Mr. Speaker, I am pleased to speak to Bill C-46 regarding the production of records in sexual offence proceedings.
As I was beginning to ponder this bill a symbol came to mind, the very symbol of justice. Therein we see a woman holding a scale. In the symbol is a picture of a balance. A weighing of evidence and actions are put to that balance where the rights of the accused and the rights of victims are weighed; all people are equal before the law.
The scale in that picture is the legislation that we craft in this place. That legislation should be designed to be fair. It should be designed to be free from built-in bias. It should be crafted outside specific cases so that it serves the best interests of all.
The woman in that picture is blindfolded, typifying that the human judgment factor of justice should display an absence of all prejudice. There should be equal rules for all in the justice system.
Increasingly in our system, the rights of the accused and the rights of victims come into conflict with our rules. Increasingly the purpose of the justice system is in debate in the public sphere. Is it to protect law-abiding citizens? Is it to rehabilitate criminals? What are the priorities that must be established in our justice system?
As the weight is shifted from the rights of the public to the rights of the accused, we see a consequence in our social fabric of lack of accountability, an increase in crime, more victims because of it and those victims left out of the process and often revictimized by that process.
A major concern of the Reform Party is that justice serve all Canadians, that it serve as a deterrent to crime, that it demand accountability of those who would break the laws of this country, that it uphold the rights of victims. The bottom line is safer streets and security for our families and for the citizens of Canada.
Bill C-46, this debate, deals with the pursuit of justice in cases of sexual assault. It seeks to strike a balance between complainant rights to privacy and accused rights to a fair trial and full disclosure in that trial.
The discussion is extended in this debate to a right for equality for the complainant, equality based on items such as race and gender.
The difficulty of balance is part of the history of Canada's rape shield law, the law that was designed to shield victims from being cross-examined about their sexual history and making judges responsible to decide when questions are permitted in that sphere.
Originally in law a man accused of sexual assault had an absolute right to cross-examine an accuser about previous relationships and their sexual history. Changes in 1992 to section 276, known as the rape shield law, resulted in most of the alleged victims' sexual history being out of bounds. The decision to allow evidence to come forward was made by the judge in a private hearing at the beginning of the trial.
However, opposite to the anticipated results of this change came demands for counselling and other private records. Counselling centres were besieged with requests from the courts so they began to minimize the records that were kept. Some records were destroyed. There were costly fights over subpoenas. Indeed, victims were not coming forward because they wanted to avoid public disclosure or review of their private past.
In December 1995 there was a supreme court ruling where the defendant in a sexual assault case need only establish records "likely to have relevance in order to be produced", and therefore such workers as doctors, priests, health workers and counsellors could turn over records to the alleged assailants.
Bill C-46 severely limits this access by defendants to records of alleged victims in sexual assault cases. Applications for production of records are determined by a trial judge and there is a two stage application put forward by this bill.
First, the accused must establish that the records exist, that there is specific grounds for requiring those records and that they contain information relevant to the issue.
The second stage is that the trial judge will review those records privately, determine which ones will be released and take into consideration privacy safeguards in so doing.
Both third party and crown records are included in this debate, as has been clarified, which is in direct contradiction to the supreme court ruling of 1995.
My colleague mentioned that records can be produced through the process in Bill C-46. Will they be produced with so many checks and balances? There is no prohibition for production of records but, given the rules and the criteria, would they amount to a prohibition of the records?
As I reviewed these issues there were more that came to mind. The issues range from the priorities of the justice system and the priority of a complainant versus the accused within the system.
Would the system affect the willingness of a citizen to come forward with charges?
Then there is the issue of the definition of who is a victim. In this case, can a victim be the complainant or can the victim be the accused if justice is not served in the process?
The process of justice is another issue and the basic principle in law that someone is assumed innocent until they are proven guilty.
Another issue is the role of the crown and the accountability of the accuser when the crown takes their place.
There are three more definitions and applications. Where does the definition and application of sexual assault charges stand in the law? Where does the definition and application of privacy rights stand in Canadian law? Where does the definition and application of equality rights stand in Canadian law? All these issues surround Bill C-46.
Many of the issues have been discussed in previous debate. Of particular note is the issue of the protection of the complainant versus the false accusation that might come from that individual. This could break down into two situations.
First, there could be false accusation without intent. That is, as we have heard, false memory syndrome which was put forward very succinctly by the member for Hamilton-Wentworth. I will not repeat the arguments.
The other issue is false accusation with intent. I will get to that later in a brief discussion of Bill S-4 and how that could put forward protection for an individual against false accusation with intent.
A second issue that has come up in previous debates is victim rights. This is of course a priority of our party. Too often people in the justice system who are victims are revictimized. Certainly we have seen in the last month or so the dismal failure of the Liberal Party, which had an opportunity to change the criminal justice system to revoke section 745. Section 745 allows for the application for early parole after 15 years for first degree murderers. In the last little while we have had victims revictimized by having to relive the horror in order to accommodate the killer of their children who is once again in the public spotlight.
This party, which forms the Government of Canada at this point, could have supported the repeal of that section of the criminal code. This party could have served Canadians but it chose not to.
The greatest slap in the face to British Columbia residents is that B.C. Liberal members chose to avoid supporting the repeal of section 745. A murderer, who was in their own backyard, came into the public sphere again. This abused the public's sensibilities of not only the victims but of the population of our province.
The stated intent of the bill that we are looking at today is commendable: increased protection of victims of sexual assault and to serve better their needs in the justice system by eliminating any disincentive for them to come forward for justice.
However, today I would ask what the government is doing, how effective it is and how selective it is in the process. As we have seen in section 745 and this government's treatment of that bill, very often justice and legislative proposals are brought forward to suit political purposes but do not serve the real victims, whether those victims are the accusers or the accused in the process. Thus too much legislation does not serve Canadians as a whole.
Today I would like to focus on three areas of discussion in particular, the definition of sexual assault in Canadian law, privacy concerns of the Liberal government, and special rights based on historical disadvantage.
First, the definition of sexual assault as proposed by the Liberal government was changed in 1988. Bill C-15 under the Conservative government redefined sexual assault. In doing so, the age of consent was lowered to age 14 from age 16.
Today I put to the House that the most tragic victims of sexual assault are children aged 14 and 15 who are exploited by adult pimps across our country and who are virtually untouchable by our laws. Child prostitution in Canada rips families apart and destroys the lives of young people. This fact is obviously not a priority of the Liberal government.
When I questioned the justice minister on March 3 he gave an equivocal answer to that question and obviously displayed no will to change, ignoring the recommendation from provincial governments and ignoring the incredulity of the public when it realized that the age of consent in Canada was 14. This issue was actually made worse by the Liberal justice minister who refused to challenge an Ontario court decision in 1995 that actually broadened the definition of sexual consent of children aged 14 to include homosexual activity. The Liberals are not only unwilling to protect our youth, but they would broaden the potential for sexual predators to destroy the lives of young people and not bring to account those who set about to destroy those lives for their own gain.
The second issue is privacy and the Liberal government. A recent tour by the human rights committee on the public concerns about privacy brought to light that the public is woefully unprotected in privacy matters in Canada. The Privacy Act is virtually without enforcement and applies only to the public sector. Other
jurisdictions in other countries are far ahead. The Canadian public is not well served in privacy matters.
There is general scepticism about both invasion of privacy by private sector and public sector concerns. Privacy rules are subjective and serve the purposes of government priorities.
The Employment Equity Act violates the privacy of businesses by making their business plans open to review procedures. On the other hand, in refugee hearings through privacy choices of the government, records relating to the individual are not available to the committee reviewing the refugee hearing.
In my constituency the latest government household survey, the detailed census, provides a severe penalty for non-compliance. This invasive questionnaire sent to households invades the privacy of individual Canadians and is now being challenged in B.C. courts because of privacy concerns.
I would like to draw the attention of the House how the government deals with the privacy rights of children. I quote from a report by a government committee in Beijing which states: "Human rights activists applauded a Canadian breakthrough in Beijing that recognizes children's evolving rights to make their own decisions. The issue pitted the child's right to learn about issues such as birth control against the right of parents to prevent access to subjects in which they do not believe". That is pitting the rights of children against parents by citing the privacy rights of children.
I heard the other day about privacy rights in foster care, a provincial matter, but it illustrates how governments can use these matters to their own end. In B.C. it is illegal for a foster parent to inspect the room of a foster child for weapons or drugs. Governments seek to protect children from parents but does not protect those children from those who would abuse them.
In Bill C-46 the restriction on access to complainant's records is limited to cases of sexual crimes. Today we recognize the sensitive nature and the trauma of the events that might surround them and we recognize the need for some privacy. However, we must also recognize the vulnerability of the accused if the accusations that are made are false but unchallenged. The credibility of the complainant is an important factor in all legal proceedings.
Bill C-46 however states that the fact that the records may disclose a prior inconsistent statement of the complainant is not grounds for getting access to the document. Previously defence lawyers could show that the complainant had lied before. If all players within the legal system are not accountable, then equal treatment in that legal system is denied.
Bill C-46 would also prevent access to crown records, not just third party sources. This is unique and precedent setting in the justice system. It implies special case treatment. It implies rights imputed to the complainant and because they are imputed to one party, rights are denied to the other.
I would put to the House that we cannot know the victim until guilt is established. A victim in this case can be the complainant or the accused. We cannot know which one could be victimized by the process until justice is served.
I mentioned Bill S-4 previously. It creates three new offences in the Criminal Code. It would make known false statements outside a tribunal illegal. It would make illegal proceedings that are instituted primarily to intimidate or injure another person. It would also make illegal knowingly deceiving a tribunal.
The bill introduces the concept of accountability of the accuser in the process. It underlines the concept, and I will quote from the hon. member who introduced this bill, a concept to "uphold the principle that truth is central in judicial proceedings and pivotal to the interests of justice". It was introduced on behalf of those whose lives were destroyed or could be destroyed by false accusations. I know in my riding, the reputation, the family, the careers of individuals can be destroyed through false accusations. Those things cannot be recouped through any court. We must make sure that great care is taken for the protection of all citizens in our laws.
The legislation is also founded on equality rights, particularly equality based on race and gender. This is a common theme of the Liberal government. It includes the concept of historical disadvantage.
These arguments have fueled legislation such as the employment equity legislation which grants special rights by way of hiring quotas for women or visible minorities. As we have seen in society, the results of these kinds of policies have been reverse discrimination in the marketplace. Very great care must be taken in this place that the balance of justice is not re-engineered with the same principles. Just as we cannot make up for past discrimination simply by reversing the targets of discrimination, we cannot and should not make up for past injustice by creating a system of future injustice.
The track record of the Liberal government has been one sided, agenda driven justice policy. I will go back to the symbol of true justice. It must be maintained by the government in the best interest of all Canadians. The legislation requires checks and balances to assure fairness in the system and amendments to guarantee the assumption of innocence of the accused. That is basic in Canadian law so that the final result is that the privacy of the
complainant is balanced but with the protection of a fair trial of the accused.