EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 11, 1997

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[English]

The Chair (Ms Shaughnessy Cohen (Windsor - St. Clair, Lib.)): Order. We're working today on Bill C-46.

We have witnesses today from Action ontarienne contre la violence faite aux femmes. Andrée Côté is their legal adviser. From the Ontario Coalition of Rape Crisis Centres, we have Anne Marie Aikins, president. From the Metro Action Committee on Public Violence Against Women and Children, METRAC, we have Susan Bazilli, legal director.

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I think we'll start with the first-named witness, Andrée Côté. I understand you have a brief. Did you have an order in which you want to go?

[Translation]

Ms Andrée Côté (Legal Advisor, Coordinating Committee, Action ontarienne contre la violence faite aux femmes): Ms Aikins could perhaps begin by explaining some of the background.

[English]

The Chair: I'm going to let you go in your own order, then. You can present your briefs, then the committee will follow with questions after.

Ms Aikins.

Ms Anne Marie Aikins (President, Ontario Coalition of Rape Crisis Centres): Thank you for inviting us.

My name is Anne Marie Aikins. I'm speaking on behalf of the thirty rape crisis and sexual assault centres that are members of the Ontario Coalition of Rape Crisis Centres.

I bring to you my fifteen years of experience working in the anti-violence movement as a counsellor, an advocate for women, and a court expert on the impact of rape and the consequences of child sexual abuse. As well, I bring my personal experience of surviving rape. I also have participated extensively in the Justice consultations on Bill C-47 and other related issues.

I would like to first briefly relate the experience that brought me to this work, as I believe it is important for this committee to keep in mind that we are talking about real people.

In 1981 I was abducted at gunpoint, raped for several hours, and left in a field, beaten, to die. That experience changed my life forever.

Even more devastating was the treatment I received throughout the criminal justice system. I was prejudged as a woman who somehow deserved to be raped. My private personal history was probed, analysed and judged. The system decided that I was a woman who was likely lying or consented to the rape. I was forced to undergo a humiliating lie detector test, fired from my job, and abandoned by the system.

What I needed more than anything was to talk to women who understood what I was going through, could help me sort out my feelings, advocate for me, and give me back control over my life.

I didn't want to talk about the details of my rape; I had gone through enough of that already throughout the justice system. I wanted to talk about the guilt I was feeling, how it was destroying my marriage and any positive feelings about my sexuality, all the losses I was experiencing, and the old memories it was triggering. I needed a safe, confidential place where I knew I would be able to talk about my deepest, darkest secrets and not be judged. Being able to talk saved my life.

I am not unlike the thousands of other women who seek assistance from rape crisis centres each year in Ontario. Survivors depend on the ability of rape crisis centres to provide them with confidentiality or they will be forced to choose between the justice system and getting the help they deserve.

In the past few years, fewer women have chosen to report their abuse to the police as a direct result of our inability to guarantee their privacy. Fewer women are seeking face-to-face counselling, choosing instead to remain anonymous on the phone.

This severely impedes the amount of assistance they will be able to receive, and rape crisis centres have been forced to use valuable and scarce resources to fight this battle. So our clients will get a clear message that we will do everything possible to protect their privacy. This is the privacy we promised them.

The situation has become gradually worse since the O'Connor decision. Subpoenas are continuing to arrive at rape crisis centres on a regular basis. I receive calls on a weekly basis from those in shelters and other agencies and from counsellors from right across the country who have also received subpoenas and don't know what to do.

Judicial decisions and practices are inconsistent. In my experience, judges are usually turning over everything in our records as relevant evidence.

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Recently, during a trial of a man accused of sexually abusing his now-adult stepdaughter, a judge ruled that the victim's history of alcoholism and infidelity were relevant to the matter at hand. The judge rationalized that the fact she drank for a lot of years perhaps damaged her memory, and the fact that she was unfaithful to her husband and lied about it for a year was perhaps evidence that she was not a believable witness. The man was acquitted.

During another recent trial of a man accused of rape, the defence was trying to bring up the fact that the victim in the case was sexually abused as a child by her father some thirty years before. The woman had never confronted her father, and was trying to maintain a relationship with her mother. She had to be prepared to openly disclose this guarded secret if the trial was to go ahead.

The victim eventually recanted this rape and was charged with public mischief. The accused man was set free. In this particular case, the crown had planned on applying for a dangerous offender status because this man had a very long history of sexual offences. It was about two pages long.

I could go on and on.

Now police are suggesting that they must interpret the Carosella decision literally: they must get permission from the victim to get our records, as they are disclosable evidence. Many police departments are insisting that rape victims sign waivers so they can seek access to all of her counselling records before they will investigate her rape.

Women are routinely judged by stereotypical myths about women and rape victims. Unfortunately, some things haven't changed that much in the past fifteen years.

But this committee has an opportunity to give a message to the women and children in this country that you will provide some protection for their rights. I strongly urge you to support Bill C-46.

Think about the statistics just for a moment. Research has concluded over and over and over again that one out of three girls and one out of four boys will be sexually assaulted by the time they are 18, 50% of adult women report that they've experienced at least one act of unwanted sexual touching, and one out of ten women will be raped.

We may be talking about your children, wives, lovers, sisters or mothers. These are real people, real victims. Please protect them and the work done by the rape crisis centres.

The Ontario Coalition of Rape Crisis Centres also wants to let you know that we support the submissions by LEAF, NAWL, and METRAC. I'm sure I'm going to support Andrée's submission as well, but I haven't seen it. I might add that I believe the LEAF submission was absolutely brilliant. I was just in awe when I read it.

Thank you. If you have any questions or concerns, please let me know.

The Chair: Thank you.

Madame Côté.

[Translation]

Ms Côté: It's an honour to be here today. I represent l'Action ontarienne contre la violence faite aux femmes, an organization that speaks for stakeholders in a variety of different organizations working to promote an egalitarian, equitable and safe society.

Our interest in the issue raised by Bill C-46 goes back several years. A number of our member groups are directly affected by this practice, and have first-hand experience of the records subpoena process that Ms Aikins has just described. In that regard, we fully support her comments about the absolutely devastating impact this can have on women's lives.

We took part in the consultations organized by the Department of Justice and prepared a discussion and analysis paper on the issue in June of 1995. It is something we feel very strongly about, we are especially pleased to have this opportunity to present our views.

I have submitted quite a lengthy brief. I will try to summarize it as quickly as I can and perhaps highlight those points or pages that deal with issues of particular concern to you.

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The first thing to remember is the urgency of legislative reform at this time. I think it is fair to say that some Supreme Court decisions are retrograde. Those decisions represent a considerable retreat and will have a very serious impact on women. In light of the Carosella ruling, in particular, there is every reason to believe that many criminal prosecutions will simply be abandoned.

On page 16 of our brief, we discuss the reasons why the Supreme Court is prepared at this time to recognize the relevance of therapeutic records or personal information in sexual assault cases. Those reasons suggest to us that the Court will be very much prepared to facilitate access to those records for the purpose of obtaining information, determining whether a person has received therapy that may have affected his or her memory, testing a witness's credibility, detecting contradictions in previous statements, discovering motivations, or laying the groundwork for a defence of honest belief of consent.

That approach suggests to us that a majority of current Supreme Court Justices will be highly inclined to authorize access to those records. We will end up having come full circle. We will revert to the situation 40 years ago; sexual assault victims will again find themselves being judged as though they were the accused, and being cross-examined on previous statements, as though they had confessed their guilt.

This will have an extremely detrimental effect on women's constitutional rights. Ms Aikins spoke of the impact of sexual assault on a person's life. The impact on our lives can be seen in violations of our rights - in this case, rights enshrined in Sections 7, 8, 15 and 28 of the Canadian Charter of Rights and Freedoms.

In our brief, we discuss these different rights. I think it's clear that access to records will violate our right to privacy. I would remind you of Justice L'Heureux-Dubé's comments in that connection, which are found on page 19 of our brief:

Privacy in relation to personal information and, in particular, the ability to control the purpose and manner of its disclosure, is necessary to ensure the dignity and integrity of the individual.

So what is really at stake here is protection for the dignity and integrity of the individual. The practice of granting access to confidential records has the potential to prejudicially affect the right to security of the person, as many women will probably be reluctant to seek social and health services that they require to help them recover from sexual assault.

In the same vein, we believe that turning over confidential records may prejudicially affect women's security by creating psychological distress in victims of sexual assault. In practical terms, women will be forced to chose between receiving the psychological help they require to recover and laying charges through the judicial system. That is a choice men are not currently forced to make.

Finally, we believe that such a practice on the part of the Supreme Court results in a violation of our equality rights. In 99 per cent of cases, sexual assault or crimes of sexual violence are crimes committed by men, and in 90 per cent of cases, they are committed against women or young girls. So, there is truly a social dimension here. The effective sanctioning of sexual assault has a social dimension to it that is extremely important, indeed essential, to ensuring women's equality.

The special rules developed by the Supreme Court in the Osolin, O'Connor, Beharriel and Carosella rulings only apply to sexual assault cases. But just whose privacy and security will be adversely affected? Not just any segment of the population, but primarily women who belong to particularly vulnerable groups in society, and who have historically been victims of discrimination.

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Women of colour, aboriginal women and women with a disability are not only more likely to be victims of sexual assault - and we have a number of studies showing that the more vulnerable we are in society, the more vulnerable we are to sexual abuse - but also more likely to be the subject of therapeutic, medical or psycho-social records and reports of various types, and thus more likely to see their credibility or the relevance of their legal action tested by this new Supreme Court practice.

Thus we find ourselves in a situation where the highest court in the land is creating special rules that will essentially apply to only one group in society - namely women - and which, rather than enhancing women's rights in society, diminish their status, which definitely corresponds to the definition of discrimination. That kind of discrimination on the part of the Court is a violation of the obligations set out in Section 32 of the Canadian Charter of Rights and Freedoms, under which all governments are bound to respect the rights articulated therein.

In our view, legislative reform is a must. It is a matter of some urgency, especially since if we consider the context in which legislative reform has gone forward in Canada, one constant emerges: legislative reforms are initiated by the House of Commons, whereas court decisions are meant to chip away at those reforms by constantly forcing us back to the past. For some 20 years now there has been almost a tug-of-war between Parliament on the one hand, and the courts on the other.

In the first section of our brief, we trace the history of reforms initiated in the 70s and subsequently annulled by the courts, the 1983 reforms that met the same fate, and those introduced in 1982, the effects of which have also been annulled by the courts.

We are again asking the House of Commons to take a stand in defence of the constitutional rights of women and not to yield in the face of the retrograde stance adopted by the Canadian judiciary.

More specifically, we are very pleased to support Bill C-46. This legislation has many different positive elements that will ensure effective protection of women who are victims of sexual assault. We are particularly pleased to note the principles set out in the preamble to the bill, which recognizes the disadvantageous impact of sexual assault on the equal participation of women in society, the fact that this practice threatens the right of women to security of the person, privacy and equal benefit of the law, and also Parliament's intention to promote women's rights and help ensure their full protection. These are fundamentally important features of the legislation.

We would like to make a number of suggestions with a view to improving the bill. To begin with, I would like to say that we would have preferred a bill stating that access to confidential and therapeutic records is not and shall not be allowed under any circumstances. L'Action ontarienne contre la violence faite aux femmes and various women's groups have discussed this at great length and have uncovered no circumstances in which this information could be relevant.

We understand that there a risk the courts will have difficulty with such a position. Ultimately, we realize that it is wiser to leave it up to the judiciary to make the final decision to assess, on a case-by-case basis, whether it may be relevant to admit records. We believe that if judicial discretion is well exercised, those records will rarely or never be relevant. We are prepared to take that risk, but I did want to remind you that our initial position was that access to confidential records should never be allowed.

Our recommendations begin on page 28 of our brief and concern seven different issues.

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First of all, we propose improvements to the preamble. Basically, we support the position put forward by the Legal Education and Action Fund, LEAF, and the National Association of Women and the Law, and recommend that the preamble be part of a statement to be included in the Criminal Code.

If this remains nothing more than a preamble to some chapter of the Statutes of Canada, 1977, it will be completely buried. When practitioners, defence lawyers, Crown attorneys and judges have to interpret the provisions of the Criminal Code with respect to the production of records, they will not have the principles set out in the preamble in front of them. We think it's important that the preamble figure prominently in the Criminal Code and suggest that it be added as an introduction to Part VIII of the Criminal Code on offences against the person, because that is what it will apply to in the majority of cases.

We would also recommend adding certain considerations to the preamble, particularly recognition of the fact that women of colour, aboriginal women and women with a disability are more likely than other women to be victims of sexual violence, and are thus more likely to be adversely affected by the practice of examining their records.

In the chapter dealing with offences under the legislation, we have had a great deal of discussion about the fact that only crimes of sexual violence are covered, which is in keeping with the current reality. It is in cases of sexual assault that this practice is used. That is the observation made by the National Association of Women and the Law in Appendix A of its brief. Its study very clearly establishes that fact. But we still have some concerns about future development of the law in this area, in the sense that defence lawyers might be tempted, in cases of family violence, crimes, or charges of assault, criminal harassment and even homicide, to again seek access to victims' records.

We are furthermore suggesting that the legislation contain a provision that would mandate the Minister of Justice to conduct a study aimed at determining, over the next three years, say, exactly what the practice is in this area. In other words, in cases involving family violence, do defence lawyers in fact seek production of these records?

We fully support those provisions of the bill that deal with non-disclosure of records to the Crown prosecutor. Particularly since the Carosella ruling was handed down, it is clear there is a real risk the courts will consider that records held by rape crisis centres or any government or para-governmental institution should be accessible for the purposes of their examination by defence lawyers. The courts seem to be saying that the Crown would have an obligation to seek production of those records. It is very important to maintain those provisions of the bill that deal with non-disclosure of confidential records held by the Crown.

With respect to applications for production of confidential records, we support the position put forward by the National Association of Women and the Law, which is that the holder of the records should not appear the day the application is made. We do not think that is necessary at that stage, and believe it represents a major inconvenience for all the parties involved; also, it might be a little too tempting for a judge, seeing a record in front of him that is ten-inches' thick, to wonder what it contains and decide to have a look at it. This is an issue that should be settled in law. It is only once the decision to produce the records to the judge has been made that the holder of the records should be ordered to come before the court with those records.

As regards the grounds for refusing access to records - that is, the provisions set out in proposed sub-section 278.3(4) - we have a list of about a dozen assertions that are generally made by defence lawyers to justify access to records. In our view, the legislation hinges on this section. It is extremely important.

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We support the spirit in which it has been put forward. However, we have concerns about the specific wording of the section. It provides that the assertions most often made by defence lawyers are not sufficient on their own to establish that a record is likely relevant.

I am now on pages 34 and 35 of my brief, for those who want to follow. It is quite possible - indeed, almost certain - that the defence will attempt to obtain additional pieces of information by means of simple assertion. For instance, if the victim is cross- examined during the preliminary inquiry or an attempt is made to obtain information held by police, as soon as the defence has that additional piece of information, the assertion will no longer exist on its own and the defence lawyer will probably then have an opening to obtain access to the confidential record.

It might be a good idea to amend and clarify the terms used. The title which appears in the body of the text, in the margin, is "insufficient grounds". It is clear that when the bill was being drafted, the idea was to stipulate that those grounds were insufficient. It should be clearly stated that the listed grounds are not sufficient on their own or collectively to establish that the record is likely relevant, or to justify access to the record. It would be fairly simple to clarify the wording, and we see that as a most important change. I am practically certain - and legal interpretation experts that I have consulted have confirmed my view - that these provisions will be no more than a sieve if we leave them in their present form.

Finally, the other important point I wish to raise has to do with the criteria for assessing the application for production. Right now it says that the judge will have to determine whether the record is likely relevant to the issue at trial. Since the Carosella ruling, however, that concept has become extremely shaky, because it has been demonstrated that any circumstance is sufficient to meet the "likely relevant test". You may recall that in this particular case, a women had spent an hour and a half talking with a counsellor at a rape crisis centre, and the Supreme Court ruled that the record would be relevant because the counsellor might have managed to convince her, during their hour- and-a-half discussion, that she had been a victim of a sexual assault that had never actually occurred. This is an indication of just how wide they are prepared to open the door in circumstances where a scenario such as this would really require quite a stretch of the imagination.

Rather than making the test one of likely relevance, our suggestion is that the defence be required to demonstrate that production of the record is probably necessary to make a full answer and defence, and that an additional factor for consideration be added here, namely that the beneficial effects of producing the record be substantially greater than the prejudicial effects. The accused should have to demonstrate that production is probably necessary, and that the benefit he would receive is substantially greater than the potential prejudice to the victim of the sexual assault, in this case, through a violation of her right to privacy, security of the person and equality.

The second last point relates to the representation of complainants before a court of law. We're very pleased that the legislation gives victims of sexual assault the right to come before a court and present their arguments, and women the right to go before a court to present their arguments, without the risk of an award of costs against them for making arguments to protect their own rights.

On the other hand, we are rather concerned that many women simply won't be able to afford that.

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As you probably already know, legal aid is not available or is rarely available under such circumstances. We hope the committee will present recommendations with a view to mandating the Minister of Justice to develop a program of support for victims of sexual assault that have to defend themselves against defence applications for production of their records, and to engage in potential negotiations with the provinces, should such negotiations be necessary. However, we believe the federal government could rely on its own budgets to fund such a program.

We have noted one shortcoming with respect to the victim's right of appeal. At the present time, no right of appeal is provided for a complainant in cases where a judge decides to review her record or to order the production of the record to the defence lawyer. An interlocutory appeal right should be provided to the victim, so that she can challenge a ruling ordering the production of her records. It should be an interlocutory appeal right; in other words, it would intervene before the end of the trial, since once the decision is made to order production of a record, that decision is final as far as the sexual assault victim is concerned. Once a record has been produced, her right to privacy no longer exists; it has been violated.

In conclusion, we are aware of the issues raised by this reform. Some provisions of the bill propose special rules for special offences or special types of offences, such as crimes of sexual violence, the majority of the victims of which are women. For all intents and purposes, we are in the process of developing a special regime for women as far as sexual assault is concerned. We seem to be reverting to the situation that prevailed 30 years ago, when there were special rules for women with respect to sexual assault. There's nothing wrong with adopting special rules to respond to special situations, but there is a danger in introducing and endorsing a discriminatory view that informs the approach of many a judge who believes that when women are involved, the situation is different and special rules must apply. We would recommend adding a provision to the bill to provide for a study to be made of the way in which these cases have been interpreted by the courts.

There is a precedent of this kind in provisions of the Regulated Health Professions Act of Ontario, 1991. The legislation provides that less than five years after its coming into force, the Health Professions Regulatory Advisory Council shall assess the effectiveness of disciplinary complaints with respect to sexual abuse. In the same vein, we could take inspiration from this precedent to suggest that within five years, the Minister of Justice shall report to the House of Commons on the effectiveness of the protections set out in Bill C-46, so that we can determine whether these special rules being adopted are actually meeting their intended goals, which are to equally promote the constitutional rights of women and accused.

That is a broad overview of our brief. Thank you very much for your attention.

[English]

The Chair: Thank you.

Ms Bazilli.

Ms Susan Bazilli (Legal Director, Metro Action Committee on Public Violence Against Women and Children): Thank you very much for this opportunity to address the committee. I note it's nine or ten months this week, I believe, since Bill C-46 was initially tabled. For a lot of us coming before you and presenting to this committee, the work in Bill C-46 represents the bulk of our work over the last three years.

I come before you knowing that we have a window of opportunity with you today to discuss the brief. We also have a very short window of opportunity to ensure that Bill C-46 becomes law before we see this government going into the next federal election. I want to try to put my remarks in more of a historical framework rather than a legal framework to give you some context of how we ended up here today.

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METRAC is an organization that has been involved for 12 years in the area of law reform on issues of violence against women and children, particularly on issues of sexualized violence, hence our involvement in areas of criminal law reform in particular. We were very involved in the consultation process around Bill C-49, or the ``no means no'' rape law, the criminal harassment law, the drunk defence law and so on.

On this issue of disclosure of records and access to records, the first case that came to our attention was in 1992, the case of Bender. It was a case in Oshawa where the complainant, the woman in the case, had virtually her entire life subpoenaed, from the hard drive of her computer through to her entire support network of women trying to assist her from the rape crisis centre in Oshawa.

That case went on in a preliminary inquiry for quite a long time until the end, when the complainant was basically forced to drop the charges because she was having to drive to Hamilton to seek assistance. All of the support network around her in Oshawa had been under subpoena and therefore could not provide any support to her. This is a case Anne Marie knows well, as do all of us who've been doing this work.

At the same time this was happening in Ontario, in B.C. the O'Connor case was winding its way through the courts. It was early 1994 when we had an opportunity to bring this information to the attention of the Department of Justice.

I do want to put on the record an acknowledgement of thanks to the justice minister, the deputy minister and the staff of the justice department, who, to their credit, did take this issue seriously, did pay attention to our concerns and did embark on what many of us would consider the most thorough consultation process any of us have ever been involved in.

METRAC itself was involved in all six of the consultations you had described for you in the LEAF brief. I will make reference to the briefs of both LEAF and NAWL, which you have before you. There's no need to duplicate the efforts they made in presenting some of these issues to you. I note that page 17 of the LEAF brief describes this long history of consultation we've all been engaged in.

I think it's quite seldom that a legislative committee such as yours would actually be in the position of reviewing legislation that has been so thoroughly reviewed and canvassed across the country by so many different sectors of the population, from criminal defence lawyers to academics to women who work in rape crisis centres and who are front-line workers.

I really want to reiterate LEAF's advice that the committee be mindful that many of the arguments you may hear against this bill and its constitutionality - if not every single one of them, and then some - have been advanced and been found to be legally unpersuasive by the justice department itself.

As I said, I will endorse the briefs that have been put before you by NAWL, by LEAF and by Action ontarienne in terms of the legal arguments. I will state for the record that it is also our position that this bill doesn't go as far as the position we originally advanced. Many of us held the position that colloquially became yet another no means no position - that is, no records would ever be relevant at any time, and there was no reason for any of those records to be held to be relevant.

This in fact was the position taken by the coalition formed across the country around the Beharriell and O'Connor cases that went before the Supreme Court. Again, you have the history of that coalition before you at page 19 of the LEAF brief.

We fully support Bill C-46, and we support the amendments put before you by LEAF, NAWL and Action ontarienne.

I see this issue very much as one of political will and political choice and the leadership to make Bill C-46 into law. We all know Parliament increasingly has taken a position over the years that we want society to encourage the reporting of sexual assault and that as citizens of this country, Parliament acknowledges that violence against women and children is a serious problem we want addressed. Unfortunately, we are doing so at a period of time when the climate still presents us with about a 6% reporting rate of sexual assault.

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Now, that's a 6% reporting rate to the criminal justice system. What we've in fact seen in Ontario is an increase in the reporting of sexual violence to organizations like rape crisis centres and a decrease in the reporting to the criminal justice system, to the police, primarily, who are the gatekeepers to the system.

We can only attribute that in the last couple of years to the increasing awareness of the access the defence counsel, and therefore the accused, will have to women's private and confidential records. You must understand that there is a real and serious crisis of confidence in the criminal justice system in this country because of this issue.

It's also a credit to this government and to the Department of Justice that we are finally getting somewhere in acknowledging that sexualized violence is an equality rights issue and that what we're actually talking about here is an issue of women's equality rights. We're not talking about victims' rights as much as we're talking about women's section 15 equality rights guaranteed by the Constitution.

I do a lot of work and travel outside the country. I always find it ironic that everywhere I go, people talk about the sexual assault law in Canada as the most progressive in the world. On paper, in fact, it is. It's the reality of the laws that don't translate into providing support and protection to women in this country that we're dealing with here.

Andrée talked a bit in her presentation about some of the history of the sexual assault law. We can see very starkly in this issue how fluid the law around sexual assault is. We often feel extremely frustrated in doing this work that we're always having to plug gaps and holes that get opened up in the law created by the legislators because of what the Supreme Court and judges do.

Yet again we're coming before you, and no doubt will be coming before another committee constituted in the future, to try to address the way in which we, as citizens of the country, have to come before Parliament to demand changes to fix things that the Supreme Court has opened up. We all are well aware of what happened around the Seaboyer case and how we had to lobby and advocate to get Bill C-49, or the new sexual assault law, and the same with the drunk defence bill. This is again one of those historic times when this fluidity around sexual assault law is bringing us back to this table.

It's also happening at a time when we're all well aware of the full legislative agenda of this government. We are looking at going into a federal election. Those of us who've been working so long and hard on this issue are very mindful of the short period of time we have to actually try to pass this into law. It actually is precisely because the governments have had the courage to take on the courts in providing the redress we so desperately need when things like the rape law get overturned by the courts.

I want to refer you to page 13 of the brief presented by LEAF, particularly about the analysis of who in our society has had the power to commit sexualized violence against women and children with impunity. It's also really important to note that at the time when you're deciding this bill, I don't think ever before has the history of sexualized violence against boy children been so much in the media as it has been around hockey and sexual abuse. It is ironic that when it's boys and hockey, it gets taken more seriously than when it's women and girls and rape.

It's also not lost on us that it took lo those five years to actually get Bishop O'Connor into court and convicted in court when no doubt he thought the sexual assault he'd committed 30 years ago against those young aboriginal girls in B.C. was never going to result in a conviction against him.

It's because of the courage of women who've come before you, it's because of the courage of the women you never see, like those women in British Columbia, that these issues constantly get put on a legislative agenda. That's why I keep saying that how we decide to carry out legislative reform around sexual assault in this country is an issue of political will and political choice.

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It's absolutely critical that we acknowledge that Bill C-46 upholds the equality principles of the charter. Without Bill C-46 enacted, the denial and breach of women's equality rights that we've seen across the country will continue unabated.

I note in the NAWL brief that they've analysed 140 cases to date - all sexual offences that have dealt with the issue of access to records. We all know this has only begun to happen since the passing of Bill C-49, or the sexual assault law, when past sexual history could no longer be readily available in the courtroom to the defence because of the passing of that law.

I urge members to fully apprise themselves of the analysis of the inherent inequality of disclosure law that has been so forcefully and articulately put by the briefs that have come before you.

The list of inequalities outlined by LEAF is summarized as the inequality of: the very record-keeping itself; the way in which the records are used in legal proceedings; the rationales given for the seeking of those records; the very disclosure of the records themselves; the concept of relevancy; and the constitutional adjudication practices that have been undertaken.

At each stage and at every turn in those proceedings we must keep in mind what Anne Marie said, that this involves the real lives of women. At each stage in those proceedings those inequalities are then compounded.

I don't think any of us would disagree that rape myths and other discriminatory biases operate within the criminal justice system. We've all seen far too much and heard far too much to argue otherwise. It's precisely because of these discriminatory biases that have been relied on that we need to bring this particular practice of law, this trying to access confidential records, into compliance with the charter, which is, as we all know, the fundamental law of the land. Often we are in a position of having to enact legislative reform so that practices can be brought into compliance with the charter.

In terms of amendments that have been suggested, we support the amendments as suggested by NAWL, LEAF and Action ontarienne. I want to highlight a couple. I note Andrée's reasons about why the preamble needs to become part of the code. It can be done through either mechanism - the declaration principles, as set out by NAWL, or incorporated by reference, as set out by LEAF. We further support the amendment LEAF has suggested about changing the word ``may'' to ``will'' in the body of the text.

We support the changes to proposed sections 278.5 and 278.7 with regard to the inclusion of the term ``necessary'' as part of the threshold of production.

We support the amendments as proposed by LEAF with regard to proposed section 278.3, which is about the list of permissibles.

We support the structural change to the bill regarding the subpoena as outlined by LEAF and NAWL with regard to proposed section 278.5.

We support strongly the provision for funding and counsel as set out by NAWL's brief. Otherwise, this will only be formal equality. I can't remember what the tally is, but we're upwards of $400,000, I think, in legal fees at rape crisis centres alone. Other feminist organizations in the country have had to shell out legal defence for our defence of the records. Any right given in law is meaningless unless it can be realized.

I further want to support the Action ontarienne recommendation regarding the study that needs to be undertaken.

We all know there's going to be litigation that will challenge Bill C-46 once it's passed into law. We all have complete confidence that this bill will be constitutional and will be able to withstand any constitutional challenge. It's very sound law, it's very good law, and the consultation process we've all been engaged in for so long will ensure that it's good law.

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I also want to say that as well as speaking on behalf of METRAC, I consider myself to able to speak for hundreds of ordinary citizens and other organizations concerned with this issue. METRAC has been a clearing house of information on this issue for the last three years. Many of the letters that have been written to the minister and to this committee have been copied to me, so I'm well aware of the concerns people have.

I do believe there is enormous support in this country for the passing of this bill. It is remarkable, the conversations you can have on planes and on buses when people find out what work you do. They know about this issue, because everyone has a sense of what their private confidential records that have been taken by various government agencies around their lives - the effect that would have on them if they were disclosed in a court setting, particularly when it regards an issue like sexual assault.

I think it is incumbent on you to speedily send the bill back to Parliament so that hopefully we can get Bill C-46 passed, as quickly as possible.

We do want this to be seen squarely within the issue of the equality rights of women, and not within a law-and-order agenda. I want to reiterate that it's not our intention in any way to ever diminish the rights of accused persons. We absolutely, fundamentally believe in the constitutional rights of the accused. In this instance all we want to do is diminish their reliance on rape myths and discriminatory biases and basically sexist law, as has been the history in all sexual assault law reform. I think that if we see this in the context of the 20 years of jurisprudence around sexual assault and the 20 years of advocating around law reform for sexual assault issues, then we have a much clearer picture of what we have to do with this particular bill.

I have one copy of a report that was written for the Department of Justice on this issue after a survey for which we canvassed across the country - METRAC and the Canadian Association of Sexual Assault Centres - and about 150 news clippings that have been collected across the country. I'll file a copy with the chair of the committee.

Thank you.

The Chair: Thank you.

[Translation]

Do you have any questions, Mr. Marchand?

Mr. Jean-Paul Marchand (Québec-Est, BQ): Thank you very much, Ms Aikins andMs Bazilli. As someone who does not normally sit on this committee, I must say I found your presentation quite upsetting. I'm not a lawyer, but I find it absolutely revolting that this legislation was not passed a long time ago. There is a tremendous need for this kind of legislation and it is clear to any normal, ordinary citizen like me - as I say, I'm not a lawyer - that the rulings handed down by the Supreme Court of Canada are biased and discriminatory towards women - indeed, blatantly so.

While I am not in a position to actually name the rulings, I find it totally unacceptable that a court or a lawyer would be allowed to poke through the private records of a woman who had been raped and had gone to a shelter to seek help. In fact, it is so bad that I would even go so far as to say that the legal system in Canada is rotten to the core. It reflects the mentality of a male- dominated society, to the point where the judicial system protects abusers and rapists. Maybe it even means that lawyers and judges, like the ones defending and hearing the Dutroux case in Belgium, are there to protect the abuser. That much is clear. When the Supreme Court hands down rulings that allow an abuser to gain access to personal information contained in the records of a woman who has been raped and abused, I find that revolting.

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It's absolutely revolting, and I think the Liberal Party that is now in power should have acted much more quickly to introduce this legislation - legislation that may well die on the Order Paper because an election is on the way. The government is dragging its feet. It's really quite revolting. I would reiterate Ms Bazilli's comments to the effect that this is a clear reason for the lack of confidence in our judicial system.

Ms Côté, you don't go far enough. I haven't read the bill, but you mentioned that there should be exceptions. There should never be exceptions. If a person consults a lawyer, the lawyer's records are not produced before the court to be used against the accused. A client clearly has the right to ensure that information he reveals to his lawyer, to a priest or to a counsellor in a rape- crisis situation remains private. It is perfectly normal to have a law that doesn't trap people who have been abused or go poking into their private life. That is completely unacceptable. The line is clear and there is no doubt about that.

Not only is this highly discriminatory, but there is no respect whatsoever for the human side. When someone is going through a very trying situation, the most important thing is to show respect. The law should not grant the power or the right to enquire into such utterly private matters. To me, that is obvious. There should be no cases where the court or a lawyer is authorized to look through the personal records of a woman who has been abused. There should be no exceptions whatsoever to that rule.

You gentlemen members of the Liberal Party are the ones who are to blame for this legislation not being passed a long time ago. If I understood correctly what Ms Aikins and Ms Bazilli were saying, this issue has been under discussion for some time. And there have obviously been some judicial decisions. If this legislation was not passed earlier, it is only because of a lack of political will on the part of this government. It's a case of flagrant injustice against Canadian society as a whole.

The Vice-Chair (Ms Paddy Torsney (Burlington, Lib.)): What a comment!

[English]

Would anybody like to respond?

[Translation]

Ms Côté: I am very pleased to hear that the Bloc Québécois member supports the safeguards that must be put in place in order to protect women's constitutional rights. I hope that we can count on the support of his party and his cooperation with the Liberal Party in order to get the bill passed quickly. We sincerely hope, as Ms Bazilli was saying, that this legislation will not die on the Order Paper. That would be a real tragedy. As you know, the Supreme Court ruling in the Carosella case is only a few weeks' old, having come down early in February, and it is an absolute disaster. It leaves the door wide open for systematic access to records.

Ms Aikins talked about the fact that the police now believe production of records should automatically be sought in future. In Quebec, that has not happened very often thus far because of the Quebec mentality and because of the Quebec Charter of Human Rights and Freedoms that protects professional privilege. But that will not continue to be the case for long in Quebec, because the Supreme Court decision in the Carosella case will apply.

Mr. Jean-Paul Marchand: But Quebec is going to become sovereign, and we will strengthen the law, Ms Côté.

Ms Côté: Those are your aspirations, Mr. Marchand, but they are not yet a fait accompli. At the present time, Quebec women are just as threatened by this provision. I am pleased to note that the Bloc Québécois will support this legislation, and I do hope it can be passed quickly. If it were to die on the Order Paper because of an upcoming election, the consequences for women would be truly tragic. We mustn't underestimate the repercussions this could have. We can never say enough about that.

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[English]

The Vice-Chair (Ms Paddy Torsney): Just to clarify those dates, I think O'Connor came down December 14, 1995, and Carosella came down February 6, 1997. You've been in consultation with the justice department since the first one, I believe.

Ms Bazilli: It was long before. It's been since 1994.

The Vice-Chair (Ms Paddy Torsney): Okay.

Ms Aikins: I would like to comment as well that our position in rape crisis centres has always been no access at any time. We even considered, as did I think a lot of other women's groups, not even participating in the development of a bill that was going to leave the window open a bit. We realized they would miss our expertise, and we reluctantly came to the position that the supreme court was not going to support a never access. That was our position as well.

[Translation]

The Vice-Chair (Ms Paddy Torsney): Yes, Mr. Marchand.

Mr. Jean-Paul Marchand: The absurdity of the whole issue is clear not only when the point is made that this is a violation of the privacy of a woman who has been raped, but that this is discriminatory in the extreme, since all women are being discouraged from going to these centres and seeking assistance in circumstances which in a way are worse than war.

In reality, a person who has been to Vietnam has had no worse an experience than some women who have been raped. In addition, all women are being discouraged from seeking redress through the judicial system. It's totally ridiculous.

Ms Côté: This will have consequences not only for the woman who has been abused and does not want to go to court, for fear of being violated a second time, but for us collectively, because all women will be less safe. There will be fewer remedies available against violent men, because women will not want to lay charges, thus leading to an increased sense of impunity among abusers, and probably a domino effect. There will be more violence against women, because abusers will know that they won't dare appear in court, because they know they will be massacred if they do. So this will have an impact not only on individual victims, but on all women. It will prejudicially affect women's equality rights while increasing the social, economic and legal disadvantages they currently face.

The Vice-Chair (Ms Paddy Torsney): Thank you very much. Ms Ablonczy.

[English]

Mrs. Diane Ablonczy (Calgary North, Ref.): Thank you, Madam Chairman.

I'd like to thank the three of you for more excellent presentations. I really appreciate your courage, Anne Marie, in sharing personal experience. I think that's very helpful. As Susan said, sometimes we forget there are real people out there affected by these laws and we need to be reminded about that on a regular basis.

I think in general, as you pointed out and I would agree, Canadians do support measures like this to better protect the privacy of women and their ability to seek justice and redress and thereby enhance public safety by making sure that perpetrators of these kinds of terrible violations are brought to account.

I think the job of the committee is to ensure, and Susan acknowledged this and alluded to it, that this legislation does strike a good balance in protecting the constitutional rights of all citizens to be presumed innocent until proven guilty and to have fair trials and for justice to be done in an open and accountable manner.

The consideration of this committee is to talk to our expert witnesses such as you and satisfy ourselves that the balance struck in this legislation is in fact an appropriate one. Ms Kane, who has done so much work on this bill and was able to give some good responses to those concerns, is here.

I have a couple of questions in that regard and would like to have you respond to some of the concerns that have been raised about the bill so that we're satisfied that those concerns are properly dealt with on balance in the bill.

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One concern of course is this whole situation of equality and fairness in society. The concern I've heard is that this bill would simply replace one bias with another, the bias now or in the past being that if someone cries rape that person probably invited it or had reason to expect it and that kind of thing. The bias being raised as a concern is that every person accused of this kind of sexual assault is actually guilty, that the alleged victim is indeed a true victim, and that there's no particular reason for the accused person to try to impeach the credibility of the accuser in any substantive way. I think that is a fair concern, and I'd be very interested in your response to it.

Ms Bazilli: I can understand that concern would be raised. I guess the first thing is that anybody who has any sense of what it's like to go into the criminal justice system as a woman who has been sexually assaulted would know that it's not something that anyone would ever take lightly. I think you're already weeding people out from the system, because people know how difficult it is to survive in the system. I don't know anybody who's ever worked in this area - and I know people who've worked in this area for more than 20 years - who has ever come across situations of women crying rape, but I do recognize it's something we always have to answer to.

One of the answers is that we had checks and balances in the criminal justice system until the passing of Bill C-49, or the new sexual assault law. This issue of getting records to have a fair trial is new, so it's not as though we've always had a practice whereby women's confidential records, being part of a criminal trial, were part of a fair trial process. It was a way in which you could try to get in through the back door what you couldn't get in through the front door. Bill C-49 stopped past sexual history from being brought into a sexual assault trial, because it was recognized that this wasn't fair. I think when we can see it in that context, we have an answer, which is that it never used to be about fair trial rights, so why is it now?

Mrs. Diane Ablonczy: Bill C-49 was brought into law in 19...?

Ms Bazilli: It was in 1992.

Mrs. Diane Ablonczy: I see you refer to it in your brief on page four.

I guess the biggest concern in that regard is this whole matter of what's called repressed memory. This was brought up in debate in the House, and it concerns matters raised by members of Parliament who had tried to act on behalf of constituents who were accused pursuant to this whole area of repressed memory of sexual assault and sexual misbehaviour. It shows a very deep concern that there were very few ways to provide a defence against that kind of accusation without having access to recent counselling history...where those memories were uncovered and dealt with. I know you folks must have some experience and some observations about that particular concern, and I'd really like to hear those.

Ms Aikins: I'd like to first address your first question. Only 6% to 10% of sexual assaults are reported to police, so the vast majority out there never tells anyone. Of those, the numbers who do have the courage to go to the police, the police are still finding about 30% unfounded. Another 30% are dealt out. The charge is not laid as a sexual assault, it is laid as an assault or something like that. By the time a person - if you're going to lie, for example, about a sexual assault - gets into the system, the threshold is so enormous, I think we're going to weed out anybody who would be crazy enough to want to lie about being sexually assaulted and attempt to go through this system.

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The other thing is that I don't believe this bill is saying that we're assuming she's telling the truth and that's she's a victim. The only thing this bill is going to do hopefully is provide some protection such that her credibility won't be attacked based on myths and biases about women. So there's no assumption that she's telling the truth. Her credibility is still going to be attacked. She'll still have to go through all the same things faced by any other witness in any other crime.

As for your second question, one of the main reasons defence lawyers try to access our records - this is when I hear them argue in court - is about false memory syndrome.

First, just the name itself is misleading, because there is no syndrome. There's no evidence or research whatsoever that suggests this exists. The term itself was put together by a foundation whose sole purpose is to discredit sexual assault survivors. Most of the people within that organization were accused people. We're constantly having to talk about it. I give expert testimony in court sometimes on it.

To the contrary, there is recent research coming out of the University of Ottawa that says there is even medical and genetic evidence that says recovered memories are real. The doctor's name has escaped me right now, but there is recent research to support it. There's no research, as I said, to support the notion of false memory.

If you think about it, as for rape crisis centres and sexual assault centres, with our name alone, who is going to seek our services? These are people who are mostly women who already know they're sexual assault survivors. Almost never in my experience of fifteen years does a woman call a rape crisis centre to say she would like some general counselling. Most women don't even call us.

If you're an incest survivor, sometimes you won't call a rape crisis centre. You think that's not for you because of the name.

But in my fifteen years of experience, women will come to us lots of times with vague memories. They know they've been sexually assaulted. Their conscious memory has buried a lot of the details. With some groups and therapy, they recover those details themselves.

I want to tell you that counsellors' notes are not going to be revealing. Imagine a counsellor saying she suggested to her that her father raped her and then actually writing that down anywhere: ``...she concurred, so then I suggested to her that it probably happened in the bedroom, and she concurred...''.

I believe you can find anybody who will do anything in this world. I'm sure there are counsellors who would be so unethical as to lead on someone's memory. I believe you can find that. I've never personally met anyone or seen a trial where they have uncovered a therapist who did that, but that person isn't going to write those things down, believe me.

The other thing defence lawyers say they are trying to find in our records is when she recounts the rape. It's something in the notes. She says he did it in the car, but my notes say she told me he did in the living room.

Just in my own personal case, women don't come to rape crisis centres to belabour the details of when they were raped. That's not what happens when you come to counselling; you talk about all the other stuff in your life.

But even if you did sit down with me and give me word for word what happened to you in your rape, you're going to have to trust that I'm going to remember every word you said, because I wouldn't be a very sensitive counsellor if I was taking down word for word what you were saying. So, second, the accuracy of my notes cannot be relied upon for accuracy.

Here's the other thing. This is how unfair the law is. If my notes say she said exactly what she says she said, it's not even admissible in court. So it doesn't work the other way: I can't use my notes to bolster her credibility by saying she told me exactly that same thing. It wouldn't be admissible evidence in court. It's only admissible if something I write down is different from what she said has happened. Most people don't realize that, because lawyers are always asking us to give over our records. They say it's going to bolster their credibility, which it won't.

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What is often in our file is a very basic record of their address and phone number. You might not think those are important issues, but that information will be given to the man who raped her. That's extremely scary for sexual assault survivors.

If I make notes about the fact she was feeling guilty and maybe do a victim impact assessment on her, which talks about how women feel after their rape, that's going to be used against her.

It's absolutely a normal part of rape trauma syndrome, which is a researched, credible syndrome that's even in our DSM-III, our psychiatric journal. It's a normal part of that syndrome to feel guilty as a way to try to take back control of what happened to her. If in her head she can convince myself that she was really in control of this, then she won't feel so powerless.

When I write that down, defence lawyers will use that to say that she felt guilty, so she really wanted it. She was really responsible for this. She really gave consent.

Consider the other things in her life. I talked about how marriages and sexuality are impacted. That will all be used against her. In their experiences, judges see notes like that and they turn them all over as relevant. That's everything.

Mrs. Diane Ablonczy: Can you just explain why notes can't be used to bolster credibility, but can be used to impeach credibility?

Ms Aikins: How about I let one of the lawyers explain that?

Basically, my understanding is that hearsay evidence is what somebody says to me has happened. You're not normally allowed to give hearsay evidence. The only time hearsay evidence is allowed is when it contradicts a statement that's said to have been said.

Mrs. Diane Ablonczy: Okay, I understand.

Ms Bazilli: There is another thing about false memory syndrome and the Supreme Court, which kind of has this false theory syndrome. In the Beharriell case, they sort of plucked it out of the air and used it in a judgment in which the woman involved in the case never forgot what happened to her. Consistently throughout her life, she had told people.

Then all of a sudden the Supreme Court judges are referring to false memory syndrome in a case where there was no incidence of recovered memory. If that's not a very clear way of seeing how ideological false memory syndrome is and how it can be used... It's very clear.

Mrs. Diane Ablonczy: You're not saying though that there have never been instances where people have remembered instances that didn't happen?

Ms Bazilli: Where people have remembered instances that didn't happen?

Mrs. Diane Ablonczy: Yes. In other words, they did have this recovered memory, but there was no foundation for it.

Ms Bazilli: That's the implanted memory sort of thing. Again, I agree with Anne Marie that it's possible for those things to exist. We're all going to say that in our experience we don't know about those. It is true for the women I know who have been doing this work.

But I'm not sitting in that room with the unscrupulous therapist who's supposedly implanting the memory.

I do see the impact of a created syndrome created in America by accused persons who had to come up with a reason to justify why they should never be brought to justice.

The Vice-Chair (Ms Paddy Torsney): Thank you.

[Translation]

I invite you to comment.

Ms Côté: False memory syndrome is only a theory at this time. Its existence has yet to be proven. Indeed, it has been the subject of much debate in the scientific community. As long as no definitive conclusions have been drawn in that area, it would not be wise to develop rules of law accommodating a theory that has yet to be proven valid. It is particularly worrisome that the Supreme Court took judicial notice of false memory syndrome, which is not a scientific reality at this time. Its existence was not considered in the issue at trial; it was simply taken for granted that this syndrome exists. The Court assumed that accused should be protected against it, even though no scientific evidence of any kind was before it in that regard.

The fact that the Supreme Court took this action clearly demonstrates that it still entertains biases against women. It is easy for it to say that women are not very stable psychologically and that they can be very easily influenced.

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It should be borne in mind that when the justices that now sit on the Supreme Court went to law school and studied law, they studied the principles of a Mr. Wigmore that are still used today in law schools to teach the law of evidence.

In 1940, Mr. Wigmore wrote that women had many psychological problems and that before allowing a man to be prosecuted for rape, it was important to have women take a psychological test to ensure that there were balanced enough to be witnesses. That is what our justices were taught in school.

In my view, it is those teachings that are now influencing their interpretation of so-called false memory syndrome. They maintain those beliefs and that view because they have not received any training that might help them to change their views and to understand the complex process of slowly rediscovering memories after being abused.

I also want to comment on your question with respect to the presumption of innocence, because I see this as a very important issue. All of us here are very committed to defending the rights of the accused. We all believe that to be very important. Indeed, Action ontarienne contre la violence faite aux femmes is quite concerned about a current societal tendency to deal with problems by putting people in jail, rather than through social programs or education. Our goal is not to put more people in prison or restrict their fundamental rights.

It's also important that you be aware that Bill C-46 in no way diminishes the presumption of innocence or violates the fundamental rights of the accused. All this bill does is introduce special rules to redress a special procedure developed by the Supreme Court especially for sexual assault cases.

If we wanted to apply the ordinary rules that have been used for the past two centuries to determine the credibility of a witness and the truthfulness of his or her testimony, there would be no problem. But just imagine what would happen if all of a sudden defence lawyers assumed that every time a person accused someone else of having stolen something, that person's psychiatric records had to be produced in order to determine whether he or she was paranoid or not.

Just to prove how ridiculous this is, supposing a bank manager accuses an employee of having stolen money from his cash. We don't assume that a bank manager is paranoid, that he has psychological problems and that his administrator told him his memory of the theft committed by his employee was induced. We never do that kind of thing. We don't start poking into all kinds of psychiatric, disciplinary and social records or divorce proceedings to see if he might not have falsely accused his wife of stealing from him. We will never do that kind of thing. We don't make those kinds of assumptions about a bank manager.

But why do we assume that a woman who has been sexually assaulted is for all intents and purposes mentally ill? That is where the discrimination in our system comes into play - because of these assumptions that lend credibility to the theories put forward by defence lawyers or that make them seem plausible. That is what this legislation is trying to say. We discriminate when we make assumptions such as that a witness' psychological records are relevant because that witness may have had a reason to lie about the accused, may have been a bra-burning feminist who hated men or was a paranoid mental case. If we really had any respect for that witness, for that person who is just everyone else, we wouldn't have those assumptions in mind. I don't know whether I really answered your questions or not.

[English]

Mrs. Diane Ablonczy: That was very helpful background. Thank you.

The Vice-Chair (Ms Paddy Torsney): I let you go on for a rather extended period there.

Thank you, colleagues, for understanding, but I think it was useful.

I had a couple of questions. If I were sitting over there I'd be able to ask them, so I think I'm going to take this chance.

First of all, we're not just talking about counselling records or rape crisis records. It was interesting to note, on page 3 of the bill, that they have outlined quite a list. I wonder if you could tell us what the discussion was around in the consultations, or if this is occurring.

There are lists about education records, and I assume that means your high school transcript or something, employment records - boy, that first job will make a difference - personal journals and diaries. Someone could actually force me to surrender a diary from when I was six?

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Ms Aikins: One of the most common things subpoenaed are personal diaries. Imagine, if you kept a diary, what you wrote in that diary, and how it would feel to have that turned over, even to one other person.

My understanding of that list we came up with was that the items, the examples, were all ones we know have already been subpoenaed, or are frequently subpoenaed. When I get a subpoena there's an assumption that there are all kinds of subpoenas out there. Usually, if a defence lawyer takes that kind of a tactic, he subpoenas all kinds of people. Her friends and family members will get subpoenaed - all that list. Her entire support system crumbles at her feet, because as soon as she gets legal advice, that legal adviser will tell those people they cannot talk to her now, because everything they say is ``subpoenable''. She can't come for support, she can't talk to her friends, she can't do all of those things.

Ms Bazilli: It's hard to resist making the comment about the voyeurism that would be involved with defence counsel and the accused going through your diary.

The Vice-Chair (Ms Paddy Torsney): In some ways, if you separate out the arguments and you think about rape crisis records, you're a professional. People are thinking it's like a medical record, some kind of evidence from a doctor when you first present it at an emergency room, and that might be different from a diary, which I think everyone would very quickly recognize as being extremely personal.

Perhaps it's a credit to the work you do that I think they've elevated you - everyone's been talking about it - in terms of rape crisis centre records and things when it's also about a whole bunch of other very personal things.

Ms Aikins: Perhaps we've gotten the most attention because we've fought the subpoenas -

The Vice-Chair (Ms Paddy Torsney): You can.

Ms Aikins: - whereas physicians often don't fight the subpoenas. They just hand over records. Other people in her life as well don't fight the subpoenas and just hand over the records.

Just as a note, if a woman goes to a hospital and has a rape kit done, gets examined, those records can be disclosed and have already been disclosed to the defence. So no one is suggesting that those records should be kept.

Ms Bazilli: One of the important points that came through the consultation process about the list of records is that there's a clear inverse relationship between the number of records on a woman and her socio-economic class status and her increased vulnerability to sexual assault. So women who are the most vulnerable to sexual assault would be women who are disabled, who would have the most medical records, or women who have been involved with the criminal justice system as accused, or other places where women will find themselves to be.

The Vice-Chair (Ms Paddy Torsney): Child welfare.

Ms Bazilli: Yes.

The Vice-Chair (Ms Paddy Torsney): We have the list from NAWL. In terms of people like Sheldon Kennedy, Martin Kruze, or some of the other people we've heard about recently in the newspaper, is it common that men's records would be subpoenaed in the same way? Is that commonly done?

Ms Bazilli: Men who are the victims in sexual assault cases?

The Vice-Chair (Ms Paddy Torsney): Right - or men who have accused others of sexually assaulting them.

Ms Bazilli: Their credibility never seems to be at issue, so I guess there's no reason to get their records. The way it's always presented in the media is that they're automatically believed, and there's a huge outpouring of sympathy, whereas for the woman in Windsor who was allegedly sexually assaulted by the hockey player, the defence counsel held a press conference and released her name, telephone number and address to the media. Then she was sued for wrongful accusation, because she interrupted his contract for...

I don't know why they play hockey in Florida. I've never understood this. But somehow they go to Florida, something to do with hockey contracts or something.

At any rate, he didn't get to do it because he had to stay for the trial. So they sued her.

I don't mean to be glib. I actually don't know the situation of Sheldon Kennedy, whether or not his records would get subpoenaed. I'm just reacting. I could imagine not. There would be no need.

The Vice-Chair (Ms Paddy Torsney) Okay.

In your experience, is legal aid available or not available for all of these individuals?

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Ms Aikins: For none.

Ms Bazilli: In fact, in Ontario there is a policy statement that legal aid is not to be given for these kinds of cases.

The Vice-Chair (Ms Paddy Torsney): Thank you.

Ms Cohen.

Ms Shaughnessy Cohen (Windsor - St. Clair, Lib.): I just want to say, because I have a lot of experience in these cases, that while the media may treat it differently, it is not uncommon - in fact it's quite common - for defence counsel to subpoena the same types of records when there's a male accusation.

It's my experience that there are fewer accusations by men. My guess - and this is just my experience - is that fewer male persons make these complaints than female persons. The numbers are really bad with women, and I think they're extremely bad with young men not wanting to make these complaints as well, but in every trial I've seen involving a male complainant, records, where there were records, have been subpoenaed.

Part of the issue might be that there aren't as many records on young men or on male complainants because they are not necessarily as vulnerable. The circumstances under which they get sexually assaulted are not the same as for women. You don't see the same number of stranger-on-stranger assaults or that kind of thing with young men that you do with young women. This is just based on my experience as a criminal lawyer, not on any analysis of statistics, but that's my guess.

Having said that, it doesn't take a rocket scientist to watch the press and see that Sheldon Kennedy is a hero while a young woman in the same circumstances might not be.

The Vice-Chair (Ms Paddy Torsney): Mr. Telegdi.

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

I think the law is long overdue in terms of making the changes.

I wonder if you'd help me here. In proposed section 278.7, if somebody was dealing with a recovered memory or what have you - I'm not going to call it a false memory - it would seem to me you'd be able to get the records as they might relate to that section; that is, if they say it's necessary to be produced to the accused.

Ms Aikins: Are you thinking of the example that if a woman testified that she didn't remember this until she went into therapy and a therapist helped her remember?

Mr. Andrew Telegdi: Yes.

Ms Aikins: I believe the law would allow that kind of circumstance.

Mr. Andrew Telegdi: I think it's important. I'm relating back to the time I used to work with people before the courts, youths in conflict with the law. Sometimes you get people who come to you in crisis. Really, your role as a person helping is not to determine the veracity of the facts they're giving you but to help them stabilize and cope and go from there.

I can see a lot of the same things happening with a therapist. What therapists are involved in, really, is trying to stabilize the individual before them so they can cope in the community.

Are there unscrupulous therapists? Sure there are. Just read the paper. There is one being sued by former patients, or is in front of the disciplinary board. You don't have to go much beyond that to see that there are unscrupulous therapists.

In cases where some therapist helps you, the motivation on the part of the therapist might be totally different from ever seeing a day in court. It might just be helping that individual cope. Obviously, the courts would hold a different function.

There's one thing I am wondering about and am concerned about. Rape crisis centres don't have a whole lot of money. I'm wondering, in terms of resources that might be dedicated to your legal defence fund, what kind of proportion of your money do you spend on defending cases? Or do you find lawyers will donate their time to assist on that?

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Ms Aikins: We do all of that. We have found lawyers who donate their time. We have spent... Especially in 1992 and 1993, our centre alone spent about $40,000. It's very difficult to budget, because once you're into an argument it can just keep going. Now most rape crisis centres' budgets have been cut, like everyone else's, and there just isn't any leeway for those kinds of budget lines.

That's why we use METRAC to gather our resources. We use each other. For the most part we encourage the crown attorney to oppose the production of records, and we don't retain our own legal counsel, but our interest often isn't going to be directly addressed. For the most part, victims can't afford to hire their own legal counsel, so they also have to depend on a crown attorney acting in their own best interest. That's where it is today; we just can't afford lawyers, and that's why the legislation is extremely important.

Mr. Andrew Telegdi: How's your situation with the Mike Harris government?

Ms Aikins: Well, there currently in Ontario is a report suggesting rape crisis centres should be shut down and shelter use should be minimized to one or two days.

Ms Shaughnessy Cohen: That will keep you quiet, won't it?

Ms Aikins: That will keep us quiet.

We're in a tremendous battle right now just to stay alive. We have to give ourselves credit. One of the reasons these issues have been an issue for the last 20 years is because of the work done by rape crisis centres and grassroots women like myself who aren't lawyers. Many of us came to the work after our own personal experience and became experts doing the work, and we've made them issues.

I thought of something when you were talking about the unscrupulous therapist. I had a woman come to me a couple of weeks ago who told me she was getting therapy from a counsellor in private practice, and she said that the therapist told her she was raped and she was holding the memory in her bladder. I said ``Oh?'' and we went on from there. I don't know what the therapist told her, but can you imagine that woman going to the police, and what reception she would get? There wouldn't be charges laid.

The example you gave about the patient suing the psychiatrist is an American case, again, and those cases again didn't result in criminal charges. The threshold for getting a criminal charge laid is almost insurmountable for most victims. So any of those kinds of cases I believe are going to be weaned out. They're just not going to withstand the test of the police threshold.

Ms Bazilli: Another comment about unscrupulous therapists, and coming back to the list of records, one of the things we learned from the Bishop O'Connor case is the way in which the author of the very records that are in question can use those records against the complainants. We're starting to see more men with privilege in our society charged with sexual assault - psychiatrists and doctors and Catholic bishops and priests and hockey coaches and lawyers and so on - and we believe that is one of the reasons why there is this backlash.

You could have a case where an unscrupulous therapist who is sexually assaulting a patient is the author of the records being sought for use against the woman in the very case. I mean, it's crazy, when you realize how the cycle works. In Bishop O'Connor's case he managed to stay out of court all that time because he was holding out that the records he wrote, that in fact no longer existed - he wasn't going to get a fair trial until what he said about those girls 30 years before could be brought into court to be used against him.

The Vice-Chair (Ms Paddy Torsney): Okay.

I think colleagues will note that we have gone over time, but it's partly because I think we have one of the witnesses from the next session, so we thought it would be okay. I think Madame Gagnon has one question, and then we'll...

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[Translation]

Ms Christiane Gagnon (Québec, BQ): I think a number of questions were answered. I want to apologize for arriving late this morning, but I have just come in from Quebec City. It is not because of a lack of interest that I missed the presentation of your brief. I will certainly read it. We have already expressed the same reservations that you discussed this morning with respect to the production of records. In some cases, their disclosure could put victims in a difficult position.

I would like to know whether when they come to see you, victims know that these records could be produced to the court on demand. Do they know that and are they fully aware of the kind of rapport they can establish? That rapport is not the same if a person knows that what she says could be used in a court of law. Do you make victims aware of that?

[English]

Ms Aikins: Are you speaking specifically of rape crisis centres - whether we inform?

[Translation]

Ms Christiane Gagnon: Yes.

[English]

Ms Aikins: Before the first subpoena came in 1992, we always categorically promised victims that what they said was totally confidential, without qualification, because some ripe crisis centres had been in business for 15 years at that point and had never gotten a subpoena from a defence lawyer.

It wasn't until 1992 that the first subpoena came, interestingly enough right after the rape shield law was struck down. After the subpoenas started to come... Most rape crisis centres will tell women that what they say is confidential, with the qualification that defence lawyers may try to access our records, and that we'll do everything possible to keep those records from going.

Women are given options, and I can't tell you all of the options that we give women to protect their records, because they're a closely guarded secret. If you tell defence lawyers, they'll start to learn those procedures.

We have to use all kinds of procedures to protect women. In the Carosella decision, women were coming to the Windsor centre saying ``You can't give my records. I've heard that they are going to be subpoenaed.'' The centre took the extreme measure of shredding all of their records to protect the women they were helping. Then they got a subpoena, which resulted in the Carosella decision.

I don't believe most of us are shredding records now, but we're using any means necessary to protect them.

Ms Bazilli: We're quite clear that the decrease in reporting to the police at least in Ontario in the last couple of years in a lot of centres has to do with women knowing about this issue and the increase in the reporting to rape crisis centres themselves. For a while there was a lot in the media about this, and as people were informing themselves, as women were informing themselves, they would be aware of what the risks were. I know it affected the therapeutic relationships a lot of women and counsellors and therapists had, because everyone was in flux and concerned and worried about the impact this was going to have and what kinds of records they should be keeping.

I have a friend who works in the Kingston General Hospital. She's a psychologist working in the area of family health. They used to have meetings in the hospital two years ago, and people were starting to write ``alleged'' in front of things their clients would tell them, just in case their records were subpoenaed - I mean, that kind of madness.

I must say on the other hand that for someone who is as cynical as I am about the system in doing this kind of work, I am constantly amazed at getting phone calls from women who have gotten into the criminal justice system. It's as if they can't get out now - I mean, they're in the clutches. They keep saying things like ``but I thought I would get justice''.

I'm so cynical I can't believe they actually believed there would be any justice for them in the system. They didn't know about what might happen to them until they got into the system. That's the other side - the women who don't know.

Ms Aikins: The other thing is, many of the women who come to rape crisis centres initially come for counselling. They'll end up going into a group for survivors, and because of the help they receive they feel that is the next step for them - to report to the police. So their initial counselling and their speaking to a counsellor was not a concern, because they weren't in the criminal justice system; it was long after the fact.

We've even had a defence lawyer suggest that when a woman said that in court... They were having of course to rehash the issue of why she didn't report right away, and she said ``I was in a group at the rape crisis centre, and the women there believed me and supported me and I felt like I had courage enough to speak out.'' He tried to subpoena all the names, addresses, and phone numbers of every woman in the group who heard her story. He tried to subpoena them so they could tell what she said and see whether there was a discrepancy. We fought him on it.

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The Vice-Chair (Ms Paddy Torsney): Thank you very much for your testimony.

The part about the threshold was quite interesting. I know from my own calls and letters in my office, the most concern has come from the people who in fact didn't have charges laid against them or who, where charges were laid, later had them dropped because of the inconsistencies. So although there's a lot of concern, there is a weeding-out process of the people who may actually be less certain about the memories they have. It was interesting that you addressed the issue of the threshold for the people who do get in.

Thank you very much for your testimony. I hope you're feeling better, too.

This meeting is adjourned.

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