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EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, March 12, 1997

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[English]

The Chair (Ms Shaughnessy Cohen (Windsor - St. Clair, Lib.)): Today we're considering, pursuant to Standing Order 108(2), the subject matter of Bill C-46, an act to amend the Criminal Code (production of records in sexual offence proceedings).

From the National Council of Women of Canada we have Margaret MacGee, who is the chair, and Julie Johnstone, who is the executive assistant.

Welcome. I understand we have a copy of your brief, and I understand you will make your presentation and then we will have some questions.

Ms Margaret MacGee (Chair, National Council of Women of Canada): Thank you very much, Madam Chair and members of the standing committee. We appreciate the opportunity to be here today to personally dialogue.

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I have my statement, which I'd personally like to go through, if I could, please. In particular,I wanted to make sure you understood how the policy of the National Council of Women is formulated, because we are not here speaking as individual members and it is not an individual vote. Our vote is taken by organizations that are members of the council, and everything must appear before the membership before we're allowed to speak.

Believing that the December 1995 ruling of the Supreme Court of Canada that allows the release of confidential therapeutic records of rape complainants feeds the most destructive myths surrounding sexual assault, that women who report rape, as opposed to other crime, characteristically are likely to be liars, discreditable, or easily duped, the 1996 National Council of Women and Justice issue standing committee undertook a study that resulted in the presentation of a resolution at the 1996 NCWC annual meeting. This resolution urged the Government of Canada and Justice Minister Allan Rock to introduce legislation as quickly as possible that would guarantee the confidentiality and privacy of the therapeutic records of rape complainants. The resolution was unanimously supported by the membership and forwarded to the government immediately.

The council commended the government when Bill C-46 was introduced. It is a disappointment that in March 1997 the bill is only now before the Standing Committee on Justice and Legal Affairs.

There should be no doubt in anyone's mind of the devastating effect of the heinous crime of sexual assault rape on the lives of its victims, of the agony of burning shame, the self-doubt, and the intimate physical damage. The best tool we have for recovery after such a trauma is therapy and counselling. Part of that healing process is the establishment of a sense of safety and containment. Yet the Supreme Court in December 1995 said that the written record of this healing process, all that has been shared through counselling, through daily diaries, and through art therapy, may end up in court. Personal confidences could become public knowledge, even be placed in the hands of the accused.

The sense of safety and containment for these women who have been sexually assaulted and who so desperately need the counselling has been jeopardized. We must recognize that many trauma survivors begin their therapy without any intention of going to court. Only 6% of the victims of sexual assault - and that was a Statistics Canada 1993 figure - report their assault to police. What message does this give us about the Canadian justice system and how it serves women?

Are survivors of sexual assault afraid of the justice system? Today, more than ever, sexual assault rape victims may make a considered personal decision to enter therapy and counselling but not to bring charges against the perpetrator of the crime due to the fear of public exposure and of further assault - this time, by a justice system that is supposed to be there to help them. What we have is the unwarranted invasion of a complainant's private and confidential records for improper use.

The majority of disclosure requests are made in sexual assault cases, not other criminal and civil trials. Therefore, complainants - mostly women - know they will likely lose their privacy if they report criminal assault or undertake legal actions. They are forced to choose between counselling and legal action. Sexual assault victims are entitled to both of those.

Therapeutic or personal records are not scientifically gathered or tested for the purposes of crime detection. Rather, they are notes created for psychological investigation. We know that survivors of sexual assault experience a time of denial, of self-blame, which is part of the healing process. We must ask ourselves whether that should become evidence in a criminal proceeding where it could be misconstrued by those untrained in the field of sexual assault therapy.

Once a counsellor and the therapeutic records have been subpoenaed, that counsellor and the client may no longer have contact during the trial, which is yet a further assault through the isolation of the sexual assault victim at a time of overwhelming stress.

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The theory that a complainant may be subject to suggestive therapies or false memory syndrome and that this is a sufficient reason to subpoena records is very disturbing to the council, in their use against sexual assault or rape victims. Although sexual assault victims are not being directly accused of lying, there appears to be an assumption that therapists are somehow focusing on the possibility of convicting innocent people.

FMS was not part of our council's original study or policy development. However, we would comment that our continuing study has not indicated evidence to warrant the release of therapeutic records for this cause. Neither should FMS be used in any way to deter the amendments of Bill C-46.

The council has confidence that the amendments proposed in Bill C-46 to govern the production to the accused of records regarding complainants and witnesses in sexual offence proceedings will provide the privacy sexual assault victims must have. When - and we want to speak positively - the amendments to the Criminal Code of Bill C-46 become law, the council will of course monitor the success of the amendments and return to the government if the council is not satisfied.

Those cases where therapeutic records are to be disclosed according to the criteria will, we hope, be very few in number. It would have been preferable to the council that no therapeutic records be released, but we feel the government has attempted to make a fair compromise.

The council, like the government, wants laws that are consistent with the principles of fundamental justice and fair to complainants as well as to the accused person. We see Bill C-46 as an attempt to provide that fairness.

Just last night I was looking through the platform for action from the fourth World Conference on Women. I want to read just one section of strategic objective 1.2, which is to ensure equality and non-discrimination under the law and in practice, because it fits this situation. It's section (l):

We hope the government is attempting to undertake that so we will have equality in the justice system.

The council does, though, have one very strong concern or fear it must express that has bearing on Bill C-46, and that is the sensitivity of trial judges who may review therapeutic records for admissibility under Bill C-46 criteria. Even in 1997 the sensitivity of Canadian judges cannot be assumed.

The council first spoke to the Government of Canada in 1992 on the need to rectify gender unfairness in Canadian courts. Although there is marked improvement in 1997, there are still sufficient isolated incidents of gender bias or gender unfairness exhibited by a judge to prove that Canada has not yet attained gender fairness throughout the justice system. The council hopes the Ministry of Justice and the government will continue to be vigilant and progressive in working to attain a gender-fair justice system.

We feel certain that you, as the Standing Committee on Justice, share with the members of the council the grave concern that so many sexual assaults go unreported and not prosecuted. This surely leads to a false feeling of security for perpetrators that this is a crime they can get away with and that both citizens and government are unconcerned with.

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Complainants, mostly women, must feel secure that their privacy will not be invaded if they are to summon up the courage and fortitude to first report their assault to the police and then undertake legal action. These women must not be forced to choose between counselling and legal action. Surely in our Canada, sexual assault victims are entitled to both.

The National Council of Women of Canada urges the Standing Committee on Justice and Legal Affairs to support the amendments of Bill C-46 and the protection they afford sexual assault victims.

Should Bill C-46 die on the Order Paper, it would send an unwelcome message to Canadian women that this federal government does not care that sexual assault offenders can go free to attack again with impunity and that women's human right to fair and equal treatment in the justice system can be trampled on.

I extend the sincere thanks of the National Council of Women for the opportunity to appear before the standing committee on this important issue, and I will be pleased to enter into dialogue.

Thank you.

The Chair: Thank you.

Because you addressed it at the beginning and because it recently became an issue in the House, I should say we're actually reviewing the substance of this bill before it is referred to us. That decision was taken as a result of all-party agreement to make this bill a priority for the committee.

In order to review it earlier, we would have had to stand aside other legislation that had been referred to us and that is, in my view, of equal importance to Canadians, including Canadian women. It dealt with issues around victimization and victims.

I just wanted to express that. We did get to it as quickly as we could. In fact the bill still has not been referred to us and we're soldiering on with the subject matter.

Ms MacGee: Oh, I was under the assumption that it had been referred to the committee.

The Chair: No, it has not been referred yet.

Ms MacGee: Oh, I see.

The Chair: We're dealing with it under a standing order that allows us to deal with the subject matter. So lest you think that we were dragging our heels, that in fact is not the case.

I think I speak for most of the members here when I say we don't have any intention of letting it die on the Order Paper, but we can't guarantee what's going to happen.

Ms MacGee: No. Our fear is that an election will be called and this won't have made its way through before that.

The Chair: Well, let me say this. If that happens, that won't be the fault of this committee.

Ms MacGee: No.

The Chair: Would you like to go ahead or would you like to take your turn last?

[Translation]

Ms Christiane Gagnon (Québec, BQ): Just a word to tell you that you can count on us.

[English]

Mrs. Diane Ablonczy (Calgary North, Ref.): Madam Chair, I have a private members' business subcommittee appearance to make at four o'clock. I've let the witnesses know, but if I could just have a minute before then, I'd appreciate it.

The Chair: Perhaps Madam Gagnon simply wants to -

[Translation]

Ms Christiane Gagnon: I will let you prepare your questions. I simply wanted to say that you can count on the opposition to support Bill C-46. I know that we have been asked by some groups to look more closely at the grounds for obtaining access to sexual assault victims' records. We hope that Bill C-46 will be passed in the House, but we intend to propose some amendments to it. Women feel very concerned about that bill, and I can tell you that, as women in politics, we will certainly provide our support.

I think that this bill must be adopted because there now seems to be a gap in the law in that area. At present, the production of a record may be sought without any restrictions, and I believe that a framework must be set. I will ask you some questions a bit later on, because I now want to leave the floor to my colleague who will have to quit shortly.

[English]

The Chair: Thank you.

Mrs. Ablonczy.

Mrs. Diane Ablonczy: I really appreciate my colleague's courtesy in this.

I did want to make sure I heard your application. Our caucus too has been supportive of this bill.

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This committee wants to make sure it balances as well as possible and as fairly as possible the need of women to be free to deal with these issues in a way that brings healing to them with the right of accused persons to a full and fair defence. That, I think, as I mentioned to other witnesses, is the task we need to undertake as a committee.

I don't if I have time for more than one question, but I would be interested in your response to a couple of concerns.

What principles would you like to see underlie or drive this legislation? I know you've addressed this to some extent in your brief, but what principles do you feel should be honoured in enacting the intent of this legislation, bearing in mind the competing interests of needing to protect the equality rights and the personal rights of complainants and victims with the rights of accused persons?

Ms MacGee: We would have preferred that these records never be allowed. We accepted that that was likely unrealistic, because there would possibly be occasions when the records should be allowed. We think those will be extreme issues and extremely rare. We hope the principles that have been proposed are going to be really abided by and not misused in some way.

I don't have a legal background, so it's very difficult for me to comment in a legalistic way on the criterion being brought forward. We think it's going to be fair, but as I said, we will have to watch and make sure it is not what's there. If it goes through the way it is - and we will of course watch to see what further amendments might be made - we will be watching to see if it appears to be fair as it's put into action.

Mrs. Diane Ablonczy: The one specific concern that's been raised by a number of individuals is the situation - which probably doesn't come up too often, but it does happen - where abuse and assault is brought forward, but after a lapse of many years and after some therapy where the memories of those actions are recovered. There is a concern that in those cases this legislation would not allow to be brought forward the records of the therapy or the counselling under which the allegations of assault or abuse came forward. Have you given consideration at all to that narrow aspect of the situation?

Ms MacGee: We have not been able to find much to support false memory syndrome, which is what it's being called. We see this as extreme and very unusual. If we agree with it, what we're saying is there are therapists who are actually leading women to believe something happened that didn't happen. That's hard to accept.

Women have to go through all this healing, and they have to remember what has happened to them before they can heal. I don't think the national council would want to see laws established in Canada that deal with extremes and not with what will be the norm. We're talking about an extremely narrow facet of something that could happen. I'm not saying it wouldn't happen, but I have no proof that false memory is prevalent or that it can actually happen.

We have not been able to find the research that really would prove this is very common, because it's not.

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Mrs. Diane Ablonczy: Okay, I appreciate the background.

Getting back to the matter of principle, the principle I extrapolate from your presentation that you're the most concerned about is this whole feeling of security on the part of people who are victims of abuse and that these people feel secure both in seeking help in healing and dealing with the situation and also with pursuing justice on their own behalf. Is that a fair summary of your main concern?

Ms MacGee: Yes, it is very much indeed a fair summary.

We know women are not coming forward, pressing charges and carrying this right through because they don't feel safe. They don't want people to know what's happened to them. So somehow we have to make women feel they will be safe and private, and that they can actually bring charges, carry through and be protected by the justice system.

Mrs. Diane Ablonczy: In what way would the measures in this bill encourage or provide greater security for women to do that?

Ms MacGee: I think the bill is going to bring into action the protection that is needed and they will feel secure in that. At the moment, any woman who is in therapy for sexual assault has to be told that if she presses charges and goes through with a trial, the whole healing process may become part of a public admission. It's very difficult for a woman to do that.

Mrs. Diane Ablonczy: Thank you. Thank you, Madam Chairman.

The Chair: Questions?

[Translation]

Ms Christiane Gagnon: We have heard several women who expressed comments quite similar to yours about the need to set some limits and to ensure that access to records is allowed only if there are sufficient grounds for it. But they also asked for the creation of a fund to help women or groups of women who might be summoned to appear in court. Would you also wish that a fund be established for groups, therapists or physicians?

[English]

Ms MacGee: We're aware that when the records and the witness are subpoenaed, this is a very expensive procedure to be undertaken for the therapist, who doesn't really have the funding. Their purpose is their therapy, it's not to appear as witnesses in a court situation. The national council has not looked at whether there should be funding to support that. It might be something to look at for the future.

[Translation]

Ms Christiane Gagnon: I don't really have other questions. I think that most suggestions which were made or amendments which were proposed were claiming that strict safeguards be set concerning the access to records related to sexual assault victims. Therefore, I think that some amendments will have to be brought to that effect.

[English]

Ms MacGee: Yes, we would agree with you. The criteria must be very strict and must be abided by. The trial judge, who is going to first look at the application, must be very sensitive to the issues of sexual assault in the consideration.

[Translation]

Ms Christiane Gagnon: Did you try to establish a profile of the potential sexual abuser? Are there any particular traits which characterize those people? In general, does the abuser already know his victim? Could you give us some indications about that?

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[English]

Ms MacGee: Of course, what they're looking for is something in the person's past they can use to make a weak case.

I look back even to when the rape shield law was struck down, which I think was 1992. That was a very serious blow to women. We almost feel as though we were assaulted the same by the Supreme Court judgment in 1995.

We've not done a study that has looked at the perpetrators, to find out if there is any particular kind of characteristic in the ones who would want to push this. In fact, I'm not aware of any organization that would have looked at that, up until this point anyway.

The Chair: Ms Torsney, and then Mr. Maloney.

Ms Paddy Torsney (Burlington, Lib.): I'm glad Mrs. Gagnon asked the question about funding, because it certainly was an issue. I was trying to catch the chair's attention while she was asking the question, so I didn't get to ask it.

I did want to ask a little bit about process. How many members does NCWC have across the country?

Ms MacGee: That's hard for us to tell you. I have listed what our membership is made up of. We are a federation of organizations at all levels.

Ms Paddy Torsney: Are there local clubs?

Ms MacGee: We are local, provincial, and national. A local council may have as many as40 federated organizations itself, and then the provincial will have organizations. I would think we have over 500,000 members within our organization.

All members have an opportunity to be in the development of policy. That is extended to them. They either decide they wish to be part of the policy development or they don't.

Ms Paddy Torsney: Is the Canadian Federation of University Women part of your council?

Ms MacGee: They are not, but that's the kind of organization that is federated with the national council.

Ms Paddy Torsney: Is Zonta part of your organization?

Ms MacGee: No, Zonta is not. A lot of those would be federated at the local or provincial level.

Ms Paddy Torsney: All right. That part I didn't really understand, so I thought I'd just check that.

I think it's interesting that the one thing others have hit on, but you hit on more specifically on page 2, is that the therapeutic and personal records were not scientifically gathered or tested for the purposes of crime detection. That's something people have implied, but I think you articulated it the most clearly. I appreciate that.

We have had terrific testimony, and it's great to have you as part of that. I think part of the reason we're having very few questions for you today is that we're quite certain we understand the issue from your perspective.

Ms MacGee: In some of the research we've done with even our local rape crisis centres, and discussing with them what is happening and whether women are willing to go forward, of course we're being told that they are not. With respect to the numbers, if we had 6% in 1993, it's likely less now because there's less security in safety for women within the justice system.

On top of that, some of them are saying they are no longer taking notes, so the records will not be available. I think that is quite sad too, because therapy is so important and notes are important for therapy.

Ms Paddy Torsney: In fact it's catching therapists who are registered in some of the provinces in a terrible bind. They have an obligation to keep records.

Even beyond all those records, I think what's extremely disturbing is to think that all the employment records, such as the person who once reported me for not wearing stockings or something, could be dragged up. Personal journals and diaries from when you were six years old could be called into evidence. I think people really see that as an incredible violation of privacy. I think it brings the issue very clearly to all of us.

Ms MacGee: It's much beyond the therapeutic records. It's a very broad perspective of records that can be called.

Ms Paddy Torsney: I really did get reported on an employment record once.

The Chair: Thank you, Ms Torsney. Mr. Maloney.

Mr. John Maloney (Erie, Lib.): Madam Chair, this may be an unfair question. If it is, please intervene.

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To date, most of our presentations have been very much in favour of the legislation. In fact they've taken the position you did: they'd prefer that no therapeutic records be submitted. But this looks like a second-best or fall-back position.

We have not really heard from any critics of this bill yet, but I think we probably will. You probably know who your critics are and the arguments they advance. Am I assuming too much there?

Ms MacGee: I'm not sure whether we know.

Mr. John Maloney: I'm just trying to think what they are going to tell me against this legislation and what your response is to that legislation.

Ms MacGee: I think you're likely going to hear that some groups feel women have great imaginations and are drumming up memories that aren't real and don't exist. I think that's the major thing you will be hearing.

Therapists work with women in this situation. It's so horrendous to be put in a situation of having been sexually assaulted and then trying to deal with it. You don't want anybody to know; you want it to be quiet. You may not even go for help; you may try to keep it within yourself. Then you make this brave step to go to a therapist. I suppose for some women they may feel there is something wrong and they don't know quite what it is, and the therapist is trying to help that person bring these things forward.

As I've said before, maybe there can be some false memory syndrome. I'm not sure. But at present I really have not seen anything written that has proven to me this is a severe problem. It's what I would call a ``way out'' kind of thing that might happen.

Mr. John Maloney: You say you're not aware.

Ms MacGee: No, I've certainly been aware of it. In some court situations they have tried to prove that, but in Canada I have not really seen very much on it.

Mr. John Maloney: Is it in the United States?

Ms MacGee: Yes, it's always from the United States that we hear these things.

I don't know what kinds of organization or whether it will be organizations that will come to you. I'm not sure. It may be individuals.

Mr. John Maloney: Thank you.

Madam Chair, I'm wondering whether in our presentations we can get a little more balance. I'd like to hear from some of the opponents.

The Chair: As a matter of information, I can tell you that the Criminal Lawyers' Association of Ontario will be here tomorrow, as will the Canadian Council of Criminal Defence Lawyers. We also had a representative of the board of directors of the False Memory Syndrome Foundation, or whatever it is, the other day. I think we will get the balance you're looking for. We'll get it in spades tomorrow, I'm sure.

Mr. John Maloney: Thank you.

Ms MacGee: I'm not sure that the Criminal Lawyers' Association is solidly one way on this. I've spoken with some criminal lawyers who feel this bill is very good and gives them good guidelines.

The Chair: Yes, and in fairness, they have been part of the consultative process here. I think you'll find they recognize the problem, but we'll see tomorrow. I don't want to prejudge what they're going to say, but they're not sending any pikers. They're sending Bruce Durno, who's pretty good and pretty reasonable. He's not from Windsor, but he's almost as good as someone from Windsor.

Mr. Telegdi, did you have a question?

Mr. Andrew Telegdi (Waterloo, Lib.): With respect to the phrase ``false memory syndrome'', wouldn't it be recovered memory and then it would be up to somebody to prove that it was false?

Ms MacGee: False memory syndrome is a catchphrase that's been put on this. These are memories, definitely, and I suppose you would have to prove they were false.

In all truthfulness, at least from most of the articles I have read on this, I think the type of sexual assault involved has been incest, rather than with sexual assault as I have been talking about it today, which seems to be a more difficult one to deal with. Maybe someone's going to come and give you something better on that.

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Mr. Andrew Telegdi: We had a presentation on it. The person making the presentation said right off the bat that he's talking about something that's very narrow and would represent very few of the cases that would ever go to court - a very small percentage.

In some ways I'm trying to understand how that could be coped with. During the course of a trial I would suppose that if the connection was made that this was a recovered memory, then obviously the therapist and the methodology used would become very important, because that would link the individual to that memory.

I wonder if it would somehow be possible to very narrowly be able to get at that. If that's the case, depending on how good the therapist is in making that connection, then it would seem to me it would be a very difficult kind of thing to do. With the exception of that, then, you could just shut the doors and say no, you will not subpoena records of therapy if it's just helping the individual to basically cope and go through the process.

One of the things I wonder about is that so often when you have some individual come to you in a crisis situation - and it usually is some kind of crisis situation; the person is emotionally upset and they're trying to cope - virtually all of the time the therapist's first priority is trying to get that person to be able to just cope with coming back the next day. So the therapist is never set up for trying to determine whether what the person is telling them is the truth or not. They're basically just helping them cope.

I guess it comes into clash with the courts when their test is totally different. They're just curious about determining what has happened at the particular time, and whether it's essentially rape or not rape. The therapist doesn't have that as their first objective when they have somebody in their office who is just on the verge of falling apart, or not being able to keep it together.

What I'm trying somehow to figure out is if it's identified...and I imagine it would be. The police, going through their initial investigation before charges are laid, will know if there was a recovered memory involved. If it's the case that it wasn't through a recovered memory, then there's no way any therapy records should be opened.

So as I see it, the whole process of therapy is enabling the individual to function. It's not to determine what happened in a particular situation at a particular time.

Ms McGee: I think that's what we've tried to emphasize, that the therapist is there to help someone heal. It's not their purpose to say to this woman that she should lay charges and go through a trial.

I mean, that's not their priority. Their priority is to work with the assault victim and try to help them heal what they've been through. It can take a very long and extended time, but they are not doing this in order to present evidence in court. That's not the purpose of it at all.

I don't know what to say beyond that. I agree with what you've said.

The Chair: Thanks, Mr. Telegdi.

Madam Gagnon, no more?

Any other government questions? Mr. DeVillers.

[Translation]

Mr. Paul DeVillers (Simcoe North, Lib.): No, that's all right.

[English]

The Chair: I want to thank you very much for giving us your time and the benefit of your research. We appreciate hearing from you. I think it's been a brief but good afternoon. Thank you very much.

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Ms MacGee: Thank you very much for allowing us the opportunity. The council works very hard on justice issues.

The Chair: I can see that.

Ms MacGee: We've come with a number of things. We will certainly watch the progress to see what happens. We really do hope it will make it through and be adopted.

The Chair: As I said, if it doesn't, it won't be because of this committee's lack of attentiveness. We've been quite vigilant.

We are adjourned.

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