Mr. Speaker, this is debate on third reading of Bill C-46. This is a bill intended to strengthen the protection of privacy and equality rights of complainants in prosecution for a variety of sexual offences. This added protection is gained through restricting defence lawyers' ability to apply for production and disclosure of private documents such as medical, counselling and therapeutic records.
The bill's proposed amendments to the Criminal Code would permit applications for a complainant's records only at trial stage and then in a two step process.
First, the accused would have to establish the likely relevance of the records to an issue at trial or a witness' competence to testify. If the accused did establish that the records were likely to be relevant, the records would be ordered to be produced to the trial judge. The judge at that first stage would be the only person who would see the records.
In the second stage the judge would review the records in private, taking into account their likely relevance and the charter rights of both the complainant and the accused. The judge's decision would determine the extent to which the accused would have access to the records. The determination would not affect the test for admissibility of any matters that the accused sought to introduce as evidence in the trial.
The job of the opposition is to scrutinize government measures and government proposals that are brought forward, to hold the government accountable for the measures that are brought forward and to act as a watchdog, a check and balance on the power of government as it brings forward legislation that will affect citizens, their rights and their lives. We take our responsibility as opposition very seriously.
I said in my remarks at second reading of this bill before it went to committee I would be watching carefully to see what evidence came forward at committee, what concerns were raised and how the bill was viewed by those most affected.
In principle the Reform Party supports very strongly legislation that provides increased protection to law-abiding citizens and victims of crime. We have made a very strong case for increased protection for victims rights. On April 9 we had an example of an individual who was affected in this type of instance. I refer to a case in Edmonton where a 13-year old girl's counselling records were directed to be given to the 27-year old man accused of sexually assaulting her.
The mother of the girl said: "My daughter was invaded a year and a half ago and now it starts again. It just feels that as victims we don't have rights".
Reform has urged the House and the justice minister repeatedly to enact a victims bill of rights and we have given a substantive draft of the measures such a bill should contain. So far the government and the justice minister have not taken those urgings to heart and have not put into place a victims bill of rights which would give legal standing and protection to all victims, not just victims in sexual assault cases.
It is very clear that there is real concern from people who have been sexually assaulted about continued victimization by the justice system which can force the opening of very private matters. As a corollary to their first victimization a second one takes place.
The unfortunate consideration, though, is that not all complainants are victims. Sometimes accused individuals are victims because they are wrongfully accused and are put into a situation where they need to prove their innocence. I do not think I need to belabour the fact that for a man who is wrongfully accused of sexual assault and sexual misconduct the affect on that individual, his life and also the lives of his family members and those who are close to him is very serious.
We must be very careful that we balance in the legislation, as I have said before in discussing the bill, the interests of the right to privacy and the right to equality of victims of sexual assault with the right to liberty of the person and the right to make a full and fair defence of individuals who are wrongfully accused of these actions and who are really the victims.
That makes for a difficult balance. I am sure all members of the House, the justice committee and the justice minister are very anxious to have a proper balance in this situation.
The bill includes a preamble emphasizing Parliament's concern about sexual violence against women and children. I think there would be very few people in the country who would not be wholeheartedly in favour of providing protection for women and children against the kinds of terrible violence we have talked about in the House over the last few days. I am not going to repeat some of the situations that innocent citizens and innocent women have had to face.
Bill C-55 could have allowed violent offenders who have perpetrated sexual assaults and sexual crimes on women and children to be designated as dangerous offenders and to be kept out of society indefinitely.
For reasons which mystify me, this bill omitted sexual predators and sexual offenders from the list of individuals who could be designated as dangerous offenders. Again, I would urge the government to rectify what I think is a very serious omission and which is very much at odds and variance with its purported concern for the safety of women and children.
I would now like to make a couple of comments about the committee hearings on this bill. One thing that did concern me is that there was only one submission on the bill from the viewpoint of those representing accused persons. There were many excellent submissions from groups and individuals concerned about the rights and protection of complainants and victims of sexual assault. These submissions came from individuals and groups that have gone to tremendous lengths and have a tremendous depth of caring and compassion in a very practical way, particularly for women and children who have been victimized by sexual assault and very personal invasion.
I commend these individuals, as I think do all members of the committee, for the work they are doing to encourage, support and assist victims of sexual assault in these life shattering situations. We appreciated the submissions, there was only one submission expressing concern about the right to a full and fair defence of individuals who may be wrongfully accused of these terrible crimes. I would point out that I am not entirely satisfied with the kind of analysis and viewpoints of the bill on this side which we need.
There was an amendment to this bill at committee stage which also troubled me. Not only would a record have to be applied for in a procedurally correct manner and not only would the record have to be shown as relevant, but a third test was added by amendment which said that the production of a record, even it if relevant, would be ordered only if in the best interests of justice.
It seems to me that if a record is relevant in a judicial proceeding, surely it would be in the best interests of justice that it be produced. That is a matter that leaves the bill open to a charter challenge.
I was concerned about that. I raised it at committee. The department officials responsible for drafting the bill pointed out that they wanted to tie the application for records back to some of
the balancing concerns and balancing rights that are the whole reason for the bill. I accept that explanation.
I am a little concerned, though, that the way the bill is drafted leaves an argument open that if a document is relevant but still withheld in a judicial proceedings, withholding it would be improper. The defence counsels I have talked to about this have a similar concern.
The department officials were very anxious and very careful to make a good balance in this bill. I was satisfied that they did a very excellent job and consulted widely. I was very impressed with the care, the concern and the ability they demonstrated in drafting this bill. They are to be commended and the minister and his department are to be commended for this.
A couple of other concerns about the bill are that there are major cost implications because not only the complainant but the record holder or agency that has dealt with a complainant is entitled to be represented by counsel at hearings into the production of records.
The question is who will pay for that counsel. That was raised. The department had thought through that and had some suggestions. That is a practical matter that is really up in the air regarding how that will really take place in practice and who will cover that area.
There is also a concern that these cases will be extended considerably because of the extra hearings and the extra provisions in these kinds of cases for examining records and making applications and that sort of thing.
Senior counsels who might be prepared to take on these cases on a legal aid basis would be more inclined to withdraw because of the time commitment, leaving only more junior counsels to represent complainants, going up against senior crown counsels.
These are some practical things that were raised, and rightly so. On balance the intent of the bill is appropriate. The bill is as carefully balanced as the officials and the drafters could make it.
It is appropriate to raise some of the concerns that I just talked about. Defence counsel and the criminal bar are very unhappy with how far this bill takes us in putting barriers up to the production of material that could be relevant in a full and fair defence.
It is fair that it is mentioned, but the one thing that does give us some help is the amendment that was put in by committee to review the bill after three years. We will be watching very closely how this bill operates in the real world. Then we will be prepared to push strongly for changes if we see the need.
On balance, after committee hearings and after speaking to a number of people directly concerned by this legislation, my party will be supporting this bill. We will be watching to see how it works out in effect.
We want to make sure that the balance is appropriate but we should let this go ahead to see whether it does give the protections needed to innocent victims of a very terrible crime.