Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 19 - Evidence for February 2, 2011
OTTAWA, Wednesday, February 2, 2011
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:20 p.m. to study the provisions and operation of the Act to amend the Criminal Code (production of records in sexual offence proceedings), S.C. 1997, c. 30.
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: Welcome. I hope everyone had a few good weeks off. Today we resume our business; we will begin by conducting a study on the provisions and operations of the Act to amend the Criminal Code (production of records in sexual offence proceedings), S.C. 1997, c. 30.
[English]
This bill was passed in 1997, and one of its sections calls for a parliamentary review of its operation. We, as a Parliament collectively, are a bit late getting to it, but better late than never.
As our first witnesses for this study, we are delighted to have Ms. Catherine Kane, a familiar witness before this committee, with us this afternoon. Ms. Kane is Director General and Senior General Counsel, Criminal Law Policy Section, at the Department of Justice Canada. We also have Susan McDonald, Principal Researcher, Research and Statistics Division. We are delighted to have you both.
Colleagues, as some of you may know, we received quite a thick package of documentation from Justice Canada about this bill and for our study. We are grateful for the material. Unfortunately, it only arrived at about 2:30 p.m., so we are still attempting to have it photocopied, which is why it is not available for you now at the beginning of these proceedings. We will get the material to you as quickly as we can. I apologize for that.
As a note to Justice Canada, we love your material and would love it maybe even more if it could come earlier.
Ms. Kane, I believe you have an opening statement.
[Translation]
Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: Madam Chair, I am pleased to be here today as the committee conducts its review of the amendments made to the Criminal Code in 1997 to address the production of records in sexual offence proceedings. I was actively involved in the development of that legislation and in other legislation regarding sexual offences over the last 25 years that sought to address the role of complainants of sexual offences and the role of victims of other crimes in the criminal justice system while respecting the rights of accused persons.
[English]
As with many law reforms, some period of time is needed to observe the trends of the impact of the law and for the case law to develop. With respect to these amendments, which codified a regime or process for the production of records in sexual offence proceedings, constitutional challenges were launched almost immediately after the law was proclaimed in force in May, 1997.
One of the first was in R. v. Mills. The notice of constitutional challenge was filed at the trial court on May 14, 1997, two days after the law came into force. In 1999, the Supreme Court of Canada ultimately upheld the constitutionality of these provisions as a result of the appeal taken from the ruling in the Mills case. However, until the Supreme Court of Canada decision in Mills, there were several challenges with resulting uncertainty about the law. This was resolved by Mills, and the courts have subsequently been guided by Mills in their application of the regime governing the production of records.
I propose to provide a brief overview of the act that your committee is reviewing and provide some additional information about the evolution of the sexual offence laws and these reforms in particular. In addition, I will briefly describe the Supreme Court of Canada's consideration of these code provisions and refer to some of the case law since the Mills decision.
My colleague will describe the research undertaken by the Department of Justice Canada and the findings from that research. We will both be pleased to answer any questions you might have. Given that your committee will hear other witnesses over the course of the study, we would both be available to return at the conclusion of the study to answer any questions that arise in the course of the review if that would be helpful to the committee.
I hope I do not go on too long. This has been retrospective for me because I worked on these provisions in the past, and I will probably have more to say. I will have to be careful of the time.
The Chair: We might have to invite you back.
Ms. Kane: As senators know, the criminal law has evolved over the last 30 years through a range of Criminal Code reforms, through the case law and also through a culture change in the criminal justice system. While time does not permit a complete chronology of these reforms, it is important to note that the sexual offence reforms that I will refer to were not in isolation. The Criminal Code has modernized sexual offences, enacted child-specific sexual offences, addressed child pornography, addressed the role of victims of crime and has enacted several testimonial aid provisions, including, for example, publication bans and other provisions to protect the privacy interests of victims and witnesses.
In addition, the Charter jurisprudence has highlighted that the rights of accused persons and others, including victims of crime, might conflict but must be balanced and accommodated to the extent possible. For victims and witnesses — and sexual offence complainants, in particular — the recognition of the rights and the need to balance these rights has been an acknowledgement that they do, in fact, have a role in the criminal justice system.
The Criminal Code was amended in 1983 to replace outdated sexual offences of rape, indecent assault male, indecent assault female and others with the current regime in the Criminal Code of a three-level sexual assault offence. In addition, the antiquated evidentiary provisions were abrogated.
Sexual assault is not defined in the Criminal Code but has been interpreted in the case law as an assault of a sexual nature such that, viewed objectively, the sexual integrity of the complainant is violated. Non-consensual activity ranging from fondling or kissing to that which involves full penetration constitutes a sexual assault. In many cases, the issue at play in a trial is the consent. The Criminal Code provides that, in general, a person under 16 years of age cannot consent to any form of sexual activity.
In addition to the sexual assault offences, the Criminal Code also provides specific offences where a child is the victim; for example, sexual interference, invitation to sexual touching, sexual exploitation and sexual exploitation of a person with a disability.
In 1992, amendments were made to the Criminal Code to clarify the admissibility of evidence of a complainant's other sexual activity, also to define "consent" and to restrict the defence of honest belief in consent. These reforms came after a case referred to as R. v. Seaboyer, which was a Supreme Court of Canada case in 1991. The reforms in 1992 were criticized as being different from Seaboyer and therefore perhaps being unconstitutional. However, the court later found that those reforms were indeed constitutional.
At the time the government was developing the reforms to govern evidence of past sexual history, several service providers, women's groups and others brought to the attention of the government the issue of the production of records. However, the bill in 1992 did not deal with the production of records; it focused instead on admissibility of evidence of other sexual activity.
Shortly following that legislation, the issue of production of records was raised. These were situations where service providers, doctors and others who held records about a complainant in a sexual offence were being asked to produce those records to the defence. They were being served with subpoenas. Many, because they were not aware of their obligations, would provide those records to the defence in advance. The defence would look at those records and then determine if there was anything in those records that they wanted to seek to have admitted at trial. Various procedures were springing up, and there was a great deal of confusion about whether those records should be provided by the third-party record holder and how they should be provided.
Several cases were winding their way through the courts. One of those was the R. v. O'Connor case, which was ultimately decided by the Supreme Court of Canada. At the same time as the O'Connor case was working its way through the courts, the government was consulting broadly with women's groups, record holders, defence counsel, our provincial and territorial colleagues and others about the practices and were developing some options for reform. However, those options for reform did not proceed until after the O'Connor case had been delivered and the government had the benefit of being informed by that case.
In O'Connor, the court outlined the principles and guidelines applicable to any record in the hands of a third party in which a reasonable expectation of privacy lies. They also set up a procedure for production and admittance of private records in the hands of third parties in court.
However, a lot of uncertainty about that decision remained; it left several questions unanswered, and there was a call for reform to clarify the law and to bring about other provisions that would protect the complainant's records to a greater extent.
In June 1996, the government introduced Bill C-46. Bill C-46 did not mirror O'Connor exactly, but it was certainly guided by both the majority decision in O'Connor and the minority. That bill was extensively reviewed by a committee in the other place, and many witnesses appeared. It was reviewed by this committee as well.
Before noting some of the differences between Bill C-46, which became the act you are studying, and the O'Connor decision, I will briefly outline what some of those reforms were and the highlights of that legislation.
The amending bill included a preamble, which was meant to set out the need for the legislation to guide in its interpretation. It highlighted that the bill was intended to reflect a balancing of the Charter rights; it noted the effect that compelled production of records has on complainants and record holders and the need to respect both the rights of complainants and accused persons.
The bill provided for a two-stage application process. First, the accused seeking access to records had to bring an application to the trial judge — not to a judge at a preliminary inquiry but to the trial. At the first stage, the accused was required to establish that the records contained information likely relevant to an issue at trial or to the competence of a witness to testify. The accused was required to offer a realistic explanation of why he or she believed the information would be likely relevant and a simple assertion or speculation about why that might not meet the threshold.
The judge was required to do a balancing act at that first stage, and to determine what the reasonable expectation for privacy was in those records and the effect of the dignity, privacy and security on any person to whom the record relates, among other factors. After considering all the factors, the judge had to be satisfied that the record was likely relevant and that the production was necessary in the interests of justice.
Once that had been determined, the judge would review the records in camera and then would engage in the same process again to determine if those records should be provided to the accused. However, at the second stage, the judge had the benefit of looking at the records. If the judge determined that the accused should be provided with the records, the judge could determine if it was all or part of the records, if any part should be excised and if any condition should be imposed on the production, such as that no further copies be made, that they should not be shared with anyone else and those types of conditions. Only the records that were considered to be likely relevant would be produced.
Other additional safeguards were also included in the legislation. The application process made it clear that the accused had to make an application in writing. In addition, a new form of subpoena was provided in the Criminal Code. The person who was being served with a subpoena, the record holder, was also informed by way of a notice that he or she was under no obligation to provide those records until there had been a judicial determination. The record holder was given other information about the process and what was included in this regime, what type of records were covered, and so on.
This was meant to avoid the situations that record holders had faced where, in receipt of a document such as a subpoena, they felt compelled to provide the records. Now they had the information that they were to hang on to the records until the judge decided what to do with them.
The hearings were to be in camera. As I noted, conditions could be imposed on production. There was a requirement that nothing in the application or the information provided at the hearing could be published or broadcast. The legislation also carefully defined the records that were to be included in the regime and made it clear that we were only talking about sexual offence proceedings.
While there were some differences, there were also some similarities with the O'Connor regime. Both provided for a two-step process; both put the onus clearly on the accused to establish that the records were likely relevant.
The differences were several as well. In particular, the code provisions set out the type of records covered by the regime. They made it clear that it only applied to records in sexual offence proceedings. The Criminal Code provisions also made it clear that only the trial judge could make these determinations. The Criminal Code provided that certain assertions on their own were not sufficient to ground an application; and again, several safeguards were set out in the Criminal Code.
Another significant difference is that the Criminal Code provided that where those records had come into the possession of the Crown, the Crown was obligated to make it known to the accused that they held those records but was not obligated to hand them over as part of the disclosure package. The same regime would apply; the accused was required to bring an application and show how the records were likely relevant. Therefore, they were protected if the Crown held those records because the complainant had inadvertently provided them to the Crown for example.
As I noted, immediately following the enactment of the legislation in May of that year, there were constitutional challenges and the law again came into this period of uncertainty. Mills was the case that ended up in the Supreme Court of Canada. The Mills case was first heard in the Alberta Court of Queen's Bench.
On the opening day of the trial, the trial judge advised Mr. Mills, because he was seeking an application for production, that the application would be governed by the new regime, and the notice of constitutional question was immediately filed. In that case, at the trial level, the court in Alberta held that the provisions were unconstitutional and that they could not be saved under section 1.
The appeal was then brought immediately to the Supreme Court of Canada as an interlocutory appeal. The judgment was issued in December, 1999. In that intervening period, there were other constitutional challenges and courts determined the issues in various ways. However, in a nutshell, Mills held that the regime did not violate the Charter.
The court held that although the procedure governing the production of private records set outside in this legislation differed from that set out in the O'Connor regime, it would not necessarily follow that it was unconstitutional. In summary, the court examined each aspect of the production regime and held that the accused's right to make full answer and defence must be understood in light of other principles of fundamental justice that may embrace interests and perspectives beyond those of the accused; and one of these is the complainant's privacy in his or her records.
The court also found that the definition of "records" in the legislation was not overly broad and that the legislation only applies to records where there is a reasonable expectation of privacy. The court also found that the mere fact that the Criminal Code prevents the automatic disclosure of all relevant and non-privileged information in the possession of the Crown does not deprive the accused of his right to make full answer and defence.
In terms of the test for the judge to produce to him or herself or to produce to the accused, which requires that the judge determine that production is necessary in the interests of justice, the court held that the judge need not engage in a conclusive and in-depth analysis of each of the factors that had been set out in the Criminal Code, that the provision merely requires that the judge take these factors into account.
Mills continues to be the case that has guided other courts since 1999. It has been quite clear that Mills is what governs production of records in sexual offence proceedings; in non-sexual offence proceedings, the O'Connor regime governs.
In our view, the success of the Criminal Code provisions governing the production of records is not measured by whether or not records are withheld from a judge and whether the complainant's privacy is fully protected or whether records are produced to the accused, but rather that the court relies on this process, carefully scrutinizes the records, balances the factors to be taken into account and weighs and balances the competing rights at stake in making these determinations.
The review of the reported case law since then seems to indicate that that is exactly what is happening. The courts are considering the provisions as set out and coming to determinations taking into account the competing factors.
A few cases may be worth noting. Early on the Ontario Court of Appeal in R. v. Batte noted that the standard of likely relevance is a fairly high standard at the first test for production to the judge, and that anything less would not do the regime justice. In R. v. Shearing, another Supreme Court of Canada case, they made it clear that this regime does not apply where those records are already in the possession of the accused, where they found their way into the accused's hands by some other route, that the regime in section 278 relates to the production of records, not the admissibility of those records.
The Crown's possession has been an issue in several cases, but the Mills regime has made it clear that turning records over to the police or the Crown with knowledge of the law's protections and the consequences of waiving these protections would constitute an express waiver of the provisions. However, something short of an express waiver will still protect those records in the hands of the accused.
In conclusion, I would also note that the Department of Justice Canada, in addition to actively following up on research on these reforms, has also encouraged a variety of training and awareness-raising about the impact of sexual offences through the use of the victims' fund. Several projects have been funded over the years to permit sexual assault centres to provide more information to complainants and others, and to purchase testimonial aids for courthouses and so on.
A whole variety, a range of initiatives, may be taken, relying on the victims' fund to raise awareness and to assist service providers to assist victims, not just victims of sexual assault but all victims. I will end there and turn it over to Ms. McDonald and be ready to take questions.
The Chair: I have let you go on, but since this is a new topic for most members of the committee, I thought it was important to have that background.
Susan McDonald, Principal Researcher, Research and Statistics Division, Department of Justice Canada: As Ms. Kane indicated, I am here today in my role as principal researcher with the research and statistics division of the Department of Justice. I am a lawyer and hold a PhD in adult education. I have been working on issues around victims of crime for the past 15 years in various capacities.
In the next few minutes, I will provide you with a brief overview of what the department's research has found. I urge you, as we walk through this and look specifically at the third-party records application provisions, to consider this also in the light of the criminal justice system's response to sexual assault and other sexual offences.
In anticipation of the review of Bill C-46, the department undertook two specific studies. I understand that you have only been provided with some of the documents and not all of them. It is not essential to have those documents before you as I go through my presentation, and some of them are lengthy in any case and can be referred to at a later point.
The two studies, specifically, were the post-Mills case law review that was circulated by the clerk earlier, as well as a key informant study, that is Annex A. This was a qualitative study involving interviews with a range of criminal justice players, as well as third-party record holders.
Also on our list of documents is the survey of sexual assault survivors. This was research by way of a survey completed with 102 survivors of sexual assault in 1998, so right in the time period after the coming into force of Bill C- 46 and the Mills case.
This was not provided to you, but we have an excellent report by Professor Jamie Cameron where she traces the evolution of victim privacy as a Charter right. I refer you to chapter 3, where she goes through the trilogy of cases to which Ms. Kane has alluded.
In addition, we have an article on research that we undertook on the founding of sexual assault reports. This looks at how police categorize sexual assaults that come to their attention. This is within the context of the degree to which complainants feel they are being believed by the police, which is often the entry point in the criminal justice system.
Annex B has a research note based on current research that we are doing. In 2009, we completed 231 interviews with male and female survivors of sexual abuse and sexual assault. We are currently analyzing that data and have prepared for you a short research note that looks specifically at the questions around reporting and records production.
I will try to respond to four questions the first being how many section 278 applications are made in a given time period, and what the results are of these applications; and it is really just a brief overview.
We have looked to case law as a data source both from Quicklaw or other sources, and we know it is limited because its coverage is not comprehensive. We also know that, while decisions are recorded, they are not all reported.
Since November 1999 and Mills, we have approximately — and I say "approximately" because some cases come in and go out — 139 cases that look at third-party records applications. In the first few years, the years covered by this review, a quarter of the cases were at the appellate level. You can understand from that that there was still some interpretation of the law, and more cases were being appealed. This changed in the following period, 2003 onward, when there were only five appellate-level cases.
Ontario has the most cases: not quite half in the first period and about half in the second period. In the North, there are only a few cases, which our colleagues from the Public Prosecution Service of Canada will speak to in the next hour.
In the first period, production to the judge was ordered in 27 of 42 cases, and then partial or full disclosure in 14 of those cases. Records were ordered disclosed to defence in approximately one third of all the cases for published decisions.
In the second period, it is approximately the same proportion. This study looked at cases post-Mills, so after the Mills decision was released to June 30, 2003. This is on your list of documents. Second is the review that we have just done in the department, with no written documentation.
Of the 80 cases examined, 23 had disclosure to the defence, so approximately 29 per cent of the cases had some disclosure. We have noticed from the decisions that the judges are very carefully laying out what should be disclosed to the defence and the conditions. All the records were disclosed to the defence in only six cases. There were 17 cases that had partial disclosure, which could be one paragraph or four lines, for example, and the judge was, in all cases, very careful to set out clearly the conditions and what parts were to be excised or redacted.
Looking at the social science research, we know that the Canadian Centre for Justice Statistics will be here tomorrow to present on statistics.
The Chair: Ms. McDonald, I hate to say this, but our time is limited. If you could barrel through there, that would be very good. I know you are doing your best to do that.
Ms. McDonald: Do I have two more minutes?
The Chair: You have five more minutes.
Ms. McDonald: Thank you. We know in fiscal year 2008-09, from the adult criminal court data, there were a total of over 6,000 cases before adult court. During that time, 14 applications were heard that have published decisions. You can see that, from what we know from the published case law, there are not a great number.
In the key informants study, which is Annex A, opinion was divided among the key informants as to whether applications were standard practice. From the defence perspective, they found the applications were expensive, cumbersome and time consuming, so they indicated that they would only make an application if the client had money or you were absolutely sure about the records.
Do complainants have access to independent counsel through either legal aid or provincial funding? We noted from the case law, in the cases with independent counsel, which was approximately half the cases, that funding is available in Manitoba, British Columbia, Ontario, Prince Edward Island and Nova Scotia. Manitoba and B.C. are not tied to financial eligibility. Cases vary in that Prince Edward Island had one case last year and B.C. had eight. From the key informant study, you will notice that independent counsel did note that complainants had found it difficult to apply for legal aid.
In terms of reporting practices, our colleagues from the Canadian Centre for Justice Statistics, CCJS, will speak to reasons for non-reporting tomorrow, relying on the general social survey on victimization, which is our only source of national representative self-reported victimization data. In sexual assault cases, 64 per cent of respondents said that it was not important enough or that it was a personal matter; 62 per cent dealt with the incident in another way and did not want to get involved with police.
The other studies by the department all asked questions about reasons for reporting and non-reporting. This is where it is important to look at the criminal justice system in the broader context. Women and men cite a number of different reasons for not reporting sexual assault and other sexual offences to police: fear of not being believed; no support from family or friends; and, especially in cases of child sexual abuse, they talk about not knowing that they could report or that they thought this was "normal."
Therefore, the reasons for not reporting are complex and varied. They depend on the individual; the support they have amongst their family, friends and the community; and what services are available.
To conclude, I want to mention a couple of other perceptions of the third-party records provisions that we know of from the research. The key informant study is important because it presents a broad range of views, including those of defence, judges, Crown, independent counsel and third-party record holders, so not just sexual assault centres — a doctor was interviewed. While the perspectives vary, overall there was a general acceptance and a high regard for the goal of the legislation to balance privacy, equality and the right to make full answer and defence. All the participants noted that legislation alone cannot succeed in achieving the goal of encouraging reporting.
Finally, I would like to state that we know from our current research — these most recent interviews as well as the 2000 survey — that survivors do not seem to have a high level of awareness or understanding about records, the records provisions in particular, or about what will happen in the criminal justice system overall. That indicates that there is still a strong need for good information to at least address their concerns and explain very carefully what will happen and what could happen.
The Chair: It is so frustrating to ask you to summarize all those years of work in such a short time, but we are grateful to you. The documents are of key importance.
Senator Wallace: Thank you very much for your presentations. That is a lot to absorb, and we have not had the chance to go through all the written materials you have given us. Thank you; your summary was very good.
I would like to start with what I understand was the overall purpose of Bill C-46.
The Chair: Senator Wallace, I will interrupt to state for the record that that was the bill's number in the past. There have been other bills with the number in between. When you talk about Bill C-46, you are talking about the sexual offence records bill.
Senator Wallace: Exactly.
My understanding is that the purpose of the bill at that time was to limit the accused's access to records held by third parties and, in the process, better protect witnesses and complainants who may come forward in sexual offence cases. Therefore, it was to improve that situation.
From any of the studies you have done or case law you have reviewed, what impact has it had on those who have been subject to sexual assaults? Have more people tended to come forward? Are witnesses seemingly more prepared to offer up evidence? Has it helped?
Ms. McDonald: That is a difficult question to answer. We know the reporting rate for sexual assault and sexual offences is not increasing. We know that from the statistics, and you will hear from colleagues tomorrow about those and how they determine that.
From the interviews, we know there does not seem to be high levels of awareness around the records provisions or how the criminal justice system works. It was a little surprising because we recruited our participants for these interviews through sexual assault centres where at least there is access to some information. However, in our current interviews, we found that of eight individuals who indicated that they had gone through records production, half of them could not tell what had happened; they did not know whether the records had been released. Therefore, while they were talking about how it made them feel like their privacy was being invaded, et cetera, those records might not have been released to the defence. In other words, they might not have actually understood the benefits that these provisions could provide.
Lack of awareness around that was a comment echoed by sexual assault centres and independent counsel as well. Thus, for these provisions to have an effect on encouraging reporting, I do not see how they could because the people do not know about them.
Senator Wallace: Right. Again, were you involved in many studies that would have compared the situation prior to this bill in 1997? Has this had the effect of reducing an accused's access to records? It would seem that it should, but has that been the case?
Ms. McDonald: It would seem from the case law it has. We could go back and look at case law before 1997. It would seem that because we now have a structure in place, a framework that provides for the records to be scrutinized before they are released, and then they are only released in cases where the standard of relevance is high, which stems from the Batte decision. It is definitely restricting access.
Senator Wallace: However, there is not a basis we can look to.
A judge, in considering whether to provide access to these records, is balancing the rights of the accused and the rights of witnesses and complainants. In subsection 278.5(2), the eight factors are laid out. They strike me as being very broad. It seems it would be very subjective for a judge to apply those.
I am wondering whether there have been any studies done to determine consistency from court to court in applying those factors.
Ms. Kane: As in any case law decision, there is not always the level of specificity in terms of turning one's mind to factor A, factor B, et cetera. The Mills Supreme Court of Canada case indicated it was sufficient if the judge considered and took into account those factors more holistically. They are not required to say in detail that they have taken the prohibitive value of the record into account and determined X, and then taken in another factor on the other side and it is offset, for example. They have to take all of the factors into consideration, and some of them will be more relevant than others to that particular determination.
As Ms. McDonald indicated, the purpose of the legislation, in addition to hoping that there would not be an impact on complainants in making them not come forward, was also to ensure that there was a process for scrutiny, that all of the factors at play were considered and the balancing of the competing rights took place. Although those factors in the Criminal Code are very broad, they permit the judge to consider everything that might be an issue in that particular determination.
Senator Wallace: It would seem to be a minor limit, if any at all, on judicial discretion, is that correct?
Ms. Kane: Definitely. It was never meant to limit judicial discretion; it was meant to guide judicial discretion. It was meant to ensure that judges scrutinize the records' applications in a particular context because sexual offences are different. The courts have recognized over the years that sexual offences are very different from other offences. Privacy rights are high.
Senator Runciman: With respect to the senator's question about judicial discretion, have any concerns been expressed by the judiciary on that particular issue?
Ms. Kane: Not to our knowledge.
Senator Baker: I wish to congratulate the witnesses on their presentation. Let me continue with Senator Wallace's question because it is important. Senator Runciman did a follow-up on it.
When we passed the legislation, I was an MP at the time; I remember it well. There is a word inserted before that list that you referred to. The word is "shall," not "may."
Looking at the legislation, section 278.5(2) states "the judge shall consider." Then section 278.7(2) says, "shall take the factors specified in paragraphs 278.5(2)(a) to (h) into account."
I find the following interesting about your analysis of the case law — and I am quoting now from the conclusion, at page 31:
In conclusion, the way that judges have interpreted s. 278.5 in deciding whether to order production of relevant records has been inconsistent in the post-Mills caselaw. Different judges have placed varying emphasis (and sometimes none at all) on the factors listed in section 278.5(2) and in the guidelines offered by both the legislation and the Supreme Court's interpretation of the legislation in Mills.
Just imagine, chair, none at all — not even mentioned them. That is in brackets.
The act that we are reviewing has two important sections. One deals with the factors to be considered by the judge in whether to release the record to the court; and, second, the same factors that shall be taken into account in releasing portions of or the entire record to the defence. The word is "shall." However, we have an analysis of case law — and I agree with that analysis — that says that some judges do not even make reference to it.
Under normal circumstances, it would be grounds for an appeal. Surely when we say in law that it shall be done and factors shall be taken into account, then there must be some evidence in the judgments of the court that these factors are taken into account. If they are not, then it is grounds for an appeal and the judgment to be overturned. The reason why the judge must make some reference to these factors is that he is compelled to do so by the legislation.
This report that you did said that sometimes judges do not do it at all — different judges and varying emphasis, and so on. This report was done in 2004, as you pointed out. That was four years after Mills. Since that time, if you have reviewed the case law since 2004, have you seen any difference that judges have changed their pattern of judgments in this regard?
Ms. McDonald: In the review of the cases since that time, we have seen that the decisions — the length and the amount of the detail in the decisions — are quite variable.
Senator Baker: Is it the same as before?
Ms. McDonald: It is the same as before. However, each decision is highly contextual. Depending upon the facts in each case, different factors may be more and more applicable in terms of the reporting.
Senator Baker: Yes, I understand that. However, the people who gave evidence to this committee and the House of Commons examining this were dependant on the fact that we had put in the words "shall consider these factors." They were assured that these factors would be considered by the judge.
The judge just cannot consider half the factors. It does not say shall consider half the factors or a quarter of the factors; it says shall consider all the factors.
I am raising the question to get to my main question, which is that people who have their private lives exposed publicly, for meetings with psychiatrists and doctors, there is no privilege there. Privilege does not exist by compelled production in court proceedings such as this under this legislation. It is important that they be represented by counsel in these proceedings.
We learn by this report by the Department of Justice Canada that they are not represented in counsel — not all of them; in fact, not half of them. Also, we learn that the provinces have different laws about that and applications to legal aid. In certain cases, certain provinces are doing it by the inherent jurisdiction of the superior court judge, if it is a superior court judge, because a provincial court judge, as you know, does not have inherent jurisdiction to give costs for you to hire a lawyer.
Certain provinces, such as Newfoundland and Labrador, are doing it right because in eight of the nine cases that you reviewed, they were represented by counsel.
The point is that someone's records are being exposed and cross-examined on a preliminary inquiry; and then a determination is being made under this legislation, sections 278.5 and 278.7, when that person is not represented by legal counsel and cannot go, in the majority of cases, to legal aid and say, "I want a lawyer," because the privilege does not exist.
You gave a report on this in 2004. Since that time, you pointed out that certain jurisdictions do give legal aid. However, your lawyers have told you that their complainants have had trouble receiving legal aid in a great many jurisdictions. Has it changed dramatically recently?
Ms. McDonald: Just to be correct, in the case where the key informants indicated that the complainants had difficulty, that was limited to Ontario. Some jurisdictions are tied to financial eligibility, so if you make too much money, then you would not be eligible for legal aid-funded independent counsel.
Senator Baker: Sure.
Ms. McDonald: It is only Manitoba and British Columbia that are not tied to financial eligibility.
Senator Baker: Those are my two main questions. I am sure that the chair will not allow me to continue.
The Chair: This is true. They are good points. I even have a supplementary to your first question.
Senator Runciman: The preamble in the legislation, which I gather is unique, speaks to Parliament's intent when the legislation was drafted. I have not looked at the preamble, so I am asking you a question with respect to intent.
Was the primary goal of the legislation to encourage women to come forward and report sexual assaults? Was that the primary intent of this legislation?
Ms. Kane: There were several intents. I would not say that it was primarily to encourage reporting. It was almost the opposite. It was to ensure they were not encouraged not to report, if that makes any sense.
The preamble highlighted the prevalence of sexual violence, that people should be confident that they can report and that they would be protected and their rights would be protected; it acknowledged that complainants did have rights as well as the accused, and that they had to be reconciled.
A preamble was also included in the previous legislation in 1992 to which I referred with respect to evidence of a complainant's other sexual activity; it had similar recitals in it indicating the desire for people to come forward with confidence and report offences. I would not say that it was a primary goal; it was one of many goals.
Senator Runciman: I see the preamble of the bill now:
WHEREAS the Parliament of Canada recognizes that the compelled production of personal information may deter complainants of sexual offences from reporting the offence . . .
Earlier in your comments you defined "success." I may be misquoting you or putting too much emphasis on this. You said that the definition of success is reliance on the courts considering the provisions as outlined in the legislation. That is the only element of success that you see with respect to the ambitions outlined in the preamble. We talked about this earlier with respect to the rates.
According to the 2009 General Social Survey, 88 per cent of sexual assaults are not reported to the police, and that number is not declining. You are indicating — again, I may be misreading your intent here — that you are comfortable with the status quo. You do not see any need for any additional changes to address what was obviously a significant concern, if not the primary focus, of the legislation.
Ms. Kane: The point that I was trying to make is that we are often asked if we can measure the effectiveness of legislation. There are always so many factors at play that you cannot, in isolation, look at a series of provisions of the Criminal Code and indicate if that has increased the reporting rates or deterred crime or whatever.
In this particular case, in my personal view, the success or effectiveness should be measured by whether the courts have carefully scrutinized the records. Have they ensured that the balancing of rights is taken in account?
We do not want to be seen as saying that success is only if no records are ever produced to the accused because that could be denying the accused their right to make a full answer and defence or that all records are always disclosed to the defence because that could be defying the complainant's right to privacy in their records. The balancing is the ultimate goal. Obviously we would like more protection for complainants. In all cases, we would like less sexual offending, and we would like more reporting of sexual offending than exists, but there are so many factors at play.
Senator Runciman: The current re-victimization is a complex issue. I had a quick look at some of the comments from the victims and the recommendations that you were referencing earlier. It is hard to get a handle on how you go forward with this and have a real impact on increasing the reporting numbers, which is what we are really looking at.
You talked about the O'Connor case. In that instance the Crown, I understand, was negligent — perhaps that word is too strong — or protective of the complainant in that case and did not reveal what the court determined was relevant information.
Have you surveyed Crown prosecutors for feedback on their experiences or any recommendations they might have for this review?
Ms. Kane: No. I assume that the committee may be hearing from some Crown prosecutors. We have not done so recently. They were obviously part of the process leading up to the development of the bill in 1995, through 1996. At that time, they were grappling with the various procedures that were being pursued by defence in order to gain production of records. Those records were not often held by the Crown, so they often had the dilemma of what role they played in those proceedings. At the same time, when the records were in their possession, at the time they felt bound by R. v. Stinchcombe to provide them.
[Translation]
Senator Carignan: I looked at the article — I was not here when the bill was passed — and I was wondering about the use of the terms "complainant" and "witness." I was wondering why not use the word "victim"? I was trying to see how you could have a situation in which you could have a victim without that person being a witness or a complainant.
For example, one situation comes to mind in which a young child, under two years of age, might be a victim but not a witness, would not be able to testify and would not be a complainant either. I am thinking of cases of disappearances, sexual assaults in which the victim might subsequently have been killed; the complainants would be the parents, for example. So we are not dealing with the victim either. So I understand that, as the victim has died, that person no longer has any expectations regarding privacy, but perhaps the parents wish to protect that person's dignity and to prevent anyone from gathering personal information to tarnish his or her memory. It seems to me that there can be situations; the clearest one in my mind is that of a child under two years of age, and it seems to me that child is not protected.
Have there been any situations in which that was raised? To your knowledge, when the bill was passed, was that situation discussed with regard to not using the word "victim"?
[English]
Ms. Kane: Forgive me, but I will reply in English.
At the time of the bill, there was quite a bit of discussion of the terminology. The prevailing terminology, when referring to a victim of a sexual offence was "complainant." That is why the Criminal Code used the term "complainant" of the offence at the time.
I am not aware of the situation that you describe where the person who was actually the victim of the sexual offence — or the complainant, where they are one and the same — had passed away and the prosecution was underway and someone was attempting to get the records of that person. The records would still be protected because the privacy interest does survive death in some situations. I think the legislation would apply, but I have to admit that we had not turned our minds to that particular circumstance.
[Translation]
Senator Carignan: I have a second question. In any jurisdictional conflicts that you may have noticed, such as, for example, places where a provincial statute concerning the head of the youth protection agency might have entered into conflict and the latter refused to forward the file; or in the case of a person under the care of the public administrator for which the public administrator refused to forward the information? Have there been any examples of conflicts or challenges of that type? What was the outcome? Was there good or adequate cooperation with the provincial bodies?
[English]
Ms. Kane: Situations were brought to our attention in the development of the legislation where that type of record was sought. The agency, such as the Children's Aid Society, would not produce the records, nor should they have produced the records except via this regime.
The record holder would receive the subpoena and question why they should be providing those records to the accused, and rightly so. They would await the determination by a judge of whether those records, or part of them, should be provided or whether they were at all relevant. Where the judge orders the production of the records, those agencies would comply unless there was some other provision of a statute that made that impossible for them. I am not aware of any situations where that would be the case.
[Translation]
Senator Carignan: You have not seen any cases in which the provincial jurisdiction attacked the act's constitutionality because it might encroach on the province's jurisdiction?
[English]
Ms. Kane: No.
Senator Watt: I have a question for Ms. McDonald. Welcome. We enjoyed your presentation.
I need further clarification. When you were making your presentation, you alluded to an issue of whether they have money. Could you explain that?
You also alluded to the question of the presence or not of family support. I would like to have some explanation on that.
Also are my two questions linked to the fact that you alluded to the North?
Ms. McDonald: Could you repeat your second question?
Senator Watt: The first question is whether they have money. The second question is if there is family support; you raised that issue. I want to know if there is support and, if not, what alternatives are in place. I would like to have an in- depth explanation of that because you just touched lightly on it but did not have time to go into it.
My last question is whether those two issues are linked to the North because you also mentioned the North. I am raising these questions because of the high cost of transportation and so on. Who pays for it? How is that being handled?
Ms. McDonald: I did indeed allude to comments made during interviews with defence counsel. These were limited interviews involving defence counsel from Ottawa and Toronto that only represent their perspectives. However, from their perspective, this is a motion, an application or a proceeding that costs money. The report has a good quotation that describes it. By making this application, you would "burn through your retainer." In other words, they would use up the money they had on their retainer.
One defence counsel said that if a client has money, they would then be able to afford an application for records.
Senator Watt: What happens if not?
Ms. McDonald: They may not be able to afford an application for records.
Senator Watt: What happens to that person?
Ms. McDonald: For that individual, for example, the defence counsel said that either if he or she had money or are absolutely sure. In a way, they were suggesting that they do not go fishing for records; they do not make these applications frivolously. They actually consider the cost and time involved and the resources of the accused. If they are absolutely sure, they will go ahead. However, they will not go fishing for records just on the off chance that something is there because cost does factor into it.
Senator Watt: Is that because he or she is an accused person?
Ms. McDonald: I am not certain I understand the question.
Senator Watt: They do not seem to see the importance of that person having proper representation, unless I am hearing you incorrectly.
Ms. McDonald: No, this would be the defence strategy. The defence would represent their client to the best extent possible and looking out for their interests. However, unless they were absolutely sure that these records would be likely relevant, that there was something there, they will not spend money from their retainer to go on fishing expeditions.
Senator Watt: I understand. What about the second question?
Ms. McDonald: We know, again from the General Social Survey, that victims prefer their natural supports; they actually speak to family and friends quite a bit. You can imagine that if someone has been a victim of a sexual assault and that person talks about it to a sister or a mother, for example — especially if it was in a case where the assault happened within the family — there might not be support due to family shame. The thought might be to not to talk about it and keep it a private family matter. There certainly are cases of that.
You might also have a case where a family just does not want to acknowledge that their daughter or son has experienced a sexual assault by a stranger. There might be old stereotypes or beliefs. If they do not have that family support there, they might have parental pressure not to tell: "We do not want to open our family up to this kind of public scrutiny. This is private; anything about sex is private."
The Chair: What about the situation in the North?
Ms. McDonald: With the North, I think they are potentially linked. However, at the same time, I think these two issues apply equally in the South. We do know that the rates are higher in the North though.
Senator Joyal: My question is first for Ms. McDonald, and then for Ms. Kane.
As was stated in your conclusion on page 31, which was quoted by Senator Baker, if there is inconsistency in the decision of the various judges that you have studied in relation to the factors that are listed in section 278.5(2) of the Criminal Code, would it not be advisable for us to consider recommending amendments to that section, requesting the judges to state clearly in their decision to which factors they are referring? In that way, we would avoid your comment about some of them not to having referred to any of the factors.
I read the factors differently than the introductory paragraph of section 278.5(2), which refers, as you stated, to the rights of the accused to a full defence and the rights of the complainant to privacy. When you read the various factors that are listed, there is also section 278.5(2)(f), which talks about "society's interest in encouraging the reporting of sexual offences." That is another angle to the triangle. There is the victim, the accused and society as a whole.
If we want to be sure, when the judge is balancing all that, that those various elements are also taken into consideration, should we not be amending that subsection to request that the judge explain clearly in the written decision how the various factors were balanced?
Ms. Kane: Senator Joyal, I would note that this was one of the issues that was raised. It was addressed in Mills, but the issue of whether the judge going through each and every factor was too onerous was one of the issues raised early on. In Mills, the court made it clear that the provision in section 278.5(2) only requires that the judge take these factors into account and that the judge does not have to do a conclusive or in-depth analysis of each factor.
While it might be helpful to see in the reason for decision on the production of records a reference to each of those factors, I would suggest that perhaps the court in Mills has made it clear that that is not the current state of the law — although the law could always be changed. In their view, it is not entirely necessary and a more holistic consideration of all the factors as they apply meets the test.
Senator Joyal: That is the way they have interpreted the act the way it is now. However, should we not consider the appropriateness of amending the act in that context? We are sure it would not be struck down as being unconstitutional; there is no question about that. If we request a judge to consider those factors and identify which in his or her mind are determining factors, he or she does not need to go through each of them. Should we not determine at least those that the judge decides are the predominant ones?
Ms. Kane: Your committee will hear a range of witnesses. It may well be at the end of the day that that is your recommendation. At the present time, we do not have an opinion on that based on what we are aware of in how the courts have interpreted these provisions.
Senator Joyal: Therefore, you do not have any suggestions for us; you did not answer Senator Runciman's question when he asked if you have any suggestions for amendments to the act after the way you have studied and evaluated it through the various case law. You are not in a position to answer that question, is that right?
Ms. Kane: I am not in a position to answer at the present time. Certainly we will be interested in the outcome of your committee's review and the recommendations that you make to the government with respect to this legislation.
Senator Joyal: In your opinion, on the basis of your experience and knowledge of criminal law and policies, would you find it contradictory or unwelcome to amend the act the way I described it to you?
Ms. Kane: Do you mean to require that the judge state, with reference to those factors, the reasons that he or she has made the determination?
Senator Joyal: Yes.
Ms. Kane: I do not think it would be unwelcome. It certainly would not be unwelcome by the government. It may not be very well received by judges who feel that they are documenting the overall reasons for their decision with respect to records in a sufficient manner.
Senator Joyal: Some of them, as you have stated, have not referred to any of those factors; they have just come to a conclusion of yes or no or yes but we do not know. You are expecting that there will be more reporting on the one hand, yet on the other hand, the reporting that we receive is not that useful to understand the way that those various angles of the triangle work together, how the judge balanced the public interest on the one side with the victim's right to privacy and the right of the accused to a full defence. Essentially, that is where I think there is an important element in the decision-making process that a judge must follow.
In the past, we adopted or recommended to be adopted some bills where we requested that the judge explain his decision; it happens often. I could quote a list of them.
Ms. Kane: Yes.
The Chair: Maybe I can come in with my supplementary question here because it relates to this. This is one of my two points.
Sections 278.8(1) and (2) say that the judge shall provide reasons and that those reasons "shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing."
That seems to be a pretty stiff instruction to do exactly what Senator Joyal is talking about and what Senator Baker raised earlier: Tell everyone involved, including the public, why you have decided whichever way you have decided. However, the judges are not necessarily doing that. How can that be?
Ms. Kane: The judges are indicating the reasons for their determination. First, it may be helpful to the committee to hear from a judge. I do not want to be seen as speaking for judges.
In this process, we are asking judges to apply a test after considering a number of factors. First, they have to look at whether the grounds that the accused has brought for their application meet a certain test. They then have to indicate whether the accused has established that the records are likely relevant to an issue at trial and that the production of the records is necessary and in the interest of justice, weighing all of these salutary and deleterious effects.
That is the overall request that we are making to the judge when they make the determination, and the factors to be taken into account are set out in section 278.5(2).
If the decision on the records addresses the key elements of the determination, that would satisfy the requirement in section 278.8 that there are reasons on the record for coming to that determination, perhaps without a detailed analysis of each of the factors. However, at the end of your review, if the committee is of the opinion that more specificity is needed, then that would be the place to include those requirements.
The Chair: Forgive me, Senator Joyal, I interrupted you, and Senator Lang is being patient.
Senator Joyal: I think it is enlightening for the future of our discussion and study.
On the definition of "record," were there any comments that you want to share with us on either the criteria that is broadly defined in section 278.1, which is the reasonable expectation of privacy, or the recital of all those other examples that are in the same section, which says "without limiting the generality of the foregoing" and then lists a certain number of them?
From your experience, are there other indications that you would like to bring forward in the recital of various documents or in the qualification of the principle or general criteria?
Ms. Kane: No. Based on our case law review and other information, it appears that that is a very comprehensive definition; the courts have not had any trouble interpreting that or determining if the records do meet that test.
The only issue that the courts have continued to clarify is that that definition applies to records with a high expectation of privacy in sexual offence proceedings, which is exactly what the legislation says. When you are not in sexual offence proceedings, the O'Connor regime, which is less onerous, applies. However, we have not been made aware of situations where certain records have not fallen into that category and there has been a doubt.
Senator Joyal: Therefore, there has never been a distinction between the professional secrets, for instance, of doctors or lawyers that are protected by law and general information such as employment. One might expect employment information to remain between the employer and employee, but it is not protected as a professional secret as is, for instance, a psychiatric report. If one consults a psychiatrist, one expects it to remain between the person and the professional in question. I see a difference of the level of secrecy in that list of documents.
Ms. Kane: Absolutely.
Senator Joyal: Was there any element of refinement on the basis of the level of secrecy that one expects with the advice or the documentation that is provide in a relationship with one or the other of those professionals?
Ms. Kane: The courts have made it clear that regardless of whether you find yourself in that list, it is only the records that have a reasonable expectation of privacy that are covered. You could have an employment record that may or may not have a high expectation of privacy. Those that had no expectation of privacy would not be subject to this regime, and those that did, depending on what is in the record, could well fall in this regime. That has not been a huge issue since the legislation was enacted.
The Chair: Senator Joyal, I am terribly sorry, but remember that we can reinvite these witnesses, and I think we probably will.
Senator Lang: I would like to follow up on Senator Baker's line of questioning and the question about having adequate defence for the accused with Ms. McDonald.
Senator Baker pointed out that it appeared, in some cases, that those who had applied for legal aid and were turned down subsequently did not get counsel and did not get to look for the information they needed for the purposes of their court case.
Your rebuttal, if I understood it correctly, was that eligibility was based on income, and therefore, if you made over a certain amount of money, you were not eligible for civil legal aid.
Have we had situations where the accused is eligible for civil legal aid but has been turned down?
Ms. McDonald: Do you mean criminal legal aid?
Senator Lang: I am sorry, criminal legal aid.
Ms. Kane: We may need some clarity. An accused person is entitled to legal aid in accordance with certain regimes that exist in each province and territory. The eligibility sometimes depends on whether they are facing a risk of imprisonment, the seriousness of the offence, as well as their income level. We are not able to give an indication of exactly how each regime applies.
Your question is if accused have ever been denied legal aid, is that correct?
Senator Lang: Providing one is eligible for the criteria of legal aid, have we had any situations where the accused has been denied access to legal aid for the purposes of his or her court case?
There is a situation here where you have a threshold, and then you go above that and make your own decisions.
Ms. Kane: I do not think we are capable of answering questions with respect to eligibility for legal aid. I am still not clear. Are we talking about accused persons or complainants faced with production applications?
Senator Lang: I am referring to the victim.
Ms. McDonald: We do not have much information from the different legal aid plans. We did actually ask them, since we had a date, what they could provide to us.
Again, it works differently in each jurisdiction; some jurisdictions do not provide any type of funding for independent counsel. In those jurisdictions, unless you have money, you would not be able to have independent counsel as a complainant in these applications.
I do not have any evidence that a complainant who met the financial eligibility has been denied for an application for a third-party record.
The Chair: That is something the committee can explore, Senator Lang, questions of eligibility and thresholds.
Senator Lang: Thank you, Madam Chair.
The Chair: Before you go, section 278.3(4)(i) has to do with assertions by the accused not being sufficient.
In English it says the following:
(i) that the record relates to the presence or absence of a recent complaint;
In French it says the following:
[...] le dossier se rapporte à l'existence ou à l'absence d'une plainte spontanée;
"Recent" and "spontaneous" are not the same necessarily. I have two questions: First, has this created any difficulty? Second, which of the two — and Ms. Kane you were there, so you might remember — "recent" or "spontaneous," was actually in the mind of the drafters as they were working on this?
Ms. Kane: If I recall correctly, the assertion here was in reference to an old provision of the law that was abrogated in 1983, the doctrine of recent complaint. The intention here is that no assertions could be made that the accused wanted to get at records that related to a recent complaint, in the way we understood the doctrine of recent complaint. Hence, the French term was used in the same manner as it had been used in the pre-1983 evidentiary provisions with respect to recent complaint, rather than comparing whether we are talking about an instant, spontaneous complaint or the notion of recent complaint.
I can verify that issue with our legislative drafters and provide additional information to you in writing.
The Chair: I would be grateful. Here we are in 2011, and you would think the law means what it seems to mean on the plain face of it, so that would be helpful.
Senator Joyal: With the number of cases we see today in relation to sexual offences that took place 13 years or even 20 years ago, it is, in my opinion, an important element to take into account.
Ms. Kane: It is gone from our law.
The Chair: Thank you both very much. As you can tell, we have gone way over our time with you, and we could have kept you here much longer, except we have other witnesses waiting. We are grateful to you, and do not be surprised if you are invited back.
We are continuing with our study on the provisions and operation of the Act to amend the Criminal Code (production of records in sexual offence proceedings).
[Translation]
It is now our pleasure and privilege to welcome our witnesses from the Public Prosecution Service of Canada, Ms. Susanne Boucher, Senior Counsel, Nunavut Regional Office, and Ms. Bonnie Tulloch, Special Advisor on Northern Issues, Headquarters Counsel. Thank you for being with us.
[English]
I believe that Ms. Boucher will begin.
Susanne Boucher, Senior Counsel, Nunavut Regional Office, Public Prosecution Service of Canada: We are pleased to address the committee on behalf of the Public Prosecution Service of Canada, PPSC, on our experience with an Act to amend the Criminal Code (production of records in sexual offence proceedings).
[Translation]
Thank you committee members for inviting us here today. First, I would like to briefly state the mandate of the PPSC. The Public Prosecution Service of Canada represents the Director of Public Prosecutions (DPP), who, in turn, is accountable to the Attorney General of Canada. The Director of Public Prosecutions Act sets out the responsibilities of the DPP, which include acting on behalf of the Attorney General of Canada in the following areas: first, initiating and conducting prosecutions on behalf of the federal Crown; second, intervening in court matters that raise questions of public interest affecting the conduct of prosecutions or related investigations; third, advising law enforcement agencies or investigative bodies in respect of prosecutions and particular investigations that may lead to prosecutions.
The Public Prosecution Service of Canada has prosecutorial responsibilities in every province and territory in Canada. In Nunavut, Yukon and the Northwest Territories, the PPSC has exclusive responsibility for conducting all prosecutions under the Criminal Code, by virtue of section 2 of the Criminal Code. The PPSC has a regional office established in each of the three territories, in Iqaluit, Yellowknife and Whitehorse.
[English]
Sexual offences constitute a significant percentage of the cases prosecuted by the PPSC in the North. There is a high incidence of sexual offences in the territories — much higher than in the provinces, by a significant margin.
Statistics Canada reported that in 2009, sexual assaults occurred at a rate of 62.03 per 100,000 people in Canada, generally. By contrast, the territories experienced a much higher rate of sexual assault per 100,000 people. It was 205.03 in Yukon, 428.18 in the Northwest Territories and 655.62 in Nunavut. Therefore, Yukon is approximately 3 times greater than the general Canadian baseline, the Northwest Territories 7 times greater and Nunavut approximately 11 times greater.
Between 1997 and 2009, there were 1,751 court cases involving sexual offences in the territories. Of these, a search of the reported case law indicates there were just five defence applications for production of records under section 278.3 of the Criminal Code.
Our experience from these few cases shows us that fishing expeditions for possible documents are being discouraged by the law; the courts are balancing the right to full answer and defence with the complainant's privacy rights; they require formal compliance with the notice and procedural requirements and require the defence to demonstrate clear case-specific evidence supporting an assertion of likely relevance of the records.
All of this strengthens the protections for a complainant's privacy in the records. However, in meritorious cases where the documents are needed for full answer and defence, the courts have shown that they will order the records to be produced.
It is unclear why the provisions have been used so infrequently in the North, given the high rate of sexual assault cases. From my experience prosecuting in the North, and in consulting with colleagues on both sides of the practice, I suggest that the principal reasons are that there may be very few records for the defence to even consider seeking, and victims of sexual assault do not have access to a wide variety of therapeutic services in the North. While there are some services available, they are somewhat minimal in comparison to other provinces and might not have a high rate of uptake by complainants in the North.
The defence might also not have enough information to meet the relatively high threshold required under the Criminal Code to seek production of records. In practice, the defence must know that the record exists, know the information it contains and know how it is likely relevant to the proceedings before they can apply for production. Additionally, there are relatively high rates of resolution of cases without trial. Many cases result in guilty pleas; others are stayed or withdrawn. Therefore, a large number of court dispositions are not fully litigated.
It is possible that we could see more applications for records production in the North if there are new criminal cases resulting from sexual abuse of former residential school students. The Indian Residential Schools Settlement Agreement specifically provides counselling services for people who have suffered abuse in the residential school system. Therefore, this is one area where accused persons and their counsel would know that potentially relevant records are more likely to exist. However, the defence would still have to meet the threshold set by the Criminal Code, and the simple existence of the record would not be a sufficient basis on its own for the production of the records.
It should be noted that section 278.2(1) might not explicitly cover certain offences that existed prior to 1970 but that could still be applicable today in cases of historical sexual abuse.
The case of R. v. J.F.G., a 1997 case found at Northwest Territories report 47 from the Northwest Territories Supreme Court, found that the regime did not apply to the old offences of gross indecency and sexual intercourse with a female under the age of 14 years who is not the accused's wife, as those offences did not appear in the 1970 version of the Criminal Code, and thus were not enumerated specifically in section 278.2.
The cases of R. v. Gibson, which is 2010 Ontario Superior Court judgment, 6374, and R. v. M.H., a 2005 decision of the B.C. Court of Appeal, 419, suggest an alternative interpretation of that legislation, which would include at least certain historical offences in the regime. However, Parliament might wish to consider whether it would be appropriate to explicitly include all historical sexual offences to the list of proceedings that fall under that section 278.2 regime to provide more certainty in the law.
Thank you for the invitation to appear before the committee and to provide this opening statement. I invite any questions you might have about PPSC's operational experience with the regime.
The Chair: Ms. Tulloch, do you want to add anything?
Bonnie Tulloch, Special Advisor on Northern Issues, Headquarters Counsel, Public Prosecution Service of Canada: No, thank you. I am here for support and to assist in any general questions.
The Chair: I must say that the statistics that you cited are shattering. I knew the problem existed. I had no idea of the extraordinary disparity between sexual assault rates in the South and in the North.
Senator Wallace: Thank you very much for your presentation. I was surprised to see that over a 12-year period, there have been only five defence applications under section 278.3. As we approach this as a committee, we are looking to get feedback on the experience out there. However, there is obviously very little from your experience in the North that you can add to what was Bill C-46.
The fact that it has been used so infrequently — and you have given some reasons for that — is there an awareness among practising defence counsel that the provision is there? Should something be done to create more awareness that it is there?
Ms. Boucher: I think the defence lawyers are aware that the provision exists. It may not be the principal focus of their defence in many cases. In the trials that I have handled, they tend to focus on the offence itself; whether it happened or not, whether consent was there or not; and whether records exist somewhere on tangential issues may not be their primary focus.
If they know about a record, they have demonstrated that they will apply for it if they have a basis to believe that it will be relevant to the proceedings. I do not have the sense that lack of defence information is what is driving the small number of production applications.
Senator Wallace: I can understand that the focus would be on the offence. However, it would seem to me that most defence counsel would be interested to know, with the complainant, past experience and circumstances that could be relevant to the credibility of the evidence that the complainant would give. In any event, it is a surprising figure to me.
Ms. Boucher: Even if you look at the statistics from the provinces as well, there have not been a huge number of decisions that have come out around this legislation if you compare it to the overall number of sexual assault cases. In the provinces, there are thousands and thousands of sexual assault cases every year, but very few, relatively speaking, reported decisions about production applications. I believe Ms. Tulloch could add something.
Ms. Tulloch: Having been defence counsel in Nunavut for seven years and then going to the prosecution, I think there are many factors at play. One of them is that we have limited time with our clients, both as defence counsel and as Crown prosecutors. That is as a result of the circuit court system in the North, where we fly in and out of communities.
From my experience, I was aware of the legislation, but I cannot recall a case in those seven years. Most of the time there was no record. I can recall one case where there was a record, but the complainant did not have any counsel on her own, and I did not feel that it was relevant to the proceedings, so there was no application made.
There are all of those factors to take into consideration. It is a bit complicated, but I think they are aware of it.
Senator Wallace: Ms. Boucher, as a Crown prosecutor, I would be interested in any comments you might make, although it seems there is little experience with it in the North because of the few applications that have been made. I am referring to what was previously Bill C-46 and section 278.5(2), where the factors are outlined that a judge shall take into account in determining whether the records should be produced.
As I read each of those factors, they are very broad and general. I am left wondering what real guidance or firmness there is in directing the judiciary in how to deal with these matters. It seems to be so broad that it perhaps could be entirely subjective to the judge to make the determination, as we have heard from previous witnesses. In making their decisions, they are not referring to each of the factors, so you are not quite sure. You could be left in the position of not being quite sure what was considered, what weight was given to these factors.
That is a long lead up to my question. As a prosecutor, how do you respond to that, as someone who would be perhaps opposing an application for records to be released? What are your thoughts on those factors? Is there anything we should be taking into account in that regard in making recommendations, perhaps, for future amendments?
Ms. Boucher: While the factors are broad, they are specific, and they are fairly comprehensive. Therefore, they do provide much guidance for prosecutors, for the court and for the accused's counsel in crafting their applications, and for us in responding to the applications as well.
From my review of the cases, it does not appear that the courts are having difficulty in applying the factors or in citing specific factors that are guiding the decisions of the court. In all the reported decisions dealing with production applications, the judges specifically refer to factors that are listed in this section.
While they might not refer to every single factor, the judges identify the specific factors that come into play in the particular case. It will vary from case to case as to what becomes relevant. They are always balancing in every case the right to make a full answer and defence, the privacy rights of the complainant and how high that threshold is in the particular documents; and, in almost all cases as well, the probative value of the document, what it will do for the proceeding, what information will it transmit and how will it help the trier of fact come to a decision. It does not seem that the courts are lacking in any guidance from the legislation itself.
Senator Wallace: Thank you very much.
[Translation]
Senator Carignan: Apart from sexual offences, this process of gauging the rights of third parties to a trial is quite interesting because there are few places in the Criminal Code where you see that third party rights are protected — here with regard to their privacy. From what I understand, this was quite innovative at the time it was adopted.
You talked about expanding to include certain offences that might not be included and that are sexual offences, but do you think that establishing this procedure and mechanism is a good enough idea for it to be extended to other types of Criminal Code offences? Whether I am a victim of theft or rape, that is obviously not of the same nature or importance; even if I am a victim of theft, I may want to protect certain aspects of my private life. I wanted to know whether you think that should be extended.
Second question: even if it is not extended, have you seen any cases in which the courts questioned or applied the mechanism, but by setting precedents rather than applying it with respect to specific sections, for other types of offences than the sexual offences that are specifically provided for here? Is my question clear enough?
[English]
Ms. Boucher: The regime that would come into play for non-sexual offences would be the common law O'Connor regime, and that is what the courts tend to apply in other types of applications for record production. I have not seen them using these particular statutory factors in other cases, except if they have some doubt about whether this regime applies.
I have seen it in cases where, if they were not sure if a historical offence fit within this regime or not, they would, just to be safe, apply the factors under both regimes to see how it would play out under the regime.
Whether it would be helpful to have this type of regime applied to other types of offences is a policy choice for Parliament to make. If Parliament decided to do that, that would be, from an operational standpoint, easy enough to implement because it provides certainty. The more codification there is, the easier it is to apply the law in our day-to- day work. Otherwise, the O'Connor regime has been working for those types of records.
Senator Watt: First, I would say that it is about time that information is coming out about what is happening in the North. I can understand that your primary responsibility under this organization is to focus on Nunavut and NWT, but it does not cover the other part of the Arctic, which is Nunavik. I take it you have no records on that area whatsoever, is that correct?
Ms. Boucher: No, unfortunately I have not.
Senator Watt: Is there a point down the road that records will be collected? Is there any way it could be collected, or are there provincial institutions that exist that may be helpful in providing that information?
Ms. Boucher: From Nunavik, yes, provincial institutions would be collecting the data. We did not collect the particular data for Nunavik simply because it was not part of our jurisdiction or part of our presentation today. Certainly the same type of research could be done with the provincial data for Quebec. Whether it could be sorted out by region in Quebec depends on how they gather their data. If they gather it specifically by region within the provinces, I do not know.
Senator Watt: It is alarming when you mention the fact that Nunavut, knowing that the population is the smallest amongst the territories mentioned, like the Northwest Territories and the Yukon, has rates that are very high. It is an embarrassment; let us put it that way. I do not think the responsibility solely rests upon the residential school issue. That is one of the big factors, I believe.
The other factor that is still ongoing is that there are still various individuals — at least one person that I know very well, a former school teacher — going in and out of Iqaluit. That person has lived not only in Nunavut but has also taught in Nunavik, Belcher Islands, Cape Dorset, and the list goes on. He even went to another country — I believe it was Mexico — and did exactly the same thing again.
It is alarming to see that many years have passed and that person was not scrutinized by the authorities when he was hired to teach youngsters. That is one of the factors at play.
I understand, from what I have been told, that if you are the victim, you are bound to victimize someone else. I think that is very true.
I believe this will be a long process, but I would like to have a law that will apply to the North, that should be applied to its full extent, not necessarily placing limitations because of the weather factor. I think you know what I am talking about when I mention the weather factor.
Sometimes when the circuit courts travel around the community, one of the most important things to them is, "I am in this community, how and when will I get out?" They could easily be stuck in the communities for a number of days, and from time to time they have been.
I know for a fact, not only in relation to the sexual abuse issue but on the other criminal issues that take place in the North, victims at times or the accused do not get what they deserve. There is never enough time for those people to sit down and interview the clients.
I know for a fact that some decisions are made on the plane before the plane gets to the community. That is even before you see your client. It is already worked out between the defence and the prosecution, including the judge. I hear that all the time because the people who go in and out from time to time, they talk to me and tell me that is how they were treated.
The reasons I suggest that is, if the law is to apply to us, it must apply to the full extent. At the same time, we would like people to be fairly represented, which is what they deserve.
The Chair: Are there elements of the law that you believe end up applying differently in the North? Are there elements of the law that, in your view, should actually take into account unique northern circumstances to end up with equal justice for all?
Ms. Boucher: The courts have not applied this regime in a different manner in the North than jurisdictions in the South, although the courts have been sensitive to the circumstances of the particular records before them. For instance, if they know a person is going in for alcohol treatment and has mentioned suffering from sexual abuse before, that will not automatically make the record relevant and subject to production. They understand that keeping a diary as part of that treatment process or just the existence of records documenting their stay at the treatment program does not in and of itself constitute relevance that would lead to these records being produced. I think there is a sensitivity in the court to the local circumstances from the decisions that have been issued.
Senator Watt mentioned the cycle of victimization, as well, and it is quite an accurate observation. The Department of Justice Canada collected data between 1999 and 2004 for a study and concluded that in 66 per cent of cases of sexual abuse, the accusers had themselves suffered from abuse. Therefore, it is certainly a very relevant factor in these offences.
Senator Watt: I have one more point, and it is a sensitive issue. I know that it is hard for you to answer some direct questions. I am not a legal person, and I know I would not answer; it is a difficult question.
Can help me understand why the courts travelling around the communities encourage people to plead guilty? My understanding is that is the easy way out, in a sense. It seems like a "let us get it done and get it over with" approach. I hear that frequently. That is an extension to the question the chair was asking.
Again, I do not expect you to answer that.
Ms. Boucher: In the criminal justice system, many cases tend to get resolved by guilty pleas, whether in southern jurisdictions or in the North. I do not know whether there is a higher percentage of guilty pleas in the North. I do not have the exact statistics on that.
I know from Department of Justice Canada research that, in total, about half of the charges end up in a guilty verdict in sexual assault cases. I am not sure whether that is after a trial or a after guilty plea, but there would be a mix of the two involved in about half the cases.
Whether it is an easy way out is presumably a decision that each person makes with their lawyer, considering the evidence in the case and whether they could make a viable defence. Making that decision is a very hard issue to grapple with. As circuit courts that go around the North, we certainly try to do our very best to give the full extent of justice that we can provide in every community and afford everyone the opportunity to have trials if they wish to or to resolve their cases as they wish.
Senator Baker: I would like to first congratulate the witnesses for the great job they have been doing.
As committee members, many of us follow your cases in reported case law. We would not want to leave the impression that the courts do not take advantage of applications, Charter challenges and so on. I believe I was reading recently of a case called R. v. Jeffrey and there were 38 voir dires in that particular case. Was 38 voir dires a record for you, even before getting to trial?
Ms. Boucher: It was a large number of voir dires.
Senator Baker: That is the largest I have ever seen, and it dealt with a variety of Charter issues.
You made an interesting comment. To take advantage of this scheme under section 278 of the Criminal Code and make an application under section 278.3, you must have certain basic information, as you point out. You must know that it exists.
The thought that came to my mind when you mentioned that you must first of all know a record exists or there is a document or some record was that normally you explore the presence of those records during a preliminary inquiry. How they will be tried is the decision of the person who is accused. However, is it a matter of practice in these cases that these preliminary inquiries do not take place and they go directly to trial?
Ms. Boucher: In my jurisdiction, in Nunavut, there is a preliminary inquiry that happens first in nearly all cases of sexual assault.
Senator Baker: During the preliminary inquiry, normally, at that time, such things would be investigated. There is a considerable amount of case law on what questions you can ask. You cannot ask questions directly relating to the document that you seek or the record you seek. However, you can ask questions under cross-examination as to whether or not any record at all exists, whether the person kept a diary or whether the person has ever seen a psychiatrist, psychologist or a counsellor.
Normally, that takes place in a preliminary inquiry. Do you have any evidence at all that those questions are pursued during the preliminary inquiry under normal circumstances?
Ms. Boucher: Sure, if the defence thought that was a viable avenue to explore. A case in the Northwest Territories called R. v. Kasook that dealt with this very issue. The preliminary inquiry judge was not allowing the defence lawyer to ask questions about the existence of the records and the type of counselling pursued and those sorts of matters. It was appealed. At the appellate level or certiorari level, the judge sent it back for continuation of the preliminary inquiry to allow the defence lawyer to ask those questions. It is certainly an open avenue for counsel to pursue if they want to.
Senator Baker: Normally, during a pretrial proceeding, you could not appeal a decision of the trial judge because interlocutory appeals are not taken in criminal proceedings. One must wait until the trial is completely over, as you know.
Does that provide some sort of an explanation, or do you agree with that?
Ms. Boucher: Yes. At the end of a preliminary inquiry, the defence would have to bring an application for certiorari to the superior court to review the decision of the preliminary inquiry judge for excess of jurisdiction or something of that nature. A defence lawyer would be able to pursue that with some kind of an avenue of litigation to get that corrected.
Senator Baker: It occurred to me that perhaps another way to find out whether someone had a record would be if they had previous criminal proceedings, a witness or an alleged victim complainant. Could you tell us — and this applies to all of Canada of course — why is it not just a natural procedure for the prosecution to automatically, with disclosure, provide the criminal records of those witnesses who are to be called by the Crown and also the complainant?
Ms. Boucher: The PPSC desk book instructs us to provide the criminal records of witnesses if they are requested by the defence. It is something that is always provided on request to the defence.
There was a recent case from the Supreme Court of Canada called R. v. McNeil, dealing with the criminal records and disciplinary proceedings of police officers, where the Supreme Court made it clear that that had to be part of a primary disclosure package. Certainly it can be in the primary disclosure.
Senator Baker: That is the McNeil case. McNeil has now replaced O'Connor, as far as those types of applications are concerned. That deals with disciplinary hearings and records of police officers.
Does that place an additional burden on the Crown prosecutor — perhaps too great a burden — to do as McNeil dictated, in that you must provide as first-party disclosure, without request, any disciplinary record or anything of that nature that you find may be of benefit to the defence, including credibility, as far as cross-examination is concerned? Do you find that that is a burden? How have you withstood that burden in proceedings? McNeil was just last year.
Ms. Boucher: In our jurisdiction we have not seen much litigation following from the McNeil decision. From an administrative standpoint, we have had to incorporate and work out procedures, both internally in the Crown offices and with the police forces. The primary responsibility for collecting and putting together the disclosure packages falls on the police. The Crown has the ultimate responsibility for ensuring it is complete and that it is turned over to the defence.
It is an additional matter that we take care of, but, as an operational department, we follow whatever the law is. We have implemented it into our daily practice.
Senator Joyal: I have two sets of questions, and one is in relation to the higher rate of sexual assault that you have described on page 2 of your brief.
Could it be that in the North there is easier disclosure or reporting of sexual assault than in the South, explaining why the figure is so high? Is it a similar context in the North as it is in the South, where people are still reluctant to come forward to lay an accusation? Are there other factors that explain the higher level of reporting than we have had in other regions of Canada?
Ms. Boucher: I do not have any statistics or data, unfortunately, on the level of unreported crime in the North or how that compares to the actual level of reporting. I do not know whether the Department of Justice statistics cover that point or not. Possibly the statisticians who will testify tomorrow may be able to elaborate on that. I am not sure how the rate differs in the North.
Senator Joyal: In your brief, you explain why there is less use of section 278 in the North. You say that, in practice, the defence must know that the record exists, as Senator Baker mentioned, and know the information it contains. It is a very important element. In fact, they have to know what they are fishing for, and know that it is likely relevant to the proceeding before they can apply for production.
In other words, they must have established that there is a factor that they will use, as a defendant, in the building of an accused's defence.
Do you feel that those criteria have more difficult application in the North than in other regions of Canada?
Ms. Boucher: It should not be more difficult to meet the threshold that is set. The defence would simply have to pursue those lines of questioning at the preliminary inquiry or determine it from having reviewed the disclosure package. There is nothing about the northern circumstance that would make it more difficult to meet the test that is set in the legislation.
Senator Joyal: My third question relates to the most important point of your brief, which is the fact that some sexual offences could not be the object of an accusation in today's terms because they happen to have been committed prior to 1970. To be able to open the residential school situation, we would have to amend the legislation to cover those.
Could you explain this further? I was about to raise that issue with the previous witnesses just when we adjourned. It seems to be an important element to all the prosecutions that could be opened following the residential schools settlement, that there are some sexual offences that could not be the object of accusation, even though one would have the proof of it because they were not covered prior to 1970.
Could you explain, in your own terms and experience, the recommendation that you make on page 5?
Ms. Boucher: To clarify as well, it is not that the old offences would not be prosecutable. We could certainly prosecute any historic offence, based on the law as it was at the time that the offence occurred. However, it is only that this regime, governing the production of records, would not protect the privacy rights of the complainants in those cases in the same way, and they would fall under the O'Connor regime instead.
Perhaps, for a certain number of old offences that do not exist anymore, and that did not exist in the 1970 version of the Criminal Code, it is possible that some of the other offences that morphed into new versions of the same offence could be covered by these provisions, depending on how the courts did a statutory interpretation analysis.
Certain cases have found that some of the old offences are included in this regime. There was a case from the Northwest Territories that found that if the offence was not specifically enumerated and it was something that occurred prior to 1970, it did not fall under the protections of the regime.
If Parliament thought it was appropriate to more specifically enumerate the sexual offences that existed prior to 1970 as well in the list of offences that are covered by this regime, that would offer more certainty to the regime applying to those old records.
Senator Joyal: What you are suggesting is a type of general clause that would state that all the offences covered prior to 1970 would be covered by section 278 and forward, is that correct?
Ms. Boucher: Something of that nature would make the law more certain, that the section did apply to everything from the past if that is Parliament's intention. Maybe it is Parliament's intention that it does not cover those old offences. However, if Parliament wanted that section to apply to the old offences and wanted to be certain that the courts would apply it in that way, having it be more specific, something similar to what you suggested would achieve that. I could not advise on the exact way to draft it because I am not a legal drafter.
The Chair: The Department of Justice is the biggest law firm in the country.
Senator Joyal: That was an important element from the testimony that we heard. Thank you for it; you have to be a practitioner to identify that in the field, and I appreciate your testimony.
Senator Chaput: Ms. Boucher, you said that in court cases about half result in guilty pleas, so I assume the other half are either being stayed or withdrawn.
In the half of those court cases that are being stayed or withdrawn, what are the factors that brought them to be either stayed or withdrawn?
Ms. Boucher: Just to be a little clearer as well, in half the cases, it is not necessarily a guilty plea that comes out; it is a finding of guilt. Whether it is after a trial or by the person voluntarily admitting guilt, half the cases result in some finding of guilt.
The study done by the Department of Justice between 1999 and 2004 found that about 24 per cent of the cases were stayed or withdrawn. The reasons that they identified for cases being stayed or withdrawn were either there was insufficient evidence in the case to meet the threshold required of the Crown to continue a prosecution or there was unwillingness from the complainant to participate in the process or to continue to participate in the process. That was what that study had found as the reasons for stays or withdrawal.
Their study also showed that in 14 per cent of cases, what happened in the cases was not recorded, so it is not clear. There is no information at all. Then in 13 per cent of the cases, the findings were not guilty. The results are quite varied.
Senator Chaput: In the cases where it was not reported, does the study show whether there was an age factor? Was it more with younger people?
Ms. Boucher: No; the 14 per cent was just not properly recorded either in the court record or in the file in some way that they could work with the data. They could not determine what had happened to the file. It was not that someone did not come forward to report. It was maybe bad recordkeeping that prevented them from knowing the outcome.
The Chair: Thank you both very much. It is particularly important in this committee, we believe, for us to understand the application of what we do and what we study in the North, so your testimony has been appreciated. We are very grateful to you and also grateful for you hanging in longer than we told you.
Colleagues, we meet again in this room at 10:30 a.m. tomorrow morning.
(The committee adjourned.)