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EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, March 6, 1997

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[English]

The Chair: Order.

We have, from the Canadian Mental Health Association, Richard Drewry and Mary Marshall. Richard Drewry is co-chair of the association and Mary Marshall is chair of the legal subcommittee.

Appearing as an individual we have Dr. Merskey from London Psychiatric Hospital, who's sitting at the table with us here in Ottawa.

Welcome to all of you.

We'll go first to the brief of the Canadian Mental Health Association. If you'd like to proceed, then we'll go to Dr. Merskey and then we'll ask questions of all three of you at once.

[Technical Difficulty - Editor]

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Mr. Richard Drewry (Co-Chair, National Legal Issues Task Force, Canadian Mental Health Association): Thank you, Madam Chair, honourable members. With me today is Mary Marshall, the other co-chair of our legal issues task force.

Some time ago we provided the Minister of Justice with a written submission dealing with CMHA's response to the decision of the Supreme Court of Canada in the O'Connor case.

At the start of this submission there is a brief description of what CMHA is. We represent the national arm of this organization.

You will note that CMHA is in part an advocate for persons suffering from psychiatric disorders and psychiatric injuries. Victims of sexual assault often suffer serious psychiatric injuries that must be treated by professional health care providers. It is records of these health care providers that are the subject matter of this legislation.

CMHA has always been concerned about the need to maintain confidentiality of psychiatric records. It is now recognized that therapeutic records of sexual assault victims have not received proper protection in our courts, hence the need for Bill C-46.

We in CMHA believe Bill C-46 is a good start to this problem but does not go far enough. What we ask for is legislation that will provide real protection for the privacy of therapeutic records dealing with treatment of sexual assault victims. We ask for privacy rules that will be easily understood and entirely predictable so that complainants and caregivers will know from the start what will and will not be regarded as confidential.

Mary Marshall will now explain our position in more detail.

Ms Mary Marshall (Co-Chair, National Legal Issues Task Force, Canadian Mental Health Association): Our brief presentation will address two issues in relation to therapeutic records. First, why shouldn't we use relevancy as the test, and second, why would creation of a privilege be a more appropriate protection?

First, why hasn't relevancy worked as a test, and why won't it work in the future? Bill C-46 sets out the test as likely relevance - that is, has the accused established that the record is likely relevant to an issue at trial? This is, and has been, the test, and it has often been abused.

In support of this statement I'd like to refer to a recent Supreme Court of Canada judgment as well as my own experience. The Supreme Court of Canada judgment was given on February 6, 1997, in the case of Carosella. In that decision, Madam Justice L'Heureux-Dubé made the following observations about the way in which the lower courts apply the likely relevance test:

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My own professional experience indicates that this is an accurate assessment. The lower courts are routinely ordering that these records be produced.

I act on behalf of third-party record-holders. Although I can't discuss cases in any detail, of course, I can give some general observations and general information.

In particular, in one case in which I was involved, the defence counsel had created an entirely new criminal procedure by cross-examining the victim under oath in the presence of the crown before the actual start of the criminal trial. It's something analogous to the pre-trial discovery that you would ordinarily get in a civil case...they had actually done in a criminal case before the trial had started. This had gone on for many hours. Despite this, the accused still sought production of the therapeutic records. The affidavit disclosed that the victim had received therapy from my client.

Now, on that basis, and despite the extensive opportunities the defence counsel had already had to obtain information, the records were still ordered disclosed.

Many of these decisions are not reported. I always ask the crown in these cases when I'm representing the third-party record holder if they've ever been involved in a situation where the records have not been ordered produced on the basis of the likely relevance test. The crown has in those cases reported to me that the records are always disclosed on the basis of the likely relevance test.

What are some of the other practical problems of the likely relevance test? Bill C-46 sets out that the application is made to the trial judge. That's exactly the same as the current procedure under the O'Connor application.

The problem is, the application is made before the commencement of the trial, so the court can't know what is relevant. At that stage the judge doesn't know the crown's case and the judge doesn't know the case for the defence. So it's very difficult to determine relevancy.

In addition, the accused has not seen the documents yet but the accused has the onus of establishing likely relevance. So all that the accused knows is that the alleged victim has actually received therapy.

Bill C-46 states that this reason alone does not establish likely relevance. That's the test now. If you look at the O'Connor decision, both the majority and the minority in O'Connor stated that the mere fact that the accused had received therapy is not sufficient to establish likely relevance. However, this test really places the accused in an impossible position, because usually all the accused knows is that the record exists, and has had no opportunity to review the records.

We would argue that for this reason, the lower courts really routinely let the records in. The conclusion here is that you can't determine relevancy without disclosure, and at the time of disclosure, privacy is lost.

Second, why would privilege be a better protection for therapeutic records? I first want to make it clear that the Canadian Mental Health Association is advocating a privilege for well-defined parties - for example, psychiatrists' clients, psychologists' clients, social workers' clients. There also would be some well-defined exceptions, such as when disclosure is necessary to establish the accused's innocence.

Why should the federal government create a privilege? Well, the preamble to Bill C-46 states that one of the goals of Parliament is to protect the rights of victims of sexual violence or abuse. The creation of a privilege would allow for predictability. The victims will be able to obtain therapy knowing that their records will remain confidential and private.

The United States Supreme Court in 1996 created a privilege for psychotherapists' patients' records. The court stated that the participant in a confidential conversation must be able to predict whether discussions will be protected. That's why a privilege should be created.

At present, and also under Bill C-46, victims will have to appear in court, usually twice, before they know whether or not the records will be disclosed to the accused - first of all, for the likely relevance test, and then, if the judge orders the records be produced to him or her, for the second stage of the test. That usually takes place on two separate days. This involves a significant amount of time and money for the victim.

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Finally, I would like to add and emphasize a very important point in our brief. If victims are able to really, truly participate in this process, funding will have to be made available for victims to be able to prepare and then attend court, usually twice, in order to properly argue their position.

Thank you.

The Chair: Thank you.

Dr. Merskey.

Dr. H. Merskey (Individual Presentation): Thank you, Madam Chair.

I am here, as you indicated, as an individual and to express my personal views. I would like to say two or three things first, then indicate where my expertise lies, and then present my major arguments.

Abuse is common, very common. No one suggests otherwise. But so are false accusations. There are widespread indications of this, which I will deal with in a little more detail shortly. However, my topic is the issue of recovered memories and false accusations based upon recovered memories.

I am not seeking to make a comment on the bill in relation to accusations that are contemporary and have to do with assault that may have taken place where the victim has always known about it. Even long ago, those two would not have come under the concept of recovered memory. That's my theme.

My qualification to talk on this is that I've worked as a psychiatrist for over 40 years. Among my interests, though it has not been the most prominent, I have had much to do with patients who have so-called hysterical, dissociative, or conversion disorders - that is to say, illnesses that essentially depend upon the patient thinking or believing he or she has something wrong. It's not the same as hypochondriasis, but it is a false idea of illness, an artificial illness.

I have about 30 papers on that subject in peer review journals and in other similar sources, such as chapters in books. I have a book on the topic of hysteria, The Analysis of Hysteria, which is now in its second edition, published by the Royal College of Psychiatrists of Great Britain, which has a publishing arm called Gaskell Press. I also have undertaken a good deal of work on illnesses physically affecting the brain and aspects of memory connected with that, which is one of my links to the topic of false memory.

As a result of an article that was highly critical of multiple personality disorder, I was asked to join the False Memory Syndrome Foundation as a member of the scientific advisory board, which is made up of very experienced and in many instances - not speaking for myself, of course - very distinguished people, whom I was flattered to be among.

The material I've supplied to you comprises an abbreviated version of my curriculum vitae and also a copy of a letter I sent to Mr. Rock, and then further a summary I sent to Mr. Dupuis yesterday by fax, as the time was rather short to prepare this summary. I regret I haven't offered you a more organized brief, but I hope those two documents of description will cover matters somewhat.

I've also made available a copy of a paper that was published in the American Journal of Psychotherapy dealing with the ethics of recovered memory issues. I come to this subject with a lot of experience of court proceedings in civil trials connected with chronic pain, which has been a major interest for me as well. These different interests come together as a fascination with body-mind relationships, which is how seemingly disparate topics are the focus of one person's life work.

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In civil proceedings, my patients all the time experience the presentation of their records to the other side. They are really unable to avoid it. At first I thought it rather unpleasant - and sometimes it is. Now, I'm quite accustomed to receiving requests from lawyers to supply copies of my records on their clients, which will be made available to the defence in actions for damages. Sometimes this works unfairly against my patients. Occasionally there is material in the records, either my own or those of family doctors - more often the latter - which defence lawyers can and do exploit to the detriment of my patient's case. It's not that it actually relates to the case, but there is other material that makes my patients unwilling to appear in court in case somebody like a spouse hears of an indiscretion that should not be brought up. Although promised that this would not be mentioned, people sometimes withdraw.

On balance, I have to say that I think justice is far better served by the availability of this material than by its absence. In criminal accusations I've also had some experience now in ten trials of individuals who were accused on the basis of recovered memory, and as it happens not one of those people was convicted. There is apparently an increasing rate of acquittal; and I want to say that the acquittals in the cases I have seen depended to a considerable extent on the availability of significant records.

Perhaps I could take you for a little detour for a minute on what recovered memory is about. It is suggested that if the experience of abuse in childhood is severe, or even moderately severe, it will be pushed away into the unconscious mind and kept there because the individual cannot face it and only later through a therapeutic process can it be brought forward. This is a theory that has been believed in psychiatry for over a hundred years, since the early writings of Freud, and which is now falling into great problems, in fact almost into ruins.

We think that recovered memory has not been proved, is very hard to prove, and really lacks credibility. And the processes by which people have brought forward recovered memory in recent years have been patently inadequate and unprofessional. They've involved considerable suggestion in the course of therapy and have led to widespread scandals throughout the English-speaking world and also in Holland and some of the Scandinavian countries, to my knowledge. Suffice it to say that the majority of memory experts in the field of psychology, and the majority of academic psychiatrists, are probably now satisfied that recovered memory is seriously unreliable.

Here I draw to your attention the Canadian Psychiatric Association position statement, which should be available to you - I think it is, if I may ask Mr. Dupuis - which indicates, among other things, that recovered memories, if they are put forward, should only be relied upon with solid corroboration. The court process, as you know better than I, allows convictions without corroboration. Most recovered memory cases go this way, that if there is a conviction it's going to be done on the testimony of the patient and of a specialist or expert saying yes, this is credible, this can happen. It really can't happen, but it has been said so.

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In the bill, the key item to my mind is the preliminary hearing, the preliminary inquiry. This is where defence counsel have a legitimate opportunity to attempt to find out if there has been a process that is likely to have given rise to false memory. This is a time-consuming procedure. It cannot just be done in an hour. Not only are the records often long, but they require time to go through.

In my letter to Mr. Rock I pointed out how in one case, which actually relates to a person from London, Ontario, who was treated in Ottawa, there were over 900 hours of treatment sessions - paid by OHIP, incidentally - in which it was possible to demonstrate from the records that there had been speculative encouragement of quite remarkable and unsubstantiated memories. When we came down to examining any factual basis for some of those memories, for example a claim that the complainant had been submitted to repeated rape by her father and had a pregnancy that was terminated when she was 14 without an anaesthetic, the medical records in fact indicated that was highly unlikely, to say the least. There was really no evidence she'd ever been pregnant, as there should have been.

This material then cannot be effectively employed without further delays in trials if the process is going to be kept away from a preliminary inquiry. I think that is fundamental. The change the bill recommends simply undercuts the current process, and undercuts it in a way that inevitably will cause problems that will again go back to the Supreme Court of Canada. I am told by lawyers that it will inevitably lead to overturning of the current bill.

In my own experience, in about half a dozen of the cases in which I was called the therapist's notes were quite critical to understanding what was happening. In one instance where the therapist's notes were not fully available, it was clear that the jury took quite a long time to make up their minds, and I believe would have made them up much sooner if we had had the full paper trail showing the origin of those allegations, some of them preposterous, such as an allegation of sexual fondling claimed to have been remembered from the age of 12 months.

I said earlier that this problem is common. There is good sociological evidence from America - and in at least one study in a fairly representative town, actually Peoria, Illinois - that about 40% of rape allegations known to the police are decided by the police themselves to be false on the basis of both of corroboration and confession. If that's the case before cases come to court, there are still more that may be false that are heard and perhaps rejected by courts.

We have no survey data that can tell us how many people have false memories induced, but projections based on surveys of therapists indicate that as many as 1% of the population of the United States - and I would estimate a similar proportion in Canada - have been subjected to therapeutic processes that would be likely to give rise to false memories and probably did. That means one family in 25. Anybody who reads the newspapers knows how commonly these issues crop up all across the continent.

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The practice of recovered memory is harmful to psychiatry. It's put forward by people who are, in many instances, not professionals. As a psychiatrist, my records are one of my major tools. I rely on them, and I do not destroy them. I'm not allowed to destroy them.

I believe that to bring in a situation in which people can create records without them being potentially subject to scrutiny for their expertise and professionalism in this field would be a violation of professional standards. I won't comment on what that implies for the law.

So Madam Chair, I would recommend that this bill should not be employed to change the O'Connor decision by the Supreme Court, which has established a very thorough and careful approach to the management of both the privacy and the rights of the accused.

The Chair: Thank you.

May I say just to help put this in context - this is an editorial comment - that in 15 years of practising criminal law, sir, I never saw one case of any allegation of a recovered memory or anybody coming to court with what you would call with a recovered memory. I put that out just so we get our statistics in order.

Dr. Merskey: May I respond to that?

The Chair: Sure.

Dr. Merskey: The recovered memory matter dates substantially from the late 1980s, and grew in the early 1990s. I don't know how that relates to your practice.

The Chair: I can tell you this: I never once saw it in 15 years. Certainly every record in almost every case I was involved in was examined, because that was the state of the law for much of that time.

[Translation]

Mr. Landry (Lotbinière): I have a question for Dr. Drewry. At the beginning of your presentation you said that Bill C-46 was a start, but that it didn't go far enough. How does it not go far enough in its technical aspects?

[English]

Mr. Drewry: At CMHA, we believe in the legislative privilege of this sort of evidence. It would be much superior to legislation such as Bill C-46, which provides that it's admissible if relevant. The reason we don't believe that relevancy is a good test for these things is that relevancy can never be measured until the record is disclosed, and once the record is disclosed, all privacy is lost.

With privilege, on the other hand, the onus will be on the defendant to establish that there are some very unusual circumstances that exist in order for the privilege to be overturned.

For example, if the therapeutic record contained an admission of the fabrication of a complaint, that would be an example, in our view, in which privilege should be overturned.

The exceptions would be relatively small. We believe that once you disclose evidence, even for the purpose of determining its relevancy, all privacy is lost and a great deal of damage is already done at that stage to the patient and the complainant.

[Translation]

Mr. Landry: My other question is for Dr. Merskey. Dr. Merskey, you have worked with patients with psychiatric problems and do you find that the courts cooperate fully with you when they undertake research or must hand down a decision? How do you see the courts from your professional point of view?

[English]

Dr. Merskey: My experience in going to court is as a witness. I therefore go through the process of examination and cross-examination.

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I don't find that this contributes directly to research, and I haven't personally undertaken research in conjunction with a court.

Perhaps I'm missing what you're asking. It may be that you'd like to extend the question a little bit.

[Translation]

Mr. Landry: You have to defend and present cases. Do you find that the courts cooperate adequately with you to arrive at a just an equitable decision?

[English]

Dr. Merskey: Yes, I think that the courts have cooperated, but it's not so much with me as with the defence lawyers who have been able to obtain the records they required. There were one or two instances in which a hospital where I do some work myself had no adequate records. I don't think the problem arises from the court's reluctance to assist in obtaining the records.

The Chair: Mr. Ramsay, ten minutes.

Mr. Ramsay (Crowfoot): Thank you, Madam Chair. I wish to thank our witnesses.

This false memory syndrome is of concern to me with regard to the bill. We've had cases in this country - one was outside Saskatoon - in which children - I don't think it involved false memory - gave testimony that horrendous things had happened to them and that other children had been murdered and dissected in their presence. There was no evidence of this, yet at least one person who was involved in the day care from which this apparently stemmed was convicted.

I'm caught between two interests here. One is, of course, that relevant evidence has got to be made available on the part of the defence, while at the same time, in the sexual assault cases, we should be protecting the victim from being re-victimized by needless cross-examination on irrelevant pieces of evidence by defence counsel.

I'd like to ask Dr. Merskey if he feels the contents of this bill will deny defence counsel relevant information regarding some of these recovered-memory cases.

Dr. Merskey: Yes, I do, sir. I believe that they will make it available, if at all, only at the last minute, which will then result in great difficulty, if not failure, to use the material, or else the trial judge will have to postpone the trial again. I don't think anybody is going to be helped by that arrangement.

Mr. Ramsay: Do you understand the thrust of the bill, though? Do you understand what the bill is attempting to do in normal, contemporary cases of a complaint of sexual assault? It's attempting to deny irrelevant information coming to the attention of the defence counsel and brought to various levels of disclosure, whether it's before an in camera hearing or whether it's brought into a public court system. Are you aware of the thrust of the bill?

Dr. Merskey: I believe so. I think it's not far from O'Connor, except for this situation with the preliminary inquiry.

I don't think it's very far from the Supreme Court's intentions either. The Supreme Court, as I understand it, laid matters out very clearly. Even before the Supreme Court decision was rendered, I had the experience of reading through medical records that had been read first by a judge. Of that, about 95% of the material had been carefully obliterated by the judge because it was not thought to be relevant. I think the material that was let through and that I was able to read was very appropriate, and I presume the material that was kept out was kept out appropriately.

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Mr. Ramsay: Of course we heard this morning from witnesses about the test of relevancy. We heard it again from our witnesses in Edmonton. If I understand them correctly, the test of relevancy is not keeping irrelevant pieces of information out of the hands of defence counsel. So it seems there's a problem in this area.

The question I want to ask you is: if there was an amendment to the bill that would allow the examination process contained within the bill on recorded information for preliminary hearings, would that alleviate most of your concerns about the bill?

Dr. Merskey: Yes.

Mr. Ramsay: Okay, so you're not concerned about the process that determines relevancy; you're concerned that it excludes it early enough to be heard at the preliminary hearing.

Dr. Merskey: That's right.

Mr. Ramsay: Okay. Was there something you wished to add?

Dr. Merskey: It may be that criminal lawyers will feel that I've been too generous in what I agreed to there, but as well as I have read the bill and understood the issues, it seems to me that at least the major problem is the preliminary inquiry.

Mr. Ramsay: In the interest of the complainant, if the courts are actually failing the relevancy test and allowing evidence or information to come forward that's not evidence at all because it's not relevant, then there's a real concern.

I'd like to ask our witnesses in Edmonton to comment on that. Is it really the case that the judges or whoever is screening the information with regard to relevancy are simply saying that they dare not deny any of this because it might be relevant? Is that basically what you're saying?

Ms Marshall: I'll make a comment on that just to follow up on the comments I made earlier on Madam Justice L'Heureux-Dubé's comments on Carosella that the lower courts are automatically letting them in on the likely relevance test.

In one case I was involved in, it was indeed let in on the likely relevance test. The crown went over and told me that I should be grateful, because otherwise the accused was set up on grounds for an appeal. It just seems to be a very standard type of procedure at this stage.

Mr. Ramsay: To follow up on that, what difference will this bill make then? Perhaps that's the reason why you want the privilege item involved or brought in rather than relevancy.

I would like you to explain for the record, which we'll be able to read and study afterward, the difference between what you consider to be relevancy and the privilege test.

Ms Marshall: Well, privilege is a very different concept than likely relevance. With likely relevance, there's the onus on the accused. Whether it's under the O'Connor application or under Bill C-46, the onus is on the accused to put forward information to establish likely relevance. That has not been interpreted as a very high test.

On the other hand, with privilege, there is a presumption in law that this material is not admissible. It's a class privilege.

As we said earlier, there would be very specific exceptions to that. For example, look at the police and informer privilege, which is a very well established privilege in law. There's an exception to that such that material can be let in if it's necessary to show the accused's innocence. In this case, there would be a class privilege, which is the same for these therapeutic records. You would know that they wouldn't be let in except for very specific exceptions and circumstances.

Does that explain it?

Mr. Ramsay: Yes, thank you.

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You also have indicated that because the crown, and particularly the judge as well as the defence, would not know the fullness of the case, the evidence, it would be difficult for them to determine relevancy.

To what would this information recorded in these documents be relevant? How would the process work, bearing that in mind, if the likely relevancy test was replaced by this principle of privilege?

Mr. Drewry: With privilege, we start out, as Mary has said, with the proposition that the evidence is not admissible. If the accused could lay the groundwork in some fashion, either by cross-examination of the complainant at court or by cross-examination of other witnesses, that there may be a fabrication of an accusation - indeed, to use Dr. Merskey's example, that there may be false memory syndrome - then on that basis, the court, if it felt there were reasonable grounds to believe that, could overturn the privilege. But you would start out with the proposition that the evidence would not be admissible. Caregivers, complainants and so forth at the time the care is being administered would know that they have a pretty good chance that what is said in the privacy of the caregiver's office would be confidential.

I think that would be very helpful in the treatment process. It would be very consoling to the victim at the time she initially is receiving treatment after the crime.

The Chair: Your time is up, Mr. Ramsay.

Mr. Ramsay: Thank you.

The Chair: Mr. Telegdi.

Mr. Telegdi (Waterloo): Thank you, Madam Chair.

Having had a chance to glance over ``Adult Recovered Memories of Childhood Sexual Abuse'', the paper by Dr. Merskey, it does seem to me that I have read numerous cases where acquittals were granted and therapists were sued. I wonder if you could do some kind of search to find out how many of those cases there are, and then if you could provide us with some of that information.

I guess what I'm concerned about in terms of the legislation and the thesis you put forth is that in normal circumstances, when a person experiences abuse there is no memory lapse related to it. Certainly if you read some of the psychological literature...and you mentioned Freud. I thought that was kind of interesting. I read him in my undergraduate psychology courses, and I was incredibly amazed at how kooky some of those theories were.

In the case of repressed memory, if you have an unqualified therapist who all of a sudden helps somebody reconstruct an event, it would seem reasonable that in terms of the court you're not just dealing with the complainant at this point. You also have to be dealing with the therapist, because that therapist helped reconstruct the event. In that case, I would see great relevancy to what Dr. Merskey was saying.

You were very narrow in referring to this. You're saying this is an exceptional circumstance. It would seem critical that in cases of recovered memory you'd need a connection from the therapist who helped do this.

So one of the things that would be very crucial would be the extent of the credibility of the therapist and the methodology used to arrive at that. That might be very few of the cases, but I do recall reading numerous examples of where the therapists were found liable for causing the persecution.

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Could you comment on that, Dr. Merskey? I'm going to ask your colleagues as well to comment on it. Maybe do a little criticism, if you will, of your colleagues.

Dr. Merskey: I think I'm really in agreement with what you've said. I don't know how I can expand on it.

I think it's true that people have been brought up with a shock by the fact that some therapists - in the United States, not here - have been found responsible in civil proceedings, sometimes to very large amounts. Those cases have grown in number.

I perhaps would like to take up your remark about a challenge to my colleagues. The question of relevancy and admission of records really seems to have two stages. There is the stage at which privacy is lost, but to a judge only. There it may well be true that all the records are going through to be considered. The protection of privacy comes from the hands of the judge, who then decides how much of those records go on.

So I think it may be confusing if we don't distinguish between the loss of privacy to the judge and the loss of privacy to the defence and to everybody else who hears the case.

Perhaps I can pause there.

Mr. Telegdi: I would invite the folks from Edmonton to respond to my comments.

Ms Marshall: In the Canadian context, I'm not aware of any criminal convictions based on recovered memory syndrome. I have to say, too, that in all the cases I have been involved in where I've had an opportunity to look at records in a criminal context they've not dealt in any way with recovered memory.

Mr. Drewry: I think it's probably a good point to find out how prevalent false memory recovery is in Canada. We would be interested in knowing that as much as no doubt the members would be.

We suspect it is far from being prevalent, as suggested by Dr. Merskey. On the other hand, we know it is prevalent for therapeutic records to routinely be admitted in court proceedings involving complaints of sexual assault. We know that almost for sure.

As well, the bill, to my reading - and I'm a lawyer, as is Mary - is an extremely complicated piece of legislation. It baffles me how caregivers are going to understand that and be able to treat the tests of privacy in that legislation in a realistic fashion when the victim comes in their door. I don't know how they're ever going to know whether what is said in their office is going to be treated as private and confidential.

That's all I have to add.

The Chair: Mr. Telegdi, do you have another question?

Mr. Telegdi: Yes, Madam Chair.

This refers, I imagine, to very few, if any, but I do know there have been cases in the United States because that's what I happened to read about. But it seems to me the test has to be that if somebody doesn't have a memory of what happened, and at some point it gets reconstructed, then the therapist is such a crucial individual with that recovered memory that I do believe different tests should apply. Clearly, the therapist should be part of the process to make the connection.

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From your experiences in court, let me ask you this. If I said this is what happened in the past, and I came to know about it because of certain actions I took, certainly that connection would have to be made, would it not?

The Chair: Of course, I'm not the witness, but as I said, in 15 years in court I never saw it happen.

Mr. Telegdi: I'm not talking about your personal experience. I'm just saying if somebody said twenty years ago this happened and they didn't remember it until they went to an analyst, and that analyst helped to recover that memory from their past, it would seem reasonable that the courts would be dealing with this somewhat differently from what they would be dealing with if a person came forward and asserted that this was what happened.

The Chair: I don't think the act precludes a test of that kind of evidence either, contrary to what some people seem to think.

Ms Torsney.

Ms Torsney (Burlington): Thank you.

My first question is to the representatives from the Canadian Mental Health Association.

Let me get this clear. We have a situation where we have some idea that there are some cases of false memory syndrome on the one hand, or recovered memory syndrome on the other hand, and yet we have a situation where, if I'm not mistaken, you said that in pretty well all cases, if the records are asked for, they are exposed. Is that correct?

Mr. Drewry: That's the anecdotal evidence we get from prosecutors, defence counsel, caregivers and so forth.

Ms Torsney: From the previous witnesses we've had, who are in fact experts and who have dealt with a number of cases, that is generally their issue as well.

Dr. Merskey, I'm not sure if I misunderstood you at the beginning. Did you say in the opening of your presentation that there are widespread indications of false accusations?

Dr. Merskey: Yes.

Ms Torsney: Which implies that this occurs quite frequently.

Dr. Merskey: It's very frequent.

Ms Torsney: So of all the cases reported, is that 50%, 75%, 100%...?

Dr. Merskey: We don't have the figures, but -

Ms Torsney: What's your own feeling?

Dr. Merskey: Let me give you examples. I think that may help better than my saying it's 30% or 60%, which I can't conscientiously do.

More than 1,400 Canadian families have contacted the False Memory Syndrome Foundation. To do that, people have to believe fairly strongly in the family that there is an unreasonable accusation.

Many people are told to keep quiet in the face of false accusations. Lawyers advise their clients the only thing to do is to keep quiet until they get to court.

We don't know, and there's no measure, of how far the false accusation on the recovered memory basis goes. We just know of those 1,400 Canadian families. In the United States, 20,000 inquiries were made to the False Memory Syndrome Foundation three years back, which has gone on since, although the number of new cases has declined somewhat lately.

There are the child abuse scandals and the false accusations of child abuse scandals. We had our Martensville, Britain had its Cleveland, and the United States has had a dozen trials, of which about eight have been overturned.

The information on this is readily available in a book by Mark Pendergrast, Victims of Memory, an excellent and very fair book.

Ms Torsney: Dr. Merskey, I don't mean to interrupt, but I have to here. I appreciate all that information, but we have a situation where we know from studies that 6% of women who are sexually assaulted in fact go and report their crime and possibly end up in a trial situation. Yet you've come here today and created this impression that there are perhaps thousands - I mean, that's the kind of feel I have from the ``widespread indications'' - of false accusations so that it's really quite common, on the one hand, that everything's false, versus, on the other hand, the fact that only 6% of the people who in fact were assaulted are coming forward to the courts.

Dr. Merskey: Let me say two things. First of all, I don't know about your figures. I have doubts, and I'll tell you why in a second.

Second, let me make a major statement that replies to what you're saying - that is, I think sexual abuse is very common. I said that at the outset. Therefore, genuine accusations will be common. But I think that an uncomfortably high proportion of cases coming to our courts are false, and there are people in prison, based only on allegations of recovered memory. I could provide examples.

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Ms Torsney: That would be terrific if you could.

Dr. Merskey: The case of Mr. E.S.B. before Mr. Justice Stortini in Sault Ste. Marie is one example. The Appeal Court of Ontario said that it couldn't overturn the case in law, but it thought that the case sounded incredible. I merely summarize and paraphrase.

Ms Torsney: Perhaps you could submit that list to us.

Dr. Merskey: I will do so, indeed.

The Chair: Ms Torsney, your time is up, but I will come back.

Mr. Ramsay.

Mr. Ramsay: I have a comment on this. There is public information available that not only substantiates this whole idea of the false memory syndrome...but also in the Martensville case, where it appears children were induced by therapists or by investigators -

Ms Torsney: Police officers.

Mr. Ramsay: - to create beliefs and to create stories that did not in fact happen.

How do you compare the two, Dr. Merskey, the false syndrome theory, or at least the recovered memory concept where people are recovering memories of things they have forgotten for 25 years or more, and this situation that happened in the Martensville case and other cases? Tape recordings in some of these cases show that the first question about any physical abuse or touching was met with a negative response by the child, but then as the probing and the questioning went on the stories began to change.

First of all, are you aware of these cases? And secondly, what is the difference or the comparison between those two phenomena?

Dr. Merskey: Yes, I am aware of them, sir.

The common feature is that in both cases illegitimate suggestion is taking place. The questions are being put in ways that indicate answers have to be produced in a certain direction. This may be done subtley or it may be done insistently.

We see fairly clearly in the children's cases that it has been done very insistently. In the therapy cases there is a wide range of possibilities. All this stems from an overwhelming conviction that sexual abuse has to be prosecuted at any cost and the perpetrator found and convicted at any cost. That has been accompanied by an abandonment of traditional legal restraints on the way in which witnesses can be examined and the way in which evidence is accepted.

Mr. Ramsay: I'd like to move on a little bit further to the point Mr. Telegdi brought up. If the process that brings about the recovered memory or the process that has brought about statements by kindergarten children aged four, five, or six results in a criminal prosecution, then I have to agree with Mr. Telegdi in this case, and you know we don't agree very often. If there's a tape recording of the questions, the first question that is asked and the following questions that are asked should be made available in order. To me, that would be very relevant evidence. With all due respect, our witnesses are suggesting that evidence should be privileged evidence.

Perhaps our witnesses from Edmonton could respond to that. Under those conditions, would you consider that evidence to be privileged?

Ms Marshall: I am not familiar enough with that case. I don't really know how that evidence came out that the children's memories had been influenced by their therapist. Did it come out during the time of questioning in the court? Obviously, with Bill C-46 we're only dealing with therapeutic records, and there are lots of other ways of testing evidence. How did that evidence about the children's memories come out? Can you tell me that?

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Mr. Ramsay: Yes. Basically, in the Martensville case it wasn't as a result of a medical record; it was as a result of a police investigation. I'm getting onto thin ice here, because I don't know the case that well, but they did bring in psychiatric assistance.

In other cases where tape recordings were made, it showed that the children initially disclaimed any physical contact with the kindergarten staff who were later accused and charged. There was a clear pattern of moving from the denial of the child first, to continued questioning where they did admit that something was happening. In those cases, from your point of view and your submission to the committee today, should that evidence fall into the area of privilege?

Ms Marshall: What I understand is that this information came out not during the examination during the trial, but during an investigation by the police before the trial and then during subsequent examination by an expert again before the trial. The expert gave an opinion before the trial.

So the question you want answered is if this all went to trial and that expert evidence was presented there or it came out that this was indeed the case during the course of the trial, should that tape recording or those records be admitted or would they be privileged? Yes, they would be privileged unless they fell within the exception that they were necessary to prove the accused's innocence, for example.

Mr. Ramsay: Okay. I thank you for that.

That's all I have, Madam Chair.

The Chair: Thank you. Ms Torsney.

Ms Torsney: Thank you.

I have a couple of questions for you, Dr. Merskey. You testify in a number of cases. Do you usually testify for the defence or for the complainant?

Dr. Merskey: I've testified in ten criminal trials for the defence and in one civil trial for the defence.

Ms Torsney: And how many times for the complainants?

Dr. Merskey: Never.

Ms Torsney: Do you ever appear for the crown? I guess that's the same question.

Dr. Merskey: No, I haven't appeared, but I have been consulted actually by a medical college in respect of an accusation and was asked to advise them. But I did not appear.

Ms Torsney: Was that the Pilo case?

Dr. Merskey: No, that was not the Pilo case. The Pilo case was the one where I gave evidence at the request of Dr. Pilo's lawyers. That case is quite a good example of the way in which the press sometimes treat this topic malevolently.

Ms Torsney: Why is that?

Dr. Merskey: Right in the middle of the trial a columnist in Toronto spread herself with remarks about the admissibility of certain evidence. It's complicated to get into, but it's the sort of thing that really was an attempt by public influence to affect the course of the trial. The case is under appeal.

Ms Torsney: If I'm not mistaken, Dr. Pilo is no longer practising as a physician because he admitted his guilt in these cases. Is that not correct?

Dr. Merskey: That is correct. He admitted that he had done it and yet he also said that he made that plea on the basis of his lawyer's advice. This was a technical plea bargain in the College of Physicians and Surgeons of Ontario.

Ms Torsney: Like recanting or something?

Dr. Merskey: No. He all along said he was innocent, but he was advised that his safest method lay in the plea of guilty.

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If you want to get into that case, the situation is that he was accused by one person of some very improbable things. He pleaded innocent. His lawyer was prepared to defend him.

When the allegations were spread in the press, several people came forward and made similar but rather conflicting allegations. In other words, what they said was sometimes the same as what was in the press, but where they made other allegations they didn't agree with each other about him.

His lawyer said he had to plead guilty, because he would be convicted with so many people holding this against him. He said he was innocent, and he wanted to plead not guilty. And he went to get another lawyer.

The second lawyer said he would will defend him, and the lawyer sought the information from his first lawyer. Then they both turned to him and said ``You're old, your practice is winding down, because you have heart disease. If you plead guilty, you'll be reprimanded. That will be the end of the matter, and you'll have to give up your licence. If you don't plead guilty, you're likely to be convicted, and you will suffer a large fine as well.'' So he reluctantly pleaded guilty on the assurance that this particular plea could not be held against him in any other court.

Now, I have been exposed to a personal attack by Michele Landsberg on the basis of giving testimony in that case about the nature of the recovered memories. I think that is a bit of gutter press activity. I'm glad you gave me the opportunity to talk about it.

Thank you.

Ms Torsney: So in civil cases I think you identified that you appear for the defence. Generally, does the insurance company pay you for the defence person?

Dr. Merskey: In the case of Dr. Pilo, my evidence was paid for by the Canadian Medical Protective Association. In some cases my evidence has been paid for by the defendant personally, and in some cases by legal aid.

Mr. Torsney: What kind of money do people have to pay for this kind of expert testimony?

Dr. Merskey: Well, they may have to pay $200 an hour, which is a common expert-witness fee, or they may have to pay less than $100 an hour if it's legal aid. At least, the government would pay less than $100 an hour, and in psychiatry one can earn about $100 an hour, in OHIP anyhow.

So this is no pleasure, and in fact one loses money in a number of cases in terms of professional income, because of extra time that is never paid for.

Ms Torsney: So in totality, in a regular case the bill is probably something like...?

Dr. Merskey: Bills have ranged between $3,000 and $10,000, depending on the amount of time for the defence witness alone, never mind the cost to innocent victims.

In one case where I had to forgo a large part of my fee, the family had to remortgage their house. By the way, I spent two weeks in court for that fee, as well.

Ms Torsney: For $10,000?

Dr. Merskey: Under that amount.

Ms Torsney: And can I ask another question? Hysterical disassociative disease...?

Dr. Merskey: Correct.

Ms Torsney: What percentage of people are women and men? What's the split of people who suffer from that?

Dr. Merskey: Hysterical diagnoses are usually made more often in women, probably in a ratio of six to one, but it varies with the particular....

Ms Torsney: And is it -

Dr. Merskey: So people who go around making this diagnosis of multiple personality disorder, which is the leading example nowadays, make this diagnosis most often in women. In my view, they are hostile to women, because that is not a diagnosis that should be created. Those people who say they're on the side of women in this respect are not in fact getting it right.

Ms Torsney: And I wonder, is your general impression that if we pass this law, records will never be available in courtrooms? Is that a simplification of your testimony?

Dr. Merskey: No. They will be available on the eve of trial, which is justice denied, unless the trial is then postponed.

Ms Torsney: Okay. And I noticed in your second paragraph you suggest that this desire to restrict the availability of medical and counselling records to the accused and to his or her defence, the pressure to do this, appears to have risen from women's groups who have protested that the call for such material leads to revictimization of victims. Is it your impression that the Canadian Mental Health Association is symptomatic of this problem as well?

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Dr. Merskey: I don't know enough about it. What it's saying is responding to that sort of pressure, but of course, as I have indicated at the beginning of my own evidence, there is a natural inclination on the part of professionals to not want to have one's records shown.

No doubt the CMHA is concerned about that. But, as you heard, the lady who was presenting for the CMHA presumably earns money making legal representation on behalf of people who don't want to give up their records. So if you're looking at what people get out of it, you should take that into account as well.

Ms Torsney: Then may I ask the Canadian Mental Health Association - particularly their legal counsel - if they are brought into this position under the influence of these powerful women's groups who are influencing them to give this kind of testimony?

Mr. Drewry: Absolutely not. We're here standing with those who are psychiatrically injured or disordered, whether they're male or female, whether they are victims or they are accused. We would say that the same rules apply to the accused's psychiatric records as well. We're not taking any sides, except that we're advocating, of course - and it's not hidden at all - for people who suffer psychiatric disorders.

Ms Torsney: May I ask both of you if it is common practice that when somebody is accused of assaulting somebody, as in a bar-room fight or some other kind of scenario, all of their medical and psychiatric records are subpoenaed?

Mr. Drewry: I've never heard of it. I'd be amazed if that was the case. What I've read about it is that it's almost never the case.

Ms Torsney: So what other kinds of charges, other than sexual assault, which from Dr. Merskey's testimony is generally on women and children, would lead to a request for all kinds of medical and psychiatric records or therapist records?

Mr. Drewry: You could get a better answer to that from the crown, but it's our understanding that this practice is almost exclusively restricted to sexual assaults or child abuse cases, or possibly, to some measure as well, to custody disputes involving married couples who are divorcing.

Ms Marshall: Yet in the criminal context, whenever I've been involved in the records cases, they've always been sexual assault or sexual abuse.

Ms Torsney: So would it be wrong then to conclude that there is some kind of an inequity in the system, since by and large victims of sexual assault are either children or women, and in the alternative, victims of other kinds of assault in bar-rooms and other places are generally men? Is there some kind of an imbalance here between why the records are being sought, how the records are being sought, or the fact that they're being sought at all?

Mr. Drewry: Well, I suppose one could jump to that conclusion. We're not here trying to prove that. I mean, that's a conclusion one could draw from the practice out there. But let's face it, this is a standard practice of defence counsel in criminal cases -

Ms Torsney: Why do they do it?

Mr. Drewry: - whose thought is to get hold of those records.

Ms Torsney: Why?

Mr. Drewry: And it's used as a weapon against the victim. It's humiliating to them, and it's very discouraging to them. Maybe that's one reason only 6% of assaults are reported.

Ms Marshall: I've been told by a number of defence counsel that when they've been requesting the records, it's their opinion that it's negligent of them not to request them now, after the O'Connor decision. They feel that as soon as they find out that the victim has received therapy, there's an obligation on them to request the records. From my experience, I believe that's an opinion and a feeling out there that pervades among the defence counsel.

Ms Torsney: This is my last question to you. Is it your understanding that if this law were passed, and there is a situation where there's some possibility of a situation where there very well could be something called recovered memory syndrome or false memory syndrome, it would become impossible to get access to those records?

Mr. Drewry: No, not at all; I don't think it would at all. I think Bill C-46 is to a major extent adopting the current practice and codifying it. I don't think it's revolutionary in any particular sense, although it is a step forward.

Ms Torsney: Thank you.

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The Chair: Thank you. That's our time then. I thank you from Edmonton, and thank you, Dr. Merskey.

We are adjourned until next Tuesday.

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