Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 19 - Evidence for February 3, 2011
OTTAWA, Thursday, February 3, 2011
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:35 a.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.
[English]
The Chair: Good morning, colleagues. We are continuing our study on the provisions and operations of the Act to amend the Criminal Code (production of records in sexual offence proceedings), which had the number Bill C-46 when it was passed in 1997.
We are fortunate this morning to have as our witnesses Ms. Julie McAuley, Director of the Canadian Centre for Justice Statistics; Mr. Craig Grimes, Senior Analyst at the centre; and Ms. Mia Dauvergne, Senior Analyst, Policing Services Program at the centre, all familiar witnesses. We are very glad to have you back.
Colleagues, Ms. McAuley may have to leave for a while during the proceedings, but Mr. Grimes and Ms. Dauvergne will carry on if she leaves.
I believe you have an opening statement, Ms. McAuley.
Julie McAuley, Director, Canadian Centre for Justice Statistics, Statistics Canada: Yes, I do. Thank you for the opportunity to present to the committee on the issue of sexual offences in Canada.
In Canada there exist two complementary sources of national data on sexual offences. The first, known as administrative data, are collected from police services and courts across the country and include information on all offences that are reported to the police. Sexual-related offices that are reported to the police can be grouped into three categories: sexual assault, prostitution-related offences and other sexual offences. For today's presentation, the term "sexual offences" refers to the grouping of these three categories.
The second source of data, known as self-reported data, are collected from individual Canadians 15 years of age or older through the General Social Survey on victimization. This survey is designed to provide contextual information on victimization in Canada and is seen as a complement to the administrative data. Based on data from the 2009 survey, we know that 88 per cent of sexual assaults are not reported to the police.
The presentation we have prepared contains our most recent data on sexual offences in Canada. All data sources are clearly indicated on the slides, as are any pertinent data notes. Distributed for your consideration are the most recent issues of Juristat, which may be of assistance during your examination of sexual offence legislation in Canada.
As mentioned, my colleagues Ms. Dauvergne and Mr. Grimes will help answer any questions. If you would, please turn to the first slide in the deck.
Using data received from police services across Canada, we can examine trends in police-reported incidents involving sexual offence. Over the last 10 years, the rate of police-reported sexual assaults, which includes the three levels of sexual assault, and the rate of police-reported prostitution have decreased while the rate of other sexual offences reported to the police has increased. Other sexual offences include a number of different offence types under the Criminal Code and are predominantly committed against children.
In 2009, police reported approximately 30,000 incidents of sexual offences in Canada. This represents a slight decrease from the year prior and a continuation of the downward trend in police-reported incidents of sexual offences over the last decade.
Because of the geographical variation in the types of sexual offences, the next three slides look at sexual assault, prostitution and other sexual offences separately.
On slide 3 we see that in 2009 the highest rates of police-reported sexual assaults in Canada were in the North, with Nunavut reporting the highest rate at 656 per 100,000 population. While the rates of police-reported sexual assaults in five jurisdictions were lower than the Canadian rate, the lowest rate was in Prince Edward Island.
In 2009, the rates of police-reported other sexual offences were also highest in the North, with Nunavut reporting the highest rate at 81 per 100,000 population, followed by the Yukon and the Northwest Territories. Ontario and Alberta were the only jurisdictions where the rate of police-reported other sexual offences was below the national rate.
Turning to police-reported prostitution offences, on slide 5 we see that the highest rates are found in the Western provinces, where in 2009 the rates in Saskatchewan, Alberta and British Columbia exceeded the national rate. Unlike sexual assaults and other sexual offences, the lowest rates for prostitution offences were seen in the Yukon and Nunavut.
The next slide is based upon 2009 data reported to Statistics Canada by police services and provides an overview of the ages of victims of police-reported sexual assaults and other sexual offences.
In 2009, regardless of age, females were more likely than males to be a victim of a police-reported sexual assault or other sexual offence. Children and youth were more likely to be a victim than those 18 years of age and older.
Turning to Slide 7, we can examine the situation with the children and youth victims. In 2009, police identified about 14,000 children, 0 to 17 years of age, who had been the victim of a sexual offence. The vast majority, about 8 in 10, were girls.
Female children of all ages are more likely than male children to be the victim of a sexual offence. The gap in victimization rates between girls and boys is particularly evident during the teenage years when girls appear to be most at risk. In particular, for girls 13 to 17 years of age, about 1 in 160 were the victim of a sexual offence in 2009. This was about nine times higher than the rate for boys of the same age range.
The number of sexual offence cases completed in adult criminal courts in Canada has remained relatively stable during the last four years, as is seen on slide 8. In 2008-09, there were just under 15,000 sexual offence charges in Canada, which were contained in approximately 6,700 court cases where a sexual offence was the most serious charge in the case. In that year, approximately half of the sexual offence cases completed in adult criminal courts in Canada involved a most serious offence of sexual assault level 1; slightly less than one quarter were for prostitution-related offences; and 21 per cent were for other sexual offences.
On slide 9 we see that in 2008-09, cases involving other sexual offences were more likely to result in a finding of guilt than those cases involving sexual assault or prostitution. The level of acquittals was highest in cases involving sexual assault charges, while the levels of stays and withdrawals were highest in prostitution-related cases. Stayed and withdrawn cases include those cases where the accused has entered into a diversion or alternative measures program.
Slide 10 shows the difference in the types of sentences imposed across the three different offence categories that comprise sexual offences in Canada. In 2008-09, custody was the most serious sentence imposed in 78 per cent of cases involving other sexual offences, while probation was the most serious sentence imposed in 36 per cent of cases involving prostitution offences.
For cases involving sexual assault offences, the most serious sentence imposed in 54 per cent of cases was custody. However, when looking at the different types of sexual assaults, we see that in 2008-09, custody was imposed in 80 per cent of cases involving aggravated sexual assault and 73 per cent of cases involving sexual assault with a weapon.
In 2008-09, for cases where the accused was sentenced to custody, the longest median length of custody was for aggravated sexual assault followed by sexual assault with a weapon. These median lengths of custody imposed are among the longest in adult criminal court preceded only by homicide and attempted murder.
While the median length of custody for other sexual offences was 180 days in 2008-09, 19 per cent of all guilty cases involved sentencing to custody for two years or more, which is federal custody, compared with only 4 per cent of adult guilty cases in general. These longer court custody lengths may indicate the seriousness with which the courts treat these cases.
The next slides refer to findings from the 2009 General Social Survey on victimization.
Overall, Canadians reported similar rates of sexual victimization in 2009, 2004 and 1999. As was previously the case, the majority of sexual assaults reported to the 2009 General Social Survey were the least serious form of sexual assault. For example, incidents of sexual touching, unwanted grabbing, kissing and fondling accounted for 81 per cent of sexual assaults reported to the GSS. In contrast, sexual attacks, which involve the use of threats or physical violence, accounted for about one in five sexual assault incidents. These findings reflect those shown in police-reported data where in 2009 the least serious types of sexual assault comprised the majority of sexual offences.
Rates of sexual assault are higher among females than among males. In 2009, the self-reported sexual assault victimization rates for females was twice the rate for males. Of the sexual assaults reported by respondents to the General Social Survey, 70 per cent involved a female victim. In comparison, females were victims in 38 per cent of physical assaults.
Turning to slide 13, in each cycle of the General Social Survey victims are asked whether or not the incident came to the attention of the police. Overall, nearly two thirds of incidents were not reported to the police in 2009, while 88 per cent of sexual assault incidents were not reported.
There are many factors that influence whether criminal incidents are reported to police. When asked, those individuals who reported being a victim of a sexual assault in the 12 months preceding the survey provided any number of reasons for not reporting to police. These included feeling that the matter was not important enough to report and that it was a personal matter, dealing with it another way and not wanting to get the police involved.
Once again, thank you for the opportunity to present to the committee. This ends the presentation.
The Chair: Thank you very much. As usual, that was extremely interesting.
Senator Wallace: Thank you for your presentation. You have provided us with a lot of information to absorb.
As you know, the purpose of this hearing is for us to review the effectiveness of what was Bill C-46 back in 1997, which, as you know, deals with the requirement to produce reports on information relating to complainants and witnesses. What would you refer us to in your statistics that would be helpful in assessing the effectiveness of Bill C-46?
As I understand it, one of the major objectives of Bill C-46 was to encourage complainants to come forward to the police when sexual offences occur. I believe there has been a reluctance, for a whole host of reasons, and you have touched upon them. One reason may be that there are things in people's past that they would not want to have brought before an open court. I believe the thought was that Bill C-46 would provide additional comfort to complainants and witnesses in those circumstances.
What in particular would you refer us to in your statistics that could help us in assessing the effectiveness of Bill C- 46 in causing these complaints to be brought forward to the police?
Ms. McAuley: Although that is a good question and pertinent to the study you are doing, unfortunately Statistics Canada cannot comment on the effectiveness of a bill, so I would not be able to point to something specific that would relate to that. However, I will ask my colleagues whether there is something in particular they would like to add.
Senator Wallace: I realize that you cannot express an opinion. You might have an opinion, but that is not why you are here today. In terms of the information that you have, if there is particular data that you would want to draw to our attention that would help us in our task, that would be helpful.
Ms. McAuley: In terms of the willingness of an individual to come forward to the police, I point you to the results of the 2009 General Social Survey and the Juristat article that was provided to you, which is entitled "Criminal victimization in Canada, 2009." In that report, a section talks directly about why an individual would not necessarily come forward to the police. Data tables are also provided within the Juristat. If you would like anything else, we would be happy to provide that to you in a timely fashion.
Senator Wallace: Do you have any data regarding applications that have been made to the courts for the production of documents that would be subject to what was Bill C-46? There was some evidence yesterday regarding that, but I am wondering whether Statistics Canada has any information on that.
Craig Grimes, Senior Analyst, Canadian Centre for Justice Statistics, Statistics Canada: We are working on collecting more information on all matters that come through criminal courts, but there is currently no data on the applications or motions other than what is available through regular criminal charging practices. Motions and applications are not part of the published data set because they are not criminal charges. Part of the problem is linking the motions and applications with the individuals and the charges. We have not fully investigated that.
Senator Lang: I would like to refer to those statistics on police-reported sexual assaults, primarily in Yukon, the Northwest Territories and Nunavut. Obviously, one assault is one too many, but it is staggering to see the number of assaults taking place in those three jurisdictions.
Are police-reported sexual assaults cases that have actually gone to court, or are those complaints that have not necessarily moved forward?
Mia Dauvergne, Senior Analyst, Policing Services Program, Canadian Centre for Justice Statistics, Statistics Canada: That number represents the number of incidents that were brought to the attention of police and then substantiated through police investigation as being criminal incidents.
Senator Lang: Have they proceeded to court?
Ms. Dauvergne: Not necessarily. They are not connected to our court data. This is just information directly from police services, whether or not they proceeded to court.
Senator Lang: I want to get this clarified. This says that in Yukon there were 205 per 100,000 population. Does that mean 205 sexual assaults were reported that year?
Ms. McAuley: That is the rate per 100,000 population. The actual number of sexual assaults in Yukon in 2009 was 69. Because we show it as a rate, it is always useful for us, if you are interested, to provide the actual number of offences as well.
Senator Lang: That is an important clarification. As I live in Yukon, I knew that the sexual assault rate there is higher than it should be, but from this I thought there were 205 sexual assaults, and obviously that is not the case. The document can be misleading unless you analyze how it is being presented. I would be concerned if the media were to run an article saying that that is the number of assaults there in a given year. Sixty-nine is too many as well.
I have a question of procedure. This committee has been asked to review legislation that has been in place for a number of years, yet to my knowledge we have no information from the provinces and other jurisdictions that have had to deal with this legislation showing us the effect in those jurisdictions.
I suggest that if we are asked to do this in the future, there be correspondence with the jurisdictions well in advance saying that the legislation will be reviewed, as per the request by Parliament, and asking for comments so that we have that prior to launching into a review of the legislation.
The Chair: We virtually always do that. At the steering committee's first meetings on how to approach a study, whether it be a legislative review or on an actual bill, we almost automatically decide to contact all the provinces and territories to ask for comments on their experience or on what they think would be the effect of the bill, if it is a bill. Sometimes they do provide comments; often they do not.
The only times we would not do that would be if a bill before us had no implications at all for provincial governments or jurisdictions. Given this particular committee's mandate, that is more rare than common. You can almost always take it for granted that we have already sent out invitations to all of the provincial and territorial governments.
Indeed, in this case, that has been done. Of course, we cannot force them to get in touch with us, nor would we wish to try.
Senator Angus: If I read the legislation correctly, the review was supposed to have taken place two or three years ago, and here we are in 2011. You must have addressed that in the steering committee.
The Chair: Yes. The situation is that, probably because both the House of Commons committees and the Senate committees that deal with justice matters always have a very heavy workload of actual legislation, there is quite a long list of bills that call for a statutory review and where that review has not been done. We have been attempting to tackle that list. As I recall, this was the most overdue.
Senator Angus: I am glad I asked.
The Chair: We are doing our best.
Senator Angus: Also, if I read it correctly, it said either the House of Commons committee or the Senate committee. Are we negotiating who will do what? Why did we get this one?
The Chair: No. We checked, but we did not negotiate. It was not on the House of Commons Justice Committee's agenda, and we thought that since we had said we would do this, we had better do it.
Senator Angus: Thank you.
The Chair: Forgive that internal interruption.
Ms. McAuley: If it would help to address Senator Lang's comment, we would be happy to read out the number of actual violations in each of the jurisdictions, or provide it to the clerk at a later date. We can also provide you with the reason that we show the rate rather than the actual number, if that would help at this time.
The Chair: If you could provide that for us, that would be great. This session is not being televised, so there are not hundreds of thousands of Canadians sitting on the edge of their chairs thinking that there were 200-odd offences in the Yukon, but for the records of this committee I think that material is important.
Would that be all right, Senator Lang?
Senator Lang: Yes. Thank you very much.
Ms. Dauvergne: If you would like, I could provide an example that might help you to understand why we calculate rates rather than provide numbers. Would that be useful?
Senator Lang: Yes.
Ms. Dauvergne: If we look at strictly number, we see, for example, that there are over 7,000 police-reported incidents of sexual assault in 2009, and, as Ms. McAuley said, there were 69 in the Yukon.
Calculating rates allows us to make comparisons between the different provinces and territories using a base that is the same. In the rate we see that Ontario is actually among the lowest in the country for police-reported sexual assaults, whereas the Yukon is one of the highest. It allows us to look at how many incidents are occurring according to the same number of people across the country.
The Chair: In that way, someone who lives in the Yukon and someone who lives in Toronto would be able to know the likelihood that they might be the victim of an assault.
Ms. Dauvergne: Exactly.
The Chair: Is that correct? No?
Senator Lang: That does not bode very well, does it?
The Chair: As you said, even 69 is too many, but so is 1 sexual assault.
Senator Lang: Yes.
The Chair: I believe in Prince Edward Island the rate was 1. That is still too many: 1 per 100,000.
Ms. Dauvergne: If we did not do it that way, because the populations and the number of people are so large in Ontario, Quebec and British Columbia, the numbers would typically be much higher than in the rest of the country. We calculate the rate in order to be able to make the comparisons between the provinces and the territories.
Senator Lang: I wish to follow up further on these statistics.
When we talk about 69 reported incidents, could this also be a situation where one individual is involved in a situation with three or four different reported assaults? Are we dealing with 69 different offenders?
Ms. Dauvergne: In this particular situation we are presenting the number of incidents, not the number of offenders. Yes, theoretically, it could be the same person.
The Chair: Do you have data on the number of offenders?
Ms. Dauvergne: We do have data on the number of offenders, which we could provide to the committee.
The Chair: Perhaps you could send that to us. That would be interesting.
Senator Lang: For the record —
The Chair: Yes, Senator Lang. This is your last question.
Senator Lang: I believe these statistics were done in 2009. Do you have them for 2008 and 2007 as well? Perhaps you could break that down according to what we have asked?
Ms. McAuley: Certainly, we could go back. We can even go back 10 years.
Senator Lang: Three years is enough.
Ms. McAuley: We will provide that to the clerk.
Ms. Dauvergne: We can provide that information, but that is keeping in mind that it will pertain only to incidents that have been solved by the police. We only have information on accused persons when they have identified an accused person.
Senator Runciman: In your opening comments, you said 88 per cent of sexual assaults are not reported to police. How long have you been keeping those statistics? Were they kept prior to the passage of the legislation under review?
Ms. McAuley: We have been conducting the General Social Survey on victimization every five years for several cycles. I do not know how many cycles back, but I think we do have data from 1994, which would precede Bill C-46's coming into effect. We could go back, if you would like, and provide you with that information.
Senator Runciman: That might be interesting to look at and compare them.
In one of your slides, you talk about the reasons for not reporting sexual assaults. Who conducted that?
Ms. McAuley: That was a Statistics Canada survey conducted on a random sample of Canadians age 15 years or older.
Senator Runciman: How was it conducted? Are these questions posed? Is there some prompting, or is this off the top of their heads with respect to giving you an indication why they would not report?
Ms. McAuley: No, it is an interviewer-conducted interview. A Statistics Canada employee asks the questions. The questionnaires are designed in consultation with a number of stakeholders and user groups. We would be happy to provide you with the questionnaire, if you wish to see it. In this instance the question would be asked: "In the 12 months preceding the survey, have you been a victim of a sexual assault? A sexual assault would include . . ." Respondents are then provided with the list of what would be included in the definition of sexual assault, which would be forced sexual activity, an attempt at forced sexual activity, or unwanted sexual touching, grabbing, kissing or fondling.
Senator Runciman: Looking at that and then looking at the other slide where you talked about the median length of custody and aggravated sexual assault, which, according to the Criminal Code, is "wounds, maims, disfigures or endangers the life of" a victim, it struck me that the average sentence is less than two and a half years. That is the average median sentence. For sexual assault with a weapon, it is just under two years. That is the median length of custody.
Looking at the penalties being meted out, it seems to me that should have entered into consideration. There is an element here, I would think, that a victim would want to ensure that the individual who committed the assault will be locked up and will receive a penalty that is appropriate to the offence. If you look at the numbers you have collected, I would suggest that that should have been a concern.
The Chair: We are quite a long way from Bill C-46 here.
Senator Runciman: I do not think so.
Senator Lang: Not really.
Senator Runciman: We are talking about the witness's testimony that we have just heard today. I do not see where I am straying from what was presented to us. I think it raises legitimate questions.
Senator Lang: I was —
The Chair: Just a second, Senator Lang. Let Senator Runciman finish his question.
Senator Runciman: When we have officials from Statistics Canada before us on a number of occasions and they cannot answer policy questions — and, they made that clear — when we are talking about crime statistics, I think we should be able to stray a bit. I would ask for that latitude. I am hoping to ask a few questions that do not necessarily relate directly to that.
The Chair: Press on, then.
Senator Runciman: Thank you very much.
You talked about the General Social Survey on victimization that you conduct every few years. An interesting aspect to it was the characteristics of victims. A lot of information is collected about the characteristics of victims, for example income, age, immigration status, whether or not they are members of a visible minority and that sort of thing.
Why do we not collect similar information about people who commit crimes? Would that not be useful as well in measuring systemic performance and suggesting reforms? I would like to hear from you on that because it has always struck me as curious that we collect that kind of detail about victims but not about the people who commit the crimes.
The Chair: What data do you collect about the people who commit the crimes?
Ms. McAuley: We have information on age and sex. In the past we tried to collect information on Aboriginal status, but we have been unsuccessful. We do that working with the police forces across Canada, but at the present time all we have is age and sex.
Senator Runciman: If you chose to do this, you could, I think, have offender data such as crimes committed by persons on bail, on probation, on conditional sentence, on conditional release of any kind with a defined criminal record; chronic offenders; offenders unlawfully at large, previously removed, ordered or subject to deportation for previous criminal conduct, et cetera. Is that kind of data within your means to collect? Would it be helpful?
Ms. McAuley: Presently, it is not within our means to collect that data. Some of that information is currently available through Correctional Service of Canada and the Parole Board of Canada for individuals who are currently on conditional sentence and whether they would reoffend during that period of time. At the present time, Statistics Canada does not have the capacity to collect that information.
Regarding the police data, I want to clarify something. I failed to mention that in addition to the age and sex, we also have the relationship to the victim.
Senator Runciman: Could you send the committee a note on why you do not have the capacity to collect that kind of data so that we have that on the record?
Ms. McAuley: Certainly.
Senator Lang: I want to follow up on Senator Runciman's question, because he raised a valid point. The median time of incarceration is two years and sometimes less than two years. Can you indicate to us the average actual sentence that was given? That would give us an idea of how much time was actually authorized by the court and how much time was done by the offender.
Mr. Grimes: This is something like Bill C-25, the difference between what would have been given versus what is left to be served, taking into consideration the time spent in custody prior to sentencing?
Senator Lang: Yes.
Mr. Grimes: We are working to collect that information with our respondents. We do not have that information presently.
The issue is getting that type of information in the information systems from which we collect data and then getting it into our reports. Right now, we are not collecting any of that information from our respondents. We have the information on the sentence left to be served. It does not take into consideration the time that was spent in custody prior to sentencing and the credit that was granted upon sentencing.
Senator Joyal: My first question refers to the chart on page 6, which gives the numbers by distribution of age.
My question might be peripheral to your presentation. Of the 88 per cent of assault cases that are not reported, can we assume that they would be distributed roughly along the lines of the age group that you presented to us as being reported? What you presented to us in terms of age are the cases that have come forward. However, for those that have not come forward, can we assume that they would be distributed along those age lines?
Ms. McAuley: We would not be able to make that form of interpretation. The General Social Survey on victimization asked questions to Canadians 15 years of age or older, so we would not be able to take what is happening in these situations back to ages 0 through to 14.
Also, the 80 per cent of sexual assaults that go unreported or the sexual assaults that an individual reports to the General Social Survey are their interpretation of the situation. It does not mean that it was actually by the definition within the Criminal Code a true sexual assault. We trust their answers, but they have not been substantiated by the police. However, what we have in front of you on slide 6 is the rate by age of victim, which has been substantiated by the police.
Senator Joyal: If we try to develop an approach to better inform victims that they should come forward, where should we target our information campaign or the initiative that might be taken to sensitize those people to the fact that they should come forward? In other words, how should we target the group that should be the object of additional information or reassurance and so forth to come forward?
I am trying to understand how we can make the link to those who are not reporting and how we can approach them to incite them to report. Do you understand my question?
Ms. McAuley: I do; I am just trying to think.
Ms. Dauvergne: That is another good question. Unfortunately, at Statistics Canada we cannot make recommendations on how policies should be implemented. What we can tell you is that for police-reported sexual offences, we are seeing the age distribution peak among the teenage years.
Senator Joyal: My next question is in relation to the chart at page 13, which gives the reasons for not reporting on your general survey.
When I look into the various reasons given, I am trying to make a relationship with statistics that you have presented to us before, which led you to conclude that most of the accused are drawn from the family circle or from people who exercise some form of authority in relation to their victims. The bulk of the victims are young. They are teenagers, as you said. The majority of the reasons given are that it is a personal matter that was dealt with in another way, or that it was not important enough. They tend to relate to the fact that they are with people with whom they have some trust — that is, family, people in a position of authority in the school system or in leisure activities such as a hockey team.
Can you give us the relationship between the statistics of those who are found guilty of sexual assault or sexual offences and the victims?
Ms. McAuley: Our police-reported data would provide that information. However, that would be the administrative data. These data are collected from the survey among those aged 15 and older. We would not be able to provide you anything going back to age 0.
We would have information — and correct we me if I am wrong — on the relationship through the General Social Survey on victimization. We know whether individuals were victimized by a stranger or by someone they knew. I do not think we would have the granularity, though, to be able to go further and say that it was a coach or a teacher.
Senator Joyal: Or an uncle, or a cousin, or that sort of thing?
Ms. McAuley: We would not have that. We also have low counts, so we might not be able to publish those data if we did have them. I can go back and we can look at that for you.
From the police-reported side, we can take the chart on slide 7 that looks from age 0 to 14; we presented that before in front of a different Senate committee for Bill C-268. It looked at the relationship between the young males and females who were the victim of a sexual offence and their relationship to the offender. We can provide that to you, if you wish.
Mr. Grimes: There is no information on the courts data on the relationship of the victim to the accused. With respect to guilty cases, it is not possible without record linkage with police records, for example.
Senator Joyal: Returning to my first question, if we are to think of a policy or a recommendation about getting better information to the target group, potential victims, then we must inform them or give that information some substance, for example whom they should be aware of and what attitude of trust they should maintain or not maintain with people who could be the predators for those teenagers and the younger ones. You said it is the younger ones for whom the victimization statistics are increasing. That is what I am trying to understand here from the figures you are giving us: Where should we be thinking that the most compelling dangers lie in trying to devise an approach that would be effective in terms of its target and in terms of the group that should be the objective of the information?
Ms. McAuley: Again, unfortunately, we cannot comment on the effectiveness of the legislation that is going forward. We will be happy to provide you with any of the information, whether it is from the administrative data, the police-reported information or the information from the General Social Survey. If you would like, we can help you interpret what those data are saying.
Senator Joyal: Perhaps you can give us your statistics on the number that you mentioned. What figures do you have regarding the people who were known to the victims?
Ms. McAuley: Yes.
Senator Joyal: That will at least circumscribe where the dangers lie. That is, do the dangers lie more with a person they know than with a predator?
Ms. McAuley: We can happily provide that data to the clerk.
Senator Joyal: My last question involves page 11 of your deck. You commented about the median length of custody for sexual assault, and you mentioned some relationship with the homicide and attempted murder statistics. Could you repeat what you said about that?
Ms. McAuley: Certainly, and I can give you the exact numbers.
In 2008-09, for those cases where the accused was sentenced to custody, the longest median length of custody was for aggravated sexual assault, followed by sexual assault with a weapon. These median lengths of custody imposed are among the longest in adult criminal court, preceded only by homicide, where the median length of custody is 1,825 days, or five years; and attempted murder, which is at 1,715 days, or 4.7 years.
The Chair: It is 1,715?
Ms. McAuley: Yes, or 4.7 years.
Senator Joyal: In other words, on a scale of all the criminal charges and the most important criminal charges, those figures, especially those numbers of aggravated sexual assault or sexual assault with weapon, would come below the homicide or attempted murder?
Ms. McAuley: They would be third and fourth in the order of the median length of custody received.
Senator Joyal: Thank you.
[Translation]
Senator Chaput: As a member of the committee, I am trying to determine where I stand on the bill we are currently considering. I would like to understand or see whether this bill has had an impact, whether it has made a difference in terms of the objective or purpose for which it was designed. I understand there are a number of questions you cannot answer. From your interpretation of the statistics, is it possible to say whether this bill has had an impact on sexual assault victims, according to your interpretation of this statistics? Further, can you tell us whether it has made a difference in terms of the number of cases reported, or requests for the production of records? Are you in a position to provide us with that information?
[English]
Ms. McAuley: I will refer you to the second slide in the deck, which looks at the trend in the rate per 100,000 population for the police-reported sexual assault offences, prostitution offences and other sexual offences.
At Statistics Canada, we would not be able to say that the downward trend overall is a result of the lobbying put into place. However, I will point you to how the trend is. There is a downward trend overall in sexual offences in Canada. As I mentioned in my comments, the downward trend is predominantly in sexual assault, the majority of which is sexual assault level 1. There has also been a downward trend in the prostitution offences and an increased trend in the other sexual offences, which are predominantly committed against children.
Senator Chaput: Fair enough; thank you.
The Chair: I want to ask about the self-reported data.
Ms. McAuley: That is contained in the last two slides, 12 and 13.
The Chair: Yes, page 12. About 64 per cent said they did not report because it was not important enough. That sounds to me as if we are talking about level 1, which is a low level of seriousness of sexual assault. I am not suggesting that any assault is not serious, but some are clearly more horrific for the victim than others. That sounds to me as if a large number of these unreported sexual assaults would fall into the area where the victims would say it was unpleasant; they did not want it and never want it to happen again, but they would not say that this is up there on that serious scale.
Ms. McAuley: Yes. As I mentioned in my comments related to slide 12, incidents of sexual touching, unwanted grabbing, kissing or fondling were 81 per cent. Those would fall into sexual assault level 1. However, we do not ask specifically on the different kinds of sexual assault.
The Chair: That was what I wanted to ask.
Ms. McAuley: They are general.
The Chair: You do segregate out level 1, 2 or 3, but 81 per cent are level 1?
Ms. McAuley: Yes. We can match it back to the breakdown of the sexual assault categories. However, as I said previously to Senator Runciman, the question asked specifically about forced sexual activity, attempted forced sexual activity, unwanted sexual touching, grabbing, kissing or fondling.
Senator Joyal: It would be on chart 13, the first one, "not important enough, 64."
The Chair: Yes, "personal matter dealt with another way." One would assume that that 81 per cent would —
Senator Joyal: I want to understand what those figures might mean and why they are so high in terms of the reasons given not to report.
The Chair: I hesitated about raising this one because it is, perhaps, a whole new chapter. However, on page 13, your footnote says "excludes incidents of spousal sexual assault." That is also on page 12. Can you tell me why they would be excluded?
Ms. Dauvergne: It is a methodological reason. When the survey asked questions to respondents, it also asked what the relationship was between the victim and the person who committed the offence.
When it is a spouse who would have committed the incident, the survey goes into a separate module that cannot be combined with the overall module, if that makes sense. They are two separate databases of information that cannot be combined together.
The Chair: So you have data somewhere on sexual assault that is spousal?
Ms. Dauvergne: We do have data on spousal sexual assaults that could be provided to the committee, but they cannot be combined with the overall data.
The Chair: Senator Lang, I was going to give you a brief chunk of time for what I assumed was your second round.
Senator Lang: No, I wanted to follow up on the question you were going to ask: Why were the data from the Northwest Territories, Yukon and Nunavut excluded?
Ms. Dauvergne: Again, this is a methodological reason. The data for the Northwest Territories were collected through a separate survey; because of the difficulty sometimes in reaching survey respondents in the territories, we did more personal visits to those areas. There were methodological reasons that made it such that we could not combine that information with the data from the provinces.
The Chair: But you have that?
Ms. Dauvergne: We do have that information, and we are in the process of analyzing it. It has not yet been released, but that will be done within the next few months.
Senator Lang: I would like a copy of that.
The Chair: This study will take us a little while, so we will probably still be at it when that is done.
Senator Baker: As an aside, would you have the figures on the numbers of these sentences that were served in the community, commonly referred to as house arrest?
Mr. Grimes: For sexual assault, for all of these offences?
Senator Baker: Yes.
Mr. Grimes: Yes, there is some data. It is presented on slide 10. In addition to the percentages that are here, I can provide you with the numbers of those sentences. Technically, a conditional sentence is a custody sentence served in the community.
Senator Baker: "In the community" would be the wording that would be used in the court documents; we refer to it as house arrest.
The Chair: Yes, provisional sentence.
Senator Baker: It certainly is not probation that I am talking about; it is to serve the sentence. I see that you have referenced that.
Ms. McAuley: We can provide you with further detail than what is presented on slide 10. We can break down the sexual assault by the three levels of sexual assault by these types of sentencing, if that would also be of interest.
The Chair: Senator Runciman has a supplementary to Senator Baker's supplementary of Senator Lang. This is coming under the category of supplementaries.
Senator Runciman: I was looking at the adult criminal court statistics, the Juristat article by Jennifer Thomas. There is a reference in here to identifying factors that lead to delays in court process. You are not collecting that kind of information, but you indicate it is being collected in other jurisdictions.
In terms of unreasonable delays in processing, is there any plan to take a look at what is happening in Canada? Delays in the system are a real issue in many jurisdictions. I am sure there are unique factors in Canada, such as pre- trial credits; the number of adjournments, for a whole range of reasons; and those sorts of issues. I think it would be interesting for this committee, and legislators in general, to have that kind of information.
Mr. Grimes: Quite a bit of information is available on the elapsed time in court. The difficulty is differentiating between what is reasonable and what is unreasonable delay. Having that type of information is very difficult using the administrative records. With the statistics we are collecting, it is difficult to differentiate whether it was the actions of the accused or systemic problems.
Senator Runciman: You can collect the data without making a judgment.
Mr. Grimes: That is correct. We can include many factors — whether there was a bench warrant, the number of charges in the case, number of adjournments, number of appearances. Absolutely, that is correct.
The Chair: We thank you all very much. It was very instructive and helpful. As usual, we have given you more homework, but it is very useful for our work.
Colleagues, we will allow the new witnesses to come forward. We continue our study on the provisions and operations of the Act to amend the Criminal Code (production of records in sexual offence proceedings), adopted in 1997, at which time it was Bill C-4.
We are now delighted to have with us as a witness Professor Karen Busby, who is a professor of law at the University of Manitoba, academic director of the university's Centre for Human Rights Research Initiative, and a specialist in the area that concerns us. I believe Professor Busby has a statement.
Karen Busby, Professor, as an individual: It is my pleasure to be here, and I would like to thank the committee for inviting me to come today.
I will start by saying that you have notes before of you, but most of this I will not be presenting; I will selectively skip through it, but that should help you see where I am going. Following that, I will be pleased to answer questions.
Throughout the 1990s I was on the legal committee of Women's Legal Education and Action Fund, LEAF. In that capacity, I worked on a number of Supreme Court of Canada interventions in sexual violence cases. I was also very much involved in the process leading up to the passage of Bill C-46, and I will refer to it as Bill C-46 because it is too confusing to refer to all the section numbers.
I am not here as a representative of LEAF. I have had discussions with LEAF about this presentation, but I am not representing their position. That said, what I am saying is consistent with what LEAF will present to you — they have been asked to be a witness at these hearings — in a few weeks or months.
In my presentation I want to focus on three things. As I am one of the first witnesses to appear before this committee, I want to spend some time talking about why Bill C-46 was passed in 1997. Then I will talk about how well the provisions are operating. Finally, I will offer some suggestions for ways in which the spirit and intent of Bill C-46 can be more fully realized.
I regret I do not have a more formal brief to present to this committee. I would love to have one, but I was asked to come less than two weeks ago, and I am in the middle of a busy teaching term.
I attended the hearing yesterday because I wanted to get a flavour for what some of committee members' concerns are. I brought some materials today that answer some of the questions you were asking yesterday. I think they are being distributed. In particular, I will talk about research done last year by a student of mine, Jennifer Guiboche. She focused particularly on independent representation in sexual violence records cases and did a survey across the country. It was sophisticated research for a third-year law student to undertake. I have circulated that paper to you. It has not been peer reviewed, however. I am encouraging her to continue working on it, but peer review has not happened yet.
Let me start by telling you a story. In 1993 I was working with a group of sexual assault experts on a Supreme Court of Canada intervention in a case. Someone at that meeting asked us if we had heard about the Osolin case, and none of us had. It was a terrible case. The facts were horrible and involved the sexual assault of a 17-year-old girl.
However, the brutality of the assault or even the ludicrousness of the defence was not what shocked us. Rather it was that the accused had her psychiatric records and wanted to cross-examine her on her psychiatric records. All of us were shocked. This was in 1993. We had never heard of an accused getting access to a complainant's psychiatric records. All of us had been working for at least a decade on sexual violence-related laws or doing front-line service provision.
What was the possible relevance of the records? How did he get them? This case had already been argued in the Supreme Court of Canada on a number of issues, including the defendant's use of those records.
We found out that the defendant got the records simply by asserting at the preliminary inquiry that the complainant might not be competent as a witness because she was under psychiatric care. Once he had the files, it became apparent there were no competence or memory problems associated with her psychiatric difficulties, but now the defendant knew that she had a difficult relationship with her parents. Now he thought perhaps she had a motive: Did she make the assault claim to explain why she had stayed out all night?
We immediately started to make inquiries to front-line workers across the country: Were complainants' personal records getting into defendants' hands? They said they were, but that it was a brand new practice. They had started to see this tactic for the first time in 1988.
The defence bar was going after all kinds of records, not just psychiatric and counselling records. They were going after child welfare records; school records, including Indian residential school records; hospital records; abortion records; employment records; diaries; and anything they could find. As I said, I want to keep emphasizing it was a brand new practice.
A few months later, the Supreme Court of Canada issued the Osolin decision, and it held that once the defendant had the records, he was free to make whatever use he wanted of them. The effect of the Osolin case was to light a fire under defence counsel. They started making applications for whatever records they could find in every single sexual violence case. In fact, some lawyers quickly formed the opinion that good practice demanded that they seek every possible record on a complainant in sexual violence cases.
More often than not, judges simply handed over the records just on the basis of a request. There was no law or procedure in place. This was all brand new, so the requests were made at preliminary inquiries, and the records started to be handed over.
We also learned that in many cases defence counsel wrote letters directly to record keepers and told them they had to hand the records over. Record keepers, often in violation of their professional, ethical or statutory obligations, wanted to avoid a court appearance, so they just started mailing the records off to defence counsel. It was a surprisingly successful tactic.
After the Osolin case was decided, the Supreme Court of Canada granted leave to appeal in a case called O'Connor. It is quite a famous case because it involved a man who is now a Catholic bishop who was alleged to have sexually assaulted four young women who were students and then employees at a residential school at which he was the principal in the 1960s and 1970s. He said that nothing had happened.
He sought access to their complete residential school file and all of their counselling and medical records for 30 years. He wanted the 20 years they were at residential schools and 30 years of counselling and medical records. He wanted everything that had ever been recorded about these women in some way to be released to him. The lower courts agreed that all of those records had to be turned over.
LEAF worked with front-line workers and other experts, and I was involved in this process, on what position we should take in the O'Connor case. It was our position that personal records should never be disclosed because the use of such records reinstated sexism, distorted fact-finding and violated a complainant's personal integrity.
It is important to note that four out of nine judges sitting on the O'Connor bench agreed that the records should be released only in the rarest of cases. They agreed with us that these records would rarely be relevant. However, a bare majority of the court — five out of nine — found that the practice of assessing personal records for material that would discredit or embarrass complainants, a practice that had now been around for only maybe five years, was now a constitutionally protected right for those accused of sexual assault.
The effects of decisions like O'Connor and Osolin were disastrous for women and children. Not only did they reinstate traditional but highly discriminatory beliefs about those who have been sexually assaulted and reinstate the beliefs that everyone who makes these complaints must be delusional or vindictive, but they also now operated to separate women from support systems that had been developed to help survivors understand and challenge the oppression of sexual assault.
Equality-seeking groups before the O'Connor case was argued immediately went to the federal Department of Justice and said there was a crisis developing in the country. There is chaos. All of the reforms that had been introduced in the last two decades would be undone if this practice was allowed to continue. Ultimately, as you know, Bill C-46 was introduced.
There were many ways in which the bill was designed to reduce defence access to complainant records, but I will mention two. First, it says that certain assertions about relevance alone are not enough to establish that records are relevant; you need to have more than a bare assertion that you need the record because, for example, it might contain a prior inconsistent statement.
Second, the bill required judges to seriously consider complainants' constitutional equality rights. Equality rights are not even mentioned in the Osolin or O'Connor cases. It was unbelievable that they could ignore equality rights altogether. They talked a little bit about privacy but ignored equality.
When I speak about equality rights, what I am thinking of here is for judges to consider how record-use practices reintroduce discredited rationales for impugning a complainant's credibility and the impact that allowing access to records would have on the willingness to report or to seek assistance when making production and disclosure decisions.
Bill C-46 did not reflect the position taken by women's organizations in the O'Connor case. Remember, our position was that records should never be used. We were willing to support the compromise in Bill C-46 as the minimal protection that should be afforded to plaintiffs.
I will turn now to how well the provisions are operating. They have been in place for 14 years. I will focus on two areas where research has been conducted: I will talk about a case law analysis that gets at some of the questions that the senators were asking in the first part this morning and some of the questions they were asking yesterday; then I will also review some of the research on independent counsel representation for complainants in these cases.
I will start with my conclusion, because it responds to questions yesterday by Senators Wallace and Runciman and by Senator Chaput today about whether we are better off with the bill than without. The answer is an unequivocal yes; we are better off with the bill.
The spectre of personal records production created a chaotic situation that threatened to undo all the reforms Parliament had made to sexual assault law in the 1980s and 1990s. Bill C-46 brought sanity and vision to address the problems.
I would be remiss if I did not mention the extraordinary service provided by Catherine Kane in the processes leading up to Bill C-46. You heard from her yesterday.
Is the bill perfect in its drafting and implementation? My answer is no, but the problems are not ones that, in my tentative view, can be corrected by legislative tinkering, although I will offer some suggestions in this regard.
The other question that has been asked by this committee is, in the end, whether this has resulted in an improvement in the willingness of women to come forward, and the answer is no. We have seen that fewer women are willing to come forward, and I will talk about some of the reasons for that further on.
The research demonstrates — and this is a limited kind of research because it is only on reported cases — that records can still be obtained by the defendant in about 30 per cent of the cases; so 30 per cent of the time, when they make an application, they get the records.
Tina Hattem, in a study done by the Department of Justice in 2003, interviewed 100 sexual assault survivors, including some who had made complaints to the police and others who had not, and these women said they were unwilling to risk being re-victimized by being put under a microscope at trial, by having their personal life exposed to their abuser and others, or by having their personal information used against them. They were simply not willing to do that.
Let me talk about some of the findings in the case law analysis. A number of studies have been done, and we tried in case law analysis to review every single reported case. That is not every single case where there is a records application, but every case where a judge has issued reasons for decision and chosen to have them published. I have to note a very significant limitation on this research, which is that no judge in Quebec has ever reported a records decision, so we have nothing about Quebec practices using this particular methodology because none of them are reported.
What does the case law survey show? This is interesting in response to Senator Joyal's question today. None of the cases where records are sought involve strangers. Not one involves a stranger. Rather, every single case where records are sought involves defendants who have personal, familial or professional relationships with the complainant. In other words, this means that for record practices, the defendants know the complainants and know where their vulnerabilities are. Defendants are not in the dark when they make records applications.
I would also note that if a defendant has come into possession of records, say by finding a diary or because they are their own records, they are free to use them in evidence without making a records application. If a record keeper sends them to a defendant, they can use them. If a father charged with assault asks a child welfare agency for the records, sometimes the agency sends them to him because of a parent's right to see those records.
Counselling and therapeutic records are the most commonly sought records, along with child welfare records and medical and hospital records, and these are medical and hospital records unrelated to the assault. They are not the records that were created if the victim went to the hospital after the assault. Diaries are also frequently sought. Most defendants seek more than one kind of record.
Very little information can be gleaned from the case law about social, racial or economic status. This is often not something that judges comment on, but one thing you would expect them to comment on, and you do not see is any evidence of mental illness affecting competency and reliability. There is a different process that you use. If you have a witness that has a serious mental illness that affects her competency or reliability, these provisions would be modified in those circumstances, but we saw no evidence at all of competency or reliability issues.
I do want to mention that defendants still often assert that they need records to establish false memories, and I have to tell you that I am not aware of even one single reported case where records established or even helped to establish that a complaint arose out of a complainant's recovered memories. That is not surprising because police do not prosecute recovered memory cases. There are too many problems associated with recovered memory cases, and they are not prosecuted. Yet, defence will say, "Well, maybe I will find some evidence of recovered memory in the file or some evidence of a therapeutically manipulated thought in the file," and they are not finding that in the files. I assert again that there is not one reported case where they found recovered memories when they got access to files, or even where it helped to establish that it arose out of a recovered memory.
How often are records disclosed to judges? I have already said they are disclosed in about 30 per cent of the reported cases. With a track record like this, those advising complainants can give no reassurance that it is unlikely that records will be produced to the defendants, that is, to their fathers, brothers, priests, neighbours and doctors. You do not have to be a rocket scientist to realize that these odds would be a significant deterrent to reporting.
In fact, it is interesting to look at the last 15 year, since the O'Connor decision. I do a research seminar on gender and the law, and after studying cases like O'Connor and its progeny, I ask my law students, who are smart, articulate women, for the most part, if they would make a complaint or if they would encourage someone else to make a complaint to the police, and they always respond with a resounding and usually unanimous no, they would not report a sexual assault to the police, and they would not encourage someone else to do it. These are women who have now realized what happens with personal records, and they know the frequency with which personal records are likely to be obtained by a defendant, and they say, "I will not go." If these smart and articulate women do not think they will be believed or they do not want to humiliate themselves in court, what chance does a girl or woman have who does not enjoy the same social privileges as a law student? They will not go either.
I am almost out of my time, so I will jump over rationales for production and disclosure. This committee has already received some evidence about that.
I do want to mention that that case law analysis consistently shows that judges focused on privacy implications of record production but almost always ignore the equality dimensions of production. In every case, they consider the defendant's fair trial rights, but they do not look at the equality provisions, so I talk a little bit about that. I would welcome questions on that, but I will skip over it.
I would make two observations about what I have not seen in the case law analysis or in anecdotal reporting on actual cases. Remember that this is an area of law that I have been researching for 20 years, and I pay attention. When I say I cannot find something, that is important, because I have not seen this evidence anywhere.
The first observation is that I am not aware of even one single case where the failure to obtain a complainant's records led to any real concern that the conviction was wrongfully obtained. The wrongful conviction cases in Canada have never, and there are not any current cases that I am aware of, involved someone who was convicted of a sexual assault when they did not obtain a personal record. It does not happen. When the spectre of wrongful conviction is raised before you in these hearings, as it will be, ask for concrete evidence. Ask where the case is. Ask for the example. Do not settle for the hypothetical. I can tell you that I have not seen one case. Wrongful convictions is one of the focus areas of the Centre for Human Rights Research Initiative, and as the director, I have an interest in and do work in this area. There are no cases at all, and there is nothing being investigated that points to the absence of a record that led to a wrongful conviction.
I can also tell you that I am not aware of even one single case where a defendant's access to personal records provided information to him that was not otherwise available, that had a significant impact on damaging the trustworthiness of a complainant's testimony. I think defendants are looking for discriminatory impacts. They want the judge and jury to belief that this woman is not the kind of girl or woman who is deserving of protection. I can tell you that they have never found a true prior inconsistent statement made by a woman or a real motive to lie. They say this is what they are looking for in their records, but I can tell you they are not finding it in the records.
Again, I would ask you, when you hear assertions from others appearing before you that complainants' records are necessary to make full answer and defence, please be skeptical of the foundation of this assertion. Ask for real impacts, cases and examples, and avoid speculation and hypotheticals, because you will not get those cases.
Finally, I would offer a few words on independent legal representation. One of the innovative features of Bill C-46 is that it allows complainants, who are technically witnesses, to have the right of representation when their records are sought. This is a highly unusual provision. It is important to remember, and I think there was some confusion on this point at yesterday's hearing, that Crown attorneys cannot take on the role of protecting complainants against defendants' requests for personal records. There is case law that says the Crown cannot and should not be expected to represent the quality and privacy rights of complainants.
Jennifer Guiboche did a study last winter on independent representation. She tried to determine how often complainants and record holders had independent counsel and to determine what difference it made. There is a real variation, as you can see. I have given you some of the statistics on page 11, at the bottom, of what she found. She went through every single records case in the last decade and found that complainants had counsel in about half of the cases. Manitoba and Prince Edward Island have perfect records. In Newfoundland and Labrador, Alberta and Ontario, they are available in half of the situations. In the other jurisdictions, they are not available, or almost never available. As I said, we do not have data in Quebec. In the last few years, rates in some jurisdictions have been improving. In Ontario, for example, in the last four years counsel has been present in about 80 per cent of the cases.
Ms. Guiboche found that having independent counsel made a big difference. I have summarized some of the differences. One that is interesting is that applications are often abandoned once the defendant realizes that the complainant has independent representation. When he see that he will be called upon to account for whether this is a fishing expedition and that someone will seriously challenge him in court about whether this is a fishing expedition, then the application is abandoned. When she comes with independent representation, it disappears. The other thing that having independent counsel does is help with waivers. A complainant can give a waiver and allow the record to go in without an application being in place. It helps to ensure that waivers are consented to with the complainant's full knowledge.
As was discussed yesterday, some of the impediments to access to counsel across the country include lack of funding or restrictions on the ability to access funding. A huge problem is that complainants often do not know that they have a right of representation, and there is real confusion about who should inform them about that right. A third problem in accessing counsel is an inability to find qualified counsel on short notice. Often there is less than a week's notice that an application will be made, and somehow you have to figure out who your counsel will be, get a legal aid certificate, get advice and ensure that your lawyer can be in court on the appropriate day. Finally, it is problematic that counsel cannot be retained until after the preliminary inquiry. Complainants are not represented at the preliminary inquiry, and the retainer does not last through the trial.
I see I am much over my time. Do you want me to quickly talk about how I think the bill can be improved, or should I stop?
The Chair: Do not stop. That is why we are here.
Ms. Busby: How can the bill be improved? The bill is important and needs to be kept in place, but what are some of the ways in which it can be improved?
One is to have case-specific evidence. There is a case out of Ontario called Batte. The Ontario Court of Appeal held in this case that records could only be produced where a judge had case-specific evidence that they provide the accused with information he does not already have or have some potential impeachment value, such as material inconsistency, but there must be case-specific evidence. This standard forces defence counsel to do more than just assert a discriminatory myth or some kind of illogical assertion. This is the kind of assertion that is made in many cases outside of Ontario. The Batte case applies only in Ontario and is not binding authority in the rest of the country. In my view, it should be.
One way accused persons get records today is by saying sexual assault complainants must be emotionally disturbed. Then they say that if she is not emotionally disturbed, she probably was not assaulted, and if she is emotionally disturbed, then she cannot be trusted. That is the logic that applies. The court will then say, "Oh, okay, so there must be evidence of emotional disturbance somewhere, and you can have access to the record." One suggestion would be that the Batte test should be codified into the production threshold.
Second, I propose that there should be an amendment to the bill to prohibit use of the records if the defendant has come into possession of them other than through an informed waiver. As I said, sometimes the defendant has the records because he found or stole them, such as diaries or letters. He can get this information because he is a family member and knows where to find it. Other times he has them because record keepers have disclosed records to him directly, maybe because of a misapprehension of the law; or sometimes he has the records because he is the person who created the records in the first place, like in O'Connor, or in an Ontario case called Au where a doctor was charged with sexual assault.
I would also mention that the complainant has protection only if there is a reasonable expectation of privacy. They have held that if the defendant had a hand in creating the records or if the defendant has access to the records, let us say as a worker in a mental health institution or an institution that has people with mental disabilities, and the defendant has already seen the record, then there is not an expectation of privacy because the defendant has been able to access the records anyway. That can be a problem. I do not have a concrete suggestion. I have not had time to think it through, but it is a problem in some of the cases.
The legislation is clear that three things should animate disclosure requests: the defendant's right to full answer and defence, privacy and equality. As I have already said, full answer and defence is referred to in every single case, privacy in some, equality hardly ever. What can be done to draw a judge's attention to equality impacts? Here I have a few suggestions.
The preamble to Bill C-46 sets out Parliament's rationale for enacting the regime. It has detailed provisions on the equality provision that were intended to be furthered by the passing of the regime. However, the preamble is not part of the actual enactment of the bill. If you have a Martin's Annual Criminal Code and you go to the section, you will not read the preamble. It is only in the actual bill itself that was passed through Parliament. I did not have time to go back through the cases in the last 10 years to see how often the preamble is referred to, but I would be surprised if, in the 100 cases in the last 10 years, the preamble is referred to more than two or three times. It is not referred to. Judges are not aware of it. I suspect that many lawyers in these cases have long forgotten about it or perhaps never knew about the preamble.
One recommendation is to incorporate the text of the preamble into the enacted provisions of the Criminal Code.
Another suggestion would be an ongoing commitment to training for the judiciary and justice system personnel, including Crown attorneys, and for complainant support and education campaigns. We need to do continuing research on impacts. I have a note on how difficult it is to do that research now.
Finally, we need to ensure that complainants have independent representation and access to other support services, especially given that courts have said that Crowns cannot and should not be expected to raise privacy and equality rights.
The Chair: We have quite a list already of people who want to put questions to you, but I will do something unusual and put a question first, because I want to get my understanding of the data straight.
You said that just before Bill C-46 was adopted, we had reached the point where in virtually all sexual offence cases, defence counsel were going on fishing expeditions, and virtually all cases involved the defence's search for records. What is it now that Bill C-46 has been with us for more than 10 years? What is the proportion? Do you know? Do you have any idea of the cases in which defence counsel try to get records?
Ms. Busby: It is actually impossible to get that data. Before O'Connor and before Bill C-46, the professional standard developed that lawyers should seek access in every single case. Whether or not they did, we do not know. It is impossible to know that. Unless you go through all records files or have a researcher in court all the time recording what happened, you cannot get that information. The way I always express it is that defence counsel developed the opinion that professional practice required that one seek access to all personal records, and that is what they asserted. Did they? I do not know.
After Bill C-46 and the Mills case, you could not assert that professional obligation because the bill and the case law attenuated. It is hard to say how often the applications are made. We cannot do that. The data we have is on reported cases. Typically, these requests are made as a matter of pretrial process. Judges are required to articulate reasons, but they will articulate them into the transcript of the trial. Unless there is appeal, those transcripts are not created. We just do not have that data. There is no way of knowing that data.
Having said that, I would suspect again, anecdotally, based on my observations, that they are not sought frequently. They are certainly not sought in every case. I imagine they are being sought in fewer than 50 per cent of the cases, but that is really a guesstimate as to how often they are sought.
The Chair: Forgive me, Senator Wallace, for pre-empting you.
Senator Wallace: Ms. Busby, I wish to compliment you on your presentation. You have zeroed in and thought about what we are here to do. Obviously the focus is to consider the effectiveness of what was Bill C-46, so I commend you. I wish I had your presentation beforehand because you have raised so many issues. They are entirely pertinent to what we are doing, and I congratulate you and thank you.
The first comment I would make is at the highest level. The question we have is whether Bill C-46 has achieved anything. Has it been beneficial? Should we turn the clock back on it, or has it been beneficial and could it perhaps be improved upon? I was interested in your strong comment that it certainly has improved the circumstances over what existed prior to 1997.
When I think of that, I tend to feel that it must have encouraged complainants to come forward, and in that way it has been beneficial. However, as you point out, it really has not caused that to happen. However, it has improved the quality of the judicial consideration of when these reports should be brought forward, which is interesting.
If you listened to the evidence yesterday, you may have heard the reference to section 278.5(2) and the factors that judges are to take into consideration in determining whether they should order the production of the record. Those factors are very broad and do not seem to restrict the judges much as to what they would consider. Do you have any comment about the appropriateness of those factors? Should they be more clearly defined or more limited, or are there other factors that should be added?
Ms. Busby: I will start to answer that question by saying what judges do. Basically, they will take this list and pick out some of them and do a checklist. They often leave out paragraphs (f) and (g). They do not consider reporting or encouraging or obtaining treatment. Those are often left out. They will say, "This record is needed in order for the accused to make full answer and defence. There might be some probative value to the record. Yes, she has a privacy interest in the record, but probative value outweighs privacy, and that is the end of the matter." Quite typically, that is what reasons for decision look like, and they are conclusory. They do not have anything else in there, especially if they are to order production. That is all they say. When they do go into it in more detail, they will look at privacy interests and focus on the fact that it is a psychiatric order. For the most part, psychiatric and counselling records are not obtained. It is other kinds of records that are obtained. There you see a willingness to protect a therapeutic relationship. You do see that, and you see judges having that discussion. The other factors, which I would call the equality factors because they have much more of an equality dimension to them, are not considered. Judges just do not consider whether it has the ability to introduce a discriminatory myth back into the process, like all women are delusional or something like that, and they just do not consider the other factors. That is problematic. However, I do not have a suggestion. The legislation is clear. It says this is what you shall do, and it says you have to do it twice.
Senator Wallace: Yes.
Ms. Busby: However, there is sort of a check-off box.
Senator Wallace: With that in mind, and with the many bills where we consider the issue of the judiciary and the importance of reporting the decision and reporting the reasons, we have had this discussion around other bills where, just as here, there are a number of factors to be considered, and we have always felt strongly that there should be evidence on the record that judges have addressed those issues. Your comment that in Quebec there are no reported decisions from the bench on these requests for document production is concerning, I believe.
Do you believe, then, that we should consider making a recommendation that judges be required in their reasons to specifically make reference to each of these factors so that they have at least been addressed?
Ms. Busby: I do not know how you could use stronger language, and I have not had time to think about this because it was too short notice. In the Mills case, the Supreme Court of Canada said you did not have to consider each factor separately. You would have to look at what they said in Mills and try to play with that language, and I am not a drafter. I think this section is pretty clear. Could it be improved to really require judges to seriously think of those things? I think there is educative value in reminding yourself that allowing access in this particular case will discourage other people from reporting.
Senator Wallace: Your comments on page 10 of your presentation refer to the personal records and how they have been used and what result has arisen from the production of those records and the concern that complainants have about certain personal information being brought forward. Do you think it appropriate that we give any consideration to revisiting the definition of a record in the bill and perhaps restricting it somewhat? What comments would you have about that?
Ms. Busby: I think that would be useful. Again, all I can do right now is identify the problem, but I cannot really identify the solution. That is work that I would do in consultation with other people. I just did not have time to do that.
I wanted to raise that, in my view, there is a problem with the reasonable expectation of privacy requirement. At the time, that seemed like a good thing, but we did not realize that that would mean that therapeutic records would get a particular privilege, or that for records that the defendant had some hand in creating or had some access to — for example, doctor records if it is a doctor or school records if it a teacher — they would say there is not a reasonable expectation of privacy because they already had access to them. I do not have a concrete suggestion on how to change that. I am sure LEAF will work on that. LEAF has been invited to be a witness at these proceedings and will come with a more concrete recommendation, but I wanted to draw to your attention now that there are problems with that definition because it allows in things that it ought not to allow in, in my view.
Senator Wallace: You have drawn a number of important points to our attention, and I thank you for that.
Senator Baker: The witness mentioned that Mills says that each one of these factors does not have to be specifically identified and dealt with specifically, but Mills also defined the legislation as "shall" — that the judge shall take these factors into consideration without having to independently identify each one of them.
You are familiar with family law as well.
Ms. Busby: Yes.
Senator Baker: You are from Manitoba?
Ms. Busby: Yes.
Senator Baker: In your family law act, your act on child custody, the same wording is used for a judge determining custody matters. I believe 13 or 14 factors are outlined that must be taken into consideration in the awarding of custody. Of course, the judges specifically deal with each of them under each heading under the judgments. That is a final judgment. Quite often that leads to appeals, based on whether or not the judge had adequately dealt with each one of these factors.
Would you not agree that this is different — and I know this is very important because it is a criminal matter — because it is not definitive of the judgment? That is, it is not the final judgment. As you point out, it is pretrial and, therefore, not appealable within the judgment. In fact, it is not appealable at all because it would be interlocutory. Is that not correct?
Ms. Busby: There are a few things there. It is appealable —
Senator Baker: After.
Ms. Busby: After.
Senator Baker: However, the damage has been done.
Ms. Busby: That is right. From the perspective of someone who would be involved in advising complainants, you cannot give them any reassurance that the records will not be turned over, and that is what they need. You can see from the statistics given this morning — personal reasons, not being taken seriously, the categories in 60 per cent or over — that they are doing it because they do not want the exposure. They do not want to be out there. When you cannot give that reassurance, they are saying that they will not go there.
Senator Baker: Getting back to the actual facts of the section we are talking about, the matter arises as a pretrial application. Once that disclosure is decided by the judge, the person does not have a right to appeal that, specifically. The person has to wait until the entire case is over. If this were a civil matter, you could do it under the Judicature Act or by the rules of court. You are familiar with the Manitoba Court of Queen's Bench rules. Did you not annotate those?
Ms. Busby: Yes, I did.
Senator Baker: That is what I thought. If it were a civil matter, it could be appealed, but what we are dealing with here is such an important matter that it cannot be appealed. Perhaps that is why judges can ignore the specific factors that Senator Wallace pointed out, because there is no danger of an immediate appeal to that judgment, and then the trial goes on with that particular determination made.
If it were in the legislation that an exception would be made, that this matter could be appealed prior to the trial's commencing, do you think that would be a good thing?
Ms. Busby: When I was listening to the Statistics Canada people, I thought it was too bad that they could not answer that question, but now I will do the same thing. It is not because I am afraid to express an opinion, but I just do not know enough about what the impact of that would be on the criminal justice system generally. There are strong reasons not to allow interlocutory appeals. Our criminal justice system is so delayed that if you allowed for that, you could be constantly going back and forth to the Court of Appeal. There would be a huge increase in expense and nothing would ever be tried, and there would be more delays. There are structural reasons not to allow that. Maybe with leave, but most sexual violence cases take at least two years to get to trial, and you would hate to see them delayed even further.
Senator Baker: Yes, but we are dealing with an important matter here. This is not a matter of your typical application and judgment by a court. This is the release of someone's personal information. Would you not agree that perhaps that should, in and of itself, constitute reasons to have in the legislation a clause that said this pretrial judgment of the trial judge would be appealable within the proceeding?
Ms. Busby: I think maybe. That is all I can say. I do not know enough to responsibly say yes that would be a good idea. I just do not know.
Certainly the intention of Bill C-46 was to do this, and I was very much involved in the passing of it, so I am surprised it has not had this effect. What we wanted to capture with Bill C-46 was that records should be released in the rarest of cases. Somehow, it has not captured that.
Senator Baker: No, it has not.
Ms. Busby: What are the drafting deficiencies that have lead to that? I am not sure. However, that was the intention. Records should rarely be released. If 50 per cent of the time they are released to the judges, and 30 per cent of the time they are released ultimately to the defendant, that is not the rarest of cases. Somehow, it is not capturing that idea.
Senator Baker: The damages start at the preliminary inquiry.
Ms. Busby: That is right.
Senator Baker: Compellable to be cross-examined. In the vast majority of cases, the alleged victim does not have legal representation. The person is without counsel. If there were a requirement in the law that the person be provided with counsel at the preliminary inquiry, which is the key point, given the unfairness of the proceeding under these circumstances, would that assist in perhaps solving a bit of our problem?
Ms. Busby: I think providing counsel would be a good idea. Currently, no witness has the right to legal representation in a criminal case unless there is statutory authority, so that statutory authority must be there. Bill C-46 specifically provides that complainants and record keepers can have standing at a records application. What that means is that they do not have a right to standing at a preliminary inquiry or at trial itself. That is a problem, because all kinds of questions are asked, and Crowns do not have the obligation to put forward the complainant's privacy and equality rights. They cannot object to those questions at the preliminary inquiry.
Preliminary inquiries are turning into ordeals around records. Complainants are going in not even knowing that these kinds of questions will be asked. If you are in a jurisdiction that does not have a strong victim services branch, you do not know that this will happen, and suddenly they are asking you who is your psychiatrist and were you in the child welfare system as a child and who was your social worker and what is that person's phone number because the defence wants to phone for records. You can see why, after a preliminary inquiry, complainants will refuse to proceed any further.
Senator Baker: As you are aware because you are an expert on the rules in Manitoba, a judge of the Court of Queen's Bench has inherent jurisdiction in cases where justice would provide for the appointment of counsel. The judge can do that. You often see it in civil matters or child custody matters, and I understand that. However, can you not see it here if a clause were put in that would provide that? The inherent jurisdiction of the trial judge is usually used to allow for the appointment of counsel using the Attorney General. That is, the Attorney General would pay the bill.
Would you see anything wrong with our putting in a clause saying that, under these conditions, because this is so important to people, the Attorney General should foot the bill for counsel for the alleged victim during the preliminary inquiry?
Ms. Busby: That idea is certainly worth exploring more. We do know that having independent representation makes a difference. We do know that it results in applications being dropped immediately. We do know that it results in judges being more likely to take into account equality interests. We know it makes a difference in these cases. It also means complainants know what is going on because they have that independent representation.
I think representation should be expanded to the preliminary inquiry and to the trial itself, because right now it is limited to the application only. You cannot represent, so it means you cannot stand up and object at trial on behalf of the complainant to a question because there is no standing to make that objection. I think improving that would be useful.
There are a variety of models. In her paper, Jennifer Guiboche talks about different models used in different provinces. Manitoba has a system of funding every case. Is the model necessary to be in the legislation? I am not sure about that, but there are models that provinces can use to ensure that there is representation in every case.
[Translation]
Senator Carignan: Senator Baker's question begs another. As to the right of a witness to counsel, you said that it does not currently exist. I would like to clarify this point because I, personally, have often experienced the situation where witnesses are accompanied by counsel because they believed their rights might be affected by their testimony, or, quite simply, to protect their own interests.
When we appear before judges, it also seems clear to me that it runs counter to the right to one's own intimacy and privacy. It would seem to me that without inserting this right into the Criminal Code — I think it already exists, because the decision may impair one's rights.
Perhaps this has never been mentioned, but do you not believe this right could be fully claimed and that a judge would grant it if such a request were made?
[English]
Ms. Busby: Your question, if I understand it, is this: Do you need specific legislation, or can you make the request in any event? You would be relying on section 7 of the Charter. Certainly, that happens with newspapers or media, for example if the media want to intervene when there is an exclusion order and the media have been able to argue successfully for standing to protect the right of free expression. You can use the Charter to make those kinds of arguments.
However, why would we go that route? We can do it in the legislation. Why force a Charter argument and then have to make Charter arguments across the whole country? I think this committee could take care of it easily.
There was a companion case to O'Connor called Beharriell. One of the questions that arose is whether a complainant could have independent legal representation. The Supreme Court of Canada said, yes, you could. Therefore, in the way that they allowed for the narrow exception for media in closed-door cases, they allowed for complainants in sexual violence cases. That was then codified into Bill C-46 because the fear was that this obscure Beharriell case would be forgotten because only nerds like me know about the Beharriell case and everyone forgets about it. Therefore, it is important to have it in the legislation because that gives it effect across the country. It does not require a Charter argument to be made; it makes it clear; and you can point to the section. There is an educative value by codifying it into the legislation. You can also expand it, then, to preliminary inquiry and to the trial itself.
[Translation]
Senator Carignan: My second point is the following: there is one term that is being used in this bill which I do not like. It is the word "complainant." I understand that we are referring to the victim of the indictable offence when we refer to a complainant in this case. At our meeting yesterday, I was telling a witness that I was trying to find a situation where there could be a victim without that person being either witness or complainant, and for whom there would be no protection provided.
The example that comes to mind is that of a child under the age of two who would have been a victim of a sex assault; that child is not a witness nor a complainant, so how do we protect his victim's rights? Should the concept of "victim" not also be introduced within the Criminal Code? So, you would have "complainant," "victim" or "witness." To your knowledge, does the use of the word "complainant" cause some reluctance among victims, because they would be complaining, rather than simply being victims? The Crown must introduce the evidence, explain the concept of complainant. This title of "complainant" creates additional pressure on them. They may be under the impression that they are the ones who are attacking as opposed to simply being the victims. Do you understand what I am trying to get at?
[English]
Ms. Busby: It is an interesting question, and you asked the same kind of question yesterday. It was for that reason that I brought along today a paper that I wrote in 2006 called, "Not a Victim until a Conviction is Entered." That is the perspective of the Supreme Court of Canada, that you are not a victim until there is an actual conviction. All you have done is made a complaint. You are only a witness to a crime. That is the language I have used. I find it problematic, the idea that you are not a victim until a conviction is entered, because we know the conviction rate is so low. The fact that someone is acquitted does not mean that that person did not do it. It just means it was not proven. The Supreme Court of Canada has made it clear that "complainant" is the word to be used. I see a troubling trend now amongst defence counsel, and it is creeping into some other spheres, where the language being used is actually "accuser," which in English sounds just dreadful. The "accuser" — it imports even more something else.
I do not use the word "victim." There are also political reasons I do not use it because it is so disempowering. A sexual assault is disempowering; it just leaves you on the ground. I prefer the word "survivor," but in a legal context I will always use the word "complainant" because the Supreme Court of Canada has made it clear that that is the language to be used, and I am afraid of "accuser." Therefore, I will go with "complainant."
[Translation]
Senator Carignan: We could use the term "alleged victim."
[English]
Ms. Busby: You can say "alleged victim."
The Chair: However, following the Supreme Court reasoning —
[Translation]
Senator Carignan: I do not always agree with the Supreme Court, but all right.
[English]
The Chair: Show me the lawyer who is.
Senator Angus: Ms. Busby, I want to add my thanks for your coming here, and I have to say yours was one of the best presentations I have ever heard in my 18 years as a senator. It was clear, and it was balanced. You are clearly passionate about the subject, but it does not affect your evidence. It is an outstanding contribution to what we are trying to do here. I understand the whole subject so much better after having listened to you. You obviously put this together last night after hearing yesterday's evidence. It is articulate and to the point. Thank you for that.
I am interested in two things. First of all, on page 10, you said that you are not aware of even a single case where the failure to obtain a complainant's personal records has led to any real concern that a conviction was wrongfully obtained. That is good news. However, how do you know in your research that they had even asked for it, or are you talking about the cases where they tried to get the records but did not, or is it just a case where records were not a factor?
Ms. Busby: I am trying to make two points. It is always difficult to prove that nothing happened. That is always difficult. There is a methodological problem there.
The authority I would claim is that this is something I watch closely and have watched closely for 20 years. If there was a media count, the research centre I work for has a project on wrongful convictions. If David Asper, who heads up that project, came to me and said, "I have a case," I would know about it, and he knows that this is an area of research for me. He would say, "I have that case. Records were needed in this case. They did not have them, and there was a wrongful conviction." I have a fairly high profile in this area, and no one has ever come to me and said, "There was a wrongful conviction and we are starting a proceeding and it was your fault." That has not happened. If a wrongful conviction process started to make that allegation, I would hear about it, and I have never heard of a wrongful conviction allegation. I think it would be drawn to my attention.
There is a methodological limitation on that. I could have missed something, but I am not aware of a single case.
The other point is more subtle but more important: Am I aware of a case where it has actually made a difference on a legitimate ground so that it resulted in an acquittal because an acquittal was deserved? Did you find the smoking gun in the file? Did you find the statement where she said to the psychiatrist: "I am lying because I hate my father and I want him to go to jail; it's a great way to get him out of my life"? Has that ever been found in any file? No, it never has. I am confident in asserting that files have not made a difference in a legitimate way.
What they have done is raised the spectre of "this is a woman or a girl who is not deserving of protection. She is so much trouble." It has raised some reasonable doubt about whether she is telling the truth. That is all it needs to do — raise a reasonable doubt.
Senator Angus: That is fine. I wanted to make sure because this is an important part of your testimony in terms of our assessing whether the intention is only in the rarest of cases, and you have pointed out that there is a problem there. However, at least there has been great improvement since this bill was enacted.
What comes through in your evidence, at least to me, is where we could help make a difference, fix it and make it stronger. You are positive about the legislation, and you are trying to lead us to places where maybe we can strengthen it, and that is good. It has to do with the right of the woman — not to put a label on her, as an accuser, a complainant, a victim or presumed victim or whatever; there must be some solution to that — to counsel. I strongly agree with Senator Baker's proposal because this is very complicated. Some of us are lawyers, and this is your area of almost daily focus, so it is simple. For these women who become involved in this kind of litigation, it is very complicated stuff to understand the nuances about documents and records or whatever they are called.
The Crown prosecutors are the plaintiffs in these criminal cases, whereas the real plaintiff, of course, is the person we are talking about, and I have to believe she needs to have counsel right from the very beginning of the case, right from the preliminary inquiry. As Senator Baker pointed out, damage gets done. The cat is out of the bag before she has a chance on this very narrow point that the law does protect her here. The law as drawn does give her the right to counsel, but only at a certain point on the application for the record.
I feel that I need to understand more. How does it work? The trial is happening. The charges have been laid. How does it work today, in your experience? I know not all cases are the same, but as a rule, how do they get counsel? Who tells them they have the right? Who explains this law and Bill C-46, all this stuff that may be simple to us?
Ms. Busby: In Jennifer Guiboche's paper, she surveyed victim services, lawyers and Crown attorneys across the country. She is a student with no budget who just phoned everybody. She had ethics approval to do it, and it was an amazing project. You have the details on most of the provinces in the paper, so you can see them. It will vary.
In Manitoba, victims services will tell a complainant as soon as they meet with her that there might be a records application, so she has that awareness early on.
Senator Angus: Supposedly.
Ms. Busby: They should have that in Winnipeg. It might be a little different if you are outside of the major metropolitan area. Manitoba is Winnipeg, and then it is remote. That is how Winnipeg works. There are different services outside the city. Victim services will be in touch and make that explanation.
Having said that, they are not lawyers, so it is hard to know how much information they give on a preliminary inquiry. Most complainants do not have information at a preliminary inquiry. They do not know what is going on, and the Crown has no time or duty to explain it to them.
Most complainants will realize that something can happen with records about a week before trial, because it is a pretrial motion. It is made just before the trial is to start. They will be served with the documents a week before. They are focusing on what will happen at the trial, and suddenly they will realize an application has been made. They are served with that application on a Monday, and the application is being heard the following Monday, and immediately they have to figure out how to get counsel.
Senator Angus: This is what was bothering Senator Baker and me. You gave persuasive evidence when you talked about those four or five law students who were sophisticated and privileged. They are educated about the law. They are perhaps at a different level in society than the witnesses we are talking about, yet even the law students would not bring the complaint knowing the state of play. I think this is absolutely critical.
Ms. Busby: That is actually in 15 years, so it is since O'Connor. I ask that question every year: Would you make a complaint or encourage? They almost all say no, unless they can see they would prevent the defendant from hurting someone else.
Senator Angus: Am I right that the law is a great improvement from pre-O'Connor? These women have been victimized. They have brought a complaint. A process has been started.
Now we know, because you have told us — you are confirming in my questioning and that of Senator Baker — that there is a minefield waiting out there. Let us say they had some family psychiatric issues in the past, and all these records are out there that they would never want to have out.
The reality is there. How do we protect those women? What can we do in this committee to make the law solve this issue? To me, it is a huge issue. Am I right on that?
Ms. Busby: Oh, yes. It is a huge issue. I have tried to offer some concrete ways the legislation could be improved or at least some suggestions to think about for drafting. They are not that solid because I did not have time to really think through them.
You can have better public education programs, and you can ensure independent representation, because once the accused realizes there is independent representation, he will now be embarrassed because of the application that he made before the judge because the representative will point out all the flaws in the application; it is hard for the judge to do that in the absence of argument coming from the other side. That will make a difference, too.
Senator Joyal: On that same issue, were you in the room when we had the presentation this morning from Statistics Canada?
Ms. Busby: I was here.
Senator Joyal: Did you have a copy of chart 13, which listed reasons for not reporting sexual assault to police? I was listening carefully to your comments, and I do not read in any of the reasons given for not reporting the one that would be disclosure of privacy or private documents. I think that most of the victims — and I will use the word "victims" in the sense that Senator Carignan has been using it — do not realize when they file a complaint that they run the risk of having all their personal files being proposed to the offender. I do not think it is known. In fact, it is not in the reasons. It is not really understood in the reasons that are given as justification for not going forward with a complaint.
Ms. Busby: I have two responses to that. First, I do not know how this survey asks the question. If it actually has, "Did you not go to the police because . . ." and then it lists "it was not important enough," "a personal matter," and so on — if it is a checklist — there is not an opportunity to identify that as a reason. I do not know whether it is an open-ended question as to why you did not go to the police and you offer a reason, such as because it was not important enough. Do you see what I am saying?
The other thing is you could interpret "personal matter" or "do not want to get involved with the police" as having to do with what the process will do to you. You see this as a personal matter that you do not want splashed all over the place. It is your boyfriend and you do not want all your friends to know about what happened between you and your boyfriend. It is a personal matter. You do not want anyone to know what happened to you because it is so embarrassing. Both "personal matter" and "do not want to get involved with the police" are responses that could incorporate "not wanting my personal details" splashed out there for everyone to see. Therefore, those two categories are inclusive of it.
The other thing to remember is that these are the people who did not go the police. Those who go to the police, make the complaint and are now involved in the process see that records can be sought after they are involved. We do not have hard statistics on what happens when women realize a records application is made. Anecdotally, we know that some women refuse to cooperate further. We do not know what percentage of women make the complaint and then say, "I am out of here." We know that happens sometimes, but we do not know how frequently.
Senator Joyal: To come back to your proposal for improvement on page 12, you mention that we should introduce a litmus test for the judge, which would be case-specific evidence that the information will be helpful to the accused.
If you read section 278.5(2), the first criterion is the following. I will read it to you. If you have a copy of the bill, it is on page 6:
(a) the extent to which the record is necessary for the accused to make a full answer and defence.
I was asking myself whether you were suggesting that we amend that criterion and make it so that a judge must take into account whether there is specific evidence that the record is necessary. Instead of "the extent to which," we would introduce case-specific evidence for the judge. That would be one way of doing it.
However, I said to myself, it is a Catch-22 here because we were told yesterday, and some colleagues have raised it, that there is inconsistency among the judges since Mills in that they do not take into account all the criteria.
I then said to myself that we should amend subsection (2), the first paragraph. We should introduce it fully in the body of the criteria. We should make it there in subsection (2) instead of in the criteria to make it more compulsory for a judge to take it into account.
Then I said to myself maybe another way would be to request a judge to follow a checklist, as Senator Baker mentioned in a family case with children's custody. We should change the act so that a judge would have to reply to each and every one of the factors from (a) to (h) that the judge has to take into account.
Which recommendation do you make to us? On the basis of your experience and reading of all those cases, which, in your opinion, would be the most effective one?
Ms. Busby: I am not a drafter, so it is hard for me to get specific.
Senator Joyal: It is not a question only of drafting but also of making a judgment on where to be more effective, because the bill is not as effective as we thought at the beginning it could be.
Ms. Busby: The point I am trying to make with the Batte case is that it has had a huge impact in Ontario on the practice. It requires the defendant to bring forward evidence as to why the defendant thinks something is in the record that is specific and useful to this case, so it has to be case-specific.
In other provinces, defence counsel can simply assert that there might be a prior inconsistent statement. "She said to the police that she told her therapist about the event, so we need the therapist's record to see what it is." There is nothing specific. It raises the evidentiary threshold and makes it more difficult. You cannot go on a fishing expedition if the Batte case applies. However, that Batte case is precedent only in Ontario, and it has made a difference in Ontario, but it does not have impact outside of Ontario. The suggestion is to find a way to incorporate the Batte requirement of case-specific evidence into Bill C-46, so that it is clearly there.
Senator Angus: On a point of order, why is a judgment on a Criminal Code provision from an Ontario court not a precedent in the other provinces?
Ms. Busby: It is a precedent, but it is not binding.
Senator Angus: What is the reasoning?
Senator Joyal: It depends on the level of the court, whether it is a Court of Appeal or not.
Senator Angus: Was this a trial division?
Ms. Busby: It was a Court of Appeal decision, so it has persuasive authority, but it is not binding. I can tell you that Batte is referred to sometimes, but it is not uniformly referred to.
Senator Joyal: Therefore, it is an additional element to amend the legislation. We cannot base our conclusion on its not being jurisprudence, and as you said, it is stare decisis from the Supreme Court, and it is all over the country.
You are saying that we need to amend the legislation, if we agree with your recommendation that it should be a case-specific evidence test that should be applied for a judge to order the production of the documents.
Ms. Busby: That is correct.
Senator Joyal: Again, as I say, on the basis of your own reading of the way that the court has been interpreting subsection (2), how should we be identifying the section in the act? As Senator Fraser raised yesterday, the act, in section 278.8(1) and (2), requested that the reasons be entered into the record of the proceedings or, where the proceedings are not recorded, be provided in writing.
In other words, how could we make it binding on the court and eventually on the Supreme Court? We have to reverse a decision of the Supreme Court here. That is where the problem lies. The Supreme Court has interpreted in a way that is not consistent with the intent of the act, and we want to come back to the intent of the act. We cannot keep the act as it is. There is no other way. If we keep the act as it is, we will stay in the same situation we are in, and we are here to look into how it has been interpreted and come to a conclusion as to whether amendments are needed. That is the situation we are facing, as I understand it.
Senator Angus: It is the situation that existed in 1997 after O'Connor.
Senator Joyal: I am sorry to push you. I do not want to push you.
Senator Angus: She loves it, really.
Ms. Busby: I do love my job. You have suggested amendments, I think, for to how to ensure that judges consider all the factors. If there was something you could do to make that happen, that would be a good thing, but the language is clear in the legislation, so I am not sure how to do that. However, it would be a great problem to present to drafters: How do you overcome the Mills general-consideration approach and go to a concrete, specific consideration in each case? Drafters are fabulous and could sort that out, but I do not have the answer.
The kind of research I do in these cases is to look at the cases and glean what I can from reported cases. However, the problem you have identified is that there are not that many reported cases, or we are not sure. The judge reads the reasons into the record of the proceedings, but then no transcript is prepared.
Would there be a way to ensure that those read-in reasons for decisions are actually published so that they can be accountable? I do not want to suggest judges are not accountable, but put it out there so we can know what happened. It would be useful.
It would be good if there was some drafting technique to use for that particular section to ensure they do not just get lost in the record, which in the vast majority of cases is never transcribed and therefore not publicly available and so we cannot do that accountability function after the fact where we count all the cases and try to figure out what difference they make. It would be useful to ensure that the decisions were published, so that they would be on Quicklaw or Westlaw. I should say that since that is my publisher.
Senator Joyal: Can I comment on the next issue that you raised on page 13, which is to prohibit the use of records, even if the defendant has come into possession of them other than through an informed waiver? I am wrestling with that one. Could you repeat the reasoning that you have behind that one, that we could include in this act?
Ms. Busby: I will give three separate examples.
A case went to the Supreme Court of Canada in about 2003 called Shearing. Shearing was a cult leader; he had a commune, and there were a lot of women and children living with him, and he was their father and so on. He had a religious belief that he passed on to young girls in his commune that if they had sex with him they would be healed and would have certain powers. These girls were brainwashed into having sex with him because of that.
Years later, charges were brought against him for sexual violation of minors, and he denied that anything had happened. Because the girls had lived with him and they had then left, he found personal effects and found their diaries, and he wanted to be able to cross-examine on the diary entries. He wanted to say that there was nothing in their diaries that says that they were sexually assaulted, so they were not, because they would have recorded the sexual assault. It is not a logical inference to draw, but that was the inference he wanted to draw: Nothing happened because there is nothing in the diary.
We made the argument that the diaries ought not to be admissible because they were not his documents and they were not subject to the process in Bill C-46.
The court said in the Shearing case that if he has the documents, he can use them, so he could use the diaries. It meant that the diaries were shared with lots of people and with the judge, and it is an embarrassing thing to have happen. That is one example.
In another example, a man took a letter from his wife's purse. He found a letter. A while later, when she made a sexual assault complaint, he wanted to use the private letter to discredit her because it talked about an abortion she had had. He stole the letter from her, and because he had it, he was able to use it. That is the concern.
Another concern is that if record keepers just mail the records to the defendant, the defendant can use them. The record keeper might face some kind of professional sanction. I do not know how often that is happening, but it has happened in the past. Certainly, before O'Connor it happened a lot. A defence counsel would write a persuasive letter to a record keeper, and the record keeper would send the record on. The court has said that if the defendant has the records, the defendant can use them, so I think it encourages defendants to try to get them.
Senator Joyal: We are raising a wide range of issues, such as the admissibility of proof in court proceedings. Have you reviewed it in that context?
Ms. Busby: I am not an evidence expert on that front. Courts now allow evidence in if they think it will have some probative value, and then they determine what weight to apply to it.
From a complainant's perspective, it does not matter. A diary has now been reproduced and given to a judge and to defence counsel, and she has to fear what will happen to her on the stand. That is the deterrent effect; it is not what actual use is made of the diary. I think most people would see through the probative value of a diary and say that a diary of a 14-year-old is not a record of what happened.
The Chair: We could happily keep you here all afternoon, but we cannot do that.
Senator Chaput: I do not have any questions, but I would like to thank Ms. Busby for her excellent presentation. I can say that I now have a better understanding of the bill and the reason it was drafted. I also understand that it does make a difference and that we, as a committee, if we wished to, could improve the act by making amendments. That is our work, to make things better when it is possible to do so. I thank you again, Ms. Busby.
The Chair: I have what may be an immensely naive question. If we are not satisfied with the reporting of judges' reasons, would it be possible just to require a form to be filled out? I can see difficulties. On the other hand, if they had to fill out a form, maybe they would fill it out.
Ms. Busby: There is an easier solution. Judges have the ability to order that a transcript be issued. They could say to the court reporter, "Please transcribe my reasons for decision" and then issue them as reasons for decision. They have to put them into the record anyway; that is being done.
The problem is that you have days and days of transcripts and no reason to publish them, so transcripts are not transcribed unless there is an appeal or something. I do not know how you would do it in the legislation, but you could say to a judge that all reasons for decision should be made publically available, something like that.
They still refer to these applications as O'Connor applications, which in my view is problematic because it actually then refers not to Bill C-46. They should refer to them as "Bill C-46 applications," not O'Connor applications. If the judge said, "I will now give reasons for decision in an O'Connor application, and these reasons for decision should be transcribed," then you know that this line to this line needs to be transcribed and made publicly available, and I am sure that Quicklaw or Westlaw would pick up the bill.
The Chair: Professor Busby, thank you very much.
Senator Angus: Hear, hear. Outstanding.
The Chair: I add my voice to all my colleagues who have been so appreciative of your work for us. Like Senator Angus, I am particularly impressed by the fact that you managed to produce a brief after we rose last night. You sat down and answered many questions that we had. This is enormously useful. Thank you.
Ms. Busby: Thank you.
The Chair: Colleagues, next week we meet at our usual meeting time. The first time will be at 4:15 on Wednesday. However, perhaps unfortunately, we will probably not be continuing this study. We will be interrupting this study at that time because we will probably have a bill before us. We do not have the bill yet, so we cannot formally put it on the agenda, but we are getting geared up.
Senator Runciman: Which one is it?
The Chair: This is the child pornography bill. All bills that come before this committee raise huge issues, and the child pornography bill will be one of those.
Senator Angus: I think we should retain Ms. Busby, because she is the best in the West.
The Chair: As soon as we have it all, we will let you know in your offices by email. In the meantime, this committee will now stand adjourned.
(The committee adjourned.)