Debates of the Senate (Hansard)

1st Session, 36th Parliament,
Volume 137, Issue 149

Monday, June 14, 1999

The Honourable Gildas L. Molgat, Speaker

...

Criminal Code

Bill to Amend-Third Reading

Hon. Sharon Carstairs (Deputy Leader of the Government) moved the third reading of Bill C-79, to amend the Criminal
Code (victims of crime) and another Act in consequence.

She said: Honourable senators, I rise today to speak at third reading of Bill C-79, an act to amend the Criminal Code (victims
of crime). The amendments in this bill are necessary and reasonable reforms which will address the needs and concerns of
victims of crimes within the criminal justice system.

Honourable senators, it is clear from the deliberations of the Standing Senate Committee on Legal and Constitutional Affairs
and consultations with members opposite that both parties in this chamber support the amendments proposed in this bill.

Our colleagues in the other place, as well as victim advocates, service providers and members of the public have expressed
their support for Bill C-79, and I believe with good reason. The Criminal Code amendments in Bill C-79 build upon existing
provisions regarding the victim impact statement, the victim surcharge and publication bans on identity to make it easier for
victims and witnesses to provide their testimony.

In building upon these provisions, they build upon very good legislation passed by the previous government. In the past, the
effectiveness of the criminal justice system has been compromised by victims' and witnesses' unwillingness to participate in court
proceedings.

The amendments also enact new provisions to address the concerns of victims regarding their safety, to enhance and expand
the opportunities for their views to be considered, and to encourage the provision of information to victims.

As honourable senators would know, the amendments in Bill C-79 will implement the unanimous recommendations of the
House of Commons Standing Committee on Justice and Human Rights, entitled, "A Voice, Not A Veto." These amendments
will enhance the voice of victims of crime in our criminal justice system and will not in any way infringe upon the rights of
persons accused of crimes.

Let me say at this time that I was delighted to be with the committee during its study of this bill, although it was not,
unfortunately, for the entire duration. Nevertheless, it was good to be back with the Standing Senate Committee on Legal and
Constitutional Affairs.

Two amendments raised particular concern during the committee's deliberations. The first amendment which raised concern
was the victim impact statement and the second was the publication ban. Allow me to address these concerns briefly.

The victim impact statement amendments will give victims the opportunity to present their statements in open court. It will
assure victims that in addition to the requirement that the statement be considered, it will be heard by the judge and anyone else
present in the courtroom during sentencing, including the accused.

In regard to the second concern, Bill C-79 will permit a judge to restrict publication of the identity of a wider range of victims
or witnesses. The publication ban will be imposed where the victim establishes the need for the order, and where the judge
considers it necessary for the proper administration of justice. This provision will codify the principles of prevailing common law
and procedure, as established by the Supreme Court of Canada. It will fully respect the need to balance the rights of the victim,
the rights of the accused and the rights of the public.

Honourable senators, let me assure you that the expansion of the publication ban provision is not intended to penalize the press
or restrict the openness of court proceedings. It is in response to concerns expressed by victims as well as victim advocates
and service providers. It is designed to protect the identity of victims and witnesses of crime and spare undue hardship,
embarrassment and continued victimization.

[Translation]

(1630)

As parliamentarians, we have an obligation to the people of Canada to enact laws that are in their best interests. I firmly believe
that Bill C-79 fulfils this obligation. With it, we encourage the expansion of services for victims and witnesses of crime, as well
as the provision of information on the criminal justice system.

Honourable senators, I urge you to give your consent toBill C-79, and give victims of crime the respect, dignity, and protection
they deserve.

Hon. Gérald-A. Beaudoin: Honourable senators, I should like to say a few words on Bill C-79.

Some media expressed concerns about the scope of the publication ban regarding the identity of a victim or witness, provided
for in clauses 1 to 3 of Bill C-79.

When a judge makes such an order, he must take into consideration the factors listed in subsection 3(4.7) of the bill. These
criteria are the result of a landmark ruling made a few years ago by the Supreme Court of Canada, in the Dagenais case.

As senators know, the Dagenais ruling deals with orders restricting publication, in relation with the right of an accused to a fair
trial.

Let me briefly relate the facts. In November 1992, the CBC announced the broadcasting of a miniseries co-produced with the
National Film Board, entitled The Boys of St. Vincent. At the same time, there was a trial in Ontario involving members of a
religious order who were accused of having sexually abused young boys under their custody. Three other trials were about to
begin. The miniseries was a fictitious story about sexual abuse inflicted on children living in a Catholic institution. The Ontario
Court of Justice allowed an injunction application and issued a publication ban regarding the miniseries, in all of Canada. That
ban was upheld by the Ontario Court of Appeal, but restricted to Quebec and Ontario, until the four trials were over.

The Supreme Court majority quashed the order prohibiting publication. Chief Justice Lamer was of the opinion that the
common law rule that gives a judge the discretionary power to issue a no-publication order must comply with the principles
stated in the 1982 Charter, otherwise the judge makes an error in law which may justify the quashing of that order.

According to Chief Justice Lamer, a hierarchical approach to Charter rights must be avoided when considering the advisability
of a publication ban.

In his view, a publication ban should only be ordered when:

(a) it is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available
alternative measures will not prevent the risk;

(b) the salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the
ban.

Using these criteria, Chief Justice Lamer concluded that the initial ban was far too broad and that a number of reasonable
alternative measures were available to achieve the objectives.

Chief Justice Lamer also expressed concerns as to the efficacy of publication bans. In this era of modern technology, computer
networks and global electronics, it was very difficult to restrict the flow of information.

In his reasons, Chief Justice Lamer stressed the importance of trial fairness, both to the accused and to society. For all these
reasons, the majority ruled in favour of setting aside the publication ban.

Justice Gonthier, along with Justice l'Heureux-Dubé, wrote dissenting reasons. In his view, the Charter did not alter the balance
required in common law between freedom of expression and the right to a fair trial. In addition, the publication ban at issue did
not affect the application of section 2(b ) of the Charter, primarily because, unlike news, the immediacy of the miniseries was
not the essence. In Justice Gonthier's view, a temporary ban until the end of the trial would not cause serious harm to the CBC.
He also felt that technological progress should not defeat publication bans in exceptional cases. For these reasons, Justice
Gonthier therefore concurred in the decision handed down by the Ontario Court of Appeal, and limited the interlocutory
injunction to Quebec and Ontario.

I should point out that the issue of a publication ban to protect the identity of the victim of a sexual assault had already been the
object of a Supreme Court ruling in 1988, in the Canadian Newspaper case.

So, freedom of press implies, in principle, access to court hearings and the publication of court proceedings. In the Canadian
Newspaper case, the Supreme Court ruled that the publication ban regarding a complainant's identity in a case of a sexual
nature, when the complainant makes such a request under subsection 442(3) of the Criminal Code, interferes with freedom of
press but is justifiable under section 1. It is, according to the Court, a minimal restriction to freedom of press and not a general
interdiction. Its purpose is to encourage victims of sexual assault to lay charges, facilitate legal proceedings, sentence abusers,
curb crime and improve the administration of justice.

Honourable senators, in my opinion, Bill C-79 complies with the principles stated in the jurisprudence of the Supreme Court of
Canada and is respectful of the rights and freedoms guaranteed under the Canadian Charter of Rights and Freedoms.

The Hon. the Speaker: If no other honourable senator wishes to speak, I will now proceed with the motion.

It is moved by Honourable Senator Carstairs, seconded by Honourable Senator Losier-Cool, that the bill be read the third time
now. Is it your pleasure, honourable senators, to adopt the motion.

Motion agreed to and bill read third time and passed.