Protecting Private “Third Party” Records in Cases of Male Violence against Women – Recent Developments in British Columbia.

On March 21, 2018 in the Supreme Court of BC there was an important victory for Feminist Rape Crisis Centres and all women seeking their confidential services. The counselling records of Kamloops Sexual Assault Counselling Centre were protected by a Supreme Court Order. We were encouraged about the new case law that advances protections for all women seeking a safe place to talk about the violence committed against them.

This advance comes in a long line of campaign efforts by Canadian women’s groups to protect our records. For decades now, we have argued that the whole point of the accused trying to get women’s records is soaked in myths and stereotypes surrounding sexual assault and puts women’s credibility on trial.

Applications to obtain access to rape crisis centre records are similarly loaded with sexist myths. Typically, they will suggest that we “improperly influence” a victim into believing she was raped when she wasn’t, or that we are on a man- hating political agenda to maliciously and unfairly persecute innocent men. Some accuse us of simply lacking the professional credentials to do competent rape crisis work. Regardless of which angle they take, the applications attack our fundamental value of confidentiality: to provide a refuge where women can reflect openly on the violence we experience.

We have asserted and won in law at least that privacy is not just an individual victim’s right but a constitutional Charter right which is fundamental to women’s equality — to have access to a safe space where you can tell your experience of male violence is at the very core of every rape crisis centre’s existence. And it is exactly why rape crisis centers have decided to so fiercely defend our records.

Many people think that because of past advances with the Rape Shield Law, (Mills, O’Conner, and the Wigmore test) that rape crisis centre and transition house records are protected. But at Vancouver Rape Relief we know of 14 cases in 7 years in B.C. alone where third-party record holders have been subpoenaed. Rape Relief was involved in two of these cases. These 14 cases are just the cases that we are aware of. These kinds of applications are not newsworthy, so it’s likely the number is higher — a troubling trend for which this is a step forward but by no means the end.

When Vancouver Rape Relief was most recently subpoenaed, the application was not only for the confidential peer counselling records of a 14-year-old girl who had been raped by an adult man but also for the records pertaining to meetings between workers, previous drafts of the girl’s police statements, handwritten materials, appointment times, meeting notes, resumés of two workers, their certificates of degrees, diplomas or seminars attended, proof of training for working with children, and our training records that reveal our policies, procedures and ideology.

Vancouver Rape Relief was very fortunate to have kept a library of our collective efforts over the years to protect records, and to have retained the excellent counsel of Gwendoline Allison of Foy Allison Law. The application took place over four days from November 28 to December 1 2016, before the Honourable Madam Justice Fisher. In the end, Justice Fisher ruled in Rape Relief's favour and refused any disclosure. We were able to protect our records, and our submission was integral to achieving that decision. We were pleased that the outcome in the written reasons for judgment were so strong in upholding the laws to protect third-party record holders that we knew other rape crisis centers would be able to apply them in similar kinds of situations. The judge wrote:

"women at their most vulnerable need to feel secure and that they can freely discuss their fears in a safe, secure and confidential environment. Rape Relief openly states that its services are confidential. To successfully assist women, Rape Relief must ensure that women can trust Rape Relief to and be in a safe environment".

Justice Fisher held that it would harm Rape Relief specifically, in addition to the harm to the individual girl, to have to produce the records, and that we could not function if the confidentiality of our services and the work we do with individual callers was not protected.

Our decision was used in court twice during the spring of 2017. In October 2017, we shared our affidavit and this judgment in a presentation at the B.C. Society of Transition Houses Annual Conference. Because of our workshop, when another Interior sexual assault centre was subpoenaed in January 2018, they were able to rely on our case.

A new development also occurred when records were sought in a civil sexual assault case. The master, in declining to order production, quoted extensively from Rape Relief’s affidavit stating:

“Ms. Russell deposed that V.R.R. offers callers “a refuge, a sanctuary, a place where they can temporarily escape from the violent men in their lives, and where they can plan a future.” In some cases, V.R.R. will work with a woman in an advocacy role, for example, assisting her in her interactions with police. She described confidentiality as “the core to the relationship between Rape Relief and its callers”:

Ms. Russell added that V.R.R. could not function if the confidentiality of its services and the work it does with individual callers is not protected:

First, there would be significant harm to individual callers. Women who come to the rape crisis centre rely on the confidential nature of the relation. A woman would not be able to feel safe in the transition house if her communications could not be kept confidential from the man who assaulted her. She would not be able to receive the help she needs. She will be silenced and re-victimised; for which Rape Relief would be partially culpable. Second, there would be significant harm to Rape Relief and its integrity as an organization. Rape Relief would not be in a position to offer a safe and supportive environment to its callers. Rape Relief will have to tell its callers that even though the woman is at her most vulnerable, Rape Relief cannot be sure that her private thoughts will remain confidential from the man who assaulted her. Alternatively, Rape Relief may have to tell a woman that she is safe and supported so long as she does not discuss what happened to her.

There is a further harm to Rape Relief as an organization. Rape Relief is a well-recognized equality-seeking group. In that role, Rape Relief works to hold police, government and agents of the state accountable for actions towards women. In its work, Rape Relief relies heavily on women being willing to come forward to share their experiences in a safe and confidential environment. Women will not come forward if confidentiality could not be guaranteed. Rape Reliefs work in advocating equality for women will be undermined.I adopt Ms. Russell’s evidence regarding the harms to our clients and to KSACC if the confidentiality of our records is not maintained.”

Rape Relief’s judgment has now been relied on by counsel seven times since it was issued in December 2016 and has been relied on by the court three times. Our decision to intervene and disrupt the trend towards disclosure is making a difference. But it did come with a price tag. The entire court process took a massive toll on Vancouver Rape Relief and subsequently on Kamloops Sexual Assault Counselling Centre. Front line anti violence workers needed to provide written affidavits and our lawyer had to appear in court for several days in both cases.

Both Rape Relief and Kamloops Sexual Assault Centre applied to Legal Aid to be compensated but were told that, while there is some funding for individual women to protect their privacy rights, there is not funding for third-party record holders like rape crisis centres to protect their records. We appealed to the Ministry of Public Safety but were again denied. We understand that with the new provincial budget, there are millions of dollars more than before to combat sexual violence. Putting money into legal aid for women’s groups to defend their records should be a priority.

The reality is that defense lawyers know that making a successful application to produce third-party records is a winning strategy. In some cases, it has resulted in the Crown actually withdrawing the charges after a review of the records. In others, it has been the key to successful “exposure of weaknesses in the complainants' version of events.” For the complainant, it may be the beginning of an embarrassing examination of intensely private and personal topics. Defense lawyers know that rape crisis centres and transition houses don’t have the legal defense funds to protect those records.

Different judges have placed varying emphasis (and sometimes none at all) on the factors they are meant to consider in law and in the guidelines offered by both the legislation and the Supreme Court's interpretation of the legislation. Thanks to these recent rulings, there is now more case law sending a strong message back to the defense lawyers that the test is high for even the Judge to be able to obtain the records for consideration. 

*We are keeping a copy of all of the cases in the Library at Rape Relief – if you would like to get copies please email info(at)rapereliefshelter.bc.ca

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