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.