[Recorded by Electronic Apparatus]
Tuesday, October 1, 1996
.1103 
[English]
The Chair: Order.
I want to welcome our former colleague, our promoted colleague, Madame Venne.
You have Bill C-217 and we're happy to hear from you.
[Translation]
Ms Pierrette Venne (Saint-Hubert): Thank you, Madam Chairman. I'm very pleased to be back with the Justice Committee.
At second reading of Bill C-217 in the House of Commons, I explained why we had to protect people testifying in criminal proceedings in cases involving a sexual offence, or those in which there is an allegation that violence was used, attempted or threatened.
I refer to the Fabrikant and Ferreira cases in this regard. I won't go over the facts of these cases, except to point out that in both, the accused defended themselves without counsel and exercised their right to cross-examine the victims of their crime. These are two of the numerous cases in which victims had to directly confront their assailant. Whenever an accused decides to defend himself, victims may find themselves reliving the assault again, this time in public.
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My bill would give all witnesses the same protection granted at the moment to witnesses under fourteen. More specifically, it would amend the Criminal Code to prevent an accused from cross-examining a witness in proceedings involving a sexual offence or violent offence, unless the judge is of the opinion that this is required for the proper administration of justice.
I am well aware of the fact that the Criminal Code provides that the accused has the right to present a full and complete defense either personally or through counsel.
I also know that this right is implicitly guaranteed in the Canadian Charter of Rights and Freedoms under the principle that the accused is entitled to a fair trial.
I understand as well that the right to a full and complete defense allows the accused to bring forward witnesses in his defense and to cross-examine prosecution witnesses in an attempt to discredit their testimony.
I know that one of the features of the right of the accused to a public trial is the confrontation between the accused and the accuser.
I realize that my bill is in conflict with the rights of the accused. However, the rights of the accused must be measured against the rights of victims, and particularly their right to safety and security.
It is neither reasonable nor tolerable that victims of sexual assault or acts of violence generally be obliged to undergo cross-examination by the person charged with assaulting them.
My bill solves the problems caused when accused individuals defend themselves. Unfortunately, this practice is bound to become more frequent in the years ahead, given the cutbacks to legal aid.
Bill C-217 is one way of humanizing the criminal process without depriving the accused of his rights, because a lawyer may be appointed to cross-examine witnesses.
To those who complain that Bill C-217 is in conflict with the well-established principles of common law, my response is... So what! In the last 20 years, Parliament and the courts have been abrogating certain rules of the common law which acted against the interest of complainants in the case of sexual offences.
For example, there was a presumption in common law that the testimony of the complainant in a rape case was a pure fabrication. In order to prove the guilt of the accused, the Crown had to establish a spontaneous complaint and agree to subject the complainant to a cross-examination that was too often humiliating and degrading.
In addition, corroboration of the complainant's testimony was almost mandatory, because, without it, the judge had to inform the jury that it would be imprudent to reach a guilty verdict based only on the complainant's testimony. This requirement often proved insurmountable.
Similarly, it was formerly possible under the common law to take a close look at the sexual history of a victim of a sexual offence. This practice was founded on discriminatory stereotypes, and the fact that this evidence was admissible made it possible to attack the complainant's credibility.
Since 1976, Parliament has taken action three times to limit this type of evidence. An awareness of the problems experienced by women and children led to more flexible rules in the case of sexual offences. My bill is part of these continuing efforts.
To those who assert that the Criminal Code already gives the courts the flexibility they need to protect witnesses, I say that these discretionary powers are inadequate, because they are still being abused. The Fabrikant case is an example.
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Even though judges now have the authority to intervene during the cross-examination, most of the time this happens too late, because the harm has already been done. There is no need to force victims who have had a dramatic, painful experience to relive it through a direct confrontation with their assailant.
To those who may think that my bill treats witnesses like children, because it gives them the same protection enjoyed by witnesses under the age of 14 in accordance with subsections 486(1.1) and (2.3) of the Criminal Code, I say they have a very limited understanding of the problem.
Parliament has taken action many times to set out rules of procedure relating specifically to sexual offences. For example, in subsection 486(1) of the Criminal Code, Parliament made an exception to the principle whereby a case should be held in open court by permitting the exclusion of the public under some circumstances. In this case, the intent was not to treat complainants and witnesses like children, but rather to protect their privacy.
Similarly, an amendment was passed to limit the publication of court proceedings. This appears in section 486(3). The provision allows the courts, in certain circumstances, to order a ban on publishing the identity of the complainant or a witness.
Once again, does this provision means that complainants and witnesses are treated like children? No! In fact, the new rules have two objectives: first, to protect complainants and witnesses, particularly to protect their privacy, and second, to encourage victims to make complaints and to make it easier to obtain evidence regarding sexual offences.
My bill is part of this continuum. It actually goes a little farther, because it protects not only the victims of sexual crimes, but also victims of violence.
Generally speaking, our criminal law is repressive, because it seeks to punish those who break the law, rather than repair the damage caused to victims. So there is more emphasis on punishing the guilty, even though the sentence may include a restitution or compensation order. So crimes are seen as a violation of public order. Consequently, it is the state that prosecutes the individual who committed the offence.
Victims, for their part, are generally merely incidental to the Crown's establishing its evidence. However, despite the understated role of victims, they are often the Crown's main witness. If victims were not involved in the criminal proceedings, the Crown would not be able to present its evidence and get a guilty verdict against the accused.
Thus, my bill is not designed simply to guarantee the safety and security of individuals who testify in criminal proceedings in which the accused is charged with a sexual offence or with the use, attempt or threat of violence, but also to encourage more victims to get involved in the criminal justice system. Doing this must not be more traumatic than the crime itself.
The objectives of an effective criminal justice system that respects victims' rights will be met to the extent that we protect witnesses in criminal proceedings for offences of this type who continue to file complaints against their assailants without fear. We must recognize that these victims are entitled to safety and security. As members of Parliament, it is our responsibility to take action to avoid abuse.
Going through a criminal trial is difficult enough for victims without a direct confrontation with the accused.
Those are the points I wanted to make this morning, Madam Chair.
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[English]
The Chair: Thank you.
Mr. Bellehumeur, you have 10 minutes, and I'm going to be very accurate.
[Translation]
Mr. Bellehumeur (Berthier - Montcalm): First, I would like to congratulate the honourable member for presenting a bill of this type. I think the subject is important and deserves serious study.
Although I was not the Bloc Québécois' justice critic at the time, I read the speech you made on May 1, 1996, when you introduced the bill in the House. Then as now, you said that the main objective of the bill was to protect victims. In the two cases you mentioned, the Fabrikant and Ferreira cases, the accused cross-examined the victims themselves, because they did not have counsel. You even mentioned some of the questions that Fabrikant asked his victim. I think we should be able to prevent the accused from asking victims such questions.
However, in reading the bill, I realize that its intent is broader. It would not just prevent the accused from questioning the victim, but would also prevent the accused from questioning any witness in the case of certain crimes. Did I understand it correctly?
Ms Venne: Yes.
Mr. Bellehumeur: Perhaps we need to simplify things and have two different bills. I know that we are studying Bill C-217 today, but my colleague from Quebec City, Christiane Gagnon, has tabled another bill, C-315. It deals with exactly the same subject matter, but approaches it differently. Her bill would provide protection only to complainants or any witness under 18.
Could you tell me the advantages of your bill compared to the other bill? Both amend the same section and are on the same subject, namely witness protection. So the objective of both is the same. Bill C-315 is more restrictive and states that the accused shall not cross-examine the complainant and any witness under the age of 18. In your bill, Bill C-217, you say that the accused shall not cross-examine any witness.
Ms Venne: I did look at Ms Gagnon's bill, because she tabled hers after I tabled mine. I wanted to see how it differed from mine. You have outlined the main difference.
At one point I thought I should perhaps join her in her efforts and say that the protection should be limited to victims and other witnesses under the age of 18. However, I took another look at the situation, and decided to maintain my position, which is that the protection should be granted to all witnesses, as I state in my bill.
Let me mention the example of the prostitute who is attacked by her pimp. In a case of this type, it is clear that the pimp would have made the same threats against the other prostitutes, who are not yet victims because they have not yet been attacked. They have only been threatened up until the time they saw what happened to the other prostitute. So they are not victims as such, but they are witnesses. That's why it is important these witnesses be protected as well.
In addition, we should remember that under the other sub-clause amended in my bill, (2.3), the presiding judge has the discretion to decide whether the proper administration of justice requires the accused to personally conduct the cross-examination. For example, a police officer may be called to testify. I fail to see why the accused would not be allowed to question the police officer himself. It would be up to the judge to make this decision. I think such an approach could work.
Mr. Bellehumeur: I have no further questions.
Mr. Langlois (Bellechasse): Earlier you gave us a good review of the developments in the criminal law, particularly with respect to sexual assault, which was formerly called rape in the Criminal Code.
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Many limitations have been placed on the questions that victims can be asked about their past sexual behaviour.
However, in order for this testimony to be in order, counsel must first demonstrate to the court the point he's getting at and what he intends to prove. They cannot go on fishing expeditions. It is no longer possible for lawyers to plant doubts in the minds of jury members by making them think that an individual with so-called ``loose'' morals actually caused the attack. This type of thing is no longer allowed.
You were a member of a former Parliament, probably the thirty-fourth, when Bill C-15, which banned the questioning of children, was passed. It withstood Charter challenges, and our courts have confirmed its validity. Clearly - and I would concede this point at the outset - when an accused, in such well-known cases as Fabrikant and others, decides to defend himself, there is no way of anticipating what questions he will ask. The person is probably in a fairly confused state, and the thread of the questions will be difficult to follow. This is not so clear in other cases.
I am wondering whether there is not some middle ground between your bill in its present form and the state of the law at the moment. Given the considerable scope of Bill C-217, I wonder whether we should perhaps include a derogation clause to avoid possible challenges. Or do you think that the test that was used in the Oakes case would validate your bill under the Charter?
Ms Venne: What exactly do you mean by a derogation clause?
Mr. Langlois: The use of section 33 of the 1992 Charter.
Ms Venne: I see no reason why the courts would find the bill in violation of the Charter, because the judge does have the power to decide whether or not the proper administration of justice requires the accused to cross-examine witnesses himself. So we are not interfering with the rights of the accused and at the same time we are protecting witnesses. That is my view of the situation at the moment.
Mr. Langlois: You are a notary, Ms Venne, and you acknowledge the principle of the free choice of the lawyer or notary, which is a rather fundamental principle of our rules of law. With the exception of some acts performed by notaries in Quebec, the right to choose a notary or a lawyer includes the right not to choose one, and in the extreme, to revoke all of them. When there are no lawyers left, the court designates a lawyer who asks the questions that the accused may prefer not to have asked. I think that there is a problem. Under the French system, a prosecutor may be appointed to ask whatever questions he wishes without the agreement of the accused. I'm wondering whether there is a middle ground between these two extremes. The arguments you have advanced are quite convincing, but I'm somewhat reluctant to accept them because the rules of our century-old criminal law go in a different direction.
Ms Venne: I would say that we have a choice between the interests of the accused and the interests of the victim, in some cases. In such cases, I obviously have no problem taking the interests of the victim into account. Moreover, you said two or three times that you were looking for a middle ground. I can tell you honestly that I tried to find one, and this was the only solution I found. If you have other suggestions for improving the bill, I would like to hear them.
Mr. Langlois: I think that by talking about these issues, we might find a middle ground. I have no magic solution for the time being. Thank you, Ms Venne.
[English]
The Chair: Thank you.
Mr. Ramsay, you have 10 minutes.
Mr. Ramsay (Crowfoot): Thank you, Madam Chair.
Thank you, Madame Venne, for your presentation on this bill. I have some comments I'd like to make.
You reflect a sensitivity to victims in this bill and in your presentation to the committee. And yet this same sensitivity is not reflected in your position on Bill C-45 when it comes to families of victims who have to go through the terrible turmoil of an early parole hearing for first- and second-degree murderers.
.1125
I just mention this in passing. In this case you're talking about an accused, whereas in the case of Bill C-45 we're talking not about the accused but about the convicted. There is a difference.
You certainly have my understanding on what you're doing here and your sensitivity to people who have been victimized. But I have to ask myself this question. Does this bill deny accused persons the right to defend themselves, or does it grant the courts the right to deny, in certain cases under certain circumstances, the right of accused persons to defend themselves? Does the bill defeat the purpose of the law, which is justice based upon the truth?
If the truth from a witness is going to be established by either the accused under cross-examination or someone else, it really doesn't matter. If your argument is that because the accused has the right to question the victim or witnesses somehow the truth is not going to come out, then I'd like to hear this argument. I could be swayed by it. But if your bill is simply to make it easier for a witness in a trial or a victim in a trial, then I cannot support this bill. My reason is the fundamental common law precedent that not only do accused persons have the right to face their accuser, they also have the right to cross-examine their accusers.
Let me make my consideration clear. If there is some concern the accused is going to somehow limit the ability of the victim or the witnesses to bring forward the truth upon which justice is based and determined, then I want to hear this argument, because this is a supportable argument in my mind.
But if this bill is simply going to be a shield to make it less difficult for the victims, despite the fact that the same truth is going to come forward upon which the court will have to determine guilt or innocence, then I have trouble with this. I have trouble with this because it denies some of the most fundamental tenets in law and in justice. If you accuse me of something, I have the right to face you in a court of law. I have the right to question you, and if the court is going to impose someone as my legal guardian or my defence counsel to act on my behalf, then my guilt or innocence may depend upon the ability, will and competence of this individual.
I might add at this point that when I examine some of the miscarriages of justice that have occurred in Canada, I find, perhaps not in all cases but in some cases, that what contributed to the miscarriage of justice was the incompetence of this counsel.
So if we get into a situation where the court says to me I cannot conduct my own defence and I must accept this court-appointed defence counsel, then my future in this particular case depends upon the ability and the willingness of the defence counsel. It depends upon the care and the background work the defence counsel has done. I have some concerns with that principle, although in most cases the accused are well represented and so on. I look at what this could lead to and I have concerns about it.
.1130
I'll stop there. I've taken up five minutes of my time.
Madame Venne, you might comment on the concerns I've raised and, in particular, on whether you have concerns that if an accused is allowed to cross-examine the witnesses or the victim, that will in some way prevent the truth from coming forward that would come forward under someone else doing the cross-examination. I want to hear your argument on that.
Thank you.
[Translation]
Ms Venne: Thank you, Mr. Ramsay. You've raised a number of points. At the beginning of your comments, you spoke about my insensitivity with respect to Bill C-45. I could talk about your insensitivity toward victims. Your position is not quite the same as mine with respect to victims in this case.
I would like to talk about what you describe as the truth that must eventually come out.
Before coming to that, we must remember that this clause and this bill apply to violent or sexual crimes. That must be clearly understood.
The objective of the bill is to avoid traumatizing victims a second time. That is really the intent of the bill. Victims have already experienced a crime or the violence once. They don't need to go through it a second time. That is really what my bill is aimed at.
Moreover, there is a provision in the bill under which, if the judge thinks the proper administration of justice requires it, the accused may question the victim himself.
That is why I do not share your resistance to the bill.
[English]
Mr. Ramsay: I thank you for that response, but you haven't answered my question. We must guard against any measure that will defeat the purposes of justice, and we must not allow the accused to be the victim. When a miscarriage of justice occurs, that's exactly what happens: the accused becomes the victim.
What any court needs is the truth, and they need as much of the truth surrounding the crime as possible. As I said earlier, if the cross-examination of the victim or the witnesses by the accused will prevent that, if they're going to be traumatized to the point where - you haven't said this, but I'm looking towards that argument - the truth would not come out where it would otherwise come out through the cross-examination perhaps of an independent individual, unconnected or disconnected from the circumstances, then I can understand your argument. But a trial is not a Sunday school picnic, and these very serious offences carry very serious penalties. So we must not deny the accused the right to defend himself or herself.
It is one of the basic tenets of our justice system that when someone is accused of a crime they must be given as much freedom as possible to defend themselves, and inasmuch as this tends to be a denial of that principle, I have concerns - perhaps not about what you have in mind, but about where it would lead to when you grant this kind of power to judges who simply say, ``You have nothing to say to this court because I have appointed counsel to you. You have nothing to say to any of the witnesses. No questions to any of the witnesses can be - ''
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The Chair: We're at 11 minutes.
Mr. Ramsay: That's my concern, Madame Venne.
[Translation]
Ms Venne: I understand what you're saying. All I can add is that an individual might become virtually mute when facing questions from his or her assailant. If the questions are asked by someone else, the victim might speak. That is possible, but it is not the objective.
Mr. DeVillers (Simcoe North): Under your bill, Ms Venne, who would be the client of the court-appointed lawyer? Would the client be the court or the accused?
Ms Venne: Do you mean who will pay the bill?
Mr. DeVillers: Who will pay the bill and who will instruct the lawyer? Generally speaking, lawyers have to follow their client's instructions. Who will give the instructions?
Ms Venne: The court, obviously. And the government will pay the costs.
Mr. DeVillers: So the accused wouldn't be entitled to give the lawyer any instructions?
Ms Venne: I think that normally judges take into account what people in the court do, say and request. I fail to see why the judge could not give these instructions, after consulting the accused, of course. Why not? That is not the objective. I think you understand that the objective of the bill is to avoid placing the victim in a traumatic situation. The government could of course be responsible for paying the lawyer and for dealing with other related matters.
Mr. DeVillers: I see. Thank you, Ms Venne.
Mr. Discepola (Vaudreuil): I have two brief questions, Ms Venne, because my colleague has already asked the other questions I intended to ask. On the basis of your experience, does it often happen that accused individuals defend themselves? In order to determine the costs, we might need to know how often such situations occur.
Ms Venne: I don't have any very specific statistics, but I think everyone knows that this is not something that happens all that often. We're aware of that. However, the fact that this situation occurs infrequently does not mean we should not legislate in this area.
Mr. Discepola: But in order to determine costs, do you have...
Ms Venne: No, but we could certainly consult the provinces. It's well known that this type of incident is very rare. That gives you a good idea. However, we know that legal aid is increasingly unavailable in a number of areas, and that there will be a growing trend for people to defend themselves. It is even more difficult to give you figures about what will happen in the future. The cuts to legal aid are going on at the moment.
Mr. Discepola: You said that your main objective was to ensure that the victim did not have to suffer a second traumatic experience. Having seen lawyers at work, I can tell you that as a witness, I might be more intimidated by a lawyer than by the accused. Do you really see this as a risk? You mentioned some good examples, including the case of a prostitute or other witnesses who might be intimidated by the accused. Do you really think your bill will deal with your concern about intimidating and traumatizing victims?
Ms Venne: I must say that I have never been traumatized by lawyers. Perhaps we see things differently. There is also the fact that you are a man. Perhaps I shouldn't make sexist comments, but I'm tempted to. I would just point out that you are a man.
.1140
The situation would obviously not be the same for you as it would for a woman facing her rapist or a 66-year-old who was shot at by Valery Fabrikant, this crazy individual, this deranged professor who shot at this woman and hit her.
[English]
The Chair: My husband is an academic.
[Translation]
Ms Venne: I'm talking about a very typical case.
So the situation is certainly different for women. However, the bill is not for women specifically, although it often happens that women are the ones who are attacked.
Mr. Discepola: Is the ultimate decision made by the victims, or does the judge decide whether a victim will testify against a certain accused?
Ms Venne: The judge decides depending on the circumstances.
Mr. Discepola: I see. Thank you, Madam Chair.
[English]
Ms Torsney (Burlington): I want to add one thing. In the Fabrikant example I could imagine that there were a lot of men who maybe hadn't got over the shock of what they had been through. What they all had was pretty traumatizing and they also might not want to face him. Maybe I'm casting generalizations, but the people who would be most inclined to represent themselves and to try to intimidate the witnesses for six hours on and on would be the very kind of people you wouldn't want to face in a courtroom. There should be some other system that would not allow them to try to continue their crime against the individual who's trying to bear witness.
Mrs. Venne: Yes, you're right.
[Translation]
I think that is the important point today, and that is why I tabled this bill. That is also why we are finally here talking about this matter; we all see its importance. Are there so many problems with the bill that we cannot pass it? Of course it is not perfect. But is it not a step in the right direction? Should we not move this way, and correct what we've done later on if necessary? Perhaps that is the decision we must make. Thank you.
Mr. Langlois: Are we not really establishing degrees in the presumption of innocence, which is one of the characteristics of our legal system? If a person is accused of a violent crime, people seem to presume that he or she committed the crime. However, in the case of theft, not robbery, the accused is entitled to cross-examine witnesses.
I think what we are attacking here is the presumption of innocence. Of course I understand the victim's point of view. I also spoke on Bill C-45. We have to look after victims, and I don't think this is done enough in Canadian society. However, at the time of the trial, when we are dealing with someone whose innocence is presumed, would your bill not put an extra burden on the accused? Would the Crown not have half of its work done, given that the rules of evidence are different? Would we not be creating various categories of accused in trials where there is no jury, and in which the judge would have already decided that the accused is not entitled to question his victims? Would the judge not already have some idea about the guilt of the accused before even hearing the evidence? Would this not hamper his ability to make a decision on the merits of the case? Would there not be another, different, risk in the case of trial by jury?
I'm wondering about these questions, because it is true that your bill is important. It is also important to study it, because you are confronting the criminal law head on, as is your style, and you are pointing out things that do not work and should be corrected.
I would like to hear what you have to say about these matters.
Ms Venne: No, I don't think we will be establishing degrees of presumption of innocence.
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My bill would apply to certain types of crime in which the victim has been traumatized. I'm talking about violent and sexual crimes. The victim has been attacked directly. The purpose of the bill is to protect these people. Personally, I don't see it as establishing degrees of presumption of innocence. If we look at the basis of the bill, its objective and the type of crimes it covers, we see why witnesses must be protected in such cases.
Mr. Langlois: Thank you.
[English]
The Chair: Mr. Ramsay.
Mr. Ramsay: First of all, the victim and the witnesses have to face the accused anyway. The accused is in court and they have to sit facing the accused. What would you say, Madame Venne, if a very skilled and capable defence counsel - and we have many of them - takes on the role and even some of the personality traits of the accused and cross-examines the victim and the witness to the point where they're traumatized? Would you then ask the court to deny those very skilled counsel the right?
In other words, if it is the traumatization of the victim we're concerned about, that traumatization can be caused - perhaps not to the same degree, but nevertheless can be caused - through any rigid, thorough cross-examination by a skilled counsel. So do we not place ourselves at the edge of a slippery slope when we say because of the re-victimization of the victim and the witnesses we will not allowed the accused to cross-examine? If that's the basis on which the disallowance will occur, then could not the same argument be made about any counsel who gets through to a victim emotionally and drags victims and witnesses through horrendous experiences involving the crime?
Do you understand what I'm saying, Madame Venne?
[Translation]
Ms Venne: Yes, Mr. Ramsay, I understand what you are saying. I will answer by giving you some examples of the questions Agostino Ferreira asked his victims in court. The accused was charged with forcible confinement, kidnapping and assault.
He asked one of his victims whether someone or some force may have been with him in the room at the time of the offence. Mr. Ferreira's cross-examination of his witness went on for one hour and a half. His cross-examination of the second victim lasted one hour and ten minutes. In it, he referred to a crucifix, and asked the victim whether her legs were in the shape of a cross at the time of the rape. He asked her whether she had been flogged and whether she had to wear a crown of thorns. I tell you quite frankly that I think it's clear that the accused should not have been able to cross-examine his victims in such a case.
[English]
Mr. Ramsay: Do you not think the authority of the judge to rule that line of questioning out of order is insufficient? I understand exactly what you're saying and I sympathize with your point of view on that particular case. But if the judge did not see that this line of questioning was out of order, then could not anyone have followed that line of questioning; and should we not leave the protection of the witnesses to unwarranted attacks through cross-examination up to the judge in the court? Or does the judge need further tools to protect the witnesses beyond what they have now?
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[Translation]
Ms Venne: Apparently they do need a few more tools because in that case, the judge decided not to intervene.
[English]
Mr. Ramsay: Could he have? Did he have the authority to do so? Were these relevant questions?
[Translation]
Ms Venne: I think so. I don't see why the judge could not have intervened. However, to then have the court appoint a lawyer for him, once it's decided that he would not ask any more questions... We have to look at what happened. Someone has to ask the questions. That is why my subsection 486(2.3) is useful - it allows the court to appoint a lawyer for the accused.
[English]
The Chair: Madame Venne, we haven't discussed this in a steering committee yet or in full committee, but it's safe to say that we'll get to this before Christmas. So I wonder if I could prevail upon you to consult with the clerk in terms of what other witnesses you might wish to have called so that we can work that out efficiently and not have any disagreement about witnesses who might be called. In that way maybe we can get it on fairly quickly.
[Translation]
Ms Venne: Right. Thank you.
[English]
The Chair: Thanks.
We'll adjourn until 3:30 p.m.