Right now, journals and diaries of a complainant can also be released in the defence of an accused.
After a two-year study, the Senate legal and constitutional affairs committee recently tabled a report on the Criminal Code provisions related to the release of third-party records during those sensitive legal proceedings.
It makes 18 recommendations, including several that narrow the scope of the type of records and when they can be released.
It also recommends legal, financial and other support services for complainants; right now they have to pay their own legal fees to fight the release of records in most provinces.
The report also calls for more federal studies to root out hard data and determine why people are not reporting sexual assaults. Latest figures from Statistics Canada say there were about 21,800 cases of sexual assault of adults and another 2,600 sexual assaults of children reported to police in 2011, but estimates are that less than 10 per cent of sex assaults are actually reported.
Toronto-based defence lawyer Frank Addario predicts that if the government adopts the committee’s recommendations, it would lead to constitutional challenges and more cases of wrongfully convicted persons. The presumption of innocence is fundamental to Canada's justice system, and he said third party records are a critical "tool" for defence and the administration of justice, he said.
Appearing on CBC News Network’s Power & Politics, Addario said access to private records must be proven relevant to the case and cast doubt on the reliability of the complainant as a witness.
"If the witness has delusional psychiatric disorder, the judge and the jury should know that, as should the lawyers,” he told host Evan Solomon. “If the witness has some life-long addiction to very serious mind-altering drugs, the judge and the jury and the lawyers should know that. So it’s not delving into someone’s emotional background or their private records for the sake of it, it’s for reasons of relevancy related to what’s happening in the courtroom.”
The Senate report noted that records are released in about 30 per cent of cases where the defence has applied for them.
Steve Sullivan, executive director of Ottawa Victims’ Services and former federal ombudsman for victims of crime, told Power & Politics that sexual assault victims are treated differently in the justice system than other victims – as “inherently delusional” or “women trying to get revenge.” Fear of disclosure of personal information can deter victims from pressing charges.
“Some women will say ‘I’m not going to bother, I’m not going to put myself through this,’” he said. “It’s tough for women to come forward and report sexual assault. This certainly doesn’t encourage anybody, and it will discourage some from doing it.”
The Senate committee report is now in the hands of Justice Minister Rob Nicholson, who is studying the recommendations.
"Our government is committed to ensuring that victims have a stronger voice in the criminal justice system. We have always believed that every victim matters,” said his spokeswoman, Julie Di Mambro, in a statement to CBC News. “We thank the Senate legal committee for their work; we are reviewing the report carefully."