[Recorded by Electronic Apparatus]
Thursday, March 13, 1997
.0939 
[English]
The Vice-Chair (Ms Paddy Torsney (Burlington, Lib.)): I call this meeting to order. We're here yet again to consider Bill C-46, An Act to amend the Criminal Code in terms of production of records in sexual offence proceedings.
We have with us today, from the Criminal Lawyers' Association, Bruce Durno and Irwin Koziebrocki, and from the Canadian Council of Criminal Defence Lawyers, Marvin Bloos.
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Marvin, I think you're going to present first.
Mr. Marvin R. Bloos (Chair, Canadian Council of Criminal Defence Lawyers): Madam Chair, hon. members, thank you very much for allowing us this opportunity.
By way of opening remarks, I'd like to review the conclusionary part of the brief, which I sent on Monday and I hope has been distributed, concerning Bill C-46. The Canadian Council of Criminal Defence Lawyers has very serious concerns about this bill. We are concerned that it will not withstand charter scrutiny and that it has serious problems.
It applies solely to the efforts by the accused to get access to third-party records and not to efforts by the Crown to do so. It allows the Crown to receive and even obtain by warrant third-party records that the accused may not be able to gain access to because of Bill C-46. It sets an inappropriate waiver standard for complainants that allows them to disclose their records to the Crown without making them available to the accused. It establishes artificial hurdles to determining likely relevance, which will have the effect of depriving accused persons of relevant information contrary to the standards adopted in O'Connor and more recently by the majority of the Supreme Court in Carosella.
It requires courts to consider competing policy questions before the records are produced the judge, contrary to the logical relevance standard chosen by the majority in O'Connor. It changes the standard for the production of records that do not prove to be relevant from one of presumptive production to one where there is not a presumption in favour of production, thereby limiting access to potentially exculpatory evidence.
It requires courts to weigh general considerations about the general effect of ordering disclosure and then gives those general considerations equal weight to the factors that are specific and particular to the records before the court, thereby limiting access to potentially exculpatory evidence contrary to the right of an accused to make full answer in defence.
It requires the courts to consider the impact of the admission of the evidence when deciding whether to produce it, thereby mixing the concepts of production - that is, whether an accused should even be able to see it and whether they should be admissible as part of the court proceedings; two different ideas are placed together in one - and also limiting access to potentially exculpatory information contrary to the right of an accused to make full answer in defence.
My friends are going to deal with certain parts of the legislation. I would like to concentrate on two or three aspects in the few minutes I will take.
There is concern as to what is a record. Bill C-46 considerably expands the type of record to be included in the application proceedings from what was discussed in the case of O'Connor. The definition of record is very broadly defined and the very same effort, the very same type of application, the very same procedure will be required whether an accused simply wants to get hold of an employment record or a school record as opposed to therapy records. It won't matter. It applies to all witnesses, not just the complainant.
By way of an example, the Morin case is now being considered by special inquiry in Toronto. Had that been a sexual assault matter rather than a murder, there is a good chance that the accused would not have been able to get hold of the records pertaining to the informants who were in prison, very important records that might have indicated their unreliability. Under this legislation the accused would probably not have been able to get those records unless he could have shown something that would fit within the criteria.
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Concerning the production of the records to be made available to an accused under proposed subsection 278.2(2) of Bill C-46, it is our submission that this section effectively repeals Stinchcombe. Where the Crown has the records and the complainant hasn't expressly waived the privilege, then the accused cannot get access to those records in the possession of the Crown. The same rules apply whether the Crown already has the records or not. That is the application process.
Imagine this: the Crown decides there may be some relevance to the records, obtains them with the permission of the complainant, reviews those records, or further obtains records from a doctor or a counsellor or a psychiatrist and decides, after reviewing the record, that rather than being of assistance to the Crown, indeed it discloses considerable information that might affect the prosecution, that might be exculpatory on behalf of the accused.
Under this legislation the Crown would not, even though it may want to, be able to advise the accused of the fact of these serious problems contained in the records if the complainant did not waive the privilege, and it's unlikely that she would - and in many cases it is a she. Then the Crown has in its possession exculpatory evidence that under Stinchcombe it would have had to disclose. But now, under Bill C-46, even if they wanted to, they can't without the accused making the application.
Therefore, if the accused doesn't know what's in the records, or has no idea under the criteria that are established, it's our submission that it's very unlikely the accused would get hold of the very information the Crown has. But on the other hand - and it's our submission that this bill favours the Crown - if in all of this material there is information that is of assistance to the Crown, then the Crown can take that information and use it as part of its case against an accused. There is an unfair preference here for the Crown.
Proposed section 278.2 endorses the protection of privilege and privacy despite the fact that where the Crown has the records, the complainant had already been prepared to forego that privilege. So we are trying to protect the privilege or privacy in the complainant in a situation where she was already prepared to forego it by turning these materials over to the Crown, or indeed, in other situations where other persons involved in the matter have already seen the documents.
There is a third problem under this aspect that I would like to address - that is, the difficulty, which has been suggested a number of times, of how an accused reaches the necessary threshold to get the records. It's been suggested the accused could call various witnesses and have them testify and then, once the base is laid, get the records. What happens if indeed the accused does call these witnesses and it turns out they've refreshed their memory from the records, or the complainant has refreshed her memory from the records? As the law stands now, ordinarily an accused would be entitled to examine the records that the complainant, or the witness, has used to refresh their memories. As I read Bill C-46, this would not be possible. We'd have to now have a whole application in order to get hold of the records.
I would point to the difficulties of cases where we've had matters go seriously wrong. Perhaps one of the more notorious is the Martensville prosecution with young children. There has been a focus on recovered memory and historical crimes, but it needn't just be that type of concern. We also have a concern with children; they are easily suggestible and these records that are being excluded will also affect the type of records - therapeutic records and counselling records - that would help to determine the nature of the process involved with young children when they come to give their evidence at trial.
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As a last point - and I have a number of them noted, but I expect there will be questions - I note from some of the earlier proceedings that reliance has been placed on the preliminary inquiry as a means of getting hold of the records. It mustn't be forgotten that many of these trials may proceed summarily where the maximum penalty is 18 months imprisonment. So in all of those matters where the Crown feels that they can proceed summarily, there will be no preliminary inquiry at which an accused person could ask relevant questions of the witnesses who are called in order to obtain the information necessary for the threshold.
Thank you.
The Vice-Chair (Ms Paddy Torsney): Thank you.
Mr. Durno, are you next?
Mr. Bruce Durno (President, Criminal Lawyers' Association): Madam Chair, members of the committee, on behalf of our association I wish to thank you for providing our association with an opportunity to make comments on this legislation. We are always pleased to have input on new legislation, particularly today because of the grave concerns we have with respect to Bill C-46.
We have over 800 members. Our members are in court on a daily basis, and on many of those days dealing with cases that would be affected by Bill C-46. I hope the input we can have here today is from a practical point of view as to what is happening in the courts now, and what will happen if this legislation is passed.
We have participated in the past in the consultations with respect to third-party records. The consultations started even before the O'Connor decision. Our members, like many involved in the administration of justice, anxiously awaited the decision of the Supreme Court of Canada in O'Connor. We have worked with O'Connor now for about 15 months, and that is not a long period of time within which to work with a new area. We have the practical experience in dealing with the law as O'Connor sets it out.
We have grave concerns with respect to this legislation. It creates, in our submission, a significant potential for miscarriages of justice, and in our view that would be a disgrace to the administration of justice.
Our judges hear wire-tap applications with highly sensitive information provided regarding informants and police practices. They deal in some cases with search warrants; matters that are sealed so the public does not have access - psychiatric committal orders, civil actions brought against therapists and medical professionals - where they examine private records. Yet, among the most troubling aspects of Bill C-46 is an implicit message that the judiciary cannot be trusted to examine third-party records. They can't be trusted to examine the records upon a showing of likely relevance and then reach a proper determination. It's a sad day to see legislation that provides this message.
It's important to note what's occurring in the courts now with O'Connor. As I indicated before, we've had about 15 months. There are not widespread abuses. There is no material, in our submission, to support a position that the current procedure discourages the reporting of sexual assaults. You can check with the matters that are proceeding to trial in the Ontario Superior Court, called the general division in Ontario. If you exclude the narcotics prosecutions, a very large percentage of the cases that are going to trial are sexual assault cases. All you have to do is look at the newspaper to see the number of charges that are being laid. In our respectful submission, the position that the current legislation discourages the reporting of sexual offences is absolutely in error.
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As indicated by Mr. Bloos, the legislation deals with production, not admissibility. If I, as a defence counsel, am permitted to look at the records, I still have to get over the hurdle of admissibility. The judges now look at the applications on a factual basis in the case, because it's important for the judge to know whether the issue in the trial is consent, the identity of the perpetrator, or whether or not the event occurred at all.
The judges now have an opportunity under O'Connor to look at the facts in the case, and appropriately so. A piece of information that may be relevant on a consent issue may have nothing to do with a case and be totally irrelevant on an identity issue. It is not easy to get over the first threshold in O'Connor. On a practical basis, it is not a simple task to establish to a court that the records are likely to be relevant. You have to have a basis for doing it.
Mr. Bloos has covered the issue with the summary conviction proceedings. In many of those cases where they're proceeded with summarily, it would be unlikely that the defence would ask questions at a trial level that could set the basis for an application when you're before the trial judge. The answer is that it's a preliminary inquiry and you can get the material at the preliminary inquiry.
There is a significant debate occurring with respect to the future and scope of preliminary inquiries. What type of material is presented on these applications? What type of material can be found in the records? I suggest to you that if you put yourself in the position of a juror sitting on a case, it would be important for you to know that in fact the witness has at a previous time given a statement inconsistent in terms of the narrative. I would think that as a juror you'd want to know that.
Would you want to know whether therapy has influenced or contaminated the memory of a witness and how the witness came to the point of making the complaint to the police? Some might suggest that this is a new area; we didn't hear about this 15 or 20 years ago. Well, there weren't a lot of therapists 15 or 20 years ago. I don't recall exactly when they came in, but when I started practising law more than 20 years ago, I don't recall there being any rape crisis centres. This is not a creation of the defence; these are new phenomena.
Would it assist you as a trier of fact to know that there had been a diagnosis of the witness as a pathological liar? I would think it would. Would it also assist in terms of whether there is a consistency in the statements? When that material is available, it can lead to the resolution of cases.
Assuming you can find the material, which is usually from a preliminary inquiry - I think it would be a rare case where you would get over the first threshold just on the basis of disclosure - the judge then examines it. We don't get those records after the first step. The judge, whom we trust with some of the most important decisions in society, looks at the issues in the case, looks at what's in the record, and goes through it with a black marker. A great deal of the material is not disclosed. Sometimes it is if it is relevant to the case upon a determination by the trial judge.
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One of the criteria, of course, is whether it is necessary to make full answer in defence. It would certainly be our submission that if any piece of material is essential to make full answer in defence, if it is not disclosed there should be a stay of proceedings, because the trial would then proceed and it would not be a fair trial.
Once the material is provided to the defence, as I indicated earlier, then you get to the situation of the admissibility of the evidence and whether it is of assistance to the Crown or to the defence. That's a determination made by counsel whether either party would even want to raise the issue of what's in the records before the trier of fact. Just because the records are produced, the jury or the judge sitting as the trier of fact may never hear a word about them.
In our view, O'Connor is not a licence to a fishing expedition. There are safeguards in place now that are working. The defence may obtain some bits and pieces of material that are of assistance, but if you look at the type of material that can be available, as I've indicated before, surely those are so essential for the trier of fact to know that material that it should be disclosed, and not to enter into a process, as indicated by Bill C-46, that is going to preclude the trier of fact from ever hearing that information, because it makes it very difficult, if not impossible, to even get to the first threshold.
Those are my submissions.
The Vice-Chair (Ms Paddy Torsney): Mr. Koziebrocki.
Mr. Irwin Koziebrocki (Treasurer, Criminal Lawyers' Association): Thank you, Madam Chair.
First, I would adopt my president's position with respect to this bill. I am the treasurer of the Criminal Lawyers' Association and also the co-chair of the legislative committee. We have the privilege of receiving your legislation on a regular basis. We review it to, we hope, make submissions to the committee and the Department of Justice as well as to the Senate.
By way of background, you might wish to know that for the last 15 years or so I have practised as a defence lawyer in the city of Toronto. Before that, for almost 10 years I was a crown counsel at the Attorney General's office. So I have experience with respect to these matters from both perspectives.
At the same time, I would indicate to you that one of my functions outside of my practice is as chairperson of an organization known as the Toronto Art Therapy Institute, which deals with matters of a therapeutic nature when it comes to situations that involve personal records. At the Art Therapy Institute we not only teach art therapy as a diploma course but we also see clients.
We have received grants from the City of Toronto, for example, to deal with women and children who have been victims of batterings and sexual abuse. We've done certain studies for the city and for other government agencies. We appear in a number of hospitals to assist in the therapy presented to people in that setting - for example, at Bloorview hospital and others like that.
So from that perspective we've had to face these types of issues. Clearly, it becomes an issue in the sense of how you instruct the people doing this type of therapy on what to do and how to deal with their clientele, what to tell them.
Certainly from my perspective we've set up a regime that allows the client to know that there is potential for court process involved in this matter. They know that from the beginning when they enter into any kind of therapeutic endeavour.
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We've set up a program whereby it is the position of the therapist that they keep their notes. They keep them in a locked situation; they respond to any process that's issued by the court; and then allow the judge to decide what would happen with those records if that comes to pass.
That's where we come back to this particular legislation, certainly from the perspective of someone who defends people accused of criminal acts. We've always taken the view that there is a judicial system in place and that one of the functions of the trial judge is to decide issues of access to evidence or potential evidence and also to make determinations of admissibility of that evidence.
The problem with this type of legislation, as my president has said, which takes away that function in a great degree from the trial judge and changes the process of determination of availability and admissibility for these particular types of cases only, is that it appears a regime is being set up here to deal with one type of offence that arises in the Criminal Code. Anyone who has practised criminal law for any length of time knows that third-party records are on occasion a very important tool in defending a criminal case, not necessarily in a sexual assault type of situation but in all kinds of cases.
I would venture to say, certainly in my experience and that of many of my colleagues', that those third-party records are often more important in non-sexual assault type cases, and we've had access to them in the past. We've had access to them in this type of situation as well, and they have proved to be useful in the sense that there is an ability to present not only a full answer in defence but also to get to the truth of the issues before the court. This type of legislation, with respect, seems to tend to go away from that particular issue here.
There are certain factors I want to address briefly. You've put a preamble in this legislation. In my view that's rather unusual. You see more of these than we do, but I would venture to say there are very few pieces of legislation that come before this body that have a preamble such as this. The preamble does cause concern. It appears to go beyond setting out the nature of the legislation and goes to certain things as almost defining charter rights.
I took the opportunity to look at the Canadian Charter of Rights and Freedoms. There's a preamble in the Canadian Charter of Rights and Freedoms. It says, ``Whereas Canada is founded upon principles that recognizes the supremacy of God and the Rule of Law''. Then we go into section 1, which guarantees rights and freedoms with such reasonable limitations as can be justified in a free and democratic society. That's the preamble on which we determine charter rights.
Effectively, if you take a look at this particular preamble - and I understand other witnesses have come before you and said it should be embodied directly in the legislation - literally what's happening here is that this preamble supposes to interpret the Charter of Rights to indicate that certain charter rights have applicability and should be treated in a certain fashion, that they should be equated to other charter rights.
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With respect, I would have thought that this is something that should be left to the charter itself and to those who interpret the charter as opposed to this piece of evidentiary-type legislation telling us how the charter ought to be interpreted.
Effectively, this portion of the bill tends to be a piece of charter legislation without the type of solemnity to which charter legislation should be addressed. There is a process, as I understand it, for passing charter legislation, and this isn't it.
So I would say to you that when you look at the preamble, consider what you're being asked to do here. Consider that you're also being asked to make statements in that preamble that may or may not be valid. You're asked to say that people won't report sexual offences if these records are made available.
Do we know that? I would venture to say, as my president has said before me, that you only have to look to the courts in Toronto to find out that the vast majority of trials going forward are sexual assault matters. You only have to look to The Toronto Star to know that in the last two weeks, 65 complainants have come forward in one alleged sexual assault matter out of an historic building in Toronto, and to know that people are coming forward and complaining. They're not holding back because they think their records may be made available to the defence counsel and to parties to these proceedings. They're coming forward because they feel it's appropriate to come forward in those circumstances.
One of the other factors you have to determine in this particular legislation is what you're asked to do in terms of the records you are being asked to protect.
This legislation, in terms of defining as simple a word as ``record'', has gone far beyond anything that has existed in the past. For example, in proposed section 278.1, where you find the definition of record, you include such things as personal journals and diaries.
First, if you're talking about the personal journal and diary of the complainant, in this case in a sexual-type matter, that's not a third-party record. It never was a third-party record. It's a record prepared by the complainant for their own purposes, which they may consider to be personal because it's a personal journal and diary and they don't want the world to know about it. But certainly in the past anyone who's had anything to do with criminal proceedings will know that personal journals and diaries hold a wealth of information as to the validity of a particular allegation. They have been made available for both sides. When the accused writes something down in their journal, it may become evidence against that person when it's seized by way of proper search warrant or other proper means of seizure.
A journal that's created by a complainant wherein that journal would demonstrate that someone else was involved as opposed to the particular person who is the present accused, has always been made available and been useful in determining the truth of the allegations being made. You're being asked to cover anything that was made in a personal nature that someone would love to keep private but has clear implications and ramifications for the determination of the truth and determination of whether someone has a fair trial.
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One of the other factors you ought to look at is proposed subsection 278.3(4). This is where much of the battleground, so to speak, will take place in this legislation because you've created a hurdle in terms of providing the information that creates great difficulty. Maybe that was the intention of this legislation, but it shouldn't be given out willy-nilly. We all agree with that, but just because you ask doesn't mean you get, or should get.
To say to somebody that to make an allegation that this is part of the subject matter of the proceedings effectively would deny you the documentation that could result when someone goes to the hospital to be tested for sexual-type situations. To say to someone that you can't have this document because it may prove evidence of inconsistent prior statements is just contrary to the law, contrary to any precept we have ever dealt with in a criminal court.
The very nature of the proceedings, as my president has said, is that you wish to know whether someone has made prior inconsistent statements so you can put that to the person to see how they react to that statement and for the trier of fact to determine the validity of the complaint because there have been prior inconsistent statements. I think all of us, were we faced with an allegation of serious criminality, would want to know whether a complainant in a particular case had made prior inconsistent statements.
To say you that cannot have documents on the basis that there is an absence of recent complaint is completely contrary to the law as we understand it and as it developed in the past. The very nature of these types of proceedings is that one of the things presented, either for the accused or for the complainant, is whether there has or has not been prior consistent statements, or whether there has been a recent complaint.
The legislation as it exists now says the recent complaint isn't an issue for the courts any more. But the case law that has developed says the Crown can present evidence that a recent complaint has been made to confirm the testimony of the complainant. They've set out a series of cases and series of situations where that can be done.
To now say you are prevented from calling evidence, that the complainant has not made a complaint within a timely fashion, not only causes an injustice but also takes away one of the main tools someone would expect would be available to someone in presenting a criminal defence - to say, that is, ``You allege this thing happened 15 years ago; you have not complained for 15 years of these events; explain that.'' You would only know that if you had access to the records, and the records showed there had been no complaint.
You open the door in a situation like this to being, so to speak, back-doored. That is, you might make the allegation without the knowledge that someone has or has not made a recent complaint. You could say to a complainant that they haven't complained about this, and be met with a situation where the Crown then calls, in reply, evidence they have in their possession but you don't have, saying there have been 13 complaints in the past. It causes an unfair trial, I would think, if you didn't have that particular information to make an appropriate determination as to how you would proceed.
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This is the nature of this type of legislation. I don't think anyone on this side of the bar is complaining about the fact that there should be some form of judicial determination as to whether such documents should be made available to the defence.
What we're complaining about is the fact that this legislation makes it almost impossible to have that determination made. It's almost impossible for us to get the foundation needed by this legislation to make the proper presentation.
Our view, I would suggest - I'm speaking on my behalf but I expect my colleagues might well adopt this - is that if this type of situation arises, the material should be presented to a trial judge. We are prepared to accept a trial judge's determination as to whether there is something relevant in that documentation. If you're looking for the protection of privacy rights, the only person who sees those documents is the trial judge.
You have a series of other forms of this particular legislation that protects the privacy rights in terms of non-disclosure, non-publication and not allowing you to give those records to anyone other than defence counsel in preparation of their trial. You have a regime that's available to protect those privacy rights.
Really what we're asking for in this case is that the judge in the judicial system be allowed to work in a fair and appropriate fashion.
Those are my submissions. Thank you.
The Vice-Chair (Ms Paddy Torsney): Thank you.
[Translation]
You may now proceed with your questions, Ms Gagnon. You have 10 minutes.
Ms Christiane Gagnon (Québec, BQ): We have heard very different arguments in recent days from witnesses representing women's groups. Most of the time, women and children are the victims of sexual assault.
Your comments are completely at odds with the testimony we have heard to date. Among other things, the workers we heard from told us that women were discouraged, that they did not seek assistance as freely as they had before and that the number of complaints was dropping.
You, on the other hand, say that there has been no increase in the number of improper applications for production of records. You also say, contrary to the previous testimony we heard as well, that women have not been discouraged from coming forward with complaints. So your approach is completely different. Opinions vary depending on which side of the issue one finds oneself.
We have also been told that information on the content of therapy sessions or meetings could not be used to support a sexual assault case, because this information is very subjective. Notes are not written so as to... Often the notes do not take down the person's comments verbatim. They are the worker's interpretation of the comments heard. Consequently, most workers would have preferred that no records be produced.
However, despite that, those witnesses told us that they were pleased about the spirit underlying Bill C-46. They made some recommendations, as you have done this morning. I don't know how we will manage to reconcile these two opinions, because the arguments you have presented this morning are totally different from those we have heard before.
You seem to be saying, particularly you, Mr. Durno, that complainants are not discouraged from coming forward. You say, in fact, that the number of complaints... Do you have any figures to back up your comments? What is the basis of your interpretation of the situation?
[English]
Mr. Durno: Quite frankly, it is based on being in the criminal courts Monday to Friday virtually fifty weeks a year and seeing the trial lists. I can tell you that in the course of some work I was doing with the associates from the Ontario Legal Aid Plan, we tried to get the figures.
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In some jurisdictions there is a crown attorney who is a sort of coordinator of the superior court lists. In my discussions with people in Toronto, and outside of Toronto as well, that's the basis of my submission on the number of cases that are proceeding to trial.
All you have to do is walk through the main courthouse in Toronto and look at the trial lists and see what the charges are. In fact, you don't even have to go to the courts. There's an information booth just inside the front door. Look at the number of sexual assault charges. The basis of my conclusion is what I'm seeing in the courts. If somebody else is making representations about what they're hearing someplace else... I just can't believe anyone could say that the number of sexual assault prosecutions and related prosecutions has not increased substantially in the last few years.
I tried to get one of the coordinators to give me an exact figure and I got an estimate. Certainly, for the majority of the cases that are proceeding, I don't think there's any doubt about that. If you take away the drug cases, which amount to about 40%, I think, in Toronto, the cases that proceed to trial are the sexual assaults.
I can go back to them and see if they would let me give you a figure. I think you could just do it by counting the outstanding indictments in Toronto.
Mr. Koziebrocki: Let me add something from my perspective. Most of my work these days is appeal work, which I've done over the last twenty years, and I can tell you that on a appeal basis, from what you see in the Court of Appeal these days, the number of sexual assault cases that are going to the Court of Appeal has risen dramatically.
I would venture to say that between one third and one half of the appeals that I do now are sexual assault cases. If you want to take that as an indication, compared with what it used to be like, ten or fifteen years ago 10% of the cases were of that nature. There has been a dramatic increase.
I think we would all acknowledge that part of it is because of the ambience, so to speak, that allows reporting and because of the lack of stigma attached to reporting this type of case now compared with what it used to be like in the past.
I think you only have to look at the caseloads to know that there has been a dramatic increase of those types of cases in the courts.
The Vice-Chair (Ms Paddy Torsney): Mr. Bloos.
Mr. Bloos: I agree with what both Bruce and Irwin have said, but for those people who are saying that complainants are being discouraged, how do we know that? If they're not coming forward, how do we know they're being discouraged? What's more, assuming there are a few who might be discouraged from coming forward, do we know why they're being discouraged? Is it because of a fear of disclosure of records? Is it because of a fear that the whole matter will become public? Is it because of the fear of cross-examination? There could be many reasons.
So to prepare this bill, which dramatically alters the fair system of justice we've had in Canada - one that has been built up over the last 200 years - on the strength of numbers that we know nothing about and that we can't literally quantify empirically may be in error. Until we know for sure that there are indeed this many complainants who are not coming forward because of this or that reason, I suggest it's dangerous to set up legislation on that premise.
The Vice-Chair (Ms Paddy Torsney): Madame Gagnon.
[Translation]
Ms Christiane Gagnon: You raised another point as well. I don't know whether I'm using the right word, but you seem somewhat insulted that Bill C-46 does not show enough trust in judges.
The women who testified before us told us that in their view, women witnesses were often not taken seriously by judges. There's the whole issue of access to women's personal records as well.
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The women witnesses we heard from spoke about a lack of confidence as well, but in their case, it was a lack of confidence toward women. There is also the matter of the false memory syndrome. We were told that judges were from a certain era that shows very little understanding of women's issues. We heard as well that judges have some biases that could influence their view of women. Women feel their integrity is threatened.
You seem to have similar concerns about integrity and confidence, but the objects of these concerns and the reasons for them are very different.
[English]
Mr. Durno: There are those who would say that judges are just not sensitive to these issues. Judges undergo training. Judges undergo the scrutiny of the Court of Appeal or the Supreme Court of Canada in terms of their determinations and their comments. If they are not sensitive to the appropriate issues there is an appeal court. Those issues are addressed, and in my view, to take the position that we just can't trust any judge to look at these records and come to an appropriate determination, as indicated by R. v. O'Connor... It's a sad day to see that as a position that would motivate legislation, given the judiciary in this country.
Mr. Koziebrocki: Briefly, going back to the appeals I do, if we can't trust judges then why am I getting so many appeals in sexual assault cases? Those are cases where people have been convicted of criminal acts, usually by a trial judge. Obviously there is some sensitivity to complainants, be they children, be they female or male. I don't really think that's an issue for the courts at this time.
In many of those cases, the question really comes down to whether the witnesses are credible in certain circumstances, given the weight of the evidence presented. To give as a reason to pass this type of legislation that we lack confidence in the judicial system really is a slap in the face for the judicial system. In Canada we pride ourselves on our judicial system and we live and die by that system. It's a tenet of our democracy, and to say that we can't trust that system to do the right thing and then to have Parliament actually act on that kind of principle is a serious concern.
Mr. Bloos: Respecting the false memory issue, I know this committee already has two letters before it from experts in their field. In his letter of January 10, 1997, Dr. Perry Campbell describes the dangers of false memory syndrome and the cases he's worked on and the issue of the therapists who got hold of the complainant and altered the memory of the complainant.
There is another letter from Dr. Merskey, a professor at the University of Western Ontario, dated September 10, 1996. He's pointed out that studies in the United States have established that as many as 40% of sexual assault complaints were false. This was established through confessions made by the complainants themselves that they were false, or alternatively, police investigation corroborating what the accused was saying.
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To the point about judges, I'm from Alberta; that's where I practise. Alberta is not known for its political sensitivity. However, the rule of thumb amongst the defence bar there on sexual assault matters is to ask for a jury, the feeling being that you'll get a more balanced hearing of the evidence. The sense is that the judges have now become so politically attenuated, and very sensitive to all of these issues, that if they err, they often err on the side of the complainant. The sense sometimes is that the accused, rather than being presumed innocent, has to establish that he's not guilty.
So the argument that judges cannot be trusted with this very sensitive information rings hollow to me. From the experience of the defence bar, our view is that sometimes the judge will more often than not favour the complainant in these sensitive types of matters.
Admittedly, you may have individual judges where that can't be said, but over the balance of them, judges are very sensitive to these issues. I have no fear at all that they'll be able to handle them carefully and sensitively.
[Translation]
The Vice-Chair (Ms Paddy Torsney): Thank you very much. Ms Ablonczy, you have ten minutes.
[English]
Mrs. Diane Ablonczy (Calgary North, Ref.): Thank you, Madam Chair.
I regret that I was not able to be here to hear your presentation, but we have had a number of presentations and I think the issues are fairly clear for the committee.
My first question is with respect to my understanding...and I apologize if there have been previous questions along this line. Perhaps Madam Chair can let me know if I am repeating a question.
The Vice-Chair (Ms Paddy Torsney): All right.
Mrs. Diane Ablonczy: I understand that it is a new phenomenon that personal records are able to be requested in sexual assault cases. Your concern is about making a full and fair defence and needing these records to do this. I'd like to have your opinion as to the fact that there was presumably a full and fair defence possible before it ever became possible to subpoena these records.
Mr. Koziebrocki: I think it has always been possible to obtain these types of records.
As to the past, one of the things we did discuss earlier was that these types of records really didn't exist in an era before the development of rape crises centres, hot lines, that kind of thing. So there never was this kind of bulk of support personnel out there that there is now, creating this kind of documentation.
In the past, the types of records we did receive were hospital records, on occasion. They've always existed. We've always had access to them. In fact, the type of case where I used to see them more often than not is homicide-type cases where you would have the records, and they became very invaluable in presenting cases. Diaries that were kept by particular persons, complainants, that kind of thing, were available in the past.
The new phenomenon, so to speak, has nothing to do with the fact that we never had access to them, but that a bulk of these records just never existed in the past. So it's not something we could live with twenty years ago that we can't live with today; it's something that exists today that may not have existed in this form twenty years ago.
Mr. Durno: We have also a great expansion of therapists, and unregulated individuals who call themselves therapists, who weren't in existence when probably all of us started practising. So to say that we had full answer in defence in 1975...if therapists or rape crisis centres weren't then available it's kind of a shallow argument. They didn't exist, so there were no records then.
.1040
Mr. Bloos: Again, in Dr. Campbell's letter he outlines the book, The Courage to Heal, published in 1988. The first experience of the problems and the fallout from that type of literature concerning recovered memory and so on started developing in the United States after 1988.
In Canada, the Criminal Lawyers' Association led the way in terms of presenting scientific information. This was in 1993 and 1994 in Toronto, the first time in Canada that conferences on this were held. We had experts from all across the world - psychiatrists, psychologists - on memory, children's perception and so on. For the first time there was focused debate and information concerning the potential dangers of misguided or poorly organized therapy and so forth by people who weren't properly trained.
The information simply wasn't available for a long time. Of course, something that started in the United States, perhaps in the 1980s, took a little while to come into Canada. We're now learning the same things that have been learned in the United States, where there's a good deal of scepticism and the courts are now rejecting wholesale these recovered-memory kinds of therapeutic records or those kinds of allegations.
One aspect of this is as a result of new scientific evidence and information from the scientific community. That's why some of these things are relatively new. I would agree with my friends that a lot of it was always available, certain kinds of records, and they have been obtained in the past.
Mrs. Diane Ablonczy: Of course, as you know, the largest concern in this whole area is the well-being and the interests of complainants who are legitimately victims of sexual assault, and the incredible personal emotional trauma and stress that sexual assault causes.
We've had a lot of testimony to the effect that women - and these are usually women, but not always - desperately need help, encouragement, support, understanding, and the ability to share with total openness and honesty, in order to deal with the situation and come out as whole persons. The knowledge that anything they say can and will be used against them is simply too personally negative for people in our society that have already suffered a great deal, to kind of have open season on anything they might say or disclose.
I think you must have considered the public interest and personal interest of victims of crime. I wonder how you would suggest that this can be properly balanced if anything and everything can be scrutinized and used in whatever way brilliant lawyers use them in order to try to get accused people from being convicted.
Mr. Durno: I think part of the misconception is that this creates an open season. It doesn't. You have to get over the first hurdle, then the judge sees it. I don't get to see it. My client doesn't get to see it. I don't scrutinize every little word that's in there. If the judge determines there is something in there that can be used for full answer in defence, after getting over the likely relevance test, then and only then do you get to see it.
It's not open season on everything in a file. It has to be relevant to the facts of the case, and if it's being scrutinized, it's being scrutinized by the judge, who is not the advocate for the accused person.
.1045
In terms of lawyering on cases of this nature, they are difficult cases to defend, and if a lawyer wants to take a position in front of a judge or in front of a jury that is abusive as a result of something in the records, something that goes too far, all you're doing is hurting the accused person. That's not in the interests of the accused at all.
So I think some of the concern that once you go to the police, once the information is sworn, your life is an open book, in my respectful submission, is not the law in Canada at the present time on the basis of O'Connor. In my practice in criminal courts and in the practice of our members, it just doesn't happen the way it's being portrayed.
Mrs. Diane Ablonczy: I have one other question if there's time.
The Vice-Chair (Ms Paddy Torsney): You have 30 seconds.
Mrs. Diane Ablonczy: What response would you have to these concerns about the need to ensure that all Canadians have equality before and under the law when there have been some disparities pointed out with respect to how women particularly are treated in these cases?
One of the principles underlying the introduction of this bill is this whole notion of equality, and I'm sure you've considered that. I'd like to hear your comments on that.
Mr. Koziebrocki: My view is that criminal law isn't a contest. It isn't a contest between a complainant and an accused. An allegation of a criminal act has been presented. There are rules we've developed as a civilized society as to how we deal with those kinds of criminal allegations. The accused person has certain protections afforded everybody in this community - male, female, children, whomever they happen to be - if they're accused of a criminal act.
I don't think we could more wholeheartedly agree with you when you say that the victims of sexual abuse need all the nurturing they can possibly get to get their lives whole again. Nobody doubts that whatsoever. But in the course of a criminal trial there are certain matters that are presented in terms that really aren't issues of equality in the sense that you and I would say we're equal under the law. They're issues of how we present a case against someone and how we defend a case against someone.
In that respect, if someone has created a document that says, for example, Sam did it, and Harry is the one who's on trial, if you were Harry you surely would want to know that there's a document out there that alleges that Sam did it, because it would go a long way toward defending yourself in the process of that particular criminal process.
So the issues of equality as they're presented here may not necessarily be the issues of equality that should be addressed in the context of the admissibility of evidence or the availability of evidence.
Mr. Bloos: As well, the Supreme Court dealt with this - the majority did - in O'Connor. They recognized there that there's no hierarchy of rights. An accused can't come in and say, ``I have a right under section 7 to a full answer in defence, and that trumps your right to privacy''. The court recognized that we have to arrive at a balancing, and indeed they did that.
One of the fundamental principles of Canadian law, surely, and that the charter is based on, and indeed the House of Commons, is the protection of the individual's right not to be arbitrarily punished or imprisoned. If it's not about the protection of freedom - this House and the Charter of Rights - it's not about anything important, in my view. On the other hand, there is the privacy right.
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What the court said was that in order to make sure guilty people aren't punished and sent to jail on the one hand while privacy rights are trampled on the other, it was going to establish a threshold for the accused. He has to establish likely relevance. He has to show something beyond the fact that the person has gone to a therapist. He has to be able to identify some criteria.
The problem with this legislation and the eight factors that are covered therein is that four or five of them take away all of the relevant criteria such as credibility or inconsistency or other sorts of issues. We've come down heavily in favour of a privacy right, a generalized privacy right against, and in my opinion, that trumps the accused's right to a fair trial under section 7 in the face of expert opinion that as many as 40% of allegations may be untrue.
We're not talking about a rare case where there might be a miscarriage of justice. We're talking very high numbers of potentially untrue allegations. That's why the balance, which I think was effectively reached by the Supreme Court in O'Connor, must be maintained, and that's why this legislation, in my opinion, goes too far.
The Vice-Chair (Ms Paddy Torsney): Thank you. That's an extremely generous fifteen seconds on my part.
Mrs. Diane Ablonczy: I appreciate it, Madam Chair.
The Vice-Chair (Ms Paddy Torsney): It was a double round.
Mr. Bloos, I want to check something. You mentioned in your last comments that 40% of accusations or cases in the courts are false.
Mr. Bloos: I'm working from Dr. Campbell letter of September 10, 1996.
The Vice-Chair (Ms Paddy Torsney): I guess you'll supply the study on which that's based. I think that's an American study, not a Canadian study.
Mr. Bloos: Yes. I hope I made that clear.
The Vice-Chair (Ms Paddy Torsney): Not in your last comments.
Mr. Bloos: I am sorry. Yes, he's going from American case studies -
The Vice-Chair (Ms Paddy Torsney): But accusations, not cases in the court -
Mr. Bloos: That's right.
[Translation]
The Vice-Chair (Ms Paddy Torsney): Mr. DeVillers, please. For ten minutes.
[English]
Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Madam Chair.
On your point about the standard being adjusted, if I told you that I went to the police with a story that I'd gone to a bar, met some guys, watched the hockey game and we walked out of the bar and they assaulted me and took my wallet, would my credibility as a witness in a trial be examined as carefully as if it were a sexual assault? If I were a female saying I went to a bar, had a few beers and was assaulted sexually, would my credibility as a witness suffer the same scrutiny as that of a sexual assault victim?
Mr. Durno: Absolutely. If credibility is the key issue in the case, that's the issue upon which the litigation focuses. If there is material available to show that the individual who came out of the bar has been diagnosed as a pathological liar, it would be an unfair trial and a miscarriage of justice not to bring that out.
So if credibility is the issue, of course it will. You get the information that is available in terms of assessing a key witness's credibility, if that's the issue in the case.
Mr. Paul DeVillers: Based on your experience, is credibility the issue as frequently in that type of assault as it is in sexual assaults?
Mr. Durno: It depends on what your instructions are from your client. If your client says it wasn't him, and says he wasn't even there, and it then revolves into an identity case, credibility is certainly an important factor, but so are the various aspects of identification cases. If your client says he was there, the person came after him and it's a pure matter of credibility, absolutely.
Mr. Paul DeVillers: Yes, but the point is, credibility has to become the issue before the same scrutiny is applied. Is that what you're telling us?
Mr. Durno: That would be my -
Mr. Koziebrocki: If you're talking about sexual assault cases, they take different routes. If you're presented with a case where the complainant is taken to a hospital and there's all kinds of physical evidence of a sexual assault, you're not going to be presenting a case saying, ``Your credibility is an issue as to whether you were sexually assaulted.'' The case may revolve around whether it's an identification case, whether you can identify the assailant.
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There's no doubt there was an assailant, but it's like any other case - a robbery or an assault - where the issue comes down to a question of identification of the particular assailant. In those cases, there may not be any issue as to the psychiatric make-up of that person or there may be an issue in the sense that there may be something in the documentation that would taint the identification.
Mr. Durno: Surely, if you had gone to a doctor as the complainant in the case and given an account to that doctor, saying that you pulled a knife before there were any punches and in your statement to the police there was no mention of you even having a knife, it would be a strange case if that couldn't be let in as evidence.
Mr. Paul DeVillers: Mr. Durno, I think you've made reference to this legislation being in effect an insult to the judiciary. You've said that it indicates there is no trust in the judiciary, that they're not capable of making the determinations that they do under the present case law.
As I see the legislation, there's still judicial discretion, although I grant you that it's a higher standard and that a higher test needs to be met to obtain production of the records.
Mr. Durno: I think it's the difference between Parliament Hill and Mount Everest.
Voices: Oh, oh!
Mr. Paul DeVillers: There is still judicial discretion in arriving at that decision, is there not?
Mr. Durno: Having to get over the criteria that Mr. Koziebrocki spoke about before the judge can even look at the records is, in many cases, insurmountable. It will never get to that point. You're asking a judge to make a determination on the relevance of a record when the judge doesn't know it's there.
Is there some discretion left? Yes, but in terms of ensuring fairness of trials and avoiding miscarriages of justice or the potential for miscarriages of justice, I stand by the submissions. This is not a slight change to O'Connor.
Mr. Paul DeVillers: My final question is for Mr. Bloos.
In the summary in your brief, in your second and third points about problems you say that this allows the Crown to receive and even obtain a warrant for third-party records and the accused doesn't have the same right, and you say that it sets ``an inappropriate waiver standard for complainants, which allows them to disclose their records to the Crown without making them available to the accused''. But what about the duty of the Crown as an officer of the court to disclose any evidence that might come forward?
Mr. Bloos: I think this would override that duty. I believe the Crown would possibly find himself in a conflict, but in any event the legislation is clear: without the waiver from the complainant, the Crown can't say anything about the records. All the Crown does is say that he has records, but doesn't say what's in them, and he won't disclose those records to you as defence counsel. Unless the accused can bring a successful application under this legislation, which is unlikely in my opinion, he won't see those records.
In reviewing the questions from this committee to Ms Kane, I noticed that it would come back to how an accused would get these documents if they don't know what's in them but there's a strong likelihood that they are relevant - that is, if they are about the assault itself, if they were made right at the time or if they might have been some of the very first documents that were made.
The response was that other witnesses can be called. But what other witnesses? How do you know what they know?
Are we transferring a type of fishing expedition - that was a concern - from just getting the records into the judge's hands to lengthening the court proceedings endlessly to call all these witnesses to find out whether the accused can now establish a basis to get to the records?
Mr. Paul DeVillers: So these concerns were based on your position that the waiver would override the Crown's duty.
Mr. Bloos: Yes.
Mr. Paul DeVillers: Those are all the questions I have, Madam Chair.
The Vice-Chair (Ms Paddy Torsney): Thank you.
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We also have Mr. Maloney and Mr. Bryden, so we have another round.
Mr. John Maloney (Erie, Lib.): I have a quick question. Further to what Miss Gagnon was saying, the evidence we heard previously is that only 6% of complaints are made. The police weed out 30% of those, which is roughly two-thirds. In other words, 4% of those cases come to the courts.
Is it possible that, notwithstanding the heavy court docket you have, those figures are still correct? Do we have an incidence of sexual assault to the extent that...or are these statements inconsistent?
Mr. Durno: It's been mentioned that we'd like to see the American study. I'd like to see the Canadian study that shows it's 6%. What's the basis upon...? I mean, how do we determine it? The police weed out 30%? Police weeding out 30% of sexual assault allegations that come into the police station doesn't accord with my experience.
Is this in 1996-97, or are we talking in the 1980s?
The Vice-Chair (Ms Paddy Torsney): I believe these are 1993 figures from Statistics Canada.
Mr. Koziebrocki: Is this a statistic based on complaints or calls made to rape crisis centres, that kind of thing?
The Vice-Chair (Ms Paddy Torsney): I imagine we'll get the Statistics Canada study for the committee.
Mr. Koziebrocki: I don't think any of us can answer that question, but I would expect that rape crisis centres - that kind of hot-line situation - get innumerable calls, and many of them are never followed up. If that's the statistic being presented, then I think you ought to check that out. We're not in a position to do that.
In terms of the 30% weeded out by police, yes, we can only go by what experience we've had with, for example, the Metropolitan Toronto Police. Anyone who does any business with that force, for example, will find that when an allegation of a sexual assault is made to the police force, a report is taken, and almost invariably a charge is laid.
The position taken by the police force is that once that allegation is made, unless it's demonstrably false, it's an issue for the courts to decide.
Mr. John Maloney: I have a final question, perhaps of a personal nature. If your wife or daughter was sexually assaulted, knowing the rigours involved in the court process, cross-examination, disclosure, etc., would you advise her to proceed with the case to trial under the situation that exists today?
Mr. Koziebrocki: I'd have to ask my wife, because she's a prosecutor.
Voices: Oh, oh.
Mr. John Maloney: What would you advise her as her counsel?
Mr. Durno: I would say yes.
Mr. Koziebrocki: Absolutely.
Mr. Durno: These figures that 94%... As Marvin said earlier, we don't know why they don't go to court. To suggest it's because of O'Connor... If it's a 1993 study, it has some serious flaws, since O'Connor wasn't decided until 1995. I think it is a serious mistake to just attribute that 94% to O'Connor. But, no, certainly I would.
Mr. Koziebrocki: Having three daughters, of course I would do that.
Mr. Durno: And I have one.
The Vice-Chair (Ms Paddy Torsney): I think the context for the people suggesting that there has been a decrease in reporting is, in fact, since the rape shield law, when it seems the practice of automatically subpoenaing every single record available, whether or not this was done in the past, has increased dramatically since 1992. That is what I think the witnesses were suggesting.
Mr. Durno: Automatically in every case, subpoenaing all the records?
The Vice-Chair (Ms Paddy Torsney): We have an analysis of 140 cases, the bulk of which were sexual assault cases. All the records were appealed. We can get you that study; it was from NAWL.
Mr. Durno: You should compare that with the total number of sexual assault cases, as to how often the application is brought. To pick 140 is -
Mr. John Bryden (Hamilton - Wentworth, Lib.): I'd like to ask a question, Madam Chairman, if I may. The bells are ringing, and I have two short questions.
.1105
The Vice-Chair (Ms Paddy Torsney): Mr. Bryden, I was coming to your question. I am not a Madam Chairman. The bells are ringing for half an hour and we are going to continue this until11:15 a.m.
Mr. John Bryden: Excellent. Thank you, Madam Chairman. I stand corrected.
The Vice-Chair (Ms Paddy Torsney): Thank you.
Mr. Durno, were you finished with your comments?
Mr. Durno: Yes.
The Vice-Chair (Ms Paddy Torsney): Mr. Bryden, do you have a question?
Mr. John Bryden: I have a couple of questions.
I'm not a lawyer, so I need some direction from you. My first, most simple question is, if I vote for this legislation as it stands, will it significantly increase the likelihood that innocent people will go to jail?
Mr. Durno: Yes.
Mr. Bloos: Yes.
Mr. John Bryden: You all agree.
Second, I had a briefing session with the Department of Justice on this legislation. I was very interested in your ``trust the judges'' comments, because when I raised the questions about the need for the specifics in proposed subsection 278.3(4) and the specifics in proposed subsection 278.5(2), I was specifically told that the necessity for this was that we can't trust judges, that this was an instruction that was to ensure the judges would make decisions based on those instructions.
Now I ask you, in light of what you've already said, is this not an attack on the very credibility of our entire judicial system?
The Vice-Chair (Ms Paddy Torsney): That is hearsay at this point, I think, of what the Department of Justice officials have said.
Mr. John Bryden: It's not. I kept notes, Madam Chairman, notes that this committee can obtain if it wishes to request them.
The Vice-Chair (Ms Paddy Torsney): Madam Chair.
Mr. Durno: Yes, it is an attack. The Supreme Court of Canada provides guidelines to the justices who hear these applications. They've done it in O'Connor. They have guidelines from O'Connor. To say that the judges aren't going to follow them is... If the judge makes an error, it can be appealed. What the legislation says is that we don't trust you on the basis of O'Connor.
Mr. John Bryden: This is what I couldn't understand. I'm not a lawyer. But I'm a Canadian and I've grown up in this country. I couldn't understand why we would be entertaining legislation that basically...
As I explained to you, I was actually told by the Department of Justice official that this was necessary because judges are not ruling in the way that perhaps is sought and that we can't expect them to rule without giving them specific instruction.
So this is not something you would approve.
Mr. Bloos: I would add that we trust our judges to issue wire-tap warrants, which is one of the most invasive forms of invasion of privacy we have. They can tap our telephones, they can listen in on our conversations, they can do any one of a number of things. We've had no difficulty in trusting judges with that very important decision as to whether a wire-tap should be allowed, so I see no difference in this. Judges are on the front line and they hear these matters every day.
As I said, my experience from Alberta is that judges are very sensitive to this. I don't see them, in light of O'Connor, doing anything other than what is set up there. If their concern is fishing expeditions, that won't get past first base with a judge. If the concern is getting the true information before a jury... After all, if we're trusting the jury to make the decision on guilt or innocence, why wouldn't we want them to have the full information about what was going on in a case?
Second, the complainant will have to be examined and cross-examined at length about the details of the event, of the sexual assault. If this is going to be done in a public courtroom, whether or not the public is excluded, there are going to be people who hear this possibly for the second time, because there is a preliminary inquiry. If all this information is going to come out, why would it be objectionable for a trial judge to review pretty much the same type of material if it concerns the complainant's allegations to a third party? That will be coming out in any event.
There's another side to this that I don't know that the legislation and people have considered. There was a big concern when disclosure under Stinchcombe first became the practice in Canada. The result, experienced by both the defence and the crown, is that often this solves more cases. It's just like preliminary inquiries.
Once you get the disclosure, once you have all the information, once you now realize nothing is being kept back or hidden by the Crown, you can go to your client and say, look, this case is solid; you don't have a hope. If you go to trial and force the complainant to testify, and if all the records come out and she goes through all the extra anguish, the judge is going to double the penalty, because there is a substantial discount - at least in Alberta - for an early guilty plea.
.1110
So by obtaining the records in advance, without the kind of rigour we're looking at, there's a good change that this might end the proceeding right there. As long as records are being withheld, there is that disconcerting feeling that there's something there that might assist the accused.
Now, what does defence counsel do when an accused comes into his office and says, look, I'm innocent? I've had nothing to do with this. I don't know what's going on. I don't understand why she's making these allegations. Help me out.
He can't point to anything in particular, but defence counsel of course has no choice but to explore every possible avenue. If that means calling in a whole bunch of witnesses and cross-examining them endlessly in order to get the basis to see these records, and then perhaps when they finally get the records they realize there's nothing there of assistance - the case is as the Crown has presented it; it's a solid case - counsel might then advise their client to plead guilty, that they've gone as far as they can go.
If we had those materials right at the beginning of the process, we might save a lot of time. That's assuming - and I'm always assuming - a proper basis is laid in the defence case to get hold of the records, that there is something like concern about credibility, or concern about any one of the issues that have been ruled out under proposed subsection 278.3(4).
I might add, the legislation talks about ``one'' of those criteria that you can't use. It says, ``Any one or more''. So an accused might identify three of those criteria and the judge may say, well, under this legislation, that's still not good enough. So we might still have a serious problem of the accused not getting relevant information.
The Vice-Chair (Ms Paddy Torsney): Thank you.
Mr. John Bryden: I would like a final -
The Vice-Chair (Ms Paddy Torsney): I'm sorry, but we're at almost seven minutes, and it was a five-minute round.
Mr. John Bryden: I was advised it was a ten-minute round, Madam Chairman.
The Vice-Chair (Ms Paddy Torsney): Mr. Bryden, I am not ``Madam Chairman''.
We don't have the process of ten on each one. If you were a member of this committee you would know we do ten each and then five each.
Mr. John Bryden: Thank you, Madam Chairman.
The Vice-Chair (Ms Paddy Torsney): Mr. Koziebrocki, you brought up the situation in the city of Toronto. In our last couple of minutes I want to ask if you are familiar with the fact - and this was outlined in some Toronto Star articles - that in cases where women have recanted or changed their minds about the situation, the cases don't go to trial on the basis of the police evidence, the photographs, the 911 calls, or any other information.
Mr. Koziebrocki: They don't go to trial?
The Vice-Chair (Ms Paddy Torsney): Yes.
Mr. Koziebrocki: My experience has been that when there has been a recantation there is a desire on the part of the prosecuting authorities to see if they can resolve the matter by avoiding a trial. That means sitting down, for example, with the complainant and explaining to the complainant the facts of life, and often they will come back in circumstances like that and say ``No, we're not going to proceed''. But that's in consultation with the complainant.
Having said that, there is a reluctance on behalf of the prosecuting authorities as they are presently situated to do that kind of thing where a complainant says, ``No, I want to go ahead''. That's a natural reaction to the -
The Vice-Chair (Ms Paddy Torsney): In spite of all the witnesses, the 911 phone calls, the photographs, they won't go ahead?
Mr. Koziebrocki: It's a natural reaction to the type of situation where prosecutors feel that if they don't go ahead, there may be complaints laid and they may attract particular attention they might not otherwise desire.
There will be cases that will go ahead notwithstanding a series of evidence to the contrary, but I would say to you that the general desire in a situation like that is not to proceed with a trial in that situation; I've had it done.
.1115
Mr. Durno: But if I'm right, those articles dealt with cases of domestic assault. The legislation we're talking about doesn't even cover those cases, so it couldn't have any bearing on a domestic assault case at all.
As well, it's a dated article. The old city hall in Toronto now has a special domestic assault court. Every case is directed to that particular court. They have special facilities. They have a special group of prosecutors assigned to those cases.
In terms of the emphasis on sexual assault cases, for child abuse cases you have a similar designated court, with designated crown attorneys for that particular type of case.
But I think the Star article -
The Vice-Chair (Ms Paddy Torsney): It was March 1996. You're right; it was 266 in two cases and then 264 and 239...was one of the individuals. They're not covered by this legislation.
Mr. Durno: In those cases extra efforts are now being made to proceed. I can tell you that from experience.
The Vice-Chair (Ms Paddy Torsney): Okay.
We all have to get to a vote, unfortunately. I think it has been terrific to -
Mr. John Bryden: Do we have time for a second round of questions while they are here? They are such good witnesses. I have one or two questions.
The Vice-Chair (Ms Paddy Torsney): Sorry. We have other witnesses -
Mr. John Bryden: But I believe we have fifteen minutes left.
The Vice-Chair (Ms Paddy Torsney): Mr. Bryden, you're interrupting me -
Mr. John Bryden: Excuse me, Madam Chairman. Do forgive me.
The Vice-Chair (Ms Paddy Torsney): For the fifteenth time, I am not ``Madam Chairman'', Mr. Bryden. It's unfortunate you can't get that through your head.
Mr. Bryden: I'm sorry, Madam President. I was raised in an old school in which you used the English language traditionally, Madam Chairman.
The Vice-Chair (Ms Paddy Torsney): Welcome to 1997.
My final point to you, Mr. Durno, was just a comment. It was very unfortunate, when we were talking about the judiciary's ability to weigh these cases and the political correctness - however you want to describe it, Mr. Bloos; and it's interesting it would come right after this round... It's an interesting observation that one of our justices of the Supreme Court in fact said, on the issue of sensitivity training for judges, particularly on the issue of gender sensitivity, that it would somehow impede judicial independence if they were to have gender-sensitivity training. That was a frightening quote, I think, from one of our Supreme Court justices.
Mr. Durno: It's part of the courses.
The Vice-Chair (Ms Paddy Torsney): To our witnesses, thank you very much for coming from Toronto and from Alberta. It has been a very interesting morning.
We will be suspended until roughly 11:45 a.m.