Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 62 - Evidence


OTTAWA, Wednesday, April 23, 1997

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-46, to amend the Criminal Code (production of records in sexual offence proceedings), met this day at 4:40 p.m. to give consideration to the bill.

Senator Sharon Carstairs (Chair) in the Chair.

[English]

The Chair: Honourable senators, we begin our consideration of Bill C-46, to amend the Criminal Code (production of records in sexual offence proceedings).

For the record, the steering committee decided unanimously that we would hear only from the officials on this particular bill, since there had been a great deal of in-depth study done in the other place.

However, I want senators to hear testimony from a number of witnesses in the other place who had indicated their concern about the legislation. To that end, you will receive today presentations made before the House of Commons by the Canadian Council of Criminal Defence Lawyers, the Criminal Lawyers' Association, and Dr. Merskey, to whose testimony Senator Cools alluded in her speech yesterday afternoon.

We have with us this afternoon officials from the Department of Justice. I would ask you to make some opening remarks about the bill, and then a number of senators will want to question you. Please begin, Ms Kane.

Ms Catherine Kane, Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice: Madam Chair, I shall make a few opening comments and then go through some of the highlights of the bill.

Bill C-46 will amend the Criminal Code to establish the law and procedure which will govern requests by accused persons for the private, personal, confidential personal records of complainants or witnesses in sexual offence proceedings.

The bill has been carefully drafted to ensure that its provisions, while providing greater protections for complainants of sexual offences, and while requiring careful scrutiny of requests by accused persons for their records, will not infringe on the rights of accused persons.

Before addressing why the legislation is needed, it is important to outline the context for these amendments. The amendments apply only in respect of sexual offences in the Criminal Code.

As in any criminal offence, the Crown must prove each element beyond a reasonable doubt. For most sexual offences, this will require proof that the alleged sexual activity occurred and that the complainant did not or could not consent to the sexual activity. Where the accused offers evidence in defence, the accused need only raise a reasonable doubt about any one of the elements of the offence. Nothing in this package of amendments changes the burden on the Crown to prove every element of the offence beyond a reasonable doubt or the presumption of innocence of the accused.

Over the last 20 years, there have been several law reform initiatives to modernize our sexual offence laws with respect to adults and children. I need not review these reforms, as I know that senators, in the Senate, have referred specifically to them. Despite these significant law reforms which were designed to remove some of the stigma, the myths and stereotypes of the type of person a victim might be or why certain people are sexually assaulted, in a trial of a sexual offence it often appears to the victim that she or he is on trial rather than the accused.

Bill C-46 seeks to address an emerging trend which is having a devastating impact on sexual offence victims. In the last five years or so, counsel representing persons accused of sexual offences have developed a new strategy in the defence. The focus has been on seeking and obtaining a wide range of personal or private records about the complainant. The records may be sought for a variety of reasons: to look for what they may think might be an inconsistent statement about the allegation of the assault; to look for a mental health condition; to attack credibility; to look for any other information generally about the complainant's lifestyle and habits; and, in some cases, to generally intimidate the complainant.

A wide range of records have been requested ranging from school report cards, group home records, adoption records, Children's Aid Society records, personal diaries, and medical and counselling records, with little regard to their relevance or to their private or confidential nature. Some of the records sought have been made years after the alleged offence, some years before the alleged offence. For example, sexual assault centre records and other treatment records which were made specifically because the alleged incident caused the complainant to need counselling or treatment.

As a result of this trend, many complainants have lost confidence in those to whom they have turned for help and also in the justice system which, in their view, has ignored their rights by turning over largely irrelevant but highly personal records to the accused without considering their rights as a complainant or witness. Bill C-46 seeks to address this impact and offer some protection for complainants by requiring the courts to carefully scrutinize requests for records. However, the amendments do not prohibit the production of records as has been demanded by some equality-seeking women's groups.

I note also that the bill only addresses the production of records. It does not attempt to change the law of evidence. Generally, relevant evidence will be admissible. The issue of production of records and the admissibility of evidence should not be confused. Defence counsel are seeking records -- in other words, documents or material so that they can examine it in the search for something that might be helpful to them in their defence.

Generally speaking, I go along with many of the measures that are in this bill. There is, however, some criticism of it put forward by the bar. Why do you authorize the communication of the diary of a woman? The diary is included in the category of record, which is protected by this legislation. If an accused seeks a person's personal diary, they would have to satisfy the requirements of this bill in order to gain access to that diary.

Senator Beaudoin: If they wish to have the diary, they have to comply with the conditions in the bill.

Ms Kane: They have to satisfy the trial judge that the diary they seek will contain information that is likely to be relevant to an issue at trial or to the competence of a witness to testify.

Senator Jessiman: They cannot get any of the documents at the preliminary hearing, is that correct?

Ms Kane: That is right. These applications must be brought to the trial judge.

Senator Jessiman: What is the reason for that? At the preliminary hearing, there is a judge who can adjudicate these issues.

Ms Kane: The purpose of the preliminary hearing is to determine if the Crown has evidence sufficient to prosecute the offender, if there is sufficient likelihood of conviction based on that evidence.

Senator Jessiman: Do you not have the evidence on the other side? The Crown may not have a case if the record showed that the person was lying all the time.

Ms Kane: These records are sought because the accused is asserting his right to full answer and defence, which the Supreme Court of Canada has said is a trial right.

Senator Jessiman: Did the Supreme Court say that they do not have that right at the preliminary inquiry? I have not had time to read the cases, so I am at a loss. Are you saying to me that the Supreme Court has now said that the common law right to get this kind of information, which will be taken away by this statute, is denied at the preliminary stage of a trial?

Ms Kane: The Supreme Court of Canada has made it clear in O'Connor that applications for this type of record are to be brought at trial to the trial judge.

Senator Jessiman: Applications must not be made before trial.

Senator Beaudoin: Does that include preliminary hearings?

Ms Kane: Not to a justice presiding at a preliminary inquiry or any other proceeding.

Senator Beaudoin: Is it the high court which has said that?

Ms Kane: Yes. We have reflected that in this legislation.

Senator Beaudoin: They are there to rule. It is a trial right, if I may use that expression, but not at the preliminary hearing stage.

Ms Kane: Right.

Senator Beaudoin: The second point I am inquiring in respect of is that the person in charge of the dossier may be called as a witness, but the bill does not provide for that.

Ms Kane: Anyone may be called as a witness if they are under subpoena, if the subpoena has been properly issued and they have material evidence to give.

Provisions in this bill address their compellability at the hearing to determine the production of records. In proposed section 278.4(2), this legislation makes it clear that the person who has the record, the person the record is about, and any other person named in the record may appear at the hearing and make submissions, but they are not compellable to do so. They cannot be required to give testimony at that hearing.

The onus is on the accused at the hearing to establish why he wants those records. Those other parties need not say anything if they do not want to. They can appear and they can make submissions, but the accused cannot force them to give evidence at that hearing within the trial.

The Chair: This is the hearing within the trial, the hearing specifically to acquire records.

Ms Kane: Exactly.

Senator Beaudoin: When are they compellable?

Ms Kane: They would be compellable as a witnesses within the trial proper if they have relevant evidence to give.

Senator Beaudoin: There is no doubt about that.

Ms Kane: That is right, there is no doubt about that.

Senator Doyle: I am having great trouble trying to see how you can even maintain the appearance of "innocent until found guilty" in a courtroom permeated by the fact that the accused must first go begging to the judge and consult a list of "Thou shalt nots" before framing his questions. In this circumstance, he would not seem to be an accused facing his accuser on anything resembling equal footing. I think you would, first, wipe out that man's own belief in himself before he was through the trial. Did anyone stop at any time and say, "Look, that man is an innocent man that we are dealing with and we are already treating him like he has been convicted"?

Ms Kane: I do not believe that this bill takes away from the accused's right to defend himself, nor does it take away the Crown's burden to prove every element of the offence beyond a reasonable doubt. This bill is only aimed at requiring the courts to scrutinize more carefully requests by the accused person to get records of the complainant that are usually held by third parties that are not parties to the criminal prosecution.

I referred to the list of assertions. A person cannot assert a variety of things to say why records may be relevant, but those are not impermissible grounds. If they can establish that they need those records because the records will be likely relevant to an issue at trial or to the competence of a witness to testify, they will not be denied those records. If the judge determines that they should have them, there is no prohibition.

Senator Doyle: That is, if the judge decides.

Ms Kane: That is right. It is a discretion of the judge to determine if third party records should be provided to the accused.

Senator Doyle: Are there many parallels in criminal law of running a list of "do not ask for this unless" in any act or in the code itself?

Ms Kane: Yes. I could refer you to the many provisions regarding applications to get a search warrant. You cannot just present yourself and say, "I need a search warrant." There are a variety of criteria that you must satisfy.

Senator Doyle: When you ask for a search warrant, you are not accused of a terrible crime.

Ms Kane: As I have said, the burden is on the Crown to establish that the accused has committed the offence. These are things that the accused is seeking from a third party.

I should also add, as I mentioned before, nothing prevents an accused from calling as a witness any person that can provide relevant evidence and asking relevant questions. There are limitations on getting records that those people may have, but they can still be called to give viva voce testimony.

Senator Doyle: All of those conditions are conditions that apply to the accused. They tell the accused, "You cannot do this, you cannot do that. You must do this, you must do that."

Ms Kane: You are right; we are imposing some conditions.

Senator Doyle: You are doing nothing to limit the position of the accuser.

Ms Kane: As I have said, the Crown has to prove the case. The Crown has to prove each element of the criminal offence beyond a reasonable doubt. Nothing changes that. The accused is seeking the records of other parties. When you violate the privacy rights of another third party, it is not unreasonable to ask that certain conditions be met before a judge determines if those other rights should be violated. It is a balancing of rights, and both must be accommodated -- the right of the accused to make his full answer in defence and the right of privacy of the complainant, the witness or any other person named in those records.

Senator Doyle: Where is the balance between the accused and the accuser when you put all of these conditions on one side? I am all in favour of trying to protect the reputation of the woman who is brave enough to charge the man. Mind you, at the same time, I would protect the man until he has been found guilty because his reputation can easily be destroyed. However, there does not seem to be much concern here about what will happen to the man if he is found to be totally innocent.

Ms Kane: As I have said, nothing prevents that accused person from calling as a witness any person who has relevant evidence to give in his defence. He may have to meet certain tests in order to get records. Records are sought because they can then be explored. Harmful evidence can be discarded and useful evidence can be used by the defence. On the other hand, if you call a witness, ask them a relevant question and they give you an answer, you are stuck with the answer whether or not it is helpful. Nothing prevents the accused from calling anyone who can give evidence in his defence in court. Nothing in this package of amendments interferes with the rules of evidence.

Senator Doyle: Then why do we not simply write a piece of legislation stating that either party in this action, if they wish to subpoena documents, must go to the judge and ask him.

Mr. Yvon Roy, Senior General Counsel, Criminal Law Policy Section, Department of Justice: Senator Doyle, I do not take your argument to be that we should allow the accused to go on a fishing expedition in order to defend himself or herself. I am sure that is not what you are arguing. However, at the same time, you are saying that there may be other instances in law where information in the possession of the Crown is not to be shared with the accused.

There are cases in law where fishing expeditions have been tried by the accused. I have one in mind where the accused claimed that he should know whether the state -- whether at the provincial or the federal level -- had a wire tap on him in the last ten years. He was on a fishing expedition pure and simple, asking the Crown to give him that information.

Over the years we have had to deal with the issue of informants and whether the accused should be able to know the name of the person who has provided information to the police so that they could catch the accused. The courts have tried to maintain the balance between, on the hand, the sacred right of an accused to defend himself or herself completely, and on the other hand, the right of the state to keep those informants from having their identification disclosed. Why? Because these people may be killed or they may end up not telling anything to the police if their identity is disclosed.

Having to balance those two interests, the courts have said, if you need information about an informant in order to defend yourself and you give us the required circumstances -- for instance, that the informant was present when the crime was committed -- then he is a witness to what has taken place. The state will force you to disclose that kind of information.

The Minister of Justice contends that this bill is of the very same nature. Judges are being given the tools to decide what public interest must prevail in a particular case. The accused may want to go on a fishing expedition into the private life of the complainant. That person has the right to defend himself or herself balanced against the constitutionally recognized right of people to their own privacy. This legislation is a way to strike that balance and to give judges the tools to make that determination.

According to this piece of legislation, the accused is not denied the right to defend himself in any way, shape or form. What is being provided to the courts is a way to balance these competing interests. That is all that is being done.

The central issue in this bill is to be found at page 4 where it refers to sufficient grounds. If you are satisfied that these grounds are not meant to deny the accused the right to defend himself or herself, I think that honourable senators should be in favour of this bill. We can go into those grounds and try to explain as best we can what is meant by having these provisions in the bill.

The rest of the bill was created to give the framework as to how this will be done, but in my humble view, this is the heart of this legislation.

I submit to you, senator, that this is only a way to stop fishing expeditions which should not be allowed in our system of justice, whether they be by the Crown or by the accused. The accused must have reasons why he or she needs that information.

You were asking for precedents. There are many in our law, one of them being the privilege associated with informants.

Now, if you want me to go into the grounds, I would be more than happy to do that.

Senator Doyle: If we are to protect against fishing expeditions on one side, why do we not allow protection against fishing expeditions on the other? I have been a court journalist in my day and sat through many a case where the ultimate in fishing was done by the Crown attorney, not by the accused person trying to defend himself or herself.

Senator Gigantès: Am I correct in understanding that the accused can ask, through the judge, for any information and that the judge will determine whether that information is pertinent or not?

Ms Kane: It is not quite as broad as that. The legislation makes it clear that where the accused is seeking this type of records, he must bring an application. He must also serve a subpoena on the person who holds those records. The application must set out what it is he seeks and the reasons why he thinks the records are likely relevant to an issue at trial. Then a hearing is held by the judge in which all the parties affected by that operation have an opportunity to be heard. The onus is on the accused to satisfy the judge that what he seeks in those records held by a third party is likely relevant to an issue at trial. The judge should look at those records and go on to determine whether any part of those records should then be passed to the accused.

Senator Gigantès: This procedure would be unfair to the accused only if we assume a bias by the judge against the accused.

Ms Kane: That is correct. There is nothing in this legislation which suggests any such bias. We start out on what I consider to be neutral territory. Where the accused wants records that are held by a third party, he must say why he needs the records and the judge will make that determination based on the criteria set out in this legislation without any presumptions in favour of production or non-production. The judge is required to look at the Charter rights of both the accused and the complainant and the factors that we set out in the legislation to guide in that exercise of discretion and will make the determination accordingly.

Senator Gigantès: Can the counsel for the accused dispute the judge's finding on appeal, for instance?

Ms Kane: Where the judge determines that records should not be produced, this legislation says that that determination is a question of law. For example, if the accused is ultimately convicted and there are no other grounds of appeal, the refusal to order production of records would be grounds for appeal.

Senator Jessiman: You are looking at insufficient grounds. If you had all these grounds, would that be sufficient?

Ms Kane: That is correct.

Senator Jessiman: For example, if the records disclose a prior inconsistent complainant or the record relates to the sexual activity of the complainant with any person, including the accused, all those things are not sufficient. What is sufficient, then?

Ms Kane: I wish to emphasize that I think you are misinterpreting the intent of that provision. First, the accused must establish the grounds that he relies on to show that the records he seeks are likely relevant. That is the basic rule. This provision makes it clear that the accused cannot simply assert any of the following in the hope that that will satisfy those grounds.

I have said that the ordinary dictionary definition of "assertion" prevails. "Assertion" means a bald statement such as, "I need the records because they are about the incident in question." That does not say anything about how those records might be relevant. Nor does saying, "I need the records because they may reveal an inconsistent statement."

Senator Jessiman: What if they thought they needed the records?

Ms Kane: If they thought they needed the records and they can point to some reason why they think that they will, that may be sufficient. This is geared to assertions based on those bald statements; they are not impermissible grounds, senator.

Senator Jessiman: If you had all these things, that is not sufficient even to let the judge look at them, never mind the accused.

Ms Kane: That is right.

Senator Jessiman: The judge could not look at the documents in order to decide.

Ms Kane: In the alternative, if you said that you could list all those things and then the judge would get the records, then in every single case, a judge would look at records because a person would be asserting that maybe they would contain this, maybe they would contain that, and so on. Those are not grounds to establish how a record is likely relevant to an issue at trial.

Senator Jessiman: What if they did contain that information?

Ms Kane: They could look at them, then. The judge could certainly look at them.

The Chair: Let us get a specific example of what Senator Jessiman is asking about.

If an accused has knowledge that a woman who was sexually assaulted went to a hospital and had a physical examination and the accused thinks, for example, that there is no evidence in that examination by the hospital of any sexual assault, how would he go about proving that there was no medical evidence against the sexual assault?

Ms Kane: That specific example may not be the best illustration. The Crown would have disclosed the medical examination because that will be part of the Crown's case.

Let us say it is the case of a person who is sexually assaulted and goes to a sexual assault counselling centre to seek help in dealing with what has occurred. She has not yet decided whether or not to go to the police; she is just trying to deal with the victim situation. She may go for several counselling sessions and may provide a great deal of information about her life that is not particularly relevant to the assault, but she may also describe what happened to her and what happened when the alleged assault occurred.

The accused may want those records, alleging that, "I need the records because they will include a discussion of the incident with which I am now being charged." They probably do, because that is why she went to the sexual assault centre. That does not say very much about how the information in those records will likely be relevant because likely that information is exactly the same as the report to the police given by the complainant, which started the investigation to be launched and the charges to be laid.

The accused will have to offer more. For example, if he says, "Those records might reveal an inconsistent statement"; yes, they might. Is that enough to violate her privacy and have a look at the records? Maybe it is -- that is, if the accused can offer more concerning why he thinks there will be an inconsistent statement. That could be in the form of information that he has from other people who say that she has told a different story to countless other people and they are prepared to set out in an affidavit that different versions of the event have been recounted. The accused would say, "Based on my information and belief, I have reason to believe that these records will contain statements that are inconsistent with her statements to the police about the time, place or date", or whatever. That may be enough for the judge to say, "On the basis of the likelihood of relevance with respect to the inconsistent statement, I will have a look at those records and determine whether or not the accused should have them."

The Chair: To continue further with my analogy, you indicated that the Crown would have said that they would bring the medical records. What if the Crown decided they would not bring the medical records because in their view they would not prove their case? The medical records show no medical evidence of any semen, blood or anything that would indicate that there had been a sexual assault; however, the accused wants those records brought into court because he believes they would prove him innocent.

Ms Kane: Based on that scenario, the accused would certainly meet the threshold of likely relevance. He is not just speculating that the records exist and that they might contain information, he has some reason to believe that she was examined at "X" hospital on the same date as the assault. He will be able to set out in some fashion the grounds for his belief that it will not confirm sexual assault and that nothing in this list would prohibit the court from looking at those records.

Mr. Roy: Actually, I thought that Mr. Bobiasz wanted to intervene on that particular point. Perhaps I will speak after him.

Mr. Fred Bobiasz, Criminal Law Policy Section, Department of Justice: Madam Chair, if the Crown had a medical record concerning a physical examination that did not advance its case, under existing law they would be obliged to disclose that information.

The Chair: Yes, under the disclosure provisions.

Mr. Bobiasz: Yes. Anything in the Crown's possession that is relevant to the case, whether it is favourable or unfavourable, has to be disclosed. What we are talking about is information that is in the possession of third parties, something which Ms Kane tried to be very careful to make clear.

The Chair: That is an important point.

Senator Jessiman: I am getting confused.

Senator Cools: We are not confused; they are confused.

Senator Beaudoin: I thought Mr. Roy had something to add.

Mr. Roy: In the interest of clarity and trying to be helpful to the committee, it seems to me that we must be careful with the language that is used in what would become section 278.3(4), which speaks about insufficient grounds. That is found on page 4 of the bill.

Those words were chosen in order to ensure that the fishing expedition I was talking about will not occur. Let us take those paragraphs one after the other. First, when we are talking about paragraph (a), the mere assertion of the existence of the record will not be enough for the judge to say to the third party holding the record, "You must give that record to the accused. "Why? Because that is the best example of a fishing expedition. The existence of the record as such does not suffice. Look at paragraph (b).

The Chair: Mr. Roy, it is very important that we get this very specifically. Is "I think a diary exists" an example of what you are talking about?

Mr. Roy: That is not good enough. What does that tell you? Why would that be helpful to your defence?

Senator Gigantès: Perhaps in the diary she describes what happened not as an assault but as a love affair. In that case, the diary supports the defendant's contention that it was consensual sex.

Mr. Roy: That is fine, Senator Gigantès, but that does not speak to what proposed section 278.3 4(a) is all about. It is the mere existence that is not sufficient. You are talking about the existence of a record that is germane, that is relevant to an issue at trial. Once you have that evidence, or you can make that presentation to a judge, you have satisfied the test. Simply saying to a judge, "I know that there is a record" will not be good enough. I personally do not think that this is outrageous in any way, shape or form, because this is the best example of a fishing expedition.

I do not think it is right to say that because there is a record I should get into the record, when trying to balance the interests of the parties.

Senator Gigantès: "When I was in her house, I saw a black, vinyl-covered book with the word `Diary' on the cover. I want to see that diary because in it she will be talking about what has happened to her every day, and maybe she has written about what happened between us in that diary. She may describe what happened between us not as an assault but as an affair, so we should look at the diary to see what she says."

Ms Kane: That is all based on speculation again. Maybe it contains that; maybe it does not. If you had some reason to believe that it did because some other person had read the diary and could say that it described that, it would be a different matter. You could always ask her about that on the stand in cross-examination.

Senator Gigantès: However, the accused, the alleged rapist, says, "I saw that she has a diary. I know I did not rape her. I affirm I did not rape her. Let us look at the diary and see what she says in the diary."

Mr. Roy: That same accused may say, "Well, perhaps she wrote a letter to her mother in which she said that she was not raped," or "Perhaps she wrote a letter to her priest saying she was not raped."

Senator Gigantès: He says, "I saw the diary, and since she is alleging that I raped her, let's see whether she wrote in her diary that I raped her. I know that I did not rape her. Let us see whether she wrote in her diary that I raped her."

Mr. Roy: I am suggesting to you that this is nothing other than a fishing expedition. It is, in my humble view, the very epitome of a fishing expedition.

Senator Gigantès: There have been cases recently of people being accused of rape, who have not committed rape, after which the accusers recanted. People's reputations were ruined. It is impossible to repair that damage.

I am now talking about an accused who is truly innocent. I postulate that this accused is truly innocent. I do not know the story, but I postulate. He certainly says he is innocent. He says that any means which might prove that he is innocent, such as her diary, which he saw in her bedroom, in which she may have described what they did in terms other than appear in her complaint to the police, is something that might save his reputation, the reputation of his family, his job tenure and the burden of having a criminal record.

This has not happened to me personally. I have never been accused of any such thing, but there are people who have who did not deserve to be accused.

If you were the judge and the accused at the hearing says, "Judge, I did not rape her. I know she has a diary. Let's look into the diary to see if she describes it as a rape." Is that not sufficient grounds?

Mr. Roy: That would not be sufficient grounds. In this particular case, I do not even know that this is a record, but since it falls under our definition, we will use this as an example. This is purely and simply speculation on the part of the accused which is of the same category, in my opinion, as the person who says, "I would like to know the name of the informant who has said things about me, thereby causing the investigation which has brought me before the judge."

The balance must be between whether this is really needed by the accused and the privacy interest of the person who is complaining about the crime having been committed.

Senator Gigantès: It would be satisfactory for the judge to look at the diary. The judge can say that whatever is in the diary is not relevant to the trial. At least the accused should have the right to have the judge know that there was a diary and to have the judge look at that diary.

Mr. Bobiasz: Let us consider where we are in terms of the process. We are getting close to the trial. At that stage, as part of the disclosure process, the accused will have been apprised of all the information in the possession of the Crown, whether or not the Crown intends to use it.

An innocent accused is aware of his or her situation vis-à-vis the incident. There is probably positive evidence which the accused can bring, other than simply saying, "I did not do it." That evidence, considered in conjunction with the Crown's case as presented, may be sufficient to raise a bare assertion to the level where the judge is convinced that there is a likelihood that there may be something in that diary to support the accused's position.

Senator Gigantès: There is a provision that the judge must look at these things and decide whether or not they are relevant. Why should the judge, in the hypothetical case I have given you, not look at the diary?

Mr. Bobiasz: Before the judge should look at the diary, and possibly seriously invade the privacy of an individual, there should be sufficient reason.

Senator Gigantès: It is not sufficient reason that the accused says, "I am innocent. It was not even a date rape. The lady wanted me to sleep with her. Judge, please look in the diary."

Mr. Bobiasz: If the accused provides that as testimony, along with whatever other information is at his or her disposal to buttress that, the judge may very well believe that the first threshold test is met.

Senator Gigantès: That is not testimony. That is an assertion by the accused. Of course he will make an assertion of innocence if he is innocent. He will probably make an assertion of innocence even if he is guilty, but why should the judge not look at it and decide?

Mr. Bobiasz: Senator, with respect, what you provided was more than an assertion. You provided an assertion plus circumstances suggesting that there is something to the position of the accused.

Senator Gigantès: I asserted circumstances. I had no proof to offer. In that case, the accused is saying, "We were in her house. It was consensual sex and she says now that it was not. I saw a diary on her bedside table. Judge, please look at the diary. Do not reveal it in court." The judge will not say that she had several lovers about whom she has written in the diary. The accused will say, "Look at that date in the diary and see if anything is said about my raping her". Is that not a legitimate request on the part of an accused who is facing a dreadful accusation which will ruin his life?

Ms Kane: In the hypothetical case which you have set out, senator, that may be enough to satisfy the judge that he or she should take a look at the records.

Senator Gigantès: You say that; yet Mr. Roy does not. We often have lawyers from the Department of Justice who take different views on the same issues.

Ms Kane: It depends on the circumstances of the case. Generally, a bare assertion that a person has a diary is not enough for the accused to gain access to the diary.

Senator Gigantès: The judge will have access, not the accused.

Ms Kane: You have to recognize that from the person's perspective who wrote that diary and who confided her innermost thoughts in her diary, having the judge read it is as much a violation of her privacy as having it broadcast on the nightly news. That is the way complainants of sexual assault feel. Once your privacy has been violated, it cannot be gained. That is why this legislation imposes that type of threshold at the first level. Before a judge violates privacy, he must be satisfied of the likely relevance at which he might be looking.

Senator Gigantès: You have just said that it is likely relevant, while Mr. Roy has said "No."

Ms Kane: Generally, no. Based on the facts as you have elaborated them, the judge may agree that he should have to look at them.

Senator Lucier: I thought the bill dealt with third party documents. I thought a diary was not a third party document. I thought it belonged to the accuser. That is not a third party, is it?

If she went to talk to a counsellor and the counsellor kept a diary, I thought that would be a third party document, that you would be discussing that diary. I cannot see why her diary would not be admitted as evidence.

Senator Cools: Can I piggy-back on that?

The Chair: Senator Cools, let the witness answer. I will add you to the list of supplemental questions.

Ms Kane: First, the accuser in a criminal prosecution is the state or the Crown. The complainant who lays the information has the same status as any other witness in the criminal process. They happen to be the one who is the victim of the offence, but they are not the accuser. It is the state that is the accuser.

In our deposition of records, we generally talk about records that would be, as you said, third party type records. However, we specifically include diaries so that there can be no question that they are, indeed, protected by this legislation because diaries have been sought --

Senator Jessiman: Diaries of whom?

Ms Kane: Diaries of the person who is the complainant or the witness. Diaries have been sought in the same manner as third party records to explore, for a variety of reasons that may ultimately intimidate the complainant.

Senator Lucier: Are a doctor's records considered third party documents?

Ms Kane: Yes.

Senator Lucier: However, they are once removed. It is no longer the victim's diary; it is the doctor's diary.

Ms Kane: It is the doctor's record, yes.

[Translation]

Senator Nolin: You want to establish the parameters for the judge's power to examine during the preliminary examination. At present, the judge does not have that power. The defence counsel goes on a fishing expedition and digs up all kinds of things, and by doing so violates the rights of the complainant or one of the witnesses.

I tend to agree somewhat with Senator Gigantès. There has to be arbitration at some point, so that the judge can conduct an examination during the testimony of the complainant or witness in accordance with his judicial power. I will go back to Senator Gigantès' example: you ask the complainant's sister: "Does your sister keep a diary," and the answer is "yes". Then you ask her: "Has she been keeping it for a long time," and the answer is: "Yes, since she was in her teens." You ask her: "In your opinion, does she write in her diary regularly?" and the answer is: "Yes, she does."

I understand that we have to protect the complainant's rights or the privacy of a witness or the complainant, but the accused, who claims he is innocent, also has rights. And I think we are depriving him of one of his rights.

I would be prepared to accept arbitration by the judge. I have the list of what cannot be included in the accused's statement or assertions, and it seems so restrictive that he must know exactly what is written in the document to have access to it.

I agree that there must be a preliminary investigation, but the judge must have more leeway so he can take into account the rights of the complainant or the witness and the rights of the accused. That is what we are talking about here; there are conflicting rights.

Mr. Roy: Exactly. You have stated the problem much better than I could have. What clause 278.3(4) attempts to do is clearly set out guidelines for the judge. It does not tie the judge's hands in any way. What we are trying to say with that wording is that simply asserting that a record exists will never be sufficient.

I was not being facetious earlier when, in response to one of Senator Gigantès' questions, I referred to what the person meant: Perhaps you sent a letter to your mother or perhaps you sent it to your pastor or perhaps there is another document somewhere that could help us.

The legislation states that simply tossing out ideas like that will not give you access to the document.

Senator Nolin: I agree with that.

Mr. Roy: Let's take the first three in that category. In subclause 4, the record exists, it relates to medical treatment. Simply saying: Did you receive medical treatment, Madam? Saying that, without adding anything else, is not enough to have access to the record; something has to be added.

Look at subclause (d), which reads as follows:

that the record may disclose a prior inconsistent statement of the complainant or witness;

Senator Nolin: I was just going to ask you that question. Inconsistent with what?

Mr. Roy: My comments concerned the words:

[...] may disclose a prior inconsistent statement [...]

The person says: I would like to see that record, because who knows, it may contain something that could help me. It does not say that, if you cannot indicate to the judge that there was in fact a prior inconsistent statement, you are not entitled to it; it says the opposite.

If you say: "I have conducted an investigation, I have spoken to people, and I can tell you that the record contains an inconsistent statement," you will get access to the document and the judge will have to take it, look at it and say that it does contain an inconsistent statement and that you can use it.

That is why I said earlier that we must pay heed to the words that are used. If we go back to paragraph (d), simply stating that the record may contain a prior inconsistent statement is not sufficient. That is too easy. All I would have to do is stand up in court and say to the judge: you never know, the record could contain something useful; and the judge would have to obtain the record and violate the person's privacy. The Supreme Court has made the point on a number of occasions, especially Mr. Justice La Forest, when he said that once you have violated someone's privacy, even if only one person is involved, the damage is done.

This bill purely and simply states that tossing out an assertion like that is not sufficient; it must be supported.

Look at paragraph (e):

that the record may relate to the credibility of the complainant or witness;

Imagine what you could do with that. I could stand up in court every day during the criminal trial and say: I would like to see the document that exists -- because I claim it does exist -- because you never know, it may contain something relevant to this person's credibility.

In my opinion, Senator Nolin, that is the perfect example of a fishing expedition.

Senator Nolin: I agree. When defence counsel claims, without any evidence, after hearing testimony, that there is no commencement of proof that leads us to the conclusion that there is, in fact, such a record or document, that is a clear example of a fishing expedition. That leads me to a comment...

[English]

... that you have made earlier, but you still have the right of cross-examination. What if the plaintiff or the sister of says, "Yes, that diary exists"?

[Translation]

I have a problem with that. I think we need some guidelines for examining these conflicting rights. I do not have a problem with that. We have to give the judge more leeway, and you are telling me that he already has enough. What you really want to do is prevent ideas from being tossed around.

Mr. Roy: Exactly.

Senator Nolin: Is there a medical record? Well, maybe! No, it must be more precise than that. It is either yes or no. There must at least be a commencement of proof to the effect that such a document exists. If it does, the judge must examine it and decide if it is pertinent and if disclosure of the document would be in the interests of justice. Do we agree on that? You will perhaps say that the bill meets that objective. We are staring so hard at the tree that we cannot see that forest. That could happen and we could get hung up on minor details.

Mr. Roy: I think my colleague, Mr. Bobiasz, would like to make a comment. I would like to respond to your question.

Mr. Bobiasz: Establishing the existence of the document is a good start. The next step is to hear evidence to see what, in the document, could help the accused. That will depend on the rest of the evidence.

Senator Nolin: Clause 278.3(4) of the bill reads as follows:

that the record relates to the sexual activity of the complainant with any person including the accused;

That is similar to your earlier example of a personal diary, Senator Gigantès. A witness tells us that the diary does exist. There is no doubt that the accused or counsel for the accused will try to show that very intimate relations already exist between the complainant and the accused. The sexual assault complaint would be weakened, if, let's say, there had been consent in the past. Assume that is the lawyer's line of thought. That is his defence. He is entitled to have access to that defence, unless you can convince me that he is not entitled to it.

Mr. Roy: With all due respect, what paragraph (h) refers to is the simple assertion by someone that the record that allegedly exists relates to the sexual activity of the complainant. How does that help you in your defence?

Your hypothesis goes much farther than paragraph (h). Determining first of all whether or not a judge should have the authority to look at the record and, secondly, whether or not he should allow the accused to see it raises a number of questions. My view is that we have to limit ourselves to the text and the grounds as set out. There is a record, and that says it all. The sexual activity of the person is probably not sufficient, according to the legislator -- if it occurred -- to grant access to the document. There has to be more than that. But in your hypothesis, you do not indicate what that is. You say that there are some elements of consent in the record we are talking about here. You say: "I talked to her sister; she is prepared to testify." Yes, she does write things down, and you say: "I glanced at it and I saw things." In my view, you have enough evidence at that point to be granted access to the documents.

Senator Nolin: I do not think a woman would say that of her sister.

Mr. Roy: You never know.

Senator Nolin: You could in fact prove the existence of a document by questioning a witness. I think that the judge has to be in a position to examine the relevance of the document and determine whether the interests of justice would be served if the document were made available or that the document should not be made available.

Mr. Roy: My concern, Senator Nolin, in listening to the discussions is that we will be left with the impression that the document in question could have an impact on the witness' credibility and that credibility is not an element that can be considered. That is not what the text says. If you have reason to believe that the document will have an impact on the person's credibility, and you prove that to the judge, you will get access to the document.

The bill states that you cannot simply say "I could have" or "I think that," and say that it is sufficient and that you should have access to the documents. We believe that violates privacy. It is a fishing expedition.

Senator Nolin: You are absolutely right.

Mr. Roy: If you have something more on the person's credibility, you say: this is what I know. You put it in an affidavit, and I would be very surprised if many judges in the country would refuse to give you access to the document. I would be very surprised.

Senator Gigantès: That is the first time we have heard that.

[English]

Senator Cools: Could someone indicate to me the timetable of the committee? Some of us are due at a dinner in honour of Mr. Lester B. Pearson.

The Chair: We will sit as long as the senators have questions of the witnesses in front of them.

Senator Cools: Shall I take that to mean indefinitely?

The Chair: Indefinitely, yes.

Senator Bryden: In listening to the discussion, I get the impression that there is not as much disagreement as there appears to be. Looking at proposed new section 278.3, what must be set out are fairly normal things: the particulars identifying the record, the name of the person who has the record, the grounds on which the accused relies to establish that the record is relevant to the issue, and the competence of the witness to testify. Proposed section 278.3(4) indicates that the simple assertion that the following records exists is not enough.

Senator Jessiman: Do you mean all of them, together or none of them?

Senator Bryden: To simply assert that any one or more of those records exists is not a sufficient reason unless you provide what is required in 3(a) and (b) to satisfy the judge.

Ms Kane: Exactly.

Senator Bryden: I wish to consider the converse of what Senator Jessiman is saying. Any accused can go down that list and assert that a diary exists, that a record relating to medical/psychiatric treatment exists, or any other item under (c), (d), (e), (f), (g) and (h). As I understand 3(a) and (b), if you do that, then you must do the following things, and one of the things is that you must establish grounds. The fact that evidence was given at the trial from the sister under oath that, yes, a diary exists, may, in fact, be sufficient grounds. However, I do not think that we should be determining whether that is quite enough grounds or not. At least there are grounds that would be put in there.

Senator Nolin: We were concerned more with proposed section 278.3(4) simply because it has so many restrictions; we have no problem with 278.3(3).

Ms Kane: Senator Bryden's interpretation is quite helpful to the committee because he is quite right.

The bottom line is that the accused must establish the grounds on which he relies to show how the specific records he wants are likely relevant to a trial issue of the competence of a witness to testify.

Subclause (4) merely clarifies that making assertions, whether they are assertions found in subclause (a) or the whole list, is nothing more than making assertions. On the other hand, they are not prohibited grounds. If you can buttress those assertions with the grounds that show why you want those records and how they are likely relevant, these will not be prohibitions and a judge will not be prevented from looking at the records to determine whether they should, in fact, be provided to the accused.

Senator Jessiman: We have all received this letter and I asked the clerk to distribute it to the witnesses, too. It is from Parents Helping Parents. I will not read it all. The specific author is Louise Malenfant. She has been an investigator of sexual abuse accusations in the province of Manitoba. I will quote in part from the third paragraph:

In one recent Manitoba case, the mother was accusing three paternal family members of sexually abusing her then four year old daughter. It was noted that she had claimed that she herself had been a victim of incest, and her fourteen year old daughter had also allegedly been abused in childhood.

The case subsequently received a full clinical assessment whereby it was discovered that the mother's incestuous experience occurred in utero, that is, she claimed that she "remembered" her father having sex with her mother while she was still in her mother's womb and subsequently described this as her own rape for the remainder of her adult life. In addition, it was discovered that her fourteen year old daughter had not been abused, but had been treated as a victim for her entire life...

In another Manitoba case, a mother accused her common law partner of sexually abusing her then 2 1/2 year old child, and also claimed that she had been raped herself. As I investigated this case, I became alarmed at the number of previous accusations I was able to identify in the history of this 23 year old woman. I subsequently initiated an investigation with the Winnipeg police department on this matter. The police reviewed their files and determined that this young woman had previously made formal sexual accusations against a total of eleven people, with an additional allegation that a four year old neighbour had sexually abused her 2 1 /2 year old girl. The allegations against my client were number 13 and 14.

If Bill C-46 had been part of the Criminal Code of Canada when this matter went to trial, it would have likely prevented or hampered my client's attorney from presenting this information at trial.

What do you say to that? You have the letter.

Ms Kane: Ms Malenfant has misinterpreted the provisions of Bill C-46. If the facts described at the top of page 2 of her letter were accurate, then the accused would not have been prevented access to the records that described these allegations of sexual abuse.

Senator Jessiman: I do not know how these facts came to light, but what if it was discovered by a psychiatrist during a counselling session. If the facts only existed in the doctor's records, they would not be able to get them.

Ms Kane: Sure they would.

Senator Jessiman: How?

Ms Kane: Why do you assume they would not be able to get those facts? If the accused is aware is that the person has been seen by a psychiatrist because of this bizarre history, there is nothing to prevent --

Senator Jessiman: What if the accused does not know about the history? What if the only one who knows is the psychiatrist? How do they get that person's records?

Ms Kane: If they do not know that the record exists, how will they get it? I do not know the answer to that. The Crown would not know that the record existed either, but the police have an obligation before they lay the charge to ensure that the allegations that have been brought to their attention are credible. There would be some police investigation and they likely would have some background on the accuser.

For example, if it is known by the accused that this person has been seen by a psychiatrist -- as obviously it was known because this person investigated and discovered all these facts -- then there would be nothing to prevent that person from calling that psychiatrist as a witness and inquiring about the treatment that was provided to this person. That would be enough to lay the foundation that, perhaps, the records would be likely relevant. An application could be brought at that point to get the records.

In the previous case referred to in Ms Malenfant's letter, she is not talking about a Criminal Code matter but a child protection matter. Different rules prevail there. The provisions in the Criminal Code apply only with respect to criminal charges for sexual offences.

Senator Jessiman: This is so important that I would like to hear from other people. We are just hearing one side of this issue.

Senator Doyle: Yes.

Ms Kane: I do not believe you are hearing one side. You are hearing all sides because we have had the benefit of consultation with a wide variety of defence counsel and complainants' advocates, women's groups, Crown attorneys and academics.

Senator Jessiman: Are all those groups in favour of this bill?

Ms Kane: No, they are not all for it, but you have had the testimony of the Criminal Lawyers Association to review. They have made some criticisms to which we can respond.

Senator Jessiman: We just received this material in the last couple of days. We have had so many bills that I have not had a chance to read any of this. This is ridiculous.

Senator Cools: I have many concerns. You said you have consulted many people. There are many lawyers around this country who are proficient in this subject matter. Have you consulted them?

I am speaking of people like Beresh and Alan Gold and other such criminal lawyers who do much work in this field. Have you consulted with these people? What are their opinions?

Ms Kane: Yes, we have consulted with them. Beginning in January of 1995, we hosted a series of consultations. We invited the Criminal Lawyers Association, the Canadian Bar Association and the Canadian Council of Criminal Defence Lawyers to take part. They nominated various people to participate in our consultation process, including Bruce Derno, Bill Trudel, Michelle Fuerst, Isabel Sherman, Elizabeth Bennett, Rick Peck and various lawyers.

We did some regional consultations in the Halifax region. We had defence counsel there. I believe the defence counsel perspectives have been well articulated. Their view is that this legislation should not be pursued. They would be quite happy to follow the O'Connor decision in the Supreme Court of Canada.

Before the judgment in O'Connor was delivered, the defence counsel seemed to agree generally that the law required further clarification because they had no guidance in terms of when they could or should seek access to records.

Senator Cools: It is my clear understanding that the criminal lawyers who handle many of these defences are not happy with these proposals. That is my perception.

Ms Kane: They are not happy with any proposals that they regard as hindering their ability to gain the widest possible access to all sorts of private information about the complainant.

Senator Cools: That brings me to my next point. I have been struck that the discussion for the past hour and a half has really focused on the burden of proof that has to be provided by an accused person in the circumstances. This is what we have been talking about. This is extraordinary. I was always under the impression that the burden of proof was on the accuser.

Ms Kane: As I have said several times --

Senator Cools: The burden is on the Crown.

Ms Kane: As I have tried to --

Senator Cools: Somehow or other, I get the distinct impression that Bill C-46 is reversing some very important principles. I am prepared to be persuaded by you. Go ahead.

Ms Kane: It is not reversing any principles. I tried to make it clear in my opening statements that nothing in Bill C-46 interferes with the presumption of innocence. Nothing interferes with the ordinary rules of evidence which are based on relevance.

The Crown has the onus of proving every element of an offence, including a sexual offence, beyond a reasonable doubt. In a sexual offence, it is often very difficult to prove that it occurred and that it occurred without the consent of the complainant. Nothing in this package of amendments changes that. When we speak of an onus on the accused, we are only speaking about an evidentiary onus to establish some reason why the records of a third party should be provided.

Senator Cools: I appreciate what you are saying, and I accept that you are not altering the accused's rights in a certain way, but I would articulate it in another way. You are certainly imposing some extremely difficult and expensive hurdles and obstacles, and you are saying, basically, that if an accused can get through all of those hurdles and can afford to finance his case, he just might actually be able to prove himself innocent.

I find some of that very troubling. I do not think I have any problems at all with the clear-cut cases of violent sexual aggression. Where the situation becomes very cloudy is in these very in-between cases that occur during dating, where there is a question of near consent. Those cases are not clear, and that is where the problem really arises. Many of the criminal lawyers who have been in touch with me make that point. There is no problem here with the kinds of terrible cases like Paul Bernardo. Where the problem arises is where a guy and a gal were out and were basically in a situation where one says, "I thought it was consensual," and the other one says, "I thought it was not." It seems to me that, in those kinds of circumstances, the accused has to be protected and has to have access to certain kinds of documents.

Ms Kane: The issue you raise about one version of events being the complainant's and another the accused's is very common. As I mentioned, often the only thing that distinguishes ordinary, acceptable sexual activity from a sexual offence is the absence of consent.

Senator Cools: Right.

Ms Kane: That is often the central issue, and the law has other evidentiary provisions which deal with the defence of honest belief and consent and what is consent from the purposes of sexual assault.

However, where you were seeking records to assist you in your defence, this provision merely requires that you meet some sort of relevance threshold before personal records of a complainant will be explored. I do not think that that is an unreasonable limitation on an accused.

Senator Cools: I understand the problems very clearly.

You said that in the last five years defence counsel have developed this trend to look for records. What I would like to know is what has happened in the last five years that we suddenly need a statute. Have all the judges and all the lawyers suddenly become either total incompetents or incapable of managing in the courtrooms without this bill? What has happened socially in the last five years so that a statute is needed when previously the law served quite well and the judges did quite a good job and most of the lawyers did a reasonably good job?

Ms Kane: I can offer some potential explanation for that. In 1992, we had another package of amendments with respect to sexual offences in the Criminal Code and they were preceded, again, by extensive consultations with all those affected. At that time, no one raised the issue that records were being sought in sexual proceedings. It did not seem to be happening. Those amendments restricted the use of evidence of previous sexual activity of a complainant to suggest that she was less credible or more likely to consent, and also refined the definition of consent for the purposes of sexual offences.

Since that time, the new strategy has developed to get the records. I can only speculate on some of these theories that have been advanced for this trend, but one is that it is a backlash or a reaction to the curtailment of the defence being able to explore evidence of previous sexual activity in an attempt to impeach the credibility of a complainant.

Another explanation is that the law of disclosure has been expanded upon by the Supreme Court of Canada in terms of what the defence is entitled to get from the Crown. Defence counsel have attempted to expand this to assert that they should have a right to the same type of full disclosure of information in the hands of third parties. Those two factors combined have resulted in this new approach.

This question was put to the defence counsel when they appeared before the standing committee in the other place, and they offered a third explanation, which was that, in the past, these types of records did not exist, that sexual assault centre records and therapy records were not prevalent, because people were not undergoing therapy. It is only because they now exist that they want them.

I leave it to you to judge whether those are appropriate explanations.

The Chair: If I could interject for just a minute, were you referring to section 276 of the Criminal Code?

Ms Kane: That is correct.

Senator Cools: What percentage of accused persons in these kinds of offences are convicted, and what percentage are acquitted? Do you have any numbers?

Ms Kane: Based on information provided by the Canadian Centre for Justice Statistics -- which does not include data from all Canadian courts, only provincial courts in seven jurisdictions -- the conviction rate for sexual assault is 25 per cent. The conviction rate in non-sexual assault is 13.7 per cent. Robbery has a 37-per-cent conviction rate, to give it some perspective, and other property crimes have a 10.9 per cent conviction rate.

Senator Cools: When you talk about a conviction rate, you mean that of the number of prosecutions, these are the number that result in convictions; is that what we are measuring?

Ms Kane: That is right. It also includes people who plead guilty. It includes pleas of guilty and people who are found guilty following a trial.

Senator Cools: Let us take that 25 per cent. What happened with the other 75 per cent?

Ms Kane: They would have been acquitted or found not criminally responsible by reason of mental disorder or their trials would have resulted in other verdicts, but they would not have been convicted.

Senator Cools: The 75 per cent, from what I am hearing you say, is largely acquittals.

Ms Kane: That would be the conclusion, but as I say, this is from an adult criminal court survey from provincial criminal courts. Provincial criminal courts would not necessarily be hearing the bulk of sexual assaults. Many are heard by the superior courts in the jurisdiction. These are the only statistics available, unfortunately.

Senator Cools: There is such a plethora of activity on the ground in some of these subject matters, and they are very difficult under the best conditions. There is an amazing new language that has developed: false memories and recovered memories and so on. You have worked for several years in producing this bill. To what extent did you study these other social and psychological developments?

Ms Kane: Our concern in developing this legislation has been to focus on the criminal aspects and the implications of production of records in a criminal proceeding. If you are referring to false memory syndrome, we are certainly aware that there is a great deal of controversy about whether that syndrome exists or not. Nothing in this bill is directed at solving that problem. That is not the role of the Criminal Code. On the other hand, nothing in this bill will prevent a person who believes that the allegation is made based on a false or recovered memory from getting to the bottom of that allegation.

Senator Cools: I am interested in this because I have received letters from an organization that tells me that they have 1,400 families which are affected by false accusations of sexual abuse. Do you have any data whatsoever on this sort of information as it impacts on the court system?

Ms Kane: As I said earlier, where the police lay charges of sexual assault, they do not do so without solid reason to believe that those charges will result in a conviction. It is not enough to walk into a courthouse and say, "I was assaulted." The police will go further and investigate that. They will only lay charges where there is a sufficient amount of evidence to support that. There are filters all the way through the system. Similarly, at the end of a preliminary inquiry, the Crown must show that they have enough evidence to support the prosecution. While there is much discussion about false allegations, we have no evidence that there are a number of false allegations.

If you had the benefit of testimony from some of the advocates on behalf of women's groups, they would be in a better position to address that. Most of them would say that no one comes to them seeking help who has not been sexually assaulted.

Senator Cools: I believe they take the position that once a woman makes an assertion, she should be believed, full stop. I think that is the position they take, which is frequently a little extreme.

Ms Kane: That is not the position that the police take; the police look further.

Senator Cools: You said that 25 per cent of these cases result in convictions. How many of those convictions are the result of trials and how many are the result of plea bargains or guilty pleas?

Ms Kane: As I said earlier, the statistics do not break down between guilty pleas and convictions after trial. It is a cumulative figure for those seven convictions. It could be following a guilty plea or after trial.

Senator Cools: I am informed that many guilty pleas are being entered basically because individuals are being told, "The system is stacked against you. Get it over as quickly as possible. Get this thing out of the limelight and save your family embarrassment", and so on. I am told that there are numerous guilty pleas being entered for these reasons.

I receive correspondence, as do other people, detailing numerous events and cases, yet when we have witnesses like yourself before me, you tell me you have no information.

The Chair: With the greatest of respect, we have asked these witnesses here to discuss the parameters of a particular piece of legislation.

Senator Cools: That is what I am talking about.

The Chair: Senators should concentrate on the clauses of this particular piece of legislation.

Senator Cools: That is what I am talking about, especially if you look at the fact that Bill C-46 is attempting to limit the discretion of a judge.

Ms Kane: Bill C-46 does not attempt to limit the discretion of a judge any more than it has been limited by the Supreme Court of Canada. Where an accused wants records, they must meet a relevance threshold. That is the only limitation on the discretion of the judge. We are providing more guidance to the trial judge in determining how to exercise that discretion in terms of ordering production. We are asking them to consider the impact of production on both the accused and on the complainant, but it is still and exercise of discretion. We offer more guidance, that is all.

Senator Cools: You call it guidance; I call it limiting discretion. Can you explain to me what clause 278.3(4)(g) means? That is found at the bottom of page 4 of the bill. It states:

(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant...

Could you explain to me what paragraph (g) means?

Ms Kane: Yes. Again, we are talking about assertions. Where the accused says, "I need the record because the record may reveal allegations of sexual abuse of the complainant by a person other than the accused", that simple speculation that it may reveal that information will not be sufficient. However, note that if the accused is stating, and he has some support for his statement, that the record does reveal allegations of sexual abuse of the complainant by someone else, the judge would not be prohibited from reviewing those records. The focus is on "may".

Senator Cools: What does "allegations of sexual abuse of the complainant by a person other than the accused" mean?

Ms Kane: It means that the complainant may have allegedly stated or she may have complained to the police or the Children's Aid Society or other people that she was sexually abused by this person in the past, or some other person in the past, or a variety of people.

Senator Cools: Would an example include a person who has repeatedly made accusations against other individuals?

Ms Kane: Yes.

Senator Cools: Basically, this bill is saying that if female "X" has a recurring history of making accusations against an individual which have been proven to be false, that should not be entered into the discussion?

Ms Kane: That is not what it is saying.

Senator Cools: Tell me exactly what it is saying.

Ms Kane: Look at the word "may".

Senator Cools: I can see the word "may".

Ms Kane: That is very significant because we are talking about an assertion by an accused that the record may reveal that type of allegation. Now, it may reveal; it may not. If it does amend and if the accused can point to some reason why the record will likely have that information and how that will be relevant to the defence, the judge will review those records.

Senator Cools: I would say to you that any person who is suggesting that a record may contain something can only say "may" until they have seen it for sure.

Ms Kane: They could suggest that every record ever made about you, or I, or anyone in this in room could contain a whole variety of information. That would be guessing. That is a fishing expedition.

Senator Cools: You have covered that in clause 1 of the bill by an extremely wide definition of "records". From what I can see concerning the definition of what a record is, I do not see what could possibly be exempt. It is wide and sweeping. It includes a record as any form of a record.

Ms Kane: That is right, but that only defines "record".

Senator Cools: That includes any form of record that contains personal information. It could be medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption, social services personal, journals or diaries. I do not see anything outside of that.

Ms Kane: That is the definition of "record". We are talking here about what information is in the record.

Senator Cools: I know the difference.

Ms Kane: In terms of what the bill protects, it protects that type of record; It does not prohibit you from getting that type of record. It means that if that is the type of record you are seeking, you must follow these provisions. If the information in that record is likely to be relevant and you can establish the grounds to show that it will likely be relevant, the court will review the record and may pass it on to the accused -- that is, if they are satisfied that the criterion of this legislation has been met.

Senator Cools: From what I am hearing, you are proving my point, namely, an enormous number of obstacles are being placed before an accused. That is all I am saying. You have explained that for me.

Ms Kane: I do not regard them as an enormous number of obstacles. I have said, and I take the view, that we are asking courts to carefully scrutinize these applications for records. You will not ask for them and get them. There will be thresholds for an accused to meet. Those thresholds are based on the relevance of the records and are not unreasonable.

Senator Cools: May I ask you a question?In the case of a civil case where someone is suing someone else for damages, are there similar sets of prohibitions on the production of records?

Ms Kane: In civil cases, I am not an expert to speak about what matters are available for discovery. We are only dealing here with criminal allegations of sexual abuse.

Senator Cools: My understanding is that in civil proceedings, especially where there are huge amounts of money involved, just about any record can come forward.

Ms Kane: I would draw your attention to a recent case of the Supreme Court of Canada called A.M. v. Ryan and Parfitt, which was a civil case where the plaintiff was suing for damages from a psychiatrist who allegedly sexually abused her in the past. One of the issues was the privilege in those records. The Supreme Court of Canada, in a six-one decision, made it clear that when going into those very private records, the court should have regard to the privacy interests at stake. They made some strong statements about the need to protect sexual abuse victims and they fashioned a new doctrine of partial privilege to protect that type of records and to only provide to the accused that which was absolutely essential for his defence.

That was in the civil context. The courts are very aware of the damage that is done when personal, private and confidential records, which one might think should be privileged, are delved into.

Senator Cools: On the question of privilege, the law of Parliament has said for a long time that no new privileges are to be created.

Ms Kane: That is not correct according to the Supreme Court of Canada.

The Chair: Let us not get into a debate on that. It is not relevant to this particular piece of legislation.

Senator Gigantès: I have a disposition to believe that most accusations of rape or sexual violence are true. I cannot prove it, but that is my disposition. I think that most so-called date rapes are rapes. I think that a woman has the right to say "no" in the middle of coitus.

Senator Cools: Oh?

Senator Gigantès: Yes. The male should withdraw and, if he does not, it is rape. Nevertheless, despite these predispositions, I find some of the things in here, for instance proposed section 378.3(1) (d), "that the record may disclose a prior inconsistent statement of the complainant or witness", and (h) "that the record relates to the sexual activity of the complainant with any person, including the accused", cover the diary I was talking about.

The record -- again the diary -- may describe what that sexual activity was and may not describe it as a rape.

All I am asking is that judge be allowed to decide whether it is relevant or not.

Senator Nolin: He will.

Senator Gigantès: It is not a fishing expedition by the defence to see all the records. The judge should have wide latitude in reading this himself.

Ms Kane: If that were the threshold, if we permitted judges unlimited availability to review records, they would be overburdened with a huge number of records, many of which would be irrelevant, and they would not have had any consideration of the impact of their review of the records.

Senator Gigantès: The judge may say, "No, I do not think these are likely to be relevant." However, he could say that, under questioning, the complainant in court has said, "Yes, I had a medical examination."

The Chair: Senator Gigantès, if it is likely to be relevant, and the accused can show it is likely to be relevant, then the judge can look at it.

Ms Kane: That is correct.

Senator Gigantès: No, no. The accused asserts that he did not commit the rape. He says, "There was a medical examination and I think it will prove that I did not commit the rape."

Ms Kane: Then the accused would get the information.

Senator Gigantès: He will?

Senator Beaudoin: Of course he will.

Ms Kane: There is no doubt about that.

Senator Gigantès: What will happen to the diary?

Ms Kane: The diary will depend on the facts of the case.

The Chair: I would like to get back to that for a minute.

On the issue of the diary, surely if an accused can show that he watched her write in the diary every night and that she shared with him some of the things she wrote in there, and they are personal in nature, surely that would be enough to meet the "is likely relevant" test.

Ms Kane: I believe that based on that you would probably meet the threshold and the judge would review it. However, simply saying that she has a diary and there might be something in it that will relate to this incident, is not enough.

Senator Beaudoin: I agree entirely with what Senator Bryden said. It is very good. Since the beginning I have said that it is a question of equilibrium between two rights; the right of privacy of the person who is complaining and the right of the accused. I look very carefully to proposed section 278.3, and especially to subparagraph (4). I agree with that. I think it is a fair equilibrium. If we go further than that, I believe that rather than having a trial of the accused, we will have a trial of the complainant, which is exactly what we want to avoid.

People were scandalized that until recently in rape cases we were putting the women on trial, which obviously is completely against every principle of law. With this bill, we are trying to create equilibrium.

Although this bill is not perfect, as nothing is, I think it is not bad. I understand your preoccupation with the accused, but there are many ways for the accused to bring forward evidence.

With regard to discretion of the judge, the judge is keeping his interpretation. The discretion of the judge is not destroyed by this bill. I cannot see how it is destroyed.

Senator Jessiman: Is this legislation pioneering? Is there something similar to it in Great Britain or the United States?

Ms Kane: It is certainly not pioneering, although it is a bill that is tailored to the Canadian situation, because our criminal law is included in the Criminal Code which applies throughout Canada. I have reviewed all the relevant legislation in the United States. The same problem presents itself. They deal with it in a variety of different ways. As you know, in the United States they have state legislation which governs their criminal laws.

Senator Jessiman: Do some states have similar laws?

Ms Kane: Many states have similar laws. Some have gone further and legislated statutory privileges that apply to specific types of records. Others have more general provisions such as this. The one thing they all have in common, however, is that in every jurisdiction they put the onus on the accused person to establish the grounds for why the records he seeks are likely relevant to an issue at trial.

Senator Jessiman: What about Great Britain?

Ms Kane: Great Britain does not have a similar provision, although they are looking broadly at the issue of disclosure and starting to examine that issue. Australia has legislation in the works similar to this. In fact, they are using ours as a model.

The same issue presents itself. The solution, of course, has to work domestically, depending on the system of law.

Senator Jessiman: Are there any cases in the United States that would go up to the higher court, or to the highest court?

Ms Kane: There have been cases in the state supreme courts, which have upheld these various statutory privileges. Some of them are far more restrictive than what we are proposing in Bill C-46, and basically prevent an accused from getting access to that information unless his innocence is at stake. He has to meet a higher burden to get that information.

The Chair: In response to Senator Cools, you made reference to the fact that this became more of an issue as a result of 1992. In 1992, there was an amendment to the Criminal Code which is now section 276. That began to deal with the issue of whether a person's previous sexual activity was relevant, or could be relevant in a trial. Has that section ever been challenged in the Supreme Court?

Ms Kane: It has not worked itself to the Supreme Court of Canada yet. It has been upheld in all lower courts to date. I am sure that it will be challenged at some point, but so far it has been upheld.

The Chair: There seems to be some anecdotal evidence that, because of this, there is now more of a search for the records. They can no longer go into the past sexual history, so they will try to look for other areas of investigation; is that right?

Ms Kane: I would add also that it is anecdotal evidence and, perhaps, a theory or speculation on the part of those who are most affected by it that, because the accused cannot explore as widely the sexual background of a complainant, they look to do so through the records rather than asking questions at trial.

I would point out also that the 1992 amendments were made in response to a Supreme Court of Canada decision called Seaboyer which struck down a previous provision of the Criminal Code which was even more restrictive in terms of evidence of sexual activity. The Supreme Court held that was too much of a restriction on the accused's right to make a full answer and defence. The amendments we proposed in 1992 and which were enacted followed the decision of the Supreme Court of Canada in Seaboyer.

In addition to the amendment with respect to sexual activity, we defined "consent" for the purposes of sexual offences as the ordinary everyday meaning of consent, voluntary agreement, and we codified other provisions of the common law dealing with the defence of honest belief and consent.

The Chair: I know lawyers write words so that there is complete clarity; but I find the word "assertion" strong. When I "assert" something, it is even more than I "make a statement" about something. When I assert it, I am absolutely serious, I am right, and there is no question about it. Why did you use the word "assertion" in this bill and not "state"?

Ms Kane: As I say, we relied on a dictionary definition of "assertion", which is a statement made without any supporting information, a bald statement. I assert the carpet is yellow. We all know it is not, but I say it is. It is an assertion. It is not supported by any fact. Whether you choose to believe me or not depends on what you think of me. That is why the word "assertion" was used, as well as to reflect what is happening. Indeed, assertions are being made about why these records are relevant. They are more than statements. "I need it because", and without any supporting information.

The Chair: Do you not think we should put a strong connotation on the word "assertion"?

Ms Kane: I think most people, when interpreting the statute, will look at the dictionary as the starting point, and that will take them back to the word "statement".

The Chair: I am a non-lawyer.

Senator Beaudoin: It is the translation of "affirmer". It is perfect.

The Chair: Senator Beaudoin, I will bow to your better understanding of the word.

On behalf of honourable senators, I thank Ms Kane and Messrs Roy and Bobiasz for joining us tonight on this particular issue.

Honourable senators, the next item on the agenda is clause-by-clause consideration of Bill C-46. Is it the will of the senators to move to clause-by-clause?

Senator Doyle: Madam Chair, we have not had time to review all the documents which we received at the beginning of the hearing today. Could we not put off clause-by-clause study of this bill until tomorrow?

The Chair: Senator Doyle, if you feel uncomfortable with that, we are meeting tomorrow morning on Bill C-95, and we could begin that meeting with a clause-by-clause study of Bill C-46. You will have had the chance to read it over the evening. I am prepared to delay clause-by-clause study until we meet tomorrow morning.

The committee adjourned.