October, 1997

BACKGROUNDER

Canada Evidence Act and Criminal Code amendments to accommodate persons with disabilities

In 1996, the Federal Task Force on Disabilities Issues chaired by Andy Scott, MP, held 15 fora from coast to coast to determine the federal role in the area of disability. One of the Task Force's recommendations was that "the Government of Canada should introduce amendments to the Criminal Code and the Canada Evidence Act to improve access to the criminal justice system for persons with disabilities." In the Redbook, the government also stated that its efforts in the area of social policy would focus on the equality of all Canadians.

Then-Justice Minister Allan Rock responded by introducing improvements to these laws in April, 1997. However, Bill C- 98 died on the Order Paper when Parliament dissolved before the federal

With the re-introduction of these proposals, the government is following through on its commitment to meet the needs of people with disabilities and to support their full participation in Canadian society.

Proposals - Canada Evidence Act

Two proposed amendments to the Canada Evidence Act aim to remove barriers to the participation of persons with disabilities in the justice system. The first provides for communications assistance for persons who have special communications needs. This might involve the services of a sign language or oral interpreter, apparatus such as a Bliss board or assistive listening devices (for example, an infrared device), or real-time captioning. The second proposed amendment permits auditory and tactile methods of identifying the accused to be admitted in court.

Proposals - Criminal Code

Several amendments to the Criminal Code are proposed to improve access for persons with disabilities. These amendments respond to long-standing efforts by the disability community to achieve fuller access to and greater protection from the criminal justice system.

Videotaped evidence
The Code would be amended to allow persons with physical or mental disabilities to provide testimony through videotape. This would help those who have difficulty communicating. A judge would be able to restrict the release of the videotaped evidence.

Jury service
Amendments to a number of sections of the Code would encourage persons with disabilities to serve as jurors. The amendments will ensure that a physical disability will not exclude a person from jury service, if, with assistance, the person is capable of serving, and that persons providing support to a juror with a disability may not disclose jury deliberations. The amendments would also require any interpreter or other support person to be sworn.

Sexual exploitation
Another amendment to the Criminal Code would establish as an offence the sexual exploitation of persons with disabilities who are in a situation of dependency with respect to the offender. The offence would be a hybrid offence, punishable upon summary conviction for a term of imprisonment not exceeding eighteen months or upon indictment for a term not exceeding five years. The new provision would also provide that dependent adults could, nevertheless, consent to sexual activity when they so choose.

This provision, complemented by current Criminal Code provisions on sexual assault, helps to ensure comprehensive protection for the disability community against physical and sexual violence.

Reasons

More than four million Canadians — 16 percent of the population — have a disability. Under the Canadian Charter of Rights and Freedoms, persons with disabilities are guaranteed the right to equality before and under the law and to the equal protection and benefit of the law without discrimination.

The reality is, however, that the law has not always recognized the special needs or circumstances of people with disabilities. The proposed amendments help to ensure access to the criminal justice system for people with disabilities and recognize the right of persons with disabilities to participate more fully in Canadian society.