[Recorded by Electronic Apparatus]
Thursday, March 6, 1997
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[English]
The Vice-Chair (Ms Torsney): I'll call this meeting to order.
We're here this morning to consider Bill C-46, an act to amend the Criminal Code with regard to the production of records in sexual offence proceedings.
Our witnesses this morning are from the National Association of Women and the Law, Nicole Tellier and Diane Oleskiw, and from the Women's Legal Education and Action Fund, otherwise known as LEAF, Jennifer Scott and Sheila MacIntyre.
Welcome to all four of you. You should know that we do have your briefs. Colleagues, you do have them as well, and there is an executive summary of each one, as well as the whole brief.
I think you may have appeared before. We'll ask you each to do your presentations, and then we'll go to ten-minute rounds of questioning from each of the parties, and then to five minutes to alternate. You have us until 11:15.
Ms Sheila MacIntyre (National Legal Committee, Women's Legal Education and Action Fund): Good morning. Thank you for hearing from us today.
I'm Sheila MacIntyre from LEAF. This is Jennifer Scott from LEAF. We will start first.
We're in your hands, actually. We understand that you'd like us to do two briefs and then have all the questions.
The Vice-Chair (Ms Torsney): Yes. Then when we go to the questions, the questioner will pose the question perhaps to one group or the other. Then if the other one wants to comment, just signal, and I'll make sure you get the chance to do that.
Ms MacIntyre: I would ask you to take the LEAF brief and turn to the second page, which is the table of contents. That's a very clear guide to what you'll see there. Feel free to browse, but this is a pretty good walk through. I'm not beginning to walk through it. It's all there on one page.
Our brief seeks to articulate the constitutional principles that in the first place make parliamentary action to curtail present disclosure practices imperative, that justify this legislative correction to present disclosure law, particularly after O'Connor and Carosella, and to explain what after five years of working on this issue we all know is apparently the hard part: explain what judges, defence lawyers, crown lawyers, and criminal scholars so persistently fail or refuse to grasp. What they fail to grasp is that table of contents.
Sexual violence, under-reporting of sexual violence, the long history of unequal legal treatment of those women and children who look to criminal law for redress following their abuse, the genesis of the present disclosure practices, the rationales for disclosure practices and the court's responses to disclosure practices all arise from, reflect, perpetuate and compound the social inequality of women and children in an unequal society.
Almost everyone understands that the compelled disclosure of the kinds of records being sought in these proceedings is an invasion of privacy. That's not the hard part. Everybody understands that privacy is a constitutionally protected interest, and most people understand that the harm of such an invasion is particularly serious in the context of legal proceedings that are intended to redress another invasion: a more deeply personal, psychic, emotional and physical invasion like that of sexual offences. There's a double invasion in this sequence.
Most people also understand that there's something terribly wrong with our system of justice. If the price of access to justice is law's access to you, then most people conclude that there's something wrong with the charter. The charter promised Canadians to protect us from state-authorized interference with our autonomy, freedom, security, dignity and equality.
It's the charter that's cited in a one-sided concept of a so-called fair trial, which is now permitting a virtually unlimited invasion of the constitutional privacy rights of those who report sexual violence, which is only a minority of survivors. It's an invasion required of only those who report sexual violence.
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You will see two appendices in the briefs. There's appendix 1 of LEAF's brief and schedule A of NAWL's brief. You will see that this is overwhelmingly a problem only in the case of sexual offences. This is not a fair-trial right, it appears, in any other legal proceeding. It's not demanded elsewhere. It's overwhelmingly in the case of sexual offences.
Canadian citizens would be correct to assume something is badly wrong with present jurisprudence, but they would be wrong to blame the charter. The problem is not the charter; the problem is the court's persistent failure to acknowledge that the elements of a fair trial in Canada should not be elaborated in a vacuum without regard for all charter guarantees and all trial participants' constitutional rights.
Bill C-46 will not deprive any accused person of a fair trial. It will deprive them of the benefit of a selective interpretation of the charter, which persistently disregards some of the charter's provisions and some citizens' equal right to equal protection and benefit of criminal law and constitutional law. In particular, Bill C-46 will correct for the constitutional blind spot now consistently revealed by a very bare majority of the Supreme Court of Canada in O'Connor and Carosella.
The massive invasion of privacy rights in sexual offence proceedings does require parliamentary redress, but this legally distinctive privacy violation is, at its core, a product, reflection and vehicle of reproducing inequality. It's actually an equality issue. Lack of privacy is a manifestation of survivors' inequality in a society, and it's a compounding way of driving home their inequality in the eyes of the law.
Defence lawyers and LEAF agree on one thing about this bill: sexual assault is not like any other crime. In a sexually equal society, it would not take: ten pages of dense legislative drafting; a detailed multi-clause preamble; detailed, enumerated and permissible grounds for seeking access to records; a two-tiered process with eight factors to run each time; or three - not one or even two, but three - explicit directions to judges to consider every guarantee in the charter. You would not need this dense law if equality were operating in society and in the legal system.
This law is a corrective because we don't have it. You have to do that much work to stop the legal system and all its actors imagining this is different, complainants are different. They need extra corroboration, extra invasion and extra credibility tests.
We need to worry about the therapists who are their support network. We need to worry about the rape crisis movement, whose documents for twenty years have made it possible for you and me to know what is a rape myth and what is empirically proven fact.
For instance, the problem is not strangers. Something like 90% of rapes are done by men known to the children or women they abuse. That was displaced by the front line, and those documents are now in jeopardy.
Ours is not an unequal society, so all these pages of law are reminders and safeguards that are absolutely essential at this time. Those who have been assaulted as children, teenagers or adults need this bill now. Those who counsel survivors and assist them in deciding whether to trust this legal system enough to report need it now.
But the bill is a compromise from LEAF's position. At the Supreme Court of Canada, we argued, and we still believe, that the only safeguard for the infiltration of inequality at every stage of this process is that no records should go in ever for any reason. That's still our position.
We are prepared to support this bill, which goes a long way to correct for Carosella and O'Connor. We are calling for improvements to perfect your designs to make sure that, as much as we can, we safeguard against the abuses now happening.
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We don't believe that any bill, however long or perfectly crafted, can stop inequality from filtering into record production itself. Those who make the records may be unconsciously biased.
As for the transformation of therapists' notes, which are personal opinions and hearsay, as for something now called a ``statement needing checking'', as for all the rationales being used, and as for the myth of the bad therapist whose professional misconduct extends to planting memories in complainants constructed as malleable, credulous and deluded, no bill can stop all of this. That's why we called for no records ever.
As for the list of inequalities, nobody in a systemically unequal society can stop - that's our title page - that in one ten-page document, but we do think you can perfect what you have set out here: to check as much as the law on paper can do.
The amendments we propose are going to be discussed next.
Ms Jennifer Scott (Director of Litigation, Women's Legal Education and Action Fund): Following from where Sheila left off, LEAF does support this bill. We have suggested some amendments to the bill, which are set out on pages 30 to 37 of our brief.
I'm not going to address all of our proposed changes; I'm only going to address three. For the most part, the changes that LEAF proposes are not to change substantively what the bill says, but to simply add clarification to what we say the bill already says.
There are three areas of change that I would like to address. One relates to the preamble. One relates to the subpoena that is issued in the process for production. The other relates to the threshold for production.
With respect to the preamble, it is a fundamentally important part of this bill because it sets out the social and constitutional problems that this bill has been created to address. It provides an interpretive framework for the bill.
It is LEAF's recommendation that the preamble should be inserted into the text of the Criminal Code. Without it being front and centre before judges when they are deciding on these records applications, it will be lost. Without the preamble, judges will not be able to properly interpret the constitutional and policy factors set out in the bill at the first and second stages that are mandated to be considered by the legislature. It is therefore LEAF's position that in order for this bill to be properly interpreted by trial judges across this country, the preamble has to be before the judge.
History demonstrates in the context of Bill C-49 that when the preamble does not form part of the text itself, part of the law is lost, never to be referred to by any trial judge in this country.
The second recommended change that LEAF is proposing deals with the issuing of the subpoena to get the record holder and the records before the trial judge. LEAF recommends that the subpoena not be issued at the time of the application, but rather after the trial judge has made a decision that the records should be produced to him or her. There are several reasons why we recommend this change.
First, if there's no order for production, there is no need for a record holder to be before the court.
Second, to require a third party who has nothing to do with the criminal proceeding to sit in a courtroom with potential documents that may or may not be ordered to be disclosed is a huge inconvenience for which many record holders do not have the funds. They do not have the staff resources to sit through records applications. It is the experience of many practitioners who are contesting these record applications that they could go on for a matter of days. It's simply LEAF's position that until the order is made, there is no need to have the party sitting in the court.
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In addition, the order will specify which documents will be ordered disclosed. In all likelihood it's a very high threshold to meet; the order won't be made. If the order is made, it will be limited to certain documents, or in fact only certain portions of the documents will be required to be disclosed. It's much more efficient to have the record holder have the court order and then obtain the documents in accordance with the court order.
Finally, what we would urge this committee to recognize is that judges will always have a predisposition towards disclosure. They will come into the process with that predisposition. The very fact that you have a record holder before the court with a briefcase or a file containing documents that in all likelihood will not be relevant will be far too tempting to simply err on the side of disclosure and make the order in favour of disclosure.
The final recommendation for change that LEAF is proposing deals with the threshold for production. In analysing Bill C-46, we see the threshold for production as a very high standard. In order to sort of take it apart, the first step that an accused must follow is the procedural requirements under Bill C-46. Those procedural requirements are then followed by the grounds for the application, and the grounds must be permissible - in other words, the grounds must not be impermissible as set out in the bill. Once you have met the procedural requirements and the grounds are permissible, you then have to establish that the documents are likely relevant.
Once the accused has met all three components of that test, at that point the trial judge will engage in the constitutional balancing of the constitutional and policy factors set out in the bill.
I don't know whether or not you have the bill in front of you, but if you turn to proposed section 278.5 of the bill, subsection (2) -
The Vice-Chair (Ms Torsney): It's on page 6, for those of you looking.
Ms Scott: Proposed subsection 278.5(2), on page 6 of the bill.... Once the accused has established the procedural requirements, has met the permissible grounds, and has also established that the document is likely relevant to an issue at trial or to the confidence of a witness to testify, the judge only then engages in the constitutional and policy balancing.
In other words, if the accused has not established that the document is likely relevant, there is no need to undertake any balancing; the application falls. Similarly, if the procedural requirements aren't met or if the grounds are impermissible under the act, there is no need to resort to the constitutional balancing. Once, then, you undertake the constitutional balancing, it is LEAF's position that you are engaging in that process once you have determined the document is likely relevant.
It is LEAF's position that this constitutional balancing means you have to look at the deleterious effects of production - and they will only be deleterious. There will be no positive effects for a complainant to have her personal life put before the court.
As a result of the way the bill is structured, the test for production is not one of likely relevance. The test for production is indeed that it must be necessary to make full answer in defence. In other words, you will only breach complainants' constitutional rights - and they will be breached, both privacy and equality - if in fact those documents are necessary for full answer in defence.
In reviewing the bill, it is LEAF's position that the bill is structured in a very unclear way. We feel the test is implicit by the way in which the bill is structured, but unfortunately the bill itself is not clear. The bill talks about likely relevance in four or five places and only talks about full answer in defence in one.
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But it has to be such. You only engage in the balancing when you've already established the likely relevance. So the test at the end of the day cannot be likely relevance. Otherwise, there would be no need and no effect and no purpose of the constitutional balancing of deciding that the constitutional rights of complainants, or the full answer and defence rights of accused, are such that the infringement of a complainant's rights is justified.
LEAF agrees that where the document, where it is established and proven that the document is necessary for full answer and defence, a constitutional infringement of a complainant's rights may well be justified.
Those are our comments with respect to the proposed amendments.
Ms MacIntyre: I want to add that LEAF has been involved, as has NAWL, for three years prior to O'Connor and subsequently. Every one of us has attended at least two of the consultations of the justice department. I've attended six. We watched this bill come from draft to draft at round tables that were brutally, legally demanding, where every single argument that could be made, had been made.
I want to give you my opinion that the minister, in pushing for this bill and following it through over two and a half years - in particular, Catherine Kane, who also followed it from draft to draft, took input, went to the books, read all the cases, came back and put more questions to us, went to the books, read all the cases - has done an extraordinary piece of drafting at the end of a very demanding process.
My expectation, after five years of this and also after Bill C-49, where all of us were at the table in one way or the other, is.... The headlines then were ``Lawyers versus women'' in this bill. It is not a case of lawyers versus women. In my personal view, the justice department and the women lawyers, who actually read the whole Constitution, outlawyered the defence.
This is a fine piece of legal analysis. It's not politics. The credit is to the justice department and the minister, who allowed the resources to test every word.
So do not, I hope, be deceived that this is ``us politics and them law''. The law was grilled up, down and sideways.
The Vice-Chair (Ms Torsney): Thank you. I know you've hit on several amendments, and there are many more in the briefs. We will take those into consideration as well.
Ms Tellier.
Ms Nicole Tellier (Co-Chair, Criminal Justice Working Group, National Association of Women and the Law): I'd like to thank you for inviting NAWL to appear. As many of you probably know, we've been participating in this process for about 23 years now. Because, in our view, male sexualized violence against women and children is the most blatant and profound and fundamental manifestation of our sex inequality, criminal law reform has been a major focus of NAWL's work.
We are delighted to be here and lend support to the bill, but we would like to state at the outset that we share the position of our sister organization that the constitutionally appropriate position is release no records ever.
Having said that, we nonetheless support the bill in its going a long way toward ameliorating and minimizing the discrimination that arises both because of the practice of sexual assault against women and the way in which sexual assault proceedings unfold in our current justice system.
We want to say that it is absolutely necessary that this bill be enacted in order to redress the Supreme Court of Canada's failure, in our view, to adopt an appropriate constitutional approach that gives more than just lip service to women's equality rights under the Charter. We also believe it's absolutely essential that this bill be enacted if women who are sexually assaulted are even going to participate in the criminal justice system.
We do have some amendments. If you review our draft, you may think they appear rather daunting; our brief is not so brief. But I would like to highlight its format and draw your attention to some of the key points. An executive summary at the beginning of the brief actually outlines each and every one of our recommendations.
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The text of the brief not only provides you with a commentary and a rationale to support those recommendations but we also have redrafted the legislation where we believe drafting will ensure that the intent of what this legislation sets out to achieve will in fact be attainable.
I'd like to persuade you this morning of two things - that these amendments are necessary and are actually quite minor and doable.
The last part of the bill includes an appendix that is a very important summary of 140-odd disclosure cases that have unfolded in our justice system in the last few years. What is astounding about them is that these requests for this kind of information occur only in sexual assault proceedings.
In our view, the bill, to achieve its goal, has to include seven essential elements. These are outlined on page 11 of the brief. I wish to concentrate on four: the definition of records; the preamble; the impermissible grounds; and an issue related to funding.
The definition of records as currently drafted is not an exhaustive list, simply as a matter of statutory interpretation. However, when you look at the appendix I referred to earlier, you will see that there is a whole range of records being sought. It's not just records where there is a reasonable expectation of privacy. In fact, many women are documented, knowing that coercive records are being made about them. They have no expectation of privacy. This is as much about equality as it is privacy.
We have expanded that list to be more inclusive, again, to assist judges and to alert them that this is more than just a problem about counselling records. This is a problem about seeking every kind of conceivable life recording of a woman in a sexual assault proceeding.
The second point I wish to make has already been eloquently articulated by Ms Scott. This relates to the preamble, a fundamental piece of the legislation. It sets out the purpose for which the legislation is being enacted.
As she pointed out, experience shows us from Bill C-49 - and it was our submission then that the preamble should be incorporated in the bill - that if it isn't included, it is neither referred to by judges or council nor adhered to.
Our brief cites an interesting article by a judge of the Ontario court, Donna Hackett, in which she refers to some 18,000 cases she has presided over. It also includes conversations with her brothers and sisters on the bench. Her incredible conclusion is that section 15 arguments, equality arguments, are rarely made - in fact, never made - in these kinds of cases. Judges are not being directed to use the equality analysis because the preamble becomes hidden once the legislation is passed.
It is a very simply amendment to make this a declaration of principles. There is a precedent for it in the Young Offenders Act. It will then form a part of the subject of the bill and will give advocates of women and judges alike an important interpretive guide. We really urge you to consider that.
Our third comment relates to the impermissible grounds. This is an absolutely critical component of the bill. It must be clear that any one of these grounds, when advanced by defence counsel, will result in the failure of an application. To make it clear that this is so, we are recommending that it be called ``impermissible'' grounds rather than ``insufficient''.
There is currently a drafting problem with the legislation. It's certainly my understanding, from being involved in the consultations, that it was never intended that if you advanced two of these grounds your application would succeed, but one would not. The way it's currently drafted, it is open to interpretation that if two of these impermissible grounds are advanced it would be okay.
Put simply, two wrongs don't make a right. We have cleared that up in a very simple rewording at the beginning of that legislation. This can be found in the brief at page 23.
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Finally, we think the list of impermissible grounds should be expanded. There is an expanded list in our brief at page 26. There are two I want to mention briefly, because they are so broad and so overstated they result in the production of virtually every single record. This relates to a record being sought on the basis that it was created in temporal proximity to the time that either the offence occurred or the laying of the charge took place.
That kind of language will result in every counselling record of a woman who sought help, either at the time of the rape or at the time she initiated proceedings, getting in. That is being successfully used today to get access to any and all records and should be included in your impermissible grounds. It's an absolute necessity.
A similar bald assertion is that the record may reveal information that will give greater particularity to the facts surrounding the alleged offence. It's important to know that records are not to be used, as Madam Justice L'Heureux-Dubé has pointed out, as an investigative tool for the defence.
That is a ``mis-purpose'' of the records. To simply suggest that the record may reveal more information, and that this in turn may lead to a particular train of inquiry, is a complete subversion of what is the general disclosure process in criminal trials as we know them. Obviously, sexual assault trials are always different.
Finally, and I think critically, if this bill is to be meaningful to the women whose constitutional rights are at stake, there must be money for them to get access to counsel. Currently, legal aid plans provide funding to the accused on the basis of their impecuniosity. It is sex-discriminatory that in this country the allocation of financial resources goes to the accused so that his constitutional rights can be advanced when similar funds are not available for the complainant.
We are not asking you - well, we would like to ask you - to make fund available, but we think there is a way, in amending the legislation, that you can achieve this purpose without dipping into federal funds. Under current law, an impecunious accused can actually make an application to a judge to have court-appointed counsel prescribe legal rates. That is being done. We are suggesting that a similar right absolutely has to be available to women if their constitutional guarantees are in fact to be guaranteed.
So all we ask you to do is to include a provision that empowers the court to do that so that a complainant, and those who have standing in this bill, can actually make an application to a judge. It's necessary, because currently they are completely unfunded by legal aid. They are considered not parties to the proceeding, notwithstanding their right to standing. That minor amendment will achieve that purpose.
The Vice-Chair (Ms Torsney): Thank you.
Ms Oleskiw.
Ms Diane Oleskiw (Member, Criminal Law Working Group, National Association of Women and the Law): Thank you. I come to this process as a practitioner who represents complainants and institutions when their records are sought in criminal proceedings. I've been doing this work for coming up to four years.
What I'd like to bring to the table today is a discussion of the more functional underpinnings of our recommendations on the bill. In our brief we've addressed both the constitutional and functional. I want to highlight four for you today.
First, NAWL joins LEAF in its position that the subpoena ought to be eliminated. I will simply add to Ms Scott's observations that the elimination of the subpoena at the first stage is completely consistent with the bill's articulation that record holders and complainants are not compellable at this proceeding anyway. So it's consistent with what the bill intends to do in the first place. Very importantly, the subpoena is unnecessary, and it is a tremendous waste of resources.
I can tell you that as the law stands today, O'Connor applications regularly derail criminal trials. They extend over the course of days, which provides for a cumbersome process at the moment.
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As schedule A in our brief shows, often multiple record-holders are subpoenaed to court. They sit in court for extended periods of time. They are inclined to ask the judge things such as ``Can I hand my records up in a sealed envelope and can the court just hold on to them and let me get out of here?''
Several practical difficulties flow from that, the first of which is that there has been no order for production. Secondly, the custodian of the record then also is not there to further define the record for the court later. In other words, if a doctor comes to court and hands over his entire file concerning a patient, the court has nobody to talk to about limiting the actual records that are produced to the court. So it's very problematic from a practical point of view.
I must also say I've been involved in cases where the records have at least temporarily gotten lost in the court system. It's not a workable procedure.
No one can afford to sit in court all day, especially the front-line workers who are community-based. I have had a case where a whole sexual assault crisis centre was taken out for an entire day. All of the workers were subpoenaed to court. We argued all day. Obviously the centre didn't have the funds to be there in the first place, and very importantly, all of the women who desperately needed the services of that centre were deprived of those services for the day.
Secondly, I'd like to inform the committee that we see a problem with service. We completely agree that the complainant, the record-holders, and indeed, we assert, the author of the records ought to get notice of the proceedings and that the accused is responsible for giving them notice and effecting service. However, we say the crown ought to be responsible for actually effecting service on the complainant. It's a very simple reform but absolutely necessary, given that many complainants are in hiding from their perpetrators. Again, as a practical matter, the crown shouldn't disclose the addresses of complainants.
Thirdly, I would like the committee to be aware of NAWL's support for the hearings that are said by the bill to be held in camera. It's very important that the hearings conducted by the trial judge are held in camera as a way to minimize the constitutional violations that are occurring.
One suggestion we make in terms of clarification of the bill is that Parliament define which people are allowed standing at the second stage of the proceeding. What I mean by that is it ought to be clarified that the accused does not have standing at the second stage. Your review of the bill will show you that at the second stage the judge is looking at the records in camera. The judge is looking at the very records that are sought to be produced to the accused.
One counsel has consistently made the submission that the defence lawyer ought to be able to sit in and review the records in order to assist the trial judge in determining which records get produced to the accused. Well, that obviously truncates the entire process. And I can tell you he was actually successful in one of those cases. That, in my submission, ought not to be allowed to happen. The bill ought to clarify that neither the accused nor his lawyer ought to be able to look at the records in the second stage proceeding.
Lastly, if I leave you with anything today, I would like to give you an idea of what a complainant goes through, knowing that a judge has looked at her records. What I'm getting at is, on a very human level, the reason we need a necessity standard at the first stage of the process. We need to front-end the process, as this bill does, and we need to acknowledge that the moment the records get into the hands of the trial judge, there is a constitutional violation.
I want you to picture for a moment this scenario. A 32-year-old woman is raped by her employer on a business trip, let's say. She doesn't go to the police because she doesn't want her entire life to fall apart. Amongst other things, she doesn't want to lose her job. But as a result of the rape she starts having panic attacks. She starts having all kinds of fallout and her life starts falling apart.
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She goes to a counsellor. When she goes to the counsellor, the immediate concern is ``I've been raped; all this terrible stuff is happening to me'', but what she's really trying to address is the long-term abuse that happened to her when she was a child. From her earliest memory, her grandfather molested her, buggered her, and did all semblance of nasty things to her. What she wants to do is get at the fallout from that. She talks to her counsellor about that. She talks to her counsellor about how she feels she's just rotten to the core.
In O'Connor, that record is producible to the trial judge. That record goes to the trial because the complainant talked about the offence. Imagine that witness sitting in court knowing that the judge who's judging her knows all of that about her. Furthermore, he knows that about her from somebody else's assessment, opinion, or impression of that. She has to sit there knowing that.
That, I submit, should convince you there's a violation. There's a violation when the judge sees it.
The majority of the Supreme Court of Canada in O'Connor did not acknowledge that, and we say Parliament absolutely must address that.
The Vice-Chair (Ms Torsney): Could I clarify? In the case you just cited, the charges for which they were in court were against the employer.
Ms Oleskiw: That's a hypothetical case, but yes, the charges would be against the employer.
The Vice-Chair (Ms Torsney): Okay, I just wanted to clarify that.
Ms Tellier: And in that hypothetical she cited, evidence that would otherwise be prohibited by section 276 of the Criminal Code, which is past sexual history, is getting in. That should be added to your list of impermissibles.
[Translation]
The Vice-Chair (Ms Torsney): Okay. We will now move on to questions.
Mr. Landry (Lotbinière): Let the others go first. You can come back to me towards the end.
The Vice-Chair (Ms Torsney): Mr. Ramsay.
[English]
Mr. Ramsay (Crowfoot): I want to thank you for your presentation.
What we find here is the conflict between the two interests. The interest to ensure that an accused has a fair trial and that we don't deny evidence that might exonerate the accused is to protect members of society from being falsely accused and falsely imprisoned. One of the worst things our justice system can do is incarcerate an innocent person, and it's happening today.
Representatives from both of your groups have indicated that you would like it if no records at all went in. But what if contained within those records were evidence that would exonerate an accused? Would you still say those records should not go in?
Ms MacIntyre: I'd say two things. You are assuming there is something in there that would.
Mr. Ramsay: Yes, I'm assuming that.
Ms MacIntyre: Yes, you are.
There are miscarriages of justice on record: Donald Marshall and Guy Paul Morin. They were not the result of absence of records, far less sexual assault complainants, false fabrications, or mismemories. They were actually injustices created by the system, not women.
In three years of working on this, nobody could ever cite one case where a false fabrication convicted or a record would have shown it was false and it would have convinced everybody. It's never happened.
Mr. Ramsay: But that's not the question.
Ms MacIntyre: But let's be clear. The conversation does frequently go to hypotheticals, and I want you to understand we spent three years looking for one that would actually convince.
What is not permissible is an acquittal secured by reliance on discriminatory logic, records, or biases. That's what you're screening out here. The evidence is not relevant to what our Criminal Code requires.
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Here's the question. This is the law. Where there is no voluntary agreement to sex on a particular occasion with a particular man, the Criminal Code has been violated. The question is, did this woman voluntarily agree at this time to these activities with this man? It's not, did she do it before? It's not, did her father rape her? It's not, was she a good citizen when she shoplifted?
Mr. Ramsay: Yes, I understand.
Ms MacIntyre: So the question for me is what hypo can you actually imagine where in the records there will be the proof or even the hint that will help you free somebody on the basis that this man did not assault this woman on this occasion?
Mr. Ramsay: If we can assume from what you're saying that there has never been a case where the records contained any evidence that contradicted the accused in any way, shape, or form, then we don't have to worry.
Ms MacIntyre: No, no. You will find inconsistencies. If you ask that question of me tomorrow, you'll phrase it differently. And if I made my presentation tomorrow, I would emphasize different things. There will be inconsistencies. You would not look for the unreliable fabrication from those inconsistencies in any other sphere.
There will be inconsistencies. It doesn't in fact create innocence. That's how we communicate in the world.
Mr. Ramsay: Well, your answer frustrates me, and I don't think it should, because I agree with the intent of the bill. But I'm also concerned about the files I have in my office where men are in jail for convictions and actions that they deny they ever committed.
Our section 690 applications under the Criminal Code rely upon fresh evidence or new evidence. What you're saying is fresh evidence or new evidence that may be in a record should not be made available to the accused. Am I right in my understanding of what you have said to the committee this morning?
Ms Tellier: We're saying it's not relevant evidence, it's inadmissible evidence, and it's a constitutional violation. There is more at stake here than the fair right to trial for the accused. The complainant also has to have a right to a judicial process that's responsive to her needs.
What you're missing is that the whole crux of this bill is that there needs to be a balance. Why is it that time and time again, as Justice L'Heureux-Dubé puts it, women's rights are left at the altar willy-nilly because of the paramountcy that is given to the rights of the accused? We have a Constitution that demands a balancing, and you're suggesting that because there may be one thing that may exonerate, we immediately balance the other way. We're saying that's not constitutionally permissible and that's not what this bill is about.
Mr. Ramsay: Well, yes, and yet at the same time we can't ignore the constitutional rights of the accused. You have made that statement. You have claimed that the constitutional rights of the victims are being violated when their records are made available. Upon what basis do you say that? Have the courts determined that? Is this a court determination?
Ms Tellier: Of course. The O'Connor decision says their privacy right has been violated, and a four-person majority has said also their security of person and their equality has been violated.
Mr. Ramsay: So that decision is insufficient to grant the protection you seek?
Ms Tellier: Absolutely. In fact the decision has created a disaster.
Mr. Ramsay: I have just a few minutes left. Let's follow it through this way.
Where do you draw the line in terms of a record? When a complaint is laid, it goes to the police and a confidential investigation is conducted, or it's supposed to be confidential. Does any part of that record fall within the category you're referring to? That's the first question. The second question is, would a peace officer investigating a complaint be denied access to any statement that the accused might have made to a counsellor or to someone who may fall within that category of record keeping that the bill addresses?
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Ms MacIntyre: The bill doesn't block police pursuing those records. We're hoping that when they read your preamble and text, they won't pursue them.
What the crown and the police do in the investigation stage is, in this bill, disclosable by law; that doesn't change. And I do want to underline for you that both of our positions are that if the material is necessary for a full trial and defence, it goes in, notwithstanding it may violate privacy. If it's based on discrimination, it's not necessary. But if in fact it deters reporting, the necessity of a fair trial in our submission is trumps. What we're not saying is ``of some help to the defence, may be useful'' is in fact consistent with what the Supreme Court has elsewhere pronounced: that constitutional rights must be reconciled; that you can think of a fair-trial spin doesn't make it actually fully balanced against the other constitutional violations.
We haven't yet established a violation of a fair-trial right. We're actually trying to see if there's any fair trial involvement at all. If it's irrelevant, the fair trial issue is gone. There is no fair trail issue.
Ms Oleskiw: You referred to confidential police investigations. But the bill does provide that when the record is made in the course of the investigation, it's not covered by the bill. The bill does not govern that type of record.
Mr. Ramsay: So the investigating police would have access to these records?
Ms Oleskiw: That's not the same thing.
Mr. Ramsay: That's my question. Is it your submission that the crown, through the law enforcement agencies, be denied access to these records as well?
Ms Tellier: We don't, but one of the things our submissions do address is the existing problem of records that have come into the crown illegally or without proper consent. There are a lot of cases in the system prior to this bill being enacted that will be caught by this. That is to say, women have agreed to provide these records to the crown without knowing the use to which they would be put. Had they been fully informed in fact they would never have got into the hands of the crown. So because the Stinchcombe rule applies, and once in the hands of the crown must be supplied to the defence, we suggest this problem, which we hope will only be limited in time because of the bill, be addressed.
Mr. Ramsay: So you're suggesting that because the defence would have access by the requirement of disclosure, if the police had access to these records these records be off limits to the investigating police officers as well. Is that what you're saying?
Ms MacIntyre: They have to get informed constitutional consent by this bill.
Mr. Ramsay: From the victim.
Ms MacIntyre: That's right.
Ms Tellier: That's right.
Ms MacIntyre: There's a prior question: why did they want them? You refer to them as evidence. They're not evidence.
Mr. Ramsay: It's information.
Ms MacIntyre: It is information. There's a prior constitutional question: who produced them, and with what values?
O'Connor was the story of residential school records, school employment created by a system this government now recognizes was designed to eliminate a culture. Those records exist. Why would you resort to them? Why did they? And why did they go in? They were floating through the school hallway. But why would they have gone after them? What's the assumption that you need this extra evidence you don't go after anywhere else? That's the first question. The bill won't stop police going after it. It asks for informed consent. But why do they go after it here and nowhere else? That's the equality question.
Mr. Ramsay: I don't agree with that.
Anyway, my time is up. Thank you. We'll come back perhaps.
The Vice-Chair (Ms Torsney): Ms Cohen, please.
Ms Cohen (Windsor - St. Clair): Madam Chair, through you to my colleague, Mr. Ramsay -
Mr. Ramsay: Why are you addressing me?
Ms Cohen: I'm not.
Mr. Ramsay: Address the witnesses.
Ms Cohen: Through you, Madam Chair, to those males present who can't get their minds around this, we might want to reflect on the question of whether a male bank teller has his medical records sought after a bank robbery, or whether a bartender or a bouncer, say, in a strip-joint has his records checked after a charge of assault.
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Mr. Ramsay: If it's relevant?
Ms Cohen: You might want to reflect on why the fact that there's a sexual assault against a woman gets some people so upset they have to seek that woman's records.
Mr. Ramsay: It's only if the information is relevant.
Ms Cohen: You might want to reflect on why files in one's office by men claiming not to be guilty of an offence are automatically believed when the evidence of a woman who accuses someone of sexually assaulting her requires such severe testing in terms of evidence.
Mr. Ramsay: I don't think anything's automatically believed.
Ms Cohen: In any event, let me first say that I want to thank both groups for your contribution. But to the National Association of Women and the Law, I think you have excellent choice in the family background of the people you hire.
Can you help me, Ms Oleskiw? It occurred to me, when you were speaking of your actual trial experiences, that some of the things you were talking about had to do with how the crown handles the case. It seems to me that having a bunch of witnesses line up in a courtroom and scream out the operations of a sexual assault crisis centre could be avoided. In fact I might say that in my community those kinds of things are avoided regularly in terms of scheduling witnesses. I'm just surprised at those kinds of problems.
Ms Oleskiw: In my experience, it really is the defence that creates the problems. If the defence subpoenas the witness, which is exactly what's happening here, the defence is entitled to say that they have to stay here. They are subpoenaed. It's a court order that compels them to be in court. So even if you had a crown counsel who was very sensitive to all of these concerns, which is not, frankly, always the case -
Ms Cohen: That's right.
Ms Oleskiw: - but we hope for that - you're not guaranteed that you're not going to avoid those types of problems.
Ms Cohen: No, and I take your point, but that's where I'm going. In terms of practice, has there, in your experience, been a problem with the system itself, as opposed to...? Taking the system - the players in the system - apart from the legislation for a moment, is there a problem with police? Is there a problem with crowns? Do you want to comment on that?
Ms Oleskiw: In my experience, it really is the subpoena that's creating the problem. It's the defence that's creating the problem, and the system, frankly, because it's such a novel and popular tactic of defence counsels, isn't quite ready to handle all of the fallout from that. So in that sense I suppose the system is problematic.
I do think it's very important that this legislation apply to the crown insofar as the Supreme Court of Canada decision in O'Connor and L.L.A. v. Beharriell is the first articulation that complainants do have at least constitutional rights to privacy and security of the person in these records. So at least we have that. Given we have that recognition, it's not unexpected that police officers might not have appreciated that prior to those decisions. So we can expect that there are records in the hands of police right now we would have difficulty with, for which there ought to have been a constitutional waiver.
The real problem here is created by the defence.
Ms Cohen: In terms of those cases that are presently in the system, I think maybe it was Ms Tellier who suggested we should try to deal with counsel for victims.
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I've been here since 1993, and having made a large part of my living on legal aid, I know it has changed substantially. I have perhaps a dozen times over the years represented victims funded by the legal aid program in Ontario. Do they not fund it at all any more?
Ms Tellier: Absolutely not. Even though standing has been now acknowledged by the Supreme Court of Canada, it has not changed their funding policy. Their funding policy is that it is a criminal matter and therefore only the accused is entitled to funding. Sexual assault victims don't get funding either to participate. In the criminal process in Ontario the practice is not to give them certificates to participate in the civil process either.
Our provision would allow the judge to remedy the situation where the woman has no alternative resources, obviously, and to direct that a counsel be appointed at prescribed legally aided rates. The Attorney General's office of the province would be responsible. It would be on a case-by-case basis, with the application being made directly to the judge.
Absent that provision, I don't know how women are going to be able to assert their rights. Diane is one of the few lawyers in the province and perhaps the country whose entire practice is constituted of these kinds of applications. It's very hard to find competent and affordable counsel to do it.
Ms Cohen: There are several counsel in Windsor who are competent at doing it, I can assure you, and they are doing it regularly. Having said that, often they're not funded by the individual, or apparently not by the legal aid plan.
What you're talking about, then, is a section like the section in the Young Offenders Act that allows a judge to effectively order that the legal aid plan pay?
Ms Tellier: Yes. That exists already in common law as it relates to an impecunious accused. Because there's no precedent for a complainant - actually there is a precedent in Ontario for a complainant - we think it ought to be actually codified. We've drafted the provision for you.
Ms Cohen: Okay, thank you. Those are my questions.
The Vice-Chair (Ms Torsney): Thank you.
[Translation]
Mr. Landry, you have no questions? Mr. Ramsay, five minutes.
[English]
Mr. Ramsay: Thank you. I think everyone shares my concern about the balance between the rights of the accused and the rights of the victim. It's one of my colleagues who has brought forward the whole concept of the victims' bill of rights, because we're very concerned. You ring a very sympathetic chord with me when you stand, as you have done this morning, and articulate the need to protect the victims of this kind of an offence from further victimization. Yet at the same time we must be very careful that we strike that balance.
From my experience with looking at the bill, that balance is struck here. If what you've told us this morning is accurate, and I accept it as accurate, then you've examined all these cases and there's been really nothing found in the records that the bill addresses that would have exonerated the accused. The courts are going to take a look at the contents of this bill to see whether or not the evidence is relevant. This is at least the first step towards ensuring that the constitutional rights of the victims are not violated in these hearings.
Yet at the same time, let us take the worst-case scenario, where there is a false accusation of a sexual assault - and it does happen - and there is relevant evidence within the record. I'm a little bit concerned with your position that all of these records should be off-limits at all times, even though in some cases, although you haven't seen any cases, there seems to be never a case where relevant information that might speak towards the innocence of the accused might be available and would be denied through a denial of access.
Ms MacIntyre: I want to thank you for this. This is the heart of the problem, it's the heart of the bill, it's the heart of the crisis. It is the question, so it is right to work on this question.
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I hope you'll read both briefs afterwards, because many of your questions will get a full reading on that. I want to go back to the cases read. There are cases that resulted in acquittals. This is the problem.
Mr. Ramsay: Wrongfully.
Ms MacIntyre: A fair trial didn't happen. The process was derailed and distorted into questions that don't happen elsewhere.
Nobody has said out loud that if they hadn't had those records, they couldn't have had an acquittal. The terrible travesty.... We know under-reporting, followed by over-unfounding rates, where the police screen out, followed by over-plea-bargaining or no prosecution, followed by low conviction rates. So there's a very high chance ``exonerated in law'' happened. A fair trial didn't, and women know it.
It's getting to the point where I as a lawyer no longer believe I can tell a woman in any integrity to use this system. The reason I won't say it out loud is I'm actually afraid it will give those who prey on inequality immunity. They know it. They know there's not even a 6% chance that a report will happen. It's a terrifying thing to say out loud, but at this point I don't know anyone I would say use this system to, because I cannot vouch for it, and women know that.
These claims are brought in the name of abuse of justice. If you read Carosella, the fact that not subpoenaed records never run through any likely relevance threshold ever, but are speculated about richly.... We're destroyed before subpoenaed. The support service a woman chose to help her through what she knows is going to be a gruesome process was destroyed. Her support system was destroyed, and rather than be destroyed, they destroyed the records.
There was not an order requesting those records. I don't know what will happen next when there is, but there wasn't. Nobody knows what was in them. And the charges were stayed. Look at the choices that were there. Don't make the records. Tell the woman who comes for support: I have to warn you before you say a word that I will take no notes and I might get you mixed up with the other 300 women I dealt with this year; or I'll forget where we were last time and you'll feel like I've lost you; or I'll make cryptic notes in the hope nobody will ever look at them; or I'll destroy the notes. Those are the choices.
Or tell the woman: Don't go ahead, because in fact something five judges have called in the abstract ``relevant''...in the abstract a fair trial could acquit. Worse than that, they could make you withdraw your charges. In some of these cases there's never going to be a trial. It's not about a fair trial.
Mr. Ramsay: That was a recent case.
Ms MacIntyre: There's more than one recent case.
Mr. Ramsay: I would like to make a comment on that. When I read that, because relevancy was never established, I could not understand their decision on it. How in the world did they make that decision when relevancy -
Ms MacIntyre: They imagined it. You have to understand they imagined it.
Ms Tellier: They imagined it, and they do what judges are doing every day of the week when they make these orders. That's why the impermissibles are so critical, because they imagine there must be something in there when that box is sitting there, and disclosure is being ordered because of a ``maybe''.
Mr. Ramsay: You're suggesting that if they can do that without seeing the evidence, they can do it even though they do see the evidence. Is that what you're suggesting?
Ms MacIntyre: Yes. Also, put yourself in this story. You are a good citizen and you take risks. Let's say you're afraid of reporting, and many complainants are. They're afraid for their safety, for their children and for their jobs, and they're afraid for public vilification. But let's say say you're afraid of a death threat and you as a good citizen think there's a bigger thing than you and you'll report.
The first thing that happens is the law says we have to investigate your credibility at large because people who report this, or the likes of you, are not like everybody else. You need credibility testing. Forget the privacy invasion. The presumption before you open your mouth is that the likes of you cannot be believed, cannot serve this system and have to become public property in order to do your good citizenship. Forget about vindicating your harm - to be a good citizen. Before you open your mouth, what we think is something out there....
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You have bank statements, you have phone statements, you have a doctor. You changed doctors. Your doctor was insulting to you, because it says he's a difficult patient. It doesn't matter what's in the records; you have them up your sleeve. And we say we need them, because something might be in there - the likes of you, this offence. We need everything.
Mr. Ramsay: So are -
Ms MacIntyre: An innocent man may go down for you, because the likes of you.... Somewhere in the records there's an inconsistency. You went to a doctor.
The Vice-Chair (Ms Torsney): Thank you, Mr. Ramsay. We're actually at about eight minutes.
I just wanted to clarify something before I go to Mr. Kirkby. Several times this has been mentioned in terms of other cases, or only in these cases, or what have you. I wonder if you could spell out specifically where records would not be requested, or how this is different, because it is a sexual assault charge versus a regular assault with two men.
Ms Oleskiw: Well, one interesting observation that comes out of our appendix found in the NAWL brief is.... First of all, I'd like you.... You know, police officers are responsible for having accused people convicted by the thousands across Canada every day. Not only are the requests not even being made for their records, but when those very exceptional requests are being made, the requests aren't granted. The court just says, oh, my gosh, that's a complete fishing expedition. Why would you ever get into their personnel file, or have other records of a police officer?
Yet police officers get up and give evidence every single day in court, purely on viva voce testimony, which means they don't have a piece of paper, they don't have back-up documents. They don't even have corroborating evidence. It's a police officer getting on the stand and saying that something is so, and nobody ever goes after his or her records. So that's one important thing.
The other thing is that NAWL's schedule at the back of the brief also shows that out of 140 cases, 120 were sexual assault cases, and those are just cases in which the request was made. We also found that in those 20 exceptional cases, 14 dealt with crimes of violence. So you had a violent crime when the defence was seeking the record.
A really important point is that in eight of the exceptional cases, they were still going after the records of women or children. So the person who was sought to be discredited was still a woman or a child, even though the offence wasn't sexual assault.
The other significant figure is that in four of those exceptional cases, defence counsel was seeking access to records of inmates. So to the extent that an inmate might be said to have a prima facie presumption of incredibility, it would seem that women are put on the same footing.
In any event, I very much urge you to refer to the appendix in our brief. It frankly says everything in my submission.
The Vice-Chair (Ms Torsney): Thank you.
Mr. Kirkby.
Mr. Kirkby (Prince Albert - Churchill River): I just have a very quick question. You've indicated that the records are gone after only in the case of sexual assault, or generally only where the records are going to be sought - that is, when women and children are the victims of a crime.
It also seems strange to me that when victims groups, groups that on a consistent basis proclaim that we support the victim, etc., without reservation in any one of the number of types of criminal offences that may come up.... It is only again in the case where women and children are the victims that they say, what about false conviction? This is the only time I have ever heard that word mentioned, and I'm just wondering if that's another symptom of the same sort of thing.
The Vice-Chair (Ms Torsney): Ms Scott.
Ms Scott: I think the other important thing - and also to follow up on Mr. Ramsay's point earlier on - is that we can't have legislation created on a hypothetical that has never been proven. I mean, we can't allow that into our justice system.
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In fact, Mr. Ramsay, you know, we're not saying no records, no time. That is our personal belief. It is the position we've advocated. But we also accept the threshold in this bill; we accept that. But what we say is that it can't be impermissible. You have to prove likely relevance, and then you have to balance both parties' constitutional rights.
In other words, it does have to be necessary for a full answer in defence. And if it is, yes, we agree, no man should go to jail wrongly convicted. But it has to be a high and meaningful threshold.
[Translation]
The Vice-Chair (Ms Torsney): Mr. Landry, you have five minutes.
Mr. Landry: I am delighted to meet the witnesses. I have a very short question. Your organization defends certain causes. Do you think that Bill C-46 gives more protection to the abuser than to the abused, whether it be a woman or a child?
[English]
Ms Tellier: I have to apologize that, despite my name, I don't speak French, and I couldn't hear the English version.
The Vice-Chair (Ms Torsney): Try the volume control on the front there maybe.
Ms Scott: It is our belief that in fact the accused will always be more protected. I think that's because trial judges do not appreciate the constitutional rights of complainants; they only appreciate the constitutional rights of the accused. There will always be a predisposition in favour of disclosure. So in essence the system will be weighted in favour of the accused's fair trial rights, because those are the constitutional rights judges understand.
What this legislation has to do is legislate that there are other constitutional rights at issue that this law, this charter, demands must be taken into consideration.
But you're right: the system is weighted totally in favour of the accused, and it's the accused's fair trial rights that always trump.
[Translation]
The Vice-Chair (Ms Torsney): Mr. Maloney.
[English]
Mr. Maloney (Erie): I appreciate and thank you for your briefs, especially the suggested phraseology for amendments to the legislation, which are helpful.
Ms MacIntyre, in your brief you had indicated and suggested that there had been extensive consultations with Department of Justice officials. Have these amendments, suggestions, or concerns been brought to their attention? If so, were they rejected, and why?
Ms MacIntyre: First of all, we were in the Supreme Court of Canada and at the table, still arguing the higher position. It's hard to tell on the present drafting of the bill whether the submissions we made are in fact codified, but in some cases unclearly. That's our read.
In that case, we made the submissions, and you see the embodiment of a justice department attempt to codify a constitutionally responsive bill. Make no mistake, this bill takes the position that five judges on the Supreme Court are wrong in constitutional law. The position we take, and this takes, is that it's wrong in law, and it's wrong when you define fair trial by weeding out four other charter guarantees. It's sort of simple at that level.
We made those submissions. If you look at page 6, you'll see that your bill says.... One of the factors, in fact the top of the list...after records pass the impermissible threshold you've codified, after the judge is satisfied that they're likely to be relevant, as written here, the top of the list is the extent to which the record is necessary for the accused to make a full answer in defence.
We read that as the constitutional threshold to be balanced against the absolute certainty that privacy will be violated, equality almost certainly will be violated, deterring and the public's interest in the administration and reputation of justice will perhaps be violated. So we read that as necessary. And if so, it did codify the result of two and a half years of submissions. The preamble, for sure, is responsive.
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So it's partly that if we're right about what's unclear right now, and we believe in where we are, you can't go lower than necessary. Then three sets of drafts went back and forth, and we think this says it, but at points it failed in terms of clarity.
The understanding was ``it's also true that any one or more of the following grounds shall be impermissible.'' The drafters have a one-word slip in there. Both of us are saying fix it. We don't think it's inconsistent.
So the submissions were all heard. If we're right in the read, most of them look like they're there. But if we're confused, you had better fix it.
Ms Tellier: I would just add that what our brief does that wasn't done at the consultation table is it brings the benefit of Ms Oleskiw's personal daily practice into the bill. I think we're totally ad idem in terms of intent, and what is desired. But I hope what she has had the benefit of doing today is persuading you on the subpoena issue and other issues. That is to say, you have it right, but in practice, in court, this is how it works, and this is what needs to be fixed. So we hope you will actually pay very close attention to those submissions on procedure.
Mr. Maloney: Okay, thank you.
The Vice-Chair (Ms Torsney): Thank you.
Unfortunately, because our next witness is coming to us via video, we have to have a 15-minute break in order to do the process; otherwise, I would have about five more questions for you.
In general, it's just been fascinating to listen to you, and on a personal basis, I'm somewhat in awe of your incredible grasp of this subject. So thank you very much for your presentations. We might have some questions for you in the future, and we'll have to figure out how we deal with that. Thank you all very much for coming.
Ms MacIntyre: Thank you.
Ms Tellier: Thank you.
The Vice-Chair (Ms Torsney): The meeting is adjourned.