Mr. Speaker, it is my pleasure to submit to the House for second reading Bill C-46, an act to amend the Criminal Code regarding the production of personal records of complainants and witnesses in sexual offence proceedings.
This legislation, which the minister introduced last June, has been the focus of much media attention. The problem which the legislation addresses has also been thoroughly debated in the media and in Canadian courtrooms.
The amendments to the Criminal Code for which I am seeking support respond to a troubling and complex issue which is having an adverse effect on sexual offence victims, the majority of whom are women or children.
I know that members of the House are familiar with this issue. Their constituents have brought it to their attention and it has been subjected to questions in the House. I know all members share my concern. I am confident they will support these very essential measures.
Over the last several years defence counsel has increasingly sought access to the wide range of personal records of sexual offence complainants, the type of records one would expect to be private, including school records, medical, psychiatric counselling and other therapeutic records, employment records, Children's Aid Society records, journals and diaries. The list goes on.
In sexual offence prosecutions, more so than any other offence, the defence focuses on the credibility of the complainant. Sexual offences are unique. Usually there are no witnesses to the offence and often there are no observable signs of an offence having been committed. For many sexual offences the only element which distinguishes normal and acceptable sexual activity from a sexual offence is the absence of consent of one party.
Sexual offences are also unique in another way. They are surrounded by myths and stereotypes about the type of person who becomes a victim and why. Moreover, the consequences of a sexual offence are devastating and long lasting.
While the prosecution must prove every element of a sexual offence, including the absence of consent of the complainant, often the complainant's word pitted against the accused is the only evidence to establish this one essential element of the offence. Hence the defence of the accused will focus on the credibility of the complainant in most cases. The search for personal records has become the strategy to assist the defence in the impeachment of the complainant's credibility and reputation.
Consider the following 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 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. Or perhaps the complainant has undergone therapy for depression or child sexual abuse long before the assault which is now subject to criminal charges.
These records may also be sought to suggest that the complainant's perceptions or recollections of the incident are confused. In other words, the suggestion is that the complainant who has received such counselling or therapy is less credible.
In the extensive consultations which led to this legislation the Minister of Justice was overwhelmed by the accounts from sexual assault service providers, sexual offence survivors and lawyers at the range of records sought, the reasons advanced for the records and the relative ease with which they have been produced to defence counsel. The most troubling aspect of the consultations has been the devastating consequences of the production of irrelevant personal records for the victim.
The minister was also troubled by the perception of victims and service providers about the insensitivity of the criminal justice system. They recounted several examples which caused them to believe that there is little point in participating as a witness in a sexual offence prosecution. For example, they referred the minister to an event in 1988 where defence counsel in the Ottawa area, attending a workshop on tips and strategies for sexual assault proceedings, were being advised to seek records, including Children's Aid Society records, medical, psychiatric, hospital and immigration records as part of a strategy "to whack the complainant hard at the preliminary inquiry".
This attack on the complainants was recommended so that either she would give up and ask the crown to withdraw the charges or in the event that she withstands this gruelling and embarrassing treatment to cause the lawyer to rethink the accused's defence.
This approach ignores the fact that the complainant is not supposed to be on trial and moreover trial by ordeal has never been part of the criminal justice system in Canada. Yet these ordeals continue to occur and may result in sexual offence victims deciding not to report offences or not to participate as witnesses.
The willy-nilly production of personal records to the accused is having a serious and devastating impact on sexual offence complainants and on record holders themselves. Some claimants will decide not to participate as witnesses in the prosecution. Some may decide not to report an offence to the police. Others may report to the police but forgo the counselling or treatment essential to their recovery and well-being due to fears that these personal records, whether generated before or after the offence, will not be kept private during the court process.
The impact is also experienced by record holders, including hospitals, sexual assault centres, social service agencies and doctors who are incurring substantial legal costs to appear in court to respond to subpoenas. In addition to the legal costs, such appearances take the record holder away from their day to day work of helping people, that is, doing what they ought to be doing. The very act of issuing a subpoena to a record holder cannot be ignored. Whether the records are even remotely relevant to the proceedings or not, the record holder must respond.
The consultation process also reveals situations where subpoenas for records were issued to the service providers who had never met, treated, or counselled the complainant at all. In other words, these subpoenas were simply fishing expeditions.
I am not suggesting that a person should not have an opportunity to pursue the best defence available and defence counsels do acknowledge that relevance is a factor in accessing information and records. However, relevance appears to take on different interpretations in sexual offence proceedings and does not appear to be a very significant hurdle to access to those records.
In describing the current situation that Bill C-46 will address, the minister has consistently referred to the impact on sexual offence victims in a generic way. However, let there be no mistake. We are talking about women and children. Our sexual offence laws and, indeed, all our laws apply equally to men and women in the sense that they are gender neutral. A man or woman can sexually assault another man, woman or child, but the overwhelming majority, that is 99 per cent, of sexual offence victims are women and children.
While the law is on its face gender neutral, when it comes to sexual offences the impact of the law is disproportionately felt by women and children. The production of personal records raises more than simply rights of privacy and the rights of full answer in defence. It raises equality issues and thus the solutions to this problem must squarely address these equality issues.
One of the most troubling aspects of the impact of the production of records is that it runs counter to the spirit of reform of our sexual assault laws which the federal government has been attempting for the past 20 years.
In the past, our laws have not adequately served victims of sexual offences. Before the substantive reforms to the sexual assault provisions of the code, in 1976 and later in 1983, the successful prosecution of the offence of rape was extremely difficult. The evidentiary provisions required the victim's evidence to be corroborated and left the victim's personal life, including sexual history and reputation, virtually an open book.
The reforms of 1983 attempted to eradicate long, outdated myths about sexual offence victims and their behaviour. However, despite the reforms of 1983, which repealed the old offences, including rape, and put in place the current sexual assault offences and which repealed the restrictive evidentiary provisions, attitudes about sexual offence victims have been slow to change.
Thus, it was necessary for further amendments in 1992 to restore the rape shield protections in the Criminal Code to safeguard the complainant's sexual history to as great an extent as possible without adversely affecting the rights of the accused to a fair trial.
Today we are faced with dealing 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-
