Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 6 - Evidence for November 24, 2011
OTTAWA, Thursday, November 24, 2011
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, An Act to amend the National Defence Act (military judges), met this day at 10:37 a.m. to give clause-by-clause consideration to the bill; and 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: Good morning, colleagues. We will begin our further consideration of Bill C-16. As you will recall, yesterday we heard testimony and concluded that portion of our consideration of the bill.
Senator Joyal: On a point of order about the testimony yesterday, you will remember that I asked a question to Colonel Gibson about the amendment to the Queen's Regulations and Orders for Canadian Forces related to temporary suspension on the basis of the recommendation 7 of the report of former Mr. Justice Lamer in 2003. After we adjourned, Colonel Gibson informed me that the QR&O had been amended along the lines recommended by former Mr. Justice Lamer. I wanted that on the record because it was part of our discussion yesterday.
The Chair: Very good, senator; that is helpful.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-16, An Act to amend the National Defence Act in respect of the tenure of military judges?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Some Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Some Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Some Hon. Senators: Agreed.
Senator Joyal: I would like my abstention noted on the record of voting.
The Chair: Indeed it will be; thank you, senator.
Shall clause 1, which contains the short title, carry?
Some Hon. Senators: Agreed.
The Chair: Shall the title carry?
Some Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Senator Joyal: With my abstention noted.
The Chair: Yes, with your abstention noted, senator.
Does the committee wish to discuss appending observations to the bill?
Some Hon. Senators: No.
The Chair: No observations. Is it agreed that this bill be reported to the Senate?
Some Hon. Senators: Agreed.
The Chair: Thank you. That concludes our consideration of Bill C-16.
We will move to the next item on today's agenda.
In a moment, I will introduce our invited guest, who is with us by video conference. I am John Wallace, a senator from New Brunswick and Chair of the Standing Senate Committee on Legal and Constitutional Affairs.
Colleagues, we will continue our examination 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, thereby creating 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 full answer and defence. The preamble to the bill stressed Parliament's concerns about sexual violence against women and children and the need to encourage victims to report sexual offences. It stated that the fear that personal information would be made public had a deterrent effect on victims who might otherwise have reported sexual assaults to the authorities and sought necessary treatment.
I am very pleased to welcome by video conference, Dr. Lise Gotell, from the University of Alberta. Dr. Gotell, we will begin with your opening statement, after which senators will have questions.
Lise Gotell, Associate Professor, Women's Studies, University of Alberta: I am pleased to speak with you and even more pleased that this legislation is finally being reviewed. As you know, the General Social Survey points to continued high rates of sexual assault. Despite the fact that a lot of political attention is being focused on crime reduction, it has been quite some time since Parliament has focused on the specific problem of sexual violence.
I should say at the outset that I am a political scientist by training; I am not a lawyer. For much of the past decade and a half, my work has focused on the implications of Canadian sexual assault law reforms that were enacted in the 1990s, including section 278. In order to assess the specific implications of section 278, I have undertaken two case law reviews, the first one stretching from the Mills decision in 2002 and the second stretching from 2002 to 2006. I might add that my 2008 Canadian Journal of Women and the Law article that reports on the second case law review is the most recent published study.
I also conducted, with a couple of colleagues, the first national survey of Canadian sexual assault centres in 2005. One part of this survey asked respondents about their assessments of the implications of section 278. Much of what I have to say this morning echoes Professor Karen Busby's February submission to this committee. I am doing this at a very busy time of the academic term and I have agreed to do this on short notice, so I have not produced a written brief. Like Professor Busby, I have done some work with the Women's Legal Education and Action Fund, and I will be contributing to the drafting of their brief for your committee.
I want to begin my remarks today by echoing Professor Stuart's comments to you, which might seem like a strange place for someone like me to start. I really agree with him when he says that Canada has one of the toughest sexual assault laws in the world. Our Criminal Code reforms and revisions — defining "consent," restricting the defence of mistaken belief, placing restrictions on access to cross-examination on sexual history and complainant's private records, were innovations. They have been extremely influential in law reform processes in other countries. It often surprises my colleagues in other countries when I am critical of Canadian law because there is a kind of widespread myth that we have it all worked out in Canada. However, it is important for us to understand that despite Canada's reputation as an international innovator in sexual assault law reform, there is a justice gap; in some senses, that is what you are dealing with in this committee.
What is the justice gap? The justice gap is the gap between our efforts to increase reporting and conviction rates on the one hand, and the intransigence of rape myths that affect the day-to-day processing of sexual assaults in the criminal justice system on the other hand. As you know, there is no other area of criminal law where the complainant is subject to such invasive credibility probing. Andrew Taslitz, a law professor from the Harvard University School of Law, has called attention to the "courtroom rituals of degradation and exclusion within sexual assault trials." He argues, and I agree, that these rituals deny women, in particular, equal protection and equal participation in the justice system. When we think about the justice gap, and as I said before I think that is what you are doing on this committee, we need to understand that section 278, properly and fully applied, could play a really important role in narrowing the justice gap and in preventing these courtroom rituals of degradation that Taslitz identifies.
I disagree with Professor Stuart in his insistence that section 278 is doing its job and that it has radically reduced access to complainant records. There is, of course, a great deal that we do not know and an urgent need for a much fuller investigation of the implications of this provision. To emphasize this point, from what we do know and based upon the consistent conclusions of case law reviews undertaken by people like me; Jennifer Koshan, from the University of Calgary; Karen Busby; and Sue MacDonald, from the Department of Justice, all of these case law reviews come to the same conclusion. There continues to be a high rate of production to the court and disclosure to the accused. These studies find rates of production as high or higher than 50 per cent and rates of disclosure to the accused of around 30 to 35 per cent.
In contrast to Professor Stuart, I do not really think that section 278 is doing its job. This assessment was underlined in the results of our national survey of sexual assault centres. Half of the 52 centres that responded to this survey reported that clients are worried about the possibility of records disclosure. Fifty-seven per cent reported that their own records had been subject to a 278 application with 19 per cent reporting that these applications had occurred in the past year alone. Nearly two thirds were of the opinion that section 278 does not provide adequate protections for complainants and record holders.
What about the interpretation of section 278, the reasons given in decisions? I know that you have gone over this ground, but I do want to emphasize some points.
The first thing I want to emphasize is good. It is quite clear from the research that section 278 has increased the likely relevance threshold. The Supreme Court of Canada's decision in Mills as well as the Ontario Court of Appeal's decision in Batte have had the effect of reducing successful fishing applications, which were quite common before this legislation came into effect, in particular in the period between the O'Connor decision and the enactment of this legislation. So there is a higher threshold for likely relevance.
The Supreme Court of Canada, in Mills, specified that applications must provide a case-specific evidentiary foundation for likely relevance that rises above bare assertion. While the Batte decision is only binding in Ontario, it has been cited in decisions across the country as a persuasive authority and its insistence is that records must provide new and otherwise unavailable information.
As you know, section 278.5(2) limits judicial discretion by directing judges to engage in a balancing exercise before ordering production and disclosure. Inadequate attention to the factors listed in section 278.5(2) is one important source of the justice gap. Most often the balancing equation has been reduced to a contest between the privacy rights of the complainant and the fair trial rights of the accused and very frequently judges deciding these applications privilege the fair trial rights of the accused, saying in effect that the interests of justice demand production to the accused.
There is frequently not enough attention to how the records in question allow discriminatory myths to enter the trial process. As one example in this area of case law, false memory syndrome claims are quite frequent and these claims have been used to discredit large categories of complainants simply on the basis that they used therapists, and many of these cases do not involve complainants who claim to have recovered memories. As Karen Busby has also emphasized, there has never been a case where access to records has shown false memories.
The equality rights dimensions of section 278 applications have similarly been given insufficient attention. I think it is important to recognize that the more documented a complainant is, the more likely it may be that her records will be sought and disclosed to the accused. When we think about the kind of women who are most likely to have extensive records, they are also likely to be disadvantaged women who are at the same time subject to disproportionately high rates of sexual violence. These include Aboriginal women, women with mental health histories, and also children and adults with child welfare records.
It is worth providing an illustration of why I think it is that equality rights and society's interest in encouraging police reporting and counseling should receive much fuller judicial attention. I want to talk about a 2007 decision that was rendered in Peace River in Northern Alberta. I am not suggesting that this case is fully representative, but I do think it provides a good illustration of a narrow section 278 decision with clear consequences beyond privacy.
This case involved an allegation of historical sexual assault. The complainant was a member of a Cree band and the records in question were therapy records held by the band's health centre on the reserve. Most of us would agree that Aboriginal women are a highly disadvantaged group. According to a 2011 Statistics Canada report, they are also highly likely to be victims of violent crimes including sexual assault. The rate of "violent victimization" of Aboriginal women is three times the rate of all Canadian women. There are very low rates of police reporting. In addition, 80 per cent of Aboriginal women who have experienced violence also indicate that they do not use any victim supports at all.
The application in this case did not establish a case-specific evidentiary foundation for relevance, and it really amounted to a bare assertion that, because the complainant had spoken to counsellor before making a police report, there must be something relevant in the records. It was a fishing expedition.
The deciding judge canvassed the case law and determined, quite incorrectly, that key decisions like Batte establish that the records of therapy that occurs before making a police report should be produced. That is not what those decisions say at all. He also astonishingly concludes that a review of the records by the court is "not an intrusion into this complainant's privacy."
In this case the record holder was represented and her counsel argued that this production order would have devastating implications for her work in the community. The social worker argued that she had spent more than five years developing credibility and trust among band members and that production of the records would destroy her efforts to reassure community members that she would keep their disclosures confidential.
This is a case in which the judge failed to consider the complainant's membership in a disadvantaged group as well as the consequences of one production order for an entire community that is also likely to have very high rates of sexual violence, high distrust of the criminal justice system and inadequate access to therapy and support. This case shows how thinking only in terms of privacy rights misses the full harms of confidential records production.
I want to make two other points. I want to highlight a couple of the findings of my 2002-06 case law review that I do not believe have been previously raised before this committee.
First, some of the decisions in this period point to the development of what I have called de facto therapeutic privilege. Some judges argue that therapy records are uniquely and highly confidential and should be produced only very rarely. You might ask what is wrong with this. Obviously, this idea of de facto therapeutic privilege does provide enhanced protections for therapy records. However, when this de facto therapeutic privilege gets raised to the level of a test it tends to prevent a full consideration of the factors listed in section 278.5(2). In other words, judges are sometimes saying that this is not a therapy record and therefore there is less of a privacy interest in it, so let us produce it.
In this test, a distinction between therapy and non-therapy is used as a substitute for the full balancing of interests under section 278. As you know, section 278 covers all confidential records in which there is a reasonable expectation of privacy.
Accessing records such as medical, child welfare or other kinds of confidential records can be every bit as harmful as accessing therapy records.
The second interpretative trend that I will mention is the tendency for third party records to be produced by waivers, effectively bypassing the protections of section 278. In some cases, it even seems as though Crowns have encouraged complainants to waive section 278 protections in order to expedite trial processes. This is very worrying.
I realize I am running out of time. I have some recommendations about the kind of research that needs to be done and also about some things that could be done to ensure a more robust interpretation of section 278, but I can leave those for the questions.
The Chair: Ms. Gotell, thank you very much for that. We do have questions and I will begin with Deputy Chair Senator Fraser.
Senator Fraser: I will start by asking this question: What do you recommend?
Ms. Gotell: What do I recommend?
Senator Fraser: You talked about recommendations for research and for ways in which the law or the application of the law could be improved. If you could go to the second point, that is what I would like to hear about.
Ms. Gotell: Here I will echo much of what you have been told already, especially by Professor Busby.
The clearest and best thing to be done is to absolutely ensure that complainants have independent legal representation as a standard mandated thing. The federal government should mandate this and provide funding to the provinces to ensure this happens in every case.
When you look at a decision, you can sure see when the complainant has had independent legal representation. In those cases, section 278 is given a much fuller interpretation.
A year and a half ago I was at a Crown conference here in Alberta. Here the senior Crown counsel were taking very seriously their obligation to educate on section 278 and also section 276.
One senior Crown said to the junior Crowns, "We need to remember that what we are talking about here is a search and seizure and complainants' need their own representation." That is the primary thing. I will mention some things that I know you have been told already. Perhaps finding a way to insert the preamble of Bill C-46 into the Criminal Codes that are used by lawyers and judges would at least remind people of the purposes of this law. There may be declining knowledge of the purposes of section 278. I know that Karen Busby has recommended possibly finding a way to revise section 278 to include the Batte standard in the test. That is something that would also help. Those are my three main recommendations.
Senator Fraser: What research do we need to do?
Ms. Gotell: There is much research that needs to be done. I have been talking about a justice gap, but we have a research gap as well.
There was a time in the 1990s in particular, and the early 2000s, when the government and in particular the Department of Justice took its obligations seriously. We have excellent laws and I would put section 278 in the category of being an excellent law and I could talk about how some of my colleagues in other countries are interested in this law. It is a good law, but we do not have a good idea of how it is working on the ground. You have heard that time after time.
I will not go over this again. You have heard that the case law reviews are unlikely to be representative. Possibly also as a law reform question, if it would not be too cumbersome, we could require judges to submit written reasons that would at least increase our ability to know what is going on on the ground.
On the question of case law review, my case law review is the last one that was undertaken. It stops in 2006. It is 2011. That is five years and we do not know what is going on. We need to do that case law review, first of all.
I want to emphasize something. This is something that I believe is the government's obligation to either undertake or fund. The reason for this is that this is really policy evaluation rather than necessarily academic research. Most law journals are not terribly interested in articles that track interpretive trends in interpretation of sections, so there is not a big payoff for academics to do this work. One recommendation is to update the case law review.
The second thing that needs to be done is, have you talked about the Mohr study that was commissioned by the Department of Justice in 2002?
Senator Fraser: I am not sure.
Ms. Gotell: I know that the report that is in your materials from the Department of Justice makes reference to the Mohr study. In that study, she interviewed judges, Crowns, defence lawyers, police, victim advocates and independent counsel for complainants, 32 of these people in Ottawa and Toronto, to get a sense of their assessment of how section 278 is working on the ground.
That kind of research has enormous potential. As someone who grew up in the Maritimes, went to school in Ontario and lived on the Prairies, I am not sure that doing a study like that and confining it to Toronto and Ottawa will give you a good sense of what is going on across the country in places like Grande Prairie, Nunavut, or Goose Bay. I think that we need a bigger study.
Finally, I will draw attention to another Department of Justice sponsored studied, the Tina Hattem study. She interviewed 102 sexual assault survivors to get a sense of why they did or did not report to the police. We need a study like that. That was conducted in 1997 and published in 2000. We need this research updated desperately.
Senator Fraser: Thank you very much indeed.
The Chair: Dr. Gotell, you referred to this de facto therapeutic privilege for therapeutic records, where it seems the courts, in considering whether the records should be produced, perhaps are drawing the line at whether or not it is a record that relates to therapeutic treatment, and not applying all the factors required under section 278. If I understood that, that was point that you were making.
Ms. Gotell: Yes.
The Chair: Have you found in your research that is widespread, that that interpretation is being applied by the courts?
Ms. Gotell: Again, I cannot tell you whether it is widespread or not. I will tell you that in the case law review that I did on the 2002 to 2006 period, I could only find 18 cases reported in the Quicklaw database. Out of those 18, about 4 or 5 — I do not have that study in front of me — developed this idea of therapeutic privilege. I have done some canvassing of more recent decisions and it seems to be still there. It is difficult to know how widespread that is, again because we do not know how representative cases that are reported on legal databases are.
The Chair: Judges are required to provide reasons for their decisions. An issue that you may have seen that has been brought before the committee is whether judges are properly responding to that and whether there is enough detail in those reasons so that there can be some consideration of whether the test is being applied consistently across the country.
Do you have any comment to make concerning reasons and the manner in which those are being recorded by the courts?
Ms. Gotell: In some case, I would say that the reasons do provide an indication that the judge had engaged in a serious consideration of the factors, especially the factors listed in section 278.5(2).
Can I provide you with an example? I did not talk about this. It is a decision in which the records were produced by the judge.
You might think that someone like me who is concerned with complainant rights would see this as a bad decision, but I want to read quickly from that decision.
The judge writes:
I am acutely aware that my ruling has an unintended but real and deleterious effect upon the privacy and equality rights of the complainant. When she went for counselling, she had no expectation that all might be revealed to others. Bluntly stated, she did not sign up for this. Nor is it lost on the court that it is the very man she accuses of perpetrating these outrages upon herself who is seeking to invade that very right of privacy the complainant holds dear.
I also note, with dismay, that this application has apparently prompted the complainant to suspend, if not terminate, her ongoing counselling. Such a chilling effect is of great concern to the court.
If I were reading paragraphs like that in decisions more often, I would have a lot more confidence that judges are really taking into consideration those factors listed in section 278.5(2). The problem is that, probably, in about half of cases, the reasons are very conclusory. I know other people have probably talked to you about this.
Instead of saying how the factors were applied and giving some indication of how the decision was reached, the judge will simply say, "I have considered the equality rights of the complainant. I have considered society's interest in supporting and ensuring counselling." It amounts to a list. They are conclusory. They do not give an indication of how those factors are applied. That is what we should be encouraging judges to do, somehow.
This legislation anticipates that, in rare circumstances, records will be relevant. Even in those cases where judges find that the threshold has been met for production, they need to give us a better understanding of how they reached that conclusion and how they took those concerns seriously.
The Chair: I will speak to the point that it would be rare circumstances in which the documents would be relevant. If I understood some of the statistics you provided us with earlier, that rate of document disclosure or review by a judge was 50 per cent, and the actual production was 32 per cent. Did I understand you correctly?
Ms. Gotell: It is around 30 to 35 per cent, and those rates have remained constant and consistent across multiple studies. That is not rare.
Senator Fraser: Thirty-two or 50 per cent of what — cases or applications?
Ms. Gotell: Of applications in cases that are reported in the legal databases.
Senator Fraser: Do you have a sense of any trend in the number of applications that are made?
Ms. Gotell: No.
We do not. Can I elaborate on why we do not? We do not because we do not have the research. I think that the key informant study is the kind of study that could shed light on those kinds of questions. If we did a key informant study, were representative, did it in different locations across the country and asked people who deal with this everyday how frequent they felt it was, then we would gain a better sense of how frequently applications are made and are successful.
Senator Runciman: I always assumed, perhaps incorrectly, that one of the goals of the legislation was to try to encourage more reporting of sexual assaults. If you look at the Statistics Canada figures, 88 per cent of sexual assaults are not reported to the police. That has been pretty consistent over time.
I do not know if you have done any study with respect to that, but do you have any observations about how we come to grips with that particular challenge?
Ms. Gotell: You have heard that the main research on this question has been done by Statistics Canada in the General Social Survey. The Tina Hattem study that I referred to in response to Senator Fraser's question also shed light on that question.
You probably know that one of the main reasons indicated in the survivors report for not reporting in the General Social Survey is that they did not think it was serious enough. I want to talk for a minute about that. I read through some of your minutes and proceedings, and I am not sure that the kind of conversation you were having really got at how we should be thinking about this specific reason for not reporting — "I did not think it was serious."
What you see, if you look at this area of empirical research, conducted by very fine researchers in the United States and across the globe, is that, in studies that attempt to discern the prevalence and incidence of sexual assaults and rape, there are very high rates of something called "unacknowledged rape." Even when respondents report that they experienced something that clearly falls into the legal definition of sexual assault or rape, even if it is a violent situation, respondents will, at the same time, deny that have been raped or sexually assaulted. Part of the reason people give in response to the General Social Survey, "I did not think it was serious enough," relates to that. It also relates to the fact that there are high rates of sexual violence enacted on people by their intimate partners and boyfriends. It is difficult to define something as a sexual assault because it will often mean that you have to revise your entire life. There is a lot hidden behind that "I did not think it was serious enough" category.
What studies like the General Social Survey and the Tina Hattem study show is that one of the reasons for not reporting is distrust of the criminal justice system.
I think something that you may not have talked about yet is that there are very high rates of police unfounding across the country. In some locations, it is very high. That means that when somebody goes to report a sexual assault to the police, there is a very high chance that the police will not pursue an investigation. That really is a deterrent to reporting. If you know that, in your community, 30 per cent of reports of sexual assault are not followed up, you are going to say —
The Chair: I am sorry, Dr. Gotell; we are finding, at times, that we are not hearing you clearly. If you could just stay in front of your microphone, that would be helpful. Perhaps you could repeat what you said during the last 10 seconds. We may have missed it.
Ms. Gotell: The last 10 seconds. I am just wondering if my microphone was close enough. Do you hear me better, now?
The Chair: Yes, that is better. Thank you so much.
Ms. Gotell: I was talking about police unfounding rates as a deterrent to reporting sexual assaults. This is a big problem.
Senator Runciman: Pursuing one of the recommendations you made with respect to the federal government paying for counsel to represent the complainants, is it your understanding that, in most insistences, the challenge to having counsel represent complainants is affordability. Is that what you are suggesting? If that is the case, are they not applying for a Legal Aid certificate? There are programs available. Could you expand on why you see that as a real need?
Ms. Gotell: It is not something that I have done research on, but there is good research done by Jennifer Guiboche. I believe Karen Busby referred to her statement. The problem is that there are different systems in place in each province. In the province of Alberta, which is what I am familiar with, when there is an application for records, the Crown informs the complainant and connects the complainant with a lawyer who does these application hearings. Legal Aid pays for this counsel, and it is not income tested. I think that is a good system.
I do not think it should be income tested. This is a strange thing. You would not expect when you report a crime, when you report an experience in victimization, that you are going to have incur lawyers' fees and that your personal records will be applied for as a consequence of that. I really do think it is the obligation of the state. As I said, the way the Senior Crown in Alberta put it is that this is a search and seizure. I really do think that, in this case, there is an obligation to provide publicly funded counsel that is not income tested.
Senator Frum: We heard some testimony earlier from an advocate for victims' rights who argued that for full complainant equality, there should be a blanket ban on records. I hear that is not what you are recommending. Can I hear you comment or explain why you are not recommending that?
Ms. Gotell: A simple answer to that question is that it would not withstand a constitutional challenge. We have the Mills case, and I do not think we will go back to a situation in which we could implement privilege. The position taken by women's organizations in the 1990s in the context of Department of Justice consultations that occurred between 1993 and 1997 was: no records; no time.
We have to accept the reality that the Supreme Court of Canada in Mills found section 278 constitutionally sound. I am not sure that full privilege would withstand constitutional challenge. I want to see a full and rigorous interpretation of section 278.
Senator Frum: On the concept of increasing the threshold of relevance, could you reiterate how we improve that and ensure that the higher threshold is understood by judges.
Ms. Gotell: The answer to that question is complicated. I will repeat that having independent counsel is one way to ensure that the legislation is interpreted appropriately. The decisions are much better when there is independent counsel. That is one thing that can be done, and it is probably the most important thing.
As Professor Busby recommended to you earlier, another option would be to revise section 278 to include the Batte standard. I am not a legislative drafter, so I am not sure how you could accomplish that. It is another recommendation and judicial education is another obvious one.
Senator Meredith: I will continue with the line of questioning by my colleague Senator Runciman on legal representation in the context that counsel or the Crown currently is not giving that information to the complainant. In what context would you say that we should implement or recommend putting into our report that legal counsel should be standard? Can you elaborate on that for me?
Ms. Gotell: If I understand, you are asking how best to ensure that complainants are well represented. There is a variety of different possibilities and models. As I said, this is not my area of research. The Crown has an obligation to inform the complainant of right to counsel and to put the complainant in touch with a lawyer who does these application hearings. That is the one good way of doing this, and it could be a standard way of doing it. I know it is done differently in other provinces. I believe that Manitoba has a good system; but this is not my area of research.
Senator Meredith: My next question is with respect to the provinces and the number of cases that are reported, province by province, from British Columbia to Ontario. Do you have any comparisons of the provinces in terms of the complainants and requests for the production of these records?
Ms. Gotell: As I said, we have a research gap. We do not know the answer to that question. It is impossible to provide an answer to that question.
We have cases where judges have written their reasons and made a decision to submit them to the legal databases. We do not know whether those decisions are representative. I know that other people have mentioned this before but, in case law reviews that have been done covering the period from the late 1990s to 2006, there is not a single case from Quebec. No case from Quebec has made its way into the legal databases.
I do not think that means records application hearings do not occur in the province of Quebec but, based upon this limited sample of cases, we cannot answer the question of whether rates of application or rates of successful application are higher in one province or another. I suspect, and this is just a hunch, that in large urban centres like Toronto and possibly Ottawa there is a good chance that the complainant will be informed of her right to counsel and will secure counsel and that all legal actors are more aware of what is needed in an application hearing.
I am not sure that rural complainants are well served. It would be interesting if we could figure out some answers to this question.
Senator Meredith: I have raised this before with respect to the way that police and judges sometimes treat victims or complainants and the myths and stereotypes that exist within the judicial system as they relate to sexual assault. How does section 278.1 and section 278.9 address that, in your opinion, if in any way?
Ms. Gotell: Basically, I will say that one of the themes throughout section 278 is that discriminatory myths detract from the fairness of the trial process. That is the statement made by this provision. I am not sure that this provision does much with respect to providing any kind of message to police officers who interview complainants. It should have more of an impact upon what happens to complainants in courtrooms across the country. I am not sure that answers your question.
If the Government of Canada is concerned about increasing reporting rates, something needs to be understood and addressed better: the way in which people making police reports are treated by police.
Senator Joyal: Thank you for your contribution to our reflection. You are aware of the Batte case in the Ontario Court of Appeal in which the judge established the principle of case-specific evidence before ordering the production of records. Are you satisfied that the criteria that encompass the grounds listed in section 278.3 could be improved by introducing that new threshold to the list of grounds so there will be better protection of confidentiality of the records?
Ms. Gotell: Yes, I agree with that, and I apologize. I have been pronouncing the name of that case as "batty." I recommended that the Batte standard be inserted into section 278. I agree that it would improve things.
Senator Joyal: Is it the only new criteria that you suggest adding to the grounds listed in section 278.3 or are there other criteria that, to use your words, will provide a more robust interpretation of the grounds? Should other criteria be added to the list?
Ms. Gotell: I do not think so, no. This is a pretty full list. I am mindful of a comment made by Professor Stuart last week, which I read when I quickly went through some of your committee transcripts. He said that section 278.5(2) is already too complicated. We do not need to add to that list. Section 278.5(2) is a good comprehensive list. We need to ensure that judges take those considerations more seriously.
As I said, they tend to make it a contest between full answer and the privacy rights of the complainant. By talking about the Peace River case earlier, I was trying to show you that it is not enough to simply talk about privacy rights. We need to take into consideration things like discriminatory myths, equality rights, society's interest in police reporting and counselling. The problem is that the judges are not doing that typically.
Senator Joyal: Do you think that the criteria of case-specific evidence are too narrow? How can defence counsel determine that the information sought relates specifically to the case if he or she has not seen all of it?
Ms. Gotell: People say this as a critique of the two-stage process and the idea of balancing these interests in a vacuum. However, and I know you have heard this before, these cases do not arise in stranger sexual assault situations. These cases typically entail a relationship between the complainant and the accused. Quite often the accused is a family member, such as father, stepfather or uncle. They are often well aware of or have a very good idea about the existence of records and what could be in the records. I want to emphasize that. That standard is not too strict. If it were, we would likely see a decline in successful applications in the province of Ontario where, after all, that standard is binding; and we have not seen that.
Senator Boisvenu: I am going to turn your attention to a subject that my colleagues have touched upon: failure to report. I believe that very few judges will see a victim twice, which is not necessarily the case of criminal reoffenders, who often parade before judges and as a result are no longer unknown to them. However, the victim always remains an unknown to the justice system. I read a little of your previous statements on the victims of crime, especially the victims of sexual assault. I cannot see myself in a woman's position; the majority of victims of sexual assault are women and they do not report for fear that, at some point in the judicial process, someone will lay the blame on them for the sexual assault. Many victims are afraid of being confronted by their attacker over responsibility.
That was the case for Julie, my daughter, who was murdered. The attacker's defence was that he had met a prostitute during the night in order to put the blame on the woman.
In your view, in the state of the law as it is currently practised — because judges are mainly responsible for the practise of the law — are victims at a disadvantage in the judicial process, particularly the victims of sexual assault, and along what lines should we work or think to ensure that one day a larger number of victims report these crimes?
Ms. Gotell: Let me first say that I am very sorry for your loss. I agree that victim-blaming infiltrates the entire criminal justice system; not just courtrooms. Victim-blaming practices are a problem when people report their assaults to the police, for example. This area requires a lot more work. From the little bit of research that has been done on this question in Canada, it seems as if police officers often do not understand the consent standard and ask complainants very inappropriate questions, which could deter those complainants from continuing.
Victim-blaming is a huge problem. As I said earlier, we have a very innovative sexual assault law in Canada that is considered to be a model in many other countries. One thing that could help this problem of the continuation of victim-blaming within the criminal justice system is more clear attention on the problem of sexual violence by the federal government. This is a very important and serious social problem. There is a lot we can do to denounce sexual violence. If there were a clear message that the government was concerned about this problem and about under reporting, it would send a very strong message to people who have experienced sexual violence.
We have not talked about this, but we have a very good consent standard. I have referred to it in my own work as being an affirmative consent standard. We have a standard that says "only yes means yes." It is a specific standard. The Supreme Court in its decision in R. v. J.A. last spring said that there is a requirement of ongoing continuous consent. This is very positive. The problem is the very low level of social awareness of the consent standard in law. Governments have done good work around getting people to wear seat belts and not to drink and drive. There is a lot of public education that the government could take part in order to raise awareness around this issue and to help engage in prevention. These are obligations of the government as well, not just dealing with this problem at the level of criminal law reform.
Senator Boisvenu: Do you think that an education effort should also be made to increase the awareness of judges? Every year, judges are given awareness courses in various specific fields. With regard to sexual assault victims, should we not try to make judges aware of the right to privacy, the right to protection? Sexual assault victims who appear in court are much more vulnerable than other types of victims; they have to face their attackers constantly. Should we not make judges more aware of what victims experience?
Ms. Gotell: I absolutely agree that far more work has to be done in the area of judicial education not only on section 278 but also more broadly to ensure that complainant rights are fully respected in the courtrooms across this country. There is a lot of work to be done.
We know of an example that occurred in Manitoba this year. We can see that judges still let rape myths infiltrate their understanding. A lot of work can be done in the area of judicial education.
Senator Lang: Welcome to our guest. Obviously, you are very knowledgeable of what you speak. Certainly, we appreciate what you are bringing forward to the committee.
As you are aware, Professor Stuart appeared before this committee by video on November 16 last week. He gave a very good overview of the implications of the section. One area that he raised was the question of whether there was a balance built into the legislation in respect of the rights of the complainant versus those of the accused. I do not know if you have had the opportunity to read his testimony.
The way I understood what he brought forward is that the judge should look at the records at the initial stages of the proceedings, not halfway through or towards the end of a court case. That way, the judge could look at the records, see if there was any relevance, and if there was, could put it forward, or obviously put it to rest and the issue does not come up in the course of the court case as it proceeds.
Do you have any comments about that? I thought it was an interesting point he raised.
Ms. Gotell: This legislation establishes a two-stage test: first, production to the court, and, second, disclosure to the accused. It is true that the relevance threshold is decided in the absence of examining the records.
I would strongly disagree with Professor Stuart's argument. Think about it. You would be saying to anyone who reports a sexual assault that, as a part of this process, as a requirement, as an obligation on you, you will be required to produce your confidential records to the court for examination.
That kind of regime was essentially in place between the O'Connor decision and the enactment of this legislation. It was a terrible situation in that period. Even the Attorney General of Canada produced a report that said it was terrible because you are placing complainants in a Catch-22 situation. They either can report their victimization to the criminal justice system, or else they can get the counselling they need to recover from this serious and traumatic experience.
If you said okay, well, we should make it easier, and the judge should look at the records, then you are saying that as a requirement of being a complainant in a sexual assault trial, your records will be released to the court. That would operate as a significant deterrent to police reporting. I think you would see declines in the rate of police reporting if his suggestion became the norm.
This regime does cover records in possession of the Crown, but for the most part in looking at these decisions, we are not talking about records in the possession of the Crown, so this is a search and seizure.
There is a very strong case against returning to, essentially, the pre-section 278 regime. Professor Stuart was talking to the situation that was in place between the O'Connor decision and the enactment of this legislation. It would be a step backwards for complainants in this country if we returned to that kind of a regime. I think it would be quite disastrous, actually.
The Chair: Dr. Gotell, we are running somewhat over in the time. If you could remain with us a bit longer, we would appreciate it. Perhaps another 10 minutes. Would that be adequate?
Ms. Gotell: I have a meeting in 15 minutes, but I can run to that meeting. Also, I just wanted to say that when I was introduced, my title is wrong. I am a full professor, not an associate professor.
The Chair: Thank you. The record will reflect that.
Senator Baker: I have a technical question, professor. You investigated the decisions of judges relating to this matter we have under review.
Ms. Gotell: Yes.
Senator Baker: You are one of the very few people who has gone into this in detail. However, you suggested that you restricted your search to Quicklaw. Is that correct?
Ms. Gotell: Yes, it is.
Senator Baker: I would like to ask you why you would restrict it to Quicklaw. I understand it is simple because it is an electronic form of investigating what these cases are about. There is also Westlaw and Carswell, and I do not know if you tried that system, because sometimes you find that a great many cases reported on one are not on the other.
Ms. Gotell: It is true that in this study that I did I restricted it to Quicklaw. I did that because that is how I did my first study, and that is also how Karen Busby did her work in the late 1990s. I thought that for consistency, from a research perspective, that would be good.
Also, there is CanlII now, and if I were to do another case law review, I would use all the databases. There is a lot of overlap. You might find a few cases that are not on Quicklaw.
Senator Baker: In your reference to there being no cases from Quebec, did you mean there were no cases in English from Quebec or judgments?
Ms. Gotell: I can read French. I can read judgments in French.
Senator Baker: There were no cases reported in French or English from the Province of Quebec.
Ms. Gotell: That is right.
Senator Baker: Did you investigate how these cases get to be recorded on Quicklaw? Who instigates the actual registration or the entry of the case into Quicklaw?
Ms. Gotell: This is not something that I investigated. The way I understand it is that judges do not often write their reasons in section 278 application decisions, and then sometimes they make a decision to do that. I am not sure why they decide to do that. Some of the decisions that I have read have been pretty conclusory, so it is not as though they are making some innovative points, but some do write their reasons even when they are fairly thin.
I am not sure who makes the decision. I think it is the judge who makes that decision.
Senator Baker: It goes to what we have to recommend here in the committee. It is my general understanding that the decision could be submitted by the Crown or by defence counsel or the judge. You will find that some judicial decisions from some provincial court judges have 100 or 200 cases reported, whereas with another judge, you would not even recognize the name because there are none. It certainly goes to the matter, and would you consider it advisable for this committee to recommend that, perhaps, the Department of Justice recommend to Crown attorneys that in cases dealing with this section they submit those decisions to Quicklaw and the other reporting agencies for purposes of investigation?
Ms. Gotell: That is an excellent decision. The more decisions that we have available to us, the more that we will know about how this provision is working. Anything that would increase the number of decisions on the legal databases from my standpoint is a good thing. Yes, that is a good idea.
Senator Baker: The Crown and the defence get a copy of the decision of the judge on every question before the court. Each page is initialled by the judge. If the counsel wishes to submit those to Quicklaw or any other electronic agency, they can. You are suggesting, then, that we recommend to the Department of Justice that Crown counsel be asked to report cases that come under this section that we have under review in the future so that you can do the sort of work that you need to do regarding this subject.
Ms. Gotell: Absolutely, that sounds like a great idea.
The Chair: Dr. Gotell, that concludes our questions. I will be very brief in my closing comments, so you can run to your meeting, but thank you so much for taking the time to be with us today. You have tremendous knowledge about this subject, and we have heard what you have presented to us today. We have the materials that you had submitted to us previously and we will examine those closely. Thank you so much. It has been very helpful to us.
Ms. Gotell: It has been a pleasure. Good luck with your deliberations.
The Chair: Colleagues, we will continue with our consideration, examination and report on the provisions and operation of Bill C-46, An Act to amend the Criminal Code in respect of the production of records in sexual offence proceedings.
We have before us a witness who I believe will be the final witness we will be hearing on this matter. We save the best for the last, Ms. Kaplan. At the table is Ms. Sarah Kaplan, Manager of the Cornwall Community Hospital Assault and Sexual Abuse Program. She has an opening statement.
Ms. Kaplan, you may read your statement into the record and we will then have questions from our senators.
Sarah Kaplan, Manager, Cornwall Community Hospital Assault and Sexual Abuse Program: Honourable members of the Senate committee, I thank you for inviting me to speak with you today. I have been working in the field of sexual assault all my professional life, dating back to the 1980s. It is from this perspective that I will be addressing you today.
Over my career I have been involved with criminal proceedings both as a clinician and now as a program manager. I am very passionate about ensuring that victims of sexual assault are protected and that the best possible course of justice is sought for the alleged perpetrators. The only way our country will improve the very terrifying statistics on sexual assault is through the law.
I can support victims but they will continue to come to my door until laws are created and/or amended to protect them. These laws must serve as a realistic punishment and/or deterrent for sexual assault perpetrators.
Third party records, more commonly known in the clinical community as clinical records or therapy documentation, come with an expectation of privacy by the client. These records include many issues that are unrelated to the current sexual assault that is before the court. However, the assault in question may have produced sequelae that exacerbate pre-existing problematic issues.
The purpose of third party records is not an inquiry into the assault in an investigative manner to provide further evidence of whether the assault actually occurred; rather, the records assist the therapist by recording in a qualitative manner how the assault has impacted the victim's life and what therapeutic interventions are being employed for treatment.
When records are released to the accused it has been my experience that this often has a negative impact on the client. The most obvious is the violation of privacy, where issues not related to the current assault are revealed. Additionally, clients can feel like they have lost control over a very intimate part of their life. Not only is the personal information made public in court, the information can be shared with the alleged perpetrator. Many of our clients suffer from various forms of traumatic reactions and, in the extreme, post-traumatic stress disorder.
Discovering that the one place they thought was safe for them is another place where they have no control is counter- therapeutic. As a clinician, I believe this is one of the major roadblocks to recovery for individuals who have been sexually assaulted.
I am also concerned about whether the ability to obtain third party records deters victims from proceeding with a criminal investigation. Often the decision to contact police occurs in the therapist's office. The ability to communicate that the therapy records are only released under very specific circumstances may provide the assurance needed for the victim to proceed with the criminal investigation.
Also, I wonder if someone who is already going through the criminal proceedings may be deterred from pursuing therapy if they think those records may be released and thus have a negative impact on their health. However, I do support the release of such records under careful legal control. I would not recommend making access to third party records easier. I believe there has to be a very substantial and demonstrated case for the release of these records, so I offer my continued support for Bill C-46.
The Chair: Thank you very much for that, Ms. Kaplan. We will now turn to questions from our senators, beginning with Senator Runciman.
Senator Runciman: This being a hospital-centred facility, in most instances would people come to you immediately after the alleged assault? I gather that would be the case since it is a hospital facility. Is that your experience?
Ms. Kaplan: There are actually two ways people come to us. It can be immediately after the assault, but it could be years later that they come into our counselling program.
Senator Runciman: When that occurs is there any legal obligation placed upon you or your staff with respect to reporting?
Ms. Kaplan: Not if they are 16 and over.
Senator Runciman: There is no obligation at all.
I appreciate your statement here, but you are obviously expressing the concerns of your organization related to reporting. Is there a general approach with respect to folks who show up for assistance, support and help? Do you take a view with respect to going to the police? Do you support, encourage or discourage? Obviously you have serious concerns here. Do you have a standard approach in terms of how you deal with this situation?
Ms. Kaplan: Because we are involved in a forensic piece with our clients, we have to be objective observers of the evidence so we cannot discourage anything. We try to present things in an objective manner but then we also have facts. Fact number one is we have service agreements with our local police and with the Crown attorney's office so, for example, if somebody says that they do not want to go to the police, they are worried they will not be believed or be treated this way or that way in court, we can say, "That is not the case anymore. We have a good relationship with our police. Would you like us to be here with you when someone comes in?"
We present it in as objective a fashion as we can, but also quite positively.
Senator Runciman: I take it that you are aware of the right to counsel, the right to representation for the complainants, and you make it a practice to inform individuals that they will have that opportunity.
Ms. Kaplan: Absolutely.
Senator Runciman: Is there a certain societal characteristic in terms of the majority? We have talked about the Aboriginal community and our previous witness talked about the need for government to fund counsel representation. Are most of these individuals that you are dealing with from certain income levels? Would they have trouble accessing counsel? Legal aid is available in Ontario. What has your experience been?
Ms. Kaplan: Are you asking who comes to our program?
Senator Runciman: Can you paint that picture?
Ms. Kaplan: I will answer that with two comments. Who gets sexually assaulted? Victims of sexual assault come from anywhere and everywhere. Those who come to programs are sometimes different. People who have money may access something private so we do not really know what happens. In our location we border Akwesasne, which is a native reservation, and I would say probably one sixth of our clientele comes from there. Is it because it is lower in terms of the incidents? I do not believe so. I think there is a lot of communication that needs to be done to make them feel comfortable in a mostly White community. We know there are issues all the time in health care towards minorities and other marginalized groups so we try to work hard on that.
I would say also there is certainly a significant portion of our clientele who are on some type of financial assistance and are not aware of what types of things they can access. Part of our job is to advocate for them and help them proceed, and certainly to refer because, as you know, there are different types of service organizations that provide assistance if you are going through court, so we certainly will hook them up with that.
Senator Runciman: What is your caseload like annually?
Ms. Kaplan: There are two different pieces. There are the acute cases that come from the emergency department and the cases that come for counselling, and they are very different.
The number of acute cases from our last fiscal year will seem low but I will explain why. We had approximately 90 acute cases, but those are cases where someone has been assaulted within 72 hours. We know from the research on sexual assault that most people do not come for help until two years after the assault. This is realistic, unfortunately, where you see the heavy numbers are in counselling. The counselling numbers would be about three times that at least.
We would like to see the opposite. If people would come in right away there would be fewer problems later on. However, most people come in when the symptomatology is so great that they are driven and have to get help.
Senator Runciman: We heard testimony earlier about the broad definition of sexual assault, everything from fondling to a violent rape. What has your experience been with respect to that? Are you mostly dealing with the very violent situations?
Ms. Kaplan: That depends on your definition of violence. We look at sexual assault definition from the Criminal Code, which is sexual touching without the consent of the complainant. It could be that somebody was grabbed somewhere inappropriately to sexual assault with penetration, but we treat them all the same.
Senator Lang: I would like to cover one area from your experience concerning the women you have dealt with over the last number of years. Could you give us an idea of how many of those clients would actually, once they have come to you, proceed and file charges? You may not have the figures, but would you say, for example, roughly 30 per cent proceed through the court system or is it 50 per cent? Could you give us an idea?
Ms. Kaplan: One positive thing is we have seen an increase. When I first started in the program less than 50 per cent even reported to the police. Now we are seeing over 50 per cent are reporting. What happens then is we lose control of that information because once they leave us we do not always know unless the police contact us for evidence. Sometimes they go ahead with the criminal proceedings and we are not aware of that.
I would say out of the 50 per cent or so who do contact police — and of course the police have to determine if there is enough evidence to substantiate going on — it would be lower than 10 per cent. Many do not go. They drop it for all kinds of reasons.
Senator Joyal: What kind of reasons?
Ms. Kaplan: There are certainly the stereotypes — and not just women — about how women and men, victims of sexual assault, are treated. My colleague alluded to some of the myths that still exist by all people and that is a real deterrent. They are worrying about being made to feel that somehow they brought this on and that is enough to scare people. Some people do not want anyone to know. They feel ashamed by what happened, or they have realistic fears that the perpetrator may come after them or their family. We get that a lot. "I am not calling the police because he said he'd kill me." If they are in therapy they are often afraid that that information might get released.
Senator Lang: I would like to follow up on my line of questioning here. If 10 per cent actually do proceed and lay charges, in your experience, of those 10 per cent, how many times have you been approached to bring forward their personal records?
Ms. Kaplan: By the defence, through Bill C-46, very rarely, first, because it is such a good bill; and, second, as you know, the accused has to know the record exists. They do not always know that.
Senator Lang: By "very rarely," do you mean that it might happen once a year?
Ms. Kaplan: Maybe a little more than that. I think it happens more to people in private practice. When I was in private practice as a clinician, it happened more. At the hospital program — and I do not know why that is — it is less. Maybe they do not know that we have those records there; I am not sure. For our particular program, it happens much less.
Senator Lang: You may not be able to answer, but, for my own information, I want to know how the procedure works. Records are called upon. Let us say the judge agrees that the records are relevant. From reading your presentation here, my impression is that the records are provided, whatever records have been provided. Or is it particular parts of the file that are made available? In other words, does the judge use discretion or, once he or she has decided that there is relevance, is the full story provided to the court?
Ms. Kaplan: I never get to be involved in that part because we have health records at the hospital. What happens, I think, in proposed section 278, where the judge must decide, is that the person from health records takes the file and I believe attends to that and then delivers the whole file to the judge. The judge is to decide what parts and how, whether it is allowed to be photocopied, and so on. I think that is very good.
Senator Lang: I think I have my answer, Mr. Chair.
The Chair: As supplementary to Senator Lang's question, when you have someone appear at your office and you hear what they have gone through, would you aggressively encourage them, if you felt that it could or was a criminal offence had occurred, to complain to the police or would you simply present them with the options and describe the process and leave the decision to them?
Ms. Kaplan: I would choose a different word from "aggressive" only because we have to be careful about the issue of consent in court.
If someone were to testify in court, and were to be asked by the accused about how it came to be that they pressed charges, and they said "Well, the lady from the hospital really pushed me into it," then it may not seem like they consented freely. We need to be careful about that because, again, we are meant to be objective observers. We are not there to steer people. We have to give them the facts but we do not discourage. I would say we lean more toward encouraging.
The Chair: Yes, and perhaps dispel, as you alluded to earlier, some myths or inaccurate perceptions that they may have and that might result in it going forward.
Ms. Kaplan: Providing consent means give education about things. If they do not know anything about the court process, it is our job to ensure that. Whether it is done by us or we can get the police to come in, they will come and explain it so that an informed decision can be made. We need to help them arrive at that.
Senator Meredith: Do you have printed documentation that you provide to these clients as they come in about the rights within the court system and how they are protected?
Ms. Kaplan: We do not provide that. If they decide to go through that, they will be hooked up with the police and the Victim Witness Assistance Program. It is their mandate to provide that information. We are not legal experts. We do not want to go too far into that field. However, if we can get that for them, we will make sure they go to the right agency that does that.
Senator Meredith: Thank you.
Senator Angus: Good afternoon, and thank you very much for coming here. First, you are not a lawyer.
Ms. Kaplan: No!
Senator Angus: Oh, God no! What a relief.
You have a master's in social work. What is RSW?
Ms. Kaplan: It is my college registration that I am required to put on there legally. It means Registered Social Worker.
Senator Angus: You are a professional social worker, then.
Ms. Kaplan: That is correct.
Senator Angus: This program is at the Cornwall community hospital and it is associated with many other programs. It is not just a sexual abuse hospital.
Ms. Kaplan: No. You actually have a similar program in Ottawa. We are part of a provincial initiative. There are 35 programs in Ontario. We are the only province in Canada to have such a great system, just so you know.
Senator Angus: Some of us are from the underdeveloped provinces, but we are working hard. We learn at this committee.
Ms. Kaplan: We would be glad to help you out.
Senator Angus: The chair is from a particularly backward province, as he has acknowledged several times; Professor Baker as well.
You said several times that Bill C-46 is — and I think you used the words — "a really good law." We are here reviewing it. It is a 10-year review to ensure that it should not be changed or upgraded.
Do you have any changes to recommend? I will get to the issue of the judge and the legal control of the document, but is there any other element of the bill that you want to comment on or are you comfortable that it be left the way it is?
Ms. Kaplan: Not being a lawyer, I am afraid to speak about anything legal because I will get trapped into something that I do not know anything about. I think what is important is to ensure it is carefully controlled. My experience with it has been very good, as long as everyone involved understands the importance of their role. What might seem to be important to a case is still evidence is someone's life. If this comes with some kind of training or education to judges, or something, that is what I would recommend — high sensitivity.
Senator Angus: I have always considered myself a bit of a wordsmith, to be honest. Is the word "sequelae" at the bottom last line of paragraph 2, is that like segue or lead in?
Ms. Kaplan: I was trying to impress you with my knowledge.
Senator Angus: It is very impressive. Is it Latin?
Ms. Kaplan: It refers to the symptoms that come after being sexually assaulted.
Senator Angus: It is a medical term, then. It is symptoms of a medical condition, which is what I thought.
Ms. Kaplan: Yes. It is from the word "sequel," to follow.
Senator Angus: As regards your caveat about not being a lawyer, we had a professor of criminal law who someone else mentioned, Professor Stuart, who has a lot of experience in criminal law, from Queen's University, I believe, the other day on video. Did you by any chance see the transcript?
There are a lot of nuances in some of the Supreme Court decisions, for example, the O'Connor case and these different cases. Am I to understand that you do not get involved in reading those cases and looking at the distinctions that are drawn?
Ms. Kaplan: I would read them but whether I would understand them —
Senator Angus: They are very hard to understand. That is why we have Senator Baker here. He is the interpreter.
Professor Stuart was very clear. I must admit that I am not 100 per cent clear if it involves a change of the law. He told us that, in his view, the only thing that should be done with these personal records of the complainant should be that a judge alone, privately, should have access. It should be sealed. He should have access and review them and decide whether or not they would be relevant as evidence in the case. He would decide to what extent they would be revealed. He said that usually about 99 per cent of the cases they are not, which is all the more reason not to have a general disclosure. Are you comfortable with that?
Ms. Kaplan: Absolutely.
Senator Angus: Your words were that they would only be released "under very specific circumstances," et cetera, "legal and tightly controlled."
Ms. Kaplan: I would be comfortable. Again, I would reiterate that the person who is doing the reading must also understand what they are reading in the sense that, if I am reading something from another profession, I would not understand the full extent of what some of these things mean. What does it mean to have post-traumatic stress disorder? What does it mean to be disassociated? Some of these terms can help a judge understand what it means and it is really important that it does not get used in a way that is not helpful to the case and not helpful to the individual.
Senator Angus: I am very involved in hospitals myself. You referred to these unfortunate victims or complainants as your clients. They come to your hospital as a patient, basically. They are patients, so there is a professional relationship established right away in terms of what they tell you and what you advise them, and so forth.
Senator Joyal: Thank you for your contribution and your reflection.
Could you give us the profile of the usual person that would come to your service and request assistance? Are they mainly women? If so, what age? What kind of social background would they normally have?
Ms. Kaplan: We see victims of sexual assault and intimate partner violence, all ages, male and female. The vast majority of sexual assault cases are females where the perpetrator is a male and is someone known to them. The assault happened in either their house or in the perpetrator's house. In many cases, alcohol and drugs are related.
What was the second part of your question?
Senator Joyal: It was on the social background.
Ms. Kaplan: It varies. I do not want to say they are all poor or uneducated. As I said before, who you see at the hospital is not always representative of the pool of victims at large because people with connections and money may actually not use our program. Maybe they go somewhere and use something privately.
For the age group that we see for victims of sexual assault, the average age would fall between 25 and 40, although we are seeing a lot of young victims as well. We are seeing more young victims in the dating violence group, unfortunately.
As I said, a little over 50 per cent contact police. Probably around that same number agree to have forensic evidence collected.
Senator Joyal: A person comes to you and you explain to the person that there is an advantage to go to the police. You explain the cases and tell them that they will be treated fairly, and so on. Would you explain to them that the record that you develop with them could be made accessible to the police?
Ms. Kaplan: We have to do that and provide them with all the limits to confidentiality both from the medical record — because we have a medical record —and from the therapy record, if they see the social worker. We have to explain to them that this visit is confidential, with certain exceptions. For example, if they made a threat to harm themselves, or others, we would have to break confidentiality. In the case of a serial rapist, whether they have agreed to contact police or not, the police have a right to subpoena and look at all our files. There are certain situations where we have to break it. We explain to them that if you proceed with criminal proceedings — and the social worker will explain this part — the therapy record could be disclosed. However, it follows a very careful process. We explain all that to them.
Senator Joyal: Would you have some people who realize that the information they are giving to you could be made accessible to the police or to the judicial system and they say, "No, I do not want to go further because I expected the privacy and the confidentiality that normally surrounds the relationship around treatment and the person who seeks the treatment?"
Ms. Kaplan: We have had that very rarely in the medical program, where someone came and the nurse explained the limits to confidentiality and said, "You are over 16. We will not be contacting the police. However, these are the situations." We have had a few say, "I do not want to go further, then." That is rare. I have been there since 1998 and I can count the number of those cases on one hand.
Where we see more of that is when someone goes into therapy. What you are revealing is much more intimate and personal. There are more details and a lot of issues are raised. In the medical field it is like, how old are you. It is less embarrassing.
Senator Joyal: Yes, it is objective information.
Ms. Kaplan: At the very first session, the therapist has to explain that right up front. For those people, they may have not involved the police at this point. It is at that moment where, I think, they will make that decision. They will go, "Okay."
The ones who have involved the police already know all that so they are usually okay. It is more the ones who have not involved the police yet. Obviously, if they have not involved the police, they have already given it some thought. That is the subpopulation that might say, "If there is any chance that he sees what I am talking about, I am done." Again, it is actually quite rare.
Senator Joyal: Would a person understand that to go to the police is part of the cure?
Ms. Kaplan: Some people do. We try to explain that to people and we try to look at every possible scenario. It can be extremely therapeutic, as long as you understand that your version of justice and what may happen may be different and that you cannot hinge your mental health and well being on the outcome of court. Often whatever they expect is not what will happen in court. We have to help them understand that. It can be extremely therapeutic to go and have your say. Even if you lose, it can still be a very good experience for them.
Senator Joyal: Did you ever have a person who went to the police and had a traumatic experience with the judicial system and came back to you for assistance?
Ms. Kaplan: Yes, unfortunately. I can tell you about a specific experience. It was a young woman who had been assaulted. It was one of those tight cases where you were positive. It is where the perpetrator said, "I wasn't anywhere near her," and our nurse found his DNA inside her. He then changed his story. It was quite an interesting case.
Unfortunately, he was let go. There was not enough evidence to support that there was an assault. When that young lady came back to see me, she was worse than after the initial assault. It was a terrible situation.
Senator Joyal: In other words, when the accused is not found guilty, that could have a very negative impact on the victim.
Ms. Kaplan: I would say it pretty much always will, although many judges are sensitive to say, "I am not saying I do not believe what you are saying. I am saying there is not enough evidence to support the charge." We try to support people to understand that.
It is hard because when the judge says that, what you hear is you do not believe me; you do not think this happened. That is very detrimental to someone where, for sure, it did happen.
Senator Joyal: Of course. Thank you.
The Chair: I have a supplementary question to one of Senator Joyal's points. What is included in these therapeutic records? The information that you and others would work with you record obviously could be critically important in determining what happens at trial if it ends up there.
For those of you that record this information, are there certain dos and don'ts and a format followed? Is training given so that it is objective rather than subjective information? Maybe you might explain how you determine what is appropriate to go into these records.
Ms. Kaplan: First, a therapy record differs from a medical record. I think the therapy records are honestly less useful in court. It does not follow a sequential investigative-type thing. The person may never talk about the details of the assault because that is not necessary. You do not have to tell me everything that happened, but you do when you come to the emergency department to see the forensic nurse because we are collecting evidence. That record is much more important. That is the one that gets released more often, but that is released, with permission from the victim.
That is a better record because it really tells you something. The clinical record is very qualitative in that it tells how the person is feeling and about how the person was affected by assault. In our province we have a provincial standardized assessment form that goes through basic demographic information, as well as the types of symptoms experienced by the person and whether there is a history of further abuse, because that is important. They are all clinical questions.
I do not know whether that is always a good thing to have. One of my police colleagues was talking about both sides of the coin. At times the information is very supportive because it can help at trial to understand that an assault happened along with the proof of how the person suffered because of the assault. Sometimes that can have an impact on sentencing.
Senator Meredith: On evidence collecting and the case you cited, you indicated that the victim lost the case. How was that evidence presented in the courts, given the fact that you had collected the evidence and the medical evidence was preserved?
Ms. Kaplan: We collect the evidence; we do not analyze it. The evidence is collected and follows the chain of custody. It goes to the police, who do their bit, and then they send it to the Centre of Forensic Sciences in Toronto. A toxicologist from Toronto testifies about the analysis and the findings, such as the perpetrator's DNA on the sample that came from a body part. That happened in that case; but I was not at the trial.
Senator Meredith: Was that not sufficient to get a conviction?
Ms. Kaplan: You would not believe the questions asked during that trial.
Senator Meredith: Were there consent issues?
Ms. Kaplan: Yes; and they asked whether certain specimens could travel from one orifice to another. I am sorry to say, but that is the truth of what we hear sometimes.
Senator Joyal: I would like to come back to the clinical information that you gather. How do you deal with a person who alleges that she has been a victim of an assault by a member of her family? When she returns to the same social environment, she must continue to face the perpetrator of the offence?
Ms. Kaplan: Do you mean a father and how they have to go back at Christmas time?
Senator Joyal: I mean an uncle, a friend of the family, a cousin or a close neighbour. You said that they are the usual "suspects." How do you deal with that clinically when the person is more or less forced to face the person who has been the author of the offence? How does one deal with that psychologically? What kind of support do you bring to such people?
Ms. Kaplan: We have a good example because we are a small town where a victim will face the perpetrator all the time unless she moves. A therapist does not prescribe or tell people what to do. If the example is an uncle against his niece and now it is Christmas time and she is faced with spending her Christmas celebration with her uncle, if I were the therapist I would ask her if she wants to go or if she has to go. Why should the person suffer a beautiful family situation because of the crime that happened?
However, it is always very counter-therapeutic to be in the presence of the perpetrator. Even if they are not hurting you, the environment is somewhat toxic because of the values added to behaviours that came before. It is a dangerous situation always for that person. However, if the person decides to go, which is their choice, and if there is nothing before the court, then we try to support them and give them ideas to try to get through it. If there is something before the court, that is a whole other problem. It happens more than we would like to see.
Senator Baker: I thank the witness, Ms. Sarah Kaplan, for the very excellent testimony she has given here today. It is very interesting and informative.
I have one question. When an application is made under this section of the Criminal Code, a copy of the application and subpoena for production of the records has to be sent to the third-party record holder. If the defence is asking for production of records, they must send to you, if you hold those records, a copy of the application and a subpoena for the production of those records.
In the case of the hospital, as you explained, I imagine that in the subpoena would be not only the therapeutic records but also all other records held by the hospital, including the emergency department. Is that what you see normally?
Ms. Kaplan: Sometimes. Often, when a case is going to court, the police are involved and the medical records are released voluntarily. The defence would then have access to them. Those records are already gone.
It is rare that the Crown wants therapy records. Sometimes they get consent from the victim for those records, but unless someone applies under Bill C-46, we prefer to produce a therapy report because it might be sufficient. It is a summary report and does not go into detail. If we get an application for third party records, it is simply that because they already have the other things.
Senator Baker: Would you include your notes made during that? Sometimes those notes are used at trial too.
Ms. Kaplan: When you refer to notes, are you talking about our clinical documentation?
Senator Baker: Yes, as well as the notes you take when you do an interview with someone.
Ms. Kaplan: There are not two separate records. There is only the clinical record. No one is allowed to take separate notes and keep them somewhere else; absolutely not.
Senator Baker: Is that a rule?
Ms. Kaplan: It is a rule. I remember one time when a nurse said to me, "Oh, yes, I write in my journal." I said back to her, "No, because everything is disclosable. You have one place: either the medical record or the therapy record. There can be no notes anywhere else."
Senator Baker: Interesting.
Ms. Kaplan: That is a policy in the hospital.
Senator Joyal: Is it part of the ethics of nurses not to have any notes in a personal diary, for instance, that relate to a patient?
Ms. Kaplan: I am pretty sure that would violate the College of Nurses under documentation. Certainly, in social work you absolutely cannot write such notes. This is a profession and not a personal relationship. There should be no notes anywhere else. Everything should be in one place.
Senator Baker: I asked the question because of a famous case of the Supreme Court of Canada: R. v. Carosella. The initial notes made by the group that the victim had visited were intentionally torn up. Of course, the case was thrown out because of that. I imagine that you have taken into account all such things and are very careful.
Ms. Kaplan: There are no notes and no destruction of notes; and we have laws around how many years we have to keep things. In my field, we just had this conversation. We have made a decision to keep them forever because cases come many years later.
Senator Baker: Again, thank you for your testimony today.
Ms. Kaplan: You are welcome. Thank you for not asking difficult questions yet. I should not have said that.
The Chair: That was not what we wanted to hear.
Ms. Kaplan: Oh, no.
The Chair: There will be a second round of questions now.
Ms. Kaplan: I should not have said that.
Senator Joyal: That was just a warm-up.
Senator Chaput: You said that there were 35 similar programs in Ontario. Are they similar to your program?
Ms. Kaplan: Yes.
Senator Chaput: I understand they are community programs. Are there provincial programs?
Ms. Kaplan: They are provincial but community-based in a hospital. The funding from the Ministry of Health and Long-Term Careflowed through the hospital. The programs are more or less exactly the same.
Senator Chaput: Do you have links with the other programs? For example, do you share training services and other services with the 34 programs?
Ms. Kaplan: Yes. In 1992, a network was established with a coordinator. For example, our forensic nurses are trained to be sexual assault nurse examiners in Toronto, which is provincial training. We have provincial meetings for the managers of these programs four times a year. Even though I am in small-town Cornwall, the lovely part is that if there is a change in the forensic application of practice, I will know at the same time as someone in Toronto; and because my hospital is smaller and there is less bureaucracy, I will have it done faster.
Senator Chaput: If you have good policies in your program, can we say that the policies are as good as the other 34 programs?
Ms. Kaplan: Ours, of course, is the best. I would say that the policies are all similar because we share with each other. If someone is developing a policy, they do not try to reinvent the wheel. We just copy from each other.
Senator Chaput: Do you keep statistics?
Ms. Kaplan: We have to report statistics to the hospital and to the ministry. We have almost completed provincial standards of care. Instead of saying that a program has to look a certain way, we provide the standards to ensure that everyone follows them. As examples of standards, a victim of sexual assault has the right to 24/7 access to an emergency service; and a victim of sexual assault has the right to have forensic evidence collected by someone with training and expertise. There is a set of standards that we all have to ensure we have in place.
Senator Chaput: In order to do even better work than you are doing now, what else would you need?
Ms. Kaplan: How many times do you hear the word "money?"
Senator Chaput: You need money to do what?
Ms. Kaplan: If someone said to me: How can you make your program better? I would answer that I would like to have someone on duty 24/7. Most of our programs are with an on call response by the nurses; and that is difficult. That means casual nurses and there is a big challenge with recruitment and retention. It takes a long time to get these people really competent at what they do. A lot of money is invested and then off they go, and you have to start all over. If I could have funding to ensure that I could offer part time or full-time positions 24/7 to have my program staffed, I would die a happy woman.
Senator Chaput: The record-keeping is not a problem where you work. Is it well in place?
Ms. Kaplan: Our programs across Ontario are very good. It is for everybody, not just what we do. Funding is always a challenge.
Senator Boisvenu: Do you understand French?
Ms. Kaplan: Yes, sir.
Senator Boisvenu: I believe you have a twofold duty: medical and legal, or judicial. Do you assist the victims in the judicial process?
Ms. Kaplan: No.
Senator Boisvenu: You do not prepare them for the judicial process?
Ms. Kaplan: No, it is not our mandate to prepare victims for court. We handle the medical process, we prepare the medical kit, we offer medical and therapeutic support, but as regards the legal process, we refer them. Normally, from the moment the victims notify police officers, the latter direct the victims. I do not know the name of the entity in French, but in English, it is the Victim Witness Assistance Program.
Senator Boisvenu: To assist them.
Ms. Kaplan: Yes. We do not assist or support them.
Senator Boisvenu: You only do the medical report?
Ms. Kaplan: Medical and psychosocial, psychological.
Senator Boisvenu: Do the victims ask you about the judicial process and the context in which they will be called upon to testify?
Ms. Kaplan: If we receive any questions or requests about the court process, since that is not our expertise, we direct them either to the police or to the Crown. We are not legal experts.
Senator Boisvenu: So you do not prepare these people psychologically to understand the difficulties they will encounter in the judicial system?
Ms. Kaplan: If, for example, a victim is anxious or something like that, yes, in that case, our social worker will intervene, but we have to be —
Ms. Kaplan: We tread a very fine line.
Senator Boisvenu: You are cautious.
Ms. Kaplan: Because we have to be objective.
Senator Boisvenu: I understand.
Ms. Kaplan: We cannot prepare people for court because, in that case, we are taking sides.
Senator Boisvenu: I see.
The Chair: Colleagues, that concludes our questions to and the presentation from Ms. Kaplan. Ms. Kaplan, I sense there was great appreciation for the enthusiasm and knowledge that you brought to the table today. In particular, was the fact that you are not a lawyer so we understood what you said. That meant a lot to us. We have a lot of technical analyses of the bill and you certainly brought home the practical, front line implications for victims, which Bill C-46 is all about. Thank you so much. I would hope that this is not the last time we see you before this committee.
I remind colleagues, as I mentioned at the outset, that this concludes the evidence on Bill C-46. Next Wednesday we will consider our report, so we all have our homework to prepare for that.
(The committee adjourned.)