[Recorded by Electronic Apparatus]
Thursday, March 13, 1997
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[English]
The Vice-Chair (Ms Paddy Torsney (Burlington, Lib.)): We are still sitting to hear witnesses on Bill C-46. Right now we have Women and the Law at McGill, unlike what our notice says. Correctly, our notice says that it's Christine Lonsdale. She's from McGill University, where I understand she's a student. That's a fine school, we have to put on the record.
Ms Lonsdale, I think you witnessed the last round. You'll make a presentation and then the members present can pose some questions. Take all the time you'd like, but make sure you leave some time for questions.
Ms Christine Lonsdale (Women and the Law, McGill University): My name is Christine Lonsdale. I'm a second-year law student at McGill. Today I am acting on behalf of Women and the Law, which is an association of students who are interested in issues that affect women, particularly in the legal area.
I just wanted to check first of all that everyone has a copy of the brief, because I was only going to go through a couple of the highlights of that. Generally this legislation is good and we have a suggestion for amending it.
To begin, we know that 90% of victims of sexual assault are women. We know that most of those assaults are not reported. We know that most of those assaults that are reported are not prosecuted. We know that most of those that are prosecuted do not result in convictions.
In virtually all prosecutions where sexual assault is being alleged, at this point in time the defence is asking for counselling records. I should say that my focus in this presentation is on counselling records. I understand the legislation is broader than that, but that's what's brought us to the table today.
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It's also important to note that, as I think was mentioned before, in prosecutions for other offences it's extremely rare to ask for counselling records. In fact, if an application is put forward for those counselling records, it's usually denied.
This brings me to my first point, which is that the two-part application process that is being proposed is extremely important and is critical to this legislation because it involves a recognition at the very outset that the complainant's privacy rights are involved. Privacy rights are given to every single Canadian and they relate to protecting what is most intimate and private in their lives. It would be a misunderstanding to say that producing personal records to a judge is not a violation of that privacy right. That is the status of the law now; there is not any concern given to the complainant's privacy at that stage of the process. This legislation changes that and it's very important.
A very distinguished American jurist, Oliver Wendell Holmes, liked to use the analogy that my right to raise my fist stops where your nose begins. I think that's an analogy that's extremely important in this particular case, because what we're dealing with are two competing rights that we have to resolve. Defence counsel would have you believe that it must always be resolved in favour of the defence, whereas the argument here is that you must at least take account of the complainant's privacy rights within the context of this legislation.
The argument is also that the general rule that has been established in criminal cases is that counselling records are not considered to be pertinent to what is happening because of the nature of the records themselves. They are not factual accounts. The focus is very different. The focus is largely on the emotional well-being of a victim who likely blames themselves at some point in the process for what happened. That is not a reaction which is limited to victims of sexual assault; it is something we find across the spectrum.
Given the underlying assumption that in most cases these records are collateral to what's happening in the fact-finding process, we find that a different rule has been established in sexual assault cases. Particularly in past years, they are in fact being found to be extremely relevant a lot of the time.
If I could just refer to some jurisprudence, Hunter v. Southam was one of the early charter cases which set out the principles that were important in search and seizure, which is the origin of privacy rights. There the argument was very much that in order to safeguard privacy you have to have a system that authorizes that access beforehand. It is our argument that this legislation is very much in keeping with that philosophy; if you want access to those records, you're going to have to give a good reason. Your right is not automatic and you're going to have to give a good reason before anybody looks at it.
Women and the Law also believes that there has been a tradition in our law of regarding women who allege sexual violence to be somehow less believable than other victims. This pattern has improved over time. There have been legislative initiatives such as the rape shield law, and the drive to look for counselling records can very much be traced to these legislative changes. It is in a way a less obvious way of bringing that myth into the courtroom. It's important to address it and to make it invalid in this context.
Again, Hunter v. Southam said no access unless you have a reason. In R. v. Dyment, the court further said that the reason you have to provide to go into someone's home is one thing, but you have to provide an even better reason if you want to violate somebody's bodily integrity. In Dyment, the material that was being discussed was a blood sample, a medical record. The court said quite clearly that you couldn't go after that record on a speculative level with some supposition of something you might find there.
It is Women and the Law's position that this same standard and no less should be applied to counselling records. If anything, a higher standard should apply because what we're dealing with here is the integrity of the mind. We're dealing with evidence that otherwise would not be coming before the court and which largely is not the business of the court unless there is a good reason for the inquiry to be shifted into that area.
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This legislation very much embodies that philosophy. It's very important to maintain the integrity of the two-step process and that it not be watered down in the amending process, as has been advocated by certain groups. This brings me to my second point, which is that you need a good reason to go after counselling records.
I'm sure you're all familiar with the O'Connor case before the Supreme Court. In that case the majority outlined a number of reasons they consider to be good reasons why you should have access to counselling records and why counselling records were generally relevant. If I could direct you to pages 3 and 4 of the brief, I will just read out those reasons, because they form the heart of our proposals for amending.
The first was that they may contain information concerning the unfolding of events underlying the criminal complaint. Second was that they may reveal the use of a therapy that influenced the complainant's memory of the alleged events. And third was that they may contain information that bears on the complainant's credibility, including testimonial factors such as the quality of their perception of the events at the time of the offence and their memory since.
Women and the Law is not as much concerned with the third assertion, because we feel it's already adequately covered in the bill, but we do have concerns about the first two. Given the very strong lead that was given by the court on this point that these two elements were extremely relevant reasons why you can access counselling records, it is our concern that this could be the new area that defence counsel would try to use to attack this legislation.
We agree that under the spirit of this legislation this evidence should not come in unless there is a reason supporting that assertion. But given the structure of the bill, which is laid out in permissible grounds, as a sort of double check on making sure that standard is enforced, it is our submission that these two grounds should also be added to the list, since they have been given such strong judicial endorsement as a reasonable way of accessing counselling records.
We'd just like to point out that again the structure of the bill is such, and I believe contrary to what was said to this committee before, that any of these impermissible grounds could under certain circumstances be ways in which the defence could gain access to these counselling records. I believe the key wording is ``on their own'' or something along those lines. To take the false memory assertion, there are circumstances in which that could be a valid concern. It is our concern, however, that it could be out there as a general ground for going after the records.
If you could bring evidence as to why this particular therapy should be scrutinized for that failing, there's no question that it would come in under this legislation, but our concern again is that it could serve as a loophole to bypass the philosophy of this particular legislation.
Before we open it up for questions, to summarize, the legislation is extremely important. I'm glad to see it's being pushed hard before the general election, because there is a very serious problem out there that must be addressed by this legislation and it will be a long time before it comes back otherwise.
Second, we have a proposal that it be amended by adding the two further impermissible grounds, the first two statements the court made in O'Connor, as being good reasons for going after the counselling records.
Thank you.
The Vice-Chair (Ms Torsney): Thank you, Ms Lonsdale.
Colleagues, are there questions? We certainly have a couple of new issues raised.Mr. DeVillers.
Mr. Paul DeVillers (Simcoe North, Lib.): Previous witnesses have told us their grounds for objecting to this legislation is that it's an insult to the judiciary, that it's saying we don't trust the judges to make proper rulings or proper findings on whether these records should be made available or not. Do you have a comment on that criticism, or an answer to that criticism?
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Ms Lonsdale: I would say that I don't think this legislation can be read as an attack on the integrity of the judiciary because an extremely large role is being given to the judge in this process. The judge, after all, is the one who's going to be ruling initially on whether or not relevance has been made out. Then if that first hurdle is crossed the judge will also be reading all of the records and then assessing what should be passed on to the defence in order to safeguard their right to a full answer and defence.
However, I think it's clear that the reason this legislation is here is we're not happy with the way the judiciary has been interpreting this particular provision. I think it's understandable. The context there is a criminal one, and judges are very aware of the need to protect the rights of the defence in the process. That tends to be their focus, and I think the concern has been that the ad hoc process we have now has not given them the opportunity to fully consider the privacy rights of the complainant. I think this legislation trusts that given a structure in which they would be assessing this, they will come to the right decision. I don't think it's an affront to the judiciary at all.
Mr. Paul DeVillers: Another grounds for their criticism was that it sets a higher standard for records in these types of cases, sexual offences, and this - that we have a higher standard - in their opinion could be challenged under the charter. Do you have anything to suggest in answer to that criticism?
Ms Lonsdale: I'm sure it will be challenged under the charter. What I think is important to bear in mind, and what I was trying to draw out, is that certain standards have evolved in other areas for accessing counselling records, and I think the argument is not that sexual assault is different but that sexual assault is being treated differently in the courts now. In fact it is a violent crime. These are not records that are generally admissible in other cases, and what is slipping in is this argument that somehow, in sexual assault, we need to check the credibility of the complainant more, that there is a concern she's been to counselling, that it raises unique concerns in this case.
Mr. Paul DeVillers: Yes. I attempted to get an admission from the previous witnesses as to whether in sexual assault cases the credibility of the complainant is called into question more often than other criminal charges. I don't think I got that admission. Would you agree with their position, or do you think the credibility of the complainant is called into play more often?
Ms Lonsdale: I don't see how that can be doubted. It is of necessity in some cases often the heart of the battle in the case. But I do think the ground rules are different, and that's the problem. We're saying that in some cases, yes, you do need to look at these records, but it's not an automatic right and you can't assume there's a problem. And what we have are vague suspicions being put out, this fishing expedition kind of abuse of this process. That's what this legislation is seeking to stop.
Mr. Paul DeVillers: Thank you, Madam Chair.
The Vice-Chair (Ms Torsney): The Madam Chair wants to know if you have any questions.
Mr. John Maloney (Erie, Lib.): No, I don't, Madam Chair. I appreciate your attendance here today. I'm sorry the vote ran a little awry.
You were here when the previous three witnesses presented - all of whom are experienced counsel, I suppose - and they questioned some of the figures we had challenged them on. And you also quoted a number of figures at the beginning of your presentation. The question they put to us, which I will put to you, is where do you get these figures, and do you know that they are perhaps accurate...to help you?
Ms Lonsdale: I can't claim to have the years of experience and I can't claim to be seeing what's happening in the courtrooms day in and day out. But I would also say that the fact that you're in the courtroom day in and day out, representing a certain interest, no doubt affects the way you view what's happening.
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Really, the basis of this is Criminal Law 101. When we start out we read a whole bunch of stuff on this. There's very much an emphasis on trying to put these particular Criminal Code provisions into some kind of social context.
I have to say, it was news to me today to find out that these were challengeable. I took that as accepted grounds.
The Vice-Chair (Ms Torsney): Mr. Rideout.
Mr. George S. Rideout (Moncton, Lib.): Madam Chair, in earlier testimony this morning there was a question raised as to whether an official from the justice department advised MPs that they don't trust the judiciary. Maybe we should investigate the veracity of such a claim, because that holds the Department of Justice in a very poor light. I'm sure the chair would like to have that matter cleared up.
The Vice-Chair (Ms Torsney): Yes, it was certainly difficult, in that the person was not there to defend themself.
Mr. George Rideout: Exactly.
The Vice-Chair (Ms Torsney): As I understand it, they have a completely different view of the situation.
Mr. George Rideout: I think the opportunity should be made for that person, or officials from the department, to at least clarify that so that it doesn't remain.
The Vice-Chair (Ms Torsney): Perhaps when we go to clause-by-clause we should allow them an opening statement or something.
Mr. George Rideout: Yes, something of that nature.
The Vice-Chair (Ms Torsney): Ms Lonsdale, thank you very much for your presentation. I think you've given us some good things to chew on. It seems you're going to have a very bright career ahead of you, so we look forward to your going up against those guys in the not-too-distant future. Best of luck with your studies.
Ms Lonsdale: Thank you.
The Vice-Chair (Ms Torsney): The meeting is adjourned until 3:30 p.m. on Monday, when we'll have a crown attorney here. Tuesday, if the bill's been referred, we'll go to clause-by-clause.