[Recorded by Electronic Apparatus]
Monday, March 17, 1997
.1637 
[English]
The Chair (Ms Shaughnessy Cohen (Windsor - St. Clair, Lib.)): Our witness this afternoon is Susan Chapman, a crown counsel. She's here all the way from Toronto.
Are you here as a representative of the Ontario government, of their actual office?
Ms Susan Chapman (Crown Counsel, Crown Law Office - Criminal, Ministry of the Attorney General of Ontario): Yes, I am. I'm here as both crown counsel and on behalf of the Attorney General of Ontario.
The Chair: Okay. Let's hear what you have to say.
Ms Chapman: First of all, I want to thank you for permitting me to attend and to make a presentation. As indicated, I appear on behalf of the Attorney General of Ontario and also as crown counsel.
By way of background, I've been involved in hundreds of sexual assault prosecutions, from the investigative stage through to trials and appeals. I have also been involved in a great deal of the records litigation that has gone through the courts, as well as having some involvement in the consultation process.
First of all, I would like to indicate that I do not want to repeat too much of what has been said by other witnesses. I want get to the crux of your concerns, but I cannot emphasize enough that there has been a proliferation of these defence applications to access the whole panoply of private records of sexual assault complainants. It's a trend almost exclusive to sexual assault prosecutions. It has the real effect of intimidating victims out of coming forward or out of participating in the process. It therefore presents a very serious law enforcement problem.
The trend started in about 1992 or thereabouts, and I think it can be directly traced to Parliament's redress of the sexual history debate. At that time, the Supreme Court of Canada struck down the then so-called rape shield law. Parliament then enacted the new rape shield law, which has so far withstood scrutiny in every court that I am aware of - and I've monitored it quite closely. But when that happened, when that door shut, this door swung wide open.
So although I know the other witnesses have emphasized this, you have to put it into that context. In about 80% of the cases, defence is seeking access to prior sexual history, one way or another, in the context of these records. That is very much the background theme, and when it started to happen, it happened primarily in Ontario and British Columbia. Since the Supreme Court judgment, however, it has been happening across the country.
When it started to occur in Ontario in 1992, we struck committees to consult with all types of groups, from police to Children's Aid Society workers to therapists to defence lawyers to victims, etc. We were trying to come up with positions that we could take in court, that were principled, and that protected very complex issues involved in these cases.
.1640
This is a seemingly simple issue, but in Ontario we've made efforts to try to address and redress the serious concerns that have arisen. Of course, in Ontario, as in many provinces, there's a great deal of provincial legislation that has been enacted, such as mental health legislation or hospital records legislation, etc. But as you are well aware, being provincially enacted, that legislation cannot govern federal criminal proceedings. So although there is an obvious shared commitment in all of the provinces to protect the confidentiality of certain records and certain circumstances, all of that is for naught in the criminal context.
For that reason, in our view, it's essential that Parliament acts, and that the democratic will is given expression. We therefore support the way in which it is given expression in Bill C-46.
I can also indicate that at the recent meeting of the federal, provincial and territorial ministers of justice, every attorney general in this country shared our position and supported Bill C-46.
The other witnesses have no doubt outlined to you the historical context in which there have always been extra arbitrary barriers to justice presented to women and children in sexual assault prosecutions. Whether it be unique requirements for corroboration, for recent complaint or for accessing sexual history, there have always been these arbitrary barriers. As I indicated, this one eclipses all of those because it encapsulates all of those, and because it's a lot more. Those are the very reasons why these records are sought and obtained.
So I know you now appreciate that important context, but I want to also outline to you another important issue that may not have been dealt with as much by the witnesses. There is something else that is extremely unique about this trend.
In criminal law, accused persons are traditionally not entitled to pre-trial access to information in the possession of third parties. In other words, if I've been robbed and I come home and tell my husband that I've been robbed, and if he writes a letter to my mother about how upset I am, the defence lawyer can come to my husband and demand to speak to him about what I said. Furthermore, the defence lawyer can demand to have the letter my husband wrote to my mother. But my husband can tell the lawyer that he's not going to get it, not on his life. If he wants my husband's evidence, the lawyer can call my husband as a witness, as part of the defence case. If the lawyer wants my husband to bring the letter, he will bring the letter, explain it, and contextualize it, but that is the only way the lawyer can access my husband's evidence. All Canadian citizens owe a duty to the criminal justice system, but that duty is to attend in court and give evidence.
Originally, I was opposed to this legislation because it's the creation of a search warrant and it's unique, but the Supreme Court has already done it. So now it's a matter of structuring the criteria by which that search of a target, such as a sexual assault crisis centre, may take place. What has happened is that the subpoena has been converted into a search warrant, yet subpoenas are traditionally treated like stationery: you go down to the local court house, you list the names of the witnesses that you want, everything is stamped by the clerk, the subpoenas are issued, and the people attend.
Frankly, that's what the current regime is under the Supreme Court of Canada. Likely relevance is an extremely broad-based standard. Everything you've done in your life potentially reflects on your ability to perform as a witness. Has the defence ever had pre-trial access to everything you've done in your life?
.1645
For example, defence lawyers say mere relevance should be enough. If mere relevance is enough to justify an intrusive search, then if they request that we should put wire-taps on every witness's phone, perhaps that should be justified.
Why should they have to show there is something of importance that might come out of it? It's going to be relevant because it's what the person in question said. It's going to be an actual recording of what they said. On the defence scheme, that's enough: this is a witness, and we'd like to know what's going on over there. That is not permissible.
So when people talk about the catch-22 that defenders are in, we have to put it into that context. What we're saying is that, for the first time ever, they have been given the power of search and seizure and are asking that there be no parameters attached to that power, that no restrictions be placed on it, that no definition be given to it.
Our reaction is that right now, under the Supreme Court regime, they have a broader power of search and seizure than do the police and the Crown. I could never get a search warrant to find out what material there might be out there to reflect on the general credibility of a witness. I could never obtain that, yet the defence now can. All we're asking is that it be written. It's already a radical departure from ordinary operation of criminal law. We're asking for this imbalance to be corrected somewhat by saying, all right, the defence has now been given the power of search and seizure, but with rights come responsibilities.
That right, that power, is a very powerful one. It has a huge impact on people's lives, on their privacy, on their equality, on the operation of their business. For all of those reasons, there have to be some threshold requirements. In the hundreds of cases that have been brought in Ontario, our experience has been that the mere relevance standard has resulted in production in virtually every case. As I've indicated, then, mere relevance is clearly not enough.
Canadian citizens understand this issue clearly. The fact that you are the victim of a crime, or the fact that you're a witness in a criminal proceeding - perhaps through no fault of your own - does not mean that you necessarily and automatically relinquish all of your privacy rights. There has to be balance. There is no balance right now; it's entirely one-sided. Therefore, all we're asking for is some restoration of balance. That's what this legislation seeks to do.
This piece of legislation is quite complex, but having worked on this issue for years, I'm very sympathetic to that complexity. A very complex series of interests are at stake and need to be balanced. For that reason, we have to see it both that way and in the context of what I have spoken of.
There are a couple of specific amendments that I wish to refer to, but just to re-emphasize that there are interests other than those of the accused at stake in the criminal justice system. The accused's rights must be protected and the presumption of innocence must be preserved, but why must there always be new and arbitrary demands made of a particular category of victim? It's simply not fair. When these fishing expeditions are permitted, we find that there is so much overfishing that the stock of witnesses is soon depleted.
Frankly, women are therefore being deterred from coming forward or are being deterred from seeking therapy, or they have to make a choice. Having that double victimization going on in the process is really an intolerable situation. That kind of thing can clearly bring the administration of justice into disrepute.
Again, to reiterate the likely relevance standard, I'll refer to the Carosella judgment from the Supreme Court of Canada. If those records were determined to be useful to the accused in that case, then there are no arguments available to us to resist in any case. I mean, she agreed to the production of the records. At the outset of the interview and in court, she said she told them basically what she was telling the court. She went there because she was just a person from a smaller town and didn't know how to go about reporting a situation of abuse. She and her husband decided that the best thing to do was to go down to the local crisis centre and find out what they were in for: do you just present yourself at the counter at 55 Division, or how does it work?
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A one-hour-long interview takes place. Given that she has consented to the release without any knowledge that they had already been destroyed would suggest that, if anything, they were going to be helpful to her, and yet the Supreme Court said clearly that would have been of assistance to the Supreme Court and it was necessary to throw out the case.
So in light of these judgments, it's essential that there be some structure around this issue. The Supreme Court is going to be very reticent to erect quasi privileges. It is up to Parliament to recognize and give expression to those values.
The courts are very much focused on the rights of the accused person, and rightly so to a large extent. They're not going to go about creating privileges. That is something that is a reflection of the democratic will, that there are other important interests at stake, and that's why it is essential that Parliament enact this legislation.
Furthermore, I'd like to indicate that therapy records have minimal utility in the criminal trial process. To use the cases from the Supreme Court, O'Connor was a very lengthy trial, with multiple victims. One or two questions were asked based on the records. In the companion case of Beharriell, there was no reference ever made to those records. So what you have is a process that will intimidate people from coming forward or from seeking therapy and yet very little or no use to be made by the defence.
In terms of the possible amendments to the legislation, I have three proposals. The first one is probably the most difficult one, but it's the one that has been reiterated in the briefs of others, so it's there for your consideration.
As I've indicated, the likely relevance standard threshold is not sufficient. I believe the intent of the legislation, when you read proposed subsections 278.5(1) and (2) together, is that the standard be ``likely relevance'' plus ``necessary for full answer and defence''. That must be more explicit.
As I've indicated in regard to likely relevance, well, everything you've done is potentially likely relevant. But the point is, if it is extremely remote that it reflects on your credibility and yet it's very intrusive, there has to be room for that. Under the current regime, there's no room to consider how intrusive. If it's even remotely relevant, you're there, with no balancing of interests.
So the likely relevance standard, I'm afraid, will telegraph to the lower courts that it's business as usual. Therefore, it's necessary to show that full answer and defence is what we're talking about here, so let's call it what it is. That's what I say the threshold should be.
Granted, that threshold, as I say, is modified by proposed subsection 278.5(2) and also by the fact of the impermissible grounds. This is a small amendment, but where you say a list of factors that on their own -
The Chair: Could you slow down just a little?
Ms Chapman: Sure.
In terms of the changes, basically the first one, as I say, revolves around the threshold test. The global submission I would submit is that ``likely relevant'' should be substituted with ``necessary for full answer and defence''.
A minor amendment to proposed subsection 278.3(4) is that in talking about the impermissible grounds, you should say, ``not one on their own'', or ``the cumulative effect'', or ``in concert with the other factors'' - that this is not enough. So you establish that the record exists and that she sought therapy - that's not enough, so the cumulative effect will not be enough.
A more important point about this provision is that it talks about assertions, mere assertions, the point being that if you can establish that there is or might be something in those records, that is enough. But you can't simply go to court and make a mere assertion; I think everybody would agree with that.
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So though the defence has, I know, expressed some concerns about this provision, the contrary position would be that mere assertions are enough - i.e., I merely assert that she sought therapy, I merely assert this, with no evidentiary foundation. So there has to be some clarity. This is the crux of the provision.
That phrase, ``likely relevant'', is sprinkled throughout the provision, so similarly it would have to be changed in the other places as well, such as in proposed subsection 278.5(1).
The second point is with regard to proposed subsection 278.6(2). This deals with the production hearing and the ability of a trial judge to hold an in-camera hearing when deciding whether or not to order production to the defence. At that stage there should be clarification as to who the parties are that take part in that. It should not be the Crown and it should not be the defence because neither have a right to access that information at that stage. Rather, it should be the complainant or witness and the record holder and the record author. Those should be the people assisting the judge in making a decision about the nature of the record and its usefulness. That's a very important point.
The third and final amendment I would recommend is in proposed subsection 278.7(4). It says that if the record is produced to the defence, it may only be produced to the Crown if in the interest of justice. I cannot conceive of a situation where it would not be in the interest of justice if the production was already being made to the defence not to have the Crown view it as well. Again, it's coming from a third party. It's an adversarial system, and the point is that the defence checks us and the Crown checks the defence, and we want to be able to see as well that if they're going to be making use of it, it's not taken out of context etc. So it's essential that if production is ordered, it's ordered to both parties.
Those are my basic submissions. I hope to answer any questions you might have.
The Chair: Thank you.
[Translation]
Ms Gagnon.
Ms Christiane Gagnon (Québec, BQ): I have no questions. I will look over those comments.
[English]
The Chair: Mr. Hanger.
Mr. Art Hanger (Calgary Northeast, Ref.): Thank you for your presentation. It certainly cleared up a few thoughts in my mind.
I do have some questions. I'm still curious about this whole aspect of disclosure. Even if the Crown receives some record, I would assume that if the witness so testified and the investigators received certain information that may be relevant to the case in some record, the Crown would then make application to obtain that through warrant. Is that correct?
Ms Chapman: It would depend. Of the records we're talking about, very rarely would the Crown access them.
Mr. Art Hanger: So the Crown would have no need and would rely strictly on the testimony of the subject who does the complaining.
Ms Chapman: That's right. I think that's an important point to clarify. The defence is making the submission that we have such use for these records. In a nutshell, everything that is good for the Crown in these records is inadmissible and everything that's good for the defence is admissible by virtue of the rules of evidence. What I mean by that is that if there's a prior consistent statement, and I use the word ``statement'' very loosely, that is not admissible, because that's called oath bolstering. If there's a prior inconsistent statement, then the defence can use it. Those are the rules of evidence.
So we would not get the records, and besides, we like to preserve some dignity for our witnesses and not undercut the support networks they need at the time of trial. They need confidentiality and to be able to talk to their spouses or therapists, so it's very rare cases in which the Crown accesses those records.
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Mr. Art Hanger: Relating back to some of the things you said, the witness or the person who manufactured that particular record would himself or herself be the one giving testimony.
Ms Chapman: Do you mean if the Crown were to access the information? As I indicated, rarely do we seek those records. In the odd case we do, and where we primarily do is in an institutional abuse case.
So when you have something that stemmed back years and related to multiple accused, multiple complainants, then what you do is execute a search warrant, where you've gone before a judicial officer and outlined your grounds for reason to believe that there is actual evidence there and of course supported it by evidence. You execute a search warrant on the local provincial archives, and you obtain all that information.
Mr. Art Hanger: You make reference to three or possibly four amendments that you would like to see added. One aspect concerns likely relevance. You say that this is dotted throughout the document. If these changes are not made, where do you put the bill?
Ms Chapman: I'll be in court the next day arguing the intent of the bill. When you read proposed subsections 278.5(1) and 278.5(2) together, it already refers to likely relevance and necessary for full answer and defence. But the person on the other side of the courtroom will be saying the other, so we're going to have a lot of litigation. It's better to have clarity, so that's what I'm seeking.
Mr. Art Hanger: But putting the bill forward even in this form is not necessarily going to correct the problem, then. Is that what you're saying?
Ms Chapman: I think it goes a very long distance towards correcting the problem. I'd just like to see clarity in order to avoid unnecessary litigation.
Mr. Art Hanger: Agreed.
That's fine. Thank you.
The Chair: Thank you. Mr. DeVillers.
Mr. Paul DeVillers (Simcoe North, Lib.): I wish to have clarification on the last amendment to proposed subsection 278.7(4). Basically, you're suggesting that we remove the judicial discretion. You're saying it should be made available to the Crown in all cases.
Ms Chapman: Precisely.
Mr. Paul DeVillers: The defence counsel association, which we heard from last week, was concerned about proposed subsection 278.2(2), the waiver required for disclosure when a Crown might have information that the defence doesn't and it can only be turned over. They felt that was not fair or equitable. What's your opinion on that comment?
Ms Chapman: First of all, it's the regime set up by the Supreme Court already in O'Connor. If the records come into our possession, such as in a particular case in which a vindictive boyfriend dropped them off, then they were obtained without our consent, and under the Supreme Court regime there is still a residual privacy interest there.
The way the Supreme Court dealt with it in a case I dealt with - it was just a leave application, but all nine judges sat on the leave application - was that then it should go to the second-stage hearing. In other words, if the Crown has seized it by search warrant, they said relevance is established, now you go to this editing. So that's already the Supreme Court's position.
All we're saying is back it up a bit more if it has come into our possession. In the archives example we seize the materials because we need to know that Johnny was actually at that school in 1962 and we need the records to confirm that. But when you execute the search warrant, there will be an overseizure of material. That's almost an inevitability in an institutional abuse case.
Does that mean that because we have tried to forward the investigation in that way, the privacy of the individuals is utterly relinquished? I would suggest not. I would suggest that there should be still some avenue for them to obtain that information.
Having said that, as a practical matter it will be much easier for the defence because to get the warrant, we have to do an information to obtain, which is a document that goes before judicial officers setting out the relevance of the material, and if I were defence counsel I would simply file that. They certainly have access to it.
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Frankly, as a practical matter, it will be easier once it's come into our possession, but that should not be the end of it vis-à-vis the complainant. She is a person, an entity distinct from the Crown. Sometimes we may support the defence and say that the records are necessary, and she may not. We may compel her against her will to testify because it's an exceedingly serious case. We're not always ad idem, so her distinct interests must be protected.
Mr. Paul DeVillers: Lastly, in your experience as a prosecutor does the credibility of a complainant in a sexual assault case come under more careful scrutiny than the credibility of a witness in a physical assault case?
Ms Chapman: There's absolutely no question about it. That is true. I cannot imagine anybody who has attended the criminal courts denying that. I really cannot.
Mr. Paul DeVillers: I was trying to get that admission from the defence counsel and was unsuccessful.
Ms Chapman: Statistically, you just have to look at the cases. Where is this happening? To be a prosecutor, we all know that we do the sexual assault team for a few years downtown or whatever - we have a specialized team - and burnout is phenomenal. Our victims are traumatized and intimidated. It's hard work.
So there's no question that they're grilled and made to pay a purchase price for justice not asked of other witnesses.
Mr. Paul DeVillers: Thank you.
The Chair: Ms Torsney.
Ms Paddy Torsney (Burlington, Lib.): First of all, as I am sure most of my colleagues will agree, we're all very happy you're here, because the defence people who were before us the other day certainly painted quite a different picture.
In fact, it was interesting that you used the wire-tap issue. That was their example of how we could really trust judges to be extremely sensitive with this information, because, you know, they hear these very sensitive cases on wire-taps and it's basically the same thing.
The other thing that I thought was remarkable was their suggestion that the groups that have spoken up in favour of this bill and have identified a decrease in reporting or decrease in follow up...you're nodding, so I assume you think this is somewhat relevant. They suggested that this was not the case, because the courts were full of cases.
Ms Chapman: Unfortunately, a great deal of sexual abuse does go on. I think a lot of very well-meaning people want to believe it doesn't, but unfortunately it does. We're seeing a very small percentage of it. The Supreme Court of Canada expressly acknowledged this in the Canadian newspaper case, for example, where they were contemplating press bans on names of complainants in sex assault cases. There's no question that sex assault is a grossly underrated crime. There are lots of cases out there and mostly they're very hard fought. You don't get a lot of guilty pleas in a sexual assault case.
Ms Paddy Torsney: Yes. I thought that was an interesting piece of logic.
I wonder if you could tell me why you think that last sentence is in proposed subsection 278.7(4).
Ms Chapman: I'm afraid I'm not sure.
Ms Paddy Torsney: Maybe we'll ask our drafters.
I think your suggestion for proposed subsection 278.6(2), about who the parties should be, is a terrific suggestion. It's not that the others aren't terrific as well, but I wanted to identify the fact that you're the only person, I think, who brought that one forward.
Finally, are civil cases different from criminal cases? Clearly they're different, but is there something that's a different threshold, or is there something else going on? Because in the whole discussion about cases that are very old, and accusations against parents or brothers or whomever, sometimes referred to as false memory cases, or recovered memory cases - God, it's hard to be politically correct; those ``kinds'' of cases - there have been some wins, I think, in civil cases. There's something going on there that I think is different.
I wonder if you could identify that, because it's getting a bit messy.
Ms Chapman: I'm no expert on civil law. Actually, on the same day that the Supreme Court released the judgment in Carosella, they released a landmark civil judgment on records, wherein, as I understand it, they basically extended the O'Connor judgment in the civil context.
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But I can see a lot of additional arguments for relevance in the civil context. That is an issue largely about damages and about harm done to the individual: ``Is the therapy you're involved in relevant to the harm done to you?'' ``Yes''.
What we're trying to establish in the criminal case is not - it would be impermissible for me, really - to lead as part of my case with, ``I'll bet this was very upsetting for you, and terrible; you haven't had a proper sex life with your husband as a result'', etc. That is sentencing. So in the civil proceedings that's much more akin almost to a sentencing-type proceeding.
Ms Paddy Torsney: Okay. Because that's where a lot of the people who subscribe to the theory that there is false memory syndrome have some concerns as well.
We heard that some of the reasons that crowns have these records is that victims are apparently signing waivers, or handing them over, or thinking that they are necessary to give over to crowns. There is a really unfortunate practice that's going on, whether it's with the police or whether it's with crowns. This bill is needed to stop that practice of their handing them over, of their not understanding what their rights are and then of the crowns coming into possession of these records.
Ms Chapman: It is a big problem. Frankly, if we breach somebody's privacy we're subject to a civil claim, and yet if we withhold some relevant information we have major ethical duties that might look for discipline at the law society. So people don't know which side to come down on in light of the existing law. It's a greater reason for a need for clarity in the law, so we know what we're doing. Police officers have these forms that say: ``Do you agree to release these documents to me?'' Some forces have agreed not to do it.
Frankly, she's not always provided with the information that she needs to know, such as the fact that's it's going to help her, it's going to go in, or the fact that the person who has allegedly abused her is going to be the first person to be looking at these. Very often she's not given those pieces of the puzzle, which any person who'd want to make an informed choice about whether or not to hand it over would like to know before doing so.
So it is a big problem, but I don't really blame the police, because they're trying to do their job. They're trying to abide by what the Supreme Court has told them to do. What we all need is just clarity on when and how.
Ms Paddy Torsney: I've just thought of a very last question, Madam Chair, if I'm allowed.
If we change proposed subsection 278.6(2), would there be as much need to do what you suggested, and just have the complainant, the record holder and the author? Would there be as much need for legal aid for the victim as there is without that change?
Ms Chapman: Perhaps not. That's the approach taken by the U.S. Supreme Court, incidentally. In their in camera hearings they have just the record holders and the complainant explaining to the trial judge what the nature of the records are, so that's where that has come from. Frankly, that kind of participation in the process would go a very long way in resolving some of these problems, including the representation issue.
Ms Paddy Torsney: Thank you.
The Chair: Thank you. Mr. Maloney.
Mr. John Maloney (Erie, Lib.): On that issue as well, we've heard from many witnesses that funding should be made available for victims in these situations, through legal aid, etc. What do you feel about this, and what does your boss feel about this?
Ms Chapman: On behalf of the Attorney General of Ontario?
Mr. John Maloney: Yes.
Ms Chapman: To be quite frank, I didn't really canvass this issue at length, because it's not part of the bill. It's not something that I really sought specific instructions in relation to.
I can tell you what's going on in Ontario. People are not getting legal aid to represent themselves on these applications. There has been some committee work to see whether or not there should be changes in the Legal Aid Plan, whether the area committees that make the decisions on who to give the certificates to should be giving guidance. I don't think there's a final resolution on that issue.
Mr. John Maloney: Are you prepared to tell us your personal opinion?
Ms Chapman: I'd better not, because I'm only here in one capacity, although it parallels 99% of the way.
The Chair: Thank you.
Do you have any other questions, Mr. Hanger?
Mr. Art Hanger: Yes, I do have one, about the police.
I recognize that across this country there's quite a difference in the way complaints are handled by police departments, and some of them are not handled very well.
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I know from my own experience that crowns have always sat down with police departments to establish some good procedures that are tried and true, if you will. With that agreement the cases have been quite successful in court, whereas in other departments its seems as though they're very much resistant to following and setting aside some people to train as experts in this whole area.
What would your department on a broader context do, not so much relating to this bill, but certainly reflective of the bill, in training or helping to establish some consistency in this whole area?
Ms Chapman: When I do police training at the police college in Ontario, rather than writing up the forms on disclosure and signing on the line, I have asked the officers to try to explain to the complainant that, first of all, she perhaps should seek independent legal advice.
Again, it's a very difficult, awkward position we're in, right? The victim comes in. She tells us she's been victimized: ``By the way, you have to get yourself a lawyer''. It's awkward. In fairness, she should be told that she has the right to counsel. She may have independent interests that are not reflected. We are not her lawyer.
I always have to make it very clear that we are not her lawyer. I might have to end up taking some position that's quite contrary to her interests. If she does produce those records to us, they will be handed over to the accused, because the Supreme Court has instructed us that we must tell them at least that. Nevertheless, I'm afraid there is a real inconsistency in approach because there's a great uncertainty in the law.
Mr. Art Hanger: I think that has to be really addressed, for one.
As well, I don't believe this bill, or any bill like it, is ever going to address the process that's going to take place after conviction. I would suggest that there will be more appeals. The victims in many respects will be dragged through this process time and time again. I see that happening right now, let alone having something now that the defence is going to challenge in a more aggressive manner.
Ms Chapman: There's a huge amount of litigation on this issue right now. You can't walk into a courtroom in this province and not hear this going on. I don't think this is going to add to the litigation. It may provide a focus to the litigation. Clarity is always a good thing for the law. It's very important. Right now we sorely lack clarity.
Mr. Art Hanger: But what you're telling me - and you've probably already come to the same conclusion - is that this really isn't going to change a thing.
Ms Chapman: Whoa. I don't -
Mr. Art Hanger: I'm not saying...
Let me finish; don't get into a panic, Ms Torsney.
The Chair: If you want to speak to another member of the committee, do it through the chair, Mr. Hanger.
Mr. Art Hanger: When it comes to the matter that, sure, this is going to make it a little easier and protect the victims, those making the complaint, I agree. But when it comes to the process that's going to take place afterwards, nothing is going to change.
Ms Chapman: I'm not sure what you mean by the process afterwards.
Mr. Art Hanger: The appeals, the arguments that will still be focused, whether it be on this particular bill or otherwise, because of the lack of clarity, if you will, in this piece of legislation, which you pointed out. These arguments will continue, and the appeals will continue from here until who knows when?
Ms Chapman: I suppose the accused always will have the right to appeal. I think, when Parliament acts and provides a piece of legislation to govern the procedural and substantive law for trial judges and counsel and the courts, that this reduces litigation; it doesn't add to it - including Bill C-46.
Mr. Art Hanger: I would hope your predictions are true on this particular bill.
The Chair: Mr. Kirby.
Mr. Gordon Kirkby (Prince Albert - Churchill River, Lib.): The witness has already answered my question.
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The Chair: Ms Chapman, it has been very helpful to have you here. We don't very often hear from crowns. In my view, that's problematic. On other pieces of legislation where we've invited attorneys general to send us a real, live crown attorney to talk to us about it, the invitation has been declined.
So we're very grateful to have had you here. Thank you. It's been very helpful.
Ms Chapman: It's been my honour, thank you.
The Chair: The meeting is adjourned until tomorrow at 9:30 a.m.