Scroll down to read responses to this petition
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Scroll down to read responses to this petition 〰️
e-4749
Petition to the Government of Canada :
Section 278 of the Criminal Code of Canada and victim’s personal records
Whereas:
Section 278 of the Criminal Code currently allows a person who has been charged with sexual assault to apply for access to their victim's private and confidential records for which the victim has a reasonable expectation of privacy;
For a victim of sexual assault, the threat that their private clinical notes and/or personal journals will be included in court proceedings and given to the accused is frightening given the magnitude of this potential privacy violation;
Functionally, a request for access to ongoing clinical notes cuts off a survivor's access to mental health supports during the court process, when they need it most;
It is worth noting that the release of such documents to the defence opens the survivor up to continued harm by the accused, long after the court process has completed; and
The accused should be tried on the evidence of the case, gathered by the police to support the charges that were laid. A victim's personal records, unless part of the original evidence, are not relevant to the crime that was committed against them;
We, the undersigned, citizens and residents of Canada, call upon the Government of Canada to unconditionally protect the privacy and safety of victims of sexual assault and eliminate the provision in s.278 that allows the defence to subpoena these personal sources of support. Even the threat of having a victims' personal records or private journals brought into court and given to the offender is undeniably harmful to the victim and undermines the proper administration of justice and access for both the offender and complainant to a fair trial.
We think this is wrong:
CBC The House (Aug 10, 2024): Interview with law professor Benjamin Perrin
on his book, Indictment: The Criminal Justice System on Trial begins at 22:40.
In this new book, “Perrin argues for a radical reworking of Canada’s justice system,
a complete overhaul of policing, the courts, and the way we treat both the perpetrators
and the victims of crime.” ~ Tom Parry, The House podcast, August 10, 2024
Professor Perrin addresses Tanya’s question beginning at 38:36:
“Hi Ben, this is Tanya Couch and I am a survivor of sexual assault. The charges in my case were stayed because the Criminal Code of Canada permitted the defence to subpoena seven years of my personal counselling records. I believe this section of the Criminal Code poses a danger to victims who report sexual assault because the courts are approving the handing over of victims’ sensitive personal information to offenders, which can be used by the offender to harm the victim long after the court process is over. My question is, why is the court so indifferent about victim safety?”
Tom Parry: So what do you think when you hear that?
Benjamin Perrin: “I’ve heard very similar concerns, and just to validate what Tanya is saying, these provisions in the criminal code are supposed to be balancing, in the words of the Supreme Court, the constitutional rights of someone who’s charged for a trial, but also with the dignity and privacy of the victim or survivor.
And I’ve heard enough cases now that it doesn’t seem to me like it’s striking the right balance there. I’ve heard many, many stories where the secondary trauma or secondary victimization that survivors experience within the criminal justice system, because of provisions like these, they describe often as worse than the offenses that they experienced to begin with.
The system itself is causing that harm. And more often than not, I also hear about survivors having situations where charges get stayed in those circumstances, because they’re just not willing to expose themselves and their loved ones and family to that sort of further opening up of their lives to someone who has perpetrated such harm against them. So I think we need to look at that.
I think the Supreme Court, because we’re dealing with this as a charter issue, needs to look at that again. I think if we can get more and better research before the courts on that, hopefully something could change in that regard.”
Contrast this response above with how the Government of Canada responded on August 21, 2024:
Response by the Minister of Justice and Attorney General of Canada
Signed by (Minister or Parliamentary Secretary): The Parliamentary Secretary James Maloney
The Government of Canada is committed to upholding the essential rights of victims of crime, including victims of heinous crimes like sexual assault. The Canadian Victims Bill of Rights provides for specific victims’ rights such as the right to have their security and privacy considered at all stages of the criminal justice process, and to have reasonable and necessary protection from intimidation and retaliation. This is vital.
The third-party records regime limits the accused’s access to the victim’s private records that are in the possession of third parties and establishes a special procedure to be followed where production of third-party records is sought in proceedings involving sexual offending. This regime is informed by the Supreme Court of Canada’s (SCC) 1995 O’Connor decision, which set out the rules that govern the production of third party records in criminal trials, but is more stringent to address Parliament’s concern about the incidence of sexual violence in Canada, its prevalence against women and children, and its particularly disadvantageous impact on the equal participation of women and children in society, as well as on the rights of women and children to security of the person, privacy, and equal benefit of the law, as guaranteed by the Canadian Charter of Rights and Freedoms. The constitutionality of this regime was affirmed by the SCC in its 1999 Mills decision.
In its 1999 Mills decision, the SCC noted that the third-party records regime requires a careful balancing of three constitutionally protected rights: the section 7 right to full answer and defence, the section 8 right to privacy and the section 15 right to equality. The victim’s right to privacy is protected by section 8 of the Charter. Victims have a reasonable expectation that the private information they divulge in a therapeutic relationship will remain confidential. Equality rights under section 15 of the Charter must also inform the analysis. An understanding of myths and stereotypes in the context of sexual violence is essential in properly delineating the boundaries of the accused’s right to full answer and defence and the victims’ right to privacy.
Repealing the third-party records regime would result in the SCC’s O’Connor decision governing the production of third-party records in all criminal trials, including sexual assault trials. Reverting to the O’Connor procedure would result in fewer protections for victims. Our Government has a track record of standing up to protect victims and will always do so.