JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, March 25, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): Order, please. It's been an interesting day. We had a vote in the House so I apologize, not in the sense that we feel guilty about anything, but I know we asked you to be here at a particular time. Sometimes we just can't predict these things.

Before we begin, let me say that we have a group from the Forum for Young Canadians visiting us for today's session. I understand they are here from all of the provinces of Canada, and we're very glad to have them here as well. When we're finished, I'm sure members will walk out slowly, so if students have any questions we'll be happy to answer them.

Today is part of an ongoing study of Bill S-5, which is an act to amend the Canada Evidence Act and the Criminal Code of Canada in respect of persons with disabilities and also to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters, and to make consequential amendments to other statutes of the Parliament of Canada.

Our first set of witnesses comes from the organization of Federally Regulated Employers—Transportation and Communication, or FETCO, which I understand is an organization of employers who are regulated by the federal government.

With us are Lorette Glasheen, who is the chair of the subcommittee on employment equity; Evelyn Bourassa, manager of planning and development for corporate, industrial and talent relations, CBC Ottawa; Roger MacDougall, who is an attorney with CNR in Montreal; and Phillip Francis, manager of workplace diversity at Rogers Communications in Toronto.

Our session with you will be a little shorter than we had originally planned, but we welcome you. I know you have something to say, so let's hear it.

[Translation]

Ms. Evelyn Bourassa (Representative, Federally Regulated Employers—Transportation and Communication): Thank you very much, Madam Chair. Thank you for the introduction.

As you can see in the appendix to our brief, if we leave civil servants aside, FETCO employers account for the largest share of employees subject to Canadian federal legislation. You will find the list of our members at the end of the brief which will be circulated to members of the Committee tomorrow.

With the Canadian companies in the banking industry, FETCO employers apply most federal laws in effect in the Canadian workplace. We represent a large part of the Canadian economy, including large and small employers, Crown corporations and private sector businesses with highly organized or unorganized workplaces, some operating day and night, 365 days a year. Our members often are leaders in applying guidelines to eliminate all forms of discrimination in the workplace.

However, I would urge you, Madam Chair, to bear in mind that my colleagues and I are here today representing FETCO and not the companies that employ us.

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As for Bill S-5, FETCO members consider that they have particular views concerning the employers' duty to accommodate disabled employees because of their long experience in dealing with problems related to this type of arrangement.

FETCO members take an active part in the development of accommodation for employees and consumers. Our organization supports this activity within the framework of a sound social policy and considers it part of good business management.

We have been dealing with the issue of accommodation during the implementation process of employment equity policies since the passage of the first Employment Equity Act in 1986.

The 1995 Employment Equity Act specifically requires special adjustment measures regarding differences. That law gives the Canadian Human Rights Commission the authority to verify measures taken by the employers in terms of employment equity. Consequently, federal laws already make provision for greater protection than in the past towards groups looking for equity by answering their needs for work adjustment measures.

Up until now, the duty to accommodate and individual cases have been determined by jurisprudence. We support the codification of accommodations so that the suppliers of services, the employers and the consumers will be provided a single source of information on the state of the matter.

However, the proposed codification creates some concerns amongst our members. We have chosen to emphasize four of those: the three proposed criteria, co-workers rights, the omission of the concept of reasonableness and the addition of complaints regarding goods and services where there is no identifiable victim.

My colleague, Mr. MacDougall, will talk about the first concern, that is the three proposed criteria. Thank you.

[English]

Mr. Roger MacDougall (Representative, Federally Regulated Employers—Transportation and Communication): Thank you, Madam Bourassa.

The first concern that FETCO members have with Bill S-5 deals with the limited nature of the undue hardship criteria. FETCO members, first of all, support the duty to accommodate a social policy, because it makes good business sense to do so. But case law has defined the duty to accommodate and the criteria used in determining undue hardship. Those criteria, which do include health, safety, and cost, also include disruption of the collective agreement, efficiency of operation, effect on the quality of product or service, and undue adverse effect on other employees.

As the Supreme Court has held in a number of decisions, disruption of the collective agreement and rights of other employees should at least be eligible for consideration as the basis of undue hardship. This is of particular concern to FETCO members, who often have multiple bargaining agents, multiple bargaining units, and a complex array of seniority lists.

Including additional factors beyond health, safety, and cost allows employers and the Canadian Human Rights Commission and Tribunal the flexibility to consider a more realistic set of circumstances in order to apply them when appropriate.

We're concerned that if the criteria are limited to three factors, namely, health, safety, and cost, the commission and the tribunal will, like the Ontario Human Rights Commission, take the position that the factors cited in the legislation are exhaustive. If the three factors are not intended to be exhaustive, then the legislation should make that point clear.

As the Supreme Court said in the Simpson Sears case in 1985:

In any society, the rights of one will inevitably come into conflict with the rights of others. It is obvious, then, that all rights must be limited in the interest of preserving a social structure in which each right may receive protection without undue interference with others. This will be especially important when special relationships exist, in the case at bar the relationship of employer and employee.

My colleague, Ms. Glasheen, will address the next issue of concern to FETCO.

Ms. Lorette Glasheen (Chairperson, Sub-Committee on Employment Equity, Federally Regulated Employers—Transportation and Communication): Thank you, Roger.

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The next issue we'd like to speak to is the omission of “reasonableness” in Bill S-5. All current federal case law is predicated on the concept of reasonable accommodation. The majority of accommodation arrangements are not a matter of public record because they are successfully implemented in the workplace.

Under the existing legal framework, the number of employees with disabilities, for example, in federally regulated companies has increased by more than 70% over the past seven years. Little, if any, of this improvement could have been implemented without this concept of reasonableness.

In 1985, prior to the enactment of the current Ontario code, the Supreme Court of Canada, when it first recognized the duty to accommodate, in the Simpson Sears case, said, “The duty [of the employer] is to take reasonable steps to accommodate the [employee], short of undue hardship.”

During our consultations with the federal Department of Justice in late 1997, personnel from the justice department suggested to FETCO that the Ontario Human Rights Code worked well with the limited three criteria and the omission of reasonableness. You heard yesterday from the Canadian Bankers Association about the 1995 Quesnel decision, where a medical practitioner was ordered to perform accommodations that, in our view, were bordering on unreasonable.

The Ontario code hardly seems, to us, an appropriate code to model.

The current draft of Bill S-5, by omitting the word “reasonable”, would effectively cancel the vast body of jurisprudence created over the past one and a half decades. The combination of limited criteria and the absence of the concept of reasonableness together create ambiguity and a waste of resources by government, industry, labour, and individuals seeking accommodation until such time as a replacement framework has been re-established.

This could conceivably take another decade. It would seem to be an inappropriate action on the 50th anniversary of the International Declaration of Human Rights.

My colleague, Mr. Francis, will speak to the next FETCO concern.

Mr. Phillip Francis (Representative, Federally Regulated Employers—Transportation and Communication): Thanks, Lorette.

With regard to victimless complaints, federal legislation is already more permissive than provincial human rights codes. In Ontario, for example, there must be an identifiable victim to file a complaint in the context of employment as well as in the context of services.

In order to accommodate an individual, the first step required is to define the need or needs of that individual. The proposed language in Bill S-5 would allow interest groups to file complaints requiring accommodation in the context of services on an abstract level. Without an identifiable individual it is very difficult, if not impossible, to assess the need, the appropriateness of the required accommodation, or the suitability of a solution.

Victimless complaints that require service providers to address hypothetical needs on an abstract level will result in unnecessary expenditures of time, energy, and money that must not be diverted away from dealing with the real needs and issues of the day.

The majority of FETCO members are small employers with low margins. While willing to make accommodation arrangements where there is a genuine need, some employers are not always in a position to do so or to accommodate personal preferences in how to implement an accommodation. Nor do most employers, particularly small employers, have the limitless capacity to absorb workplace accommodations and unnecessary litigation around hypothetical accommodation requests.

Furthermore, we at FETCO cannot identify any real need for this amendment, and request that it be eliminated.

Ms. Glasheen will now summarize our proposal.

Ms. Lorette Glasheen: For the reasons we've summarized to you today, we urge the following amendments to Bill S-5: first, elimination of the proposed three criteria or else their expansion to reflect current case law; second, addition of the concept of reasonableness; and third, elimination of victimless grounds for complaints in goods and services.

Ladies and gentlemen, those are the major points we wish to make in our opening remarks today. The remainder of the points we wish to raise are found in our submission, which will be distributed to you tomorrow, I understand.

We appreciate the opportunity to share our experience and insights with you today and welcome your questions and answers.

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The Chair: Thank you very much.

Madame.

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): I listened to the Canadian Bankers Association's presentation yesterday. You touch upon some of the things mentioned by the Association. I would like to ask you one question on the three criteria and their broadening, which I understand perfectly well.

Would the addition of the word “namely” before the words “health, safety and cost” be agreeable to you or would you want a wider list of criteria?

[English]

Ms. Lorette Glasheen: Yes, I think that's exactly what we were proposing. It would be a list that would include the seven specific criteria mentioned in the Central Alberta Dairy Pool case. If not that, then no criteria would be better than having only three.

In our submission, which you'll receive a copy of tomorrow, we do actually propose some language that would include those seven criteria. I could read that to you now. That's the main proposal we're making.

[Translation]

Ms. Madeleine Dalphond-Guiral: The moment you have a list, you draw the line, which isn't the case if you use the word “namely”, which means “amongst other things”. There are three criteria, but there could be others, depending on the reality and the evolution of society, the values and so on.

You propose to add seven, I think. Would it not be better to simply say “namely health, safety and cost”? “Namely” would mean that the tribunal could consider all other possibilities.

[English]

Mr. Roger MacDougall: Either one or the other would certainly be viewed as a positive step by the employers of FETCO.

We agree that any list has the possibility of being under-inclusive. The Supreme Court considered that in a number of cases. I believe Central Alberta Dairy Pool in 1990 was one whereby they specifically looked at this and said they were going to propose some factors, but that these were not exhaustive or exclusive, in that the courts, tribunals, and commission should all have the ability to look at the individual case and tailor the solution to the individual.

FETCO members therefore agree that to limit that to three criteria is not the appropriate way to go.

[Translation]

Ms. Madeleine Dalphond-Guiral: Thank you.

The Chair: Thank you, Madam.

[English]

Mr. Telegdi.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Thank you, Madam Chair.

Let me ask Mr. MacDougall this. You mentioned that you had a concern about the destruction of the collective agreement and the rights of other employees. Would you elaborate on that a little bit?

Mr. Roger MacDougall: Certainly. The concern is that the commission and the tribunal would not at least be allowed to have that as something they could look at to consider.

We could propose perhaps an example that might illustrate this. We represent companies that have multiple bargaining units. If in one of those bargaining units an individual is injured and must be accommodated, there is every likelihood that that person would have to be placed, as a form of accommodation, into another bargaining unit. For large employers, that generally isn't a problem, but as for some of our smaller members, if that happens, we at least feel the commission should be able to consider that impact on other employees within that small workplace.

Mr. Andrew Telegdi: We had Nancy Riche with us yesterday morning. She's the executive vice-president of the Canadian Labour Congress. She said labour was quite willing to accommodate from their end. I remember even asking her a question about seniority in terms of the posting you have. I know seniority is very strong in the Canadian National Railway. Would you agree with that assessment?

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Mr. Roger MacDougall: We would certainly agree that in the larger companies, the larger railways, and the larger airlines we represent, very often there is that ability to make accommodation between bargaining units that may impact seniority, but normally those things can be worked out with the unions involved.

We are suggesting, especially in the smaller workplaces, that sometimes that isn't as easy. In cases where it becomes hardship and perhaps even undue hardship, at least we would suggest there should be the ability of the tribunal to have that available to it to look at and consider.

Mr. Andrew Telegdi: Do you have any kind of statistics on how many people at Canadian National might be injured or disabled during the course of their working tenure?

Mr. Roger McDougall: I certainly don't have those with me today. As far as the accommodation within all of the FETCO members who employ 400,000 people, the number would be in the hundreds or thousands.

Phil.

Mr. Phillip Francis: Each company at the end of each year is required to file with Human Resources Development Canada a report on workplace injuries that occur. So I think a summary of that information would be available to you through Human Resources Development Canada.

Mr. Andrew Telegdi: Would it have the number of people who went on long-term disability?

Mr. Phillip Francis: As I understand it, it should provide information on all absences that occur as a result of workplace accidents.

Mr. Andrew Telegdi: I take it everybody would be off on long-term disability.

Mr. Phillip Francis: It may or may not result in long-term disability. If it happened in the workplace, typically the person would be claiming against the appropriate Workers' Compensation Board insurance.

Mr. Andrew Telegdi: Would efforts have been made to accommodate those individuals within the workplace?

Mr. Phillip Francis: I was here during Nancy's presentation yesterday. I think typically employers try to return employees back to work through redeployment, light duties, etc., as quickly as they can. All of the evidence shows that the longer a person is away, the more difficult it is for him or her to return. Most employers work actively to return the employee back to a job that is either his or her own job or a job that accommodates that individual's abilities at the time of return to work.

Mr. Andrew Telegdi: Would you perchance have any stats on your success in that area?

Mr. Phillip Francis: I do not have return-to-work statistics.

Ms. Lorette Glasheen: I think we could offer to gather those statistics from FETCO members for you if we were given perhaps two or three weeks. Certainly I can arrange for that and we can submit it to the chairperson.

Mr. Andrew Telegdi: That would be appreciated.

The Chair: Thank you.

Ms. Lorette Glasheen: It does indeed occur on a daily basis.

I think one of the points we want to make here today is that very often that story doesn't get told because it's not a matter of public record.

Mr. Andrew Telegdi: We appreciate that. Thank you.

The Chair: Thanks, Mr. Telegdi.

Mr. John McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Madam Chair.

I have two questions with respect to the argument that “reasonable” is to be read into the present drafting. The argument that's been put to us by counsel for the ministry is that “reasonable” is implied in the phrasing and the word “undue” implies a reasonable application of the three criteria. I'd like to hear your response on that point.

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Mr. Roger MacDougall: The case law that exists today, predominantly out of the Supreme Court, speaks of those two concepts acting together. It speaks about reasonable accommodation to the point of undue hardship. They are joined in the current case law. The concern of FETCO is precisely what I think you've suggested, that we would far rather see the case law that exists today not thrown out the window, so at least all parties will understand how to apply it without having to go through the waste of resources to find out once again.

To say it is implied.... It seems much simpler to us to include the word “reasonable”. With that being done, there is no question whatsoever that it becomes explicit.

Mr. John McKay: So your view is that the inclusion or the modification of the phrasing would not detract from the intent and thrust of the legislation.

Mr. Roger MacDougall: That's correct.

Mr. John McKay: Yesterday I read to the representative of the CLC the phrasing contained in the summary of the Canadian Bankers Association's proposal, which reads “accommodation of the needs of an individual or class of individuals”, amending the last five words, “all relevant and bona fide considerations, including health, safety and cost”. Would that be similar to the...? In effect she adopted that kind of phrasing. I'm curious whether that phrasing is similar to what you would consider to be appropriate.

I'll just read it, because it's a little difficult to absorb it. The last five words are “all relevant and bona fide considerations, including health, safety and cost”. Does that accommodate—

Ms. Lorette Glasheen: It accommodates the process. I think the wording you've just cited would be an improvement. But for the record, perhaps I could just read to you the wording we would propose. This is in our submission, which you will receive tomorrow:

For any practice mentioned in paragraph 1(a) to be considered to be based on the bona fide occupational requirement and for any practice mentioned in paragraph 1(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to reasonably accommodate those needs, considering health, safety, cost, disruption of the collective agreement, efficiency of operation, effect on the quality of product or service and undue adverse effect on the terms and conditions, rights and opportunities of other employees.

In other words, it's the wording in Central Alberta Dairy Pool.

Mr. John McKay: Are you limiting yourself? In effect you are giving your proposal bookends, as opposed to—

Mr. Roger MacDougall: I believe the bankers' suggestion is broader, as was the honourable member's suggestion of no criteria but simply relying on the extensive body of existing case law, which does address what are relevant considerations for the courts and tribunals.

Mr. John McKay: One final point, and it was also about the questioning of the representative of the labour movement. That was the issue of the inclusion of a trade union as a named party in a complaint. Her indication was that it seems to happen as a matter of course. Is that your experience as well, that a trade union is also named in a complaint?

Ms. Lorette Glasheen: It's not the norm, but it has occurred.

Mr. John McKay: It has occurred?

Ms. Lorette Glasheen: Yes.

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Mr. John McKay: I wonder whether that is a point of philosophy, if you will, in terms of inclusiveness in workplace, accommodation in workplace, that trade unions as well be expected to participate in the issue of accommodation. Have you given that any thought?

Mr. Roger MacDougall: As Ms. Glasheen has suggested, it certainly does occur, without going through the court or the commission process, from time to time as issues arise. So, yes, they are involved today. Yes, there are certain circumstances where there is an accommodation requirement, and both the company and the trade union are named.

I would suggest that those factors make it even more clear that the criteria should not be limited to those three specific ones but should be expanded in some form to allow the tribunals to consider the impact on that trade union.

Mr. John McKay: Exactly. Thank you.

The Chair: Thank you.

Mr. Peter MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Madam Chair.

I want to thank you for spending time with us today. My question is quite a general one.

With respect to the sanctions that can be imposed—and I'm talking monetary sanctions as well as other disciplinary sanctions—do you have concerns about a situation of double jeopardy arising, where there can be labour code complaints or provincial human rights legislation that might be invoked if a breach occurs? Are you concerned at all that there may be a situation where a complainant has several avenues they can pursue?

Mr. Roger MacDougall: First of all, on one of your points, as members of FETCO, we represent employers that are governed by federal legislation. So, typically, there will not be a concern over the provincial labour codes applying versus the federal ones.

There are, however, circumstances where a tribunal may be considering the labour law aspects through arbitration at the same time as a co-existing complaint before the commission. Normally, those two bodies—at least in my experience, and I'll open this to the rest of the group here—tend to be cognizant of the jurisdiction of the other and respectful of the various jurisdictions. In practice, in my experience, it hasn't been a large problem.

Mr. Peter MacKay: Okay.

Ms. Lorette Glasheen: Usually there's an understanding that one stream will proceed and exhaust before another is taken up so that there isn't simultaneous double jeopardy.

Mr. Peter MacKay: That's just sort of an unwritten rule or an understanding that it's not going to happen.

Ms. Lorette Glasheen: Yes.

Sometimes if a complainant goes to the Canadian Human Rights Commission, they're asked if they have filed a grievance. If it's a unionized employee and they haven't, they have an option to do so or not. If they do so, sometimes the complaint is held in abeyance until that process plays out, and then depending on the outcome, perhaps we'll then take up the subsequent stream of the Canadian Human Rights Commission. Sometimes it's resolved at that stage and there's no need. We do have that experience daily, actually.

Mr. Peter MacKay: Thank you.

The Chair: Thanks. But it is a principle of administrative law that administrative procedures have to be undertaken before recourse to the courts, in any event, right? You go to the collective agreement before you go somewhere else.

Ms. Lorette Glasheen: Yes.

Mr. Roger MacDougall: It is a principle that you have to exhaust your remedies under the collective agreement, and you may or may not be able to use the judicial review remedy of an administrative code. But in our experience, that does not preclude both a complaint before the commission and the grievance before an arbitrator being progressed along parallel paths.

The Chair: I'd do them all and see where it landed. I just wanted to make sure I was still current on that.

Mr. Lee.

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Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you. I'm still working on this reasonably accommodating section and I've had to go back to the original section just to try to get a handle on it here. We start with the concept of a discriminatory practice, and in the same section it then provides exceptions to the discriminatory practices. Two of the exceptions are “bona fide occupational requirement” or “bona fide justification”. So far, there is no reference to “accommodation” or “duty to accommodate” or “reasonable”. We simply have “bona fide justification” or “bona fide occupational requirement”.

I understand you would like to insert a provision that would add some aura of reasonableness to the response of the party on whom there is an obligation not to discriminate or a person who is looking to place themselves within the exception. While I was originally quite interested in inserting the word “reasonable”, I'm having difficulty doing that now because it back-doors the concept. It wedges it in through the back door rather than directly saying the exception should be available to those who would reasonably accommodate. It seems to me your suggestion—and other suggestions we have had—simply lobs in the word “reasonable”; you just want to get it in there anywhere you can so that there's some reference to reasonableness.

Mr. Phillip Francis: This is an area of legislation that is constantly changing. In may cases, what is reasonable today would not have been reasonable ten or fifteen years ago. What may be unreasonable now may be perfectly reasonable in two or three years' time. I'll just give you one example.

Mr. Derek Lee: Well, as you have described this to me, I just want to tell you that the word “reasonable” is irrelevant at this point, except that you've indicated that the courts have read it in.

Mr. Phillip Francis: Correct.

Mr. Derek Lee: Anyway, please carry on with this irrelevant description. I don't want to undermine what you're saying. I do want to hear it.

Mr. Phillip Francis: I think what is reasonable is what we can do today given the available resources. If you're talking about technology, as little as five or six years ago people who were blind could not operate within a mainframe environment. Speech recognition or speech synthesizer technology has allowed employees to actually purchase this technology and apply it to mainframe systems, which must be, to use the computer words, DOS-based. It allows these individuals to work in, as an example, call centre operations. The technology reads the computer screen to them and the customer is talking to them through a headphone. That would not have been reasonably available to anybody five or ten years ago.

Moving forward, it wouldn't be reasonable to expect that the purchase of some form of Windows-based mainframe system would be compatible with speech technology. The actual voice technology is not available for a Windows environment right now, but I would suggest that it will be within two or three years' time. In two or three years' time, it would be reasonable to accommodate a person who is blind by using those types of technologies. It would be unreasonable to expect that now because it doesn't exist.

What I'm trying to say is that the reasonableness issue is very important, because when you're looking at what's reasonable, it's a point in time. Moving forward, it may not be. Looking back, employers have the capacity to accommodate many people who, as I suggested, could not have been accommodated in history. That's one purpose for the word “reasonable”, and there are others.

Mr. Derek Lee: Okay, but I just can't find a way to wedge it in without contorting the legal mechanism or legal measuring stick we're using here.

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Mr. Roger MacDougall: If I may, I might be able to assist the hon. member with that issue.

I believe you're looking at the existing legislation as it reads today. You're looking for the word “reasonable” and finding it simply isn't there. That's right.

It was first introduced by the Supreme Court of Canada, I believe, in 1995 in the Simpson Sears case, and subsequent cases out of the Supreme Court of Canada have consistently “read in”, if you like, the concept of reasonableness. So as federal employers, when we ask what the law is today, we unfortunately can't simply go to the legislation and understand what the law is because of that vast body of case law.

I think the justice department has suggested that one should be able to go to a piece of legislation and, for the most part, at least, be able to understand what the rights and obligations are. That's why they have suggested a number of things in the bill, such as, for example, the extinguishment of direct versus indirect discrimination. Once again, that came out of that series of cases.

So the existing law as it stands today is not reflected by the legislation, and in fact it does have the concept of reasonableness in it as a matter of law.

Mr. Derek Lee: Okay. I understand. And your suggestion is that we insert the word “reasonably” in front of the word “accommodate”.

Mr. Roger MacDougall: That's right.

Mr. Derek Lee: An adverb to define the verb.

Ms. Lorette Glasheen: Exactly.

A voice: Modify.

Mr. Derek Lee: Okay. I thank you for that.

The Chair: Thank you, Mr. Lee.

Thank you very much for your participation here. We were pleased that you contacted us and we were pleased to have you here.

Mr. Roger MacDougall: Thank you.

The Chair: I'll just rise for a minute while our next witness gets to the table.

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The Chair: We're back.

From the Criminal Lawyers' Association in Toronto, we have Irwin Koziebrocki, who has come to us straight from the Supreme Court of Canada after receiving a little bit of pressure from our clerk.

Irwin, I think you know we're interested in the amendments to the Canada Evidence Act and the Criminal Code. In particular, we're concerned about the proposed changes to subsection 153.1(1) of the Criminal Code, which is the charge of sexual exploitation of a person with a disability.

Are you ready for that, or did you want to make some general comments?

Mr. Irwin Koziebrocki (Treasurer, Criminal Lawyers' Association): I want to make a couple of general comments because I have a constituency I have to address.

First, I want to say that obviously the Criminal Lawyers' Association always appreciates the opportunity to appear before the committee to assist you in your deliberations. We in the Criminal Lawyers' Association also want to express our appreciation to the Canadian Disability Rights Council and the federal task force on disabilities and their working groups for the work they've done in attempting to improve access to the criminal justice system for persons with disabilities.

I personally want to put on the record that I want to thank Carole Ann Letman, our director in the Peel region, who has done considerable work with respect to this particular issue. She has prepared a number of the submissions in the past, and she appeared at the consultations with respect to this particular area. If it weren't for her assistance, I would have had some difficulty appearing today.

Finally, generally speaking, the Criminal Lawyers' Association supports amendments to the Criminal Code that would give access to the criminal justice system to persons with a disability.

Those are the opening comments and salvos that I have to make. Having said that, there are also concerns that arise with respect to the implementation of this legislation presently before you. I'll just briefly deal with a couple of matters, especially the Canada Evidence Act amendments.

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You've provided an amendment to the Canada Evidence Act that would allow persons with disabilities to testify in certain fashions other than what we consider to be the normal fashion. Again, we at the Criminal Lawyers' Association don't see anything wrong with providing those types of facilities. In fact, as far as we're concerned, they exist already in the sense that a trial judge has the discretion at common law to provide various means that would permit someone to testify with the aid of interpreters and other forms of assistance.

My respectful submission to you is that you should consider, when dealing with this type of aspect, that there are several things we have to remember. There are the traditional methods of fact determination that are dealt with in a trial court, and they consider the determination of credibility and the determination of demeanour as being part of the factual determination a tryer of fact must make.

One of the things one has to consider when you provide other means of testifying is whether you are taking away from that traditional function of a tryer of fact. Will a tryer of fact in fact be able to determine credibility based on demeanour if someone is testifying in some fashion where that particular aspect is just not self-evident in the traditional ways?

When you look at that you have to bear in mind that the accused's rights are also affected in this respect. He or she has a right to a fair trial under the charter, section 7 and paragraph 11(d), and if you take away from the traditional methods of determining whether the case has been made out against someone, you may well be affecting those charter rights. I think you should have that in mind when dealing with the proposed amendments in section 6.

More particularly, proposed section 6.1 is an interesting provision. It's the one that allows someone to testify with respect to identity in other than the more traditional senses, for example, using some sensory methods. You've identified in the working paper that comes with this document such things as using voice and touch methods of identification. You must consider when you do that whether you are in a situation where, first, if there are no prior identifications the first identification you're going to have is in the courtroom by this method. If so, there are the traditional rules of identification evidence that dockside identifications are not considered good identifications by the court. They are meaningless. Are you changing that rule?

Second, there's the issue of whether there are charter breaches involved in that particular section if you are providing for situations of self-incrimination. How do you get the voice identification? Do you require someone in a dock to stand up and speak so that the person in the witness box can identify that person as the person who committed the crime?

What do you do in terms of this touch identification, whether in fact it even is a valid form of identification? Do you require an accused person to come up and take his clothes off or be touched in some fashion for the purposes of being identified? Those are matters that run contrary to our tradition of an accused person having a right to remain silent and to have the crown prove the case beyond a reasonable doubt without them saying anything in their defence.

• 1730

So if you allow for this provision, keep in mind that you may be running afoul of those types of situations.

In terms of voice identification, do you gather voices surreptitiously, or tapes of the voices surreptitiously, so that you can use them for identification, or do you provide for a new provision that requires someone to give a voice print, so to speak? Those are things that you have to consider and that don't seem to be considered by passing this type of legislation without that framework. So keep those factors in mind.

The other factor is—and I'll deal with it at the end of my submission—that this, along with the rest of this legislation, is aimed at the disabled, but you will find, and anyone who has dealt with the criminal justice process will find, that there are more people who are disabled who happen to be the accused than there are as witnesses or complainants in criminal matters. The dock is full of people who are disabled, either in a mental or in a physical capacity, and none of this deals with protecting their rights or providing them with the right to testify in certain fashions.

Having said that, there is proposed section 153.1, and I'm not sure what to call it. Is it a sexual exploitation section or is it a sexual assault section? From my reading of the section, it is somewhere in between what is a sexual assault, in the traditional sense, and a sexual exploitation, which is a section that was passed by Parliament to provide for a certain group of people within a certain age frame who may be subject to persons who have authority and power over them.

The purpose for that section is because at some point Parliament decided it was appropriate for people who were younger to be sexually active. Once they were sexually active, the question that was left was: Are there situations where young people could either be coerced, pressured, or mesmerized into having sexual relations with someone who had some form of authority over them? For that offence—I believe, it's section 153, the sexual exploitation section, involving young people—there's an age framework from which you can work. The offence is committed, consent or otherwise, when someone has a position of trust or authority over that young person, and that's the criteria that make it an offence for the reasons I have described.

This offence seems to adopt the criteria of the sexual exploitation offence but then goes on to speak of it being without the consent, because in section 153 it doesn't matter whether there is consent or not; the offence is committed by having this position of power and abusing it. It's the abuse of that position that makes it an offence.

You then create this situation that adopts section 153 criteria, makes it without consent, and then throws in words like “invite someone to touch someone's body”. In my respectful submission to you, it doesn't make a whole lot of sense. If you're there to create an offence of sexual assault, you already have one that applies to everybody, whether they're disabled or not. If you're attempting to create an offence of sexual assault with respect to persons who are disabled, then do it. Create an offence. It makes it an offence to sexually assault a person who has a disability and who was incapable of consenting to that sexual activity. That would solve that particular problem.

• 1735

You have a situation here where your working paper seems to say it's an offence if an employer makes a lewd comment to an employee who happens to be someone who is disabled. Now, if that's the intent of that offence, I would say that goes far beyond anything we've ever seen in the criminal law. Someone who is an employer and goes up to an employee who is disabled and says to that person, would you like to have sexual activity, if that person says no, has created a criminal act. I hardly think that was the intention of this legislation and the intention of Parliament, nor is it, I would suspect, the intention of those people who come before you representing the disabled.

We are not here to treat the disabled as children, as you find in proposed section 153.1 I don't expect those people would want to be treated as children, nor do they want to be left in a position where they can't make up their own mind on whether or not to have sexual relations. I would expect even those people who advocate the rights of the disabled would like those people to have as normal sexual activity as they possibly could within the framework of their lives.

So this type of offence, with respect, is neither here nor there. It could, I would think, cause enormous harm to their sexual activity, but also create an offence that would make it almost impossible to speak to someone who is disabled about a sexual matter.

I would think, as the chairperson indicated to me earlier about the relations between husband and wife, that type of relationship would be dramatically affected by this type of offence.

That having been said, there are a couple of other matters I'll bring to your attention as something you might want to consider.

On the question of the jury amendments under proposed section 627, obviously the Criminal Lawyers' Association would support any changes in the Criminal Code or the appropriate provincial legislation to allow persons with disabilities to sit on juries as long as they were capable of determining the issues that had to be determined. One thing that appears in your working paper may cause some concern. At page 10 there is some indication that this would allow blind persons to sit on juries. Again, we have no objection to that in appropriate circumstances.

There are, as I indicated earlier, certain concepts that exist in a criminal trial. Part of it is the determination of credibility, the review of the demeanour of witnesses. That may not be possible for a person who is not sighted. I would hope it would. The principle that justice is blind has a good ring when it comes to this type of situation, but the fact of the matter is it just may not be appropriate in certain situations: where demeanour is important, where a large number of documents have to be reviewed; those kinds of situations. You may well want to look at that kind of situation and look at it from the point of view of adding a question of consent of the parties to someone like that sitting on a jury. That may alleviate that particular problem.

On the clause dealing with the videotaping of statements of persons with disabilities, proposed section 715.2, again, this looks, with respect, like an attempt by the legislation to treat persons with with disabilities like children. That section is modelled after the section that deals with children.

• 1740

There are reasons for passing that kind of legislation with respect to children: they have short memories; they're easily manipulated or pliable when they're younger; they forget what their original statements were; or the testimonials situation is confrontational and traumatic for young children and may have lasting effects on them.

In some limited cases, it may well be that persons with mental handicaps have the same kind of situations, but most persons who are disabled want to be treated like adults. It's inappropriate, in my respectful view, to set up a scheme dealing with persons with disabilities that literally treats them like children.

When you're dealing with that particular situation, if you're going to do that, why doesn't the same apply for the accused? What about the accused with a mental handicap, who wants to give a statement right off the bat, and records that statement at the time or closely after the time of arrest, and then, by the time trial comes about, because of mental disabilities is unable to testify or to remember what the situation is all about? He or she is precluded from using that kind of documentation by the rules of evidence. Those are factors you have to consider in terms of that particular situation.

One final thing I would point out when dealing with these factors—and this may be something that would have to be determined by the courts—is that you haven't put in a definition of what a person with a disability is. That may be deliberate, and good luck to you in that respect, but in some degree it's important. What is a disability to one person isn't necessarily a disability to another person. The definition of disability can be far-reaching.

As I sat at lunch at the marché over at the mall, waiting to come over here, I saw a person who was a dwarf. I saw someone who couldn't speak any of the official languages of Canada. I saw someone with a limp, walking with a cane. I saw another woman who was walking with a walker. I saw someone who stuttered.

All those people, to some degree, have disabilities. Are they the types of disabilities that would be covered by proposed section 153.1? I can't say they are or they aren't, but some judge might find that they are.

So it might behove you to sit down and think about what is an appropriate definition for our Criminal Code when you're making these types of changes.

In conclusion, I would say to you that the Criminal Lawyers' Association supports wholeheartedly any amendments that would give equal access to the courts for persons with disabilities as long as those changes provide similar access to an accused person with disabilities. They must also regard the rights of an accused person to a fair trial, which are protected under the charter, and in any balancing of the rights of the disabled and the rights to a fair trial recall that the Supreme Court of Canada has said, on a number of occasions, that it is the right to a fair trial that should win out.

The Chair: Thank you.

Madame Dalphond-Guiral.

Mr. Howard Hilstrom (Selkirk—Interlake, Ref.): Does Reform not go first, under the protocol?

The Chair: No.

[Translation]

Ms. Madeleine Dalphond-Guiral: I'll wait for you.

[English]

The Chair: Madame goes first this time.

[Translation]

Ms. Madeleine Dalphond-Guiral: Thank you for being here. You made some new comments which we had not heard from other witnesses.

• 1745

At the beginning, you talked about the possibility of testifying using sensory methods. We know that sensory methods can mean a lot of things. I felt that you were talking about the right of the accused as well as that of the victim. I think that it shows your professionalism.

You say that an accused, for example, could refuse to talk not to incriminate himself or herself through his or her voice. In that case, would he or she have the right to wear a mask not to incriminate himself or herself through his or her face?

We know that people deprived of one of their senses develop an exceptional acuity of the other senses. Blind people, for example, have an extraordinary tactile sense which doesn't compare to that of the sighted. It is the same for the hearing. They develop an extraordinary auditory acuity.

I heard your reservations, but maybe this uneasiness that I felt in you ought to be balanced.

You then talked about proposed clause 153.1. It won't come as a surprise if I tell you that you're not the first to talk about it. Everybody talked about it, except two or three people. My understanding, as well as yours I think, is that proposed section 153.1 is a true copy of the original section 153.1 except that it includes the notion of “without consent”.

On the other hand, general section 271 deals with sexual assault and consent, but it applies to all adults. Would I be right to say that you feel section 271 is enough to do justice to persons with disabilities? As you indicated, there are a lot of people with disabilities. Would it not be a way to show non-discrimination towards persons with disabilities? If you had the choice, would you cross out section 153.1, all the more so since the proposed sanction is five years while section 271 provides for a maximum term of ten years?

[English]

Mr. Irwin Koziebrocki: I'll start by saying that this is not the first time I've been told that my views are different from the views of other people who have come before a committee. That generally seems to be the way.

[Translation]

Ms. Madeleine Dalphond-Guiral: Is that why you always come last?

[English]

Mr. Irwin Koziebrocki: Probably so.

Having said that, let's deal with proposed section 153.1 first. If I had a choice between the way proposed section 153.1 is drafted now, and section 271, I would stick with 271.

People with disabilities have been the subject matter of assaults or sexual assaults since the beginning of the Criminal Code, and they have been dealt with in some fashion. The fashion they've been dealt with is under section 271, or the predecessor to section 271.

• 1750

About 15 years ago Parliament decided to change the Criminal Code to provide for a uniform offence of sexual assault that takes into account innumerable situations—anything from touching in a sexual manner that's not consensual to intercourse that's non-consensual.

All those are considered, and that's why there is a framework of a suspended sentence to ten years for that particular offence. It is probably the only offence you will ever see where that whole gamut of sentencing is actually used. People get suspended sentences and even discharges in certain situations that are appropriate for that. People get ten years for situations that used to be rape-type situations.

A person with a disability who is a victim of that type of offence falls within that. It's simple. It's clear. If you do something and touch somebody for the purpose of sexual gratification, without his or her consent, it's a criminal offence and it doesn't matter who you're touching.

I don't think, with respect, this particular section does persons with disabilities any favours. It's convoluted. It's a difficult section. It makes relationships between spouses, acquaintances, and employers very difficult. If it's intended, as your paper seems to say, to cover such things as lewd comments, it's probably unconstitutional.

With respect, the best other alternative I suggest to you is if you want to make it a specific offence to sexually assault someone with a disability, you can do that, but I think you're also creating problems because you don't have a definition for a person with a disability.

With respect to the first question you asked, my answer is yes, there are people who have extraordinary abilities to identify or do things in other fashions than the sighted. Having said that, we go back to the business of whose right prevails in a criminal justice context, and I have to take the position with you that even when you do the balancing, the accused's right prevails.

The Chair: Thank you, Madame. We have a lot of questions and very little time, so I will go to Mr. Lee, Mr. MacKay, and then Mr. Hilstrom.

Mr. Derek Lee: Thank you. I want to go back over proposed section 153.1 a little because I've had some difficulty with it. Your reading of this, Mr. Koziebrocki, would allow one to include spouse amongst those who could get into difficulty here. It could be a person in authority.

Mr. Irwin Koziebrocki: It could be, and it certainly is someone in a position of trust in a personal relationship.

Mr. Derek Lee: It could also include a disabled person who was a partner or spouse of another disabled person.

Mr. Irwin Koziebrocki: Absolutely.

Mr. Derek Lee: Okay. Can you tell me if the term “for a sexual purpose” is defined elsewhere in the code, or is there case law that would permit me or you to figure out what “for a sexual purpose” would mean?

Mr. Irwin Koziebrocki: Case law would do that.

Mr. Derek Lee: It's easily enough located.

Mr. Irwin Koziebrocki: Yes, it's basically for one's own sexual gratification.

Mr. Derek Lee: Okay. So it wouldn't necessarily include a simple kiss.

Mr. Irwin Koziebrocki: Well, some people might say that's for sexual gratification. You'd have to look at it in the circumstances. Your traditional kiss, I would expect, wouldn't find its way into that category, but there are certain kisses and certain situations that might. You can use your imagination.

Mr. Derek Lee: On rights and liberties and freedom of expression, you made reference to that at a couple of points in your submission. I had concerns about that too, because this particular bill would appear to circumscribe the freedom of an individual who may or may not have a disability, who may or many not have a pre-existing sexual, domestic or conjugal relationship with a disabled person.

• 1755

It curtails that person's freedom of expression in terms of their ability to communicate or invite or counsel touching for a sexual purpose, which in a lot of partnership arrangements is sort of something that happens from time to time.

I'm leading this thing kind of terribly, but I have a sense that there is not, at this point, sufficient justification put forward that would allow us to impinge upon that particular right to freedom of expression that we all have. I understand there's a terrible problem with respect to predators who take advantage of people with disabilities—in some circumstances, not in all.

Mr. Irwin Koziebrocki: But this new section isn't aimed at that. Take a look at this section and you will see that you have two things in here that are incongruent.

On the one hand, you have the words “without the consent”, and on the other hand, you have the word “invites”. They don't match. What you've done here is you've taken a concept that's in 153 and a concept that's in section 271 and you've tried to mesh them together. And they don't work. In 153 it doesn't matter if there's consent. It's the position that's the important thing and it's the age of the person that's the important thing. That's what makes it the offence.

That's why if you're an adult and you are the employer or the teacher of a 14-year-old or a 15-year-old, or if you are the priest of that person or the baseball coach of that person, and you invite that someone to touch you in a sexual manner, you've committed a criminal offence, even if that person says, “I'd love to do it” or “I want to do it” or “I want to be your mate for life”. It doesn't matter. It's the position you've used to gain that entrée that creates the offence.

In section 271, you commit a criminal offence by doing something without the consent in a sexual matter. That's why...with these two sections, you've tried to cram two things together that just don't fit together.

Mr. Derek Lee: Okay. You think we might have a charter problem down the road. Do you envisage a reasonably arguable charter problem with this section right off the bat or only in certain circumstances?

Mr. Irwin Koziebrocki: I don't even know if it's a charter challenge or if it's just that it doesn't make sense in the situation. The two words mean two opposite things.

Mr. Derek Lee: Okay.

The Chair: Mr. Lee, I hate to do this, but our time is somewhat limited and I want to get to Mr. MacKay, Mr. Hilstrom, and Mrs. Finestone.

Mr. Derek Lee: Your timing is impeccable. I've done three of three. Thank you.

The Chair: Thank you.

Mr. MacKay.

Mr. Peter MacKay: Thank you, Madam Chair, and thank you, Mr. Koziebrocki. It was a very interesting presentation, as usual.

Mr. Irwin Koziebrocki: Thank you, sir.

The Chair: Watch him—he's a crown.

Mr. Peter MacKay: Just a couple of quick comments.

Mr. Irwin Koziebrocki: I used to be one.

The Chair: So did I.

Mr. Peter MacKay: I totally agree with your analysis of this proposed section. I'm looking at section 153 as it presently reads and I think what we're getting into here is the creation of another very specific offence rather than the tendency that I think most crown attorneys would have, that being, as you suggest, to go with the general charge under section 271, unless you're talking about a lewd comment that wouldn't fit that charge.

It seems as if this is another move towards Cartesian thinking, where you put everything down in very specific terms, and I guess you and I both know, as lawyers, that as a crown you're not going to want to try to have to get into a situation where you have to prove more specific elements of the offence than you have to.

Mr. Irwin Koziebrocki: Sure.

Mr. Peter MacKay: But leaving that aside, I do have a couple of quick questions about the use of an interpreter or the use of a person who would be accompanying an individual who is hearing impaired, visually impaired or mentally challenged. Would it be your recommendation that that person be court-appointed, that there be some independent counsel who would have an opportunity to appoint that person? I guess my concern is who that 13th juror is or who that person is who's going to get on the stand to help the victim testify.

• 1800

Further, your point about an accused person having access to an interpreter or friend of the court is a very apt one as well. I use your example of a person with a stutter who decides they don't want to testify in front of a juror with a speech impediment and therefore wants somebody who can make representations on their behalf.

I just think we're getting into a really broad area as to who this person is going to be. I think it's a good thing, but who decides who that person in the courtroom is going to be?

Mr. Irwin Koziebrocki: Actually, when I read this legislation I thought of Stephen Hawkin, who is probably the most brilliant man alive and none of us understands him. He comes with his interpreter. His interpreter, I would expect, is someone who is exclusive to Stephen Hawkin, who has spent considerable time figuring out and learning what his speech patterns are, and in that respect is probably one or two of the only qualified people in the world who can interpret what this brilliant man has to say.

I would think it would be difficult for the court to appoint someone to do that in that kind of situation. I think you have to deal with the situation that arises. There will be a number of cases that come before the courts where the court would appoint a person to do it for the purposes of obtaining independence.

Those of us who have practised in the court have all run across situations where people have brought their own interpreter. It's quite an interesting process.

So I would say in most situations it would be a case of the judges having a bank of people they can rely on who have been certified by the courts and have been given their seal of approval. You would use one of them in that kind of situation. In the jury situation, if it's a juror, they would be someone who has the experience of the court and the confidence of the court.

There will be those unique situations where someone will have to provide their own interpreter. Then there will have to be a decision made by the judge, probably in a voir dire type of situation, to determine whether that person is competent to do it, has the appropriate bona fides to do it, and is prepared to be honest and straightforward with the court. So you'd have to play that by ear, so to speak.

Mr. Peter MacKay: I have another very quick question. Do you feel this opens the door to a situation where, again using some of your examples, an accused person would be given the opportunity to make a KGB-type statement rather than take the stand in their own defence?

Mr. Irwin Koziebrocki: That would only happen, I think, in the rarest of situations. You're dealing with a situation where counsel might say, for example, this person suffers from paranoid schizophrenia and is incapable of remembering two days from now what happened to him yesterday. Most of us have that problem, but some of us have it as a result of a medical condition. They want to get it recorded for court purposes. There's no provision for that now. It might well be an appropriate thing to do.

Most defence lawyers—and I guess I've got to be honest and truthful about this—don't want their client to say anything ever and will be frightened to the last second about what their client is going to say on the witness stand. But there are those rare exceptions where you want to get out there and get your story on the line as quickly as possible.

• 1805

Mr. Peter MacKay: Finally, section 153, as it currently reads—and I don't know what the reaction to this would be. What would you say to the suggestion that you simply insert in the present section, in the description as it reads, “every person who is in a position of trust or authority towards a young person or person with disability”? Then go on to do as you say, to define what a disability is. They define young person, of course, in this section. So rather than create a subsection 153.1, if this is what the intent of the legislation is, why not simply add those words?

Mr. Irwin Koziebrocki: That's something I considered, and it's an option. But you have to be very careful with that option. That goes back to my submission, where I say you're treating that person with a disability as if they were a child, and they aren't. In some cases they are, in the sense that they may have mental disabilities that give them the chronological age of a child and they act and deal with matters in that fashion. They may well fit into that category, where there is this position of authority that you use—someone with Down's syndrome, that kind of situation.

However, someone who is in a wheelchair, who is 37 years old and is sitting on the Supreme Court, who is well capable of saying yes or no to their boss, is not someone you want to include in that section. They have a disability. They clearly wouldn't want to be in that section and they ought not to be in that section. You would be causing real problems if you did put that kind of person in that section.

Mr. Peter MacKay: To follow that argument then, isn't even creating a whole other section based on a person having a disability in some way...I think demeaning is too strong a word, but why not have it under the general section of sexual assault and present it as an aggravating feature?

Mr. Irwin Koziebrocki: Well, that's exactly what I said.

The Chair: Mr. MacKay, aren't you addressing, as a former crown attorney, what I am thinking to myself as a former crown attorney and what I think Mr. Koziebrocki is, as a former crown attorney, that if the police came to me with this section, I'd say “No, go under the general assault provisions, this is too much of a nightmare, and I want to win the case”?

Mr. Hilstrom.

Mr. Howard Hilstrom: I'll speak from 30 years of RCMP police experience. I've had lots to do with criminal lawyers, and quite often I haven't had occasion to agree with you, but I certainly agree with your comments today.

Mr. Irwin Koziebrocki: I'm glad to hear that.

The Chair: It's frightening!

Mr. Howard Hilstrom: Yes, and I assume the Criminal Lawyers' Association had zero input into this particular legislation. Were you consulted formally or informally?

Mr. Irwin Koziebrocki: I want to be accurate here, but I personally can't tell you. I have a memo dated March 16, 1994, which is our response to the proposed amendments to the Criminal Code and the Canada Evidence Act respecting persons with a disability. So yes, we were consulted in the consultative stage before it went to legislation, and there were more things in it at the time.

The Chair: Did you make some of these comments at that time, too, just to clarify?

Mr. Irwin Koziebrocki: I'm not sure, but I think we did.

The Chair: Okay.

Mr. Howard Hilstrom: I think your presentation today has set this out for us very clearly.

I guess my last question would simply be that we're going to continue looking at our amendments and so on, but do you think it's reasonable that we can come up with something that's not going to end up in litigation for 100 years? Or should this whole package go back to the drawing board, so to speak, in order to deal with the issues you've brought up here? Or is there a possibility that with legal advice we could get through this? Is it so flawed that we're going to be in litigation forever?

Mr. Irwin Koziebrocki: As I said, starting from the beginning, it's a good thing to address these issues. We certainly don't object to you addressing these issues. There are matters in here that are important, such as putting persons with disabilities on juries, such as giving persons with disabilities the right to testify in some other fashion so that their case can be heard in a courtroom. But to create an offence for the sake of creating an offence, in my respectful submission, doesn't do anybody any favours.

• 1810

The Chair: Thank you, Mr. Hilstrom.

Just before you start, Mrs. Finestone....

Mr. Koziebrocki, are you trying to catch the 7 p.m. flight?

Mr. Irwin Koziebrocki: If it's still there.

The Chair: Will we call a cab for you so that it will be down front when you finish?

Mr. Irwin Koziebrocki: That's fine.

The Chair: All right.

Go ahead, Mrs. Finestone.

Hon. Sheila Finestone (Mount Royal, Lib.): On the first instance, with respect to a follow-up on the discussion on proposed section 153.1, do you think there is anything that should have been put, that could be put in section 271, that would clarify the issue and identify the disabled in that section?

I have wondered, in all the discussions I've been listening to for the last few days or last couple of weeks on this matter, if it was just a reaffirmation, as we did with female genital mutilation, which was already covered in the Criminal Code. We came back and added another section just to make very sure everybody understood it was there. I wonder whether this was necessary, or could we just reaffirm, under section 271, the disabled?

Mr. Irwin Koziebrocki: Section 271 is probably the simplest criminal offence section there is, other than...I shouldn't say “Thou shalt not kill”. That's much more complicated than this section is.

It's very simple. It says everyone who commits a sexual assault is guilty of an offence.

Mrs. Sheila Finestone: Fine.

Mr. Irwin Koziebrocki: It applies to everyone, and it applies to anyone who happens to be the victim of a sexual assault. That covers everybody. They don't have to add a specific group in there to say they're included. I would expect that they're included. There's nothing excluded and no one excluded by that section.

The female mutilation section you added is a little different from this. There are certain people in this community and in the world in general who didn't think that was a criminal offence, who didn't think that was a sexual offence, who thought that was some form of ritual religious rite. From our community standards, we decided that it isn't, that it's a criminal offence, and therefore we had to say specifically it was a criminal offence, to make sure those people understood it was a criminal offence.

Mrs. Sheila Finestone: I'm just thinking about the witnesses who appeared before us who agreed with proposed section 153.1 and were quite graphic in their description of the problems faced by disabled people, particularly those who are confined to bed or have serious disabilities. They didn't seem to find much difficulty with the importance of this particular clause.

There seemed to be more clarity in the French language than there was in the English language, the contradiction with respect to consent and the word “invite” and the implication to potential criminality because you may not have invited in a sense that was in an invitation.

I wonder if we did what you said—this section 271—are we going to remove a comfort zone that seemed to have been expressed by those who were disabled who appeared?

Mr. Irwin Koziebrocki: I can testify before you from the perspective of someone who deals with legal issues and deals with them in courts on a regular basis—

Mrs. Sheila Finestone: Do you deal with the disabled as well?

Mr. Irwin Koziebrocki: Of course.

Mrs. Sheila Finestone: Okay.

Mr. Irwin Koziebrocki: Being a defence counsel, a whole bunch of my clients are disabled in some fashion or another.

Mrs. Sheila Finestone: Excuse me, before you finish answering—because I'd like you to roll it in as time is of the essence—you said something that I thought was very important, and that was the accused versus the victim. Is this broad enough to cover both the accused and the victim? At the same time, would it satisfy the disabled community?

Mr. Irwin Koziebrocki: I'm not sure which—

Mrs. Sheila Finestone: You said many of the accused are disabled.

Mr. Irwin Koziebrocki: That's right.

Mrs. Sheila Finestone: Okay. And you said you felt there was some conflict between the existing law and the new law we're bringing in. You were concerned about this conflict.

Mr. Irwin Koziebrocki: Yes; not in terms—

Mrs. Sheila Finestone: If you say section 271 would cover everybody, does that include the accused and the victim in the case of us wanting to highlight the specific difficulties that are faced by people with disabilities?

Mr. Irwin Koziebrocki: Section 271 deals with someone who is an accused, who may be an able-bodied person or may be a disabled person. They will be charged whether they are or are not disabled.

• 1815

It deals with a complainant or victim, depending on what end of the criminal prosecution you are at, one who may be able-bodied or disabled. All of those people are covered by that clause. The difficulties relate to other clauses that give special provisions for disabled people as witnesses or as complainants but not necessarily as accused, such as the clause about videotaping I talked about.

Mrs. Sheila Finestone: Is your basic principle a concern that we have infantilized people or reduced them from the adult phase by putting them in under section 153, as a proposed section 153.1? Is that your main concern there?

Mr. Irwin Koziebrocki: My main concern is that proposed section 153.1 creates a very unusual offence, one we may find we will have difficulty living with, for a number of reasons, the ones I explained.

To go back to the other question, I expect people will come before you and speak about this in an emotional fashion, because it is truly an emotional situation. Anyone who is disabled or who has persons in their family who are disabled will speak passionately on this kind of situation and will try to get as much as they possibly can to cover the situation as best as they feel the situation requires. Clearly you will get people here saying that's a wonderful clause and it needs to be passed. But when you do that, you must also consider the situation and the circumstances you're creating.

Mr. Sheila Finestone: I don't know whether that means we should take it out or we should leave it in; but that's fine.

My second question relates to your concern about proposed subsection 6(1), on the ability of a victim or witness...in this case it's the witness, and you asked about the victim, who has a disability, to identify visually or in any other sensory manner. Would you like to suggest an amendment to that clause? Does this clause create problems of self-incrimination?

Mr. Irwin Koziebrocki: Yes, I think it does.

Mrs. Sheila Finestone: Do you wish to have that broadened out? This is not the first time this bill has been around the clock. It has just come back out of the Senate, and I would have presumed if there were a big problem the senators would have picked it up. Now you're telling me the senators, on serious second thought, didn't find it. Now I want to know what we should do with it.

Mr. Irwin Koziebrocki: The clause says a person can identify an accused. So here we're talking about someone other than the accused having this right. The clause is specifically aimed at, in all likelihood, a victim, but not necessarily a victim. It could be someone else who was a witness to the events and who will give evidence, such as a witness to a robbery or shooting or something like that. That person can use other means to identify the accused.

If the police have, for example, prepared a line-up using a voice line-up and they play tapes to certain people, that may be one means by which they can identify that person. But if the witness gets in the witness box and the crown attorney turns to the judge and says, “Judge, I want to have an identification based on voice identification, so hand this piece of paper to the accused, make him stand up on the dock, and have him read it out loud”—

The Chair: “This is a robbery. Give me your money.”

Mr. Irwin Koziebrocki: Yes. That's right, or it's the usual suspects; the line-up.

Mrs. Sheila Finestone: So should it be removed, should it be clarified, should it be amended?

Mr. Irwin Koziebrocki: It should be clarified, certainly, because it's a situation that can result in that kind of problem.

The Chair: Mr. Koziebrocki, you're saved by the bell. We have a vote.

Thank you so much.

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Mr. Irwin Koziebrocki: I appreciate it.

The Chair: The meeting is adjourned.