Mr. Speaker, I welcome this opportunity to speak in a debate on legislation whose purpose is to make some contribution towards reducing violence against women.
The subject is of particular interest to me, as the official opposition critic for the status of women. The purpose of Bill C-46 is to regulate the production of records of victims of sexual assault, most of whom are, unfortunately, women and children. This bill became necessary following a judgment handed down in December 1995 by the Supreme Court of Canada in the O'Connor case.
This was a case of sexual assault in which a man accused of sexually assaulting four young girls demanded access to the school, medical and counselling records of the complainants. In a majority decision, the Supreme Court ruled that, in some cases, the accused had the right to access the complainant's records.
We should see this in the context that existed at the time. For a number of years, victims of sexual assault had been protected by new provisions in the Criminal Code which provide that the accused cannot attack the reputation of the victim, especially the victim's sexual reputation. You will recall that these provisions were adopted following decades of abuse of victims by the accused. The latter could, and most often did, try to tarnish the credibility of their victims by putting the latter's sexual past on the public record. Thus the myth was maintained that a woman who was no longer a virgin deserved to be raped.
Times have changed. Women have gradually acquired equal rights, including the right to sexual freedom. The battle has been long and arduous, and it is not necessarily over. We see this regularly when certain judges publicly vent their private thoughts about women.
Women had won a measure of judicial protection. This protection is important because it provides an incentive for women who are victims of sexual assault to press charges. It is also an incentive to persevere, once the initial charge has been laid. Legal protection also allows victims to minimize, to the extent possible, the impact of the aggression against them, by encouraging them to find help within the community and from professionals.
This context of legal protection is vital to the women's struggle and explains the importance of having laws that afford the accused a full and complete defence but also protect the victims' access to the courts. This access guarantees equal rights for men and women. How can we talk of equality between men and women, when men can continue to sexually assault women with impunity, because the women refuse to report the assault for fear of having their private lives dragged out for all to see?
If we want a society where men and women are equal, we must take every means at our disposal to ensure they enjoy the same right to integrity and security. The best guarantee of these rights, despite its imperfections, continues to be the legal system.
On the subject of rights protection, I will address the first bone of contention: that of the balance between the rights of the accused and those of the victim. The bill, in its preamble, refers to the accused's right to a full and complete defence and the victim's right to privacy and equality. It also mentions that a balance must be struck between these rights to the extent possible.
These last words and the notion of balance underlie the arguments of the parties opposing this bill. On the one hand, defence lawyers want greater access to victims' files, basing this request on the fact that the accused has an absolute right to make a full answer and defence. The philosophy behind this is that it is better to let 1,000 guilty individuals be set free than to have one innocent person sentenced unfairly.
On the other hand, according to those speaking on behalf of the traditional victims of sexual assault, that is to say, women, hardly any lawsuits are instigated on the basis of false accusations, and the right of women to privacy and to not be assaulted demands that access to records be strictly forbidden. Where is the middle ground between these two extreme positions? How can a balance be struck between the rights of the accused and those of the victim? At present, it would appear that the rights of the accused are better protected. Let me explain.
As we all know, the right of the accused to a full defence has been entrenched in the Constitution since 1982. But this right was already afforded enough protection by the courts before the Canadian Charter of Rights and Freedoms was adopted. As I said earlier, it is already part of our judicial standard to protect the innocent against wrongful conviction at any cost. Indeed, especially since passage of the charter, the courts have developed a whole slew of rules and criteria to provide even greater protection for the right to a full defence. A whole series of rulings have been made on this provision of the charter, with still more to come.
But much less known is the right to privacy and the right to personal safety, which have not yet made it into our legal and popular culture. Because fewer judicial decisions having a strong impact have been made on this subject, it is wrongly viewed as less important, when in fact, both rights are mentioned in the charter and nowhere does it say that they are less important. Why is this? I think this is, unfortunately, a reflection of the lesser prominence traditionally given to women's rights.
As Toronto Star journalist Michele Landsberg pointed out, have we ever heard of a police officer testifying at a trial and being required to disclose his medical records or to talk about his sex life in order to establish his credibility as a witness? In fact, a number of witnesses who appeared before the committee made the same comment.
Why have women traditionally been subjected to such humiliation, if not because they were not given the same credibility? Yet, as this journalist noted, there is no such invasion of the victims' privacy in other criminal cases. Whenever women and sexuality are involved, our society has always felt the need to impose constraints on women. Yet, their right to privacy is protected under the charter.
Now that I have raised this issue, I want to deal specifically with the justice minister's bill. Through this legislation, the minister wants to strike a balance between the rights of the accused and those of the victim. Under the existing legislation, an accused can ask for a wide variety of records, simply on the grounds that such records might be relevant. The existing legislation is also silent on several issues. For example, what records are involved, what conditions can be set for their production, what information must be included in the subpoena, and what must be done with the records while waiting for the appeal process?
Bill C-46 seeks to deal with all these issues. Under the bill, the accused will be required to specify the reasons why he feels that a given record might be useful for his defence. In other words, the bill seeks to prevent an accused from going fishing.
I know that a number of witnesses representing sexual assault victims groups, including victims consultants, were hoping that an accused would not be given access to any confidential records. However, we all know that this is very difficult to achieve because, according to some experts, such a provision would not pass the charter test.
Therefore, the production of records could potentially violate women's right to have access to social and health services that are essential to their physical and psychological well-being. Indeed, the possibility that the content of a session between a woman and her therapist might be disclosed to the judge and the defence lawyer may prevent many women from getting the care and support they need to overcome the consequences of a sexual assault. This
view was shared by all the witnesses who appeared before the committee.
They all said that women would seek certain therapeutic services less frequently.
Given what is at stake for victims of sexual assault and given the fact that the information contained in records will very likely not be relevant to the accused's defence, I think that the defence should be required to show that access to confidential records is probably necessary for a full defence of the accused, and that the benefits of producing records substantially outweigh the prejudice to the complainant's constitutional rights.
Like many of the groups that appeared, I would have liked to see a number of amendments to this bill. I introduced several in committee. You will not be surprised to hear that they were all rejected by the largely Liberal committee. Does that surprise you, Mr. Speaker?
I sincerely believe, however, that these amendments were very realistic and, more to the point, that they reflected the suggestions made by witnesses, by those who very often accompany the victims of sexual abuse.
One of the first amendments sought was inclusion of the preamble in the body of the bill. The groups that made these recommendations include the Regroupement québécois des centres d'aide et de lutte contre les agressions à caractère sexuel, the Ontario action group to combat violence against women, the legal action and education fund for women, and METRAC.
Several of these witnesses told us that certain judges are only too ready to express their true feelings about women publicly.
That is why it would have been desirable to include the preamble in the body of the bill, in order to counteract these sexist myths and prejudices which are still clearly present in our judiciary system. For a clearer understanding of the message of this preamble, I am going to read it. It is worded as follows:
Whereas the Parliament of Canada continues to be gravely concerned about the incidence of sexual violence and abuse in Canadian society and, in particular, the prevalence of sexual violence against women and children;
Whereas the Parliament of Canada recognizes that violence has a particularly disadvantageous impact on the equal participation of women and children in society and on the rights of women and children to security of the person, privacy and equal benefit of the law as guaranteed by sections 7, 8, 15 and 28 of the Canadian Charter of Rights and Freedoms;
Whereas the Parliament of Canada intends to promote and help to ensure the full protection of the rights guaranteed by the Canadian Charter of Rights and Freedoms for all, including those who are accused of, and those who are or may be victims of, sexual violence or abuse;
Whereas the rights guaranteed by the Canadian Charter of Rights and Freedoms are guaranteed equally to all and, in the event of a conflict, those rights are to be accommodated and reconciled to the greatest extent possible;
Whereas the Parliament of Canada wishes to encourage the reporting of incidents of sexual violence and abuse and to provide for the prosecution of offenses within a framework of laws that are consistent with the principles of fundamental justice and that are fair to complainants as well as to accused persons;
Whereas the Parliament of Canada recognizes that the compelled production of personal information may deter complainants of sexual offenses from reporting the offence to the police and may deter complainants from seeking necessary treatment, counselling or advice;
Whereas the Parliament of Canada recognizes that the work of those who provide services and assistance to complainants of sexual offenses is detrimentally affected by the compelled production of records and by the process to compel that production;
And whereas the Parliament of Canada recognizes that, while production to the court and to the accused of personal information regarding any person may be necessary in order for an accused to make a full answer and defence, that production may breach the person's right to privacy and equality and therefore the determination as to whether to order production should be subject to careful scrutiny.
You can see then, from reading this preamble and the reason it was included in the Criminal Code as introduction to Part VIII on crimes against persons, that it is hard to understand why the committee rejected the recommendations made by a number of witnesses and by the Bloc Quebecois.
I understand very well that the Criminal Code must not be unduly burdened, and that many of the principles are covered in the general provisions, that being the argument that is normally used. However, considering that the objective was to change attitudes, it would have been preferable to accept this amendment.
A preamble was included in the case of the young offenders bill. So why not do the same in the case of this bill? Does this mean that attitudes are harder to change where women are concerned? Does it?
Including this preamble in Bill C-46 would be a major step. The preamble not only has great educational value for the legal profession and the general public but would also have been very helpful in the case of court challenges by counsel for the defence, because the preamble could have been invoked to guarantee an interpretation that considers the constitutional rights of women as well as those of the accused.
The purpose of including this preamble in the Criminal Code was to recognize the negative impact the production of confidential records has on the lives of women and the importance of guaranteeing respect and support for their constitutional rights.
A second amendment would also have been desirable to limit access to the victim's confidential records. This amendment would have required the accused to prove that access to confidential records was "probably essential" instead of "likely relevant", the term used in the bill. The burden of proof would have been better served by the concept of the balance of probability than by the principle of likely relevance.
The balance of probability is a legal concept that increases the onus on the person who wishes to obtain the record to provide specific proof. However, I admit I am pleased that the government has agreed to review the impact of this bill in three years' time. The amendment was welcomed by all members of the committee. It was proposed by the Bloc Quebecois, and I know that a Liberal colleague tabled a similar amendment. The committee was unanimous because the amendment reflected the preferences of the majority of those who appeared before the committee.
We will be able to check whether certain fears about the enforcement of this legislation were founded. I will name a few: a reluctance to have personal journals and diaries included in the definition of "records". Including it would lead the courts to permit access to other personal documents written by the victim, unlike institutional records. This is one fear expressed by the various witnesses heard.
There is also the fear that victims would have less contact with groups or individuals that exist to help them, that women should not have to choose between justice and therapy. There is the fear that, once a subpoena has been issued, counsellors or therapists will lose contact with the victim, their client, and that this will serve to further isolate the victim. There is the fear that judges examining records will be insensitive. It is felt that personal and psychological records are not relevant in a trial and the reasons given for examining them are often trivial and are intended to further intimidate the victim.
There is also the fear that women will not lay charges more often for fear of having their private life made public. There is the fear that the defence will try to obtain psychological or personal records to show that the complainant had reason to lie about the sexual assault, that she entertained malicious intent with respect to the accused or that she had already wrongly charged him.
The evaluation, after the law has been in effect for three years, will provide the means of assessing its impact on victims and the various consultants in the community.
In Quebec, there are far fewer requests for access to victims' files than in other provinces. However, there is some concern about the phenomenon and people are keeping an eye on the potential catch up that could occur in Quebec in this practice. This is why passage of this bill will significantly limit access to the victim's records-and this concern came out during committee hearings-although we would have liked to further restrict access to certain records.
Parliament should have set up without further delay a legal and procedural framework to create a real balance between the right of women to security, integrity and privacy and the right of the accused to a full and complete defence. Bill C-46 is attempting to partially close a door that never should have been opened.
This is why we will support the principle of this bill. However, we will be watchful and keeping a sharp eye on the bill's implementation so we can assess the concerns expressed to the justice committee. I am sure that passage of this bill represents a major step forward, because the situation was not desirable for the victims of sexual violence.