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Statutory Review on the Provisions and Operation of the Act to Amend the Criminal Code (Production of Records in Sexual Offence

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Statutory Review on the Provisions and Operation of the Act to Amend the Criminal Code (Production of Records in Sexual Offence Statutory Review on the Provisions and Operation of the Act to amend the Criminal Code (production of records in sexual offence proceedings) Final Report The Honourable Robert W. Runciman Chair The Honourable Joan Fraser Deputy Chair Standing Senate Committee on Legal and Constitutional Affairs December 2012 i Ce document est disponible en français This report can be downloaded at: http://senate-senat.ca/lcjc-e.asp Paper copies of this document are also available by contacting the Senate Committees Directorate at 613-990-0088 (Toll free: 1-800-267-7362) or at [email protected] ii TABLE OF CONTENTS MEMBERSHIP ...................................................................................................................................... V ORDER OF REFERENCE.................................................................................................................. VII INTRODUCTION ...................................................................................................................................1 OUR STUDY AND ITS CONTEXT ........................................................................................................1 A. SEXUAL OFFENCES, THE CHARTER, AND CANADIAN CRIMINAL LAW REFORM ....................................1 B. THE SUPREME COURT OF CANADA, R. V. O’CONNOR, AND BILL C-46 ...............................................3 1. R. v. O’Connor ....................................................................................................................................3 2. Bill C-46 ...............................................................................................................................................5 C. THE SCOPE OF OUR STUDY ....................................................................................................................6 D. GENERAL OBSERVATIONS .......................................................................................................................7 THE COMPLEXITY OF SEXUAL OFFENCES ....................................................................................7 A. THE NATURE OF SEXUAL OFFENCES IN CANADA ..................................................................................7 B. THE ROLE OF THE PROSECUTOR, THE ACCUSED AND THE COMPLAINANT IN THE CRIMINAL JUSTICE PROCESS .........................................................................................................................................................9 C. RECONCILING THE RIGHTS OF THE ACCUSED AND THOSE OF THE COMPLAINANT .......................... 10 THE COMMITTEE’S FINDINGS AND RECOMMENDATIONS ......................................................... 13 A. RECOMMENDATIONS ON SECTIONS 278.1 TO 278.91 OF THE CRIMINAL CODE ............................... 14 1. Definition of a “record” (section 278.1 of the Criminal Code) ................................................... 14 2. Production of a record to the accused: Application of provisions, waiver of protections, and prosecutor’s duty to notify the defence (section 278.2 of the Criminal Code)............................... 16 3. Application for the production of records: Content, grounds and service (section 278.3 and 278.4 of the Criminal Code) .................................................................................................................. 20 4. Order that a record be disclosed to the judge for review and order for production of all or part of record to the accused: Factors and Considerations (sections 278.5 and 278.7 of the Criminal Code) ........................................................................................................................................ 22 B. RECOMMENDATIONS RELATED TO SEXUAL OFFENCE POLICY DEVELOPMENT AND THE PROVISION OF ASSISTANCE TO COMPLAINANTS AND VICTIMS OF CRIME .................................................................... 25 1. The Need for Comprehensive Assistance to Victims of Crime and Criminal Complainants 25 2. The Need for Further Research .................................................................................................... 31 3. The Need for Additional Training Directed at Justice System Participants ............................ 34 4. The Need for Attention to the Security of Victims of Crime and Criminal Complainants ..... 35 C. CONCLUDING COMMENTS .................................................................................................................... 37 APPENDIX 1 – LIST OF ABBREVIATIONS ...................................................................................... 39 APPENDIX 2 – LIST OF RECOMMENDATIONS .............................................................................. 41 APPENDIX 3 – SECTIONS 278.1 – 278.91 OF THE CRIMINAL CODE .......................................... 45 APPENDIX 4 – LIST OF WITNESSES AND SUBMISSIONS ........................................................... 51 iii iv MEMBERSHIP THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS 41ST PARLIAMENT, 1ST SESSION The Honourable Robert W. Runciman Chair The Honourable Joan Fraser Deputy Chair and The Honourable Senators: George Baker, P.C. Pierre-Hugues Boisvenu James S. Cowan (or Claudette Tardif)* Jean-Guy Dagenais Linda Frum Serge Joyal, P.C. Marjory LeBreton, P.C. (or Claude Carignan)* Paul E. McIntyre Thanh Hai Ngo Vernon White *Ex Officio Members **The Honourable Senator Mobina S.B. Jaffer withdrew as a member of the committee for this study due to a past professional association Other senators who have participated from time to time on this study during the First Session of the Forty-First Parliament: The Honourable Senators: W. David Angus***, Maria Chaput, Consiglio DiNino***, Daniel Lang, Don Meredith, Nancy Greene Raine, Terry Stratton, Betty Unger and John D. Wallace. Other senators who participated on this study during the Third Session of the Fortieth Parliament: The Honourable Senators: Claude Carignan, Leo Housakos, Michael L. MacDonald, Jean-Claude Rivest and Charlie Watt. ***Retired from Senate v The committee wishes to acknowledge the special contribution of the Honourable Senator John D. Wallace, former Chair of the Committee in the preparation of this report. The Committee would also like to thank the following staff for their work in the preparation of the report: From the Library of Parliament, Parliamentary Information and Research Service: Erin Shaw, Analyst Tanya Dupuis, Analyst Robin MacKay, Analyst Lyne Casavant, Analyst Laura Barnett, Analyst Erin Virgint, Research Assistant From the Committees Directorate: Shaila Anwar, Clerk of the Committee Tracy Amendola, Administrative Assistant From Senators’ offices: Barry Raison, Policy Analyst, Office of the Honourable Robert W. Runciman, Chair Céline Éthier, Policy Analyst, Office of the Honourable Joan Fraser, Deputy Chair François Delisle, Policy Analyst, Office of the Honourable Pierre-Hugues Boisvenu vi ORDER OF REFERENCE Extract from the Journals of the Senate, Tuesday, October 4, 2011: The Honourable Senator Wallace moved, seconded by the Honourable Senator Mockler: That the Standing Senate Committee on Legal and Constitutional Affairs be authorized 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; That the papers and evidence received and taken and work accomplished by the committee on this subject since the beginning of the Third Session of the Fortieth Parliament be referred to the committee; and That the committee report to the Senate no later than June 30, 2012 and retain all powers necessary to publicize its findings until 90 days after the tabling of the final report. The question being put on the motion, it was adopted. Extract from the Journals of the Senate, Monday, June 11, 2011: The Honourable Senator Runciman moved, seconded by the Honourable Senator Boisvenu: That, notwithstanding the order of the Senate adopted on October 4, 2011, the date for the presentation of the final report by the Standing Senate Committee on Legal and Constitutional Affairs 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 be extended from June 30, 2012 to December 31, 2012; and That the committee retain all powers necessary to publicize its findings until 90 days after the tabling of the final report. The question being put on the motion, it was adopted. Gary W. O’Brien Clerk of the Senate vii viii INTRODUCTION On 8 December 2010, during the 3rd Session of the 40th Parliament, our committee received an order of reference from the Senate to examine the provisions and operation of An Act to amend the Criminal Code (production of records in sexual offence proceedings),1 introduced in the 2nd Session of the 35th Parliament as Bill C-46.2 On 7 October 2011, following the 2 May 2011 general election and the convening of the 41st Parliament, our committee received a new order of reference from the Senate to continue its study of these matters. Since receiving its original order of reference in 2010, the committee has held 13 meetings on this study. In total, the committee heard from witnesses representing 14 different organizations and received 14 written submissions from interested organizations and provincial governments.3 Bill C-46 was enacted in 1997 to limit the access by those accused of sexual offences under the Criminal Code (the Code)4 to personal records of complainants held by third
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