[Recorded by Electronic Apparatus]
Wednesday, April 9, 1997
.1622 
[English]
The Chair (Ms Shaughnessy Cohen (Windsor - St. Clair, Lib.)): Order, please.
We have just a few clauses, so we should be able to get through this very quickly. But we have a lot of amendments.
Let's start with clause 1, BQ-1.
[Translation]
Mrs. Gagnon.
Mrs. Christiane Gagnon (Québec, B.Q.): The purpose of the first amendment is to include the preamble in the text of the Act. Is that the first amendment we are moving? It's the one I have.
Ms Paddy Torsney (Burlington, Lib.): Yes.
Mrs. Christiane Gagnon: Good. We know that several groups like the Regroupement québécois des centres d'aide et de lutte contre les agressions à caractère sexuel, the Ontario Action against violence against women, the Fonds d'action et d'éducation juridique des femmes and METRACT have asked us to include the preamble in clause 1. This was the wish they expressed. Most of the groups who appeared before us ask of that the preamble to be an integral part of the Act so that the Act could be more widely interpreted and its spirit would be clearly conveyed.
[English]
The Chair: Thank you.
Ms Torsney, do you want to speak to this?
Ms Paddy Torsney: Yes. I too was thinking about moving an amendment on this very same point. I understand from previous bills we have done that it does make the Criminal Code a bit messy. I know there's been a review of the code and how best to write the laws. Later I will have an amendment for a review, and I hope colleagues will support it.
.1625
If there's a problem and if it's needed, it might be more appropriate that we do it at that time, but right now it's probably more appropriate that, having heard their desires, we monitor the situation and respect the fact that we have had a number of bills where it's a problem. It could get a bit messy if we always codify the preamble.
So I support the spirit; I appreciate the technical problems.
[Translation]
Mrs. Christiane Gagnon: I'd also like to add that we did include a preamble in the Young Offenders Act. I think it would be necessary to set out the orientation. It's often mentioned that judges have prejudices and this would be a good opportunity to set out clearly the spirit of the legislation. It was done in the case of the young offenders. It is in a similar spirit that I'm advocating the adoption of this amendment.
[English]
The Chair: Thank you.
Are there any comments?
Do you want a roll call?
Mrs. Christiane Gagnon: Oui.
Amendment negatived: nays 7; yeas 1
The Chair: We now have amendment BQ-1.1.
Madam Gagnon, you're going to be doing a lot of talking today.
Mrs. Christiane Gagnon: Yes.
The Chair: That's okay.
[Translation]
Mrs. Christiane Gagnon: It would be to eliminate personal journals and diaries from the definition of ``record''. This was also requested by a number of the groups that appeared.
A personal diary is not a document that can be used as evidence for the defence. Since we did express the wish that it be removed from the definition and I was told that a personal diary is not a document that could be adduced as evidence... That was somewhat misleading, Mr. Roy, because that's what you told me during your testimony here. Those who are involved in this area requested that requiring the production of evidence, a personal diary not be allowed.
[English]
The Chair: Thank you.
Do you want to comment on that, Mr. Roy?
[Translation]
Mr. Yvon Roy (Department of Justice): Perhaps, Madam Chair.
I understand the definition of the term ``record'' in clause 278.1 as a very wide definition aimed at providing better protection of the records compiled within the context of the offences dealt with here, that is basically offences of a sexual nature. By withdrawing personal diaries from this list, you would no longer be providing any type of protection for these records.
If at one point these records were required for presentation in court under a subpoena duces tecum, then arguments would have to be made to the judge to demonstrate that the required document is of no material relevance to the debate without reference to any protection either procedural or other provided for in the Act.
With all due respect for the proposal being made, I think that women would be better protected if personal diaries were retained in this list rather than withdrawn. At least these criteria would have to be taken into account.
It's quite possible that the judge would eventually conclude that it is not admissible but it would require a thorough analysis. I think that this a better protection for women than anything else. With all due respect, Mrs. Gagnon, I think it is preferable to retain personal diaries in the definition.
Mrs. Christiane Gagnon: I'll defer to your argument.
[English]
The Chair: Thank you, Mr. Roy.
Are there any other comments?
.1630
Would you prefer to withdraw it, or do you want to vote on it?
[Translation]
Mrs. Christiane Gagnon: Yes, I'll withdraw it.
[English]
The Chair: Okay, BQ-1.1 is withdrawn.
Who will speak to G-1?
Ms Paddy Torsney: I will. I will move this motion. I would prefer if the wise counsel from the department could give us a few comments on it, because it was an important point.
Ms Catherine Kane (Department of Justice): I'd be happy to explain why we've included this amendment. This addition is in the section that clarifies that records in the possession of a prosecutor are also subject to the same protections as records in the hands of a third party.
When we did extensive consultations with provincial crowns, they were certainly of the view that it was their obligation, in any event, to at least advise the accused that they had those records in their possession, but they wouldn't be disclosing the nature of their contents. The accused would then bring the application in accordance with the provisions of this bill, but the prosecutor would, at minimum, say ``I have certain records in my possession''. He or she wouldn't disclose them, however.
We thought it wise to make it very clear in the legislation that this was the prosecutor's obligation, and in this way the defence bar raised this concern. It also suggested that the crown would be hiding records. We know that the crown will never do that, because it is bound by the charter, but setting this provision out in the legislation makes it very clear what the obligation on the crown is, in that probably rare situation where third party records come into its possession.
The Chair: Thank you. Are there any other comments on that?
[Translation]
Mrs. Christiane Gagnon: I simply wanted a clarification. Is the prosecutor the Crown attorney?
[English]
The Chair: The crown.
[Translation]
Mrs. Christiane Gagnon: I'd like to have some information. Is this in keeping with the wish of all the parties involved? Is that why you decided to include it in the bill?
Mr. Roy: As my colleague, Ms Kane, said, there is an obligation on the part of the Crown attorney under a number of authorities, the most important being the Stinchcombe decision, to make full disclosure to the accused. The bill as it stands requires that even documents held by the Crown not be considered as subject to this full disclosure.
To retain a balance between the constitutional obligation under Stinchcombe and the need to provide protection to the women, it was deemed appropriate to indicate specifically in the bill that the Crown must at least inform the accused that it does have such records without disclosing them. This was considered necessary for the sake of transparency both by Crown and defence attorneys.
In any event, this obligation would exist under the law as it stands. It is simply a matter of clarifying things and including it in the bill so that the obligations of all parties are clearly known by everyone.
That is the only reason for this amendment.
[English]
Amendment agreed to [See Minutes of Proceedings]
The Chair: BQ-1.1A is in package 3.
[Translation]
Mrs. Christiane Gagnon: It's a matter of replacing the criterion of ``likely relevant'' by ``probable need'', isn't it?
[English]
The Chair: Does everybody have it now?
[Translation]
Mrs. Christiane Gagnon: We withdrew it. I'm withdrawing that amendment. That was my intention.
[English]
The Chair: All right. BQ-1.1A is withdrawn. Now you don't need it. Maybe it's better if it's just not presented.
[Translation]
Mrs. Christiane Gagnon: Yes.
.1635
[English]
The Chair: Okay, BQ-1.1A is not presented.
BQ-1.1.2 is in package two. There are two from column A and two from column B.
[Translation]
Mrs. Christiane Gagnon: It's on page 4 of the French version, the grounds given by the accused to demonstrate that the record is ``likely relevant''. We propose, for the sake of clarity and better understanding, that the record by described as ``likely necessary'' rather than ``likely relevant''.
It seems to me that it has a far more positive connotation when it is described as ``likely necessary'' rather than ``likely relevant''. A record described as ``likely relevant'' seems to indicate there is some doubt whereas when it is described as ``likely necessary'' that is far more positive.
Do you not share this opinion? It's on page 4 line 12.
[English]
Mr. Roy: Madam Chairperson, I'm trying to locate the actual motion. I thought we were doing BQ-1.1.2.
The Chair: Yes, we are. I think BQ-1.1.2 is on page 1 of package II, using the words
- (b) a detailed and explicit presentation of the grounds on which the accused relies
- That's where we should be right now.
Mrs. Christiane Gagnon: We withdrew that one.
[English]
The Chair: That was BQ-1.1A.
[Translation]
Mrs. Christiane Gagnon: It was removed. It's the one we just discussed. It's the one that we've just withdrawn.
[English]
The Chair: Thank you.
[Translation]
Mrs. Christiane Gagnon: Yes, it is ``detailed and explicit''.
[English]
The Chair: Okay, let's go back a minute. We thought the one that was withdrawn was BQ-1.1A:
- (1.1) For the purposes of subsection (1), ``accused'' includes the person accused of an offence
referred to
[Translation]
Mrs. Christiane Gagnon: I don't work the same way.
[English]
The Chair: Madame Gagnon, shall we just pause for a minute and let you pull it together?
[Translation]
Mrs. Christiane Gagnon: Let me present all of this...
[English]
The Chair: Okay, let's just ride it for two minutes while we get this organized.
.1637
.1639
The Chair: All set? We're back on the record.
[Translation]
Mrs. Christiane Gagnon: I'd like to move that on the adoption of this bill, a retroactivity clause apply to cases that are pending.
[English]
The Chair: Which amendment are we on? Is BQ-1.1A still on then?
[Translation]
Mrs. Christiane Gagnon: Yes.
.1640
[English]
The Chair: We are on amendment 1.1.A, then. Amendment 1.1.A has not been presented. Do you now present 1.1.A?
[Translation]
Mrs. Christiane Gagnon: BQ-1.1A, that's correct.
[English]
The Chair: Would you like to speak to that?
[Translation]
Mrs. Christiane Gagnon: I said that we were moving that on the adoption of the bill, it apply to all cases now before the court.
[English]
The Chair: Mr. Roy.
[Translation]
Mr. Roy: Madam Chair, you and your colleagues will note that the proposed clause 278.2 contains a list of records covered by the bill. This list implies that charges laid under such legislation are covered under the procedure referred to. What we attempted to do in this list is to refer to offences committed in the past.
As everyone knows, when the offence was committed 30 years ago, for example, then a charge of rape must be laid because the present offence of sexual assault did not exist at the time. The purpose of clause 278.2 is to cover all the offences recognized today but such as they were described at the time they were committed.
So the proposal you are making, Mrs. Gagnon, is already completely covered in proposed section 278.2.
Let me simply add that in matters of procedure, the rule that applies is the common law rule under which the procedure applicable at the time the offence was prosecuted applies to the offence, whether it is a new procedure or not. So in the circumstances, your proposal is covered both by a clause in the bill and a rule of common law.
I do not think that your proposal is necessary to obtain the desired coverage. As a matter of fact, it would amount to duplication and it might raise some questions on the part of the judge about why this was added to the rest. It could give rise to interpretations that might be difficult to follow.
My opinion is that the wording of the bill covers the situation.
[English]
The Chair: Did you have a comment?
Mrs. Diane Ablonczy (Calgary North, Ref.): I just wonder whether, if she accepts the explanation, the amendment would be withdrawn.
The Chair: Do you accept that explanation, Madam Gagnon? So BQ1.1.A can be withdrawn.
[Translation]
Mrs. Christiane Gagnon: Yes.
[English]
The Chair: BQ1.1.A is withdrawn. Now we're at package two, BQ1.1.2.
Do you have some comments?
[Translation]
Mrs. Christiane Gagnon: Yes. The purpose of the amendment is to ensure that all the grounds presented by the accused are serious. So a detailed explanation is required. It is to ensure that these are serious grounds and not frivolous or irrelevant.
The Chairman: Mr. Roy.
.1645
Mr. Roy: Madam Chair, in dealing with this matter, we are venturing on what I would describe as rather slippery ground. The Supreme Court of Canada set out a number of parameters in the O'Connor ruling and later on, to some extent, in the Carosella decision, both of which have been studied by your committee in great detail. As I understand BQ amendment 1.1.2, the accused is required to provide more information about the reasons for his desire to obtain a particular piece of information.
In our opinion, this bill already gives a definite preference to the victim. A problem does arise, namely that the defence in a criminal case is never required to disclose ahead of time the defence it intends to present. By requiring the defence to give a detailed and explicit explanation of its reasons, it could say a certain constraint is being imposed on it, preventing it from presenting its defence as it wishes.
I personally am sensitive to the concern raised here but I am afraid that the balance and the interests of the two parties, which the minister has attempted to respect, may not be preserved. This gives rise to a strong likelihood of constitutional problems which would not occur with the present wording of the provision.
I think it would be better for us to stick with the text we now have. We think it is sufficiently well-balanced to withstand the constitutional attacks that will inevitably take place. We must expect them. Requiring the accused to unburden himself by providing detailed and explicit explanations would, I fear, have constitutional implications and could disturb the delicate balance achieved by the minister in this bill. Madam Chair, let me simply say that I would have some apprehensions.
[English]
The Chair: Thank you.
Are there any other comments? Shall amendment BQ-1.1.2 pass?
[Translation]
Mrs. Christiane Gagnon: I vote for the amendment.
[English]
Amendment negatived [See Minutes of Proceedings]
The Chair: As for BQ-1.1.3 and BQ-2, I'm afraid we're going to have to make a choice, because one is included in the other. We can only proceed with one of those two. BQ-1.1.3 contains BQ-2.
[Translation]
Mrs. Christiane Gagnon: It's probably necessary to change subparagraph 278.3(3)b) on page 4:
b) the grounds on which the accused relied to establish that the record is likely relevant...
My amendment is ``likely necessary'', it strikes me as being much stronger than the term ``likely relevant''.
[English]
Mrs. Diane Ablonczy: Which one are we dealing with?
The Chair: We're going very quickly and we're testing the mettle of our interpreters.
We are dealing with two amendments. The chair is ruling that BQ-2 is contained within BQ-1.1.3, so I'm asking Madam Gagnon to choose one or the other. We can't do both.
.1650
[Translation]
Mrs. Christiane Gagnon: It is in the same amendment. First of all, in clause 1, line 16, page 4, we want to remove the words ``are not sufficient on their own''. Since this applies to the same line, we could incorporate the second amendment which says...
Can you find it? It is complicated.
[English]
The Chair: From what I understand, you will not present BQ-2 but you will be presenting BQ-1.1.3, but it will be amended as follows:
- (4) Any one or more of the following assertions by the accused are not sufficient to establish that
the record is essential to the accused's right to make a full answer and defence:
[Translation]
in French, ``en soi''.
Mrs. Christiane Gagnon: Yes, that's it.
[English]
The Chair: All right. Is that looking clear then?
[Translation]
Mrs. Christiane Gagnon: It's fine.
[English]
The Chair: Would you like to speak to that?
[Translation]
Mrs. Christiane Gagnon: I think the term ``on their own'' has a pejorative connotation. I think it is redundant. ``Are not sufficient'', period. It seems to me that if you want to change the part...
Mr. Roy: Madam Chair, there are obviously two facets to this amendment. What I said earlier about the previous motion also applies to these, namely ``essential to the accused's rights to make a full answer and defence''.
That is of a much higher level than what is being suggested, and I do think it would probably be considered unconstitutional in accordance with the rulings in the O'Connor and Carosella cases. The terms ``essential to the accused's rights to make a full answer and defence'' set a very high threshold.
The second part of this proposal is to remove the words ``on their own'' from the English version and ``en soi'' from the French version. Those terms were included in subsection 4 or this clause to make it very clear that it is not enough just to say something on their own or to make a statement on their own.
.1655
It was to make it clearer that a simple allegation would not be enough to get access to those documents. That is why those words were introduced. Proponents of better protection of women's rights may want to keep those two words in the French version and those three words in the English version to make the matter even clearer, which is the purpose of this exercise.
[English]
The Chair: Are there any other comments?
I see we have a vote starting.
[Translation]
Mrs. Christiane Gagnon: I just wanted to say that the group representing sexual assault centres had also made that suggestion. It is a fairly large group that defends and helps victims. We asked them for their opinion so that we could clarify an accused's obligation to seriously change his request. That was the spirit in which the request was made.
Mr. Roy: If there isn't a clearer definition of the words ``are not sufficient'', as was suggested by you or by the group, you leave things open. Since your previous motion was not adopted, I wonder whether it wouldn't be best to keep the words ``on their own'', which are there to clearly indicate that an allegation is not enough. It is to make it even clearer that you cannot just make allegations. Those words were added to help women, who will get better protection because of them. That is why they were included.
There seems to be some confusion about those words, but at the end of the day, I think they will come in handy for future interpretations.
Mrs. Christiane Gagnon: There is also a problem with translation. ``En soi'' and on their own do not have the same connotation.
Mr. Roy: I will not speak on behalf of linguists. They told us they were equivalent and I rely on their expertise.
Mrs. Christiane Gagnon: Can we vote on my amendment? I will not withdraw it.
[English]
The Chair: All right. Then we're voting on BQ-1.1.3.
Madam Gagnon, are you - ?
[Translation]
Mrs. Christiane Gagnon: Necessarily.
[English]
Some hon. members: Oh, oh!
Amendment negatived
The Chair: Those bells were a quorum call, by the way, not a vote.
The next is BQ-2.1, which is in package two.
Madam Gagnon, would you address this?
[Translation]
Mrs. Christiane Gagnon: It's a matter of changing the words ``probably relevant'' with the words ``probably necessary''. Isn't that right? Oh, yes.
[English]
The Chair: It's BQ-2.1 in package two, on clause 1, page 4.
[Translation]
Mrs. Christiane Gagnon: That's right, yes, Do you have it?
[English]
Mr. Roy: Madam Chairperson, if I'm not mistaken - and I may be mistaken - this proposal, BQ-2.1, looks very much like one of the government proposals under G-2.
The Chair: Thank you.
Mr. Roy: So perhaps they can be discussed at the same time. We're talking here about the temporal link between the record being made and the offence, and I think that's whatMadam Gagnon is after with her proposal.
.1700
The Chair: Madame Gagnon, then, moves BQ-2.1 and Ms Torsney is going to move G-2.
Did you want to speak to this, or do you want to defer to -
[Translation]
Mrs. Christiane Gagnon: Let's assume it's so that no connection is made between a complaint filed by a client who goes to consult him. There may be a concern that because she went for a consultation, it might have been suggested that she suffered...
Mr. Roy: Madam Chair, unless I am mistaken, Mrs. Gagnon is suggesting adding a paragraph c.1) to what would become subsection 278.3(4) of the Criminal Code. Ms Torsney's suggestion is to add a paragraph (k) to that same subsection to do the exact same thing. The idea is that someone could claim that the temporal connection between the creation of the record and the offence committed is not enough to provide access to that file. The government proposal is quite similar. Perhaps we should deal with them at the same time. You will understand that the government's proposal seems more appropriate, but it is...
Mrs. Christiane Gagnon: On the contrary, I think our wording is much more precise.
[English]
The Chair: Let's do it this way: we can vote on BQ-2.1 first because it was presented first and then we'll vote on G-2. How's that?
All those in favour of BQ-2.1, please.
Amendment negatived [See Minutes of Proceedings]
The Chair: All those in favour of amendment G-2, please.
Amendment agreed to [See Minutes of Proceedings]
The Chair: Now we come to amendment BQ-2.2, which I think is found in packet two at page 4.
[Translation]
Mrs. Gagnon.
Mrs. Christiane Gagnon: The purpose of this amendment is to ensure the plaintiff or document holder does not have to appear and risk being intimidated. It is also to ensure the judge is not tempted to look at the documents, if they are already in court. That point was raised by a number of groups who appeared before us. It is to avoid any intimidation.
[English]
Ms Kane: I appreciate that many of the witnesses who appeared before the committee commented on the fact that they didn't think the record holder should have to come to court to bring all the records and be taken away from their day-to-day duties. But when we were developing the legislation and considering options, we did consider whether we could avoid the use of the subpoena as the mechanism to bring the person and the records to court, and from a criminal procedure point of view, it wasn't deemed to be advisable.
The subpoena is a well-known tool to bring a person to court, and in Bill C-46 we have relied on the tried and true subpoena process and the subpoena duces tecum, which is the subpoena that tells a person to please bring material to court. But we've added a new form of subpoena that will be used in sexual offence proceedings and we've made it clear. We've included a lot of information in the subpoena for the person who gets it. It tells the person what his rights and obligations are. And you will discover that there is a government motion to add yet another paragraph to that subpoena form to advise that person that he doesn't have to bring all the records with him until the judge determines which records and how many or what parts of the records should be produced.
.1705
However, we can't go so far as to excuse the person who holds the records from coming to court, because the requirement is that the accused seeks the subpoena to bring the person to court; they don't seek the subpoena to bring the records on their own to court. A person must accompany the records to give context to the records or to even answer as to whether those records in fact exist.
And if we abandoned the subpoena, we would be putting a procedure in the Criminal Code that permits the court to compel the production of records on its own without using the subpoena to say that a person must give life to those records. This is an issue that we've explored very carefully in our consultations with crown attorneys, provincial officials, and those tasked with the administration of justice. And they have strongly said ``Please retain the subpoena.''
There are also other disadvantages of doing away with the subpoena. It would set up two parallel procedures on an application: the ability for the judge to determine production and then say a subpoena should issue, while at the same time the defence bar could just go and issue a regular subpoena to get that witness to court without their records. That wouldn't accomplish anything.
We've married the two together to say that if you want the records you subpoena the person and ask them to bring the application for production of records so that the defence won't be able to do an end run, so to speak, around the procedure by having the witness in court and then bringing the application for the records. The two go hand in hand. We very carefully considered the implications of that procedure and deem it to be advisable to retain the subpoena.
The Chair: Thank you.
Those in favour of BQ-2.2, please.
[Translation]
Mrs. Christiane Gagnon: It will be debated in any case, but we would have liked the witnesses to have one less hurdle, to have them appear when everything is ready and not before the grounds are recognized as valid.
That is what was strongly recommended to us by several large victims' rights groups. We are echoing the views of various witnesses who suggested improvements to this bill.
I see you do not quite agree, but you are the government.
[English]
The Chair: Okay. Ms Torsney.
Ms Paddy Torsney: I just want to note that I was concerned about this subpoena process as well. I think the specific example given to us was that in one case all the workers in a rape crisis centre had been subpoenaed and all had to spend a day in court, so of course the services of the centre weren't available. But I'm sure that there is another way to have them answer the call of whether or not they have to be there. And I'm not sure, in fact, in thinking about the case - and maybe you might want to comment - maybe they were actually there to give testimony and it wasn't just about the records.
And maybe this is another thing: if there is such an abuse of the system and these kinds of things really are happening and they really are closing down centres because everybody has been subpoenaed, then again that's something - assuming we get an amendment later - for which there could be a five-year review. That's something we could also monitor and keep an eye on. It was a real shame in those cases where the centres were in fact closed down and they couldn't service any more needy people.
Ms Kane: That's exactly the concern that we understand your amendment seeks to address. But you're quite right: often those witnesses need to appear to give viva voce evidence anyway, regardless of whether they in fact have records the accused might want.
Another thing I'd like to point out is that the goal of this legislation is to discourage a lot of unnecessary or frivolous requests for records, and we're quite confident it will do that. In so doing, hopefully that type of request where everyone in the sexual assault centre is subpoenaed will not occur in the future. But a review in due course will certainly establish whether that is the case.
Amendment negatived [See Minutes of Proceedings]
.1710
The Chair: Next we have sort of a set here, G-3 and BQ-2.3. If amendment G-3 is adopted, then amendment BQ-2.3 cannot be put. So I'm going to suggest that we start with amendment G-3. Who will propose that?
Ms Paddy Torsney: I'll move the motion.
The Chair: Thank you, Ms Torsney. Do you want to speak to it, or will we ask counsel to?Ms Kane.
Ms Kane: This is a fairly minor amendment to clarify that when you're looking at what the whole test is for production, when the judge is determining whether he should order production to himself for review, the judge must be satisfied that production of the record is necessary in the interests of justice. This makes it clear that the judge doesn't just have to concern himself with being satisfied that the application was made according to the proper procedure or that the accused has established that the record is likely relevant. It's a bit broader than that.
In the next subsection of the legislation we require the judge, in making the determination, to consider a wide range of factors and the competing charter rights of complainants and the accused. When we took a closer look at how those two sections meshed, to properly interpret it it seemed that we needed to expand on the test to clarify that the judge is exercising a discretion when he's deciding whether to determine production. Asking that the judge consider whether it's necessary in the interests of justice clarifies that indeed he is exercising a discretion.
The bottom line is whether production is necessary in the interests of justice, as well as whether these records are likely relevant and whether your application has been properly made. We don't regard it as significantly changing the test for production, but rather ensuring that the factors are considered as part of the whole determination process.
The Chair: Thank you, Ms Kane.
Mrs. Ablonczy.
Mrs. Diane Ablonczy: Wouldn't it be evident that if an accused is asking for the production of records, it would be in the interests of justice? What other reason could there be?
Ms Kane: Of course they will always assert that they need them because they're necessary in the interests of justice, but the whole goal of the bill is to put an onus on the accused to specify how they think those records are going to be likely relevant and necessary in the interests of justice. The interests of justice include not only the interests of the accused but the interests of the complainant and other witnesses, and generally the interests of getting at the truth of the matter. It clarifies that the judge has a discretion to determine what is necessary broadly, in the interests of justice.
The Chair: All those in favour of amendment G-3.
[Translation]
Mrs. Christiane Gagnon: I agree, but I will be able to speak to mine afterwards, right? We said that if this one was accepted, then mine would be redundant. But I think it adds to it.
[English]
The Chair: Sure you can speak about it, but let's get G-3 out of the way.
Amendment agreed to [See Minutes of Proceedings]
The Chair: Now, you wanted to make a comment with respect to amendment BQ-2.3, Madame Gagnon?
[Translation]
Mrs. Christiane Gagnon: Yes. I think the words ``essential to the accused's right to make a full answer and defence'' should be added to your suggestion, that is ``handing over the file is in the interests of justice''.
Your amendment does not make mine pointless. Mine further stipulates that it is essential to the accused's right to make a full answer and defence.
I would like you to tell me why you say that if you add your amendment, mine seems less relevant.
[English]
The Chair: I don't know that they do, but do you want to speak to that, Mr. Roy?
[Translation]
Mr. Roy: I think the comment made by the Chair relates to procedural problems that might cause.
However, Mrs. Gagnon, when reading your amendment, I noticed that you basically change the wording required for a judge to seize documents and that he can assess the value of those documents for a full answer and defence.
My earlier comments which, by the way, referred to some of your motions, were to show that this particular text shows that there is already a very fine balance. When you say that it is essential for a full answer and defence, you are setting the threshold even higher for the defence.
.1715
In my humble opinion, if you make it that difficult, the bill may become unconstitutional because of the rulings made in the O'Connor and Carosella cases.
I feel I must say that because I think it is the constitutional state. You are running a great risk of making the bill unconstitutional and I therefore cannot advise you to accept such a motion.
I think it is best to leave the text as is. The threshold is much lower, I agree, but it is probably much safer from a constitutional perspective.
Mrs. Christiane Gagnon: Even if it were a mistake, I think I would take the risk anyway to defend the victims, most of whom are women.
[English]
The Chair: Do you want to go ahead with your points here, or do you withdraw it?
[Translation]
Mrs. Christiane Gagnon: I am keeping it.
[English]
Amendment negatived [See Minutes of Proceedings]
The Chair: Is this the 15-minute bell? I think it must be.
Mrs. Ablonczy.
Mrs. Ablonczy: Madam Chair, with your indulgence, I know we've passed amendment C-3.3, but it just troubles me. It seems to me that it does ask the judge to make a prejudgment on the scope of the case. Maybe I can talk to you later about it, but I just want to point out that I'm not quite sure that adds a very wise balance. If you're saying this has to serve the interests of justice in the broader sense, how is a judge supposed to know before he's even heard the case?
Ms Kane: The point I was making with adding the third item or third consideration that production is necessary in the interests of justice is that it's just rounding out the test a bit. This way when the section is read as a whole it's not just regarded that all the judge needs to be satisfied of is that the application was procedurally made properly - the right application was submitted - and that the records are likely relevant.
If you read the opening paragraph, it's clear that the judge is exercising a discretion. He may well be satisfied that the record is likely relevant, and that doesn't have any bearing on his consideration of the factors. By requiring the judge to consider whether it's necessary in the interests of justice, it better incorporates the consideration of all the factors that we've asked the judge to use to guide his exercise of discretion. It's not asking him to speculate any more than the two other branches of the tests already do.
Mrs. Ablonczy: I'm sorry; I know this is out of order. It just seemed to me that if it's relevant, surely it has something to do with the justice of the matter. I do think it's an important point and I am concerned about it.
The Chair: Thank you, Mrs. Ablonczy.
We have about 11 minutes left on this bell, so we're going to have to go. I'm proposing that we come back tomorrow at 10 a.m. to conclude this.
We're adjourned till 10 a.m. tomorrow. Thank you.