Mr. Speaker, I am pleased to have the opportunity to participate in this debate. Over the last few weeks the justice committee, which I chair, has been hearing a series of witnesses in relation to the subject matter of Bill C-46. The committee will continue to hold hearings on the bill when and if it is referred to it for consideration.
Over this period of time committee members have heard a great many witnesses on all sides of the debate, witnesses who support the bill and witnesses who do not and who have concerns about it. The committee hearings have been open and fair and have given us an opportunity to now reflect on what, if any, amendments should be brought forward.
We have heard from witnesses representing sexual assault crisis centres, from victims, from defence lawyers and from a group that purports to believe in the existence of something called recovered memory syndrome or false memory syndrome. I will talk about this a little more later in the debate. Basically, we have had a very broad look at all of the issues which this draft legislation has stimulated.
I believe several things have been lost in this debate. One is the fact that nothing in Bill C-46 prohibits the production of records. In fact, these amendments make it clear that a trial judge has the jurisdiction to order a third party to produce records to an accused.
I am speaking of records that are in the possession of a third party which relate to personal information about the victim in the case. The bill makes it very clear that a judge has the power to order that third party to produce those records. All the bill is doing is setting out the criteria on which such an order will go forward.
In order to do so the law lays down the ground rules and demands that the accused establish how the records that are requested are likely relevant to an issue at trial. The accused cannot simply speculate, for instance, on how those records might be relevant. The accused has to offer more than that. He or she must set out the grounds on which he or she is relying to establish how the rules are likely relevant.
These amendments clarify that certain assertions are not enough to pass the initial hurdle. An assertion in and of itself is nothing
more than an unsupported statement. An accused cannot simply state "I need the medical records of the complainant because they might be helpful". In fact, the accused has to take it a step further than that.
Some critics contend that this places the accused in a catch-22 situation. They argue that the accused may not be able to establish how the records are likely relevant because the accused does not know what information is in the records.
A two-step process is required. First, the accused has to establish the likely relevance of the records. Second, several of these assertions I am talking about on their own, without any supporting information, are not sufficient to demonstrate the likelihood of the relevance of the records. That requires the accused simply to go a step beyond making the assertion.
I do not accept that this is a catch-22 situation. First, if the law does not impose some sort of threshold of likely relevance on the production of records, then it would be open season on those records. They would be available simply by the accused requesting them. In my view, that is not what Canadians want and it is not necessary for the accused to have full answer in defence.
If an accused does in fact have a defence to the charges, for instance, if he did not have contact with the complainant, if he believes the complainant consented, if he asserts that the incident did not happen, he can pursue that defence in an appropriate manner. But the accused should not, in my view, have carte blanche to peruse records in search of a defence in the form of impeaching the complainant's character or credibility or by intimidating the complainant to such an extent that the charges are withdrawn.
I would also point out that we are talking about personal records which have been made by third parties who have come in contact with the complainant. These third parties are counsellors, teachers, doctors, who have no obligation to provide these records to the accused, except through this process.
As I indicated, the legislation sets out several assertions which the accused cannot rely on solely to establish the likely relevance of the record. The need for articulating these insufficient assertions was highlighted in the consultation process and go right to the heart of why these amendments are necessary.
The accused will not satisfy the likely relevance threshold for production to a trial judge for review by setting out any unsupported assertions of why the records are or may be relevant. The accused must set out the grounds on which he or she relies to show how or why the records are likely relevant to an issue at trial.
The accused cannot simply state that records should be produced because the records about the complainant merely exist, or because they may disclose a prior inconsistent statement, or they may relate to the credibility of the complainant or witness, or may reveal allegations of sexual abuse by others. These are insufficient grounds. These are simply assertions which are intended to ensure that speculation will not found an application for records. Fishing expeditions are not going to be condoned by our law in this area. If the legislation permitted an accused to guess why records may be relevant, then in every case records would be produced and the legislation would have accomplished nothing.
The assertions are not impermissible per se. The accused may still be able to offer some support for the assertion. For example, if the accused can establish to the satisfaction of the trial judge that the records are likely relevant because they disclose a prior inconsistent statement, the trial judge can determine that the record should be reviewed.
The defence is not precluded from asserting the existence of a prior inconsistent statement. Nor is the defence precluded from cross-examining on that prior inconsistent statement because a trial judge under the circumstances could have the records produced.
One speaker in the House raised the issue of records of therapy resulting in so-called recovered memories. It has been suggested that such records would be prohibited if the legislation were passed. This is simply not true. That view is based on a misunderstanding of the legislation and how it will work.
Some criticism arises from misinterpreting a single provision without referring to related provisions or to the whole scheme of the bill. A previous speaker focused on one provision of the proposed amendments, subsection 278.3(4) that sets out a list of assertions which on their own will not establish the likely relevance of records. That is what we were just talking about. The member also suggested that the list made it impossible for an accused to defend himself particularly where allegations relate to sexual abuse occurring a long time ago but only recently reported because of recovered memory.
There is a lot of controversy about so-called recovered or false memories. Psychiatric and health experts cannot agree on how these memories are held, repressed, recovered or suggested. Bill C-46 is not intended to resolve the controversy. Nor is it intended even to wade into it.
It is not intended to prohibit records relating to the issue. It will not give any special treatment to records where they are alleged to relate to memory. Just like any other records sought, the likely relevance of the particular record has to be established by the accused.
An earlier speaker may have left the House with the impression that countless Canadians are being charged with sexual offences based on allegations arising after controversial treatment involving memory recovery techniques. This is simply not true. There have been some cases but courts have been very careful to recognize the frailties of such evidence.
It is important not to lose sight of the fact that whatever we do in terms of evidentiary law the crown still has the burden of proving
every element of a criminal offence beyond a reasonable doubt. This is a high standard and often an insurmountable standard in sexual offences, particularly where the offences have an historic quality in that they happened a long time ago.
In addition it does not place much faith in crown attorneys. Charges are not laid willy-nilly simply because somebody makes an assertion. The crown has to be of the view there is sufficient evidence to support the charge. We should not assume that people can simply say they have been abused or assaulted and charges will be laid.
The records of a therapist or a psychiatrist relating to memory retrieval may however be the subject of an application for the production of records. To obtain the records the accused must establish, simply to the satisfaction of the judge as I said earlier, that the records are likely relevant to an issue at trial or to the competence of a witness to testify.
Clearly an accused cannot assert that medical, therapeutic or psychiatric records are needed because they can reveal a memory has been recovered or is false. These issues do not arise in all cases. If the allegations relate to events which occurred long ago and were only disclosed after therapy, an issue at trial will be the complainant's ability to recall the events. There is no question about it. In such cases the accused can apply for production of records by setting out grounds for production rather than bear unsupported assertions.
People forget that there are all sorts of opportunities for disclosure. The crown has an obligation to give full disclosure of the complainant's statement. In addition there is generally in these cases a preliminary hearing which will allow the defence, either by calling his or her own witnesses at the preliminary hearing or through the crown's witnesses, to get at the basis of some of these assertions.
The accused can lay the necessary evidentiary foundation for the application by referring at a preliminary hearing to evidence from doctors, other experts or the complainant regarding the nature of therapy or treatment. Let us remember that nothing in Bill C-46 prevents the accused from calling as a witness any person who is likely to give material evidence and asking them relevant questions. An accused can still call as a witness a doctor who treated the complainant. An accused can also cross-examine the complainant about her recall of events and the nature of therapy during the preliminary inquiry and at trial.
Where the issue of recovered memory is a real issue and the accused can point to information from the preliminary or from affidavits of other experts to support the assertion I anticipate that the records may be relevant to the issue. Then the trial judge can determine he should review the records after taking into account the other factors the bill requires him to consider. The list of insufficient grounds in the bill would never prohibit a judge from reviewing records where the accused has supported his assertion of how the records are relevant.
Bill C-46 demands only that applications for personal records be carefully scrutinized by the trial judge after the accused has established that the records are relevant. The bill makes it clear that any unsupported assertion by the accused will not be enough to meet the threshold of likely evidence. While the bill lists assertions which are insufficient on their own, these are by way of example and to highlight some of the reasons that may be cited when speculating about the contents of records. However the underlying rule is that the accused must always set out the grounds to establish how the records are likely relevant. The underlying rule applies to all records covered by the definition, including records of therapy relating to memory.
Bill C-46 addresses the issue of the production of records in sexual offence proceedings in a fair and balanced manner. The bill will not prohibit the production of records but will ensure that the only records produced are those which are likely to be relevant. It will ensure that judges carefully consider the rights of both the accused and the complainant. The trend by defence council to seek personal records to attack credibility is not a uniquely Canadian problem. I am aware the same trend has emerged in virtually all American states, in the United Kingdom, in Australia and in New Zealand.
The solutions proposed in other states vary. Some have opted for statutory privileges which apply to specific communications and records. We decided not to do that. Others have opted for an application for production model. What all have in common is the recognition that rights to privacy must be accommodated along with the right to a full answer in defence and where personal records are at stake the accused must demonstrate their likely relevance.
Our legislative proposals address the problem in a fair, balanced and comprehensive manner. I emphasize that the bill will not prohibit the production of records. Records can still be produced. I also emphasize that the bill will not prohibit the calling of witnesses who may have information relevant to those records. Those witnesses are still compellable. It ensures that the only records produced are those that are likely relevant. It ensures that judges carefully consider the rights of both the accused and the complainant before such records are produced.