Mr. Speaker, I do not normally track justice legislation or comment on justice bills. However, I am going to comment on Bill C-46 for a very specific reason which I hope members opposite will listen to.
About five weeks ago a man and his wife came to my constituency office. He is in his seventies and she would be about the same age. They are well known in the town that I live in as upstanding people, members of the church and so on and so forth. They told an incredible story. Apparently their daughter, who was then in her fifties, had been subject for very many years to depression every now and then. In fact, it probably cost her her marriage. About three years ago she started going to a therapist for her depression.
It turns out that the therapist discovered that she had been seriously sexually abused as a child, complete with satanic rights and the whole thing. She had no recollection of these incidents until she went to the therapist. They involved the father. The elderly couple sat in my office and the wife was in tears because this woman, in her fifties, had taken the results of her memories, which were vivid, to the police. She could tell chapter and book how her father abused her.
The reason why the old couple were upset and why they came to my office is that they heard that Bill C-46 had been introduced into the House of Commons. They asked me to look at it carefully so I have.
I first looked at this phenomenon that was mentioned by my colleague from Calgary North called repressed memory syndrome. This is apparently what was the case with respect to this daughter. She went to a therapist. According to psychological theory, when a child has a very traumatic experience he or she can suppress that experience and bury it in memory. The therapist, many years later during the therapeutic sessions and in probing the past of the client, suddenly encounters these memories and brings them to the surface. That is called repressed memory syndrome.
In the past 10 years or so approximately 800 people have been convicted in North America on the basis of repressed memories that have been brought back to the surface by therapists. They have been convicted of very serious crimes usually involving sexual abuse. They have gone to jail solely on the evidence of these people who had no recollection of these crimes against them as children but suddenly found vivid memories when they were treated by therapists.
In the past few years the medical authorities in Canada and the United States have come to recognize that there seems to be a very strong probability that many of these repressed memories are not memories at all but are induced by the therapist. Indeed, just a year ago the Canadian Psychiatric Association came out with a position paper in which it stated that developmental psychology casts doubt on the reliability of recovered memories from early childhood. Reports of recovered memories of sexual abuse may be true but great caution should be exercised before accepting them in the absence of solid corroboration.
Naturally I began to do some research. I had another case just in the past year and a half about a B.C. lawyer in Victoria. I will not give his name because I am sure he suffered quite enough. He is a man in his late forties. Suddenly out of the blue he was accused by a cousin of abusing her when she was only eight years old. It was a case of her being subject to bulimia and having emotional problems. As the information came out in the courts, she went to a therapist and found that she remembered all kinds of things involving sexual abuse, satanic rituals and all those kinds of things.
This man was convicted in B.C. court of doing this. The court of appeal, however, just a year ago overturned the conviction on the grounds that the original trial judge chose to accept some of the information that she reported from the therapist and not other information. In other words, her memories were so elaborate that the original trial judge felt that he could only accept some of them.
The court of appeal said that the original judge could not be selective like that, overturned the case and called for a new trial.
Added to that, in this particular case there were other witnesses who came forward who also recalled this lawyer having engaged in sexual abuse, satanic rituals, burying a cat in the garden and those kinds of things. They had also undergone this therapy.
When the authorities actually tried to establish the facts of the case, to actually dig in the garden where the ritually executed cats had been buried, they found nothing. The court of appeal found that the case against this man relied solely on the very elaborate and exaggerated testimony of this woman based on memories that had been brought forward by her visits to the therapist.
I come to Bill C-46. I hope that all my colleagues will listen very carefully to what I have to say. If Bill C-46 goes forward as currently written, the two examples I cite, the couple who came to see me just in the last five weeks and this lawyer in B.C. would not have the opportunity to bring forward evidence of the therapy that the accuser underwent.
Section 278.3(4) says that if the accused wants records he must apply to the trial judge. Even before the trial judge can demand those records, according to the legislation the trial judge is not allowed to consider that the record being asked for by the accused relates to the medical or psychiatric treatment, therapy or counselling that the complainant has received or is receiving.
This legislation makes it impossible for the accused to get the relevant records or even discover the relevant records in a case of false memory syndrome.
The member for Calgary North put a lot of reliance in her remarks on the discretion of judges. I was very interested in her remarks. However, the problem is that the legislation does not give judges discretion. The legislation shuts the judge out of actually requesting the records that are relevant to the accused.
Let me just elaborate on that point a bit. I am going to repeat just a little bit. One must understand that the accused when he seeks the records has to apply to the judge, but the judge cannot agree to order the records on certain grounds. Listen to this. It is not grounds for the judge to ask for the record for the simple reason that the record exists. Just as an example, if one is accused as a result of false memory syndrome and one knows that the records exist, that is not good enough reason to ask for the records.
Second, it is not grounds to ask the judge to demand the records if the records relate to medical therapy. We have already dealt with that. If the complainant has undergone that therapy the accused is not allowed to obtain those records in defence.
Furthermore if the record relates to the reliability of the testimony of the complainant, that is also not reason to ask for the records. In other words, the judge cannot use that as grounds to demand the records.
Where someone is falsely accused by someone who has suffered from depression, the very essence of the defence is to question the reliability. But if the records cannot be obtained that demonstrate the person's reliability or lack of reliability, one cannot defend adequately. It is a major problem.
The judge is not allowed to seek records on the request of the accused if the record may reveal allegations of sexual abuse of the complainant by a person other than the accused. It is certainly not beyond the realm of possibility that a person who is basically sick has probably made accusations of sexual abuse against many people.
If there was a situation where as a result of therapy or counselling that a person disclosed they had been abused, not just by the father but by the cousin, the uncle and the brother, it would be very relevant information to appear at trial.
I stress that the accused is not allowed to know about this information because the judge cannot tell whether the information exists or does not exist. The judge cannot seek the information, cannot seek the records. We have to be very concerned about that clause in the legislation. We need to be very worried about it.
The problem is this. The situation with false memory syndrome is that the testimony of recovered memory through therapy has become widely discredited in the United States. All kinds of people who have been convicted on these charges are now being released from prison. It is recognized that it is not a very reliable source of testimony. Moreover, some states in the United States will not allow a prosecution based on recovered memories. However, the situation we will have in Canada in this legislation is that we are going in the opposite direction.
If this legislation goes through as presently drafted we will make it so easy, so possible, so absolute for people to make these charges based on what we think is false memory. In many instances, it is false memory. In fact, there was a study done in the United States which found that the majority of the instances were fabricated recollections.
This legislation, if it goes through as it stands, will send innocent people to jail, including my elderly couple. The reason they came before me was because he is afraid of being charged after this bill passes. He will not be able to defend himself.
I laud the intention of this legislation. I appreciate that we must do whatever we can do to protect the rights of the victim and to not require people to appear before the courts to disclose intimate details of their lives for frivolous or trivial reasons.
When it is a question of the accused being free or going to jail, when it becomes a question of the accused defending himself with all the freedom and power that a democratic society invests in the presumption of innocence, then it is not trivial at all to make sure that the records of the complainants are at least available to the judge.
This legislation could be fixed up enormously if this clause which puts all these barriers to what the judge can ask for was eliminated and it was simply a case where the accused could go to the judge and ask for records and the judge could vet those records. We must not attach strings to them.
I would like to comment on one other thing with respect to this legislation. It shows that it may be conceived, however well intended, in a way that does not truly reflect the high values we, as legislators, must hold toward the principles of the presumption of innocence and the right of the accused to a fair trial.
In clause 278.5(2) it says that in determining whether the judge should produce a record or not as a result of the request of the accused, the judge has to ask himself how deeply he will invade the privacy of the complainant and that kind of thing.
Here are three unusual things. According to the legislation, the judge has to also consider whether the production of the record would potentially prejudice the personal dignity and the right of privacy of any person to whom the record relates.
In other words, we have on one hand the accused fighting for his or her freedom and we have the judge having to consider, not the rights of the accused or the presumption of innocence or whether it is a fair trial or not, but the right to privacy or the dignity of the person making the accusation is going to be compromised in any way.
I submit that there is something wrong there because the fundamental job of the courts is the determination of guilt or innocence, not to worry about the sensibilities of any witness, for that matter, much less the person who is laying the complaint.
In this same clause the judge is also told he has to ask himself when he considers producing the records or not, whether society's interests in encouraging the reporting of sexual offences will be compromised. He is also told he has to consider society's interest in encouraging the obtaining of a treatment by complainants of sexual offences. In other words, he is asked to consider that which is not relevant to the trial at hand, that which is not relevant to the innocence or guilt of the person who is accused.
I do support in principle, but only in the broadest general sense, the idea that we must do what we can to protect the reputations of those people who find themselves the victims of sexual abuse. However, as legislators we must never forget that our primary obligation is to protect the fundamental rights, the fundamental liberties and the fundamental freedoms of all Canadians, especially those who are accused and before the courts.
