House of Commons Hansard #122 of the 35th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was accused.

Topics

Criminal Code
Government Orders

3:05 p.m.

Prince Albert—Churchill River
Saskatchewan

Liberal

Gordon Kirkby Parliamentary Secretary to Minister of Justice and Attorney General of Canada

Mr. Speaker, today in 1997 we are faced with yet another issue which threatens sexual offence victims and indeed every woman's confidence in the criminal justice system. We must take this opportunity to put the progressive reforms of our sexual offence laws back on track. We must take the opportunity to craft a law which articulates that both the complainant and the accused are worthy of the law's protection. Equality before the law and under the law must be more than rhetoric. Doing nothing will only reinforce the status quo which in many cases is inequality.

I should also point out that other jurisdictions are grappling with the same issues. This is not a uniquely Canadian problem. I am aware that the production of a variety of personal records of sexual offence victims has discouraged reporting and participation of victims in virtually all American states, in the United Kingdom, in Australia and in New Zealand. The approaches developed or proposed in other states to address the issue vary. Some have opted for statutory privileges which apply to specific communications and records. Others have opted for an application for the hearing procedure. What all have in common is the recognition that rights to privacy must be accommodated along with the right to full answer and defence, and that where records are at stake the accused must demonstrate the likely relevance of such records.

I believe that our legislative proposals address this complex issue in a fair and comprehensive manner. While we have learned from the experience of other jurisdictions, the proposals that are put forward are very uniquely Canadian.

Bill C-46 amendments will significantly improve the situation for complainants and witnesses of sexual offences. I emphasize that these amendments are indeed a package. There is no quick or simple solution.

In a nutshell, we are proposing a two stage test for the production of records which places the onus on the accused to establish the threshold of likely relevance of the records requested.

In addition, we are providing guidance to the courts in their consideration of the likely relevance by the articulation of several insufficient grounds for production. The legislation emphasizes that the trial judge must consider the charter rights of both the accused and the complainant or witness when determining whether to produce the records.

Strict procedures must be adhered to when seeking personal records. In the event that records are ultimately produced to the accused, appropriate safeguards for privacy are available.

A new form of subpoena for personal records will provide better information to the recipient of the subpoena. Important, we have included a preamble which explains why these reforms are essential and what our intention is as legislators.

While the legislation is comprehensive, I emphasize that it does not prohibit the production of records. It recognizes that both complainants of sexual offences and persons accused of sexual offences have rights guaranteed by the charter and that these rights,

while they may conflict, must be accommodated and reconciled to the greatest extent possible.

I would like to briefly highlight the key features of Bill C-46, worked on and brought forward by the Minister of Justice. I know that the legislative committee will carefully review the bill and I will be available to respond to any questions it may have in addition to questions in this House.

As mentioned, Bill C-46 includes a preamble. Until recently a preamble was considered quite a unique feature in criminal legislation. However, a preamble has proven to be a very effective way of Parliament's intention of reforming the law, in identifying the mischief that the law seeks to address and in guiding the interpretation of the legislation. The preamble in Bill C-46 does all this. It reiterates our concern about sexual violence and its impact and specifically acknowledges that the compelled production of records may deter complainants from reporting to police and/or from seeking treatments.

It also highlights that the rights guaranteed by our charter are guaranteed to all people, be they accused of criminal offences or complainants or witnesses in criminal proceedings.

Bill C-46 will amend the Criminal Code to provide that in sexual offence proceedings all applications by the accused for the production of records of a complainant or witness shall be determined by the trial judge in accordance with the new law and procedure.

A justice presiding at the preliminary inquiry will not have jurisdiction to determine an application for the production of records.

The Criminal Code will also set out a definition of records. The definition is general: any form of records that contain personal information for which there is a reasonable expectation of privacy. In addition, to avoid any disputes about whether a certain type of record is included, several specific records are referred to as examples. The definition is capable of embracing other types of personal records heretofore not sought.

Note that the definition specifically excludes records or notes made by the police in the course of their investigation or made by the crown in preparation of its case. Where personal records are sought in sexual offence proceedings, the accused must make an application to the trial judge with notice to the crown, the person in possession of the records, the record holder, and the complainant. This written application must set out the grounds or reasons relied upon to establish that the record sought is slightly relevant to an issue at trial or to the competence of a witness to testify.

The code will further provide that certain assertions made by the accused, unsupported by other information, will not meet the threshold of likely relevance which is necessary for a judge to review the records. The amendment will also guide the trial judge in determining likely relevance by directing the judge to consider, at the initial stage and again at the second stage, the salutary and deleterious effects of production on the accused's right to make a full answer and defence and on the right to privacy and equality of the complainant.

Several specific factors must be considered, including the probative value of the record, the nature and extent of the reasonable expectation of privacy in the record, whether production is based on a discriminatory belief or bias and society's interest in encouraging the reporting of sexual offences.

It is after this careful consideration that the judge determines whether he or she should review the records to determine whether they should be produced to the accused. The judge will conduct such a review in private. I fully appreciate that even production to the judge for the judge's eyes only has a devastating impact on complainants. That is why we have drafted a fairly high threshold which the accused must meet even before the judge will review the records.

At the second stage the trial judge will conduct the same exercise, i.e., determine if the record is likely relevant to an issue at trial or the competence of a witnesses to testify, and will consider the same factors including the charter rights of both the accused and the complainant.

This determination is based on the judge's own review of the records. It may be clear after such a review that the records are absolutely irrelevant. On the other hand the records or some part of them in the judge's view may likely be relevant. If so, the records will be produced to the accused.

Bill C-46 also comprehensively addresses the procedural aspects and it provides additional safeguards to protect privacy and the equality rights of the complainants.

For example, the application must be in writing and must set out the specific grounds relied on by the accused for production. Also, adequate notice, usually seven days, of the application must be provided to the record holder, crown, complainant, or witnesses and any person to whom the record relates.

A subpoena duces tecum in new form 16.1 must be served on the record holder along with the notice of motion. The hearing to determine whether the record should be produced to the judge for review will be in camera.

The complainant or witness, the record holder or any person to whom the record relates may appear at the application hearing and be heard, but they are not compellable witnesses by the crown or defence.

The judge must conduct any review of the records in private. The judge must provide reasons for the determination. Where the judge orders production to the accused, appropriate conditions on production must be considered. A ban on publication applies to the contents of the application and all other information at the voir dire and the judge's reasons.

Specific amendments are also proposed with respect to the issuance and form of the subpoena previously mentioned. For example, in sexual offence proceedings a subpoena which requests a witness to bring anything to court must be in a new form, form 16.1, which will provide detailed information to the recipients regarding their rights and obligations.

These changes to the issuance and form of the subpoena are an essential part of this package of amendments. Subpoenas are not statutory to be pulled from the shelf and served without any consideration of whether they should in fact be issued. The code already provides a test for determining whether the subpoena should be issued. The test is whether a person is likely to give material evidence. This is an adequate test and it will remain the test.

However a subpoena which directs the recipient to bring documents or material with them, referred to as a subpoena duces tecum, will be in a new form. That form will provide full information to the recipient regarding their obligations. They are required only to bring the material to court.

In sexual offence proceedings where the material requested by the subpoena is a record as defined in the Criminal Code, the recipient of the subpoena will be informed that the determination whether to produce these records must be made by the trial judge at the special hearing.

These amendments are designed to ensure that record holders who receive a subpoena do not assume that because the subpoena has been issued by a court official that they must automatically hand over the records requested. The records may not be relevant. It is up to the trial judge to decide whether anything should be produced. The subpoena is simply the mechanism to ensure the attendance of a person in court. These records cannot speak for themselves and it is the record holder's attendance that is requested by the subpoena. The code still requires however that in order to issue the subpoena the issuer must be satisfied that the person is likely to give material evidence.

Some critics of Bill C-46 contend that this legislation is simply a knee-jerk reaction to the supreme court's decision last December in O'Connor. This is not the case. The trend to seek out personal records emerged several years ago and was brought to the attention of the Minister of Justice in June 1994 when he met with national women's groups.

The minister launched an extensive consultation two years ago to fully explore the extent of the problem, its impact on sexual offence victims and possible solutions. The consultation process has included equality seeking women's groups, victim advocates, service providers, the defence bar, crown attorneys and the provincial attorneys general. The consultation process began before and continued after the supreme court's hearing and decision in O'Connor. So these reforms can hardly be said to be a simple knee-jerk reaction to that decision.

It may be recalled that in response to questions in this House over a year ago, the Minister of Justice indicated that he would legislate in this area and that he would not necessarily wait for a decision in the O'Connor case. In his capacity as the Attorney General of Canada, the minister intervened in the O'Connor case urging the courts to adopt a higher threshold for the production of records to the judge for review and urging other procedural protections. But even if the supreme court had completely adopted the argument of the federal government, in my view the legislation would still have been necessary.

The supreme court dealt with the case before it and the issues that arose in that particular case. In the consultation process it became clear to the Minister of Justice that there were several issues and concerns which the O'Connor decision would not comprehensively address.

While the minister could have pursued legislation before the supreme court rendered its decision in O'Connor, the minister thought it wise to consider the views of the supreme court. Following the release of the decision in O'Connor, the Minister of Justice very carefully analysed the judgments in relation to the legislative options then under consideration. Again the minister consulted with members of the Canadian Bar Association, the Criminal Lawyers Association, the Canadian Council of Criminal Defence Lawyers, women's groups, sexual assault service providers, academics and crown lawyers.

The Minister of Justice considered a wide range of views and advice. I would note that no single point of view has prevailed to the exclusion of any others. The Minister of Justice concluded that the legislation was still essential to restore the confidence of the people of Canada in the criminal justice system, to ensure that the equality guarantees in our charter were reflected in law and in practice, and to bring certainty to the law and procedure governing the production of records in sexual offence proceedings.

We have the mandate as legislators to craft a law which comprehensibly addresses an issue which is having a serious impact on victims, particularly women and children. Moreover we have a duty to do so rather than to rely on the common law to make incremental changes.

Some critics of Bill C-46 argue that the legislation steamrolls over the supreme court's decision in O'Connor. I do not agree. There are many similarities between this bill and the supreme court's decision. There are also significant differences. We have not set out to codify O'Connor but it has been carefully considered along with all of the other factors considered in crafting amendments.

I do not intend to respond to every anticipated criticism of this legislation. The legislative committee process will provide another opportunity for careful consideration of these amendments. However I would like to address one other concern.

Some critics contend that the proposed amendments which require the accused to establish the likely relevance of the records and which set out several assertions which on their own, in other words without any supporting information, are not sufficient to justify the likely relevance of criteria, place the accused in a catch 22 bind. They argue that the accused may not be able to establish how the records are likely relevant because he does not know what information is in the records. I do not accept this supposed catch 22 situation.

First of all, if the law does not impose a threshold of likely relevance on the production of records, then it would be open season on records. They would be simply available for the asking or requesting.

If an accused does in fact have a defence to the charges, for example if he did not have any contact with the complainant, if he believes the complainant consented and if the incident did not happen, then he may pursue that in a defence in the appropriate manner. But the accused should not have carte blanche to peruse records in search of a defence in the form of impeaching the complainant's character or credibility or by intimidating the complainant to such an extent that charges are withdrawn. I would also point out that we are talking about personal records which have been made by third parties, counsellors, teachers, doctors; third parties that have no obligation to provide these records to the accused.

This legislation only deals with the production of records. An accused cannot plunder through irrelevant personal records for titbits of information which can either be exploited or unhelpful, safely ignored. But nothing prevents the accused from calling as a witness a person who has material evidence and asking relevant questions.

As I indicated, the legislation sets out several assertions which the accused cannot rely on to establish the likely relevance of the records. The need for articulating these insufficient assertions was highlighted in the consultation process and goes right to the heart of why these amendments are necessary. The accused will not satisfy the likely relevance threshold for production to the trial judge for review by setting out any unsupported assertions of why the records are or may be relevant. The accused must establish how or why the records are likely relevant to an issue at trial. In some cases this may require the defence to reveal information pertaining to the proposed conduct of the defence.

In addition to the general requirement of likely relevance, the code will clarify that any one or combination of unsupported assertions will not meet the test. For example the accused cannot simply state that the records should be produced because records about the complainant exist, or that they may disclose a prior inconsistent statement, or they may relate to the credibility of the complainant or witness, or may reveal allegations of sexual abuse by others.

The articulation of insufficient grounds or assertions is intended to ensure that speculation will not found an application for records. Fishing expeditions will not be condoned by our law and neither should they be. If the legislation permitted an accused to guess why records may be relevant, then in every case records would be produced and this legislation would have accomplished nothing.

But note that these assertions are not impermissible per se where the accused can offer some support for the assertion. For example if the accused can establish to the satisfaction of the trial judge that the records are likely relevant because they do in fact disclose a prior inconsistent statement, the trial judge may determine that the records should be reviewed.

This legislation responds to a situation which threatens the confidence of the people of Canada, particularly women and children, in our criminal justice system and it responds in a fair and focused way. The legislation applies only in sexual offence proceedings. The legislation does not sacrifice the rights of the accused to benefit the victim, nor is it my intention nor the intention of the minister, nor is it the desire or the intention of victims to do this. Our intention is to ensure that the law protects equally all those who rely upon it.

The essence of the amendments I have described is that applications for personal records of complainants and witnesses in sexual offence proceedings must be carefully scrutinized by the trial judge. I am not suggesting that this will be a simple or speedy task for trial judges but it is a necessary task.

The amendments will not prohibit the production of records. Rather the amendments set out the test to determine whether and to what extent production should be ordered and to guide the courts in applying that test, requiring the courts to consider and balance the competing charter interests at both stages.

An accused person who can establish the need for relevant information in the records in accordance with the law and procedure will not be denied the records. The right to a full answer and defence has not been sacrificed.

The personal commitment of the Minister of Justice is to continue to examine the laws of Canada to ensure that they effectively protect the people of Canada and that they reflect fairness and balance in responding to the needs and concerns of all Canadians. This commitment is shared by all members of the government. Bill C-46 is yet another example of this commitment.

Bill C-46 is indeed another example of the tremendous achievement of the Minister of Justice to put forth real solutions to real problems. In the history of this Parliament it can be said with safety that no more significant amendments have been made to the criminal justice system to make our streets and homes safer than those which have been introduced by this Minister of Justice. In this regard I am very proud to offer my support to this legislation and I encourage others to do the same.

Criminal Code
Government Orders

3:30 p.m.

Bloc

François Langlois Bellechasse, QC

Mr. Speaker, I am pleased to speak on behalf of the official opposition and to address Bill C-46, an act to amend the Criminal Code, particularly as regards the production of records in sexual offence proceedings.

Incidentally, the 35th Parliament will probably go down in history as the one during which the largest number of criminal issues were dealt with. A large number of bills have been on the House agenda, and the Standing Committee on Justice and Legal Affairs has been particularly busy throughout this Parliament, and it seems that it will continue to be until the end. I do not think there was a need to speed up things in every case. In some cases yes, but not all the time.

The hon. member for Prince Albert-Churchill River just made a speech in which he was already referring to Bill C-46 as an achievement for the government. Let us not rush things. We are currently building the foundations of a bill, and I take the hon. member's word to the effect that this bill will be thoroughly reviewed by the Standing Committee on Justice and Legal Affairs. I do hope this exercise will not be conducted hastily, as has been the case with certain bills in recent months.

That having been said, Bill C-46 includes some interesting and valuable provisions, as well as others that may be more questionable or that raise concerns. The witnesses who will appear before the Standing Committee on Justice and Legal Affairs will shed light on these, so that we can deal with them accordingly.

Restricting the disclosure of some files to the defence and, consequently, to the person accused of a criminal offence of a sexual nature that often involves a woman or a child, is a laudable principle.

The hon. member said earlier that this bill does not in any way violate the constitutional rights of the person accused. At first glance, I have doubts about this, because the act includes a preamble with seven whereases before we get to the following: "Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada-".

When the government includes such whereases in a bill, it is because it thinks the legislation does not meet the Oakes test. The restrictions contained in this bill have no justification in a free and democratic society. It seems, at first glance, that they will have to be justified before the courts, since there are probably grounds for a charter challenge.

However, the possibility of a charter challenge is not grounds enough to prevent our legislating. I would say that the likely success of a charter challenge should be a much more serious caution. In my opinion, however, the mere possibility must not preclude the examination of legislation.

In order to better understand Bill C-46, let us draw a parallel with the situation when rape was a criminal offence. The term we use now is "sexual assault".

For a long time in Canada, when rape was defined as a criminal offence and an offence related to the commission of a sexual act, the victim's past was open to all and sundry. At a rape trial, it was not clear whether the accused or the victim in the witness box should be responding to the accusations from the way they were going after the victim's past. Quite simply, in an effort to cast doubt in the minds of the jury, to colour the victim's testimony, the victim's sexual history was scrutinized in an effort to discredit her testimony and to show that she had had numerous or bizarre experiences, according to the customs of the time. Regardless, they hit into the victim, regardless of the ultimate intent. In many cases, the ultimate intent for the defence was to cast doubt in the mind of the jury or of the judge, if the trial was before the judge alone.

The legislator changed the situation in somewhat the same way Bill C-46 is attempting to do. If, during a trial for sexual assault, the victim is to be questioned on her earlier sex life to find out whether, for example, as we used to put it, she was previously of chaste character, the course of the questioning must be presented to the judge in a voir dire.

Before the jury is allowed to hear the evidence on the victim's past, the judge is entitled to know exactly what link the defence

thinks it can establish, not to simply imply that the victim who may have behaved in a certain way had no credibility.

Through Bill C-46, a norm is set. Before an accused can seek production of personal records that may be in the hands of a psychiatrist, a member of the medical establishment, teachers or guidance counsellors, and even the production of personal diaries that may be in the hands of a complainant, he or she will first have to convince the judge that this evidence is likely to be relevant to the trial.

The accused will have to demonstrate to the judge, who will be sitting without a jury and conducting a hearing very similar to a voir dire, that this evidence will convincingly raise a reasonable doubt. The first time around, the accused will be required to back up the grounds for making an application, and the judge will hear this application in camera. The complainant could be heard. I read the bill to mean that the accused could be heard as well.

We have reached here a breaking point, a cut-off point between the rights of the victim and those of the accused, who is entitled to a full defence.

One can wonder how, without having reviewed records such as those being requested, the accused can be expected to prepare an application and make sufficiently detailed allegations to convince a judge of the relevancy of presenting the evidence.

This is an issue that will be very difficult to resolve. Perhaps we will manage to find both a positive and a clever solution that respects the rights of both parties, because, in law as in every other area, matter is neither lost nor created. What you gain on one side you lose on the other. The balance on which the economics of our entire criminal law rests must be maintained.

Regarding the evidence that may be disclosed at trial, for the jury's information or for the presiding judge to review, Bill C-46 seeks to ensure and give us the assurance that they will be relevant and pertain to the issue at trial.

I noted in passing that this is the only case where the accused is required to use this procedure, i.e. make a voir dire type of application for the production of such records. This is specified in clause 278.3(2), which reads, and I quote:

For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.

What about the accused who wishes, at the preliminary hearing stage, to submit to voluntary examination and plead on voluntary examination to have charges against him dropped for total want of evidence, I wonder? Is he precluded from serving subpoenas on those who have possession of these documents? This is a matter for the Standing Committee on Justice and Legal Affairs to look into.

At the preliminary investigation and voluntary examination stage, assuming the person charged agrees to such a voluntary examination, given its explicit conditions, will the person be deprived of certain means of defence? If we seek to deprive that person of certain means of defence, again we are possibly violating the guarantees provided during a full defence.

And what happens if the documents are in the hands of the Crown, a third party, a member of the medical profession, or a psychiatrist? Is the Crown, given the Supreme Court decision in the Stinchcombe case, not required to make these documents available to the defence? This is another issue which the committee will have to look at.

These are measures which may sound appealing, but which have to be taken carefully, in small doses, because they have an impact on the fundamental rule of justice in our legal system, a system that includes the Criminal Code of Canada, the civil code of the Province of Quebec and the municipal codes in the various provinces, which are the cornerstones of our whole legal system. When these cornerstones are altered, our whole legal system is affected.

The civil code reform took place over a number of decades in Quebec, beginning in the fifties. In fact, the process had started long before with the Pérodeau act, in 1915, the Dorion report, in 1931, and then the change regarding the rights of married women in civil matters, in 1954. All this took several decades. The changes were not imposed overnight.

The people of Canada-and the people of Quebec in the case of that province's civil law, know what their legal system is based on. A civil code and a criminal code are basic documents in our society, just as the Holy Scriptures are fundamental to religion.

We should not rewrite the Scriptures every two or three years. It is a genuine document. We do have various translations and, from time to time, exegetes who provide a new interpretation, but we always come back to the same text. The Scriptures are made more meaningful because they have never been rewritten. Apocrypha are dismissed because they do not meet the same authenticity standards as the Scriptures, as we know them.

This little digression was meant to show you that the basic instruments in our legal system should not change too much or too often. Let me loop the loop I started at the beginning of my speech, when I said that we have passed too many pieces of criminal

legislation during this Parliament: the people subject to trial, the solicitors, the lawyers and probably many judges no longer know what the law is any more. Yet, one basic requirement for a society like ours based on the rule of law, under the 1982 Constitutional Act, is that those who are subject to the law of the land must know what the law says, which is why our basic laws like the Criminal Code should not change too often or according to the whims of those in power who, for some reason, maybe because of some pressure from a lobby group, may decide to make changes.

So this bill will have to be examined thoroughly in order to weigh the ins and outs of the proposed reform. At first blush, its intentions appear laudable, there is no doubt. But if we were to ask Canadians, whom the justice system is there to serve, to name one of the important rules of criminal law, they would probably immediately mention the presumption of innocence, without any prodding whatsoever. An accused cannot be presumed guilty; he is even entitled to remain silent, to remain seated during his trial and say nothing.

Furthermore, the Supreme Court and even the Privy Council have had to make this point again on several occasions, overturning juries' verdicts when crown prosecutors went too far with their arguments from time to time, or when judges overstepped the bounds, because it is not even permitted to comment on an accused's silence, if he decides not to present a defence. When the crown has finished presenting its evidence, and the accused does not rise, the next step is arguments, and neither the crown prosecutor nor the judge may comment on the accused's silence; he is entitled to remain silent. This is one of the key principles of our criminal justice system and, for once I agree with many colleagues in this House, a system which compares very favourably with criminal law systems in other countries.

We now realize that, with Bill C-46, we are going to oblige the accused to present evidence, obviously not before a jury, just before a judge, showing that certain elements of evidence are relevant to his defence in order to be able to produce them later on.

In certain cases, the accused will be forced to speak and to reveal part of his strategy because, in a trial, there is the element of strategy. This may lead the crown to say: "If that is the defence they are preparing, I will adjust my evidence accordingly".

The accused's right to silence is, of course, affected by this bill. Although not in itself grounds to oppose this bill, this is a reason to ask whether we are affecting basic rights which have taken hundreds of years to become established in our British system of criminal law.

We must not, in the space of a single legislative session, demolish piece by piece, without truly really realizing what we are taking away, what we are changing, values which have been unanimously acknowledged by our forefathers and are the fundamental guarantee of our democratic freedoms, deemed so important that they were entrenched in the 1982 Constitution, particularly, but not exclusively, in sections 7 through 15.

The official opposition will, with an open mind, give its agreement in principle to the adoption of this bill on second reading.

In doing so, however, we wish to make it known that we will be keeping a watchful eye in committee in order to ensure that, in its guidelines and in its practical application, our system of criminal law, the envy of a number of nations, remains a system that continues to be the envy of many countries.

Criminal Code
Government Orders

3:50 p.m.

Reform

Diane Ablonczy Calgary North, AB

Mr. Speaker, I would like to speak for a few minutes to Bill C-46. Bill C-46 will amend the Criminal Code. It deals with the specific issue of the production of records in sexual offence proceedings.

The purpose of the bill is to ensure that counsel for the accused and the accused would only be permitted access to a complainant's or a witness' personal records under very specific and very restricted conditions, thereby better protecting the privacy rights of complainants and witnesses.

As my colleague from the Bloc has just pointed out, there has been a longstanding tradition in the British legal system that accused persons should have the opportunity to make a full and fair defence to any charges that are brought against them. This element of our legal system is something that has been abused, sometimes both ways. Sometimes, especially in sexual offence proceedings, there have been some real accusations and concerns about accused persons and their counsel poking into the private affairs, papers, writings, diaries and journals of sexual assault victims to see whether something can be dredged up whereby the accused or their counsel might impugn the credibility of the alleged victim. That has been seen as a real abuse. On the other hand, there have certainly been instances where complaints that sexual offences have taken place have been brought fallaciously, frivolously, with malice, for reasons of revenge, personal advantage or, in some instances, due to something called false memory syndrome.

We have two very competing interests. We have genuine victims of sexual offences needing to be protected from being further invaded, further outraged and further violated by having their personal lives, records, writings and intimate thoughts dredged up and chewed over in public simply for the purpose of putting forward some defence on the part of an accused person who has genuinely been an offender and who has violated the rights and the safety of that individual. On the other hand, there are some persons in our society who have been accused of sexual offences wrongful-

ly and maliciously, without any justification, who genuinely must be entitled to all the resources available to clear his or her name.

When we deal with those competing interests and when legislation seeks to make some adjustments in the balance between those competing interests, the question we must ask as legislators is whether the balance that is being changed or rebalanced in the legislation is appropriate and fair, and does it genuinely address in an appropriate way these two competing interests.

Government members opposite will I am sure be pleased to know that I and my colleagues do approve of the balance that has been reached in Bill C-46 to some extent. We make that approval contingent on further examination of these provisions. We feel that there will be a further and more detailed examination of this legislation in committee, that there will be witnesses and those interested particularly and expert in these areas who will be bringing forth further considerations on this. I think at that point all members of the House can make a better judgment as to the adequacy of this legislation.

I think there has been some abuse of the protections and the rights of accused people to further go on fishing expeditions and dredging the personal lives of genuine victims. That has been a real concern. On balance we feel that this is legitimately an issue that should be addressed by government and at this point I think the government is moving in the right direction.

However, there will be other considerations coming forward as the bill is debated, as the bill is examined in committee and as we look a bit more closely at some of the ramifications of this bill.

The bill will change the situation with respect to the production of a complainant's private records. I should say that these records include medical records, therapeutic records, where a complainant has undergone therapy in the past. This is particularly relevant to a complainant who may have come out of therapy claiming some renewed or suddenly discovered memory of abuse or assault, which of course has led to some real concerns in what is now called false memory syndrome. Those records of therapy could be extremely pertinent.

They also would refer to counselling records, to psychiatric records, to children's aid society records, to school records, employment records and, as I have said, personal diaries and journals.

In order for any of these records to be produced the accused will now have to satisfy a two stage process in order to obtain the production of these records. First, the accused will have to satisfy a judge in an in camera session, a private session in the judge's chambers. The judge will have to be satisfied that the records being sought will likely be relevant to an issue at the trial or to the competence of a witness to testify. Therefore all things considered, a judge must say yes, the accused needs, is entitled to and it is appropriate that the accused has access to this information in order to make a full and fair defence.

In this hearing, although both parties will have an opportunity to oppose or promote the application, this will be done in a private hearing so that the privacy and the personal life of complainants will be protected.

Again, it is important to point out that not all complainants are true victims. We do have to be careful that just because a man, woman or child comes forward complaining of having been sexually offended or assaulted that does not necessarily mean, and that is the whole reason we have trials and the court system, that the person is a victim. In fact, they may be making a victim of the person they are accusing and so we need to be very careful about that.

There is opportunity for that kind of application for records relating to an alleged victim to be held in privacy. There is a protection there in the act because section 278 requires a judge to provide reasons for any order that he or she might make coming out of that hearing.

This provides some degree of accountability for the judge's action because that would allow further feedback by the victim or other third parties and, of course, an appeal of the decision of the judge, although this drags out the proceedings even more. I must say that a lot of Canadians are pretty frustrated that court proceedings are so lengthy. That is the first stage of the process.

If the judge decides that the accused has met this requirement, in other words if the accused shows that this information is relevant to a defence of the accused person, the judge will order the production of those records.

The judge will review those records. The judge will then determine whether, in his or her view, the documents are appropriate and are necessary for the accused to make a full answer in defence of the complaints against him or her.

The judge's discretion must balance the witness' or complainant's right to privacy against the accused person's right to make a full defence.

One of the concerns I suspect will come forward in committee and from witnesses is a certain and increasing lack of confidence, it is fair to say, by the public in the discretion of the judiciary.

Some of my colleagues who intend to speak to this bill will bring out some of the incredible decisions, the incredibly unreasonable and unjust, at least to a lay person observing, decisions by judges, by the bench, when it comes to handling this whole difficult matter of victims, victim rights and the rights of accused persons.

There will be concern about the kind of discretion that is placed with judges. Yet that has been the way our judicial system has worked for centuries in the British common law system. If we feel that the discretion of judges is not being exercised appropriately,

perhaps there are better ways to address that than simply to remove that discretion from the bench.

In any event, it will be for the judge to review the material to make a finding, a determination of whether that material is relevant to the defence and then say whether it should be brought forward and used in the trial of the case.

To sum it up, any opposition to this legislation will come because of its potential effect on the right of the accused to a full and fair defence. Those are legitimate concerns. They have to be taken very carefully.

The way this is intended to work, if judges are open, if their discretion is fair and reasonable, the balance should be kept quite well. Judges must actually give reasons for their decision in these matters, even though the hearings are in private, and provide some measure of openness and public scrutiny of this discretion.

There is a very important principle of our legal system that justice must not only be done but it must be seen to be done. Therefore the less we have these decisions made behind closed doors and in a hidden and unchallengeable way, the better. We would want to make sure that does not happen.

We want to ensure that we protect the right and privacy of complainants, many of whom have already suffered incredible violation and abrogation of their rights to safety and to privacy.

Many victims of sexual assault, male and female, simply refuse to come forward because the last thing they need is to suffer more personal trauma, more publicity, more invasion of their emotional well-being. They choose simply to try to put the pieces back together in private rather than come forward. We know that this is a real problem but we also must ensure that justice is not compromised.

The Reform Party supports a judicial system which places the punishment of crime, the protection of law-abiding citizens and their property ahead of all other objectives. We promote a greater emphasis on assisting true victims of crime.

It is important we recognize that not everyone who makes an accusation is really a victim, but we also need to recognize that a great number of people have suffered incredible amounts of harm, hurt, terror, pain and suffering and an invasion of their personal safety in these sorts of cases. Extra protection for these persons who have been genuinely sexually offended or who may have to testify in these cases is something that we need to move toward if we can do that in a fair and balanced way.

The accused, through their counsel, will have to satisfy some additional process in order to obtain private and sensitive information relating to a victim or a witness. If on further study and examination it is found that there are sufficient checks and balances to achieve that objective, then Reform would be supporting this in the final reading.

It is fair to say that we do need to take seriously as legislators, as the government of this country, the need to genuinely protect the vulnerable and the people who do not feel safe in our society. We have just had a case brought forward of young men in sports who have been victims of sexual assault and sexual activity which was very destructive to them. Yet there seemed to be very little redress, very little protection, for these individuals.

As we know, there have been some very difficult cases as legislators, as members of Parliament and as elected representatives. I am sure most of us, as have I, have had citizens in their offices frightened and terrified of a potential threat of harm to themselves or to members of their family and simply saying where is the protection, what can be done to make us feel safe. Even in the court system there are victims who do not feel safe.

We have an application being made by Clifford Olson under section 745. He will have the right to examine and to gain evidence from the families of his victims. These are the kinds of very serious measures that lead legislators to try to rebalance the situation as much as possible. Citizens who have already been victims of crime and of personal assault should not have to look forward to every nook and cranny of their personal and private lives being pawed over and dredged up by people who have already caused them untold pain and untold grief and untold terror. That I think is the evil that is sought to be addressed in this legislation.

We want to make sure it does not create a greater evil where everyone accused is simply assumed to be guilty and does not have the tools or the fair legal system to defend themselves. It is really heartbreaking for me and for others I am sure to have to deal with families that say they knew that their loved one was in danger. "I am afraid to go out on the street. I have to hide my phone number and keep changing it because I know that this individual who has already sexually offended against me is out there, but I do not want to have to go through the court system".

These are difficult issues. I tried to get statistics about how many citizens this involves in my own city of Calgary. There were over 700 sexual offences, sex related assaults, in the city of Calgary last year alone. Unfortunately the statistics range from unwanted touching, what we consider a less serious assault, although not something to take lightly, to serious sexual assaults against women, children and men.

As one of my colleagues said earlier when talking on another bill, the reason we have government, the reason we ban together as a society and put up with the invasion of organized government in our lives and certainly in our pocketbooks is in return we expect to have our lives and property protected and, to some extent, some measures of corporate well-being centrally administered.

In many instances our justice system has not preserved the lives and well-being of our citizens. These are serious matters. There is a serious lapse in the responsibility of government which we need to address with reasonable measures, well balanced measures and fair measures, measures that continue to assure the citizens of this country that they will have justice, that there will be fairness when they are accused and also that there will be fairness and protection when they have been violated and harmed by lawless people.

At this point the Reform members believe that, on balance, this is a good piece of legislation. It is something which we would consider supporting. We will be very interested to hear the debates in the House because we want to make a good decision on this bill. We will very closely follow it in committee and listen to the witnesses. We hope that at the end of the day this will achieve the goal of better protection for genuine victims of sexual offences while at the same time not crossing the line of being unfair or unjust to persons who are wrongfully and inappropriately accused.

It is a tough balance to achieve. However, as legislators that is what we are called on to do, to balance competing interests in a fair, intelligent and workable manner. It is not easy, but that is what we get the big bucks for. I hope that we do a good job for all the citizens of our country.

Criminal Code
Government Orders

4:10 p.m.

Liberal

John Bryden Hamilton—Wentworth, ON

Mr. Speaker, I do not normally track justice legislation or comment on justice bills. However, I am going to comment on Bill C-46 for a very specific reason which I hope members opposite will listen to.

About five weeks ago a man and his wife came to my constituency office. He is in his seventies and she would be about the same age. They are well known in the town that I live in as upstanding people, members of the church and so on and so forth. They told an incredible story. Apparently their daughter, who was then in her fifties, had been subject for very many years to depression every now and then. In fact, it probably cost her her marriage. About three years ago she started going to a therapist for her depression.

It turns out that the therapist discovered that she had been seriously sexually abused as a child, complete with satanic rights and the whole thing. She had no recollection of these incidents until she went to the therapist. They involved the father. The elderly couple sat in my office and the wife was in tears because this woman, in her fifties, had taken the results of her memories, which were vivid, to the police. She could tell chapter and book how her father abused her.

The reason why the old couple were upset and why they came to my office is that they heard that Bill C-46 had been introduced into the House of Commons. They asked me to look at it carefully so I have.

I first looked at this phenomenon that was mentioned by my colleague from Calgary North called repressed memory syndrome. This is apparently what was the case with respect to this daughter. She went to a therapist. According to psychological theory, when a child has a very traumatic experience he or she can suppress that experience and bury it in memory. The therapist, many years later during the therapeutic sessions and in probing the past of the client, suddenly encounters these memories and brings them to the surface. That is called repressed memory syndrome.

In the past 10 years or so approximately 800 people have been convicted in North America on the basis of repressed memories that have been brought back to the surface by therapists. They have been convicted of very serious crimes usually involving sexual abuse. They have gone to jail solely on the evidence of these people who had no recollection of these crimes against them as children but suddenly found vivid memories when they were treated by therapists.

In the past few years the medical authorities in Canada and the United States have come to recognize that there seems to be a very strong probability that many of these repressed memories are not memories at all but are induced by the therapist. Indeed, just a year ago the Canadian Psychiatric Association came out with a position paper in which it stated that developmental psychology casts doubt on the reliability of recovered memories from early childhood. Reports of recovered memories of sexual abuse may be true but great caution should be exercised before accepting them in the absence of solid corroboration.

Naturally I began to do some research. I had another case just in the past year and a half about a B.C. lawyer in Victoria. I will not give his name because I am sure he suffered quite enough. He is a man in his late forties. Suddenly out of the blue he was accused by a cousin of abusing her when she was only eight years old. It was a case of her being subject to bulimia and having emotional problems. As the information came out in the courts, she went to a therapist and found that she remembered all kinds of things involving sexual abuse, satanic rituals and all those kinds of things.

This man was convicted in B.C. court of doing this. The court of appeal, however, just a year ago overturned the conviction on the grounds that the original trial judge chose to accept some of the information that she reported from the therapist and not other information. In other words, her memories were so elaborate that the original trial judge felt that he could only accept some of them.

The court of appeal said that the original judge could not be selective like that, overturned the case and called for a new trial.

Added to that, in this particular case there were other witnesses who came forward who also recalled this lawyer having engaged in sexual abuse, satanic rituals, burying a cat in the garden and those kinds of things. They had also undergone this therapy.

When the authorities actually tried to establish the facts of the case, to actually dig in the garden where the ritually executed cats had been buried, they found nothing. The court of appeal found that the case against this man relied solely on the very elaborate and exaggerated testimony of this woman based on memories that had been brought forward by her visits to the therapist.

I come to Bill C-46. I hope that all my colleagues will listen very carefully to what I have to say. If Bill C-46 goes forward as currently written, the two examples I cite, the couple who came to see me just in the last five weeks and this lawyer in B.C. would not have the opportunity to bring forward evidence of the therapy that the accuser underwent.

Section 278.3(4) says that if the accused wants records he must apply to the trial judge. Even before the trial judge can demand those records, according to the legislation the trial judge is not allowed to consider that the record being asked for by the accused relates to the medical or psychiatric treatment, therapy or counselling that the complainant has received or is receiving.

This legislation makes it impossible for the accused to get the relevant records or even discover the relevant records in a case of false memory syndrome.

The member for Calgary North put a lot of reliance in her remarks on the discretion of judges. I was very interested in her remarks. However, the problem is that the legislation does not give judges discretion. The legislation shuts the judge out of actually requesting the records that are relevant to the accused.

Let me just elaborate on that point a bit. I am going to repeat just a little bit. One must understand that the accused when he seeks the records has to apply to the judge, but the judge cannot agree to order the records on certain grounds. Listen to this. It is not grounds for the judge to ask for the record for the simple reason that the record exists. Just as an example, if one is accused as a result of false memory syndrome and one knows that the records exist, that is not good enough reason to ask for the records.

Second, it is not grounds to ask the judge to demand the records if the records relate to medical therapy. We have already dealt with that. If the complainant has undergone that therapy the accused is not allowed to obtain those records in defence.

Furthermore if the record relates to the reliability of the testimony of the complainant, that is also not reason to ask for the records. In other words, the judge cannot use that as grounds to demand the records.

Where someone is falsely accused by someone who has suffered from depression, the very essence of the defence is to question the reliability. But if the records cannot be obtained that demonstrate the person's reliability or lack of reliability, one cannot defend adequately. It is a major problem.

The judge is not allowed to seek records on the request of the accused if the record may reveal allegations of sexual abuse of the complainant by a person other than the accused. It is certainly not beyond the realm of possibility that a person who is basically sick has probably made accusations of sexual abuse against many people.

If there was a situation where as a result of therapy or counselling that a person disclosed they had been abused, not just by the father but by the cousin, the uncle and the brother, it would be very relevant information to appear at trial.

I stress that the accused is not allowed to know about this information because the judge cannot tell whether the information exists or does not exist. The judge cannot seek the information, cannot seek the records. We have to be very concerned about that clause in the legislation. We need to be very worried about it.

The problem is this. The situation with false memory syndrome is that the testimony of recovered memory through therapy has become widely discredited in the United States. All kinds of people who have been convicted on these charges are now being released from prison. It is recognized that it is not a very reliable source of testimony. Moreover, some states in the United States will not allow a prosecution based on recovered memories. However, the situation we will have in Canada in this legislation is that we are going in the opposite direction.

If this legislation goes through as presently drafted we will make it so easy, so possible, so absolute for people to make these charges based on what we think is false memory. In many instances, it is false memory. In fact, there was a study done in the United States which found that the majority of the instances were fabricated recollections.

This legislation, if it goes through as it stands, will send innocent people to jail, including my elderly couple. The reason they came before me was because he is afraid of being charged after this bill passes. He will not be able to defend himself.

I laud the intention of this legislation. I appreciate that we must do whatever we can do to protect the rights of the victim and to not require people to appear before the courts to disclose intimate details of their lives for frivolous or trivial reasons.

When it is a question of the accused being free or going to jail, when it becomes a question of the accused defending himself with all the freedom and power that a democratic society invests in the presumption of innocence, then it is not trivial at all to make sure that the records of the complainants are at least available to the judge.

This legislation could be fixed up enormously if this clause which puts all these barriers to what the judge can ask for was eliminated and it was simply a case where the accused could go to the judge and ask for records and the judge could vet those records. We must not attach strings to them.

I would like to comment on one other thing with respect to this legislation. It shows that it may be conceived, however well intended, in a way that does not truly reflect the high values we, as legislators, must hold toward the principles of the presumption of innocence and the right of the accused to a fair trial.

In clause 278.5(2) it says that in determining whether the judge should produce a record or not as a result of the request of the accused, the judge has to ask himself how deeply he will invade the privacy of the complainant and that kind of thing.

Here are three unusual things. According to the legislation, the judge has to also consider whether the production of the record would potentially prejudice the personal dignity and the right of privacy of any person to whom the record relates.

In other words, we have on one hand the accused fighting for his or her freedom and we have the judge having to consider, not the rights of the accused or the presumption of innocence or whether it is a fair trial or not, but the right to privacy or the dignity of the person making the accusation is going to be compromised in any way.

I submit that there is something wrong there because the fundamental job of the courts is the determination of guilt or innocence, not to worry about the sensibilities of any witness, for that matter, much less the person who is laying the complaint.

In this same clause the judge is also told he has to ask himself when he considers producing the records or not, whether society's interests in encouraging the reporting of sexual offences will be compromised. He is also told he has to consider society's interest in encouraging the obtaining of a treatment by complainants of sexual offences. In other words, he is asked to consider that which is not relevant to the trial at hand, that which is not relevant to the innocence or guilt of the person who is accused.

I do support in principle, but only in the broadest general sense, the idea that we must do what we can to protect the reputations of those people who find themselves the victims of sexual abuse. However, as legislators we must never forget that our primary obligation is to protect the fundamental rights, the fundamental liberties and the fundamental freedoms of all Canadians, especially those who are accused and before the courts.

Business Of The House
Government Orders

February 4th, 1997 / 4:30 p.m.

Fundy Royal
New Brunswick

Liberal

Paul Zed Parliamentary Secretary to Leader of the Government in the House of Commons

Mr. Speaker, on a point of order, there have been discussions among the parties and I believe that if you seek it, you will find there is unanimous consent for the following two motions. I move:

That the following standing committees be designated for the purposes of the statutes cited:

  1. Standing Committee on Justice and Legal Affairs: section 36 of an act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof (Chapter 43, Statutes of Canada, 1991);

  2. Standing Committee on Industry: section 14 of the Patent Act Amendment Act 1992 (Chapter 2, Statutes of Canada, 1993).

Business Of The House
Government Orders

4:30 p.m.

The Deputy Speaker

Does the hon. parliamentary secretary have unanimous consent to move the motion?

Business Of The House
Government Orders

4:30 p.m.

Some hon. members

Agreed.

(Motion agreed to.)

Business Of The House
Government Orders

4:30 p.m.

Fundy Royal
New Brunswick

Liberal

Paul Zed Parliamentary Secretary to Leader of the Government in the House of Commons

Mr. Speaker, if the House would be so obliged, I have a second motion. I move:

That the order of the House adopted December 12, 1996 concerning travel by the Standing Committee on Human Rights and the Status of Disabled Persons be amended by replacing the word "February" with the word "March".

Business Of The House
Government Orders

4:30 p.m.

The Deputy Speaker

Does the hon. parliamentary secretary have unanimous consent to move the motion?

Business Of The House
Government Orders

4:30 p.m.

Some hon. members

Agreed.

(Motion agreed to.)

The House resumed consideration of the motion that Bill C-46, an act to amend the Criminal Code (production of records in sexual offence proceedings) be read the second time and referred to a committee.

Criminal Code
Government Orders

4:30 p.m.

Reform

Diane Ablonczy Calgary North, AB

Mr. Speaker, I would like to express my appreciation to my colleague for Hamilton-Wentworth for his intervention in this debate.

I did ask about the import of section 278(3) and was told that the intent of that section was to remove the notion of fishing trips by the accused or their counsel. Relevant records could still be brought forward but just any old thing could not be brought up and the judge had to go through it.

I am very interested in the member's construction of this section which says that in fact this would bar the judge from bringing forward these records. I would agree with him if that is the import of the section that it would cause some real concern for people who are accused under this so-called repressed or false memory syndrome.

I think too that some of the construction which could be put on the mandate given to the court of certain public policy considerations could interfere with the pure notion of justice.

The member has made some extremely troubling and serious points in the debate about section 278.3(4). I would like to ask the member if he studied this, what evidence or authority can he bring to bear to suggest that there really is no discretion at all on the part of the court, that it would simply close the door on these records being brought forward? I have been given to understand that although it prevents fishing expeditions, it did not absolutely close the door. Perhaps the member could discuss a bit more why he has taken that position.

Criminal Code
Government Orders

4:35 p.m.

Liberal

John Bryden Hamilton—Wentworth, ON

Mr. Speaker, when I approached the legislation, as I do in all instances, I looked very carefully at the text. I like to think that as a result of my background I am fairly practised at analysing language and words. I will read into the record the relevant words that put restrictions on what the judge can call forward and the member can judge for herself.

Subsection 4 says: "Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial". Then it goes from (a), (b), to (c) that it is not sufficient "that the record relates to the incident that is the subject matter", or "that the record may relate to the reliability of the testimony of the complainant or witness". To my mind the text of the legislation is very, very clear.

Sometimes we perhaps get our attention diverted, and I do not offer this as a criticism; I should be so lucky that I should be right 5 per cent of the time myself. Sometimes we are a little deceived inadvertently by the words and descriptions and intent of legislation which we as members see as part of the publications for many departments. As members we very rarely have the opportunity to study legislation at length. Indeed, I point out to the member that I would never have noticed this legislation had it not been for this elderly couple who came full of fear about it.

Criminal Code
Government Orders

4:35 p.m.

Reform

Ian McClelland Edmonton Southwest, AB

Mr. Speaker, I too would like to thank the hon. member for Hamilton-Wentworth for his interventions, which I know from experience are interventions that will add to the value of the legislation we are addressing. I hope the member opposite will raise this as the bill progresses to committee. If there is substance to the concern particularly as it surrounds false memory syndrome, it is something we had better inoculate this bill against.

I would bring to the attention of members that what Bill C-46 does, at least in the interpretation of what I bring to the debate, is it clarifies the circumstances when such records may be subpoenaed. It was not considered advisable that the term "likely to have relevance" be left to a case by case judicial interpretation. Specifically, the records cannot be subpoenaed at a preliminary hearing, only at trial. This is a very important distinction. They cannot be brought forward at a preliminary hearing, only at trial. At that time there is a two-step process, first to establish the relevance of the documents and second, an examination of the documents by a judge in private.

Does the member think that the legislation would be improved if part of the legislation was that the judge who reviews the evidence may not be the trial judge?

Criminal Code
Government Orders

4:35 p.m.

Liberal

John Bryden Hamilton—Wentworth, ON

Mr. Speaker, I do not know how to answer that. I see what the member is getting at.

One problem of the trial judge being the sole arbitrator is that the judge himself can make a mistake. The problem is these records are being examined in camera. I would prefer if it was not just the trial judge, that there was another person in authority who could examine the records at the same time.

My difficulty is that the accused is fighting for his freedom. I even think it is appropriate for the accused to go on a fishing expedition if that is a way of trying to find evidence he believes exists that will either prove his innocence or discredit the complainant. On the other hand I am sensitive to the problem of the victims as well.

Where I think the line should be drawn is that the accused should have the option in this legislation of asking for whatever records he or she likes, so long as the records are reviewed in camera by the trial judge, and I accept the member's point, and one other person, one other official of the court or somebody else. We can then make sure that the records are being handled in a non-prejudicial fashion because it is possible for a trial judge to be prejudiced.

I think the bill can be corrected and still achieve its basic target, but only if we always allow the accused the opportunity to defend

himself absolutely by the production of records. It does not matter even if those records are held in camera, just so long as the accused and his counsel can see those records.