Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 3 - Evidence for October 20, 2011
OTTAWA, Thursday, October 20, 2011
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:36 a.m. to examine and report on 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 John D. Wallace (Chair) in the chair.
The Chair: I will call the meeting to order.
[English]
Good morning, and welcome, Senate colleagues, invited guests and members of the general public who are viewing today's proceedings on the CPAC television network. I am John Wallace, a senator from New Brunswick, and I am Chair of the Standing Senate Committee on Legal and Constitutional Affairs.
Honourable senators, we are here today for our first meeting of this parliamentary session to examine and report on the provisions and operation of An Act to amend the Criminal Code in respect of the production of records in sexual offence proceedings.
In 1997, in response to the Supreme Court of Canada decision in R. v. O'Connor, Parliament enacted Bill C-46, An Act to amend the Criminal Code in respect of the production of records in sexual offence proceedings. As a consequence, it created the present legal framework set out in sections 278.1 to 278.91 of the Criminal Code.
Bill C-46 was intended to strengthen the protection of the privacy and equality rights of complainants in cases involving sexual offences by restricting the production of private records to the accused that are held by third parties. The bill incorporated a list into the Criminal Code of reasons deemed to be insufficient for granting access to personal or therapeutic records, along with factors that a judge must consider in determining whether the records should be produced, including the right to privacy and equality of the complainant and the accused's right to make a full answer and defence.
The preamble to the bill stressed Parliament's concerns about sexual violence against women and children and the need to encourage victims to report sexual offences. It stated that the fear that personal information would be made public had a deterrent effect on victims who might otherwise have reported sexual assaults to the authorities and sought necessary treatment.
This committee received an order of reference from the Senate on October 4, 2011, to examine the provisions and operation of the act. In the last parliamentary session this committee held two meetings on this issue in February 2011, hearing from the Department of Justice, the Public Prosecution Service of Canada, Statistics Canada, and Professor Karen Busby from the University of Manitoba Faculty of Law.
To continue our study today, honourable senators, I am very pleased to welcome back to the committee Ms. Jennifer Stoddart, Privacy Commissioner of Canada.
Ms. Stoddart, we will begin with your opening statement.
Jennifer Stoddart, Privacy Commissioner, Office of the Privacy Commissioner of Canada: Honourable senators, thank you very much for inviting me to speak to your statutory review of this legislation, which has been in force since 1997, concerning the production of records in sexual offence proceedings, commonly referred to as Bill C-46.
I am accompanied today by counsel from my office, Regan Morris, who will be able to answer any of your questions of, shall we say, detailed legal content.
As you know, honourable senators, sexual assault is one of the most — if not the most — under-reported crimes, largely due to victims' desire for privacy. The targets of sexual assault are often but not exclusively women. There are recent cases of men coming forward after years, even decades, of an assault. These indicate that, regardless of gender, people react the same way to a sexual assault by preferring to not disclose such a horrific event for fear of yet greater humiliation and victimization.
That is why the Office of the Privacy Commissioner of Canada wholly supports the intent of the law, which has been in force now since 1997. As the preamble states, violence, particularly sexual violence, has a negative impact, particularly on women and children's access to such fundamental Charter rights as security of the person, privacy, and equal benefit of the law.
We also acknowledge the difficult but necessary challenge that courts face in balancing the rights of victims and of the accused.
I would like to place this bill now in context, if I may. I want to underscore the scope and magnitude of the privacy interests at stake in sexual offence proceedings. We are talking about extremely vulnerable individuals, and their most personal and sensitive private records are being sought, typically for cross-examination by defence counsel in court.
We therefore favour the formal judicial process that was created by Bill C-46, to guide the orderly and appropriate production of records in sexual offence proceedings. This process creates a mechanism to scrutinize the privacy impacts of producing records containing the personal information of complainants and of witnesses.
[Translation]
I will now address the question of the effectiveness of the law. A key question for your review is whether the legislation is meeting its goals. One measure is whether it removes barriers for victims to report sexual offences. But that cannot be the sole gauge; we must also assess whether it succeeds in protecting the privacy rights of those who come forward.
Testimony before this committee last February raised several challenges related to whether the legislation is succeeding in protecting privacy: the application of section 278.5(2); the reasonable expectation of privacy; and the need for independent counsel. I will address each in turn.
Before I do, I would like to point out an area where I think more legal research on court disclosures in this context needs to be conducted. From what we can tell, the research done to date has focused on how often judges have ordered disclosure and the criteria they take into account in making such decisions. However, what is also crucial to know is whether judges that do order the disclosure of records impose any conditions so as to protect the privacy rights of complainants and witnesses, for example, through publication bans. How records are protected once they have been disclosed to the accused is an important part of assessing whether this legislation has been effective.
Section 278.5 (2) of the law sets out the factors that judges are required to take into account when deciding whether to order the disclosure of records relating to a complainant or witness.
The research that has been presented to you underlined the difficulty in knowing whether and why records were or were not disclosed to the accused. Studies also suggest that judges do not always refer to all of the factors specified by section 278.5(2).
For example, it appears from case law reviews conducted by the Department of Justice and others that privacy is often referred to by judges deciding whether to order production, but it is not referred to in every case.
While my office cannot recommend to judges how they interpret the law, we would encourage a recommendation by your committee that privacy issues be considered and that this consideration be documented in all cases.
[English]
I would like to speak now about the reasonable expectation of privacy. It is my understanding that the judicial review regime established by Bill C-46 was intended to apply exclusively to records in the possession of the Crown or a third party, such as therapeutic, medical and counselling records.
As a result, the Supreme Court of Canada has found that Bill C-46 does not apply to records held by the accused. While the rules of admissibility of evidence will apply to such records, these rules do not offer the same degree of protection for the privacy rights of victims as are found in Bill C-46. The rules of admissibility require that prejudice caused by admitting the evidence substantially outweigh the probative value of evidence. The default, in other words, is that the records held by the accused that have some probative value are admissible. Bill C-46 also mandates that privacy interests be taken into account, whereas there is no guarantee that this will be the case when an accused already has possession of the victim's personal records.
We believe this issue deserves some consideration by this committee. In our view, a complainant or a witness in a sexual offence proceeding may have an expectation of privacy, even if his or her personal information is already in the hands of the accused. This may mean amending section 278.2 regarding the scope of application of the regime.
In such cases, it should still be subjected to a judicial screening process before it can be used by an accused in a criminal proceeding.
We would support amendments to address this apparent oversight, and this is the first of the recommendations I would make to you today, honourable senators.
I would like now to talk a bit about the issue of independent counsel.
Another concern of my office is not directly tied to the provision you are studying today. Instead, it relates to the way the screening regime for disclosure actually plays out in practice in the context of preparation for a trial.
From what we understand, independent legal counsellors for complainants and witnesses are present in only about half the cases, either because they cannot afford legal counsel or they are unaware that they need counsel to protect their rights adequately. This has a direct bearing on victims' awareness of their privacy rights and their rights in general.
In particular, when victims are not represented by independent counsel, their personal records are more likely to be released to the accused.
Ensuring the presence of independent legal advisers is, therefore, key to protecting the privacy rights of complainants and witnesses. We therefore encourage the committee to explore means of ensuring that complainants and witnesses are aware of their right to independent counsel and that access to counsel is available in all cases. Possible measures for parliamentarians to consider might include whether a complainant or witness should be notified in clear and simple terms that they have a right to be represented by their own counsel at any hearing considering the production of their personal records. That is our second recommendation.
The third is the question of whether existing victim support centres and training are adequate, as it seems that they can also play a role in notifying victims of their rights and helping them to find independent counsel.
Fourth, if legal aid is sufficient in all provinces and territories to ensure that an independent counsel is present, and whether judges should be required under the Criminal Code to appoint independent counsel where a complainant or witness cannot obtain representation is another issue that, I submit, this committee of honourable senators could look into.
I will add a fifth recommendation, that the Department of Justice studies be not only updated but also be published. The information available to prepare a thoughtful submission to this committee was, unfortunately, most scarce, and I think that recent information that takes into account most recent trends in the application of this law would be highly desirable.
Sixth, I would suggest that this committee perhaps inquire as to whether any appropriate steps could be taken to encourage judges who are interpreting this part of the Criminal Code to write their reasons or that there be a transcription of oral reasons available to researchers. As a member of the Quebec bar, I was most concerned to see in the studies that I had the chance to look at before coming here that there seems to be no information on this from the Province of Quebec and, I believe, from Nunavut and Northwest Territories. No written reasons seem to be available on the application of this particular part of the Criminal Code.
I do not think that we can take this large segment of the Canadian population and simply say that we have no information on this and this constitutes a valuable study, particularly, as I understand, that issues of reporting of sexual offence are on the increase in Nunavut and the Northwest Territories, in contra-distinction to the rest of Canada. I think something could perhaps be done there.
Finally, I would stray a bit beyond the narrow question that you are putting to us today to draw to your attention the need for studies and consideration of the impact of the open court principle on access to justice generally.
Through our work at my office, we have come to observe that many Canadians feel that their privacy is compromised merely by going to an administrative tribunal. We are not talking about cases of alleged sexual violence. I may say that when I was in Quebec as Quebec's privacy and information commissioner I had the same experience. People are dismayed to know the extent of publicity that is given to their very personal details, publicity that is enhanced by the advent of the Internet and the practice of many tribunals of publishing their proceedings in integrum, completely, with no redaction, no masking of names, no attempt to conceal any information. In all good faith they will apply to federal administrative tribunals for the redress of some problem they have, and to their great shock they find this information published on the Internet, open for all search engines so that when you search their names their information and all the details they offered up in support of their claim can be found. These are not criminal proceedings. These are not people who have been found guilty of a crime or anything. They may be simply going after the interpretation of benefits under a federal or provincial statute, as the case may be.
This is the direct personal experience of my office. It demonstrates a larger question of what the effect is now of the tremendous global total publication of information, in the age of WikiLeaks, in the age of open government, in the age of open source, of very intimate personal information in individuals' decisions to use our justice system. I would recommend that this honourable committee look at how this general trend applies to cases of alleged sexual violence and the willingness of victims to come forward.
I will close by recounting to honourable senators something I heard this morning on a CBC program that many of you may know called The Current. I do not know if any of you happened to listen to this. It was amazing. I will recite names as I heard them on the radio. It had to do with a woman called Shannon Moroney, who apparently had been interviewed on The Current previously, talking about the subsequent rehabilitation attempts of her ex-husband, who had been convicted of violently assaulting two women. It seems that she had recounted the details of the assault with some particularity. Her lawyer, a gentleman called Jeffrey Lanctôt, wrote in to The Current, and Anna Maria Tremonti, the host of the show, read parts of his letter, which said that his client, one of the victims, was dismayed to find the details of her experience recounted again and again by the ex-wife of the accused, and that this was not helpful to her rehabilitation. While it may be perhaps be helpful to the offender and his ex-wife, it was not to her.
As I was coming to speak to you about this, I thought about how timely it is that as a society we consider how privacy needs to be respected in the course of judicial proceedings and how two important principles, freedom of expression and open courts, which are central to our democracy, may have to be re-thought in this age of instant mass communication, in an age of a much greater awareness of what victims are suffering, the extent to which vulnerable people are victimized, and the historic lack of attention that our justice system has given to them.
I look forward to your questions.
The Chair: Thank you very much, Ms. Stoddart. Those were thoughtful comments. I am sure there will be many questions from committee members.
Senator Fraser: Welcome, Ms. Stoddart. I echo the chair's comment that your remarks were extremely helpful.
I heard the tail end of the same radio program. I gathered that the name of the victim who was complaining through Mr. Lanctôt had not been broadcast, just the details of what had happened to her. Is that the case?
Ms. Stoddart: That is what I understood from listening to it. Her name was not mentioned.
Senator Fraser: So the normal provisions protecting the identity of victims would not apply.
Ms. Stoddart: Yes.
Senator Fraser: Have you had time to think about how one could square these principles? I am not asking you to produce a legal thesis on the fly; the program ended just a minute ago. However, perhaps you could communicate with us any thoughts you have about mechanisms that might be looked at. It would not be easy to square those principles.
Ms. Stoddart: As you say, I just heard this. Second, I am not an expert in criminal procedure nor, indeed, the jurisprudence in sexual violence offences.
I welcome your question, but I am simply bringing to your attention that this is an area to which we have to pay far greater attention than we have. We thought that just protecting the names of the victims would do. Indeed, this certainly is much better than it was. However, what I heard this victim say, through her lawyer on the radio this morning, was that having the details of what she suffered repeated over and over again was very detrimental to her own personal quest for rehabilitation and healing. Arguably, there is also the issue now of how many people could recognize that person, having read the details that were not subject to a publication ban.
I do not know; they are just questions. I just allowed myself to raise this, honourable senators. It is a bit beyond the scope of this provision, but maybe we know more about what victims suffer in the 10 or 12 years since we looked into this. Second, with the technological means of communication that were not as widely available at the time this law was adopted, this committee might profitably look at that.
Mr. Morris, could you add anything in answer to Senator Fraser's question?
Regan Morris, Legal Counsel, Office of the Privacy Commissioner of Canada: I have nothing in particular to add. There may be scope in the publication ban provisions of the Criminal Code to protect, in addition to the identity, some of the more sensitive information. I am not sure that we would be able to provide a definitive answer on that.
Senator Fraser: It is difficult to think of a general legal provision that would cover it.
Senator Baker: I have two questions as well, one for the Privacy Commissioner and one for Mr. Regan Morris, whom I was surprised to see here today. He is the co-author of the definitive text entitled The Law of Bilingual Interpretation, which was published two years ago. His co-author was Justice Bastarache.
Mr. Morris was with the CRTC. I am sure, Mr. Chair, that he will find the difference between being counsel for the CRTC and counsel for the privacy commissioner is that in the first instance you are trying to evade jurisdiction in court and in the second, you are chasing it in court.
My first question is to the Privacy Commissioner to bring the subject matter that she disclosed anew from a CBC radio broadcast this morning, The Current, into the context of her legislation and this particular bill.
Under PIPEDA, which you are responsible for, and in the Privacy Act there are provisions in which exceptions are made to the disclosure of personal private information. In fact, in the Privacy Act, a senator is one of the exclusions, such as seeking private information under section 8(2)(g), which states:
(g) to a member of Parliament for the purpose of assisting the individual to whom the information relates in resolving a problem;
That is one of the exceptions listed for personal information. My point is that your legislation, which is identified in section 278.1 of the Criminal Code because it is federal jurisdiction, contains the same exception in that the final sentence states:
. . . does not include records made by persons responsible for the investigation or prosecution of the offence.
Similar exceptions are in your legislation as those in the proposed amendment we are dealing with today. Commissioner, your acts are silent, as this act is silent, on the subsequent use of that information. I know this question comes as a surprise and you might need to investigate, but would you suggest that the committee suggest that there be a way, which I believe you suggested in your presentation, of including the subsequent use of that information in the future?
Ms. Stoddart: Thank you for that question, senator. With your permission, I will turn it over to Mr. Morris who has made a far more detailed study of this legislation than I have done and whose qualities you have just underlined. I would highlight the importance of your question because you basically refer to what the Crown and the police would have as information.
Senator Baker: Yes.
Ms. Stoddart: Generally, honourable senator, this is a huge question of interest to our office, particularly as we believe that lawful access legislation and amendments to PIPEDA are pending that would allow police to obtain far more of Canadians' personal information — we hold it as personal information — without a warrant, which calls into question traditional tenets in our law. With your permission, senator, I will refer the question to Mr. Morris.
Mr. Morris: It is a very interesting and difficult because it raises the interplay of three acts. A couple of thoughts come to mind quickly. One is that Bill C-46 applies to records in possession of the Crown. If the Crown gets hold of a complainant's counselling records or medical records, it would still be protected by this legislation. In particular, subsequent use would also be protected. I would draw your attention to section 278.7(5), which states:
The record or part of the record that is produced to the accused pursuant to an order under subsection (1) shall not be used in any other proceedings.
I believe that is a measure for protecting the subsequent use of information. As for personal information that the Crown gathers on its own, I would have thought that in general it would be protected through the general provisions of section 8 of the Charter of Rights and Freedoms, in particular the general requirement to get a warrant first. It would be that sort of general protection in terms of what information the Crown can get that would help to protect the complainants.
Senator Baker: You are classifying it as a search.
Mr. Morris: Yes.
Senator Baker: Mr. Morris, you have been quoted in many court judgments — your text on the law in Canada and bilingual interpretation. In dealing with this bill, we all know that section 13 of the Official Languages Act, I believe, says that all acts of Parliament and all documents shall be simultaneously in both official languages. The concluding sentence is that they are equally authoritative.
I looked at the recent cases of sexual assault, specifically in 2011. A moment ago, when I discovered you were here, I forwarded to you a copy of a case from two months or so ago in the province of Ontario in which the trial had gone through. Section 278.1 had been applied at trial and at sentencing in the disclosure of personal information. The person was found guilty. However, for various reasons, the court determined that the person needed treatment and was given a conditional discharge, which means in law that a conviction was not entered, although a sentencing took place.
The case I just forwarded to you is similar to one in Quebec in which it is explained that the English and French versions are different. Paragraph 8 of the case — 2011, Carswell, Ontario, 539 — says that there is a difference between the French and English versions. The French version applies where there has been both a conviction and sentencing, whereas the English version requires only sentencing.
After referring to your definitive text, The Law of Bilingual Interpretation, and applying the approach described therein, the Quebec Court of Appeal said, interestingly, that it preferred the English version. Until this point, all of the Quebec courts were assuming the French version in the law. However, a judge of the court in Ontario said: " I am of the view that the Quebec Court of Appeal may have incorrectly chosen the English version."
Today, the French version is applied in the English courts and the English version is applied in the French courts. The distinction here, and in various other sections of this particular scheme of sexual assault, is that you need to have a conviction and a sentencing in order to be put on the list of offenders and if you have only a sentencing, you cannot be put on the list. That is one interpretation.
The Chair: Senator Baker, I realize you have an important point to make.
Senator Baker: I have a question.
The Chair: I take it a question will come from this.
Senator Baker: I will come right to it.
Mr. Morris, do you need time to respond to the committee in writing? There is discordance here, not just in the law in the French and English versions. Senators want to see people punished properly regardless of which version is applied. The discordance is in the interpretation of the definitive text of which you are a co-author with Mr. Justice Bastarache. Do you wish to comment?
Mr. Morris: It would be helpful to read the cases and then maybe we can get back to you in writing on that question.
The Chair: Thank you for that response.
[Translation]
Senator Boisvenu: Welcome, Ms. Stoddart, and thank you for being here; thank you, Mister Morris.
I would like to address the issue by talking about the other side of the coin, the assault victim's point of view. You are right, you introduced some numbers, some statistics that raise concerns with regards to crime reporting. Apparently, one person out of ten will report an assault, the level of underreporting is huge, and there are many reasons for this: fear of retaliation, fear of being labelled.
Furthermore, the fact that it is the victim's word against the assailant's is also of concern. Unfortunately, police do not always have the time to deal with this type of crime. They start with homicides, attempted murders and thefts and when it's time for assaults, the situation often involves children dealing with adults, the crime is not reported, especially when it occurs within a family.
My first question is this: we talk about criminal statistics and say that this type of crime is declining, even though we know that last year, sexual assaults increased by 5 per cent in Canada — in Quebec, in 2002 and 2006, sexual crimes increased by 40 per cent, in particular following Ms. Simard's case that encouraged many victims to come forward — when those who advocate more lenient legislation publicly affirm that sexual crimes are declining, how do you react?
Ms. Stoddart: Thank you for your question, senator. I referred to the statistics that were available considering the time that was allotted to prepare for today's submission. I believe it is extremely important to have up-to-date statistics that are relevant and that come from all parts of Canada. As far as I can tell, that kind of quality information is not available.
However, the statistics that you mentioned, and that I myself have not been able to consult, do not surprise me. I am reminded of everything we've seen in the last 40 years, since we started talking about victims of crime in general as being a major concern in our society and in our justice system, and this leads me to believe that we have only just begun to uncover, as you mentioned, the other side of the coin. In my opinion, because of social and economic inequalities and because the law favours the rich over those who are less fortunate, our justice system has traditionally been concerned with the rights of the accused. This is all very well and good considering what is going on in other parts of the world, this is an important democratic right. But we have not finished looking into another issue that we have, I believe, historically neglected, and that is the rights of the victims of crimes and not necessarily crimes perpetrated by the state, which was always a concern; but we are lucky to live in Canada, a democratic country. Acts of violence that may be perpetrated by other members of the community, and that have traditionally been underestimated, remain a concern. So, these statistics do not surprise me at all.
Senator Boisvenu: In your presentation, you raise a very interesting point concerning legal counsel for victims. When a criminal faces the court, the state grants him the right to be represented. The criminal is represented by counsel. The victim is not represented in judicial proceedings. The Crown attorney represents the state. In fact, the Criminal Code does rather little to protect a victim's rights. The principle applied is that the accused has the right to a fair trial, and that the evidence must establish guilt beyond a reasonable doubt.
The point that you raised, the victim's right to be represented by counsel, do you think this should apply in all judicial proceedings as is the case in France? In France, one lawyer represents the interests of the victim and another represents the state's. Should your suggestion, that sexual assault victims be represented by counsel, not apply to every victim during a trial?
Ms. Stoddart: Excellent question, senator. I am afraid that if I attempt an answer, I will be stepping outside my realm which is the right to privacy. I lack expertise in this matter. I will stick to questions relating to privacy rights. What I tried to tell you earlier concerning the fear that privacy rights might be infringed upon applies not only to victims of sexual violence. We now know, and that has probably changed quite a bit since that part of the law was passed, that the most victimized group are men who are coming forward more and more and saying, "20 years ago, this happened to me" or "30 years ago" and "I didn't dare talk about it." This is new, during the last decade I believe. But the majority of victims remain women and children who are dependant upon their abuser.
As it happens and because of social taboos, these victims have always, as a matter of culture, kept the details of their sexual and intimate activities hidden. As you suggested, they are reluctant to come forward, and even more so to stand before a court of law, in any capacity whatsoever, to describe their assault in detail to a judge. I believe that in itself, this is in contrary to what we continue to instil in people and, historically, in women and again, in children.
And so, the idea that there should always be a lawyer present, to encourage, to speak out, to call attention to the rights of victims in such circumstances seems to me an excellent way of protecting a victim's privacy.
Senator Boisvenu: One last question, very briefly. Parliament has adopted a new law on mega-trials. Should this law equally apply to victims of criminal organizations, who can also be reluctant to come forward, to ensure that their personal information is kept private? Should the bill not apply to victims of organized crime?
Ms. Stoddart: An excellent question, senator. I have no knowledge of this bill, I haven't read it, otherwise I wouldn't hesitate to answer your question at this time.
[English]
The Chair: Thank you, senator.
With the remaining senators, of which there are five who have questions, if we could be as concise as possible with the questions. I realize there are peripheral issues here that are very important, and having Ms. Stoddard here is an opportunity for us, but if we could try to restrict our questions to the bill that we are addressing, I would appreciate that.
Senator Angus: Good morning. Thank you both for coming. As we try to review this piece of legislation — it is a little bit late now, in 2011, but we did start last February — you have pointed out some shortcomings that could be addressed, and I will ask you about those.
The preamble to the legislation mentioned that the fear that personal information would be made public had a deterrent effect on victims coming forward, basically, to report. Grosso modo, has this legislation helped in that regard? In your opinion, has it achieved the goals or has it been a failure, for the reasons you pointed out, namely, the advent of the Internet and the proliferation of programs such as Anna Maria Tremonti's program, and so forth?
Ms. Stoddart: I believe it is an improvement, certainly. However, as other honourable senators have mentioned, I do not think we have a solid enough fact basis to know if in fact more people are coming forward because of this. From what I understand, it is not always clear that those who are victimized have, for the reasons we were talking about — lack of lawyers, lack of information and so on — enough knowledge to make an objective decision about the merits of coming forward. That is perhaps a question that your committee could underline, a central question.
Senator Angus: I do not need a long answer, but you have pointed out three main general categories, if I understood your opening remarks, where there could be improvement.
Do you or people in your office have any suggested wording for amendments that could be brought into this bill, or is it the general ideas of the flaws?
Ms. Stoddart: It is the general ideas. I do not think we have considered any particular wording.
We deal with civilian or commercial privacy. This is perhaps a matter for experts, so we have not looked at that. We would always be available to help you, should you request it.
Senator Angus: You did refer to the habit or prevalence of judges in Quebec — in these types of cases, to say nothing of others — to give these verbal pronouncements or decisions, and they do not seem to get transcribed. We have had this evidence about others. Is this only germane in the province of Quebec?
[Translation]
In your opinion, does this happen elsewhere in other provinces?
[English]
Ms. Stoddart: I will ask Mr. Morris to respond.
Mr. Morris: I am not sure that we would know. My understanding from the evidence of the other witnesses is that it is a problem especially in Quebec, but also in other provinces as well. It seems to be that not all decisions are getting published. They are difficult to find.
Senator Angus: Mr. Chair and other colleagues, did we not hear evidence that it is actually required, or was that in a new bill that we were recommending that they must transcribe?
[Translation]
So we are taking care of that problem.
[English]
Senator Lang: I want to follow up on one area that you brought up at the end of your presentation. That was the question of the Internet and the idea of at least reviewing the court and what is made public and what is not. In other words, the public's right to know.
I wanted to see if you would expand a little further on that. I think there are a number of areas here. Obviously we are very concerned about the victims, the witnesses, any time they appear in a court, to ensure that their privacy is protected.
At the same time, on the other side is the question of the accused, and he or she, of course, is innocent until proven guilty. However, it seems that when they are put forward in the public domain in the court, everything is brought forward. If they are found not guilty, they have still been found guilty in the court of public opinion.
I am wondering if you have a comment on that in respect to the Internet and the way the world is changing. What responsibilities do legislators have to ensure a balance for everybody involved in these situations?
Ms. Stoddart: Thank you for the question. I do not have the answers, but because of our work we have noticed the effect of people who are literally distraught and come to my office because of the publication of their personal information on the Internet, when all they were seeking was administrative justice. That is how we got involved in this.
Sometimes, in debates, those on the other side will say you are against freedom of expression and you are against the open court principle. I am against neither.
I think that we have to re-examine and rethink how the principles of everyone being in open court, in a certain context, were appropriate for the community, for the values, perhaps, of that time — that is more debatable, but those were the values — and for the means of communication of that time.
That is why I am saying this honourable chamber could look at this whole question — I know our courts are grappling with it, our tribunals are grappling with it, this goes far beyond the borders of Canada — of how much publicity should be brought to bear on our justice process: who, why, what and what should happen to it.
This links into another question that we are increasingly asking ourselves is something the French call the right to be forgotten. In the case you say I am accused of something, it is on the Internet, it is publicized, people watch this on TV and I am exonerated. It is on the Internet, in the present state of affairs, forever.
Senator Angus: As if you were guilty.
Ms. Stoddart: Right. In France, apparently, there is a procedure — the name of which escapes me — by which you can apply to have an order to the Internet service provider to have this taken down from the Internet. No such thing exists in Canada or North America, but I submit these are important questions. I think the existence of these new technological means, notably the televising of trials and the publication through the Internet and images on the Internet, have radically changed the administration of justice. I think we should look at it a bit more.
[Translation]
Senator Joyal: I would like to get back to the legal document under study. In subsection 278.5(2), in the list of factors to consider, you mention it in your presentation, should we, in your opinion, review the list to add new factors or clarify others, and I am referring in particular to paragraph (e) that states:"the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates."
[English]
The potential prejudice to the personal dignity and right to privacy of any person to whom the record relates.
[Translation]
In your opinion, are the factors that must be considered by the judge sufficient or should we recommend a review? That is my first question.
Ms. Stoddart: Thank you, senator. According to what I have been able to learn, and need I remind you that I am not an expert in criminal law, there aren't any important oversights. I gather that it would be preferable, from a privacy point of view which is why I am here today, that judges always comment on these rights. Therefore, if there should be a change, it would be to encourage judges — I don't know if it is necessary to amend the law — to always consider the facts surrounding privacy rights.
Senator Joyal: In other words, you are suggesting that, in his decision, the judge should explicitly state which factors were considered. Because according to the wording of the clause, and Mr. Morris can confirm this, "the judge shall consider . . .the following factors." The wording is clear: « in particular, the judge shall take the following factors into account."
[English]
In English, ". . .the judge shall take the following factors into account . . . ."
[Translation]
In other words, a judge to whom a motion has been submitted must consider factors (a) to (h) or seven factors and you believe that the judge who renders a decision or issues an order should give reasons for his choice and weighing of factors. In other words, he should justify his decision.
Ms. Stoddart: A decision first of all that contains explanatory notes, that is more explicit and in which the judge gives reasons. I think that would be helpful.
Senator Joyal: And as senator Angus has stated, we have already passed a bill, recently, that contains a similar clause.
My second question concerns subsection 278.7(3), Order of production, factors to be considered. In your view, in circumstances in which a judge decides to restrict the production of a victim's records, are these factors sufficient or should we consider other factors? In particular, I'm thinking about the Internet, an inescapable fact that judges must consider when determining whether to order the production of records. In the past, facts were published in newspapers and it was easier to have some control. Today, we have very little control over what is published, unless there is a specific obligation, as you mentioned earlier when you reminded us there exists, in French law, the right to be forgotten, that is to say unless the judge's order specifically prohibits any publication, on the Internet, of information pertaining to the victim.
In other words, I repeat, in these circumstances and given today's electronic communications, are the factors adequate or should we consider an amendment to add or to clarify factors to be considered?
Ms. Stoddart: Thank you for your question. If I may, I will ask Mr. Morris, who has studied the bill in much more detail than I have, to answer.
Mr. Morris: I would say that the list of factors found in subsection 3 is not exhaustive. The judge always has the discretion to consider factors that are not included in the list. That is how I interpret the section. The words "in particular" are used. The law is flexible and that is a good thing.
Moreover, for future use, I will refer to subsection 5 that also mentions subsequent use of the records. I think that can be helpful.
Perhaps other factors could guide the exercise of judicial discretion, however, the question might merit further study.
Senator Joyal: The law goes back to 1996, Internet was very different then. Obviously, when we use the words "in particular," the judge interprets them in the usual manner, and senator Baker can confirm this, judges normally restrict themselves to the factors that appear in the list and hesitate to go any further except in obviously extraordinary circumstances or in circumstances so extreme that other factors are warranted in order to protect the judicial system's reputation.
But it seems that, in these circumstances, we should consider today's electronic means of propagating information that cause more damage than any other factor that was used, in the past, to justify a restriction on publication . In other words, technology has rendered the traditional view regarding the scope of factors to be considered nearly obsolete. That is how I see it.
This brings me to conclude that in particular, publication on the Internet should be one of the factors judges have to consider in order to better protect the victim's right to privacy.
[English]
The Chair: Senator Joyal, I believe the witness did respond to your question, did he not? I understand your thoughts on that.
Senator Joyal: They seem to be nodding their heads, but the record will not reflect that they have concurred.
The Chair: I had thought that what they actually said responded to the question. However, very briefly, if there is anything further that you care to add.
Ms. Stoddart: This is an important question that Senator Joyal has asked. There is not only the Internet, but there is the phenomenon of tweeting. Anyone can tweet any proceedings that they see here, on the court steps, and so on. Perhaps we could take some time to look at this and write back to you.
[Translation]
Senator Joyal: It is "every type of electronic publication," not only the Internet.
[English]
Senator Angus: We have the possibility to have these hearings in camera in a court. If I understand what is coming out, even then you are in camera. However, the court stenographer is taking the record, and that ends up unexpurgated on the Internet somehow, because people can go on the Internet and get the transcript. Therefore, if we recommend amendments, possibly, there needs to be some control even on in camera hearings.
The Chair: We could discuss that further at the appropriate time. That is a good point.
Senator Frum: On the subject of independent counsel — which you are recommending be beefed up because they only happen in half the cases, you mention for complainants but also for witnesses — I am wondering if you could address this issue from the perspective of the privacy concerns of witnesses. Are there cases where their personal records are also requested? Are there any special concerns from a witness point of view?
Ms. Stoddart: Thank you for that question. I am not familiar enough with the jurisprudence on this to know. I wonder if my colleague perhaps has had more of a chance to look at these real-life cases and what is happening.
Mr. Morris: I have not come across any case — I am sure there are some — of just witnesses. Obviously, they are cases where the complainant is a witness and their personal information is being sought. I would guess — this is just a guess — that that is the most typical case. The accused is probably trying to poke holes in the complainant's version of events, so that is when they would seek their personal records.
Senator Frum: I guess the motivation behind this law is to empower complainants and victims to come forward, but of course witnesses are compelled. Therefore, I suppose they are in an even less voluntary position, so I do not know if they would have a special interest.
You also mentioned the rise in sexual assault cases in Nunavut and the Northwest Territories. In terms of the number of personal information requests in any region of the country, or in that particular territory, is there any correlation between the number of sexual assault cases and where the greatest number of these kind of requests are coming from? Would you have that information?
Ms. Stoddart: I could not understand that it was clear from the study exactly what is happening, and that is why I said to this committee that I think we need up-to-date statistics. I was shocked to see that all I could read was 2000, 2004, based on statistics published a few years before.
This whole question of the correlation, which is the heart of the presumed helping effect of this law, we do not really have enough information to know how it works. I think we are both a bit in the dark about that.
Senator Meredith: In your statement, Ms. Stoddart, you indicated that sexual assault is one of the most, if not the most, under-reported crimes, largely due to victims' desire for privacy. That is a huge problem, as I think of the large number of young people on university campuses. We see that increasingly a lot of them are being assaulted, and they feel that sometimes the institutions they attend do not protect them.
What recommendations would you give to this committee to ensure that these victims come forward? If they do not come forward, their perpetrators continue to victimize. That, for me, is the fundamental issue here in terms of the laws that we enact to protect these individuals.
Can you elaborate a little bit for me on what you would recommend so that we increase the number of these victims who come forward, and to offer them the assurance that legislation and the courts will protect them while they rehabilitate back into society and try to carry on with some sense of normalcy?
Ms. Stoddart: Thank you, honourable senator. Our recommendation is that help be given to victims' rights organizations and centres generally. These organizations play a key role, particularly in the more informal world of university campuses, organizations that can give you accurate information, accompany and counsel you, and then, perhaps in a more costly way — and I believe this goes to issues of provincial jurisdiction — the right to a lawyer. If you cannot afford a lawyer, one of the honourable senators mentioned that the government will not furnish you a lawyer. If you are an accused, ironically, you get legal aid, but if you are a victim you do not. That is perhaps a fundamental difference that it is time to look at.
I think concrete measures like that would be key, where you have some accompaniment and assurance of information and protection by a professional.
Senator Meredith: Mr. Morris, would you care to comment?
Mr. Morris: No, I do not have anything further to add.
Senator Jaffer: Commissioner, I found your presentation interesting, especially on the issue of independent counsel, and the issue that you raised of who stands up for the victim, and also your last remark. The Crown's main job, of course, is to present the prosecution, the defence has a job, and sometimes the victim is left alone.
I think especially in sexual assault cases, I know you will agree with me, this goes very much to the core of the person, unlike any other case. It can completely destroy a person with psychological records, medical records and really there is a fishing expedition.
From the material we have been presented, Nova Scotia public prosecutions say they provide independent counsel, or at the moment they are providing it. I do not think that is country-wide, however. I know in my province, British Columbia, legal aid is a big issue.
I want to clarify one thing. Are you suggesting that we recommend an amendment to the Criminal Code that there be mandatory legal representation provided to a victim in sexual assault cases where the victim's records are being asked for? Is that what you are suggesting?
Ms. Stoddart: Thank you for the question. I must say, honourable senator, that we have not had a chance to look at the details of this. I do not think we have the expertise to really give you detailed submissions on criminal procedure, nor on matters that possibly cross into provincial jurisdiction. I would not opine on where a victim's right to legal counsel should best be enshrined in legislation.
I think this committee could study or have further studies done or raise the issue with those more knowledgeable in these matters. That is the idea. We are saying if you do not want your privacy rights to be invaded, if you are a victim and feel you have been a victim of a sexual assault, one of the best ways to have them protected is to have a right to counsel who will be there for you, who knows the law, who can inform you and who can protect you.
I cannot advise you on how that should best be done.
Senator Jaffer: In the presentation you made on the fourth page, the last bullet, I understood you to say that judges should be required, under the Criminal Code, to appoint independent counsel. That would mean an amendment to the Criminal Code, if I understand correctly.
Ms. Stoddart: Yes, I did say that. That could be put in. I guess I was speaking to the more substantive issues of basically a judge can say one should be appointed, but then someone has to really pay for it. I am very careful about not opining any further than that for that reason.
Senator Runciman: Legal aid, not only in British Columbia but in many jurisdictions, it is an ongoing challenge to find adequate funding from current legal aid programs. That is the wall we bump into.
I think everyone accepts what you are saying. You are not responsible for collection of data with respect to this. I am just curious if there is any data that you are aware of related to orders denied more often, for example if the complainant is represented by counsel. Do you have any information on that? I know there is inadequate information generally with respect to this whole area.
Ms. Stoddart: I will refer this to Mr. Morris. I believe in one of the studies there was a study of the correlation between the presence of counsel and the access to the victim's personal records. Am I correct?
Mr. Morris: Yes, I think it was Professor Busby in her testimony. Their research was into the effects of independent counsel. They did find that counsel had an effect on the level of disclosures, or at least that they played an important role in highlighting the importance of what was at stake for the complainant.
There was also an anecdotal study performed by the Department of Justice, or for the Department of Justice, in the early 2000s, which is also mentioned in the testimony, which refers to anecdotal interviews with lawyers and judges.
Senator Runciman: Touching on what Senator Meredith raised about the number of assaults that go unreported, and you mentioned advising sexual assault centres and so on, whose responsibility is that? Do you get engaged in that kind of information disbursement?
Ms. Stoddart: No, not at all. We are — I will not say "totally" — out of our depth, but we are on the very fringes of the job that Parliament has given us to do, which is to administer the Privacy Act and PIPEDA. PIPEDA deals with personal information in the commercial setting and the Privacy Act in a civilian government setting. We have no mandate for the criminal law administration world. That is why I am very hesitant about it. We do not have the basis of expertise nor indeed the mandate in this area.
Senator Runciman: The right to counsel, that information is sent out to victims' offices, I guess, through justice. Is that your understanding? Who provides that information? Who promotes the awareness? I am curious: Does that kind of information go to psychiatrists or professional organizations, a therapist?
Ms. Stoddart: The right to counsel?
Senator Runciman: We can talk about someone suffering an assault and not going to a victims' office. They may be going to a psychiatrist or a therapist. It seems to me their professional organizations should be made aware of this right as well.
Ms. Stoddart: I believe the questions of administration of justice are largely provincial, so certainly the funding for legal aid, as some senators have mentioned, is provincial. There may be information coming from provincial and territorial ministries of justice. However, I believe the federal government does give some funding to victims' aids groups and victims' rights groups. Certainly there has been more attention by the federal government on that issue recently. There may be information coming from that source, too.
Senator Runciman: I think it was your recommendation and your submission that in terms of the judges' decisions, I gather the bulk of these are oral so we do not have a record that we can go back on, or other judges can refer to. You are recommending that there be a requirement that these decisions be written?
Ms. Stoddart: I hesitate to say that all decisions should be written because we know that judges, like everyone else, are overworked and they may have very cogent reasons why they simply explain orally. These would then be automatically taken down in a transcript, but why is the transcript then inaccessible to researchers who try and see if this law is working or not, if it has an effect and so on? That would be the nuance I would add, senator.
Senator Fraser: I was not sure why you restricted that to researchers.
Ms. Stoddart: These are in camera hearings. I am speaking of the particular part of the Criminal Code. The transcript would be subject to — there would have to be —
Senator Fraser: I understand. Thank you.
The Chair: That concludes today's hearing. On behalf of all honourable senators, I want to thank Ms. Stoddart and Mr. Morris. As usual, a thoughtful presentation, excellent suggestions and they will be given very serious consideration by our committee, I assure you.
(The committee adjourned.)