Ruling brings joy, hope, relief-and dismay by Jill Mahoney, Globe and Mail, November 16, 1999
Top Court Bows To Will of Parliament Globe and Mail, November 16, 1999
Ruling brings joy, hope, relief-and dismay top Defense lawyer deplores decision as victims’ advocates celebrate
by Jill Mahoney, Alberta Bureau, Edmonton, Globe & Mail, November 16, 1999
The girl at the centre of yesterday’s landmark court ruling was in the shower when her mother told her the good news. “We won, Mom,” she said. Hours later, recalling the 16-year-old’s reaction brought a fresh round of tears to her mother’s eyes and made her voice shake anew. “The look on her face was just unbelievable. Finally, somebody listened to us and now we know people believe in us,” the mother said.
About the same time, the man charged with attacking her, Brian Mills, got a call from his lawyer. “It was disappointing” lawyer Dennis Edney said. Back on July 12, 1995, when she was 12 and Mr. Mills was 25, their lives intersected. The details of the allegations and the girl’s identity cannot be revealed. Mr. Mills is charged with one count of sexual assault and one count of unlawful sexual touching.
The case, which hasn’t gone to trial yet, snagged on the issue of whether Mr.Mills’s defence lawyers should have easy access to the counselling records of the girl, who is known only as L. C. Yesterday, the Supreme Court of Canada ruled 7-1 that availability of documents must be very limited and at the discretion of the trial judge.
Shortly after the Supreme Court rendered its decision, the girl’s lead lawyer, Mary Marshall, met with L C.’s mother and aunt and they read the ruling together. There were big smiles and big tears. “I’m not going to stop fighting,” the mother said later. “This is my daughter we’re talking about. And she has the right to see some kind of justice.
For the rest of her life, the girl will take medication to help her deal with the incident and ensuing legal proceedings. Her attendance at school was sporadic before she dropped out in February. Her mother hopes yesterday’s win will mean her daughter will feel comfortable resuming therapy and eventually continue high school.
Less than an hour after the decision was made public, Mr. Edney was on the radio proclaiming that the Supreme Court had “bowed to political pressure” from activist groups. Federal Justice Minister Anne McLellan said the decision proves the government has struck the right balance between the rights of the complainant and the rights of the accused. “We fought for the constitutionality of this law long and hard,” Ms. McLellan said. She noted that the federal government took the extraordinary measure of intervening in the case at lower-court levels.
Later in the day, the two sides held news conferences only steps away and 90 minutes apart, but the mood and atmosphere couldn’t have been more different. Victims’ advocates, Ms. Marshall and other lawyers involved on behalf of the girl gathered at the Sex ual Assault Centre of Edmonton. They faced a crush of reporters in a drab meeting room in a partly abandoned building. Their relief, was palpable; they clapped after the girl’s mother spoke. Lawyer, Dale Gibson called the decision “luminous and very important.”
In a swish law office on the 19th floor of a downtown skyscraper, Mr. Edney received reporters in, a book- lined boardroom.
He spoke of the taxpayer-funded “feminist organizations” that crowded the Supreme Court back in January when lawyers made their arguments.Mr. Edney predicted that the ruling is likely to spark miscarriages of justice of the kind that plagued Guy Paul Morin, David Milgaard and Donald Marshall Jr. “We’ve watered down the presumption of innocence.”
Top Court Bows To Will of Parliament top
Extends olive branch in upholding controversial sexual-assault law
by Kirk Makin, Justice Reporter, Globe & Mail, November 16, 1999
The Supreme Court of Canada ended a historic legal battle over the evidence used in sexual assault cases yesterday, bowing to a determined attempt by Parliament to protect the privacy and dignity of complainants. In upholding the constitutionality of a law protecting confidential counselling records, the court said it could do untold damage to women if defendants were able to obtain unfettered access to their most private thoughts and experiences. However, the court – which has come under intense criticism for judicial activism – went much further than simply upholding a law many had viewed as an affront to its previous rulings.
In a remarkable move, the court went on to humbly wave an olive branch in the direction of Parliament. “The relationship between the Courts and the legislature should be one of dialogue,” Madam Justice Beverley McLachlin and Mr. justice Frank Iacobucci wrote on behalf of the 7-1 majority. “The courts do not hold a monopoly on the protection and promotion of rights and freedoms.
“Just as Parliament must respect the court’s rulings, so the Court must respect Parliament’s determination that a legislative scheme can be improved. To insist on slavish conformity would belie the mutual respect that underpins the relationship between the courts and legislature that is so essential to our constitutional democracy.”
Feminists were elated by yesterday’s powerful ruling. “it is a stunning victory,” said Carissima Mathen, a lawyer for the Women’s Legal Education and Action Fund.
The defense bar was appalled. “Philosophically, it is a very disappointing decision,” said Alan Gold, president of the Criminal Lawyers Association. “There is no sense of the terrible predicament of an accused person, or that there can be wrongful convictions.
Ruling ‘out of touch’ with criminal court, lawyer says
“The ruling elevates the sensitive feelings of complainants above the appearance of justice,” he said. “It is quite out of touch with the day-to-day reality of criminal courts.” The ruling overturned an Alberta Court of Appeal decision in the case of Brian Joseph Mills. Mr. Mills was charged with the sexual assault and sexual touching of a 12-year-old girl on July 12, 1995.
Mr. Mills ran headlong into this new law in 1997, when his lawyers sought counselling records from a rape-crisis centre the complainant had attended. Judge Paul BeIzil of the Court of Queen’s Bench struck down the law. The law had been created as a direct result of a 1995 Supreme Court decision in Regina v. O’Connor, in which the majority proposed a step-by-step process of reviewing counselling records.
In the first step, a trial judge had to decide whether the record was likely to be of sufficient relevance to the defense. If it was, he would actually look at the document. The second step involved balancing of the importance of the document to the defense with the threat its exposure might pose to the complainant’s right to privacy, dignity and security of the person.
After the O’Connor decision, it quickly became the norm for judges to order disclosure. Parliament soon found itself under considerable pressure to restrict the rules. In what was widely seen as a slap in the face to the court, the government apparently used Madam Justice Claire L’Heureux-Dubé’s minority dissent in the O’Connor case as a model for its tougher, more restrictive version of the O’Connor rules.
As part of the first stage of review, the new law compelled the accused to convince a trial judge that the documents would be “likely relevant” to the defense. The judge was also obliged to consider if it was “necessary in the interests of justice” to view them.
In short, the law meant that at a time when neither defense counsel nor judge had actually seen the records, the judge had to take into account their significance to the accused and the complainant.
The Supreme Court majority itself conceded yesterday that while the law “differs significantly” from the original O’Connor procedure, it quite fairly tries to protect the relationship between a sexual-assault complainant and her therapist.
This relationship “is characterized by trust, an element of which is confidentiality,” the majority noted. They said the threat to expose counselling records can easily lead victims to shy away from receiving treatment or reporting sexual attacks.
The sole dissenting judge in yesterday’s decision, Chief Justice Antonio Lamer, was blunt about the paradox this established. “It will be difficult indeed for an accused to establish the likely relevance of a record which he knows to exist, but that he has never seen,” he observed.
Battle lines in the Mills case were so pronounced and the issues so important that the Supreme Court permitted 40 feminist groups, legal associations and provinces to give legal arguments at the appeal last January. Ms. Mathen said yesterday that one of the many unexpected bonuses of the ruling was that for the first time, the court invoked the constitutional equality rights of a women in a sexual-assault case.
In this reference, the court said the intimate nature of sexual assault places victims at a much greater disadvantage than victims of other crimes.
“She is doubly victimized, initially by the sexual assault, and later by the price she must pay to claim redress – redress which in some cases may be part of her program of therapy,” the majority said. “An appreciation of myths and stereotypes in the context of sexual violence is essential to delineate properly the boundaries of full answer and defense . . . The accused is not permitted to ‘whack the complainant’ through the use of stereotypes regarding victims of sexual assault.”
The majority also noted that two of the most notorious rape myths involve suppositions that a complainant who has had previous sexual relations or who does not promptly report an attack is unreliable. “The notion that consultation with a psychiatrist is, by itself, an indication of untrustworthiness is a more recent – but equally invidious – example of such a myth,” the majority said.
The court said there is no inherent unfairness in the Crown having access to counselling records the defense never gets to see, “as long as the accused can make full answer and defense, and the trial is fundamentally fair.”
Chief Justice Lamer disagreed. “The risk of suppressing relevant evidence and of convicting an innocent person outweighs the salutary effects of the impugned provisions on privacy and equality rights,” he said.
FROM THE RULING
From the majority:
A posture of respect towards Parliament has been adopted by the courts. Courts do not hold a monopoly on the protection and promotion of rights and freedoms. Parliament also plays a role in this regard, and is often able to act as a significant ally for vulnerable groups. This is especially important to recognize in the context of sexual violence. The history of the treatment of sexual assault complainants by our society and our legal system is an unfortunate one. Important change has occurred through legislation aimed at both recognizing the rights and interests of complainants in criminal proceedings, and debunking the stereotypes that have been so damaging to women and children. But the treatment of sexual assault complainants remains an ongoing problem.
From Chief Justice Antonio Lamer’s dissent:
In my respectful view, my colleagues understate the importance of Crown disclosure to trial fairness. Disclosure of records in the Crown’s hands furthers the search for truth as it enables the defense to challenge the accuracy and cogency of the prosecution’s case. The accused’s ability to access relevant information that may ultimately deprive him of his liberty strikes at the very core of the principles of fundamental justice.