Mr. Speaker, we are playing an interesting semantic game here. It is important to understand and appreciate that judges do not make law in a vacuum. If the legislation passes we are influencing the way in which judges will make decisions in courtrooms. That is what laws are. That is no great revelation. That is what we do. We make laws.
Judges cannot create laws in a vacuum. They cannot make decisions about evidence in a vacuum.
There has been a problem in the area of sexual assault cases for some period of time. As those cases have evolved in the courtroom, because of deficiencies in evidentiary laws there has been a free ride for the defence in terms of how it investigates and how it explores its cases. That free ride has caused a situation where the courts, not necessarily of their own volition, are riding roughshod over the privacy rights of complainants, victims and other witnesses.
All this law seeks to do is to set a structure within which a judge can make a determination and to set out guidelines for a judge to follow. It is not a question of prohibiting. It is a question of basically saying that we will respect the rights to privacy of people who come to the law with a complaint. We will balance those rights fairly and in an even fashion. We are doing it in such a way that there can still be full answer in defence.
The people on the other side who are beating this horse are forgetting that the doctor whose records they are seeking to produce can still be called. He or she can still be asked questions. The psychiatrist and the counsellor can still be called. They can still be asked questions about the complainant and about what may have transpired in terms of the nature of the therapy or whatever happened.
However they will not get at those records. They will not get a free ride or a fishing expedition on those records unless they can demonstrate some form of relevance. It is not that they must be absolutely guaranteed to be relevant. It is that in all likelihood they are relevant. That is a good balance. We must remember that people who come to the courts or to the police to complain have rights to their own privacy.