Will the Protecting Victims Act do just that?

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Hello listeners, it's great to have you tuning into this episode of Verdicts & Voices. This is a legal affairs podcast, and it's brought to you by the Canadian Bar Association. I'm your host, Alison Crawford.

When Justice Minister Sean Fraser unveiled the government's latest bill to reform the criminal justice system, he said Bill C-16 would confront the rise in coercive control, respond to another rise in intimate partner violence, and “keep kids safe from predators.” The bill includes new mandatory minimum sentences, creates new criminal offences, and increases penalties for sexual crimes.

If passed without amendments, the bill would also undermine the Supreme Court of Canada's decision in Jordan, the one we discussed last week, where the court imposed strict timelines for resolving criminal matters. The legislation says judges would come up with their own ideas to prevent stays when proceedings drag on for years.

Joining us today to discuss the pros and the cons of this controversial bill are the chair of the CBA's criminal justice section, Melanie Webb of Webb Barristers, and Simona Jellinek, who is senior counsel and leads the sexual abuse and assault team at Gluckstein Lawyers. Both are in Toronto. Welcome to Verdicts & Voices.

Simona Jellinek

Hello.

Melanie Webb

Thanks, Allison. I'm glad to be here.

Alison

The short title of Bill C-16 is the Protecting Victims Act. Simona, from your point of view, how would this proposed legislation achieve that goal?

Simona Jellinek

Well, it does definitely help with that goal. I don't necessarily think it achieves that goal. I think it's far from achieving that goal. But part of it is actually not even the act itself, but it's the framework that we have, the institutional framework that we have, because we simply don't have the amount of judicial resources and institutional resources in order to frankly mandate some of those lofty goals.

Alison

Now I know, Melanie, in your position, you have contributed a great deal to the CBA submission to Parliament with the analysis and recommendations on this bill. What do you feel is good about the bill? And then we'll talk about some of the issues that you've taken issue with.

Melanie Webb

Okay, well, we are supportive of the measures dealing with restorative justice and alternative measures. We feel that they provide clarity and guidance on the appropriate use of such measures. So, it's our hope that that could potentially lead to increased use, increased consideration of the use of such measures in appropriate cases. When you sort of think about concerns about delay and overburdened court dockets, potentially the use of alternative measures and restorative justice might have the effect of reducing that burden on court dockets. It might have the effect of diverting appropriate cases out of the traditional court system. But frankly, it depends on how much uptake we see on this in the future.

Alison

Simon, what do you think of the alternative measures?

Simona Jellinek

I think they're a good idea. I mean, a lot of people don't necessarily want to go through the criminal justice system the way that it looks right now, because it is not particularly victim-friendly. And for a lot of people, and for a lot of people even from a cultural perspective, having an alternative that still provides them with some measure of how they define justice I think is very important. So I think that's a great part of the bill for sure.

Alison

Tell us about the concerns of the CBA, Melanie, when it comes to the bill, because there are quite a few.

Melanie Webb

Well, one of our key concerns has to do with the framework for a new proposal to consider alternative remedies to a stay of proceeding when there is a finding that there has been unreasonable delay in the matter. We think that it's essentially incompatible with, or antithetical to, the spirit of the Jordan decision. And I'll say that Jordan, which was a case that came in, I think 10 or 11 years ago, was really meant to be a clarion call for action or a jolt to the system, if you will, for all parties to work together to reduce delay and to achieve speedier trials. It's been our observation in the criminal justice section that, in many parts of the country, the problem of delay and congested court dockets is getting worse, not better.

I'll give you an example. So, one major issue in some places, such as Toronto, but I can say I've heard even places like Nunavut, is just getting disclosure disseminated. So, in other words, pushed out to defence counsel in a timely manner. It can take several months for that to happen. So, several months between the time the person is arrested and the charges are laid to the time that the initial disclosure is provided. And that's not even necessarily complete disclosure. So that's part, I think... And by the way, in case you're wondering why that is, it's because frankly, the volume of disclosure has just increased exponentially.

Alison

It's huge. Yeah.

Melanie Webb

Yeah, yeah. And there's other, you know, significant factors, which I'm sure you've probably heard of before. I mean, we've had an ongoing issue in terms of timely judicial appointments. I will say in Ontario, I think there's been improvement on that in the last year or two. But there are ongoing issues with inadequate staffing levels, with Crowns and administrative staff being severely overburdened, with not enough courtrooms. And increasingly, we're also seeing more and more self-represented or unrepresented litigants. And I should just clarify that that can include people who want to have counsel, would prefer to have counsel, but they can't afford it or they don't qualify for legal aid. And what that means is that those matters can take up a lot more court time and more resources than someone who's represented by counsel.

Our concern is that when the bill proposes having an alternative remedy to a stay when there is a finding of unreasonable delay, that is essentially going to disincentivize the stakeholders to actually put in the resources and make the investments that are needed to make our justice system more efficient. And it's not going to solve our problem of delay.

Alison

Simona, do you share that concern?

Simona Jellinek

Yes, absolutely. I have much the same concerns that Melanie has. Jordan has in some ways devastated a lot of people. Funnily enough, my client was one of the companion cases of Jordan. And so, I've been intimately involved with all of it, and we see the repercussions now. We have so many people coming to us because of the Jordan principle, and by and large, it's simply institutional delay as opposed to actual people delaying it on purpose. I do think there is some of that, but I do think that a lot of it is because the courts are not funded enough. And if in fact the changes, at least in Ontario come through, with regards to civil procedure and how… rewriting the rules, I cannot see how we can deal with those changes with the existing court structure. So, it's going to get worse.

Alison

Now, Melanie, what other amendments are you recommending the government make, or what do you think needs to actually be removed from the bill?

Melanie Webb

Maybe I'll touch briefly on just the records regime provisions. That was an area that was actually of particular interest to our section, not only because sexual assault cases are just so common, unfortunately, but at the CBA, both myself and the past chair led a working group which intensively studied the records regime, which aimed to improve efficiency, streamline the procedures… We produced a report to that effect. So, we noticed that some of our working group recommendations were adopted, about which we were quite pleased. So, for example, extending the notice period for admissibility applications from seven to 60 days. We also noticed that there is a specific carve-out on the production of records to the accused for communication between the accused and the complainant. So, we're actually supportive of amendments that were made because they're actually consistent with the recommendations that we made in our report. We actually suggest that they might go a little bit further. For example, you could expand that carve-out on the production of records when there's communication between the accused and the complainant to any communication to which the accused is a party.

Alison

What do mean by that?

Melanie Webb

So, for example, if the accused has had communications with someone who's a witness, as opposed to just the complainant. Because right now it's worded as just communications between the accused and the complainant.

Another amendment where we think they could go a bit further is maybe to try and permit any type of application, whether it's production or admissibility, to be heard in writing. In appropriate circumstances and where all the parties are on board with that. But it doesn't, we suggest that it doesn't necessarily require all the parties to be on the same page and take the same position on the application. I mean, obviously I'm not trying to make light of the fact that that will require a lot more written work, frankly, and a lot more careful drafting. But the intent really is to try and ease the burden on court dockets and reduce all of the court time for the hearing of these applications.

I will say as well that we do have a concern with the provisions dealing with therapeutic records. So, to be clear, we don't dispute that therapeutic records should be treated differently from other types of private records. But we're concerned that the way these provisions in the bill are drafted, the standard on admissibility might be a frankly impossible standard to meet. And furthermore, when you sort of look at the language, and again, I won't get into the nitty gritty of it, but when you sort of look at the language about the standard for production, the stages of production and admissibility, we're concerned that that could lead to confusion, potentially more protracted litigation as to that.

Alison

Simona, what do you think of that point on therapeutic records? And I think we need to specify what that means.

Simona Jellinek

Those therapeutic records are the complainants' therapeutic records, not the accused's therapeutic records. And the concern when we're talking about disclosure of those records is that somebody can be speaking to a therapist thinking that it's confidential and say lots of different things because that's what's going on with them at that moment. And then of course, they're not really confidential because they can get into a court of law. And while I understand why they're necessary and why, for the accused, they are something that they need to see. From the complainant's perspective, it's difficult to not only understand why they're necessary, but it starts to break down the trust between the person who's been hurt and the institutions that they deal with. And that's primarily our concern. I mean, our concern is that these amendments are, in general, relatively okay-ish, but I think from an institutional funding perspective, it's not gonna happen. And they really don't take into practice any kind or I mean some kind of trauma-informed practices in the nitty gritties. Because, you know, it's not just that the records will be disclosed, it's what that does to the person who needs to have a confidential therapeutic relationship with their psychologist, counselor, what-have-you. The balance between those two things is very, very disparate. And it is true in almost every situation where you're dealing with crimes that are sexual assault crimes.

Alison

Melanie, did you want to jump in on that?

Melanie Webb

I mean, absolutely we appreciate, frankly, you know, how devastating a sexual assault trial can be, and also how invasive complainants can feel about just the records regime process itself, even before you get to the trial. And I will simply say without going into a lot of details, the working group that I mentioned earlier really tried to carefully take into consideration all of those issues. This was a group that was comprised of people who represent complainants’ counsels, Crowns, the judiciary. It was certainly not just defence lawyers. I mean, I will simply say that, you know, from a general perspective, I think that there has to be a better way. There's no doubt about it that the entire procedure itself can be both exhausting and exhaustive, and it just takes up an enormous amount of court time and resources. It takes a toll on everybody, the complainant and the accused alike.

Alison

That is certainly true. I mean, people have been saying for decades that the criminal court is not the best place to resolve these kinds of allegations. What do you think, Simona?

Simona Jellinek

Well, I think there's a clear distinction between how we deal with these cases civilly and how the criminal courts deal with them. And while the civil courts and our civil procedure is not good by any stretch of the imagination, I think it is more balanced than the criminal system. Because, you know, fundamentally, somebody can be found not guilty of the offence because the Crown just simply can't prove that beyond a reasonable doubt, but the offence was in fact committed by that person. So, you know, not guilty and innocent are two very, very different things. And you can be both guilty and not guilty. But none of that really translates to what happens to the survivor and how the survivor is dealt with in court, in the criminal court, from day one. Sexual assault survivors are almost set up to lose because they are not taken as a whole. They are not represented, obviously. The principles that we employ as civil lawyers, the Crown can't employ. And it's difficult. It's really difficult. And how we do that as a society, that's going to take a lot, a lot of work.

Alison

And Melanie, you know, there are other aspects of this bill, you know, more mandatory minimums, restoring mandatory minimums. I'm curious, though, about the new sentencing for manslaughter. Can you give me a sense of what that actually what they're proposing and what that would mean?

Melanie Webb

Our main concern is that it would require judges to consider a life sentence for manslaughter cases in cases of femicide or certain other aggravated circumstances. Frankly, we do not feel that this is a constructive approach, and I'll explain why.

So first of all, it's already built in to the Criminal Code that the maximum sentence for all cases of manslaughter is a life sentence. This is not a concept with which judges are unfamiliar.

Second of all, it should be pointed out that by virtue of the very nature of the offence of manslaughter, it means that there is no proof of intent to kill. So, requiring a judge to consider a life sentence for those specific types of manslaughter, we don't feel that's really going to meaningfully change the outcome of sentencing. I mean, currently, I should just point out, there is nothing preventing a crown from making submissions to request that a judge impose a life sentence in appropriate cases. And you can rest assured that if there are those cases in which the Crown requests a life sentence, the judge will absolutely hear those submissions. But when you oblige a judge to hear those submissions in all of those specific cases, that's not really an appropriate use of court time.

We also are concerned that this would tend to damage or discourage the negotiations, plea negotiations essentially between the defense and the Crown, if the parties know that the judge is going to have to consider a life sentence even if it's a joint submission.

Alison

Okay, well, that's interesting. Simona, you know, the bill does also introduce the idea of coercive control in terms of sentencing. Is that something that you welcome in the criminal system?

Simona Jellinek

Yeah, absolutely. I think it gives a more meat to the bones of… It's not just that somebody has to say no. There's lots of different ways why people will say yes to being assaulted. And the recognition of that, I think, is really important. And I think it's welcome from our end that there is a recognition of that, and that the legislature is taking it seriously, because we're all taking it very, very seriously. And so that's one of the things that we welcome. But again, I think much like what Melanie said, there are competing interests in that. It's not an easy thing to unravel, let alone understand, let alone try to come up with a better solution.

Alison

Melanie, do you have anything to say about the coercive control?

Melanie Webb

Yeah, that is certainly a complex issue. And I want to start off by saying that we recognize that the intent is to respond to what we acknowledge is a crisis of gender-based violence. We acknowledge that it is an attempt to address the harm that this kind of conduct causes to victims. And I understand that this is a concept that has been considered to the family law context. And it is new, frankly, to criminal practitioners because it doesn't currently exist in the Criminal Code, but I've certainly heard of it. So, our concern, though, is that the way the provisions are worded, we have some issues with a lack of clarity in the definitional wording, how the definitions would be applied, and potential unintended consequences. We're not necessarily opposed, generally, to introducing an offence that's meant to capture a pattern of abusive conduct, but what we're concerned about is that the language is vague and overbroad.

And I would just say that, again, by virtue of the nature of the offence, you're talking about a highly contextual offence, and it can be nuanced. There's a risk that the language could capture conduct that doesn't really fall under the harm that it's really intended to capture. When you include conduct such as threatening to die by suicide or to self-harm, and when you're suggesting that that can be considered as an act that could form part of a pattern of coercive control and conduct, you know, in some circumstances, I acknowledge that could be seen as a manipulation tactic, but there's a risk of criminalizing conduct that really may be more of a mental health issue and treating the conduct in this way could be unfair.

We're also concerned about, you know, the lack of clarity such as, you know, we don't have any temporal limitations or restrictions or any kind of direction as to the frequency of the conduct. So, for example, are we talking about four or five incidents over a pattern of a few months or over 20 years? Is that gonna be enough? I'm exaggerating a little bit, but I mean, that just gives an example of the uncertainty that could be caused in this legislation.

Simona Jellinek

If I may, I definitely agree with some things that you're saying. However, because that kind of control is so unique to the individuals that are experiencing it, it is difficult to put time limits on it, whether it's five or one or whatever, because it could be one incident 20 years ago that has set up the lifetime control. So, it's difficult to do that, which is, I think, good that it's as broadly worded because it does take that into consideration. And as well, the point about the mental health, about threatening suicide and whatnot, yes, there are situations, obviously, that that can be a mental health issue and should be addressed in a mental health situation with the accused. But it does not change how those kinds of words affect the victim. So, while I get it, it might in fact really be a mental health issue, the results on the victim are exactly the same, whether it's a mental health issue or whether it is a manipulation issue.

Alison

I really appreciated this really nice discussion. It shows how difficult this area of the law really is, and how difficult these circumstances are, and the limitations of our system sometimes. So it's great that you could both be with us today to talk about this. I invite people to check out the CBA submission on Bill C-16 on the CBA's website. And I'd like to thank you both very much for agreeing to participate in our podcast today.

Melanie Webb

Thank you, Alison.

Simona Jellinek

Thank you for having me.

Alison

Simona Jellinek has 30 years of experience representing survivors of childhood abuse and adult assaults. She is senior counsel at Gluckstein Lawyers. And Melanie Webb's law firm is devoted to criminal law. In addition to chairing the CBA's criminal law section, she’s also a member of Legal Aid Ontario's Extremely Serious Criminal Matters Panel. Both were in Toronto.

Thank you for tuning into another edition of Verdicts & Voices this week. This podcast is presented by the Canadian Bar Association and I'm the host. I'm Alison Crawford.