Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 5 - Evidence for November 17, 2011
OTTAWA, Thursday, November 17, 2011
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 12:03 p.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: Colleagues, we will commence this meeting. Good afternoon, and welcome to each of you and to our invited guest, whom I will be introducing to you in just a moment and who is appearing today by videoconference. I am Senator Wallace, from New Brunswick, and I am the chair of the Standing Senate Committee on Legal and Constitutional Affairs.
As committee members are aware, we are here today for our third meeting of this parliamentary session to examine and report on the provisions and operations of Bill C-46, 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. In doing so, it created the present legislative 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 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 the 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 in 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 operations of the act. In the last parliamentary session, this committee held two meetings on this issue and received evidence from a number of witnesses.
During the past four weeks, we have also heard from Jennifer Stoddart, Privacy Commissioner of Canada, as well as four separate organizations that are involved with matters concerning the prevention of sexual assaults and the provision of services to victims of sexual assaults. In addition, we have had Mr. Phil Downes, the director of the Canadian Council of Criminal Defence Lawyers, and yesterday we heard from Prof#tpdel 21
essor Donald Stuart, from the faculty of law at Queen's University.
Today, colleagues, I am very pleased to welcome to our committee, by video conference, the Honourable Andrew Swan, Minister of Justice and Attorney General for the Province of Manitoba. Minister, welcome, and we deeply appreciate you taking the time from your hectic schedule to be with us today.
Hon. Andrew Swan, M.L.A., Minister of Justice and Attorney General, Government of Manitoba: Good morning. I do thank the members of the committee for the opportunity to present to you today on what we think is an important issue. I am speaking to you from a courtroom in Winnipeg's law courts building, across the street from our provincial legislature. I cannot resist telling you I am also four blocks away from the MTS Centre, where our Winnipeg Jets are taking the ice tonight.
It is a privilege to speak to this committee about the sections of the Criminal Code dealing with the production of third- party records of complainants in sexual assault trials. It is Manitoba's position that the amendments to the Criminal Code enacted in 1997 do indeed represent a fair and reasonable balance between the right of an accused to make a full defence, and the right of a complainant not to be subjected to an unreasonable and invasive search or even a fishing expedition of their personal history. Manitoba takes the prevention and prosecution of sexual assaults very seriously and is committed both to supporting victims and to removing obstacles to victims' coming forward when assaults occur.
I thank the committee for sending along some very detailed questions respecting the financial support of complainants faced with an application, which I will simply refer to as a section 278 application throughout my presentation. I will address your specific questions after some basic background on how these situations are handled in Manitoba.
Our system in Manitoba is quite simple. Where the Crown attorney becomes aware that there will be a section 278 application being made, the Crown attorney refers the case to victim services if victim services is not already providing assistance to the complainant.
The complainant will then be provided with independent counsel for the purposes of the application. The cost of that counsel will be fully covered by Manitoba Justice, separate and apart from our legal aid system. Any complainant, regardless of means, receives this assistance from the Province of Manitoba.
I have spoken with our Crown attorneys, and they report that these appointments are generally seamless. They rarely generate any delay in the matter proceeding to the trial. There are a small number of private lawyers in Manitoba who have developed expertise in this area. They wind up handling most of these cases on behalf of complainants. I am advised that since the provision came into force, there have been to date 128 section 278 applications dealt with in this way in Manitoba.
That is the basic background. I will now turn to some of the specific questions forwarded by the committee.
Because referrals are commenced by our Crown attorneys, judges in Manitoba do not play any active role in arranging for counsel. Your committee asked about when in the proceedings the representation would begin. My understanding of section 278.3 of the Criminal Code is that an application for the production of records may only be made to the trial judge. While Crown attorneys commence the referral as soon as it is known that the production of records will be an issue, outside counsel would generally only appear on the motion heard by the trial judge.
Your committee asked for more detail on how the assistance of outside counsel is provided. Manitoba, although a growing province, has a relatively small and generally cooperative bar, and there is a limited number of private lawyers who have made themselves available to do this type of work. Our civil legal services branch will arrange for the retainer, making it clear that the complainant is the client and accordingly provides instructions to the outside counsel.
Your committee also asked whether financial support is available to cover the cost of legal representation for third- party record holders who wish to appear or to intervene in sexual assault cases in proceedings related to the production of records that they hold. Manitoba would not generally provide financial support to these individuals or entities. I am not aware of the cost of representation for a third party ever being an issue in any Manitoba case to date.
The balance of your questions would apply to jurisdictions where assistance is provided within the legal aid system, so I will not comment on that or on what other provinces or territories may do.
In summary, it is Manitoba's position that sections 278.1 to 278.9 of the Criminal Code represent a reasonable balance between the rights of the complainant and the rights of the accused. In Manitoba, we have made the policy decision to make our Crown attorneys responsible for flagging cases where a section 278 application is made; and our victim services workers then assist complainants and arrange, through civil legal services, for outside counsel.
We believe this is the right thing to do in order to protect individual complainants. We also believe it is the right thing to do to prevent any chilling effect that you spoke about in your opening comments, to ensure that complainants do feel comfortable coming forward and raising allegations.
I will be pleased to try to answer any questions that you may have, but on behalf of Manitobans, thank you for allowing me to participate this morning.
The Chair: Thank you very much, Minister Swan. Those comments will be very helpful to us.
We will now turn to questions from our senators, starting with the deputy chair, Senator Fraser.
Senator Fraser: This has been an extremely interesting presentation. You have an impressive system and it is helpful to us to hear about it.
How long has this system been in operation? Is it still fairly new, or did it start as soon as we got the section 278 scheme in place?
Mr. Swan: I do not have the answer to that question. All I was given was the total number of cases, which works out to roughly 10 per year in Manitoba. I do not know when this more formal policy was put into place.
Senator Fraser: If it is 128 and 10 per year, arithmetic would suggest we can get to the answer that way, roughly speaking.
Do you have any information you can give us about how much it costs for your victim services to provide this legal counsel?
Mr. Swan: No, I do not have a cost breakdown. Again, it is a relatively modest number of cases per year. Generally, civil legal services would retain lawyers within a reasonable range in Manitoba for those lawyers to do the work. Again, because the lawyers would only appear on a motion before the trial judge, the actual time is relatively limited.
It is not a big concern for the Province of Manitoba. We think the relatively modest cost is worth it to protect complainants in sexual assault cases.
Senator Fraser: Would I be right in assuming that the policy reason for doing this through civil legal services rather than through legal aid would be that it is seen as inappropriate to apply a means test for complainants in need of this service? You say any complainant, regardless of their means, receives this assistance. That sounds to me like a policy view that this is just something that you should provide.
Mr. Swan: We would see it more as a function of our victim services here in the Province of Manitoba, and not a function of our legal aid system.
Senator Runciman: You talked about this being separate from the legal aid program itself. What is the rationale behind that? Why is it not part of the legal aid program?
Mr. Swan: I think Senator Fraser's question and response may provide that answer. In Manitoba, victim services are provided to victims of crime; we do not have a means test. We would see providing this type of protection to a complainant in a sexual assault case as being a function of victim services. In Manitoba, we do not think it appropriate that you would have to apply for legal aid and have your financial means affect your ability to have counsel represent you.
Senator Runciman: The criteria are different in that one respect in terms of qualifying for assistance.
Do you assign a private sector lawyer to this, or does the complainant have any role to play with respect to the selection of whoever will be representing the complainant?
Mr. Swan: I am advised by counsel that there is a relatively small group of lawyers in Manitoba who have developed some expertise in this work. Given the number of cases, there would not be a stable of lawyers that do this kind of work. It is a small enough community that civil legal services would be comfortable with the lawyers in there.
I do not know if they actually discuss a particular lawyer with the complainant. I know that the individuals that they would pay for would be people we would trust to do the work for complainants in a sensitive but effective manner.
Senator Runciman: Is it the legal aid rate that would apply, or is there a separate billing process? Is there any cap on the dollars these individuals can charge? How do you approach that issue?
Mr. Swan: There is a tariff for civil legal services to retain outside counsel. It is not connected to the legal aid rate.
Senator Runciman: How does it compare with the legal aid rate?
Mr. Swan: It would be higher than the legal aid rate.
Senator Runciman: As we talked about yesterday, one of the primary goals of the legislation was to encourage reporting of incidents of this nature. You are suggesting 10 per year in Manitoba. What impact do you think the legislation has had, if any, in that regard? Do you have any views on that?
Mr. Swan: I believe the legislation has made it more likely that a complainant will be prepared to come forward. I think it was intended to prevent the chilling effect of someone having their personal and therapeutic records put before a court. Frankly, I think it prevents someone who is a victim of a sexual assault from feeling that they will be victimized again when they testify in court and go through the proceedings. I think it has been a positive thing for people coming forward to make complaints.
Senator Runciman: You mentioned victim services, but is there a more significant approach to making the general public more aware of the availability of counsel in situations like this? We have heard from a number of our witnesses about education and a lack of awareness of the availability of assistance in situations like this. Is your government doing anything to promote awareness of this assistance that is provided?
Mr. Swan: Sure. In Manitoba, the Crown attorneys are really the gatekeepers. In a situation like this, it could be well into a proceeding before it becomes apparent that a section 278 application will be made. The Crown attorney, who has the contact with the victim in most cases, would then take the necessary steps to ensure victim services is involved.
As I said earlier, the person may already have a victim services worker. If the complainant is under the age of 18, they will automatically receive victim services. If it is a sexual assault that is of a very serious type, they may also already have a victim services worker.
It seems to work well within the proceedings to have it done this way in the Province of Manitoba.
Senator Runciman: There is no broader dissemination to churches, medical facilities, doctors and others who may be working with victims who may approach them initially rather than going to a sexual assault centre, for example? Nothing like that occurs?
Mr. Swan: Not specifically from Justice. I expect there is other information available out there. Of course, we do take the issue of sexual assault very seriously, and there is information available at crisis centres and hospitals. Whether it specifically relates to the possibility of a future section 278 application, I must admit I do not know.
Senator Runciman: I am no expert in this. Perhaps someone else can elaborate. Our witness yesterday, who was a law professor at Queen's, talked about his concern about the crime of rape being lumped in with all of the various crimes that can be lumped under the heading of sexual assault. He felt, because of the seriousness of that particular crime, there should be some distinction with respect to how we approach this issue. I wonder if you have given that any thought.
Mr. Swan: No. My appearance today is intended to deal with these specific sections and our support for having them continue.
Senator Baker: Welcome to our committee Mr. Swan. Are you a lawyer yourself?
Mr. Swan: Yes, I am. I practised 14 years before being elected.
Senator Baker: What branch of law did you practise?
Mr. Swan: Family law.
Senator Baker: In the practice of family law, if a third party held the records being sought, and the court felt that legal representation would be warranted for those people who held the records, the judge could make a determination and order legal representation at the Attorney General's rates.
As we had explained to us yesterday, 95 per cent of the cases go before provincial court. The Crown, in these particular cases, invariably selects the summary conviction route. Therefore an accused would not have an election to a higher court to have the trial take place.
Do you have any thoughts in order to correct this imbalance? In other words, if you are before a superior court — if you were the holder of records — you could make representation for legal costs to be paid. If you are before a provincial court, you could not do so. If you wanted state-funded legal costs you would have to apply to the legal aid system that is in effect.
Do you have any objections or thoughts about a recommendation made to this committee that we should recommend that legal costs be paid for those persons who hold the records being sought under this 278 application?
Mr. Swan: From my investigations in preparing for this submission today, all I can tell you is I am not aware of any case in Manitoba where costs for a third party have been an issue. You speak a bit about family law and criminal law. In the family law circumstance you have two parties, each with their own interests and means. The criminal system is a little different. Generally we expect the state will take on the prosecution of a case. At the same time, the complainant may be receiving victim services. I cannot tell exactly what Parliament was thinking in 1997. However, I believe they were stepping in perhaps to try and equalize the playing field a little bit when an accused was to step up and demand a whole series of records, which may only be a fishing expedition and damaging to the individual.
I am not sure I have answered your question. The point you raised really has not come to my attention or to the attention of the Crown attorneys in Manitoba familiar with these cases since this law was enacted.
Senator Baker: I was simply pointing out that in family law you are correct. There are two parties. However, there are often three parties involved — the children. That sometimes requires a court to make a determination, depending on the age of the children, as to whether or not they require legal representation, as you are undoubtedly aware. If this appears in family court, there is a jurisdiction that the judge has to appoint legal counsel. I see you nodding and understanding this.
Mr. Swan: Yes.
Senator Baker: This is quite different. You say that you are not in favour of having the province responsible for the appointment of legal representation for those persons who hold the records being sought. Generally, you are saying you do not have evidence that there is need for this to be in place. That is your position. Would it not fall back to the province? If legal services are provided, either through the Attorney General's department or legal aid, that comes out of your budget. Is that not correct?
Mr. Swan: Either way, it winds up being paid by the taxpayers of Manitoba.
Maybe it would be helpful for me if you can flesh out a situation where a third-party record holder would have a strong position one way or the other to provide records. On a policy basis, the reason why we generally pay for this coverage is to protect the complainant in a sexual assault case. Perhaps it would helpful if you could give me some specific examples.
Senator Baker: We had representation from organizations who are involved in this field. They suggested to us that they do not have the means to hire lawyers to protect the records that they have. They want to have a say in the court proceedings. On occasion in case law, you will sometimes see four lawyers involved in this section 278: the Crown, the defence, one for the victim and one for the organization from whom the records are being sought. I think that was their point.
Getting back to your submission, the rates are at the Attorney General rates, which are higher than the legal aid rates, as the former solicitor general for Ontario put to you, Senator Runciman. The person or victim involved does not have a choice of lawyers. Is that what your policy is?
Mr. Swan: I would not phrase it that way. It is a pretty collegial bar in Manitoba. Civil Legal Services are the government lawyers who arrange for the retainer. There would be a pretty small number of lawyers who do this sort of work. Obviously, if there was a conflict, a problem that a complainant expressed or a concern, then they do everything they could to find another person. It is a small group of lawyers from among whom one would be selected.
Senator Meredith: My question is along the lines of what Senator Runciman asked, with respect to the rights of the accused and the victim. I am keenly interested in the position of the government on ensuring victims are aware they have the right to counsel. Is there a communication of this to the general public or victim services? Is there a mechanism of communicating this to them?
Mr. Swan: There is a general level of service provided to any victim of a sexual assault. That is provided when they go to treatment at a hospital or at a clinic. The police service in Winnipeg — the RCMP or municipal police force — will generally have someone work with that person from the start to give them all the information they may require.
The section 278 application is technical, but it would arise much later on in the court proceeding.
Generally information for complainants is to be provided as early as possible after they report. I believe more specific information would only be given at a time when there is a threat this might happen.
Senator Meredith: My next question is in terms of the encouragement of victims to come forward. We heard yesterday from Professor Stuart, who said there is still reluctance on the part of some victims. Knowing that these services are in place, they still need to come forward.
What recommendations would you make to this committee to put in our reports to tell provinces, "This is what we believe should be implemented in order to encourage victims to come forward." It is still problematic and something that is being grappled with. What would you recommend that this committee put in our report going forward?
Mr. Swan: I think we must be realistic about how much can be done in the Criminal Code. I think this section was brought into force because of a specific problem that was arising. Defence counsel was effectively going on fishing expeditions, which had the effect of chilling people. I think these provisions are an appropriate balance. It limits that ability and protects complainants, but also allows the accused to make a full defence. I do not know if there is anything else we would be calling for specifically, other than to ensure these provisions are enforced.
Senator Meredith: You are satisfied with the sections as they relate to the bill now. You are comfortable that more victims will come forward providing that these sections are implemented?
Mr. Swan: Again, I do not want to sound too much like a lawyer. I will put it the other way.
Senator Meredith: Are you not?
Mr. Swan: If these provisions were to disappear from the Criminal Code, I do have a fear that it would have a chilling effect. As it is, we know that not all sexual assaults are reported. We want to ensure that any individual who has been assaulted feels comfortable coming forward. By agreement of all parties in our legislature, Manitoba has recently passed an act to proclaim Sexual Assault Awareness Month. We provide additional services to assist Manitobans through the Department of Family Services. We have a lot more information going out to young people to make them more aware of date rape, and what is and is not a healthy relationship. There are a lot of other things done by different government departments.
In terms of speaking to the Criminal Code, I think what exists now is a good balance. We would not want to have those provisions disappear from the Criminal Code.
Senator Frum: In trying to understand how effective these provisions have been, we have had a shortage of statistics. It is exciting you provided us with one of the first statistics we have heard, and that was the number of section 278 applications.
I want to follow up on something you said to Senator Fraser. You said on average these worked out to about 10 per year. If we felt these provisions are working and are effective, should that not be a declining average? If they are the same number coming each year, would that suggest that they are effective?
Mr. Swan: I cannot say. The number is 128. I do not have it broken down per year so I do not know if the amount has been increasing or decreasing. I cannot really speak to that.
Senator Frum: Is the premise correct? If the number of applications stayed steady, there is no deterrent effect of section 278?
Mr. Swan: There would be a number of other factors. I will give you an example. Every year the Canadian Centre for Justice Statistics provides statistics on the number of complaints made to police. If the number of sexual assaults in a jurisdiction reported to police goes up in a year, it can mean one of many things. It can mean that the number of sexual assaults is going up. It can also mean that Canadians, primarily women, are more comfortable coming forward and making complaints. I would be very careful. Even if we could show that there has or has not been a decline in the actual number of applications, I would be cautious about drawing a conclusion as to the effectiveness of the legislation.
Senator Chaput: Of the 128 cases that have been flagged by the Crown attorney, could you tell us what percentage the 128 is of all cases? Do you have any statistics regarding that?
Mr. Swan: No, I am afraid I cannot tell you that.
Senator Chaput: You do not have that. You said that once the cases have been flagged, the victim service workers will assist. Who gets in touch with the victim service workers? Is there coordination of some kind? Who gets in touch with them?
Mr. Swan: The way the prosecution system in Manitoba is set up, victim services are connected to the computer system that Crown attorneys use. When Crown attorneys become aware of an application of this type, they can make the immediate referral to victim services. A victim services worker will then meet with the complainant and let them know the circumstances. Once they have met with the complainant, they will go to Civil Legal Services and have them make the arrangements to retain a lawyer.
Senator Chaput: When that communication is made between the Crown attorney, victim services workers and then Civil Legal Services, are there statistics on the kind of sexual assault? Who are the victims — women, children, the elderly? Is that being looked into?
Mr. Swan: I do not have information on that for the committee today. I do not know what level of detail or statistics they would have. I do not know that this morning.
Senator Chaput: Once cases have been flagged, victim services workers have coordinator assistance and legal services come in, what is the result of those 128 cases? Did everything go well, according to what you know?
Mr. Swan: I can give you the anecdotal reports that the Crown attorneys give me. When lawyers do make representations, they are effective. The judges will then consider carefully. The difficult part is balancing what the accused would see as their full right to make a defence to the rights of the complainant. My understanding is it is not unusual for the lawyer for the complainant to be successful in not having those records produced.
Senator Chaput: I guess we would not have the feedback of the victims, would we? You do not get feedback from victims on whether they are really satisfied?
Mr. Swan: No. Being in political office, I am quite certain that if a victim was unsatisfied with how the procedure worked or with the effort that a lawyer put in, I expect that either myself or my predecessors would hear about it in one way or the other.
Certainly, as Crown attorneys everywhere around the country do, Crown attorneys in Manitoba take this seriously. I am satisfied that in Manitoba, if a Crown attorney was unhappy with the way that we deal with these applications, it would find its way to my office.
Senator Lang: I want to follow up with respect to the applications that have been put forward. The number is 128. Do you have any idea how many applications that were put forward were successful?
Mr. Swan: I am afraid I cannot tell you that.
Senator Lang: That leads me to my next question. We had a good witness yesterday, Professor Stuart, who put forward the case that he felt that perhaps there should be some minor changes to ensure that the rights of the accused were taken more into account in respect to the applications for these records in that, if I remember his submission correctly, he recommended that, if that question were to be put, it should be put at the start of the proceedings and the judge should in the privacy of his own office determine if he or she agrees that it is relevant to see the documents.
It seemed to be a logical way of proceeding because it is the start of the trial and all the evidence and whatever that will be considered is, basically, at the beginning and not halfway through the proceedings if someone is going on a fishing expedition.
Do you have any thoughts on that? He was quite concerned that in certain circumstance there may well be a miscarriage of justice. There is a balance that this legislation is supposed to be providing for both the complainant, whom we want to protect, and the accused as well. Do you have any comments on that? I think I described it properly.
Mr. Swan: I guess I need more detail. When your witness the other day talked about making the motion at the start of the proceedings, does that mean at the start of the criminal trial or does that mean at some earlier point in the criminal process?
Senator Lang: I would say at the earliest possible time when that should be brought forward. That was what I got out of his testimony. He wanted to ensure that whatever relevant evidence was to be utilized during the trial was there at the beginning and that it was the judge who made that particular decision, as I said earlier, in the privacy of his office, as to whether or not these records were relevant. Therefore, it would not really become an issue of any kind later in the trial, protecting both the complainant and the accused.
Mr. Swan: All I can say to that is that, again, the Crown attorneys in Manitoba, who deal with a relatively small number of these cases each year, as far as I know, have not raised any concerns about when the applications are raised. Certainly, we would not want to be in a position where an application and the response to it then delays a trial that has been set for a week because in Manitoba, as in most other provinces, we usually do not have spare courtrooms and spare judges that can be moved around.
I have not heard anything from Crown attorneys or from the defence bar in Manitoba that would make me think that there is anything dramatic that needs to be changed in these provisions.
Senator Fraser: Senator Lang pre-empted me in a sense, but I am also going back to Professor Stuart's testimony last evening.
I think his key concern was that there is a two-stage process in section 278. The first stage is determining the likely relevance of the documents in question and that the judge must decide that on the basis of arguments submitted but does not actually see the documents before deciding at this first stage whether they are likely to be relevant or not. Professor Stuart was saying that, in his view, it would be preferable to have the judge see the documents — not anyone else, just the judge — at that stage. I still have not figured out in my mind exactly how this system would work.
As a lawyer — and family law is probably a reasonable background in this; it is not criminal but you have had to deal with very emotional clients, I expect — does it seem to you, if we could figure out the practicalities of it, reasonable to suggest that the judge should be able to see the documents in question at that early stage or do you think that would just create more and counterproductive stress?
Mr. Swan: That is not an easy question to answer. In criminal cases it is not unusual that there becomes a dispute over whether some kind of evidence is admissible and it is not unusual to have a trial interrupted by a voir dire, which is really a trial within a trial. If it is a jury trial, the jury will be excused and the lawyers will then make their arguments in front of the judge. The judge will then decide whether a certain piece of evidence is admissible.
This is a voir dire, I suppose, of a particular nature because of the kind of information that is being sought.
I will not make too many comments except to say that I am not sure that I see how the current way this is being done in any way inhibits the right of the accused to a fair trial. If the accused wants production of records, the accused's lawyer will have to make the case as to why the records are important. The accused's lawyer will have to make a case as to why, even if it contains something that might be damaging to the complainant, it is an important piece of evidence that the judge needs to consider and show some real foundation for why these records would be useful. Again, from the investigations I have made and the questions I have asked, I do not see in Manitoba that there is any great need that has been expressed by anyone to change the way it is working right now.
Senator Baker: Thank you, Mr. Swan, for your information. It is really concrete information that goes to the very subject that we must consider, namely, making recommendations on this particular legislation that has been in effect since the late 1990s.
If I understand you correctly, to make sure we are correct on this, victim services is a part of the Department of Justice. Is that correct?
Mr. Swan: That is correct, sir.
Senator Baker: If victim services is a part of Justice, as you say, then the police, upon hearing an initial complaint, may refer the victim to victim services for direction. Is that correct?
Mr. Swan: With one caveat: To make it as confusing as possible, the Winnipeg Police Service and the RCMP also have their own victim services units. Whenever someone is a complainant in a sexual assault case, even before Manitoba Justice provides any service, generally there will be a police officer with expertise in this area who will meet with the complainant and provide information. At least, in Winnipeg I know that some counselling and assistance are provided by the police in addition to the services that the province provides.
Senator Baker: We have to be careful to distinguish between the victim services that are supplied by the police forces and the victim services that are supplied by the Department of Justice.
Let me ask you a question that immediately comes to mind. I imagine some other provinces have the same system in effect as you do in your province. All records held by the police upon a complaint and a charge being laid are available to the defence as normal disclosure, that is, the records of the police. However, the records of your victim services in the Department of Justice may hold privilege as far as records are concerned and could become the subject of an application that we are talking about under section 278.
You understand what I am saying. If the person is directed toward victim services in the Department of Justice, and victim services will not only counsel them, hear their complaint and direct them to where they should be directed but also provide legal services for them as well, do you know if that information so accumulated, those records so accumulated are disclosable to the defence as a normal disclosure procedure without having to go through a section 278 application process?
Mr. Swan: No, I do not. Victim services would assist someone in either setting up an appointment with a therapist or psychologist or whatever the case may be. However, for the services actually provided by a victim services worker to a complainant, I really have not turned my mind to that. Since the victim services worker is not a lawyer, I do not believe you would be able to maintain that it is privileged in the way that lawyers would think of that word. I am not aware of that having been an issue in Manitoba. Again, I feel confident that if victim services were of the belief that the work they were doing was being hampered by a defence application, given the way we do things in Manitoba, word of that would have gotten to the Attorney General long before now.
Senator Baker: Your Department of Justice performs, as you explained to us, the same functions as some of the organization that appeared before the committee in assisting the persons who are so affected, the victims. Therefore, the records would be in the same category as the records that were being sought from these organizations that appeared before the committee. We have to make recommendations here. If there is a problem with this in that the records could be sought through a section 278 application, as you referred to it, could you notify the committee? You understand what I am asking.
Mr. Swan: Yes, I do. Senator, if I can be permitted to provide information after this attendance, I will also try not only with respect to your question but some of the other good questions that have been asked. If we do happen to have any additional statistical information that would appear to be of use to the committee, I will see what we can do to provide that. It sounds like there has been a lot of evidence but not a lot of hard statistics on the number of cases and the outcomes. I will do my level best to help your committee with that work.
The Chair: Thank you, Mr. Swan. We appreciate that.
Senator Baker: Thank you.
The Chair: Colleagues, that concludes our questions for the minister. Minister Swan, we thank you for taking the time to be with us today. It seems with each witness we have, we gain another insight, and certainly that was the case today. We appreciate it and look forward in the future to having you back again.
Mr. Swan: Thank you very much.
The Chair: That concludes the meeting for today.
(The committee adjourned.)