[Recorded by Electronic Apparatus]
Monday, March 17, 1997
.1524 
[English]
The Chair (Ms Shaughnessy Cohen (Windsor - St. Clair, Lib.)): This is is Monday, March 17, and in honour of that we have with us Christine Boyle from the Faculty of Law at the University of British Columbia. She's a former professor of mine.
I'm still a member of the bar, Christine. You'll be glad to know that.
We have Professor Marlene MacCrimmon, also from the Faculty of Law at the University of British Columbia; and from the Canadian Association of Sexual Assault Centres, Lee Lakeman.
Welcome to all of you.
I understand, Christine, you have to leave to teach a class, so we'll start with you.
We'll have questions when you all finish.
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Professor Christine Boyle (Faculty of Law, University of British Columbia): I'll just say I am delighted to see you've done so well.
Professor MacCrimmon and I will be making a joint presentation this afternoon. As you know, we're both professors of law at the University of British Columbia and we have been working for some time on issues of equality and fact determination.
I have been particularly interested in the role of equality in criminal law, and in particular the new sexual assault law Parliament passed a few years ago, Bill C-49, and in the legislative response to the extreme intoxication defence in Bill C-72.
Bill C-46, of course, has features in common with both, since Parliament is clearly here trying to take all constitutional factors into account, and responding to decisions of the Supreme Court of Canada that caused public concern.
Professor MacCrimmon has been examining the common-sense generalizations about human behaviour that underlie the various rules of evidence, such as those relating to propensity to commit a crime and and a history of complainants of sexual assault, and determinations of relevance.
The Chair: I have to interrupt you for a moment. We're having some trouble with transmission.
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.1531
The Chair: All right. I'll ask you to begin again, Christine, but to speak fairly slowly, because it's not as clear as it should be for the interpreters. If we have to interrupt, we will. Please go ahead.
Prof. Boyle: I'll proceed from where I was, if that's what you would like.
The Chair: Sure.
Prof. Boyle: Professor MacCrimmon and I would like to focus on three things. First, I would like to try to explain why we think Bill C-46 is a very positive development. Second, we would like to suggest that indeed there is constitutional room for it...[Technical Difficulty - Editor]...than it does.
Finally, Professor MacCrimmon will then discuss the relevance assessment underlying ideas about when records are likely relevant, with specific reference to proposed subsection 278.3(4).
First of all, is Bill C-46 a good thing? I'm sure the committee has heard many arguments on this, but I was trying to think of a way I could explain why I think it's such a positive development, and I want to do that by telling a story.
It's not an exact analogy. It's a situation we are facing now with respect to records and sexual assault cases. However, I think it is a fair analogy. I'd like the committee to imagine that some years ago defence lawyers started to go through the garbage of complainants, chief crown witnesses in sexual assault cases.
It was a long shot, but several hoped that they might just chance on, for example, a letter a complainant had written to her mother saying she had been sexually assaulted and then tore up, or possibly even a discarded diary saying she had made the whole thing up. Others thought that just the sheer unpleasantness of having other people search through your garbage would make some people refuse to continue.
There was a great deal of public concern about this. It was mostly only being done in sexual assault cases, where the witnesses were mostly women and children. One perspective was that toleration of such practices, combined with the fact that women and children were the primary targets for sexual assault, indicated the low status of women and children in our legal culture.
There were concerns about privacy, obviously, and there were concerns about social utility. It is not a good idea for people to be forced to keep their garbage in their houses any more than it is a good idea for people to be forced to keep pain and distress of sexual assault to themselves. There is a fear that no one would go to court if they had to tolerate this kind of behaviour, so there were disputes in court about these garbage expeditions, as they came to be known, by defence counsel.
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Judges on the whole did not pay attention to the concerns about low status, but because of concerns about courtesy and social utility offered to go through the garbage themselves first to see if there was anything there. We have now reached the stage with the Carosella case - and Carosella is the case of the missing garbage - that if the garbage has been taken away then we can't try alleged sexual assaulters at all.
Of course there is not a parallel between what people say to their therapists, doctors, rape crisis counsellors, etc., and garbage, although I think there is a true analogy to the effects of sexual assault. Of course the whole network of support for victims is far more important than garbage collection. Nevertheless, I think this gives some flavour of the phenomenon we have seen develop so rapidly in the 1990s.
I see Bill C-46 as a courageous attempt by Parliament to minimize these expeditions by defence counsel. There's constitutional room for Parliament to do this by the concept of coexisting constitutional rights and by paying attention to the equality rights neglected by the majority in the O'Connor case and the Carosella case. People can have a fair trial even if they're not allowed to look through the garbage of complainants. Let me put it another way: trials will be just as fair as they were before this practice started and just as fair as in non-sexual assault trials.
My second point is about whether there is constitutional room to go further than this bill goes. I think the best measure of what Parliament can do constitutionally can be found in the case called Leipert, the Crime Stoppers case that was released by the Supreme Court of Canada on the same day as Carosella. It is an excellent measure, as it is very recent and it is not a sexual assault case.
Like rape crisis centres the Crime Stoppers program is a controversial program. Some see it as essential protection for witnesses prepared to help the police; others see it as the encouragement of what one might call snitching.
Anyone can call Crime Stoppers and leave an anonymous tip. Mr. Leipert was charged with a number of drug offences following a tip; his lawyer wanted to see the tip. The Crown was concerned that there was no way of telling whether anything in it would reveal the identity of the informer to the accused, so the case went to the Supreme Court of Canada on the question of whether the accused should have access to the tip. Here interest in law enforcement and security of the person were ranged on one side against the interests of the defence on the other. The Supreme Court of Canada reached the unanimous conclusion that the defence can only see the tip when innocence is at stake, when there is a basis on the evidence for concluding that disclosure is necessary to demonstrate the innocence of the accused.
So where an accused person wants to see the tip, unlike records, he can't just come up with a hypothetical scenario; he has to point to a basis in the evidence. He has as well to justify disclosure without seeing the tip itself. Apparently what is being called the catch-22 situation is tolerable in the Crime Stoppers context. There is a high standard to be met, the standard of necessity.
In conclusion, let me compare Bill C-46 with the Crime Stoppers case. While it is a clear improvement on the current law in its attempt to take account of all constitutional rights, it does adopt the test of likely relevance rather than necessity. Indeed, if you look at the factors the judge must consider in deciding to look at the records or disclose them to the defence, it is clear that a judge may order production where it is not necessary to make full answer in defence. But defence of a criminal, or our focus on some of the controls on disclosure in proposed subsection 278.3(4), is the provision on insufficient grounds.
Thank you.
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The Chair: Thank you. Professor MacCrimmon.
Professor Marlene MacCrimmon (Faculty of Law, University of British Columbia): My purpose today is to examine the reasoning processes underlying relevance assessments and to look specifically at the prohibited grounds of reasoning in Bill C-46, proposed subsection 278.3(4).
Both the bill and the case law rest on the assumption that we can tell whether records of sexual assaults to complainants are likely to be relevant. Relevance assessments are based on common sense reasoning, which we all employ in our everyday lives.
Relevance depends on generalizations about the behaviour or people and things and these generalizations depend on the experience and beliefs of the decision-maker. There is no reason to think that lawyers and judges are particularly good at this kind of reasoning. In fact, case files show that lawyers have had difficulty articulating the reasoning underlying their assertions that private records are likely to be relevant.
In contrast, Parliament is particularly well placed to scrutinize common sense reasoning since Parliament hears from a wide spectrum of groups affected by disclosure. Parliament can provide a standard that is clearly based on a consideration of all constitutional rights. That is what it is doing in proposed subsection 278.3(4).
That relevance assessments necessarily depend on generalization about human behaviour, which draw on our experience and understanding about the way the world operates, is well recognized and is not controversial. What is controversial is whether or not certain generalizations are legitimate.
There are likely to be a number of problems with relevance assessment of confidential records. There are two sources of overlapping errors. First, there may be errors in estimating whether there is likely to be anything helpful in the records, and second, there may be errors arising from reliance on discriminatory generalizations.
Errors about whether there is likely to be anything helpful in the record focus on the inferential link between the information and the facts in issue. Does the mere fact that the record might contain this information help us to distinguish between truthful and untruthful or mistaken complainants? We need to ask whether the probability of finding the information the same whether the complainant is truthful or not.
The second error caused us to investigate whether the generalizations underlying relevance assessments have a discriminatory effect. As we will see, the two errors tend to overlap.
Keeping an eye on these two errors, I want to turn to the paragraphs in proposed subsection 278.3(4). I am going to take them in order and consider each one of them, although this will require some repetition of reasoning.
If you look at proposed paragraph 278.3(4)(a), ``that the record exists'', the mere fact that the record exists is not likely to be relevant. The information in and of itself does not help us to distinguish between truthful and untruthful complainants because it is as likely to be present whether the complainant is truthful or lying or mistaken.
In proposed paragraph 278.3(4)(b), ``that the record relates to medical or psychiatric treatment, therapy'' and so on, the same reasoning as applies to paragraph (a) applies here. It simply specifies that the mere fact a record exists, which relates to counselling or medical or other treatment, is not enough in itself to think there is anything helpful to the accused in the record. It is not legitimate to base that determination on a generalization that the credibility of complainants who receive counselling or therapy is more suspect than the credibility of those who do not seek therapy.
In regard to the next ground, proposed paragraph 278.3(4)(c), ``that the record relates to the incident'' and so on, I would like to consider this paragraph along with the next ground, proposed paragraph 278.3(4)(d), ``that the record may disclose a prior inconsistent statement''. Paragraph (d) identifies situations in which the presence of the two errors is particularly likely.
.1545
The assertion that the record may contain an inconsistent statement requires first that the record contain a statement that will, in the course of the proceedings, turn out to be inconsistent. The mere existence of a statement is not likely to be helpful, because the mere fact the record contains a statement does not help us to distinguish between truthful or untruthful or mistaken complaints. The statement must be inconsistent. The supposition that the record contains an inconsistent statement rests on generalizations about the nature of counselling records, some of which include a record of the witness's statements. These were statements of fact. These statements of fact are inconsistent with the issue at trial.
Generalizations must be made about the maker of the record, the nature of the therapeutic relationship and the client. These generalizations are particularly prone to error. The supposition that the record contains an inconsistent statement is drawn from a traditional generalization that complainants of sexual assault are inherently suspect.
The analysis of proposed paragraph 278.3(4)(d) also applies to proposed paragraph 278.3(4)(c), ``that the record relates to the incident'', because the expectation that the record will provide helpful information draws on the same sort of assumptions about complainants of sexual assault and on erroneous beliefs about the process whereby these records are created. Records that relate to the incident are just as likely whether the complainant is truthful or not.
In regard to proposed paragraph 278.3(4)(e), ``that the record may relate to the credibility'' and so on, this ground rests on reasoning similar to that of grounds in (a) and (b). Without these paragraphs, records may be disclosed simply because a complainant has sought counselling.
Proposed paragraph 278.3(4)(e) is also related to paragraphs (c) and (d), because underlying (e) is an implicit allegation that the record contains a statement or other information, and that this information is likely to be helpful.
Turning to proposed paragraph 278.3(4)(f), which states ``that the record may relate to the reliability...merely because the complainant or witness has received...counselling'' and so on, rests on the same reasoning as (a), (b) and (e), because the assertion depends on a generalization that classifies people as suspect based on their having received counselling. The fact of counselling by itself is not likely to provide helpful information.
Proposed paragraph 278.3(4)(g), on allegations of sexual abuse, illustrates the operation of both errors. Information about repeated victimization is not likely to be helpful, except on the basis of unsupported and discriminatory generalizations that persons who had said they had been sexually abused in the past sometimes bring false allegations.
Such a generalization would require, at the very least, a basis in the evidence that the prior allegation was false. They will group together proposed paragraphs 278.3(4)(h), sexual activity, and (j), sexual reputation.
Both Parliament and the courts have recognized that this information does not help us to distinguish between truthful and untruthful complainants. The information is not likely to be relevant, because it as likely to be present whether the complainant is truthful, or lying or mistaken.
Finally, on proposed paragraph 278.3(4)(i), ``a recent complaint'', a recent complaint is not likely to be relevant based on reasoning similar to that for sexual activity and sexual reputation. The presence of a recent complaint does not tell us anything about the truthfulness of an allegation of sexual assault. Women are just as likely, if not more so, to wait to tell a person they trust than to make an allegation at the first reasonable opportunity.
In conclusion, in our view the list of insufficient grounds in Bill C-46 clarifies the standard of likely relevance and identifies information that by itself or in combination is not likely to be relevant.
The Chair: Thank you.
Because I know Professor Boyle has to leave, we'll go to questions for your presentation, and then we'll take Ms Lakeman's submission after that.
Mr. Hanger, do you have any questions for these witnesses?
Mr. Art Hanger (Calgary Northeast, Ref.): Not right at the moment. I apologize for walking in late. Unfortunately, I was detained over in the House.
.1550
The Chair: Mr. DeVillers.
Mr. Paul DeVillers (Simcoe North, Lib.): Last week the committee heard evidence from defence counsel and they basically had a few concerns about the bill. One was that it could offend the charter in that it sets a different standard of relevancy for other cases from what is here in sexual assault cases. Another was that they saw it as an insult to the integrity of the judiciary. By setting these more stringent rules it's sending the message that we don't trust the judiciary. There was also concern about whether complainants in sexual assault cases - this was a question I asked and sought an admission from them on, but they were not willing to concede the point - have their credibility challenged more stringently than in, say, physical assault cases.
I wonder if our witnesses could respond to those three points.
Prof. Boyle: I can make some remarks about those. The issue, first of all, of whether there's a constitutional problem with the bill is what I tried to address by my comparison with the Crime Stoppers analogy.
I think if one looks into a non-sexual assault context, the jurisprudence is fairly clear that once it's acknowledged that there's a sufficient public interest at stake the courts will only use the necessity standard, that there has to be a necessity standard in order to gain access to information such as a tip in Crime Stoppers.
That's the standard I'm using to base my opinion that this bill is constitutional. But it is a complex argument, primarily because the Supreme Court of Canada hasn't looked at equality and taken equality rights into account in framing the provisions dealing with records, which Parliament is clearly trying to do.
Perhaps I could take that point and make a connection to your second question on offensiveness to the judiciary. I don't see this as being offensive. I think Parliament is in a superior institutional position to say, we can look at all the interests at stake here. We can think about common sense generalizations as well as lawyers or judges can, and we think we can give some guidance on reasoning that's more respectful of everybody's constitutional rights here.
So I look at it more as confidence in the ability of Parliament to strike a proper balance here rather than as any kind of negative message to the judiciary. However, I can see why there would be an interest in suggesting that there should be a broad judicial discretion here, because unfortunately, in my view, the history of judicial activity here has been one of not taking equality into account.
As to your third question, is there more scrutiny of the credibility of sexual assault complainants, I think definitely that's a supportable proposition. We are not seeing in the cases these applications being made in other contexts. I think you'd probably be best to talk to people who have been complainants in sexual assault cases and the advocates for those people, such as Lee Lakeman. They have first-hand experience on why the credibility of sexual assault complainants is much more suspect than in another assault context or another context of law.
Mr. Paul DeVillers: If there is more scrutiny of complainants in sexual assault cases, could that be a rationale to answer the first concern on the reason for the different standard, because it's been the experience that those complainants suffer more scrutiny as to their credibility than other complainants?
Prof. Boyle: There is a different standard, and it's a lower standard of relevance in sexual assault cases rather than a higher one. So I'd definitely make the connection. I think it's because there's heightened scrutiny in sexual assault cases that we have a likely relevance test in O'Connor and a necessity test in Leipert.
Mr. Paul DeVillers: Thank you. Those are my questions.
The Chair: Thank you. Ms Torsney.
Ms Paddy Torsney (Burlington, Lib.): Thank you. I just came in on the plane, but there's a question I need to ask you.
We've heard lots of testimony about sexual assault cases that are fairly recent, but clearly there's some concern amongst the community that feels there is such a thing as recovered memory, or false memory, whatever, about those facts. They're very concerned that it'll be impossible to mount a proper defence if you can't get access to the records.
While the bill clearly does not completely eliminate access, do you think it's going to be possible for those people who believe they've been falsely accused to get access to the counselling records?
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Prof. Boyle: Professor MacCrimmon may want to respond to this, because it does involve generalizations about human behaviour. I think there is a difficulty because the Supreme Court in O'Connor out of the blue suddenly recognized the phenomenon of false memory without any evidence about that in a context in which there's a great deal of controversy and debate about whether there's such a thing at all. So the problem for me is what to do in a situation where there are really very strongly opposed views on whether there is this phenomenon out there. I personally think the idea that sexual assault complainants can have false memories planted in them by unscrupulous therapists is an utterly bizarre idea and that defence counsel aren't going to find support for that if they look at the record.
Perhaps I should make it clear that I wouldn't be here arguing in support of this bill if I thought there was the remotest chance that minimizing access to records would result in unfair trials. I think fairness of trials is an absolutely essential value, and I think it would be wrong to lend academic authority to the idea that somehow we can compromise fairness.
I think this bill does allow us to have fair trials and that people, if they want to suggest there's such a phenomenon as false memory, will be in the same position they've always been in. To lead evidence on that and suggest it's a possible thing is a controversial idea in itself.
I don't know if you want to add to that.
Prof. MacCrimmon: No.
Ms Paddy Torsney: So it's your belief that if they believed this was taking place and they led evidence in this way that there would still be some possibility to get access to some kind of therapy records that would show these techniques where supposedly memories are implanted in people's heads would have been used.
Prof. Boyle: The bill does leave the door open to access to records. In my view, it leaves it slightly too far open. But my main point is that the very idea that implanting memories is happening out there is based on an assumption about human behaviour that is not justifiable.
Ms Paddy Torsney: I was trying to be careful about not passing judgment on the whole issue. It's just out there, and I'm hearing about it from constituents.
Thank you.
The Chair: Thank you very much. Ms Gagnon.
[Translation]
Ms Christiane Gagnon (Québec, BQ): I did not quite get the answer. I too had a question on this. Do you think that socio-psychological records and memories brought up during a counselling session should be declared insufficient grounds to gain access? I believe this was the question that was asked. If not, I would like to have an answer anyway.
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[English]
[Technical Difficulty - Editor]
The Chair: I'm sorry, Ms Gagnon, can you try again?
[Translation]
Ms Christiane Gagnon: Do you think that socio-psychological records and memories brought up during a counselling session should be insufficient grounds to obtain access to the record? Maybe you have answered this question but I did not hear your answer. Should these be added to paragraph 278.3(4) as insufficient grounds to gain access to the records?
[English]
Prof. Boyle: If you're asking if that could be included in the insufficient grounds, I think it certainly could be included. If part of the function of that section is to identify relevance reasoning that is based on discriminatory generalizations, then I think that would be an appropriate inclusion.
Is that responsive to your question?
[Translation]
Ms Christiane Gagnon: Yes, it answers my question. It is a recommendation that was made by various women's groups who generally supported the bill but recommended some amendments. In particular, these women would like the access to be more limited and the grounds to be spelled out more clearly in the bill. I wondered if you agree with this attempt to tighten up access and I am happy to see such is the case, since we will have to bring in amendments to the bill.
[English]
Prof. MacCrimmon: As I said, I think you need to ask why you expect that the information is going to be useful.
The mere fact of saying that the record relates to false memory is not sufficient. What does that really mean? It means that perhaps someone has recalled something that happened in the past. That in and of itself is not sufficient to indicate that it's going to be relevant or be helpful, or like it to be relevant, unless you make some assumptions about false memory syndrome. As Professor Boyle has said, there is a lot of debate about whether it exists and the extent to which complainants actually make up stories in response to suggestive questions.
[Translation]
Ms Christiane Gagnon: We know that when witnesses are called to testify, their travel expenses must be paid. Many women's groups who receive statements from women and who are called to give evidence request a legal aid fund. Do you support this idea?
The objection is that legal aid is a provincial matter. The federal government does not feel compelled to provide this aid to witnesses being called. Women's groups also ask for funding to hire lawyers to defend their interests. Do you share this concern of women's groups?
[English]
Prof. Boyle: The need for financial support for third parties drawn into criminal cases is absolutely essential, in my opinion, if that's the focus of your question.
Criminal cases used to be between the crime and the defence. Since we've experienced this phenomenon of searching for records in the hands of third parties, the people who are involved in cases are much broader and many more people have an interest and stake in the outcome, and in a just outcome. If those people don't have access in any practical way to being able to argue in court, then I think there's a real concern about the fairness of the trial overall. So I would like to support in the strongest possible terms the calls for legal aid or financial support for third parties caught up in criminal trials.
.1605
[Translation]
Ms Christiane Gagnon: We heard differing opinions from various groups, according to the interests they represent. The Canadian Council of Criminal Defence Lawyers told us that the number of complaints by victims to the various associations has not decreased and that complainants state they are not deterred.
However, women's groups who deal with physical and sexual abuse against women and who shelter victims say that these women are afraid of how their statements could be used against them. So we hear two different versions of reality. Do you also see these divergent perceptions?
[English]
Prof. Boyle: On the other hand, I do act as a defence lawyer myself, so it's not that feminists and defence lawyers are entirely different people all the time. There are certainly different points of view, but that's precisely why Parliament has a really crucial leadership role in this context. It's Parliament that can listen to the different points view and attempt to set out a just resolution in a bill such as this.
Again, to come back to an earlier question, that's partly why Parliament is a superior decision-maker in this kind of context.
[Translation]
Ms Christiane Gagnon: Do you believe the bill goes in the right direction and will limit widespread access to women's records on frivolous grounds? Women are concerned that access to records will be requested on invalid or frivolous grounds. This bill would restrict access, which you support. The lawyers seem to say that access needs to be very open and not subject to many limits. On which side do you come down? On the women's side or on the side of the Canadian Council of Criminal Defence Lawyers who want wide access to records?
[English]
Prof. Boyle: We don't need access to records in sexual assault cases any more than we need it in other cases. We can have fair trials without searching through the private records of third parties. I very much support the bill. It is going in the right direction.
The proposed section Professor MacCrimmon focused on is particularly important in moving in that direction, because it's very difficult to structure relevance assessments. They're amorphous; they're intuitive. Part of the debate about this whole matter boils down to people's different intuitions about what is fair in a situation.
It's very hard to get beyond one simple feeling that we can have fair trials without going through this incredibly intrusive process, but that's what I think. Fair trials were possible before and they continue to be possible. The last thing we should be promoting in Canada is any risk of convicting an innocent person, but we don't need to search through people's private records in order to support innocence.
The Chair: Thank you, Madam Gagnon.
Mr. Hanger, do you have any questions?
Mr. Art Hanger: No, I don't.
The Chair: Thank you.
Are there any other government questions?
Mr. DeVillers.
Mr. Paul DeVillers: Thank you. I have just one more.
The defence counsels also indicated that one of their concerns with the bill is that the Crown would be receiving information and reviewing records and then wouldn't be turning them over to the defence. It would be an advantage to the Crown.
I asked whether their duty as officers of the court to disclose would come into play, and the opinion was that the bill would override that duty. Do you have an opinion on that?
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Prof. Boyle: Yes. That's in proposed subsection 278.2(2). There can be material in the possession of the Crown that can't be handed over unless there's a waiver from the person to whom the record relates. So I agree that the bill does affect the disclosure obligations of the Crown. It can do that constitutionally.
Of course if the Crown is going to rely on any records in making its case, if it's going to make the records part of its case to meet, then the defence will have to see those records. But I can't imagine why the Crown should have records in the first place. It's not any more the Crown's business than it is the defence's. But it is possible, I agree, for records to be in the hands of the Crown and not be handed over.
Maybe I should say a little bit more about that. The leading case on disclosure by the Crown is Stinchcombe, of course, and the Crown doesn't have to hand over irrelevant material. When one takes the view that there's really little, if anything, that's going to be relevant in records, then it is possible to fit this provision in with the Stinchcombe jurisprudence.
Mr. Paul DeVillers: So you don't feel that provision renders the bill unfair to defence? Is that what you're telling us?
Prof. Boyle: Yes. I don't feel it's unfair, except in the context I've spoken about.
This proposed subsection means the Crown couldn't use those records to make a case against the accused. As long as that's the case, it's not unfair, and I just can't imagine why the Crown would be wanting to base a case on records. The Crown ought to be proving its case in the regular way, by calling witnesses and having the fact-finders assess their credibility in the normal fashion.
Mr. Paul DeVillers: Thank you.
The Chair: Thank you.
Mr. Maloney.
Mr. John Maloney (Erie, Lib.): I have a small question to Professor Boyle, following on my colleague's comments on false memory syndrome.
You indicated that the idea of unscrupulous therapists implanting memories is based on a theory that is not justifiable, but we have a recent case in Martensville, Saskatchewan, where, either advertently or inadvertently, this in fact is alleged to have happened. How do you balance your statements with the Martensville case?
Prof. Boyle: Professor MacCrimmon would like to respond to that.
Prof. MacCrimmon: We wouldn't say this is never possible. The proposed section that sets out the insufficient grounds simply says an assertion that this record may relate to false memory syndrome is not enough. That is, there has to be a basis for the evidence, something else that indicates the record might be relevant to show this false memory syndrome, if it exists.
The insufficient grounds simply set out that you can't assert that a record contains certain kinds of information without something more. It's not sufficient to say, for example...[Technical Difficulty - Editor]. You could argue also that it is insufficient in and of itself to say it might contain something on false memory syndrome.
It doesn't say there is never any case where defence counsel could lay a basis in the evidence to indicate that the record might be likely to be relevant.
Mr. John Maloney: Thank you.
The Chair: Thank you. Ms Torsney.
Ms Paddy Torsney: Just to add a comment on that last point, that issue of Martensville was raised and got me a bit nervous too, but the Martensville case is interesting, because it was the police officers who may have done the implanting.
As well, that case is different from a lot of the other false memory syndrome issues, the difference being that the children were still children. With false memory or recovered memory, people are complaining about something that is alleged to have happened 30 years or more beforehand. So it's a bit different, but it still brings up that spectre of somebody getting falsely convicted, or maybe not.
.1615
The Chair: I want to thank both of you for your contribution.
Christine, we're going to have you back to class on time.
Prof. Boyle: Thank you, Madam Chair.
The Chair: Thank you. It was nice to see you again.
We'll now go to Lee Lakeman.
Lee, you've been here before. Please make your presentation and then we'll have our questions.
Mrs. Lee Lakeman (Representative, Canadian Association of Sexual Assault Centres): I'm going to keep my comments very short because of the technical problems, but also because you've heard great advice from women's groups across the country and the national women's groups in particular, including CALACS.
What I particularly want to make myself available to speak to are the questions of the pretend problem with false memory and the problem of the history of what's been happening to rape crisis centres for the lack of this bill. But I want to start by saying it looks to me as though there's a level of cooperation on this committee to actually do something about an injustice that's happening to women, and I'm very glad of that. I may be being presumptuous, but it looks to me as though members of the Reform Party are cooperating, the Bloc is cooperating, and the Liberals are delivering some genuine leadership here, which we are in desperate need of.
I asked the justice minister for this bill almost three years ago. We were in a terrible situation in which rape-crisis centre women, both volunteers and paid staff, were forced to commit civil disobedience to protect the women who had called them, and these are not women who are normally leaping to the opportunity to be criminals. They felt the need to do that to protect the civil and equality rights of the women who had come forward to them.
I'm very happy to have a chance to speak to this. This bill will begin to do what's necessary. In my mind what's necessary is to protect all the records, all the time of the women who dared to speak out against men who sexually assaulted them. Whether or not there's a criminal conviction, women are entitled to speak their own version of the truth and they are entitled to say so publicly, and that's all that's happening in these cases. It's up to the courts then to decide whether or not there's enough evidence to convict a man. But surely women don't need to be silent, as they were in these cases, and do not need to be denounced for daring to say what's happened to them.
I want to tell you this has been a long struggle for our us. When Kim Campbell was the justice minister and we were dealing with a Conservative government, we fought for the rape shield law, and we see this is a continuation of that fight. There's been a terrible backlash against the sexual assault centres in the form of these fishing expeditions. It's a terrible injustice to the women who've been sexually assaulted and who have dared to name their attackers, but it's also been an attack against the women who've invented and structured rape crisis centres so each woman would not have to take on the unfairness of the system alone.
That's a key point in this. Pretty much everyone agrees that the justice system is biased against women still and that we have to do some pretty strong moves here to open it up. Rape crisis centres are one of the moves we've made as a population. It's a great thing that Canadians have been among the pioneers to invent rape crisis centres and transition houses.
This bill is necessary to protect even the existence of those centres, because if Canada continues to say it's legally acceptable that no woman should be entitled to the privacy and the political liaison of a rape crisis centre and a transition house, then there's no point in our existing. So I'm happy that all of you are recognizing that and are struggling with how to protect women's records.
It's so far noticeable that although we were the main target - and I would say on principle defence lawyers have been going after our records - they've also hit pay dirt. They've gone from going after our records to going after residential school records, employment records, education records, immigration records, and so on. Nothing was left to the private and personal domain of the women involved.
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The position of my organization, the Canadian Association of Sexual Assault Centres, is that no records, no time are needed for a fair trial. We have not achieved getting that in this bill. We are sorry about that, and regret it. However, we've had a very high level of cooperation from feminist lawyers across the country and from the justice department, so we are supporting this bill.
We do not think it goes far enough. We urge you to support the amendments that were brought forward, particularly by LEAF and NAWL, but fundamental ones, the thresholds, have to go up. It has to be necessary. You have to believe it's necessary. You have to tell defence lawyers that only if it's necessary can you have access to those records. I think the bill has to be tightened up that way.
Certainly, some people are arguing that this is already the intention of the bill, but it just doesn't quite technically do it well enough. Please do everything you can to move that threshold up, up, up, because it should be ``no records, no time''. There's simply no need for them.
The other thing I want to speak to is the question of money. It was necessary for us to go to labour unions. In particular, two of the larger labour unions put up the money that was necessary for us to gather up the research just to begin to protect rape crisis centres and the individual records that were at stake. Nowhere in the country is a raped or battered woman able to get legal aid to defend her records. Nowhere in the country can a rape crisis centre or a transition house get legal aid to protect all her interests in those records. That's abominable.
We support NAWL's call for the inclusion of that change to the bill. I don't think it's going to be enough - I think it's highly inadequate - but I think it's a strong statement from Parliament. We might be able to then move for some other things to happen. So I do urge you to support that.
On the matter of false memory, I'd like to make a very bold statement. I'll be around for years, and I have been around for years, so if you can undermine it, go ahead.
I think the situation is that 90% of women never forget anything. That's the first thing. There is no memory question involved. There's no question of interrupted or recovered memory. Most of us never forgot anything. That's the first thing to recall.
The second thing is that false memory syndrome is an invention of a group of people in the United States. It has no scientific validity or political reality in Canada. There is no such thing going on here.
There's no case in Canadian history that I can find in which a man has been falsely accused of sexual assault or violence against women, other than the two or three prominent cases in which the police have intentionally falsely accused someone. They mostly did not use women to set that up; they mostly invented the evidence themselves, particularly with jailhouse testimony.
I flatly say that this is not an issue or a problem. This is a bogus political discussion.
I'll leave it there and ask for your questions
The Chair: Thank you, Lee. You're unequivocal, as usual.
[Translation]
Ms Gagnon.
Ms Christiane Gagnon: You seem to agree with the testimony of the various women's groups who came before us and who said that the bill goes into the right direction but who recommend a strengthening of the criteria or grounds for gaining access to the records of victims. You say the same thing. Could you clarify which parts of the bill should be strengthened? Are you talking about certain types of records held by counsellors or therapists? Some groups have recommended an amendment to strengthen or to expand the list of insufficient grounds for gaining access to records.
[English]
Mrs. Lakeman: I am going to try to speak as simply as possible, because I think it's very important for us to understand each other.
The first thing I would ask for is great care for where we place the word ``necessity''. It should not be possible to get any records unless someone can prove these are a necessity to a fair trial. It's not a matter of possibility or relevance, but necessity.
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The second thing I would like to say is that rape crisis centres and women's groups are not asking for professional exemption. We are not asking that you declare us safe professionals, or professionals of any kind. We are saying that all women's records should be protected.
[Translation]
Ms Christiane Gagnon: Okay. Are you in support of a fund to pay for the costs of witnesses called by the defence or for hiring the resource persons that are required, since part of the costs are related to this? Should this assistance be provided by the federal government? We are told it is a provincial matter and that the federal government does not intend setting up a legal aid fund for this reason. I know that it is a provincial matter but we have to be realistic as to the support provinces would give to various groups and people who could be called to give evidence.
[English]
Mrs. Lakeman: I have three answers to this.
First, that is a federal matter, because it is a matter of women's equality, which makes it a charter matter. So there is a possibility of inventing a federal fund.
Second, I believe NAWL, the National Association of Women and the Law, did propose a mechanism to you by which the judge could order the province to make some legal aid available. I think that's a useful amendment. We are desperately in need of a way to pay for lawyers for rape crisis centres or other record holders to be able to defend our third-party interests. But also, the woman herself is in need of the funds to be able to hire a lawyer to protect her first-party interests.
[Translation]
Ms Christiane Gagnon: I thank you very much for your answers.
[English]
The Chair: Mr. Hanger.
Mr. Art Hanger: Mrs. Lakeman, I need a little clarification of what you consider to be very important to protect here as far as records go, specifically at a rape crisis centre. If a call were to come in and divulge certain information to that centre, are you saying this information should not be accessible to investigators?
Mrs. Lakeman: What are you saying? Do you mean if the rapist calls and says it was him?
Mr. Art Hanger: No, the victim.
Mrs. Lakeman: What would the victim call to say?
Mr. Art Hanger: She would divulge what had happened to her in a rape situation. Are you saying the investigator should not have access to that information?
Mrs. Lakeman: First of all, do you mean the information a woman has told us?
Mr. Art Hanger: Yes. We're talking about records here in terms of what's accessible and what's not, and what should be turned over to the police and what should not. Are you talking about specific testimony as to what may have taken place in an incident?
Mrs. Lakeman: Let me start at the very beginning. I think the defence bar has no need of knowing whether she called a rape crisis centre or not. This is completely unimportant information in terms of whether that man attacked that woman at that time.
Mr. Art Hanger: But I understand from police investigations, especially in a situation in which you have a sexual assault, that the evidence of the first person who comes in contact with that victim becomes very important in the case. Would you not be ignoring some very important evidence that would be, and should be, accessible to the court?
Mrs. Lakeman: That's a pretty dated perspective on what happens in sexual assault trials. That's very rarely an issue at all any more in any trial.
Mr. Art Hanger: Okay.
The Chair: Is that it?
Mr. Art Hanger: That's it.
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The Chair: Any more questions? Okay.
Well, Lee, apparently your lack of equivocation has gotten you off quickly today. We appreciate your contribution, and we thank you very much for taking the time to be with us. I note that you were also here with us in Ottawa a few days ago as well, so it was nice to see you. Thank you very much.
The meeting is adjourned.