutral, so to speak. You start off with an onus on the accused to establish that he needs those records. The addition of these words doesn't suggest one way or the other that the judge will make the determination either in favour of the accused or against the accused.
Mrs. Diane Ablonczy: So what is the purpose of them?
Ms Kane: It's to make the section work as a whole. It's so that proposed subsection 278.7(2), which says what to consider when determining production, does not get ignored by the judge. The judge could say that all he's asked to decide is whether it has been properly made or whether this material is likely relevant. He could ask what point there is for him to take these factors into account.
We want the judge to take the same factors into account in every determination so that the interests of the complainant are considered along with the interests of the accused and the proper balance is achieved.
The Chair: Just as a point of information for colleagues, I'll indicate that I've just received a message that the 10:30 a.m. votes have been deferred until 5:30 p.m., so we can go without interruption here.
Mrs. Diane Ablonczy: How will we get our exercise?
.1040
The Chair: I don't know, but I took the information with some relief.
We now call the question on amendment G-4.
Amendment agreed to [See Minutes of Proceedings]
The Chair: Madame Gagnon, do you propose amendment BQ-2.5?
[Translation]
Ms Christiane Gagnon: This amendment is proposed in the same spirit as 2.4, and I think that Mr. Roy will give the same argument. But that doesn't matter.
[English]
The Chair: Thank you. Would you repeat your argument as with amendment BQ-2.4?
Mr. Roy: Absolutely, Madam Chairperson.
Amendment negatived [See Minutes of Proceedings]
The Chair: On amendment BQ-3, Madame Gagnon.
[Translation]
Ms Christiane Gagnon: I would like to delete the rest of the sentence after "the prosecutor", that is remove:
- unless the judge determines that it is not in the interest of justice to do so.
Mr. Roy: The purpose of this provision, when seen in context, is that the judge will direct that the records be provided to the accused and that a copy of the records be provided to the complainant. The provision included at the end of the paragraph simply provides the judge with the residual discretion, if she or he were to consider that the private character of such documents should be maintained insofar as possible, and if she or he would decide that the Crown doesn't necessarily need them.
Really, this is a kind of safety valve and nothing else. We know that the courts, and there is moreover a judgement by the Supreme Court in Baron v. Canada, have indicated that when an order is made by a court, such discretion should always be present.
In fact, a subsequent decision by an Ontario judge, Mr. Justice Then, in the Budreo case, confirmed the view that a judge must have residual discretion. Basically, that is the purpose of this provision. The aim is not to deprive the Crown of access to such records. In fact, if the complainant wants to provide them to the Crown he or she can certainly do so. There is nothing preventing such an individual from doing so.
Ultimately, the purpose here is to indicate to the judge that he must maintain such residual discretion. I don't think that prejudices in any way the interests of the Crown or the complainants. On the contrary, for constitutional reasons, it might eventually be useful.
Ms Christine Gagnon: So why do you want to include all those precedents in the legislation? Your usual approach is to be sparing with words, not to write too much.
Mr. Roy: If I may, I will give you a full explanation. The legislation concerned, the Baron and Budreo decisions, is completely different in each case: in the one we are talking about the Income Tax Act as it concerns searches, and in the other an order to keep the peace pursuant to section 810.1. The legislation states that the judge "shall order".
In the Baron case, the Supreme Court ruled that you cannot say: "shall"; the judges must have residual discretion. In the Budreo case, the court said the same thing. In the text before us, the English version says "shall direct", and the French version "ordonne", in the present indicative, which gives no discretion to the court. Therefore, a choice has to be made here. Either Parliament says that the judge "may direct", which provides relatively broad discretion, or the amount of discretion is very limited, as is the case at present.
.1045
That is why this provision was drafted as it is, so as to ensure that ultimately the discretion would be limited or narrow.
Paragraph 278.7(4) reads as follows:
- ... unless the judge determines that it is not in the interest of justice to do so.
- The standard required is a high one. The judge must conclude that the production of a record to
the prosecutor will not serve the interests of justice. Ms Gagnon, I believe that the discretion
here is very limited, far more limited than if we were to simply say that the judge may direct that
a copy of the record be provided to the prosecutor. That is why the provision was drafted this
way, so as to restrict it as far as possible.
[English]
The Chair: Thank you.
Mrs. Ablonczy.
Mrs. Diane Ablonczy: Of course, what we're trying to do here is balance the rights of complainants with the right of accused persons to make a full and fair defence.
It seems to me you could argue - and I'm not sure that this is what my friend is arguing - that the accused has a right to evidence that would allow that person to make a full and fair defence, unless the judge determines that he doesn't need the documents to make a full and fair defence. But how on earth could the judge determine that before the accused even has a chance to see the document and decide how it might be able to assist him in making his full and fair defence? The judge has to prejudge the value of this material to the accused, and it seems to me a fairly substantial interference in a clear charter right to make a full and fair defence. I think we're getting into some pretty tricky areas here again.
Mr. Roy: The section we're talking about here takes for granted that at this stage in the proceedings the judge has already ordered the production of the records to the defence, and the section is merely saying the judge shall then direct that those very same records that have been produced to the defence will be produced to the Crown.
What Madame Gagnon is suggesting is that this committee take out of that section the residual discretion left to the trial judge not to order the release of those documents to the Crown unless the judge determines that it is not in the interest of justice to do so, ``to do so'' referring back to giving the documents to the Crown.
I was trying to indicate that using words like ``shall direct'' is, at some point in time, causing problems to the courts, because the courts have said...and I was referring to the case of Baron, which was rendered by the Supreme Court of Canada in 1993 in the context of a search warrant.
Courts have said there has to be residual discretion in the tribunal to decide that it is not appropriate in very special circumstances - special circumstances that you and I cannot predict, but there may be circumstances where it is not appropriate to do so. So the courts have said, instead of ``shall direct'', we're going to change this to ``may direct'', and they read down the provision from ``shall'' to ``may''.
I was trying to tell Madame Gagnon - and I hope she took my argument - that ``may direct'' is a test that is significantly lower in terms of discretion than what is proposed here, because what is being proposed is extremely narrow unless the judge comes to the conclusion that it is in the interest of justice. So I was suggesting that this kind of residual discretion, which is provided by law here, is what is appropriate, instead of having something that is more wide-ranging, as saying ``may direct''. That's the reason why, in this piece of legislation, we are suggesting that this remain the same.
Mrs. Diane Ablonczy: I see that I misunderstood the import of the section. I appreciate the clarification. Thank you. I accept that.
The Chair: Thanks, Mrs. Ablonczy.
.1050
Amendment negatived
The Chair: BQ-4.
Madam Gagnon, do you proposed this amendment?
[Translation]
Ms Christiane Gagnon: The motion BQ-4 proposes the addition of a new clause enabling a judge to make an order for costs against the accused if he is of the opinion that the accused sought production of the record without justification, for frivolous or vexatious reasons, for an inappropriate purpose or to harass the victim.
Mr. Roy: As we all know, there are no costs ordered in criminal law except in the case of summary proceedings, and even then. During our consultations, fears were expressed, particularly by groups generally representing complainants, who feared that costs might be ordered because an individual wished to use his or her right not to reveal such documents.
In fact, paragraph 278.4(3) as proposed in the bill, provides that no order for costs may be made against victims, since it is established that no costs can be ordered against a person seeking to defend himself or herself against a criminal charge.
What Ms Gagnon is proposing represents a considerable change to criminal law, and I would say that if we want to be fair then it must be possible to order costs against either party. In civil law, costs are ordered against either party, against the rash litigant, as we might put it.
Here, this would apply only against the accused, which is generally contrary to criminal law. This would apply only against the accused and not against the person making a complaint which might prove to be unfounded. As regards to access to records, this would work against the person defending himself or herself although it is clear that the accused should have access to such documents.
Therefore, there are two problems: first, a problem of principle related to the ordering of costs against an accused person defending himself or herself, and second a problem of equity. Either it should be possible to order the costs against both parties, as the case may be, or there should be no costs at all ordered.
What the Minister of Justice is proposing in Bill-64 is that there be no costs ordered in such cases, either against the person who has the records or the persons who might have such records in their possession, or against the accused. This approach avoids the problems I mentioned, problems of principle and equity.
[English]
The Chair: Except that the complainant is not a party in law.
Mr. Roy: Quite true, and that's the reason, Madam Chair, we have proposed section 278.4, saying no order for costs may be made against you. So this is covered. We all know that in law, in criminal matters, there are no costs against the accused. It's understood that in law, therefore, in these cases, there will not be any costs.
If you're going to introduce costs against the accused for having tried to defend himself or herself, it seems to me that, first, it's a departure from the principles of criminal law; and secondly, and more importantly, it's not very equitable.
.1055
If we go back to what we do in civil law, you can have costs against either party, depending on who is losing. Well, why would that be, in this case, against only one person? I think there is a problem of equity here and a problem with respect to the principle of criminal law.
The Chair: Mrs. Ablonczy.
Mrs. Diane Ablonczy: Yes, I agree with that. It does bring up the question I had in my mind as I studied the bill, and that is, with respect to these proceedings for deciding whether records and materials will be producible or not, I understand that the complainant and an agency that might have these records is entitled to counsel during these whole discussions. Of course a lot of complainants and a lot of agencies don't have the kind of cash to hire counsel for these kinds of hearings.
I'm wondering if there has been any consideration as to how the costs of making sure all parties are properly represented are going to be covered.
Ms Kane: We certainly have given that very serious consideration. It's an issue that requires action on the part of the provincial governments also - to look at whether legal aid in the province will provide any assistance for the complainant. We've raised this issue with them, and they are very alert to it. Different provinces are exploring different means of seeing how they can address this.
I can refer to one example. In Nova Scotia, the victim services unit has set up a special fund that's financed through victim fine surcharge revenue. They will appoint counsel from a panel of five or six lawyers who are prepared to assist complainants on a legal aid type of tariff. They will attend with the complainant and share all of the materials they need. They share the precedents and work as a team so that they don't have to reinvent the wheel every time they are faced with an application. That seems to be an idea worth exploring in other jurisdictions, so we're following up on that with our provincial counterparts.
We are also hoping that once this bill is in place and in force we'll see some reduction in the number of applications that are made, so that complainants and record holders won't be as burdened as they have been in the past in responding to these, because defence counsel will be limiting their requests to those documents that they really do believe are going to meet the test of likely relevance.
It's not a perfect solution, but it's one that we're alert to, and we're committed to following up on it as best we can over the course of the next year or so.
Mrs. Diane Ablonczy: Good. I'm reassured that it's been given such good consideration, and I appreciate that clarification.
The Chair: Thanks, Mrs. Ablonczy.
[Translation]
Mr. François Langlois: Mr. Roy, I would like to ask you a question. It will be quicker than consulting the Code. First, I must tell you that I am not very familiar with Bill C-46; I thought we would be discussing the Young Offenders Act.
Subclause 278.2 contains a list of sections in the Criminal Code affected by this legislation. Are there any dealing high grade offences, that is offences which could be prosecuted on indictment or through summary proceedings?
Mr. Roy: In order to answer your question, I would have to review them.
[English]
The Chair: Some are hybrids and some are indictable - I can help you that way.
[Translation]
Mr. François Langlois: From what Ms Cohen has said, in those cases which could be dealt with or which are currently dealt with through summary proceedings, the judge may make a determination regarding an application for costs.
Mr. Roy: Based on the rate structure in the Criminal Code or the serving of certain procedures, etc.
Mr. François Langlois: In the case of indictable acts, that is not possible. There is a part where it would be possible in some cases, in the way you mentioned, but it would not be possible for the other part. Ms Gagnon's amendment seeks to extend it to all acts, if I understand her correctly. I don't know if you understand it as I do.
Mr. Roy: As regards summary proceedings, Mr. Langlois, you will find at the end of the Code, a schedule to section 840 listing all costs which may be ordered. In the case of information, it is $1. For a summons or a warrant, it is $0.50. For a warrant where a summons was issued in the first instance, it is $0.30. In your case, it is $2.85. Basically, that is the current cost structure.
.1100
Mr. François Langlois: Yes, but under the amendment before us, the costs there are not something which the judge would determine off the top of his head. The principles of law to which he should refer are the schedules to the Criminal Code, section 840, or something in the area of civil law which is not applied in criminal law. Where would we go to determine those costs if the amendment were to be adopted?
Mr. Roy: As regards criminal acts? I don't know. There is not any rate or cost structure anywhere. In the area of civil law, as you know, there is such a structure, in all provinces, including Quebec. In summary proceedings, there is the fee or cost schedule to which I referred, which is really ridiculous. As regards criminal offences, there isn't anything, because the principle does not exist. Costs are not ordered against an accused person because he or she defends themselves.
Mr. François Langlois: I understand this age-old provision of our criminal law. But if the amendment were adopted, we would talk about costs. What will the judge refer to as a guide in ordering such costs? Is the provision sufficiently comprehensive to make it possible for an amount to be awarded?
Mr. Roy: Mr. Langlois, I don't know how the judge could be guided on the basis of the text before us.
I'd like to help you more, but as it reads the judge may order costs against the accused. It is open. How could he be guided in determining the amount awarded? I have no idea.
Mr. François Langlois: Basically, a judge could argue that it is a kind of remedial damages within the meaning of section 24 of the Charter, and another could say that it is similar to what could be awarded in summary proceedings. One judge could end up ordering costs of $0.50 and another $2,000.
Mr. Roy: Yes.
[English]
The Chair: That's a bit premature, because the clause hasn't passed yet.
Amendment negatived
Clause 1 as amended agreed to on division
The Chair: Thank you, Mrs. Ablonczy. I'm glad you're here.
Clause 2 agreed to on division
On clause 3
The Chair: We have three amendments in clause 3. Do you propose G-5, Ms Torsney? Could the witnesses speak to G-5, please?
Ms Kane: This is a motion to add some additional information to the subpoena form. Many witnesses appearing before the committee expressed concern about having to attend court with volumes and boxes of records before any determination had been made of whether any part of those records should be produced to the witness. This causes them expense and inconvenience. They may have to reproduce the records to bring them because they have to leave an original in their offices, depending on the nature of the records. They may have to transcribe them or bring certain machinery so films can be viewed, and that sort of thing.
This amendment makes it clear that if anything you are asked to bring is a record, you don't have to physically bring it with you in response to the subpoena until after the judge has made the determination of whether it should be produced and to what extent your records should be produced.
The additional information in the new subpoena form will move from the general to the specific. Generally, it will tell you to bring certain items because the defence counsel is listing all the things he thinks you might have and may be able to bring. Then it will go on to give your rights and obligations, if what you are asked to provide is a record. It will say the subpoena should have been accompanied by an application for production, and you will have an opportunity to be heard and to make submissions about whether that record should be produced or not. The penultimate paragraph will be this new one that will say if anything is a record, you do not have to physically bring it with you until the judge has made that determination.
The Chair: Thank you. Are there any comments on that? Mrs. Ablonczy.
Mrs. Diane Ablonczy: I would just point out that the effect of this will be to generate more court time per case.
.1105
I think there will be two practical effects of this. It is going to increase the cost to legal aid programs that are already stretched to the limit. We've just discussed concerns in that area. Also, if you're going to place more demands on people who participate in providing legal aid services, you may have a withdrawal of senior counsel because of those increased demands, leaving more junior counsel to face senior Crown counsel. So I would just point out that from a public policy point of view there are some practical ramifications of the kinds of extensions this provision is going to result in.
The Chair: Ms Kane and then Ms Torsney.
Ms Kane: I don't believe this will add any additional time. It will already be anticipated that when the judge determines that the record should be reviewed there will be a need for a brief or perhaps a few days' adjournment for the judge to review those records. He will not necessarily know how many records he will have to review and how long it will take him.
Regardless of this additional paragraph, some time will have to be allotted in the process for the judge to actually conduct the review he has determined is necessary. It should, in the long run, save some time and expense for record holders who are asked to bring their records. If they appear in response to the subpoena and the application for production, and the determination is that nothing needs to be produced for the judge's review, that's the end of the matter. They won't have gone to the needless time and expense of compiling and gathering all that material, making the photocopies and so on, to find out it was all for naught, because the judge determined he only needed to see the records from May 11, or certain parts of certain records, and not all of the records the accused suggested may be likely relevant.
Mrs. Diane Ablonczy: Are you satisfied that a judge could make that determination without seeing the records at all? How can that determination be made when the record isn't even in front of the judge?
Ms Kane: The records wouldn't be in front of the judge anyway. The whole scheme of this bill is that the accused must establish the grounds he relies on to establish that the records he has asked for are likely relevant, and there is a hearing process to determine that. The judge does not take a peek at the records until he's satisfied that this is the case and he has considered the factors this legislation enumerates. Then the judge will determine whether or not to review the records to go on to the next stage, or whether to review only part of them. The physical presence of the records in the court in boxes or briefcases will not assist the judge one way or the other.
The Chair: Thank you. Ms Torsney.
Ms Paddy Torsney: I was also going to propose an amendment earlier if there hadn't been a government amendment to change this section. This bill is about balance and it's about an appropriate balance. I just can't imagine a situation, as described by many of the sexual assault centre people, where courtrooms are filled with all these people holding all this stuff, and that anybody would ever think that someone looking at a box in the courtroom wouldn't want to open it.
It's not appropriate, and it's not an appropriate balance to instruct all these people, many of whom are volunteers working with people under great financial distress, to haul up all this material and spend all this time and then have it ruled not admissible. It's ridiculous that they spend all this time, effort, and money, haul all these boxes in, sit there all day, and then find out it was wasted. We would obviously prefer it doesn't get in there, but if it's going to get in there, there should be a much better process, and I support that.
[Translation]
The Chair: Ms Gagnon.
Ms Christiane Gagnon: Don't you think that this addition is inconsistent with the first paragraph? It is stated that the subpoena requires you to bring to court only what is requested, and then it is stated that these things are not necessary until a determination is made.
Don't you think there is a contradiction requiring clarification? It is stated that all that material must be good, but later it says that it has to be brought when a determination is being made.
.1110
[English]
Ms Kane: I would agree that it does appear to be slightly inconsistent at first glance, but we have to bear in mind that this same subpoena form is going to be used in all sexual offence proceedings, even when what is requested is not a record as defined in this legislation. So the information moves from the general to the specific.
Generally, with any person who is subpoenaed to court and is asked to bring records, the obligation placed on that person is only to attend the court and bring the records. It's not to share them with anybody before they have been brought to court, whether the person is asked to bring something that isn't covered by this legislation or not. However, the additional information on the subpoena form makes it clear that there's a special process in the Criminal Code for the production of records in sexual offence proceedings. When that is the case, when what someone is asked to bring is in fact a record as defined in proposed section 278.1, one doesn't have to bring those records until the judge has determined whether or not, and to what extent, they should be produced.
The Chair: Mr. Langlois, did you have a question?
[Translation]
Mr. François Langlois: I would like a clarification. A duces tecum is sent to someone. The principle of the duces tecum is the following: bring us this material. If the person continues to read and turns to the other side of the document, he will see that he is not obliged to bring the material. It seems to me that it could be made a lot simpler for the person receiving a subpoena. It is a suspended duces tecum, or it is not really a duces tecum, because a legal innovation is being made.
Mr. Roy: I agree with your viewpoint. I understood the question from your colleague, Ms Gagnon, as being more of a technical nature. She said that forms did not state until the end that it was not required to bring that material once the duce tecum was received. To try and resolve this technical problem, I would ask you to turn to paragraph 278.3(5). In fact, this is provided for in the legislation itself, because you are referred to the duces tecum issued under form 16.1. I would ask you to look at the second sentence of this provision, where it is stated that the accused shall also serve a subpoena issued under Part XXII in form 16.1 on the person who has possession or control of the record at the same time as the application is served.
In the text of the bill, it is stipulated that a subpoena is to be issued in Form 16.1, and now, with the proposed amendment, you are not required to bring all records to court as soon as you receive the duces tecum. It is up to the judge to make this decision and the records are to be submitted once the decision is made. You must show up, but you do not have to bring all of the records.
I agree with you, Mr. Langlois, that we are not dealing with a traditional duces tecum, however, women being sexually assaulted is not a traditional situation. This is additional protection which will not hurt the accused, nor will it hurt the court, and it will save these people from having to walk around with boxes of records which will not be required during the criminal trial because the judge will decide that they were, in all likelihood, not relevant.
Mr. François Langlois: The duces tecum becomes a suspensive duces tecum.
Mr. Roy: That's it.
Mr. François Langlois: The individual will have to deal with the suspension at the end and we must presume that he or she is familiar with the law. We should be able to come up with some other way of making this simpler for the accused who is subpoenaed. Perhaps we will not come up with a solution today, but at report stage. I realize that often the same groups will be targeted, but for this to be truly understood by all Canadians - we really do not know who could receive these subpoenas - we really do not know who could receive these subpoenas - we must come up with some type of formula which is simpler so that the person reading it knows exactly what his or her obligations are, so that it does not read like a Great West insurance contract from the 40s.
Mr. Roy: I don't want to belabour the point, but I would say that this solution is being proposed precisely because we want to make things easier. This is why this is being indicated in the subpoena rather than in a legal text. People don't always have the Criminal Code at home. I don't have it at home and this is my profession.
This will therefore appear on the form. The individual will receive a subpoena; he or she will read it and understand that things that could be considered records will not have to be brought the first time he or she appears in court.
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The individual will still be compelled to appear, but he or she will not have to bring the records. If this is not indicated in the subpoena and is only stipulated in the legal text, many Canadians will not be able to avail themselves of this provision. We are going to tell people what their obligations are in the subpoena itself. We think this is a better way of educating the people. However, we are obviously open to any good suggestions.
Mr. François Langlois: Mr. Roy's position is clear. I too agree that this should be indicated in the subpoena. The only thing that we don't agree on, and perhaps the Parliamentary Secretary could note this and get back to this at report stage, is that this should be indicated well before in... There should be a caveat at the beginning of the duces tecum; otherwise, the person won't read it all the way through, for example, because he will be a bit nervous, and will, as a result, bring everything to court. Some people bring summons in civil proceedings, and we don't have very much about that. Often people think that they have to write a cheque as soon as they receive it, but the trial won't be taking place for another three years. I'm just making a suggestion. Think about it.
Mr. Roy: I understand you better. Thank you.
[English]
The Chair: Thank you, Mr. Langlois.
Amendment agreed to [See Minutes of Proceedings]
The Chair: The next one is amendment BQ-4.1.
Madame Gagnon, do you propose this?
[Translation]
Ms Christiane Gagnon: I have tried to propose this amendment, in BQ-1.1A, but I was told that the legislation could not be applied retroactively. This amendment is retroactive in nature, but I still would have liked to have...
[English]
The Chair: So we won't present this.
Mrs. Christiane Gagnon: No.
The Chair: Thank you.
Now, BQ-5 and LT-6 are based upon the same principle, so I'm going to ask that you speak to them. We'll start with Ms Gagnon because hers comes first, and then we can vote on each of them at the same time.
[Translation]
Ms Christiane Gagnon: A drafting error was made in the amendment. We are calling for a review of the impact of this legislation after three years, and not three months after the legislation comes into force.
I know that Ms Torsney has tabled another amendment calling for a review after five years. We are asking for a review after three years, because groups told us that this was how much time it took to get the whole study off the ground. At any rate, five years will elapse before we have a study before us. If we settle on a five-year period, it will take seven or eight years. This is much too long a time.
[English]
The Chair: All right. The principle here is that there should be a review. The issue is whether it should be three years or five years.
Ms Torsney.
Ms Paddy Torsney: I was going to tell members that I had already changed mine and was going to propose three years. I thought three months was a little quick, since we wouldn't have much information.
Because this is a significant change in law, I think there is a definite need for it. In fact, I think we're proposing this law because of the rape shield law, in that the rape shield has created this other thing. We need to make sure the review is done and that it's done properly. I think this addresses the concerns that were raised by LEAF, by Women and the Law, and by a number of other organizations. But importantly, it also recognizes the concerns of the defence bar of Professor Merskey and some of the false-memory-syndrome-type organizations, who fear that this is going to tip the balance in one direction or the other.
So I think it's a pretty important change. It's unfortunate that when the rape shield law was brought in, it didn't provide for a provision, because we would have had a review at three years - that would have been in 1995 - rather than now.
The Chair: Are we talking three or five here?
Ms Paddy Torsney: Three years.
The Chair: Three on both of them.
Ms Paddy Torsney: Three on yours? We win.
The Chair: Ms Ablonczy.
Ms Diane Ablonczy: This is just as a matter of interest. As I was considering the amendments this morning, I also thought that five years was maybe a bit too long and was going to propose three. We should celebrate this rare moment of unanimity among all parties. I think three is good.
The Chair: Perhaps I could say something to stir the pot.
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Ms Paddy Torsney: Can I just point out that there's one slight difference? The second part of my amendment actually does introduce the technical process by which you have to report, set up a committee, and all that kind of stuff. I think that's pretty important, because you don't want it to go by the by.
The Chair: Mr. Kirkby, did you want to say something?
Mr. Gordon Kirkby (Prince Albert - Churchill River, Lib.): I think the three-year proposal would be fine. We could use the wording of Ms Torsney's motion, and we can put the three years into it. Would that be satisfactory to everybody?
The Chair: Do you agree with that?
All right, I think the proposal we have on the table - we'll probably need some kind of motion for it - is that LT-6 itself should be amended by deleting the words in the first line, which read ``On the expiration of five years after'', and replace them with ``On the expiration of three years after''. Is that correct?
[Translation]
It's three in French.
[English]
Can we vote on that subamendment to LT-6?
[Translation]
Ms Christiane Gagnon: Why are we not voting on my amendment? I was proposing three years. Why are we not voting on this?
Ms Paddy Torsney: There is a second part to the amendment.
[English]
The Chair: I'm just trying to move this along, but what I think most of the people at the table are saying is that the Torsney amendment in its full form, LT-6, is more in accordance with normal practice when you have a review, and that the government would prefer to have proposed subsection 3.1(2) available to it in order to guide the process of that review.
But I'd be happy to vote on yours, Madame Gagnon. Let's take a step back.
Those in favour of amendment BQ-5, please so indicate.
Amendment negatived
The Chair: Those in favour of the subamendment to LT-6, to replace the words -
[Translation]
Mr. François Langlois: Is the purpose of the amendment to substitute "three years" for "five years"?
[English]
The Chair: I'm just getting to that.
Those in favour of deleting the word ``five'' and substituting the word ``three'' in proposed subsection 3.1(1) in amendment LT-6, please so indicate.
Subamendment agreed to
Amendment agreed to
The Chair: Wow, some unanimity. That's good.
Now, let us go back to the script. Shall clause 3 as amended carry?
Ms Diane Ablonczy: Just out of some of our discussion, there are a couple of amendments that I will probably be bringing forward. I'm happy to do that at third reading, but if you want them brought forward at committee, I'd like to have an option and maybe your direction as to where you would best like those brought forward.
The Chair: Are they available now?
Ms Diane Ablonczy: No, I'm afraid not.
The Chair: Why don't we do it at report stage?
Ms Diane Ablonczy: All right.
The Chair: Are they on clause 3? Is that the reason you raise this now?
Ms Diane Ablonczy: Yes.
The Chair: Okay, thanks. That's why we have a parliamentary secretary.
Ms Diane Ablonczy: I couldn't finalize them.
The Chair: That's okay. Thanks for the notice on that.
Clause 3 as amended agreed to on division [See Minutes of Proceedings]
Clause 4 agreed to on division
The Chair: Shall the preamble carry?
Some hon. members: Agreed.
An hon. member: On division.
The Chair: Shall the title carry?
Some hon. members: Agreed.
An hon. member: On division.
The Chair: Shall the bill as amended carry?
Some hon. members: Agreed.
An hon. member: On division.
The Chair: The bill as amended is agreed to on division.
May I have a motion that the bill as amended be reprinted as a working copy for the use of the House of Commons at report stage?
Ms Paddy Torsney: I so move.
Motion agreed to
The Chair: Is there another motion that I report the bill with amendments to the House as the eleventh report of the committee?
An hon. member: So moved.
Motion agreed to
The Chair: Thank you so much.
We will rise for a moment to give our heads a shake before going on to the Young Offenders Act.