Gordon Kirkby

[Supply, February 13th, 1997]

Mr. Speaker, I am happy that the hon. member for Swift Current-Maple Creek-Assiniboia is defending the NDP in Saskatchewan. The Reform and the NDP in many ways seem to get along quite nicely.

He is decrying the fact that the federal government has spent $292 million, or whatever the figure is, on highways. I wonder where he would get the money, seeing as the election promise of the Reform Party is to cut the deficit to zero in three years. How would he come up with more money for highways?

[Excise Tax Act, February 11th, 1997]

Because you told us to.

[Excise Tax Act, February 10th, 1997]

Mr. Speaker, amnesties could be declared as part of the implementation of the firearms act and the new part of the Criminal Code. In 1992, for instance, an amnesty was successful in removing over 28,000 firearms and 700,000 rounds of ammunition. The declaration of amnesty, however, must be made with the support of provincial authorities and local police. An amnesty would be costly, as it would involve the manipulation of firearms and the issuance of receipts.

In the past, the purpose of amnesties under the Criminal Code was to encourage people to surrender unwanted firearms or ammunition without liability, whether they were lawfully or unlawfully held. The power to declare amnesties under the Criminal Code may be used in the future in the implementation of the new part of the code or the firearms act.

There are advantages and disadvantages to amnesties. The advantages are that amnesties have resulted in the turnover of numerous unwanted firearms. They allow people to turn over unwanted and potentially dangerous firearms. They reduce the number of unused firearms which could ultimately end up being stolen and in criminal hands. The disadvantages are that they can be expensive to administer and the guns must be carried manually. They require the participation and co-operation of police services and provincial authorities. The disposal of the firearms can be costly and problematic.

The firearms initiative is planned on a cost recovery basis and the impact of several factors, such as compensation, must be carefully considered before an amnesty is declared.

The new legislation already provides for transitional periods for individuals who will be able to apply for a licence and register their firearms.

There is no immediate need for an amnesty and officials from the department will monitor the implementation of the act and advise the minister accordingly should the need arise for an amnesty in the future.

[Criminal Code, February 4th, 1997]

Mr. Speaker, today in 1997 we are faced with yet another issue which threatens sexual offence victims and indeed every woman's confidence in the criminal justice system. We must take this opportunity to put the progressive reforms of our sexual offence laws back on track. We must take the opportunity to craft a law which articulates that both the complainant and the accused are worthy of the law's protection. Equality before the law and under the law must be more than rhetoric. Doing nothing will only reinforce the status quo which in many cases is inequality.

I should also point out that other jurisdictions are grappling with the same issues. This is not a uniquely Canadian problem. I am aware that the production of a variety of personal records of sexual offence victims has discouraged reporting and participation of victims in virtually all American states, in the United Kingdom, in Australia and in New Zealand. The approaches developed or proposed in other states to address the issue vary. Some have opted for statutory privileges which apply to specific communications and records. Others have opted for an application for the hearing procedure. What all have in common is the recognition that rights to privacy must be accommodated along with the right to full answer and defence, and that where records are at stake the accused must demonstrate the likely relevance of such records.

I believe that our legislative proposals address this complex issue in a fair and comprehensive manner. While we have learned from the experience of other jurisdictions, the proposals that are put forward are very uniquely Canadian.

Bill C-46 amendments will significantly improve the situation for complainants and witnesses of sexual offences. I emphasize that these amendments are indeed a package. There is no quick or simple solution.

In a nutshell, we are proposing a two stage test for the production of records which places the onus on the accused to establish the threshold of likely relevance of the records requested.

In addition, we are providing guidance to the courts in their consideration of the likely relevance by the articulation of several insufficient grounds for production. The legislation emphasizes that the trial judge must consider the charter rights of both the accused and the complainant or witness when determining whether to produce the records.

Strict procedures must be adhered to when seeking personal records. In the event that records are ultimately produced to the accused, appropriate safeguards for privacy are available.

A new form of subpoena for personal records will provide better information to the recipient of the subpoena. Important, we have included a preamble which explains why these reforms are essential and what our intention is as legislators.

While the legislation is comprehensive, I emphasize that it does not prohibit the production of records. It recognizes that both complainants of sexual offences and persons accused of sexual offences have rights guaranteed by the charter and that these rights,

while they may conflict, must be accommodated and reconciled to the greatest extent possible.

I would like to briefly highlight the key features of Bill C-46, worked on and brought forward by the Minister of Justice. I know that the legislative committee will carefully review the bill and I will be available to respond to any questions it may have in addition to questions in this House.

As mentioned, Bill C-46 includes a preamble. Until recently a preamble was considered quite a unique feature in criminal legislation. However, a preamble has proven to be a very effective way of Parliament's intention of reforming the law, in identifying the mischief that the law seeks to address and in guiding the interpretation of the legislation. The preamble in Bill C-46 does all this. It reiterates our concern about sexual violence and its impact and specifically acknowledges that the compelled production of records may deter complainants from reporting to police and/or from seeking treatments.

It also highlights that the rights guaranteed by our charter are guaranteed to all people, be they accused of criminal offences or complainants or witnesses in criminal proceedings.

Bill C-46 will amend the Criminal Code to provide that in sexual offence proceedings all applications by the accused for the production of records of a complainant or witness shall be determined by the trial judge in accordance with the new law and procedure.

A justice presiding at the preliminary inquiry will not have jurisdiction to determine an application for the production of records.

The Criminal Code will also set out a definition of records. The definition is general: any form of records that contain personal information for which there is a reasonable expectation of privacy. In addition, to avoid any disputes about whether a certain type of record is included, several specific records are referred to as examples. The definition is capable of embracing other types of personal records heretofore not sought.

Note that the definition specifically excludes records or notes made by the police in the course of their investigation or made by the crown in preparation of its case. Where personal records are sought in sexual offence proceedings, the accused must make an application to the trial judge with notice to the crown, the person in possession of the records, the record holder, and the complainant. This written application must set out the grounds or reasons relied upon to establish that the record sought is slightly relevant to an issue at trial or to the competence of a witness to testify.

The code will further provide that certain assertions made by the accused, unsupported by other information, will not meet the threshold of likely relevance which is necessary for a judge to review the records. The amendment will also guide the trial judge in determining likely relevance by directing the judge to consider, at the initial stage and again at the second stage, the salutary and deleterious effects of production on the accused's right to make a full answer and defence and on the right to privacy and equality of the complainant.

Several specific factors must be considered, including the probative value of the record, the nature and extent of the reasonable expectation of privacy in the record, whether production is based on a discriminatory belief or bias and society's interest in encouraging the reporting of sexual offences.

It is after this careful consideration that the judge determines whether he or she should review the records to determine whether they should be produced to the accused. The judge will conduct such a review in private. I fully appreciate that even production to the judge for the judge's eyes only has a devastating impact on complainants. That is why we have drafted a fairly high threshold which the accused must meet even before the judge will review the records.

At the second stage the trial judge will conduct the same exercise, i.e., determine if the record is likely relevant to an issue at trial or the competence of a witnesses to testify, and will consider the same factors including the charter rights of both the accused and the complainant.

This determination is based on the judge's own review of the records. It may be clear after such a review that the records are absolutely irrelevant. On the other hand the records or some part of them in the judge's view may likely be relevant. If so, the records will be produced to the accused.

Bill C-46 also comprehensively addresses the procedural aspects and it provides additional safeguards to protect privacy and the equality rights of the complainants.

For example, the application must be in writing and must set out the specific grounds relied on by the accused for production. Also, adequate notice, usually seven days, of the application must be provided to the record holder, crown, complainant, or witnesses and any person to whom the record relates.

A subpoena duces tecum in new form 16.1 must be served on the record holder along with the notice of motion. The hearing to determine whether the record should be produced to the judge for review will be in camera.

The complainant or witness, the record holder or any person to whom the record relates may appear at the application hearing and be heard, but they are not compellable witnesses by the crown or defence.

The judge must conduct any review of the records in private. The judge must provide reasons for the determination. Where the judge orders production to the accused, appropriate conditions on production must be considered. A ban on publication applies to the contents of the application and all other information at the voir dire and the judge's reasons.

Specific amendments are also proposed with respect to the issuance and form of the subpoena previously mentioned. For example, in sexual offence proceedings a subpoena which requests a witness to bring anything to court must be in a new form, form 16.1, which will provide detailed information to the recipients regarding their rights and obligations.

These changes to the issuance and form of the subpoena are an essential part of this package of amendments. Subpoenas are not statutory to be pulled from the shelf and served without any consideration of whether they should in fact be issued. The code already provides a test for determining whether the subpoena should be issued. The test is whether a person is likely to give material evidence. This is an adequate test and it will remain the test.

However a subpoena which directs the recipient to bring documents or material with them, referred to as a subpoena duces tecum, will be in a new form. That form will provide full information to the recipient regarding their obligations. They are required only to bring the material to court.

In sexual offence proceedings where the material requested by the subpoena is a record as defined in the Criminal Code, the recipient of the subpoena will be informed that the determination whether to produce these records must be made by the trial judge at the special hearing.

These amendments are designed to ensure that record holders who receive a subpoena do not assume that because the subpoena has been issued by a court official that they must automatically hand over the records requested. The records may not be relevant. It is up to the trial judge to decide whether anything should be produced. The subpoena is simply the mechanism to ensure the attendance of a person in court. These records cannot speak for themselves and it is the record holder's attendance that is requested by the subpoena. The code still requires however that in order to issue the subpoena the issuer must be satisfied that the person is likely to give material evidence.

Some critics of Bill C-46 contend that this legislation is simply a knee-jerk reaction to the supreme court's decision last December in O'Connor. This is not the case. The trend to seek out personal records emerged several years ago and was brought to the attention of the Minister of Justice in June 1994 when he met with national women's groups.

The minister launched an extensive consultation two years ago to fully explore the extent of the problem, its impact on sexual offence victims and possible solutions. The consultation process has included equality seeking women's groups, victim advocates, service providers, the defence bar, crown attorneys and the provincial attorneys general. The consultation process began before and continued after the supreme court's hearing and decision in O'Connor. So these reforms can hardly be said to be a simple knee-jerk reaction to that decision.

It may be recalled that in response to questions in this House over a year ago, the Minister of Justice indicated that he would legislate in this area and that he would not necessarily wait for a decision in the O'Connor case. In his capacity as the Attorney General of Canada, the minister intervened in the O'Connor case urging the courts to adopt a higher threshold for the production of records to the judge for review and urging other procedural protections. But even if the supreme court had completely adopted the argument of the federal government, in my view the legislation would still have been necessary.

The supreme court dealt with the case before it and the issues that arose in that particular case. In the consultation process it became clear to the Minister of Justice that there were several issues and concerns which the O'Connor decision would not comprehensively address.

While the minister could have pursued legislation before the supreme court rendered its decision in O'Connor, the minister thought it wise to consider the views of the supreme court. Following the release of the decision in O'Connor, the Minister of Justice very carefully analysed the judgments in relation to the legislative options then under consideration. Again the minister consulted with members of the Canadian Bar Association, the Criminal Lawyers Association, the Canadian Council of Criminal Defence Lawyers, women's groups, sexual assault service providers, academics and crown lawyers.

The Minister of Justice considered a wide range of views and advice. I would note that no single point of view has prevailed to the exclusion of any others. The Minister of Justice concluded that the legislation was still essential to restore the confidence of the people of Canada in the criminal justice system, to ensure that the equality guarantees in our charter were reflected in law and in practice, and to bring certainty to the law and procedure governing the production of records in sexual offence proceedings.

We have the mandate as legislators to craft a law which comprehensibly addresses an issue which is having a serious impact on victims, particularly women and children. Moreover we have a duty to do so rather than to rely on the common law to make incremental changes.

Some critics of Bill C-46 argue that the legislation steamrolls over the supreme court's decision in O'Connor. I do not agree. There are many similarities between this bill and the supreme court's decision. There are also significant differences. We have not set out to codify O'Connor but it has been carefully considered along with all of the other factors considered in crafting amendments.

I do not intend to respond to every anticipated criticism of this legislation. The legislative committee process will provide another opportunity for careful consideration of these amendments. However I would like to address one other concern.

Some critics contend that the proposed amendments which require the accused to establish the likely relevance of the records and which set out several assertions which on their own, in other words without any supporting information, are not sufficient to justify the likely relevance of criteria, place the accused in a catch 22 bind. They argue that the accused may not be able to establish how the records are likely relevant because he does not know what information is in the records. I do not accept this supposed catch 22 situation.

First of all, if the law does not impose a threshold of likely relevance on the production of records, then it would be open season on records. They would be simply available for the asking or requesting.

If an accused does in fact have a defence to the charges, for example if he did not have any contact with the complainant, if he believes the complainant consented and if the incident did not happen, then he may pursue that in a defence in the appropriate manner. But the accused should not 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 charges are withdrawn. I would also point out that we are talking about personal records which have been made by third parties, counsellors, teachers, doctors; third parties that have no obligation to provide these records to the accused.

This legislation only deals with the production of records. An accused cannot plunder through irrelevant personal records for titbits of information which can either be exploited or unhelpful, safely ignored. But nothing prevents the accused from calling as a witness a person who has material evidence and asking relevant questions.

As I indicated, the legislation sets out several assertions which the accused cannot rely on to establish the likely relevance of the records. The need for articulating these insufficient assertions was highlighted in the consultation process and goes right to the heart of why these amendments are necessary. The accused will not satisfy the likely relevance threshold for production to the trial judge for review by setting out any unsupported assertions of why the records are or may be relevant. The accused must establish how or why the records are likely relevant to an issue at trial. In some cases this may require the defence to reveal information pertaining to the proposed conduct of the defence.

In addition to the general requirement of likely relevance, the code will clarify that any one or combination of unsupported assertions will not meet the test. For example the accused cannot simply state that the records should be produced because records about the complainant exist, or that 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.

The articulation of insufficient grounds or assertions is intended to ensure that speculation will not found an application for records. Fishing expeditions will not be condoned by our law and neither should they be. If the legislation permitted an accused to guess why records may be relevant, then in every case records would be produced and this legislation would have accomplished nothing.

But note that these assertions are not impermissible per se where the accused can 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 do in fact disclose a prior inconsistent statement, the trial judge may determine that the records should be reviewed.

This legislation responds to a situation which threatens the confidence of the people of Canada, particularly women and children, in our criminal justice system and it responds in a fair and focused way. The legislation applies only in sexual offence proceedings. The legislation does not sacrifice the rights of the accused to benefit the victim, nor is it my intention nor the intention of the minister, nor is it the desire or the intention of victims to do this. Our intention is to ensure that the law protects equally all those who rely upon it.

The essence of the amendments I have described is that applications for personal records of complainants and witnesses in sexual offence proceedings must be carefully scrutinized by the trial judge. I am not suggesting that this will be a simple or speedy task for trial judges but it is a necessary task.

The amendments will not prohibit the production of records. Rather the amendments set out the test to determine whether and to what extent production should be ordered and to guide the courts in applying that test, requiring the courts to consider and balance the competing charter interests at both stages.

An accused person who can establish the need for relevant information in the records in accordance with the law and procedure will not be denied the records. The right to a full answer and defence has not been sacrificed.

The personal commitment of the Minister of Justice is to continue to examine the laws of Canada to ensure that they effectively protect the people of Canada and that they reflect fairness and balance in responding to the needs and concerns of all Canadians. This commitment is shared by all members of the government. Bill C-46 is yet another example of this commitment.

Bill C-46 is indeed another example of the tremendous achievement of the Minister of Justice to put forth real solutions to real problems. In the history of this Parliament it can be said with safety that no more significant amendments have been made to the criminal justice system to make our streets and homes safer than those which have been introduced by this Minister of Justice. In this regard I am very proud to offer my support to this legislation and I encourage others to do the same.

[Criminal Code, February 4th, 1997]

Mr. Speaker, it is my pleasure to submit to the House for second reading Bill C-46, an act to amend the Criminal Code regarding the production of personal records of complainants and witnesses in sexual offence proceedings.

This legislation, which the minister introduced last June, has been the focus of much media attention. The problem which the legislation addresses has also been thoroughly debated in the media and in Canadian courtrooms.

The amendments to the Criminal Code for which I am seeking support respond to a troubling and complex issue which is having an adverse effect on sexual offence victims, the majority of whom are women or children.

I know that members of the House are familiar with this issue. Their constituents have brought it to their attention and it has been subjected to questions in the House. I know all members share my concern. I am confident they will support these very essential measures.

Over the last several years defence counsel has increasingly sought access to the wide range of personal records of sexual offence complainants, the type of records one would expect to be private, including school records, medical, psychiatric counselling and other therapeutic records, employment records, Children's Aid Society records, journals and diaries. The list goes on.

In sexual offence prosecutions, more so than any other offence, the defence focuses on the credibility of the complainant. Sexual offences are unique. Usually there are no witnesses to the offence and often there are no observable signs of an offence having been committed. For many sexual offences the only element which distinguishes normal and acceptable sexual activity from a sexual offence is the absence of consent of one party.

Sexual offences are also unique in another way. They are surrounded by myths and stereotypes about the type of person who becomes a victim and why. Moreover, the consequences of a sexual offence are devastating and long lasting.

While the prosecution must prove every element of a sexual offence, including the absence of consent of the complainant, often the complainant's word pitted against the accused is the only evidence to establish this one essential element of the offence. Hence the defence of the accused will focus on the credibility of the complainant in most cases. The search for personal records has become the strategy to assist the defence in the impeachment of the complainant's credibility and reputation.

Consider the following scenario. A person is sexually assaulted and following the assault receives counselling from a sexual assault centre. The counsellor may take notes of the sessions where the complainant is distraught and full of self-doubt about why this

has happened. The notes are the perceptions or recollections of the counsellor. They are not verbatim transcripts of the conversation. They are not statements. Yet defence counsel may attempt to gain access to and explore those records, looking for perhaps what is in the view of the defence an inconsistent statement. Or perhaps the complainant has undergone therapy for depression or child sexual abuse long before the assault which is now subject to criminal charges.

These records may also be sought to suggest that the complainant's perceptions or recollections of the incident are confused. In other words, the suggestion is that the complainant who has received such counselling or therapy is less credible.

In the extensive consultations which led to this legislation the Minister of Justice was overwhelmed by the accounts from sexual assault service providers, sexual offence survivors and lawyers at the range of records sought, the reasons advanced for the records and the relative ease with which they have been produced to defence counsel. The most troubling aspect of the consultations has been the devastating consequences of the production of irrelevant personal records for the victim.

The minister was also troubled by the perception of victims and service providers about the insensitivity of the criminal justice system. They recounted several examples which caused them to believe that there is little point in participating as a witness in a sexual offence prosecution. For example, they referred the minister to an event in 1988 where defence counsel in the Ottawa area, attending a workshop on tips and strategies for sexual assault proceedings, were being advised to seek records, including Children's Aid Society records, medical, psychiatric, hospital and immigration records as part of a strategy "to whack the complainant hard at the preliminary inquiry".

This attack on the complainants was recommended so that either she would give up and ask the crown to withdraw the charges or in the event that she withstands this gruelling and embarrassing treatment to cause the lawyer to rethink the accused's defence.

This approach ignores the fact that the complainant is not supposed to be on trial and moreover trial by ordeal has never been part of the criminal justice system in Canada. Yet these ordeals continue to occur and may result in sexual offence victims deciding not to report offences or not to participate as witnesses.

The willy-nilly production of personal records to the accused is having a serious and devastating impact on sexual offence complainants and on record holders themselves. Some claimants will decide not to participate as witnesses in the prosecution. Some may decide not to report an offence to the police. Others may report to the police but forgo the counselling or treatment essential to their recovery and well-being due to fears that these personal records, whether generated before or after the offence, will not be kept private during the court process.

The impact is also experienced by record holders, including hospitals, sexual assault centres, social service agencies and doctors who are incurring substantial legal costs to appear in court to respond to subpoenas. In addition to the legal costs, such appearances take the record holder away from their day to day work of helping people, that is, doing what they ought to be doing. The very act of issuing a subpoena to a record holder cannot be ignored. Whether the records are even remotely relevant to the proceedings or not, the record holder must respond.

The consultation process also reveals situations where subpoenas for records were issued to the service providers who had never met, treated, or counselled the complainant at all. In other words, these subpoenas were simply fishing expeditions.

I am not suggesting that a person should not have an opportunity to pursue the best defence available and defence counsels do acknowledge that relevance is a factor in accessing information and records. However, relevance appears to take on different interpretations in sexual offence proceedings and does not appear to be a very significant hurdle to access to those records.

In describing the current situation that Bill C-46 will address, the minister has consistently referred to the impact on sexual offence victims in a generic way. However, let there be no mistake. We are talking about women and children. Our sexual offence laws and, indeed, all our laws apply equally to men and women in the sense that they are gender neutral. A man or woman can sexually assault another man, woman or child, but the overwhelming majority, that is 99 per cent, of sexual offence victims are women and children.

While the law is on its face gender neutral, when it comes to sexual offences the impact of the law is disproportionately felt by women and children. The production of personal records raises more than simply rights of privacy and the rights of full answer in defence. It raises equality issues and thus the solutions to this problem must squarely address these equality issues.

One of the most troubling aspects of the impact of the production of records is that it runs counter to the spirit of reform of our sexual assault laws which the federal government has been attempting for the past 20 years.

In the past, our laws have not adequately served victims of sexual offences. Before the substantive reforms to the sexual assault provisions of the code, in 1976 and later in 1983, the successful prosecution of the offence of rape was extremely difficult. The evidentiary provisions required the victim's evidence to be corroborated and left the victim's personal life, including sexual history and reputation, virtually an open book.

The reforms of 1983 attempted to eradicate long, outdated myths about sexual offence victims and their behaviour. However, despite the reforms of 1983, which repealed the old offences, including rape, and put in place the current sexual assault offences and which repealed the restrictive evidentiary provisions, attitudes about sexual offence victims have been slow to change.

Thus, it was necessary for further amendments in 1992 to restore the rape shield protections in the Criminal Code to safeguard the complainant's sexual history to as great an extent as possible without adversely affecting the rights of the accused to a fair trial.

Today we are faced with dealing with yet another issue which threatens sexual offence victims and indeed every woman's confidence in the criminal justice system. We must take this opportunity to put the progressive reforms of our sexual offence laws back on track. We must take the-

[Prisons And Reformatories Act, February 4th, 1997]

That is what you want.

[Judges Act, November 28th, 1996]

Madam Speaker, thank you for this opportunity to make a few comments and ask some questions of the hon. member for Vegreville with respect to Bill C-42.

This is certainly a great opportunity for Canada to participate in the international stage and once again show the leadership that Canada is known for. It is probably enforcing and assisting to enhance the role of the rule of law in the international forum. We know that it is out of respect for Canada's integrity, its peaceful nature and its reputation for fairness that it has been asked to participate at such a high level in prosecuting war crimes, war crimes that involve some of the most heinous and violent activity, activity which can only be viewed as an abomination. Certainly, right thinking people who view nations as having a responsibility to participate in enhancing this role and in bringing those to justice who have perpetrated these crimes would support participation.

The Reform Party is suggesting that there is a technical breach. There is not. It is quite clear that proper authorization was given to Madam Justice Arbour to participate in this forum. The purpose of this bill is to allow the United Nations to pay Madam Justice Arbour directly in order to allow compliance with United Nations rules. Clearly the steps which have been taken have been entirely appropriate in complying with the law and in changing it in order to facilitate the applicability of UN rules.

I put a question to hon. members of the Reform Party. When it comes to international activity, to helping other nations, to standing up for the rule of law, international fairness and morality, and to ensuring that we take a tough stance against violence in the international forum, why is it that every time we seek to engage in such noble purposes the Reform Party tries to undermine us by bringing forth erroneous objections? I would like to know why the Reform Party is stalling and filibustering when this activity is so important to Canada and its reputation.

[Judges Act, November 28th, 1996]

Madam Speaker, that was certainly a very eloquent, very refreshing, very exciting speech of the hon. member and certainly one that Canadians would appreciate.

Perhaps the hon. member could talk a bit about what could be the reason for this hesitancy on behalf of the Reform Party to participate in international tribunals, to take part in very just and worthy enterprises within the international community. Canada has a tremendous reputation in the international community for participating, for helping, for working hard to make sure that the rule of law is obeyed and enforced at all levels.

I wonder if the hon. member could tell us why the Reform Party is so reluctant to participate in these very noble endeavours.

[Judges Act, November 28th, 1996]

Who was that?

[Judges Act, November 28th, 1996]

What does this have to do with the Judges Act?