Lawyers Kyla Lee and Sarah Leamon were asked to advise the House of Commons on Bill C-51, a set of proposed legislation that makes significant changes to how sexual assaults will be prosecuted in Canada.
From the Government of Canada:
The proposed legislation would:
- Clarify certain aspects of sexual assault law relating to consent, admissibility of evidence and legal representation for the complainant;
- Repeal or amend a number of provisions in the Criminal Code that have been found unconstitutional by appellate courts and other provisions that would likely be found unconstitutional;
- Repeal several obsolete or redundant criminal offences; and
- Require that the Minister of Justice table a Charter Statement in Parliament for every new government bill, setting out the bill’s potential effects on Charter rights and freedoms.
Have a listen to what Members of Parliament had to ask, and what we had to tell them:
0:50 – Kyla Lee opening statement
I’m going to deal with the provisions of bill C 51 that addresses the sexual assault changes to the law. In particular, one of the concerning elements for us is the change to the mistaken belief and consent defence. That effectively eliminates that defence by adding a provision to the legislation that requires an individual to actually have actual consent, either through actions or words. It has the effect of eliminating the defence of mistaken belief in consent, and a significant problem in our criminal justice system of essentially eliminating the mens rea component from any sexual assault case.
Now so long as the act was proven that somebody was essentially engaged in sex that they then say was non consensual, the burden shifts to the defence to show that there was actual consent, and they cant say I thought she was consenting unless they have proof that he or she was consenting to the act and that’s so significantly concerning, because it eliminates the ability of individuals who are actually innocent to raise their innocence and to raise that issue. And its also completely out of step with the realities of human sexual interaction, which are dynamic, which are not normal. You know, Most people when they are engaging in sexual situations are not saying, would you like to do this, yes I would, and then creating a record of that. And so it’s going to create practical hurdles for the defence that are going to be impossible to meet in the trial process.
My other main concern with this legislation is the manner in which it’s going to enhance trial delays. And in particular this is going to disproportionately affect small communities and circuit courts. Where these cases are often more troubling because they affect the community at large. Because of the way the application to introduce the records that the defence intends to rely upon have to be made, it requires the seizing of a judge, who then has to come back and hear the subsequent application after deciding the written application. And then because they hear factual issues, they may well become seized on the trial itself. And that’s going to lead to extreme problems for courthouses across this country, but most particularly in rural communities which are understaffed which have fewer judicial resources, which have fewer, sometimes only one judge.
It’s going to make it practically impossible for those cases to proceed in a timely fashion. It’s also going to detract form other cases that are taking place in those courthouses, whatever they may be, and it’s going to lead to delays in those cases because the judicial resources are going to be taken up by all these pretrial applications with a seized judge who’s now required to decide this particular issue.
So one amendment I would suggest if this if this portion of the bill is passed, is to allow those applications to be made before any judge, as opposed to the judge who decides the written application, shouldn’t necessarily be the judge who decides the in person hearing and shouldn’t necessarily have to be the trial judge. That will allow for easier scheduling particularly for communities which are affected by circuit courts, where you might not have a judge returning for another six or eight months and it then might not be the same judge.
04:13 – Sarah Leamon opening statement
As my colleague Ms. Lee has stated, the problems with this bill are numerous, and while we all accept the seriousness of sex assault and the effect it has on our communities, this bill relies on the mistaken assumption that amendments to the criminal code will somehow significantly solve the problem. It is misguided in that it seeks to solve a social problem that cannot be remedied through the criminal justice system alone. Not only will the rights of the accused person be unduly compromised but it will also in my view have some significant issues with respect to the rights of complainants and that’s particularly so for complainants of marginalized and disadvantaged backgrounds.
The amendment that seeks to allow a complainant to access counsel raises significant concerns in this regard. Without answers as to how such counsel will be provided for, access to counsel can be compromised when complainants do not have the monetary resources to secure such counsel. It has the effect of creating a two-tier system in essence, for sex assault cases. So complainants who can afford the services of a lawyer will receive the best representation. While those without it will be left in the cold. And that’s made all the more concerning by the fact that there is a relationship between sexual victimization and marginalization.
In my view, it’s also concerning when we consider that this exceptional measure is only extended to complainants in sex assault cases and not any others. If we consider for example the very complex and difficult circumstances that are often involved in domestic assault allegations, for instance, it makes no sense to me that the complainant in a domestic assault case, would not be afforded the same kind of resources as one that’s involved in a sex assault case, solely on the basis of those allegations. It again, has the effect of creating essentially a two-tier system within our criminal justice system.
There’s significant concerns as well about how public funding could potentially pay for access to counsel. If this going to be provided through the public purse, we already have very very serious concerns with legal aid. It is chronically underfunded, and without increasing funding to legal aid, I don’t see how it’s possible to fund further access to counsel for complainants in sex assault cases.
The practical result would be that if we don’t increase funding to legal aid first but provide public funding for counsel for complainants in sex assault cases, we could have an accused person who ends up either unrepresented or underrepresented, while the complainant is represented by their own counsel and also has Crown as well.
The complainants’ access to counsel is also further likely to contribute to delays. In my view, it will also frustrate the role of crown counsel when making their case. It could lead to an increase in stays, mistrials and delayed access to justice on a whole. In my view it is contrary to the objectives that are achieved in this bill. In my view, it would be amiss not to consider how restorative justice programs may better fit the needs of this community in terms of dealing with the very serious social problem of sex assault. And our brief does go through one of those programs, Restore, at length so I wont discuss that any further now due to the limited amount of time.
The eradication of these so called zombie laws, as well I’d like to touch on that very very quickly, in my view this is in line and consistent with modernizing our criminal code, with the principles of clarity and consistency, with respect to s. 176, you know, again this is something that is covered by more general application sections of the code and crimes motivated by religious intolerance will be treated as aggravated in any event. If this is to remain, then I would suggest that we do expand the wording to be more inclusive, and again to expand beyond clergyman and include any kind of religious leader and that is keeping in line of course, again with Canadian values of multiculturalism and inclusivity. Thank you.
Maybe I’ll direct it to you Mr. Spratt because you did raise it in your evidence, it’s your belief that the reverse disclosure requirements are unconstitutional. The government has said in their Charter statement that look, this is really no different than Mills, could you perhaps comment on that?
44:54 – Lee responds to Cooper
I think one concern that arises there too as expressed on the previous panel is this issue that the disclosure obligation is for a record that’s going to be related to any witness, which arguably includes the accused them-self. And when you read that in light of the amendment to the section on mistaken belief in consent, and take for example the example of a sex tape.
If somebody has a sex tape showing consent, showing active consent to the act that is alleged to be non consensual, they then have to disclose that and go through this whole application procedure even though it’s something in their possession that relates to them, that the accused would bring up as part of their testimony. And so, When you look at the interplay between these sections, it raises really significant problems, its very different from Mills. it’s very different than what was being contemplated, because it’s not as Mr. Spratt said, about looking for information, it’s now about a proactive obligation on the defence to disclose, what, in the example I provide, could be the very defence to the allegation.
If I could start with Acumen Law first. You’d indicated that, I can’t remember if it was you Ms. Leamon or you Ms. Lee who said that, this essentially would eliminate the mistaken belief in consent dealing with this bill. But as far as I understand it codifies Ewanchuk, which basically eliminates the mistaken belief in consent as far as a mistaken belief in the law. But not necessarily a mistaken belief in the facts, so that the facts would still allow somebody to raise a reasonable and honest belief in mistaken consent if the facts bore that out. But not so much as believing that for example the person consented even though she was unconscious, which Ewanchuk says is a mistake in law. So I’d like your comment on that please.
47:01 – Lee responds to Fraser
I think that this is very different than Ewanchuk, because it relies on an absence of evidence of actual consent. The way the wording is provided where there is no evidence of actual consent either with words or by actions on the part of the person who would be giving the consent. To rely on the absence of evidence is supportive of the fact that consent wasn’t obtained as preventative of arguing the issue of mistaken belief in consent, puts an impossible hurdle on the defence in these types of situations. Because it’s watering it down to an issue of just the facts.
If the facts aren’t even disclosed by the complainant who, while the crown has a proactive obligation to disclose all the evidence in their possession, the complainant doesn’t. We saw this in Ghomeshi, we see this in cases all the time, where there’s information that the complainants don’t review to the Crown that comes up in the course of trial.
And if you say can you can rely on no evidence to substantiate essentially a conviction, then you’re allowing complainants to getaway with not disclosing things that might undermine the validity of their complaint. And hamstringing the crown into a position of not being able to disclose a case, because there’s no obligation of the complainant to disclose it to the crown, to then disclose it to the defence. I think the way it’s worded, and perhaps it’s an issue of tweaking the wording, the way it’s worded makes it an issue about the factual circumstances and not the legal circumstances
You know that Bill C-51 seeks to remove unconstitutional provisions from the Criminal Code, do you believe, and I’ll start maybe with Mr. Spratt, do you believe it goes far enough, and I know there was no mention of removing minimum sentence provisions. Could you please speak further to that?
54:53 – Leamon responds to Johns
I would echo what Mr. Spratt has said here. Again if the purpose of this bill is to provide consistency and clarity with respect to our criminal law, and ensure that it is being applied in a consistent manner throughout jurisdiction to jurisdiction, then certainly we would want to see those portions of the code removed. There’s no reason not to remove them.
55:15 – Lee responds to Johns
Well from the practical perspective of being a defence lawyer and advising your client. You know if you have a case that comes to you of something that you’re not super familiar with, and you go resort to the criminal code to try and give an answer really quickly to somebody saying, what am I looking at here? If you’re not up to date on whats been declared unconstitutional in every single section of the code, and the code is not being cleaned up to keep in line with what the Supreme Court has ruled, then we’re going to run into situations where bad legal advice is given to people, and then they make decisions about how to conduct their trials or who to hire as their lawyers based on that bad legal advice, because it’s not up to date.
And I’ve encountered situations, I’ve seen them happen in court where people are given illegal sentences over prosecutors who aren’t aware of findings of unconstitutionality, or the elimination of certain sentencing provisions, take a position on sentencing that then leads to a trial taking longer, or leads to a plea being entered, god forbid, in circumstances where perhaps the resolution agreed to between crown and defence isn’t any longer available. And if the code is not being amended to keep up with that, then you are going to have people getting advice that isn’t going to be the correct advice. Because, no one defence lawyer can memorize every single section of the code and follow every single case that comes out and know what’s unconstitutional, it’s impossible for us. I swear.
I guess my other questions relate to the provision of the right to counsel for complainant. And this pertained I believe only in relation to the hearings to the evidence, and several of you expressed concerns that this puts a burden on the complainant. I don’t see that. I think that it, right now, there is no right to be represented in this body, or in these hearings, but having the right is not the same as having the obligation to do so. Will you like to, Ms. Leamon, I think?
01:03:20 – Leamon responds to McKinnon
I can tell you that in addition o my role as a criminal defence lawyer I also work extensively in Vancouver’s Downtown Eastside with marginalized communities in the non profit sector. And so I have a very close dealing with many individuals who are highly marginalized.
And it makes me uncomfortable not only as a lawyer but as a Canadian citizen and as a human, to think about this two-tier system where a complainant who is privileged and has a good income, has support perhaps or his or her family and has all the advantages in life, in order to go and hire a lawyer and they can access counsel and they can receive legal advice and get better representation, and that’s wonderful. But when you put that into the reality of the world, we have marginalized people, again, who fall disproportionately to sex assaults. And the mere perception that they aren’t going to access the same kind of representation in the judicial system, let alone the practical reality of it, in my view, is enough to deter them from even coming forward. Let alone their experience with the system itself, feeling further disenfranchised, further marginalized.
So yes, it is an option but it’s an option that has to be accessible to everybody. Every complainant. And again, practically speaking, I don’t see how we can use the public purse in order to adequately fund that when we’re seeing legal aid programs being so underfunded. So I just have a lot o problems with how that’s going to be implemented and a lot of concerns about how people who are less advantaged will experience the system.
01:05:12 – Question from McKinnon
I think we have a chicken and egg problem here. It’s that I cant see legal aid being expanded to support this kind of activity if there’s no right to such counsel, right? It’s kind of the question of do you create the right and bring along, bring legal aid on board as the different provinces upgrade their legal aid, or basically the legal aid is not going to respond unless there’s a need for it, right?
01:05:43 – Leamon responds to McKinnon
Yes, so again, even if we can find the public funds to do it, I still feel that there would be a two tier-system essentially in place. So we have these marginalized people who are now accessing legal aid lawyers, and legal aid lawyers are, as we know unfortunately, very very overworked. So then we have more privileged complainants who are able to go in and access their own private counsel. Again, this is going to be a situation where there’s a two-tiered system, we’re essentially allowing marginalized people to again be further marginalized.
So there’s serious, serious problems about the optics of that and also how it’s going to play out in terms of people’s experience of the justice system. If we’re looking to support complainants, and help complainants, in terms of feeling as though they are having better access to justice. This isn’t the way to do it, Crown counsel is there to assist them, and Crown counsel should have, again, better training. I believe Ms. Savard brought that up earlier, this is something that can be properly addressed, and properly dealt with through Crown counsel and creating a right for a third party lawyer not only frustrates the system and frustrates the role of Crown, but also creates a system where we have again, a two-tier system.
With respect to judicial training in this area, that you probably are aware, Rona Ambrose has a private member’s bill that was passed by the House of Commons, apparently it was held up in the senate, but it directly focused on the whole question of judicial training. Ms. Leamon and Mr. Spratt, both of you made a point that s. 176 is basically not necessary.
You said, Ms. Leamon that there are more general sections that perhaps could be used, Mr. Spratt you said there are public disturbance sections. I mean, first of all, just earlier this year six blocks from here, a woman was charged under this section here for what took place in a church. And in as much as people’s religious rights are a fundamental, one of the fundamental freedoms of this country, is it so unreasonable, or so unnecessary to have a specific section of the criminal code that protects religious services? There are many people who maybe are not a part of any religion but probably would agree that disturbing a religious service is more serious than causing a commotion, say at an arena or at a meeting somewhere else, what do you think?
01:09:16 – Leamon responds to Nicholson
I agree with Mr. Spratt’s submissions on that point but also if this 176 is to remain, I would encourage it to be amended to be more inclusive, so to remove that language of clergyman, and use better language.
Just a quick point, just to go back a moment ago Ms. Leamon to your exchange with Mr. McKinnon. I mean, we rely on, I take your point, but we rely on legal aid to represent criminal defendants, often times in cases such as this. So I don’t think it’s fair to say it would create a two-tier system where if a legal aid lawyer was representing a complainant in this case that that would be somehow completely unfair and an affront to our way of thinking, in fairness, when many times accused are represented by lawyers who work for legal aid. I just wanted your comment on that, because I do think it’s important to recognize the important work that legal aid performs in our country, and I take your point on the issue of resources but I don’t think it’s fair to say that it would be a two-tier system and indicate that they would be receiving a lessor service when we rely on accused people being represented by these people all the time, when they have their liberty at stake.
01:10:49 – Leamon responds to Fraser
Absolutely, I agree with you and I do take your point on that, and it’s certainly, my comments are not meant to undermine the hard work that legal aid lawyers do every single day. So I certainly don’t want to be misconstrued for that point.
But an accused person is up against the criminal justice system, they are up against serious allegations and when it comes to sex assault, those are some of the most stigmatizing allegations that are possible to be brought forward. Forecloses numerous opportunities for them. Sometimes just being accused, let alone convicted. So the need for representation when one is accused of a criminal offence, is paramount. When it comes to a complainant, however, this endeavour to allow complainants to be now represented by counsel is exceptional. It’s never happened in criminal law in this country before.
So again, I have concerns about extending already underfunded services and legal aid to complainants as well. Complainants have the assistance of Crown counsel. They have the assistance of victim services. So in my view, there is no reason to further complicate the process and have them be further represented by counsel. Again, I made the point earlier and I’d like to reiterate it, as to why this is being extended to only for complainants in sex assault cases. I think that not extending it for complainants in other cases where there are interpersonal relationships and very complex dynamics, for instance in spousal assault situations, marginalizes people who experience that violence. It trivializes people who experience that violence because there’s no sexual component in it. Which I think is unfair.
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