Feminist Research Education Development and Action Centre Bill C-46 Index

The FREDA Centre for Research on Violence against Women and Children FACTS ON BILL C-46: AN ACT TO AMEND THE CRIMINAL CODE REGARDING THE PRODUCTION OF RECORDS IN SEXUAL OFFENCE PROCEEDINGS On May 12, 1997, Bill C-46, an Act to amend the criminal code regarding the production of records in sexual offence proceedings, became law. This fact sheet provides additional information on the Bill and the steps you could take if you or your centre is issued with a subpoena. BILL C-46: BACKGROUND Although Bill C-46 does not incorporate "No Records, No Time" as argued for by the national feminist coalition (comprising LEAF, CASAC, DAWN, NWAC), which worked to intervene in R. v. O'Connor, and by the sixty women's groups at the June 1996 consultation with then Federal Minister of Justice, Alan Rock, it is a close second best in that it contains some unique and ground-breaking language. The Preamble (Whereas…), which outlines the "spirit" of the law and is intended to guide judges, lays out some first appearances in Canadian law. For example: Recognition that there is a prevalence of a particular kind of violence which affects primarily women and children, as opposed to degendering violence as if it were random and not a tactic used to prevent women from achieving full equality in Canadian society. Parliamentary and legal recognition that violence against women has an impact on women's ability to participate equally in Canadian society. Recognition that violence against women is not just a criminal offence but is an interference of women's security and equality rights as outlined in the Charter of Rights and Freedoms. Recognition that full Charter rights are applicable to witnesses in sexual assault cases as well as to the accused. Until now Supreme Court and other judges only considered these rights as they applied to the accused. A fair trial now has to be defined as being fair to both the witness/complainant and the accused. Judges have tended to consider that a fair trial means Charter rights and no bias/prejudice toward the accused only. Acknowledgment that what is at stake in these cases is not only a woman's right to privacy but also a woman's right to equality before the law. I. WHAT IS A RECORD? A record, in this context, is any form of recorded information for which there is a reasonable expectation of privacy. Examples include a person's journals, diaries, and medical or psychiatric records, as well as counselling, education, employment, child-welfare, adoption, and social services information. Some of this material is also protected by other laws. II. WHEN MUST THE PROCEDURES OUTLINED IN BILL C-46 BE FOLLOWED? Bill C-46 applies to the disclosure of records in all sexual offence cases, for example: cases that have to do with sexual interference and invitation to sexual touching involving persons under 14; sexually exploiting a young person; incest; anal intercourse (without consent, or conducted in public, or involving a person under 18); bestiality; a parent or guardian procuring sex, or a householder permitting sex involving a person under 18; corrupting children; sexual exposure to a person under 14; keeping or transporting a person to a bawdy-house; procuring; prostitution offences; and sexual assault. The Bill applies where the record is in the possession or control of any person including the Crown prosecutor. In the case of records in possession of the Crown, the complainant/witness may waive (by express permission), the application of the procedure and safeguards set out in the Bill. If the Crown prosecutor is in possession of the records and the complainant has not waived the Bill C-46 procedure, the Crown must still notify the accused. III. PROCEDURES REQUIRED UNDER BILL C-46 FOR PRODUCTION OF A RECORD A. Procedural Requirements 1. An application by the accused for disclosure of records called a Notice of Motion is made in writing to the trial judge. It should identify: What records are being sought, The name(s) of the person(s) holding the records, and The reasons the accused believes the records are relevant. 2. This Notice of Motion sets out the grounds for relevance of the application and states the time and place of the hearing. An affidavit in support of the notice may set out the evidence for the application. Both documents are issued to the record holder at the same time as the subpoena. The subpoena compels the custodian of the records to attend the hearing at the time and place designated in the Notice of Motion. The Notice of Motion, but not the subpoena, is also issued to the victim, the prosecutor and to any person whom, to the knowledge of the accused, the record relates. Seven days notice of the application must be given to the prosecutor, the record-holder, the complainant/witness or any other person to whom the record relates. 3. If the accused does not comply with these procedural requirements, his application may be argued invalid. If this occurs, the next stages cannot take place. (Note: Bill C-46 only applies after the trial has been set and the judge appointed, and at no other stage in the proceedings.) B. The First Stage Test Procedure: Production to the Court A closed hearing to decide whether records should be disclosed to the trial judge. You must appear in court on the day specified in the Notice of Motion. Although the supoena will state that you are to bring specific records with you to the hearing, you are under no obligation to bring these records and should not produce any records to the court until ordered to do so by the trial judge. A closed hearing is then held to determine if the judge will be permitted to see the records. During this hearing, submissions can be made as to why the records should (or should not) be produced. Submissions may be made by the record-holder, the complainant and/or any other person to whom the record relates. The defence cannot argue the need or relevancy of the complainant's/witness's records on the sole basis that: The record exists. The record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving. The record relates to the incident that is the subject-matter of the proceedings. The record may disclose a prior inconsistent statement of the complainant/witness. The record may relate to the credibility of the complainant/witness. The record may relate to the reliability of the testimony of the complainant/witness merely because she received or is receiving psychiatric treatment, therapy or counselling. The record may reveal allegations of sexual abuse of the complainant by a person other than the accused. The record relates to the sexual activity of the complainant with any person, including the accused. The record relates to the presence or absence of a recent complaint. The record relates to the complainant's sexual reputation. The record was made close in time to the complaint or to the activity that forms the subject-matter of the charge against the accused. However it should be noted that Bill C-46 relies solely on the interpretation of the trial judge as to whether these reasons individually or in combination will be enough to determine if a record is relevant to the current case and as such must be produced. At the conclusion of this hearing the judge will decide whether or not any, some, or all of the records referred to in the subpoena are to be produced. If any record or part of a record must be produced then it is to be given to the registrar or clerk of the court who will give it to the judge. C. Second Stage Test Procedure: Production to the Accused If and when the judge receives the records (or parts of records) he/she will review them in private and decide if any of these records (or parts) will be disclosed to the accused. The judge must provide written reasons as to why a record or part of a record should or should not be disclosed. D. Criteria for Production of Records at Both the First and Second Stage Test Procedures In reviewing the records the judge must take into account: Whether the records are relevant to the issue at trial or to the competency of a witness to testify. Whether the production of the record is necessary in the interests of justice. Whether the application has been made following the proper procedure outlined in Bill C-46. The rights of the accused to a full answer and defence. Whether production of the record is based on a discriminatory belief or bias. The potential for prejudice to the personal dignity of any person to whom the record relates. The rights of the complainant or witness to privacy and equality. The significance of this section of Bill C-46 is that the factors which determine whether a record is to be provided to the accused, are both relevancy and necessity. (Note: The first and second stage test procedures might only take a couple of hours.) E. The Publication of Records There is a specific ban on publication of the contents of the records and proceeding of the closed hearing. A ban on publication requested by the Crown during the trial will also apply to any record material referred to during the trial itself. (Note: when the record becomes part of the trial record, then it can be published.) This fact sheet was produced by FREDA and Vancouver Rape Relief, with the assistance of Gisela Ruebsaat and Frances Kelly. It is available in print from FREDA, Vancouver Rape Relief and Westcoast LEAF.