[Recorded by Electronic Apparatus]
Tuesday, March 4, 1997
.0935 
[English]
The Chair: Order, please.
If this is Tuesday, we must be on Bill C-46. With us today is Yvan Roy, senior general counsel for criminal law policy at the Department of Justice, and Catherine Kane, counsel for criminal law policy.
Welcome.
Do you want to speak first, or do you just want us to fire away?
Mr. Yvan Roy (Senior General Counsel, Criminal Law Policy Section, Department of Justice): Perhaps I'll say a few words.
[Translation]
Madam Chair, distinguished members of the committee, thank you for having invited us, the Department of Justice officials, to come and speak to you about Bill C-46 this morning.
[English]
We thought, Madam Chairperson, that it might be useful for the committee, and also for the record, to have a short statement, which will be made by Ms Kane, the architect of Bill C-46. She will outline for you what the bill is all about, how it tries to achieve the kind of balance we think is needed in cases where the records have been put together in sexual assault cases.
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Let me just say, by way of introduction, that from our perspective this bill is about fairness and nothing else - fairness for the accused and fairness for the complainants. With this bill the minister is trying to achieve that kind of balance so that fairness will be achieved for both.
I think it is important to note that this bill has been produced after consultation with a number of people, and I'm sure some of them will appear before you. From our perspective, the balance that has been achieved is in favour of both the complainants and the accused. If at the end of the day the records we are talking about are not to be accessed by the accused, of course there will be a problem. But we are firmly of the view that the records that should be accessed will be accessed after having gone through the framework proposed by Bill C-46.
Having said this, I will let Ms Kane outline to you what the bill is all about. We will then attempt to answer each and every question you may have for us.
Ms Catherine Kane (Counsel, Criminal Law Policy Section, Department of Justice): Before I go through the outline that's been provided to everyone, entitled ``Highlights of Bill C-46'', I want to provide a little bit more context for the amendments.
First of all, these amendments will only apply with respect to sexual offences. Bill C-46 is designed to amend the Criminal Code to establish the law and the procedure that will govern all requests by accused persons for the private, personal, or confidential records of complainants and witnesses in sexual offence proceedings.
In all criminal prosecutions the contest is between the state, represented by the Crown, and the accused. The complainant, or the victim, as you may call her, is not a party to those proceedings. Her role is only that of witness. The Crown is responsible for the prosecution and the Crown must prove every element of the offence beyond a reasonable doubt. The accused person is presumed innocent until proved guilty. Nothing in Bill C-46 changes these fundamental principles.
As Yvan said, Bill C-46 came about following lengthy consultation. The issue was raised about three years ago by women's groups, who noted a trend by defence counsel, in defending their clients, to seek a wide range of records about the complainant and to seek them as early as possible. The defence counsel is often looking for any records that may indicate the complainant's lifestyle, her habits, any mental health condition she might have, and other allegations of sexual assault in order to attack her credibility - anything they might perceive to be previous inconsistent statements. Basically, there is a wide variety of records sought and a variety of reasons for those records.
As Yvan has said, witnesses will fully describe the types of records sought and the impact that has had on care-givers to sexual assault complainants and on complainants themselves.
Some of the records that have been sought were made years before the incident that is the subject of the charge. Others have been made after and because of the sexual offence that's been committed. The impact has been that complainants have lost confidence in the criminal justice system, and they've also lost confidence in the people they've turned to for help, because they've had to violate the confidentiality of their relationship.
Bill C-46 attempts to address that impact and offer some protection for complainants by requiring the courts to carefully scrutinize requests for records. The amendments do not prohibit the production of records, as some advocates have demanded and as others have misinterpreted the bill and criticized... This does not prohibit records; it merely restricts the production of records. And it does not attempt to change the law of evidence. Generally, all relevant evidence will be admissible. Defence counsel will not be prevented from calling as a witness and asking relevant questions of anyone likely to give material evidence.
Bill C-46 does not put any new limits on the ability of the accused to cross-examine the complainant. She can be asked whether she obtained counselling or treatment, and its nature, subject to the ordinary rules regarding relevance.
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When the department began the consultation process early in 1995, the law on this issue was in a state of flux. There was even considerable doubt about whether a court could compel a third party to produce records to an accused, but many judges were being asked to order such production in a variety of ways and on the basis of mere requests by defence counsel. In some cases subpoenas were issued and records were turned over even before the court had an opportunity to make any determination as to whether those records should be produced. In other cases justices presiding at preliminary inquiries were being asked to order production. Since that time the Supreme Court of Canada has addressed some of the issues regarding production and the law and the procedure has somewhat settled.
These amendments are not intended to codify these judgments. Although there are some similarities, there are also significant differences.
The two cases that I will refer to and that witnesses will likely refer to are O'Connor, and L.L.A. and Beharriell, both of them released by the Supreme Court of Canada in December 1995.
In O'Connor the Supreme Court split 5-4 on the issue of the production of records. Although they were in general agreement about the procedure to be followed, they differed in terms of what tests should be applied and when records should be produced. The majority set a two-stage process for the determination, requiring the accused to establish that the records were likely relevant to an issue at trial or to the competence of a witness to testify. Then the trial judge would examine the records, and at this stage the judge could order production of records that were likely relevant only after considering the salutary and deleterious effects on the accused and on the complainant, plus five factors that the court articulated.
The majority also provided several examples of what, in their view, might constitute likely relevance at the first stage of the test. This suggests a very low standard of likely relevance for the accused to meet, which would result in production to the judge without any consideration or representation on the privacy rights of the complainant or any other person who may be named in the records.
The majority also held that where third-party records are held by the Crown, the ordinary Crown disclosure obligations prevail; that is, the Crown must promptly turn the records over to the defence unless they are clearly irrelevant. The court did, however, acknowledge that this assumed that the complainant knew that any records provided to the Crown would be disclosed.
The minority decision in O'Connor held that the threshold test should be much higher and that speculation about how and why records may be relevant would not meet the threshold for production. They emphasized that there should be no presumption of relevance. Instead, they suggested that most records would be irrelevant.
The minority also held that before reviewing the records the trial judge should consider and weigh competing charter rights and additional factors.
In the companion case of L.L.A., the Supreme Court held that a third party - in other words, the record holder or the complainant - could appeal an order for production all the way to the Supreme Court of Canada before the end of the trial, In addition, the court rejected an argument that sexual assault treatment records were covered by privilege.
The prevailing common law may permit the accused to ask for a wide range of records, citing as grounds how they might or may be relevant based on mere assertions. This would then require the judge to review the records without even considering the impact on the invasion of privacy to the complainant or others named in the records and the right to equal benefit and protection of the law.
The prevailing common law also leaves many questions unanswered. For example: what types of records are covered by this regime; what types of conditions can be placed on records that are ultimately produced; whether these proceedings can be published; the information to be included in the subpoena; and what to do with records pending appeals.
Bill C-46, in addition to addressing the substantive law or the tests that will govern production of records, comprehensively addresses all these other issues regarding the procedure for production from the first stage of the application all the way to the ultimate return of the records to the record holder.
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In going through the specifics of the bill, you will notice that it includes a lengthy preamble basically stating the rationale for the legislation and the intention of Parliament in bringing about this legislation. The bill makes it clear that it is applicable only to sexual offence proceedings - proceedings that occur now and proceedings that relate to sexual assaults and sexual offences that occurred in the past.
It also makes it clear that it is the trial judge that must determine production. A justice presiding at a preliminary inquiry has no authority to order production.
The bill also defines records. They're defined fairly broadly to include any type of record where there is a reasonable expectation of privacy. In addition, the definition of records makes some specific inclusions so that there can be no doubt that the records listed are covered.
The bill provides that at the initial stage, the accused must establish that the records exist and are held by a named record holder, and that those records contain information that is likely relevant to an issue at trial or to the competence of a witness to testify. He must point to the specific grounds upon which he relies to establish that the information is likely relevant.
One of the more controversial aspects of the bill that seems to have been misunderstood by many people is the provision that states that certain unsupported assertions will not satisfy the grounds for likely relevance. Basically the intention of the legislation is that the accused must set out the grounds that he relies on to show that the particular records are likely relevant. He can't say they might be or they may be. He can't guess that they might be relevant.
This part of the bill makes it very clear that assertions, mere assertions that are not supported by any other information or evidence, will not satisfy the test. You can't include this type of assertion in your application for production. It lists a number of these assertions, for example that the record exists. As an accused person, I can't say I need the records of Dr. Smith because I know Dr. Smith has records about Ms X. That will not do it. Nor will it be sufficient to say that I need the records because I know that the records relate to the incident that is the subject matter of the proceedings. That's fairly obvious. For example, a sexual assault counselling record is going to be, to a certain extent, about what happened to this person to bring them to the sexual assault centre.
But all of these insufficient grounds are not prohibited grounds. It is the assertion that is not enough to get the records to the court. If the accused can establish that he does have grounds, that he needs those records because they do relate to the credibility of the complainant or the witness in a specific way, and he can say what that issue will be, he will not be prohibited by having this listed in the bill. Or if he needs the records of a particular doctor because a particular doctor is known to have engaged in a certain type of therapy that is questionable, if he can point to that and indicate how that's going to be an issue at trial, and if he has reasonable and probable grounds to believe that this information will assist him, he is not going to be prohibited. But he is going to have to lay some sort of evidentiary foundation to support the reason why he needs the records.
This proposed subsection is a cornerstone of Bill C-46 because it is designed to prohibit speculative requests for production. If we didn't have this list here, an accused could simply have the list and check off beside it that this is why the records might be relevant. In every case the judge would have the discretion to look at those records.
Assuming that the judge has the application before him, he will then go on to consider if it's been properly made, if proper grounds have been established for the records to be produced. Then he will consider the effects of ordering production to the accused, having regard to the accused's ability to make full answer in defence and the complainant's rights to privacy and equality. In addition, certain factors have been set out in the legislation for the judge to take into account. But I would emphasize that it is an exercise of discretion, at this stage and at the next stage, whether the judge will order production, first to himself and then to the accused. These are considerations for him to take into account.
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At the second stage, assuming the judge has ordered all of the records requested or some of the records requested to be produced to him, the judge would review the records in private and determine whether to order production to the accused. Basically the judge goes through the whole process again. Having had the benefit of reviewing the records and of the hearing at the first stage, he will look at the records, consider again the charter rights of the accused and the complainant and the specific factors, and decide whether all of the records he's looked at or any part of them should be produced to the accused.
He would also consider whether any conditions should be imposed on production to the accused. For example, he might delete names of certain other people who are named in the records. He might order that the records be reviewed only in the court office rather than having them leave the court, or that no copies be made or that addresses and other identifying information about certain people be deleted. The judge has wide discretion in determining what conditions may be appropriate.
In addition to the substantive parts of the bill, the bill also sets out the procedure. An application must be in writing. It must be accompanied by a subpoena in a new form, form 16.1. Generally all subpoenas in sexual offences will be in the new form 16.1. It is identical to every other subpoena where anything is asked of a witness to bring, except that in this case an additional part at the end will explain the obligations on the witness who receives the subpoena, that the witness need only bring the records to the court. If they happen to be records as defined in this legislation, they must be accompanied by the application for production and it's up to the court to determine production. This is so that record holders who are asked to bring records to the court do not feel that they immediately have to turn those records over to anyone.
The notice of the application for production should be seven days' notice if possible, but there's a provision for an abridgement of that notice period. The judge determines the production application in camera. The complainant, the person who holds the records, the Crown, and the accused can all make submissions at the hearing to determine production.
The contents of the application and the information provided at the hearing shall not be published in any newspaper or broadcast. Records produced, if records are ultimately produced, shall not be used in any other proceedings. Records that are, for example, produced to the judge but then not further produced to the accused shall be retained by the court pending all avenues of appeal, and then ultimately returned to the custodian of the records. Finally, all subpoenas for records in sexual offence proceedings must be issued by a judge rather than a justice of the peace.
These amendments apply to records that are held by third parties and also where those third-party records are held by the Crown, where the Crown has possession of records generated by third parties. There is a provision in the bill that says these provisions apply unless the complainant has waived the protections of this bill.
In a nutshell, that's the overview of the bill. We're quite happy to answer any questions you might have.
The Chair: Thank you.
Madame Gagnon.
[Translation]
Ms Gagnon (Québec): This is a very sensitive bill. It has made me think about balancing the right of the accused to obtain evidence and the rights of the victim. I wonder if this means that the victim will be afraid to seek assistance and to speak freely. It puts the therapists or the counsellor in a rather uncomfortable position with respect to the victim.
In fact, several complaints have been made to organizations that provide assistance to victims regarding the disclosure of this evidence. I wonder what impact this bill will have.
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I know that you want to provide a framework but do you not think that providing information that was given under very specific circumstances would jeopardize the will of the victim to seek assistance? A victim can seek assistance quite quickly after a sexual assault attempt, but some things may be said and expanded upon later, during therapy. Regardless, this involves the disclosure of confidential information. We used to go to the priest to confess our sins. The priest had to keep that secret. I have a few reservations about the discretionary power of the court, and of the judge, so that those accused can defend themselves.
Mr. Roy: Ms Gagnon, first of all I would like to say that the bill, as the Minister said in his presentation, acknowledges that problem. In the preamble, specific reference to that problem was made. It is one of the main concerns of those who have worked on the bill.
As I said in my opening statement, the minister has demonstrated that he wants to achieve a balance and fairness, not only for the accused but also for the victims of sexual assault. To put it in more legal terms, this involves two interests that are not directly opposed, but almost.
On the one hand, there is the right of victims of sexual assault to their privacy, and, more generally, the global right to equality and to protection under the law, but this global right to equality and protection under the law also applies to those who are accused, who have a fundamental right that has been recognized by the courts, that is to say the right to a full defence.
Almost without a doubt, the records that we are talking about can be useful in the defence of an individual who, we must acknowledge from the outset, is presumed innocent. We don't know if the person sitting in the dock is in fact the person who committed that sexual assault. That has to be determined by the judge or the jury.
In the bill, we try to say that we're going to allow access to these records, but only in cases that warrant it. That is the framework that Bill C-46 provides. It is an attempt by Parliament to provide a framework that will allow access to these documents, but only in cases that warrant it. To achieve this, the framework provides for certain criteria that must be met in order to allow that access.
If we were instead to provide an absolute privilege and to say that those records must never be accessible to anyone, I think that that would be contrary to what the nine judges of the Supreme Court stated. The O'Connor ruling that we are talking about was supported five to four, but even the minority recognized that there had to be some form of access. Therefore, it would probably be unconstitutional. For my part, I'm convinced that it would be unconstitutional.
What we need to find is a balance that will avoid speculation, that will prevent people from going fishing. This must only be allowed in cases that warrant it. We hope that we have achieved this balance in the bill that you have before you. You can expand on this balance later, in subsequent questions. I do not want to carry on a monologue.
Ms Gagnon: The organizations in question are often subsidized and have difficulty in surviving. When they are called upon to testify, will they have to pay all the court costs? That is a problem. Will they not be tempted to destroy evidence or to no longer keep evidence in case they were asked to come before the court? That would also be a problem for a therapist or a psychiatrist. Will the bill provide for financial support when that happens?
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[English]
Ms Kane: It is a problem for record holders who receive subpoenas because they must respond to the subpoena. It takes them away from their day-to-day work with the people they're trying to help. It often puts them in a state of panic, because they're not legal experts. They often don't know how to respond. Many of them have incurred very significant legal costs in defending these applications.
Throughout the consultation process, there has been an understanding that if we have the bill in place it will provide some protection. The number of requests for production may be reduced, and record holders will have more confidence that the courts will be applying the same guidelines in every case and that hopefully it won't be as much of a struggle to protect those records as it has been in the past.
I'm sure witnesses who appear before this committee will speak of their need for financial assistance. We have not been able to address that issue in this bill because the provision of legal aid is generally a provincial issue, and they have been raising at the provincial level whether or not they should get legal aid. Many of these organizations aren't eligible because they are not individuals and they are not charged with offences. This bill only goes so far as to say that no costs may be ordered against complainants and record holders for their participation in these applications. That has been a problem in a number of cases where record holders, primarily sexual assault treatment centres, have tried to vigorously protect the records, have appeared, made submissions, and the judge has said no, he is giving the records to the accused. The judges have ordered costs against those record holders and they do not have the ability to pay those costs.
The bill has specifically addressed that in proposed section 278.4, but we have not been able to go any further in addressing their need for financial assistance.
The Chair: Mrs. Ablonczy, ten minutes.
Mrs. Ablonczy (Calgary North): Thank you.
I want to congratulate those who have worked so hard on this bill. Ms Kane, I know you are addressing a very substantive concern of a great segment of society. I think you've done a good job of balancing. I guess the concern of this committee will be to make sure there is the best balance possible between the privacy and equality of complainants and the right of the accused to a full and fair defence. My biggest concern is to make sure that's the best balance possible, and I'm sure you've given it even more thought than we have.
The minority decision in O'Connor really came from the point of view that personal records of complainants should be relevant in the rarest of cases. I wonder whether you would agree that philosophically or practically this would be the appropriate balance in this kind of a bill.
Ms Kane: We've taken the position in this bill that there should be no presumptions of either relevance or irrelevance and that in every case the onus should be on the accused to meet the test to establish how the records he seeks will be relevant to an issue at trial. So we try to avoid -
Mrs. Ablonczy: I understand that. Is the test geared to a belief that really these records should only rarely have to be produced?
Ms Kane: I wouldn't say that. I think we want to start from a neutral position. They may be relevant. They may be completely irrelevant. Each case must be determined on its own facts. In certain cases it may be assumed that certain records will be more relevant than others, but I think the starting point for the determination of production should be neutral. I have to consider the accused's rights and I have to consider the complainant's rights, and the onus is on the accused to convince me why I should violate the complainant's right to privacy and equality.
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Mr. Roy: If I may, I would find it dangerous to start from the proposition you're putting on the table because the majority in those cases have said exactly the reverse, that it should not be in the very limited number of cases that they should be made available. We didn't start from one proposition or the other. We start from the proposition that it is fairness we are trying to achieve.
Mrs. Ablonczy: Okay. Just to follow up on that, in the bill there is a list of about eight assertions, which taken on their own would not be sufficient to establish relevance. Also in the bill there are about five conditions... Sorry, I'm getting ahead of myself. I think there are seven things the judge would have to take into account before ordering the production of records, and then there are about five conditions that might be placed once the record is actually produced. There seem to be a lot of limitations here on when records can be produced. I would like your assessment of the kind of balance those limitations would strike.
Ms Kane: Well, you're right in saying ``limitations''. I would maybe avoid ``limitations'' and say that we're requiring careful scrutiny of requests for production, and everything in this bill is meant to guide the judge in that careful scrutiny.
The first issue you raised is the insufficient grounds. As I said earlier, this has been a bit of a confusing aspect of the bill. If there are ways we can improve on the wording, we're quite prepared to do that. The notion is that you can't just say you need the records because they might include this information, or they might be relevant. We've set out the list of the types of assertions that are commonly just made without anything to support them and in the past have resulted in the production of some records. These are basically speculation.
If the accused can say ``No, in my case it's different, I'm not speculating, I've got something to support my beliefs that the records will be relevant on these particular issues'', then that list will not prohibit the judge from looking at that application for records and going on to the next stage. When the judge is deciding whether he should look at these records at the first stage, they are considerations. We're not asking him to say if you decide this then you must review the records and if you decide that you must not review. We're just saying please consider the impact of this determination - whether it's a determination to look at the records or whether it's a determination to not look at the records - on the accused's right to make a full answer in defence and on the complainant's rights to privacy and equality. Then the considerations that are specifically listed are basically to inform that charter consideration.
Mrs. Ablonczy: So these are guidelines rather than hard and fast frameworks.
Ms Kane: That's right. It's an exercise of discretion, and we're trying to suggest something be taken into account to better inform that exercise of discretion.
Mrs. Ablonczy: One of the criticisms I've heard of this bill, in discussing it with stakeholders and people who will be using it, is that the criteria are such that the records would almost never have to be produced. What would be your answer to that concern?
Ms Kane: I don't believe that's true at all, because if the defence has a reason to believe that certain records will be relevant, he should be able to articulate that those records will be relevant and why, rather than just say ``I need the records of Dr. Smith, because they might relate to her credibility''. Well, how will they relate to her credibility? What has Dr. Smith discussed with this person that is going to relate to the witness's credibility? So you just have to provide a little bit more information to support why you need those records.
You will have an opportunity to lay that foundation, to make your application. For example, you will be able to cross-examine the complainant at the preliminary inquiry. The accused is able to call witnesses at the preliminary inquiry. Nothing's going to prevent them from asking questions of witnesses and getting answers, which will assist in their search for records if they believe that some records might ultimately be of assistance to them.
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Another thing I should point out is although the bill says you have to bring the application at trial, you can bring it at any point of the trial and you can renew it. If you make an application for records and the judge says you don't have any grounds here to support this, but in the course of the trial more information emerges, you can renew the application or bring a fresh application.
Mrs. Ablonczy: I'd like to explore that in just a moment, but there is one thing I did want to make sure was examined or talked about here. As you probably know, in debate on this bill one of the concerns raised was on the allegations brought forward as a result of so-called false memory syndrome. One of the members in the House had a real concern that there seemed to be no way in which counselling records of someone who came forward as a result of false memory syndrome could be produced in order to protect the victims of allegations arising out of this. We know this is a significant problem in some areas.
I wondered what you would say to people who are accused as a result of repressed memory syndrome, or whatever we're calling it, and who can't say this person is falsely remembering this, so we need to have these records of counselling. The restrictions on the protection of records would suggest that this would not be a sufficient allegation to bring those records forward.
Ms Kane: First of all, nothing in this list prohibits someone getting records of a doctor or therapist who has used recovered memory techniques. But an accused can't simply say he needs the records because they might show this is a recovered memory. He'll have to provide some reason to believe the records do relate to a suggestive type of therapy. At the preliminary inquiry they will have an opportunity to call a doctor who might have treated the complainant, or to ask the complainant ``Why is it this incident happened 30 years ago, when you were a child, and you've only reported it now? Have you undergone any therapy in the past? Did you recall this only recently?'' So they'll have an opportunity to explore that.
Another thing is when the Crown is prosecuting these offences, in every case I've read that has been based on recovered memory the Crown has led the evidence of the recovered memory. They've called the expert evidence. It's been no secret that this person went to therapy and the allegation was revealed following therapy.
This bill is not about recovered memory syndrome. We know it's very controversial. The Canadian Psychiatric Association issued a statement cautioning all their members to avoid certain memory techniques, cautioned them to avoid confrontation with accusing certain people of recovered memory. But we can't address that controversial problem in this bill.
The rule remains the same: that you must set out the grounds you rely on to show how the records are relevant. So if it's a recovered memory record you're seeking and you know they were seen by a particular doctor, you can call the doctor; you can ask him questions that are relevant; you can ask if he treated her; you can ask if he kept records. And once you have that established, you will likely have no problem meeting the test for production of those records, based on their likely relevance.
Mrs. Ablonczy: In your expert view, this would not leave victims of recovered memory syndrome defenceless?
Ms Kane: Absolutely not.
Mrs. Ablonczy: Okay. I have a couple of quick questions.
There has been a suggestion, and I'm sure you've considered this, that the judge examining the documents or the application for production not be the same judge who tried the case. I wondered why you decided to have the same judge involved in the trial as in the examination of documents or a decision whether documents should be produced.
Ms Kane: This was an issue that was fully canvassed in the consultation process and in a lot of the case law. Even the Supreme Court of Canada agreed it should be the trial judge, for a variety of reasons. It's the trial judge who will have to determine all the other issues in the trial, and it seemed logical it be the trial judge who should determine the production of records, especially because the application may be renewed at a later point in the trial. The trial judge is in the best position to examine what will be relevant to an issue at trial; he or she will know what the issues at trial will be.
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Mrs. Ablonczy: So in your view, the concern about potentially tainting any judgment as to credibility isn't significant?
Ms Kane: No. We call on judges to make a variety of other determinations that some people might argue would taint their determination in the end. But we have great confidence in their ability to dissociate one consideration from the ultimate determination, and this is no exception.
Mr. Roy: Indeed, the whole question of admissibility of evidence is decided by trial judges. The chair will be familiar with all of those cases where a statement by the accused is read by the Crown. There is a voir dire, a trial within a trial, to decide on the issue and the judge may decide that the statement is inadmissible. He or she will have read the statement and this will not taint in any way, shape or form the judgment that will be rendered at the end of the day.
This is something that is done daily by our judges in Canada, and I frankly don't think there is any problem with this kind of discretion being left with the trial judge.
The Chair: I would just add that from the perspective of defence counsel, it would be a nightmare to have more than one judge on a file, and I think for the Crown too.
Are there questions on the government side? You're such an eager bunch this morning.
Mr. Maloney (Erie): I have a couple of questions, Madam Chair.
When all the dust settles after this, very bluntly, will this legislation withstand a charter challenge?
Ms Kane: We certainly believe it will withstand a charter challenge. We fully anticipate that there will be charter challenges to the legislation; there always are. We have every confidence that the bill is the appropriate balance between the rights of the accused to make a full answer in defence and the rights of complainants.
The Supreme Court has stated on a number of occasions that there is no hierarchy of charter rights, that they must be reconciled and accommodated to the greatest extent possible. I believe that Bill C-46 does exactly that.
Mr. Maloney: When you have the Crown holding confidential records and they're treated the same as a third party's, our concept of whole and free disclosure by the Crown sort of flies in the face of that.
Ms Kane: I have a few remarks with respect to that aspect of the bill.
First of all, the Crown doesn't usually come into possession of third-party records. Some people will say that the complainant will give the records to the Crown. Complainants don't even have their own records. So in the rare circumstance when third-party records are in the possession of the Crown, it's usually through inadvertence that they happen to be in their file.
The approach of the bill is that they shouldn't be treated any differently because the Crown happens to possess them. At least there should be an opportunity for the complainant and the original record holder to be able to make some submissions about how disclosure will impact on their privacy.
So the bill says that where the third-party records are held by the Crown, first of all the Crown will have to tell the defence counsel that he has them. That's the minimum disclosure requirement. Then knowing that, the accused would bring the application under this regime and establish that they're likely relevant. The Crown, if it is of the view that they are likely relevant, will not be able to take any position on that, but could make submissions about the impact on privacy, as would the complainant and the record holder. The judge would then have some opportunity perhaps to edit the records, to impose the appropriate conditions and so on.
By their being in the Crown's hands, the accused is not going to be denied any relevant records. The process will be slightly different from the Stinchcombe disclosure obligations, which basically require the Crown to hand over everything at the earliest opportunity unless it's clearly irrelevant. But it's essential that the records be treated the same way whether or not the Crown has them.
The bill also expressly says that where the complainant provides the records to the Crown and waives the application of these provisions, then the Crown would disclose them. But where there's no waiver of the protections of this bill, the Crown has to do its best to ensure that this regime is followed.
Mr. Maloney: Do you think the defence counsel will have trouble establishing likely relevance, not knowing even a modicum of what's in there?
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Ms Kane: Generally, with any third-party records?
Mr. Maloney: Yes.
Ms Kane: If they're going to have trouble establishing likely relevance, do they need the records? That would be the question. Why do they think they need the records if they can't point to something to suggest that they're likely going to be relevant to their defence? The defence will know the strategy or the defence they hope to put forward, and they'll know the issues at the trial. They will have to relate their request for the records to the issue at the trial that the record is going to assist them in dealing with.
The Chair: Ms Torsney.
Ms Torsney (Burlington): I apologize. My plane was late, so I missed the first part of your testimony.
I've had a lot of representations from various individuals who have been accused and are quite concerned that the records won't be available to them, and if they were available they would clearly show that it was a case of recovered memory.
You've cited the reasons why in the preliminary inquiry they'll have reasonable grounds to suspect and to request that the records are therefore available and what have you. But will it be as simple for those of us who don't go into court that you would actually be able to get the records on the grounds that the pattern or the way the person is describing things or the fact...? Will they be able to get the records on suspicion that it is recovered memory syndrome because it fits into the pattern of certain people's claims, in that there does seem to be a pattern among some people who others would argue have recovered memory syndrome rather than memory of real incidents?
Is that a complicated question or what?
Ms Kane: I think the pattern you are referring to is the pattern of symptoms that some victims disclose to their therapist, and then the therapist says it fits the mould of a recovered memory so they must have been sexually abused. I don't know that the records are going to be any more helpful than the testimony of the witnesses you can call.
Where it's a recovered memory, first of all we're going to be dealing only with cases that happened long ago, when the person was a child, which had not been disclosed until quite recently, following some sort of therapy. In all the cases I've read, the reported cases that have been prosecuted, the Crown has been quite upfront that this is what they're dealing with. In many cases they've sought corroborative evidence to support what many courts have said is frail evidence - recovered memory is subject to a lot of concerns - whether it's a legitimate recovered memory or a suggested memory and so on.
The evidence will be available from the people who treated the complainant and maybe from the complainant herself. Then this will be sufficient to lay the foundation to get any records that might relate to that treatment. But you can call the specific doctor or you can call another doctor who will cast aspersions on the type of therapy the other doctor has engaged in.
Ms Torsney: I think in one case the parents were actually asked to pay the bill for the therapist. Would that create a situation where they would therefore have almost a right to see the records?
Ms Kane: No, but I think the issue of privilege attaching to the records might arise in a context other than the criminal context.
Mr. Roy: Can I take a quick crack at your question? I've been asking that question to myself a lot.
I go back to the bill itself. I'm looking at page 4, proposed subsection 278.3(4), insufficient grounds. I'm going through those insufficient grounds that cannot be used by themselves to establish likely relevance. I see nothing in them in any way, shape or form that stops someone from making the case that the syndrome we're talking about is the reason why this person has been saying what she has been saying.
Let's look at them one after the other, because I think there has been a bit of overreaction as to what is meant by this.
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The ones that perhaps have been causing the most problems to those who have been reading this are (d), (e) and perhaps (f). Just for the sake of argument, let's look at (d), which reads, ``that the record may disclose a prior inconsistent statement''. Some people have been saying, well, that's it; even if I'm making the allegation and I have something to show that there was an inconsistent statement, you're telling me I cannot have access to this record.
Frankly, Ms Torsney, this is not at all what this section is saying. Not at all. This section is saying that if you make the bare assertion that perhaps, in the record you want access to, there is a prior inconsistent statement, you should have access to that record. In my humble view, this is a fishing expedition and nothing else. It is speculation. It is a fishing expedition.
Look at (e), which says, ``that the record may relate to the credibility'' of the person. This is not saying that credibility cannot be an issue. This is simply saying that if all I have is, oh, I'd like to see that record because perhaps it would have an impact on the credibility of the complainant, this will not do. That's all we're talking about. You can go through the list here. The bare assertion that this is the case will not do. You have to bring something more to the table.
In the case of the syndrome we're talking about, if you have something then I am convinced that none of those grounds we're talking about in proposed subsection (4) here will stop you from doing that. Far from it. So to claim that this bill is going to stop this kind of inquiry is I think a bit of an overstatement.
Ms Torsney: Okay. As we all know, it's such a careful balance for the people who do want to be assured of some kind of confidentiality when they have discussions. I've heard from both sides. It's put me in a bit of a situation. It is very difficult. I'll be reviewing your testimony this morning, I guess, and figuring out if there are any questions in future in listening to the witnesses.
It's no easy bill, that's for certain.
The Chair: Thank you.
Madame Gagnon, have you any other questions?
[Translation]
Ms Gagnon: Can a personal diary constitute evidence? You mentioned all evidence, all material, but could one be asked to disclose their personal diary?
Mr. Roy: Ms Gagnon, I would ask you to take a quick look at clause 278.1 on page 3. Personal diaries are mentioned. It has been recognized as one of those records that will be protected under this bill. It is one of the records that is mentioned. On lines 4 to 8, page 3, it says:
- ... personal journals and diaries and records containing personal information the production or
disclosure of which is protected by any other Act of Parliament or a provincial legislature.
- Therefore, personal diaries are protected.
Mr. Roy: Rest assured that...
Ms Gagnon: The intentions are good.
Mr. Roy: I was going to say that you can rest assured that we also will be following the discussions closely and we will want to hear what the witnesses will tell you.
[English]
The Chair: Thank you.
For the information of my colleagues, that is a 30-minute bell.
Ms Ablonczy, do you have any other questions?
Mrs. Ablonczy: Yes, I do have one. How much time do we have?
The Chair: Five minutes.
Mrs. Ablonczy: Okay.
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Proposed section 278.9 prohibits the publication of applications or the determinations or any of the matters dealt with in these sections. From the public's point of view, I guess, you fall back on the maxim that justice must not only be done but also be seen to be done.
I'm wondering what considerations led you to propose this section in the bill.
Ms Kane: It would be rather pointless if you had an application for production that didn't result in any production at all. So a person's privacy is invaded even to the extent that an application is made for certain records. If you were able to publish that, everyone would know - or would think - that certain records made about you exist and contain certain information, even though the court at that point had made no determination about whether or not those records were relevant.
So there is a publication ban on the contents of the application. There's a publication ban on anything that takes place in that in camera hearing. That's not unusual. We have other examples in the Criminal Code where we have publication bans on proceedings that are conducted in voir dire, or in camera. The code does permit, in proposed paragraph 278.9(1)(c), the determination to be published unless the judge determines that it would not be in the interests of justice.
Where the ultimate determination and the reasons are to produce or not to produce, that aspect can be published unless the judge says it would not be in the interests of justice. He has the discretion. In other publication ban issues where you've given the judge the discretion there is no charter violation if that discretion is exercised in accordance with the law.
Mrs. Ablonczy: Okay.
I'd like to reiterate comments other colleagues have made in terms of the list of insufficient assertions to establish relevance. Coupled with the considerations the judge is required to make, I think there is a real concern that this list would severely and substantially limit the production of these documents. It really is a very comprehensive list.
I know what you're saying, that any one of these wouldn't be sufficient, but taken together they might well be sufficient. It looks like a lot of reasons not to produce, leaving very little room to say, yes, it has to be produced. That really is the impression the proposed section gives.
Ms Kane: But I think you have to bear in mind that the problem might stem from the opening paragraph of what those assertions are, what's meant to be insufficient. If you look at a dictionary definition of ``assertion'', it means a bald, unsupported statement. That's all we're saying you can't do. You can't assert that you might need them for any or all of these reasons. Otherwise, you could just list them all. You wouldn't have one, you'd have seven or eight. You'd get the records.
You can pick any one of them if it happens to pertain to your case and if it's the reason why you need the record, as long as you can support the assertion. That is, you need the record because it will include an inconsistent statement of a particular nature about a particular issue in the case. Then you're not prohibited from relying on that as a ground to establish that there's information in the record that likely is relevant. The only thing you're not allowed to do is baldly state that this is why you need the record. You have to set out the grounds.
Even if we didn't have this list - I believe, however, this list is absolutely essential - the rule would be the same. You have to establish the grounds you rely on to show how those particular records are relevant to an issue at trial, saying they might relate to her credibility, or they might have discussed the incident that's the subject matter of these proceedings.
Those aren't grounds. Those are speculations. That's a fishing expedition. It's very important that we say ``any one or more''. There's not safety in numbers here - list them all and you might get in the door. You must really focus on why you need those records, and you may have to disclose a little bit more than you would otherwise want to in terms of why.
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Mrs. Ablonczy: But until you've seen the records, how can you possibly state with any degree of credibility that those records will in fact contain the evidence you are alleging they contain?
Ms Kane: On the other hand, why should you assume that certain records will assist you if you haven't seen them? Why would you think they would be relevant?
Mrs. Ablonczy: But that's the whole point. If prima facie you couldn't make that assertion without seeing the record, then you'll never get to see the record.
Ms Kane: If we didn't have this standard, then in every case everyone's records ever made about them at any point in their lives would be producible to a court for a judge to review, to look for what might be relevant and what might not be.
Mrs. Ablonczy: I understand that side of it, but how do you address the other side?
Ms Kane: The defence knows what the defence is going to be in the case. They know what the issues at trial are going to be, and they must know that certain records exist. We can't permit them to just issue subpoenas to every sexual assault centre or every doctor in the city in the hope that something is going to come up. They will have to point to some records.
They have the preliminary inquiry to inquire about the treatment or therapy or whatever the complainant has undergone, so they will have something to rely on to establish that certain records exist. Then it will be up to them to determine whether they think they need those records and why, and to articulate that.
As I said, nothing will prevent them from calling people as witnesses. If they can't get the records but they know they were seen by a counsellor or a teacher or whatever, if those people are likely to give material evidence they can be called as witnesses and asked relevant questions.
Mrs. Ablonczy: Thank you, Madam Chair.
The Chair: Mr. Rideout.
Mr. Rideout (Moncton): Carrying on from that, what is wrong with having all the information available from whatever source if we're going to have the protection of the judge to review it to determine whether subsequently it can be introduced or utilized? Granted it's a fishing expedition, but the protection is that none of it is going to be public until a judge has made a determination that it should or shouldn't be. You can fish all you want, but the control is in the hands of the court.
Ms Kane: That approach completely ignores the fact that even production to the judge is a violation of the person's privacy and equality rights. You would have a whole range of material being provided to a judge without any opportunity to make representations on its relevance or on the impact on your privacy. The judge would be left with reams and reams of irrelevant and maybe a little bit relevant information to pore over, without anybody meeting any standard of likely relevance. The impact would be enormous on the people about whom those records are made and everybody else who might be named in those records.
Mr. Rideout: Against that you are trying to balance full disclosure so that an accused can prepare properly for a defence. Maybe I hold too lofty a view, but I thought the judge might provide that protection or be in the position to do the balancing.
Ms Kane: The problem with records, though, is that we have to remember that these are records made by third parties that really have no obligation to volunteer information to defend the accused. They are going to include information about a whole variety of people that may have no bearing on the case either. We have to impose some sort of filtering process, some sort of threshold before you get to that review stage to protect the rights of all those implicated.
Mr. Rideout: I understand where you're coming from. I'm just having trouble grappling with it, because on the other side you're requiring the defence to have something more. The only way the defence counsel can have something more is to know what's in the records.
Ms Kane: But nothing prevents them from calling witnesses to get information. The reason they have preferred records is that they can look at a record, extract the little bits that might be helpful and safely discard everything that's not helpful. If they ask a question of a witness, they receive the answer whether it's helpful to them or not. So they've been reluctant to ask certain questions, preferring to have the records.
Mr. Rideout: Well, that's a cardinal rule: never ask a question you don't know the answer to.
The Chair: Thank you very much for attending. We appreciate your help.
The meeting is adjourned.