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.