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Production of Records in Sexual Offence Proceedings – Submission to the Senate Committee on Legal and Constitutional Affairs

By Lee Lakeman
October 26, 2011

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:17 p.m. 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. Wallacein the chair

Lee Lakeman, Regional Representative, Canadian Association of Sexual Assault Centres: Thank you for the invitation to CASAC. We have little time, so I would like to make a series of 10 points as quickly as I can.

First, CASAC became involved in this issue during the Osolin case which you heard about in Karen Busby’s report, but I was personally involved in theO’Connor case, as women tried to hold Bishop Hubert O’Connor responsible for sexual assaults that he committed. In B.C., it was an important issue that Bishop O’Connor used the fact that he was principal of the residential school and used the fact that he was totally in control of women’s records to stall his own accountability on sexual assault charges. Eventually, those women succeeded and, through the process of going all the way to the Supreme Court of Canada and, in fact, getting a new law, they were able to hold Bishop O’Connor somewhat responsible.

I was personally involved when the rape crisis centres were threatened to such an extent that the women in the Windsor Rape Crisis Centre felt it necessary to shred their records publicly in order to refuse access to those records, in protection of personal relationship they had with the women who called on them for protection. This is a live, emotional and important issue to me personally but to rape crisis centres across the country.

Our interest is primarily in the fact that sexual assault cannot be separated from women’s equality rights and that when undertaking the question of privacy, it is important to remember that it is companioned by equality as an important issue in women’s security. It is not only that women were threatened with the revelation of personal records but also that they were threatened at many levels. It is not the prospect of losing a court case that was the greatest threat to women but the prospect of losing personal dignity in public as well.

It is important to remember that in the days we were talking about, and still to a great extent, there is no past that a woman can have that makes her publicly acceptable. There is no sexual past that she can have that will make her acceptable when sex enters the courtroom. We say that the bringing in of those records brings sexism into the courts and renders the court case unfair and unjust.

I want, as my second point, to ensure that we endorse the information you have received in Karen Busby’s report. I believe she consulted widely and I find that report completely supportable.

When you heard from the Privacy Commissioner, you also heard a recommendation for the importance of sexual assault centres and other support centres that women have been able to create for themselves. I think that is an important question as you are considering this legislation 11 years later.

We were in the position in those days of being part of a national consultation on a regular basis with the Department of Justice. Both reports before you refer to those consultations. They no longer happen. Women are no longer in the position of gathering annually to be able to present justice matters to Parliament and to present them from the point of view of equality-seeking women. That was my third point.

Our original position, I would like to remind you, was that there was no necessity of producing women’s private information at all. We were not looking for a screening process that screened out most of our records. It was our political position that there was no need for any for any record at any time, that this was simply repeatedly a way of discrediting women and of threatening women with public exposure that would back them off from court cases. I can tell you that it continues to operate that way.

If you went back over the work of the Supreme Court, you would see that sexist myths are outlined. The Supreme Court was clear that sexist myths enter the court through the process and that unless we deal with that mythology and get it out of the court case, we have unfair cases.

Our research confirms, over the years and in between, that there has been nothing to support the need to have access to these records. There is no case being brought forward in which the information that was revealed made the difference. There is no record to indicate that there is any need to have access to women’s private records.

I want to say that the law has improved things. It has improved things in two or three different ways. Most visible to us in many of the rape crisis centres is that it backed off the defence bar. You need only know that there used to be an expression called “whacking the complainant,” in which the defence bar taught each other how to humiliate women publicly in preliminary hearings and in court cases and to ensure that that was covered in the press. We now have a situation where that does sometimes happen; certainly we cannot tell women that they are safe. However, we have a shift in public attitude so that it is now at least considered shameful by most people. That has reduced the number of times when women are threatened. It only takes the threat to back women off.

I think you can see that women are continuing to come forward to try to report cases of sexual assault, particularly against men of power. It is noticeable that more men in positions of power are being challenged by the women they assaulted.

There are inadequacies in the law. Too much gets through. Records in the hands of the accused have already been raised as an issue. What we see is that not all records get through but not all records are prevented, either. In most of the cases where they are sought, something gets through. That is a problem for us.

Significantly, rape crisis centres are dealing with the problem of having to defend our records. Some centres have gone to the lengths of no longer keeping records, which I think is an appalling loss for Canada. We need to keep the records; we need to know what is going on; we need to expose what is going on. That is part of our job. However, it is very difficult because there is no legal aid afforded us. Most of our centres, unlike American centres, for instance, do not have a lawyer on staff. When we are challenged to produce our records, we do have the right to hire a lawyer and try to protect our records and our relationship to that woman, but we do not have the resources to do it. Neither do the women, who have a right to protect their records and fight the revelation of their records. They do not have access to a lawyer, neither the names of lawyers, nor the trained lawyers, nor the money to hire those trained lawyers.

I would point out as my ninth point that the research that is available is highly inadequate. Feminist groups, who are the ones that did the work and generated this law, are no longer in a position to get government funding to do the research that we all need. That is an appalling problem. You definitely need to address some of your attention to what is happening at the Status of Women. There are also research grants that could go from the Senate, of course. We are absolutely lacking feminist legal research; women’s equality-seeking intentional research.

I would point out to you that rape crisis centres and their associations are also dealing with a lack of funding at every level in every province and their associations also are dealing with a lack of funding. We cannot collectively, either, do that research, or do the lobbying that is necessary, or in any way make the issue clear to you. I am grateful for this opportunity, but I think it is inadequate.

There is a lot to do, a lot we need to find out and a lot that we can lose if government does not start shifting its attention again to the equality rights of women.

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