AN AMENDMENT TO THE CANADIAN CRIMINAL CODE INTENDED TO REINSTATE OUR RIGHTS TO PRIVACY
In June, 1992 legislation was tabled which placed limits on access to private records of women and children who had braved taking their aggressors to court. In May 1994 this shield of protection that had been put in place in was struck down. Now, in 1996, Bill C-46 aims to filter the increasing demands on women and children and their support services for personal and confidential records. Ninety-nine percent of sexual offence complainants are women or children. A review of existing case law reveals "that defence requests for records occur almost exclusively in sexual offences and almost exclusively concern the personal records of women. The public confidence in the criminal justice system is weakened when complainants records are disclosed without regard to the Charter rights to privacy and equality". (Backgrounder to Bill C-46, introduced to the House of Commons of Canada on June 12th. 1996).
Looked at more closely, "Records", may mean anything personal - any form of record that contains personal information from medical, psychiatric, therapeutic, counselling, education, employment, child-welfare, adoption, or social services sources. It also includes personal journals and diaries. The changes proposed are to include a strong preamble outlining concern around the current deterrent effect of the existing law. The compelled production of records is understandably discouraging the reporting an already under-reported crime. Worse yet, it may well discourage women from getting the counselling and other support that they need.
What's new is that now only the actual trial-court judge who hears the full case can determine whether it may be appropriate to release a record. In a two-stage process they are first required to assess, its relevance. It's up to the defendant to put in an application to that same judge. Some of the past reasons for obtaining personal records that are now insignificant are:"that the record relates to the complainants sexual reputation", "that the record may relate to the reliability of testimony of the complainant or witness' merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling" (Bill C-46, 278.3 section 4 j and f).
There may be an in-camera hearing at which witnesses and complainants may choose to testify.
In the second part the judge previews any records obtained, and decides in private what sections may be used, if any. There are detailed guidelines for this process also, and a second in-camera hearing may be required. Safeguards have to be taken to protect the woman's privacy, but the court may still decide to retain the records for future use if the defendant chooses to appeal at a later date.
It has become an offence, punishable by a summary conviction to publish any records without permission. It is hoped that this amendment to Bill C-46 will adjust the previously low threshold for the production of records which has led to an unwarranted invasion of a complainant's personal records for improper purposes. It doesn't stop them from being demanded, but it may make it harder, and certainly more expensive!
Johanna Purple Rank, Wenlido Instructor, Women Educating in Self-Defense Training