Bill C-46, An Act to amend the Criminal Code on the production of records in sexual offence proceedings, became law on the 12th of May 1997. It was hailed by many feminist organizations as a victory for women's equality rights in sexual assault proceedings. The intention of Bill C-46 was to regulate, and restrict the access that a court, and in particular a defendant, might otherwise have to personal records kept by agencies and persons such as counselors, sexual assault centres, therapists, doctors and psychiatrists.

This study focuses on the ways in which concerns about the use of personal records in criminal sexual assault proceedings are borne out in the practices of the courts. The study also attends to how health professionals and other service providers have responded to the compelled production of client records in criminal trials and examines the ways in which record keeping procedures have evolved in the light of legislative reform.

The central questions informing this examination are as follows: Are record holders significantly changing the way they keep records because of the threat of having records subpoenaed? If so, what might be some of the effects of these changes on the quality of support services available to women who have been victims of sexual assault? Do the practices of the courts reflect the guiding principles of Bill C-46 which unequivocally acknowledge the seriousness of personal records disclosure for the victim? Has Bill C-46 provided substantial protection against re-victimization for women who choose to pursue legal redress through the criminal justice system?

Case law since the proclamation of Bill C-46 clearly shows that, like its predecessor Bill C-49 (1992), which attempted to limit the use of women's sexual histories in sexual assault trials, Bill C-46 is destined to be subject to constitutional challenges which focus largely on the rights of the accused. Case law research identified over fifty Charter challenges to the disclosure provisions in the three years following the O'Connor decision. The research indicates that the sections of the amended Code which provoke the most strident assertion that the accused's constitutionally enshrined right to make full answer and defence is violated by Bill C-46, are those sections which most strongly call for serious consideration of the equality rights of the complainant. Preliminary findings of this report confirm Parliament's concerns. Many women are discouraged from pursuing redress through the criminal justice system because they fear that the experience of court will itself be an experience of violation.

The study also draws upon interviews conducted with fifteen legal and health/social service professionals in British Columbia, who work with women and children who have been sexually assaulted. Four interviews were conducted with Crown counsel and one with an attorney in private practice. Ten interviews were conducted with front-line support workers (therapists and counsellors), from various agencies including sexual assault centres, domestic violence units and transition houses. While few of the support service respondents interviewed for this study had had third-party records subpoenaed since the proclamation of Bill C-46, all indicated that many of their clients experience enough fear of the judicial process to deter them from pursuing legal redress. Interviews with Crown counsel indicated that in approximately fifty percent of sexual assault cases, third-party records are requested. Moreover they anticipate that this percentage will increase as defence counsel become more familiar with the process by which Bill C-46 establishes the procedural requirements for third-party records to be made available to the court. All service providers indicated that they have changed their record keeping practices in some way in the last five years, as a direct consequence of the defence counsel strategy of subpoenaing third-party records. Few indicated that the legislative reforms of Bill C-46 had led to a decrease in the anxiety that they or their clients feel over the possibility of their records being subpoenaed.

Findings indicate that the general climate of hostility toward women complainants in sexual assault offences continues to threaten women's equality rights, and that Bill C-46 has thus far done little to allay these fears. Service providers indicated that women continue to feel that they have to choose between seeking support and assistance or pursuing legal redress. They further acknowledged that the possibility of engaging in both simultaneously will expose women to the unconscionable risk of being re-traumatized through the judicial process. This paper ends with recommendations for record keeping that may serve to alleviate the concerns of women survivors of violence, and service providers.

Bill C-46 Index