Appearance before the Senate Standing Committee on Legal and Constitutional Affairs on the statutory review of An Act to amend the Criminal Code (Production of Records in Sexual Offence Proceedings), S.C. 1997 c. 30 (“Bill C-46”)

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October 20, 2011
Ottawa, Ontario

Opening Statement by Jennifer Stoddart
Privacy Commissioner of Canada

(Check against delivery)


Introduction

Thank you for inviting me to speak to your statutory review of the legislation concerning the production of records in sexual offence proceedings, commonly referred to as Bill C-46.

Sexual assault is one of the most, if not the most, underreported crimes largely due to victims’ desire for privacy. The targets of sexual assaults are often women, but recent cases of men coming forward after years, even decades, of an assault, indicate that regardless of gender, people react the same way to a sexual assault by preferring to not disclose such a horrific event for fear of further humiliation and victimization.

That is why the Office of the Privacy Commissioner wholly supports the intent of the law, which has been in force since 1997. As the preamble states, violence – particularly sexual violence – has a negative impact on women and children’s access to such fundamental Charter rights as security of the person, privacy, and equal benefit of the law.

We also acknowledge the difficult but necessary challenge that courts face in balancing the rights of victims and the accused.

Context

I want to underscore the scope and magnitude of the privacy interests at stake in sexual offence proceedings. We are talking about extremely vulnerable individuals, and their most personal and sensitive private records are being sought, typically for cross-examination in court.

We therefore favour the formal judicial process that was created by Bill C-46 to guide the orderly and appropriate production of records in sexual offence proceedings. This process creates a mechanism to scrutinize the privacy impacts of producing records containing the personal information of complainants and witnesses.

Effectiveness of the law

A key question for your review is whether the legislation is meeting its goals. One measure is whether it removes barriers for victims to report sexual offences.

But that cannot be the sole gauge; we must also assess whether it succeeds in protecting the privacy rights of those who come forward.

Testimony before this committee last February raised several challenges related to whether the legislation is succeeding in protecting privacy:

  • the application of Section 278.5(2);
  • the reasonable expectation of privacy; and
  • the need for independent counsel.

I will address each in turn.

Before I do, I would like to point out an area where I think more legal research on court disclosures in this context needs to be conducted. From what we can tell, the research done to date has focused on how often judges have ordered disclosure and the criteria they take into account in making such decisions.

However, what is also crucial to know is whether judges that do order the disclosure of records impose any conditions so as to protect the privacy rights of complainants and witnesses, for example, through publication bans. How records are protected once they have been disclosed to the accused is an important part of assessing whether this legislation has been effective.

Section 278.5 (2)

Section 278.5 (2) of the law sets out the factors that judges are required to take into account when deciding whether to order the disclosure of records relating to a complainant or witness.

The research that has been presented to you underlined the difficulty in knowing whether and why records were or were not disclosed to the accused. Studies also suggest that judges do not always refer to all the factors specified by s. 278.5(2).

For example, it appears from case law reviews conducted by the Department of Justice and others that privacy is often referred to by judges deciding whether to order production, but it is not referred to in every case.

While my Office cannot recommend to judges how they interpret the law, we would encourage a recommendation by your committee that privacy issues be considered and that this consideration be documented in all cases.

Reasonable expectation of privacy

My next point relates to the reasonable expectation of privacy.

It is my understanding that the judicial review regime established by Bill C-46 was intended to apply exclusively to records in the possession of the Crown or a third party such as therapeutic, medical and counselling records.

As a result, the Supreme Court of Canada has found that Bill C-46 does not apply to records held by the accused. While the rules of admissibility of evidence will apply to such records, these rules do not offer the same degree of protection for the privacy rights of victims as are found in Bill C-46. The rules of admissibility require that prejudice caused by admitting the evidence substantially outweigh the probative value of the evidence. The default, in other words, is that records held by the accused that have some probative value are admissible. Bill C-46 also mandates that privacy interests be taken into account, whereas there is no guarantee that this will be the case when an accused already has possession of the victim’s personal records.

We believe this issue deserves some consideration by this Committee. In our view, a complainant or witness in a sexual offence proceeding may have an expectation of privacy, even if her personal information is already in the hands of the accused. This may mean amending section 278.2 regarding the scope of application of the regime.

In such cases, it should still be subjected to a judicial screening process before it can be used by an accused in a criminal proceeding.

We would support amendments to address this apparent oversight.

Independent counsel

Another concern that we have is not directly tied to the law itself. Instead, it relates to the way the screening regime for disclosure actually plays out in practice.

From what we have been told, independent legal counsellors for complainants and witnesses are present in only about half of all cases, either because they cannot afford legal counsel or they are unaware that they need counsel to adequately protect their rights. This has a direct bearing on victims’ awareness of their privacy rights, and their rights in general.

In particular, when victims are not represented by independent counsel, their personal records are more likely to be released to the accused.

Ensuring the presence of independent legal advisers is therefore key to protecting the privacy rights of complainants and witnesses. We therefore encourage the Committee to explore means of ensuring that complainants and witnesses are aware of their right to have independent counsel and that access to counsel is available in all cases. Possible measures for Parliamentarians to consider might include,

  • Whether a complainant or witness should be notified in clear and simple terms that they have a right to be represented by their own counsel at any hearing considering the production of their personal records;
  • The question of whether existing victim support centres and training are adequate – as they can also play a role in notifying victims of their rights and helping them to find independent counsel, and finally,
  • If legal aid is sufficient in all provinces and territories to ensure that an independent counsel is present, and whether judges should be required under the Criminal Code to appoint independent counsel where a complainant or witness cannot obtain representation.

I look forward to your questions.

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