Thank you, Chair.
My amendment seeks to insert after line 15 on page 12 a new paragraph. I know we're getting into lots of decimals here, but this would create a new paragraph 278.92(3)(g.1) with the simple wording, “the complainant's expectation of privacy”.
My rationale behind moving this amendment is that the committee heard that there is a need to clarify the admissibility of a complainant's private records at trial when in the hands of the accused. Specifically, I believe we had Professor Emma Cunliffe of the Peter A. Allard School of Law at UBC, and she stated the following:
I agree with the Criminal Lawyers' Association that there is space for clarification. If we return to the case that's the genesis for this change, the case of Shearing, the facts in that case were that the complainant's diary had been stolen by the accused person, and the court held that the means by which the accused person came into possession of it were not relevant to the admissibility of the diary at trial. That's being addressed by a provision such as this.
She goes on to say:
If we think about the possibility, as exists in some case law, of an accused person improperly obtaining access, for example, to someone's Facebook profiles or confidential email records, there's a significant public policy interest in ensuring that there are procedural safeguards before those kinds of materials can be aired in court.
I think she was agreeing with what the Criminal Lawyers' Association said in its submission, that the link between the complainant's privacy interests and the recording question is not apparent on the face of it. My intention is to add a little bit more specificity with regard to a complainant's expectation of privacy for this section.
