House of Commons Hansard #150 of the 35th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was justice.

Topics

Petitions
Routine Proceedings

3:15 p.m.

Liberal

Gordon Kirkby Prince Albert—Churchill River, SK

Madam Speaker, I am honoured to present, pursuant to Standing Order 36, a petition from the residents of Etobicoke, Whitby, Mississauga, Oakville, Georgetown, Scarborough, Toronto and Brampton as well as other communities.

The petitioners call on Parliament to urge the federal government to join with the provincial governments to make a national highway system upgrading possible in 1997.

Petitions
Routine Proceedings

3:15 p.m.

Liberal

Gordon Kirkby Prince Albert—Churchill River, SK

Madam Speaker, I have a petition from people in communities such as Etobicoke, Mississauga and Toronto as well as others who call on Parliament to support unequivocally the enlargement of NATO to include all countries of central and eastern Europe that wish to join, excluding none.

Petitions
Routine Proceedings

3:15 p.m.

Liberal

Paul Szabo Mississauga South, ON

Madam Speaker, I have three petitions today. The first comes from Powell River, B.C. The petitioners would like to draw to the attention of the House that police officers and firefighters place their lives at risk on a daily basis as they serve the emergency needs of all Canadians. They also state than in many cases the families of police officers and firefighters killed in the line of duty are often left without sufficient financial means to meet their obligations.

The petitioners therefore pray and call on Parliament to establish a public safety officers compensation fund to receive gifts and bequests for the benefit of families of police officers and firefighters who are killed in the line of duty.

Petitions
Routine Proceedings

3:15 p.m.

Liberal

Paul Szabo Mississauga South, ON

Madam Speaker, the second petition comes from Kitchener, Ontario. The petitioners would like to draw to the attention of the House that managing the family home and caring for preschool children is an honourable profession which has not been recognized for its value to our society.

The petitioners therefore pray and call on Parliament to pursue initiatives to assist families that choose to provide care in the home for preschool children, the chronically ill, the aged or the disabled.

Petitions
Routine Proceedings

3:20 p.m.

Liberal

Paul Szabo Mississauga South, ON

Madam Speaker, the final petition comes from Pembroke, Ontario. The petitioners would like to draw to the attention of the House that the consumption of alcoholic beverages may cause health problems or impair one's ability and, specifically, that fetal alcohol syndrome and other alcohol related birth defects are 100 per cent preventable by avoiding alcohol consumption during pregnancy.

The petitioners therefore pray and call on Parliament to enact legislation to require health warning labels to be placed on the containers of alcoholic beverages to caution expectant mothers and others of the risks associated with alcohol consumption.

Petitions
Routine Proceedings

3:20 p.m.

Liberal

Marlene Catterall Ottawa West, ON

Madam Speaker, I am pleased to present a petition from a number of people in the province of Quebec who call to the attention of Parliament that the nation is in danger of being torn apart by regional factions.

The petitioners ask Parliament to declare and to confirm immediately to-

-that Canada is indivisible and that the boundaries of Canada, its provinces, territories and territorial waters may only be modified by a free vote of all Canadian citizens as guaranteed by the Canadian Charter of Rights and Freedoms, or through the amending formula stipulated in the Canadian Constitution.

Questions On The Order Paper
Routine Proceedings

April 7th, 1997 / 3:20 p.m.

Fundy Royal
New Brunswick

Liberal

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

Madam Speaker, I ask that all questions be allowed to stand.

Questions On The Order Paper
Routine Proceedings

3:20 p.m.

The Acting Speaker (Mrs. Ringuette-Maltais)

Is that agreed?

Questions On The Order Paper
Routine Proceedings

3:20 p.m.

Some hon. members

Agreed.

Board Of Internal Economy
Routine Proceedings

3:20 p.m.

The Acting Speaker (Mrs. Ringuette-Maltais)

I have the honour to inform the House that René Laurin, member for the electoral district of Joliette, was appointed as a member of the Board of Internal Economy replacing Mrs. Dalphond-Guiral, member for the electoral district of Laval Centre.

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

3:20 p.m.

Reform

Daphne Jennings Mission—Coquitlam, BC

Madam Speaker, I rise today to speak on Bill C-46, an act to amend the Criminal Code involving the production of records in sexual offence proceedings.

Victims who have been sexually assaulted are often hesitant to come forward, probably because of the fear of disclosure of personal records which they feel would be tremendously embarrassing to them. We can understand that, but some of these charges are very real and very tragic. Lives can be ruined before they have even had a chance to get started.

The question we have to ask today is: Are there those who hesitate to come forward because they are disturbed by the very public nature of the court process? It is a fact that the accused of any crime, especially a sexual offence, will put forward a defence of some nature. Of course the gloves will come off.

In the past, defence lawyers have sought records from the victim's past to try to help their clients, to smear the victim and try to cause the victim to lose credibility. These records have included psychiatric, social welfare, employment, personal counselling and other very private facts.

Few of us want our personal lives exposed to all and sundry. The fear of having such personal records revealed is believed to be a deterrent to victims to report sexual assault against them. Going further, the fear that such records may at some future date be called for is hampering the process of counselling and assistance provided by victims' support centres.

Most of us are in favour of and support victims' rights but how we do it is another thing. Often in counselling the victim is afraid of disclosing too much for fear of the exposure. In fact the Parliamentary Secretary to the Minister of Justice, when he spoke on Bill C-46, asked us to consider this scenario.

A person is sexually assaulted and following the assault receives counselling from a sexual assault centre. The counsellor may take notes of the sessions where the complainant is distraught and full of self-doubt about why this has happened. The notes are the perceptions or recollections of the counsellor. They may not necessarily truly reflect what the victim says.

They are not verbatim transcripts of the conversation. They are not statements, yet defence counsel may attempt to gain access to and explore those records, looking for perhaps what is in the view of the defence an inconsistent statement. Perhaps the complainant has undergone therapy for depression or child sexual abuse long ago and of the assault which is now subject to the criminal charges.

It is not enough to only be concerned about the victims' rights. We have to be concerned that the victim, in having those rights, is protected even more so in that everything personal about them has to be looked at very carefully and that it will actually impact on the proceedings that are going to be followed through on the investigation.

Victims' rights have long been a basic plank of the Reform Party. Of course we would support legislation that provides increased protection to law-abiding citizens and victims of crimes. Therefore we support the bill in principle. However, I still have reservations regarding the government's commitment to victims' rights.

However, we must also be mindful of the longstanding tradition in our country and in the British legal system to protect everyone's rights. That includes an accused person's right to have the opportunity to make a full and fair defence to any charges brought against him or her. How can we as legislators ensure that the right to a full and fair defence is not affected or weakened through provisions of the bill?

Sexual assault is a very serious offence and we must make it possible for victims to come forward without fear of public exposure of their most personal records. Yet we must also acknowledge that there have been instances where accusations of sexual assault have been found to be false. The bill must consider two competing or conflicting interests.

Genuine victims of sexual offences need to be protected from being further violated by having their personal lives and intimate thoughts put before the public as the defence goes on a fishing trip to dredge up some unsavoury but irrelevant personal detail.

Similarly, some persons have been wrongfully accused and must be entitled to all resources available to clear his or her name. As you can see, Madam Speaker, there are strong arguments on both

sides of this question. We are given a position in Bill C-46 to look at very closely and to balance very carefully the rights of all individuals.

I am very concerned about the possibility of someone being wrongly accused because of a constituent who came to me just after I had been elected in 1994. A man and his wife felt some authority, in this case myself, the MP, should hear his story. In spite of the fact that he was charged, found guilty and served his sentence, he maintains his innocence. This man lived in British Columbia's north country in the 1960s when the alleged sexual abuse was supposed to have taken place. The alleged victim decided to come forward when she was 31 years of age and accused this man of sexually abusing her when she was seven years old. At that time the offender was married to the victim's aunt.

His wife of the day said he could not have done the offence. He explained that at the time of the alleged assaults he was not yet home from his shifts at work. Yet this woman of today had a school friend of yesterday who testified that the assaults happened after school. As well, time had not been too kind to this victim. Apparently she had serious problems with drugs when the accusations were made.

There are serious questions rising from this case which have had lawyers and law professors very disturbed about the chain of events and the lack of accountability of the legal system. The result was my constituent was found guilty in 1989 and sentenced. He spent three years in jail. He told me he could have been paroled in six months if he had admitted his guilt to this offence. All along he has maintained his innocence. He was released from minimum security in April 1992. Did this man get a fair trial? Is he in fact a victim? There were some problems with a parole officer. There were problems with the offender's rights being dealt with according to the law. Was he a victim of the court system?

The man I met in my office was devastated by what had happened to him. In one thing he remained steadfast. Regardless of the day passes and the Christmas passes he could have received if, as he says, he had gone along with the system, he would not give in. He was innocent and he served his full sentence. Although he was a good prisoner and worked well in prison, he was not given any time off for good behaviour. He served his full sentence and all the time maintained his innocence.

With a case like that we have to stop, pause and think. Is it possible that there are errors that slip through the cracks? Is it possible that in fact this man is completely innocent and was a victim of the system?

I am perhaps overly concerned about the rights of the accused because it seems the legal system has many flaws and judges are not perfect. They are only human. Many of us wonder how a judge could accuse a three-year-old child of being sexually aggressive and be blamed for her own sexual abuse. What kind of a judge could decide that? It makes one wonder.

Lately a man who stabs his wife many times, resulting in her death, all this in front of her children, is not guilty because he was drunk. Alcoholism is an illness. It is not an excuse. What kind of judge would allow it to be used as a defence, then decide in favour of using the drunken plea as a defence and include that reasoning in sentencing?

When is everyone going to be held responsible for his or her actions? It seems so simple and yet we have such difficulty having everyone just being accountable for his or her own actions without excuses. The question to be asked here, in spite of the faults in our legal system, and maybe because of it, is this. Does this legislation strike the proper balance between these competing interests, the protection of the victim and the rights of the accused?

Under the terms of the bill, the accused will have to pass a two-stage process in order to obtain the production of personal records of the complainant or a witness in sexual offence cases. The accused will first have to satisfy the judge that the records will likely be relevant to an issue at trial or to the competence of a witness to testify. All parties have an opportunity to oppose the application by the accused. The judge holds the hearings in camera.

If the judge decides that the record in question may be relevant to the case, he or she orders the production of the records for review and subsequent decision on whether or not they may be used. Even if the judge rules in favour of the accused for some or all of the records, conditions may be attached. The records cannot be used in other proceedings.

Again, it is important to point out that not all complainants are true victims. We are all aware of instances where complaints have been frivolous or malicious. Some of us are also aware of accusations arising from a condition called false memory syndrome. I heard a Liberal member speaking on it this morning, bringing out some facts and actual figures on it. There are cases where parents in their later years are being subjected to accusations of sexual assault that allegedly occurred 30 or 40 years earlier, assaults that were not recalled until the victim was undergoing some form of therapy, in other words a helping process. There is also growing evidence that these vivid memories, repressed for 20, 30, 40 or more years, may be highly unreliable. Great care must be taken in accepting this type of evidence without solid corroboration.

There will be concern expressed about the kind of discretion that is placed in judges. It is noteworthy that the judge must provide reasons for orders made to produce records or refusals of such orders.

I would like to add here that the judge's reasons should be based on facts and not based on his or her opinion of what seems to be. I say this because again of personal experience. I have been a victim of the court system. In my case it was the civil court system, not the criminal system. Either way, we have many problems with the legal system, judges being not the least of them.

In our case we had sold a family home of many years in 1980 and bought a small business out of receivership. Originally we paid insurance of what was then perceived to be the business' value. As the business prospered we had to increase our premiums as the value of the business had increased. At this time we had the business appraised by an experienced hotelier and his appraisal agreed with the insurance company's appraisal. We sold our small business due to a family illness at a value which was less than the market value of the day.

The purchasers ran into trouble after a year and a half. The business was run down and they stopped making mortgage payments to us. They tried to sell it and even had a commercial appraisal of a value which was far in excess of what we sold it for. We went to court and obtained a judgment against them for the balance owing to us for our business.

The judge of the day dealt with the facts and protected our rights as one would expect. We received our judgment. To stop us from collecting on our judgment the purchasers charged us with misrepresenting the sale of our business. Of course the facts were there to prove otherwise but the couple was successful in stalling us for a couple of years from collecting on our judgment.

In the period of three years we went through three lawyers: one was disbarred, one was fired and the last we just ran out of money. So we represented ourselves in an eight day supreme court trial in British Columbia.

Three days before the trial, the claimant's lawyer offered us $50,000 and they would drop the charge if we would take the hotel back. However, the trial proceeded. This new judge did not like us lay people in his courtroom without a lawyer. This is not just fiction from my imagination. This is the result of having the judgment read to two retired judges and two senior lawyers in Vancouver who all gave us the same answer.

In fact, the judge would not let a lay person win against a senior lawyer. He decided we had sold the hotel for too much money even though all the evidence presented proved just the opposite. He said that we should have sold it for an amount much lower than the market value and he took $50,000 from us but ruled that we would keep our judgment.

The judge based his decision on his opinion and not on the facts, thereby making it impossible for us to win an appeal on his decision. It appears that a judge is god in his or her courtroom. That is a frightening experience to go through. He or she is unaccountable for his or her actions, therefore it is only through the reasons given in his or her judgment that we can appeal the case. If he had based his decision on his or her own opinion rather than the facts, there is no way to get a successful appeal. We had to live with the results.

We now have our property back. The other couple lost everything which is exactly what they deserved, but the public has had to pay the bill for an unnecessary court case that wasted years of the court's time and many tax dollars.

What kind of judge would violate our rights so badly? In the civil justice system, there are thousands of complaints a year against lawyers and judges registered with the Law Society in British Columbia. I am only familiar with the Law Society in British Columbia but I would imagine in every province in Canada there are thousands of cases against what has happened in the legal system to individuals.

Therefore, I repeat regarding Bill C-46, there will be concern expressed about the kind of discretion that has been placed with judges. It is worth mentioning that the judge must provide reasons for orders made to produce records or refusals of such orders. The reasons would have to be read into the record or given in writing.

Again, I ask that these reasons be based on facts produced. I ask the members sitting opposite to look very carefully at Bill C-46 to make sure that the judge has to give reasons based on facts and not on the judge's opinion.

The bill also allows for the right of appeal. That too is an opportunity that can be played with. It must be a proper right of appeal.

Generally this bill attempts to be a fair compromise between two very serious individual rights. Let us hope that this bill has the merit, that it treats victims fairly, that it may be a start on victims' rights that we can improve on until Reform's concerns are dealt with, until we have full legislation on victims' rights. Then victims can truly know that they matter, that they count, that when something terrible happens to their families, they too, not just the individual in the family but the person in the family who is affected by it, are victims. They too can be addressed.

Motion No. 267, my private member's motion which will have its last hour of debate tomorrow, deals also with this matter in a roundabout way. That is the fact that we have private member's bills presented to the House, agreed on by members of the House, pass second reading, go to committee and then the members of the committee vote them down, often without any reasons as in the case of my bill. No reasons are given in committee. There is no discussion in committee on the witnesses who appear before the committee and the bills are not being returned to the House.

It is very important that the House recognize the rights of the members who have been elected to push forward their constituents' wishes, that the bills that the House agrees on which should be presented to committee should also be returned from committee with reasons for judgment.

If the justice committee or whatever committee deals with the bill wants to vote it down, that is fine. The reasons for voting it down must be returned to the House. We must understand fully. We must have a complete circle of democracy.

I am also concerned about the fact that sexual abuse has happened in my riding as well as in many other ridings. In my instance, the girl was handicapped. She was in a wheelchair. She suffered from cerebral palsy and yet she had the courage to come forward. She had many people, myself included, to be beside her for the sentencing. She was a victim and the man she accused was found guilty. However, he is still in the country although he is not a Canadian. He has not yet been sent back to his country. We are following it through.

These are issues that all of us have to take very seriously. In Bill C-46, which I find to be working toward the betterment in both cases, I would still hope that the Liberals will look very seriously at amendments for it.

Criminal Code
Government Orders

3:40 p.m.

Prince Albert—Churchill River
Saskatchewan

Liberal

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

Madam Speaker, I note with interest that the Reform Party on many occasions stands to ask when are we going to stand up for the rights of the victims or when are we going to put the rights of the victims ahead of the accused in every single case. I think those words were used today.

This is a good example of legislation that the government has brought forward to assist victims to go through the criminal process, to make sure that their lives are not subject to fishing expeditions. I am very curious to know why it is the Reform Party in this case, where we are doing something concrete for victims of crime, bends over backwards to say: "But we still need to make sure the accused has a right to full answer in defence". Why is there all this concern about the rights of the accused when we are dealing with sexual offences against women and children? Why the inconsistency?

Criminal Code
Government Orders

3:40 p.m.

Reform

Daphne Jennings Mission—Coquitlam, BC

Madam Speaker, I would like to thank the parliamentary secretary for his question.

First, what the member has said is not quite accurate. We are very concerned about victim's rights. We are very concerned with the Liberals following through on victim's rights.

I have honestly said in the House today that I recognize the fact that the government has put forward the bill with the purpose of helping. I hope that is what happens. However, I cannot let the question go by without pointing out to this member that the government had ample opportunity to remove section 745 from the Criminal Code.

Criminal Code
Government Orders

3:40 p.m.

Liberal

Gordon Kirkby Prince Albert—Churchill River, SK

Answer my question.