Note: Transcripts may contain errors. If you wish to re-use all, or part of, a transcript, please contact CBC for permission. Please check the corresponding audio before quoting in print. Copyright © CBC 2016

The Current Transcript for April 04, 2016

Host: Anna Maria Tremonti

STORIES FROM THIS EPISODE

Listen to the full episode

Prologue

[Music: theme]

SOUNDCLIP

She mustn't communicate with anybody. If she communicates or goes out, she will be arrested and taken to prison.

ANNA MARIA TREMONTI: She's accused of inciting extremism, ethnic hatred, and violating human dignity and for five months she has been under restrictive house arrest, all related to a raid on her workplace - a library. Natalya Sharina is a 58-year-old Russian librarian, the director of the library of Ukrainian literature in Moscow. And though the Russian government says she is not on the Kremlin's radar, someone think she and her books are a threat and now her personal plight seems uncomfortably connected to the wider ongoing conflict between Russia and Ukraine. Her story in half an hour. Also today, sexual assault trials on trial.

SOUNDCLIP

And so in those circumstances we say you have to prove the case. And that is true of any case. There is nothing special about the type of crime.

AMT: Criminal defense lawyer Marie Henein underlined last week that the acquittal of her client Jian Ghomeshi on sexual assault charges is proof that Canada's justice system works as it should. And yet there remains a persistent call from other criminal lawyers to consider changing the system, specifically in cases of sexual assault. We'll bring you that debate in an hour. But we're starting with a move to address public perception in another sphere - the relationship between drug companies and doctors.

SOUNDCLIP

Money works, doctors are human. The issue is, who are you working for? Me, as the patient or the drug company you’re taking money from?

AMT: As a select number of companies move toward transparency critics say they aren’t moving far enough or fast enough. I'm Anna Maria Tremonti. This is The Current.

Back To Top »

Pharma launches voluntary guidelines for payment disclosures

Guests: Dee Mangin, Russell Williams, Matthew Herder

SOUNDCLIP

[TV commercials]

VOICE 1: Ask your doctor if Lunesta right for you.

VOICE 2: Ask your doctor about Myrbetriq.

VOICE 3: Ask your doctor.

VOICE 4: Ask your doctor.

VOICE 5: Ask your doctor.

AMT: Well, ask your doctor. That is the tag line to the ubiquitous prescription drug ads on American television, because in the pharmaceutical business doctors are the all-important middle men and middle women. They write the prescriptions that underwrite a multi-billion dollar industry and so just as drug companies market to consumers, they also are keenly interested in marketing to doctors. That's true in the US, it's true in Canada, but just as we may not get the same nonstop drug ads on Canadian television we also don't hear news reports such as this.

SOUNDCLIP

A new clause in the Affordable Care Act will, for the first time ever, allow average citizens to search a federal website to see all of the perks given to physicians by pharmaceutical companies.

AMT: Well, starting about two years ago, payments made to doctors in the US by pharmaceutical companies have been put online and listed publicly, doctor by doctor, for all to see. It is a giant move, according to many pharmaceutical industry observers, and we're going to be discussing why that is today, because for the first time a parallel program is taking shape in Canada, although a voluntary, one to track pharmaceutical companies spending when it comes to doctors and health groups. We begin with Dr. Dee Mangin. She is David Braley chair of the Department of Family Medicine at McMaster University, and she joins us from Hamilton. Hello.

DEE MANGIN: Hello.

AMT: Well, before we get into big pharma spending and doctors, first, give us an idea of the things that pharmaceutical sales representatives do to influence the advice we might get from our doctors.

DEE MANGIN: Well, as you've highlighted, this is part of a much broader picture of commercial influence on health care. In fact, this influence is so much that in the UK they held a government inquiry into the influence of drug companies on the National Health Service there and it sits alongside much less obvious influences on research and guidelines, control of clinical trial data and funding of patient groups. So, your question was about what are the influences on the doctor writing the prescription. So there are two main groupings, really. The first level of influence is in things like sponsored education meetings, some with a large vacation attraction incentive because of where they are or with expensive wine or food. A doctor might have free lunch visits by drug reps through to small gifts such as pins and sticky note pads. The sponsored educational meetings for physicians, physicians who are likely to prescribe the drugs frequently and they usually involve a dinner, sometimes a trip or a weekend away and a talk by a paid key opinion leader.

AMT: And so what's the concern - that that kind of thing and dinner or a weekend away – what’s the concern that that does?

DEE MANGIN: The concern is the influence that that has on prescribing patterns. The kind of talks that people like to receive at these dinners are rom physicians called often key opinion leaders, who are paid speaking and consulting fees or unrestricted educational grants, grants to support research and they may also be the leaders participating in [indecipherable]. So they have significant influence when they make recommendations for prescribing practices. And the magnitude of payments to those key opinion leaders may be small to large; it might be 5,000 a year up to even a 100,000 a year, so a substantial influence.

AMT: You're basically saying it's subtle that they are influence then to do this?

DEE MANGIN: Yeah, and we have some evidence about the level of that influence so that we know that, say, when a speaker speaks [indecipherable] that there will be between five and 20 percent increase in the prescription of the sponsor's drug versus other drugs, that speaker is two and a half to three times more likely to highlight the positive effects of the sponsor's drug and the negative effects of competitors. For doctors prescribing it for patients, what this means is that they write more prescriptions for that drug. For example, a physician attaining a single lecture by a sponsored physician will write, on average, an extra 600 dollars or so per year of prescriptions by the sponsors’ drug and we know that the number of prescriptions goes up according to the level of payment. We know that if doctors receive funding for travel or accommodation at an educational meeting that increased prescribing might persist for up to two years.

AMT: So, they're prescribing that specific drug over maybe a generic or maybe they're prescribing a drug that they otherwise might not even write a prescription at all?

DEE MANGIN: That's right. That's right. And this makes sense, because no drug company is going to give away shareholder’s money in an act of disinterested generosity, so it makes sense that they wouldn't do it if didn't increase sales. Free lunches, I think you were asking about before, and we know that two-thirds of the time, after having a visit by a drug representative, doctors are more likely to prescribe the company's branded medication.

AMT: Okay. So have you attended any pharmaceutical company sponsored events, accepted free drug samples?

DEE MANGIN: Not since very early in the first year of my training as a family medicine resident.

AMT: Why not?

DEE MANGIN: Well, I've chosen to get my-- There is more than enough to do in the 24 hours of a doctor's day and so I choose to get my education and information from what I know are independent, unbiased sources of which there are many in Canada.

AMT: Now, we know that Canadian pharmaceutical companies will now disclose payments to doctors and health groups under this new voluntary program. Can you tell us about it?

DEE MANGIN: Well, I think the others on your program will be able to tell you more about it, but what I understand is that there's going to be a voluntary disclosure by the industry. I think that it's at a high level, an aggregate level rather than individual doctor level as they're doing in the US. And I think it's a welcome move to talk about these issues more, whether or not it's going to be successful in tackling the issue, which is as much a larger one as it remains to be seen. And I think this alone is unlikely to curb the considerable influence and the industry has on which drugs doctors prescribe and which devices that they use. And I think it's important to remember also that as more and more professional groups are beginning to prescribe, the lens needs be widened to all prescribers and not just doctors.

AMT: Like, who else?

DEE MANGIN: Well, across the world as a global trend towards pharmacists and nurses to also be able to prescribe within the scope of practice and certainly we see in countries where it’s being allowed, the marketing also shifts to those professional groups.

AMT: Okay.

DEE MANGIN: In terms of why patients should be worried, there's another aspect to this in that, you know, you might say, well, surely, if people are being informed about newer drugs, the cutting edge drugs, then that’s better, but the thing is that drugs aren’t like new computers or new cars. New models aren’t necessarily better than the older ones. We know they’re more expensive, that’s for sure, because that's where the companies make their money. But we know that only between five and 10 percent of drugs that newly come to the market offer any real benefit of the existing older drugs. And what we also know is that [indecipherable] because they've usually only been tested in short term trials in relative healthy populations.

AMT: Okay. Well, we'll have to leave it at that. Thank you for your points on all of these, Dee Mangin. Dee Mangin, the David Braley chair of the Department of Family Medicine at McMaster University. She joined us from Hamilton. Well, we want to hear from the pharmaceutical industry on this. Russell Williams is the president of Innovative Medicines Canada, which is an industry association representing Canadian drug companies, including 10 companies that have signed on to this new program. They are mostly Canadian subsidiaries of multi-national pharmaceutical companies. Russell Williams is in Ottawa. Hello.

RUSSELL WILLAMS: Good morning.

AMT: And first of all, how do you respond to Dr. Mangin’s concerns that drug companies have too much influence over doctors when they pay for dinners or invite them to go to educational seminars?

RUSSELL WILLAMS: Well, we very much believe that we need to have the relationship with health care professionals and it's all health care professionals, to the doctor’s point, all prescribers. It makes sense that those who discover and manufacture innovative medicines could have a dialogue with those who prescribe and use them. But we have to set it up in a professional, monitored manner and with rules and regulations, which we do through our code of ethical practices, and that's important. And the in the doctors value this this type of education, in many cases where the only one providing it and allows for free exchange of ideas. What we're dealing with—

AMT: Now, she points out that actually statistically, if doctors go to that, they automatically prescribe your drug more.

RUSSELL WILLAMS: What these exercises are doing, when it comes to speakers and advisory boards and conferences, it helps to educate people and what we're trying to do with this voluntary program when the scope has been accepted by all members - but you're right, ten companies are starting it -it's going to shed some light to our contribution in the health care system. We believe there's real value in the education programs that we do and there is an exchange of value so we're trying to document that in a manner that we think will help the public debate about this.

AMT: Okay. So, these 10 companies and I've got the names here – AbbVie, Amgen, Bristol-Myers Squibb, Gilead, Eli Lilly, Merck, Novartis, Purdue, Roche, GlaxoSmithKline - the Canadian companies of the big ones, right.

RUSSELL WILLAMS: Right.

AMT: They're going to be part of this program. It's voluntary?

RUSSELL WILLAMS: Yes.

AMT: They'll release the information or the doctors will?

RUSSELL WILLAMS: No, they will release it and on their web sites in 2017. As you can imagine, this is very complex and takes a lot of time and effort and we thought this would be the best way to start it.

AMT: And it’s aggregate. They’re not going to name the doctors.

RUSSELL WILLAMS: That's right. It's very difficult—

AMT: Will they name provinces? Cities?

RUSSELL WILLAMS: My understanding—I’d have to get back to you on that. I think it's listed as aggregate at this point.

AMT: For the country?

RUSSELL WILLAMS: For the country because we want to help people understand the relationship here. To get detailed information it is a very complex legal process which I think would be much more difficult here in Canada to do, so we thought this would be an offering to move forward.

AMT: Oh, okay. And why is it so difficult in Canada? In the United States, they've got a law that says every doctor who gets money from a pharmaceutical company has to have it listed and available online and they've got 330 million people.

RUSSELL WILLAMS: Well, yes and it's a different system. My understanding in our-- And there's been problems in other jurisdictions to try to get consent. Our privacy and consent laws would probably have to be duplicated in each of the provinces and territories. So we thought this would be the right way to start. Now, will there be progress in this area when we see what we can learn together as a society in 2017? We're open to continually improving and monitoring this. We think this is-- Society is moving towards this movement of disclosure. We think this is a helpful offering to help show the value of these relationships between our industry and health care professionals.

AMT: Okay. Well, we spoke to The Globe and Mail's health reporter, Carly Weeks, who's been working on this story as well. And listen to what she says about what some industry observers are saying.

SOUNDCLIP

It's very rare for pharmaceutical companies or any industry to kind of adopt new rules just on their own out of their own goodwill. I think what they basically see is that the writing is on the wall, that more doctors and patients are pushing back. A lot of experts agree that this is basically an attempt by drug companies to hold off a regulatory change that they just don't want to see.

AMT: So, Russell Williams, are you holding off regulatory change by doing this?

RUSSELL WILLAMS: I think this is an offering to Canadian society in which we can bring light to the important relationship that we have with health care professionals. We already have a code of ethical practices which is very robust and many of the things that I heard earlier are just completely banned and we have rules to deal with it. But we do have a legitimate relationship with these health care professionals and we think this offering and this voluntary measure that we'll learn together from will be helpful in advancing this kind of dialogue in the future. So this is something that we are proud of and the relationship as proud of physicians and other health care professionals are very appreciative of this relationship. This is hopefully the first step of bringing some light to it.

AMT: How much money do Canadian subsidiaries of multi-national pharmaceutical companies now spend educating and providing dinners and trips for doctors? Total.

RUSSELL WILLAMS: Well, there we're going to find that out later on.

AMT: You must have an idea now.

RUSSELL WILLAMS: We do not allow for lavish dinners, gifts, golf. Those are banned. Those are banned. The answer to that question is zero. The rest of the relationship is, this is an exercise and in that we're collecting right now and we'll have a better idea of.

AMT: Okay. And what about things like samples and things like that, how much money is that?

RUSSELL WILLAMS: Well, samples is another issue and, again, there's quite a public debate about it. Some people think they shouldn't be allowed. Other people think it is a very helpful tool for doctors to have and other health care prescribers when testing out a new product and particularly outside normal hours. So, again, I don't think we should we should throw the – old expression - baby out with the bath water.

AMT: Okay.

RUSSELL WILLAMS: I think we need to get some good information and understand this relationship. This offering from our industry is a first step towards that.

AMT: Okay. Russell Williams, thank you for your time.

RUSSELL WILLAMS: Thank you.

AMT: Russell Williams, president of Innovative Medicines Canada, which is an industry association that represents Canadian drug companies. He joined us from Ottawa. We did ask Health Minister, Jane Philpott, to speak to us about this change. Her office declined. Well, the new program for pharmaceutical companies in Canada is voluntary. Canada has no federal or provincial legislation that would compel drug companies to report payments to doctors, even though other countries do - the United States, France, and Denmark, for example. Matthew Herder is a lawyer who teaches at Dalhousie University's Faculties of Medicine and Law. He's joins us from Halifax. Hi.

MATTHEW HERDER: Good morning, Anna Maria.

AMT: How are payments tracked between pharmaceutical companies and doctors in the US?

MATTHEW HERDER: Well, they're made available to the public through a large website database that allows anyone to basically search a physician's name, a company's name, and try and look at all the payments that have occurred basically from 2013 forwards.

AMT: And how complicated has that been?

MATTHEW HERDER: It's been a fairly complicated process to put into place, to collect all of that information, and the database is imperfect. Often there isn't a great deal of information that sort of explains the nature of the financial transaction that's being disclosed. Nevertheless, it's, I think, been a worthwhile undertaking because of the sort of public health impact and importance of these relationships, particularly when they go too far and there's undue influence on prescribing patterns.

AMT: And the US legislation also includes money that pharmaceutical companies give to hospitals and pay into research as well, does it not?

MATTHEW HERDER: That's right. It's not just physicians, but also teaching hospitals as well.

AMT: How long have they had this?

MATTHEW HERDER: So it's been in place-- the law was passed as part of Obamacare in 2010, but the database was set to go live in 2013 and includes payments that occurred in 2013, but actually the information only came out in 2014. So it's a relatively recent development.

AMT: And we heard from our first guest how doctors can be influenced by meetings and seminars. As detailed as the US program is, can it capture everything a drug company can do to influence a doctor?

MATTHEW HERDER: Probably not. It adopts a really broad definition of payment or transfers of value, so it includes not just food, entertainment, actual consulting fees, but also research related grants, education support, travel, charitable contributions, royalties from, say, a patent. So it includes a lot of different kinds of monetary exchanges, not just currency. So, it's very broad in its scope. But there's, you know, the whole basis for these relationships has to do with the relationships themselves. So they might seem like very subtle activities, but they're playing the long game of trying to change prescribing patterns over time and so just the sort of goodwill that's built up by a drug rep returning again and again to the same physician’s offices, that sort of relationship that evolves over time that certainly not captured by this.

AMT: How similar is the US program to the programs in place in Denmark or France.

MATTHEW HERDER: There are important differences. What's notable I think is that in Europe the industry association tried to get out ahead of it as well and offered similar to what's being proposed in Canada to make aggregate information available first. And in that case they required, I think, health care providers, including physicians, to provide consent for any information to be shared in the first place. And importantly, it didn't cover research, which the US legislation does. So I think you see a similar move here in Canada, where the industry association is trying to sort of set the terms that it prefers in the first place to avoid the prospect of legislation, either federally or provincially.

AMT: I'm a little confused there, because we always hear about harmonizing practices between Canada and the US with trade deals and everything else. So, if the US can do this, why can't Canada just harmonize and create similar legislation?

MATTHEW HERDER: Well, I think we could create similar legislation. I don't think there's any barrier from a trade law perspective to doing that, but it would take an act of parliament or potentially all of the provinces sort of deciding that this is something they're going to pursue.

AMT: And who actually does have jurisdiction? Is it Health Canada or is this a provincial area of jurisdiction?

MATTHEW HERDER: It's a tricky question. So, I would say that if we're talking about imposing the obligation of reporting the information, it would be simpler and better to do at the federal level. However, it would have to be sort of part of the criminal law jurisdiction, so they would have to make the argument that this is a requirement that they need to impose on manufacturers to ensure we don't get, you know, a lot of public health problems as a result of these relationships going too far. But because it does sort of wade into provincial jurisdiction and provincial jurisdiction both over health and sort of regulating health professions, like medicine, there's an argument that provinces would be better positioned to do this as well. So that's a tricky underlying legal question.

AMT: Okay. Matthew Herder, we have to leave it there. Thank you for your time today.

MATTHEW HERDER: You're welcome.

AMT: Matthew Herder, lawyer and associate professor at Dalhousie University's Faculty of Medicine and Law in Halifax. And we'd like to hear your thoughts on this story. How important is it to you that payments to doctors or hospitals by pharmaceutical companies be publicly be reported and tracked? Let us know. What are your thoughts on this voluntary program, and do you have concerns on the relationship between drug companies and doctors? We're on Facebook. We’re on Twitter, @TheCurrentCBC. Or go to our website, cbc.ca/thecurrent and click on the Contact link.

Back To Top »

Librarian under house arrest in Moscow accused of anti-Russian propaganda

Guests: Susan Ormiston

AMT: Hello. I’m Anna Maria Tremonti and you’re listening to The Current.

[Music: theme]

AMT: Still to come, not guilty on all five charges. That was the decision in the sexual assault trial of former CBC host Jian Ghomeshi last month. In the wake of that decision questions have arisen about the justice system and whether it needs reform to better deal with sexual assault cases. A legal round table on that issue is coming up, but first a Kafkaesque story, one that gets filed on the non-fiction shelf.

[Music: theme]

AMT: When Russian annexed Crimea from Ukraine in 2014, the move was a loud one, a marked crescendo in the troubling crisis between Russia and Ukraine, followed by the crackle of gunfire along the two countries’ shared borders. In the years that have followed, tensions have continued to run deep and loud between the two. Still, one place you might to expect to remain quietly removed from the noisy conflict would be inside a library, specifically, the Ukrainian library in Moscow. But that library was the scene of a raid last October by Russia’s security forces and swept up in that raid was a woman named Natalya Sharina, accused of violating the law on countering extremist activity. Ms. Sharina has been under house arrest since that time. The CBC’s Susan Ormiston has been following this story. And she joins me from Moscow. Hi.

SUSAN ORMISTON: Good morning.

AMT: Talk to me a little bit more about this woman. Who is Natalya Sharina?

SUSAN ORMISTON: Well, first off, she's a career librarian. She's been doing that for 40 years. She's Russian. She's 58 years old and she lives in Moscow and since 2011, she's been the director of what's called the Library of Ukrainian literature, and this is a small state-funded library in Moscow and it runs the usual program of, you know, library activities for kids, it has open stocks for borrowing, and it's used by the public, but also for researchers, academics doing a lot of research.

AMT: Well, take us back to that day last October. What happened?

SUSAN ORMISTON: Yeah, it was in the morning, October 28, about 8:00 in the morning. Sharina was at home in her apartment. Investigators arrived unannounced at her door. They came in searched her apartment, took computers, flash drives, textbooks, and then they put her in the car and drove her to her library and they raided the library as well. These were, as far as we can tell, members of Russia's investigative committee supported by FSB officers. They were armed, some of them wore masks. There is video showing one man leaving the library with great big white garbage bags, presumably books and texts. He has a gun, he's in camouflage and masked. Now, Sharina was told she was a witness. Then at 9:30 that night, they came to her home. They picked her up, put her inside a police van, and drove her to the jail. Kind of a traumatic ride, Anna Maria. She was seated on a metal bench, very close quarters, bouncing up and down. She said she injured a disk in her back on that ride. She was interrogated in the jail for three hours and then officially charged and held for two nights and two days. Her family was terrified, to say the least.

AMT: And where is she now?

SUSAN ORMISTON: Well, after the court hearing, she was put under house arrest. She's imprisoned inside her Moscow apartment where she lives with her husband. Her 33-year-old daughter, Anna Pavlukova, met with me outside her mother's apartment. We stood outside the building and we talked about what had happened. And at the start, I was asking Anna if we could meet her mother and her answer was simply unequivocal.

SOUNDCLIP

No. She mustn't communicate with anybody. She doesn't have any opportunity, because if she communicates or if she goes out, if she shows, she will be arrested and taken to prison.

AMT: As you say, unequivocal. Can her daughter communicate with her, Susan?

SUSAN ORMISTON: Yeah, Anna can and Anna’s husband as well as Sharina’s husband - the immediate family, essentially. And you know, Anna Maria, I had hoped that maybe we could see Ms. Sharina, you know, standing on her balcony and maybe even talk to her by mobile phone, but her daughter wouldn't even point out which apartment was theirs. The family is still quite afraid that things could happen. Anna said they're afraid of hate and that someone might come and do something and they simply cannot risk it. So I began to ask Anna what life is like for her mother, you know, really imprisoned inside her own home.

SOUNDCLIP

She can’t even throw out garbage. She can’t go out. She couldn’t leave the apartment for free amounts and then in court one judge said, well, you may go to the hospital if you feel dead. The first two months were horrible because-- The first week, she believed that everything will finish, that it won’t last for a long time. Then she was angry, then she was wondering, why does it happen to me? And she's wondering, she's trying to remember something that she did wrong that can be the reason of all this.

AMT: So, Susan, Natalya Sharina is a prisoner in her own home. What exactly is she accused of?

SUSAN ORMISTON: Well, basically, stocking books that have been banned by Russia. The follow is she is inciting ethnic hatred. The books are nationalist Ukrainian books, which the state has put under the umbrella of anti-Russia propaganda. Now, Sharina vows that any sensitive books were not in open stock at all. They were in a small room that was closed off from the regular borrowers for researchers who needed to look into this material. But investigators pulled out about 170 books and texts, we’re told. There's a twist, though. Lawyers say they have witnesses who suggest that the books were planted, some of them, the most egregious ones, were planted in the open shelves. And as Anna explained to us, in her opinion, there isn't any evidence of her mother promoting these books, promoting extremist literature. So I asked her what authorities accuse her mother of.

SOUNDCLIP

ANNA PAVLUKOVA: That she's an extremist, that she spread extremist literature. But they can't say how she did it. She came, she proposed it to readers or maybe she made scans of these books or maybe she said out loud, I love Bandera, I don’t know how to say [indecipherable], I think that Moscow is the enemy of Ukraine. Now, they can’t say what actually did she should do to become an extremist.

SUSAN ORMISTON: Did she do any of those things?

ANNA PAVLUKOVA: No. She’s Russian. She loves Russia. And she’s not full of hate as many other people.

AMT: Interesting. And she is a Russian, not Ukrainian, but, Susan, who are some of the writers whose work she's accused of carrying who are seen as such anti-Russian writers?

SUSAN ORMISTON: Yeah, well, top on that list is Dmytro Korchynsky. He's a Ukrainian nationalist and head of a group called Brotherhood, which is considered a terrorist organization in Russia. But there are also books by Stepan Bandera - you heard Anna mention him - a controversial Ukrainian nationalist with ties to the Nazis. And various other texts dealing with really a disputed history of Ukraine and Russia. The Russian press even reported that in this raid they picked up some children's books and said that there were some texts with swastikas. There is a list, Anna Maria, a current list, and growing, of banned literature in Russia.

AMT: And does Miss Sharina have a lawyer? Has someone taken on this case?

SUSAN ORMISTON: Yeah. When she disappeared into detention her family called 13 lawyers in Moscow and none of them would take her case. This is, we're told, a common problem in Russia because some defence lawyers are either allied with the FSB or they're afraid of them. So these cases are hard to argue. Human rights activists have ultimately put them in touch with two lawyers, Evgeny Smirnov and Ivan Pavlov. I first met Ivan Pavlov in the lobby of Russia's Supreme Court. Interestingly, he was arguing another case on treason and he told me that treason cases in Russia tripled in 2014 after the Ukraine-Russia problem and that the laws governing treason and extremism and state secrets have really been broadened over the past four years under President Putin’s decree. So I asked him what he thought was behind all this.

SOUNDCLIP

IVAN PAVLOV: It's all, I think, all related to the situation in the Ukraine or international relations of Russia, very, you know, militaristic [indecipherable] government. And when government always look for enemies abroad, but at the same time, somebody wants to look for internal enemies and high treason. It's a good article to, you know, implement to define internal enemies.

SUSAN ORMISTON: Keeps you busy.

IVAN PAVLOV: It's not an easy job.

AMT: Well, listening to those phrases - internal enemies, high treason, extremism - what does the Russian government say about this?

SUSAN ORMISTON: Well, in the big picture, Anna Maria, there is a hyper vigilance in Russia right now as he describes it, you know, as a kind of a hunt, a vigorous search for enemies of the state - you often hear this in casual conversation - opposition activists even, even leaders of the opposition are called traitors. So are those who oppose the annexation of Crimea. Russia's not shy about this. The state broadcasters promote this in their programming. And in a speech, the FSB recently, President Putin made it clear that there are foreign enemies that are trying to steal secrets and disrupt order inside the country. We did contact the FSB. They said they wouldn't discuss this case nor would Russia's investigative committee.

AMT: And just to clarify, the FSB is their special security - used to be called the KGB, right?

SUSAN ORMISTON: Yes, yes. Their security service, formerly the KGB.

AMT: I should mention that we also reached out to the Russian Embassy in Ottawa and officials in Ottawa did not give us a statement and said they referred us to an article from a Russian news agency that said Ms. Sharina’s detention is, quote, “not on the Kremlin's agenda,” end quote. Susan, where does that leave Anna's family?

SUSAN ORMISTON: Well, as you can imagine and you can hear in her voice, Anna is very concerned about her family situation, how this is affecting her parents’ health. Her mother has high blood pressure and has seen a spike in that numerous times over this period. Her mother's nerves have been affected. She has back problems. But, in a way, it's more, I think, Anna Maria, the whole family is living in limbo, especially her father and she gave us a bit of detail of that.

SOUNDCLIP

And my father, he's under an arrest too, I must say, because he can’t leave. He’s always with mother and he goes buys food and he entertains her because it’s impossible for to be alone and can communicate, well, only with me, with him - only me, my father, and my husband, because we’re relatives.

AMT: Well, she makes the point that her dad's caught up in this as a virtual prisoner as well. But, Susan, did Natalya Sharina ever expect this? Did she or her daughtere have any idea why this actually happened?

SUSAN ORMISTON: I don't think they can explain why, but there is history here. The first search of the library actually happened in 2010. It went through this. Any potential charges were dropped, the case was closed the following year, it all went quiet. But her daughter Anna told me that she always believed they would come back and then they did last October. This apparently started with a complaint this year from the municipal politician who’d heard that there was extremist literature in that library. Anna was also working in the library as a librarian but last year she quit because she was thinking as long as she was there her mother's house arrest might be extended. She was, you know, kind of provocative element for the authorities. They have been told that the authorities want to turn this into a library of Slavonic literature, effectively, sort of, shut down or minimize the Ukranian focus. But Anna is very critical of the Department of Culture which funds the library. She says they've been quite unhelpful. And she believes they want to get rid of all of the librarians there.

SOUNDCLIP

So, we're too noisy. We demand to be respected and they are afraid of us. We see it in their eyes and they want us to disappear. They have too many problems because of us. People from the Department of Culture will ask them, why didn't they support us? Why didn't they call any lawyers? Why didn't they ask how does the director of the library feels? They didn't ask. I can say that they betrayed us. And we said it before and I say it now that they betrayed us.

AMT: She's pretty upset, huh? So, no one stood up for the library or the librarians?

SUSAN ORMISTON: Yeah, that's righ.t I think it's felt quite a singular fight. And, in fact, Anna was herself targeted last December in the middle of the month. Authorities suspected her of fraud.

SOUNDCLIP

My apartment was searched - the apartments of all the librarians. They took one small book and they took a flash card from my computer, yeah.

AMT: It’s so interesting, huh, Susan? They say that governments always go after the writers and the books and here we have a story all about this. But she says other librarians have had their homes searched as well. What's going on?

SUSAN ORMISTON: Yeah, well, the same day that they came to her apartment, Anna’s, another librarian’s home was searched and also there was a raid at the home of a man named Valerii Semenenko and he runs an NGO in Moscow called Ukrainians in Moscow and he said they turned his apartment upside down, they took his children's laptop, his wife's, and as soon as the investigators left, a TV crew from NTV, which is closely allied with the Kremlin, appeared at his apartment door. So, two things at work here, according to their lawyers. One is they believe it's a kind of intimidation and the other is they believe that authorities are trying to bolster, perhaps, a weak case by searching further afield.

AMT: And so it sounds as if the authorities are pretty determined to keep pursuing this.

SUSAN ORMISTON: Yeah, for sure. I mean, it leaves Anna’s family in limbo, in a precarious position. They can't get on with things. Legally, Sharina can't be held beyond the end of this month in house arrest, but there could be a new twist at any time.

SOUNDCLIP

ANNA PAVLUKOVA: I can’t imagine a situation when they close the case and say, oh, excuse us that we have been terrifying you for five years and that we kept you at least for half a year at home and that we ruined your health. Oh, excuse us. I don’t believe this. I think that trying to find, well, at least something, but if there is no crime, they may try to, yes, make one up.

AMT: If there's no crime, they may try to make one up? She believes the government's capable of that.

SUSAN ORMISTON: Well, that's the climate she believes she lives in currently and we discovered late last week, Anna Maria, that tomorrow, on Tuesday here in Moscow, Sharina will face new charges. This just came up. They are embezzlement charges or misappropriating library funds. This is exactly what the daughter had feared. And it's actually a more serious charge, which carries a sentence for up to 10 years in prison. Now, her lawyer, Ivan Pavlov, whom we've heard from, said that when the original case is weak they are going to trump up something. That's his opinion.

AMT: And is the lawyer, Ivan Pavlov, also worried about getting on the wrong side of the government even in taking this case, Susan?

SUSAN ORMISTON: No. He does this as his stock in trade. He does a lot of freedom of information, extremism, treason cases, but he does talk about how difficult it is to argue against the government. He said that he and his colleagues take cases only when they believe they can have some effect, but they often lose and part of his primary goal, though, is more advocacy, shining light on these cases so they don't disappear into secret proceedings in secret court under wraps. He himself has been beaten up. This was years ago but he says that independent lawyers are watched. They expect, they prepare for some so-called unexpected events. So when I talked to Pavlov at his offices in St. Petersburg, Russia, I asked him if some people even accuse him and his colleagues of being traitors themselves.

SOUNDCLIP

We are not traitors. We are patriots. We are real patriots, because we want good for our country. We want to bring it to the future, but not in the past. Now, we just have to know all our—We have to learn some lessons. When somebody holds the government during the, you know, more than ten years, it’s not normal for democracy. If we only have one person in the government, like, head of the government, like, head of the power all the time, during a long period, and I think it’s the main problem for Russia. Russians think that there is no alternative for Putin, but I think there are alternatives. We just have to look around. We will get a new country when we get a new leader.

AMT: He's quite pointed, huh. It’s interesting to listen to him. Susan, does Natalya Sharina’s daughter think there is anything she can do?

SUSAN ORMISTON: I don't think so. She appears powerless. At least, she describes feeling that way, but she's fairly resilient. When we were finishing up our chat it was just a spectacular spring day here in Moscow and I asked Anna about the future, what it holds and she began to tear up a little bit. You know, I think she's quite sad. She sees her mother's penalties as a sad and predictable consequence of this climate of fear and repression and suppression in Russia right now that she feels, you know, a place where Russia has become more isolated and very suspicious of threats outside and so it continually looks for enemies within. I think, Anna Mariam, Anna would say, this is become her own fight against that culture.

SOUNDCLIP

I hope that people will understand something, that it isn't possible to live in hate, that it isn't possible to live in hate to the other world, that the most important thing for us, for Russians, I guess, to respect and to love each other. This is not to think about some other world as something horrible to find, that there are always enemies over the world. That is not true. I do believe that it is not true and I do believe that we should look at each other as members of a family.

AMT: She sounds really sideswiped, eh, Susan? Like, this is not anything they expected.

SUSAN ORMISTON: No, and she’s young. She's 33. She's trying to get her life going and have a career. She doesn't feel she can work anywhere in the cultural industry in Russia right now.

AMT: Susan Ormiston, thanks for bringing us the story.

SUSAN ORMISTON: You're most welcome.

AMT: Susan Ormiston is a CBC senior correspondent and she is currently based in Moscow. Let us know what you think of what Susan's had to tell us today. You can tweet us. We are @thecurrentCBC. Find us on Facebook or go to our website, cbc.ca/thecurrent, and click on the Contact link. That dispute between Russia and Ukraine becoming very personal for one librarian. And make sure you are here tomorrow for The Current because we are hanging out on a dairy farm where the cows are milked by robots. Rick and Doreen Shantz are the high tech farmers and for them, it’s a big change from the way things used to be on their farm.

SOUNDCLIP

RICK SHANTZ: 1912 is when my great-grandfather would have bought the farm.

VOICE: What do you think he would make of all these changes?

RICK SHANTZ: I’m not sure what my grandpa would have thought – my great-grandpa, sorry - but I know my dad, for him, too it was-- He never really discouraged me, but he didn't really encourage it. He's wondering, what are you doing, hey? Very skeptical about the whole process of this automated milking and stuff.

VOICE: And now a few years in, has he changed his mind?

RICK SHANTZ: Oh, definitely, eh. I think he quite enjoys walking through and just seeing how everything’s working.

AMT: So, join us for that tomorrow. Julian Uzielli will bring us the full story of robotic farms and what's happening on farms with high technology, where the cows line up to be milked in nice little cow lines. That’ll be tomorrow on The Current. Coming up next putting the justice system on trial - we pick up on a conversation that has only grown louder since last month's acquittal of former CBC host Jian Ghomeshi, asking whether the system needs to change the way it treats sexual assault cases. I'm Anna Maria Tremonti. This is The Current on CBC Radio One.

Back To Top »

Legal experts call to update sexual assault laws after Ghomeshi acquittal

Guests: David Butt, Breese Davies, Peter Sankoff

ANNA MARIA TREMONTI: Hello, I'm Anna Maria Tremonti, and this is The Current.

SOUNDCLIP

In my view, if what you're saying, justice wasn't served, is I didn't get give you the result that you wanted, and you thought you were entitled to, then I guess you could say that in a colloquial way. But I think justice was served. I think it is pretty significant that in one of the highest-profile cases, in one of the cases where everybody had an opinion, sitting their couch tweeting it out in 140 characters or less, where people expressed opinions not having heard a word of evidence, that you knew you that could walk into court and that there would be an impartial person that would decide on the evidence that is heard. And that happens not just in this case, but each and every single day, that we would not issue judgments based on what you think the result should be. That's an extraordinary thing. That's something that we should be incredibly proud of in this country. Because that means every single one of us has a fair shake. And so you can tweak the system, you can criticize the system in a knowledgeable way, and it does, it constantly gets recalibrated, as it should. But slam dunk results? Guaranteed results? Presumptions? That's not what a fair system is about.

AMT: An impassioned defence of the Canadian justice system by defence lawyer Marie Henein, from her interview with Peter Mansbridge on CBC Television’s The National last week. Marie Henein, of course, has become a household name after representing former CBC host Jian Ghomeshi. His first sexual assault trial concluded last month when he was acquitted on all five charges related to allegations from three women, in a trial that garnered international attention. Jian Ghomeshi faces trial on an additional sexual assault charge this June; a charge to which he has also pleaded not guilty. But the protests and rallies to support those who say they have experienced sexual assault were already planned before Jian Ghomeshi's acquittal last month. People took to the streets and to social media before and immediately following the judgment, with signs and slogans that said the justice system had "failed women." And inside the legal system, this high profile case has prompted debate about whether our laws and justice system need an update. To delve into these questions, I'm joined by David Butt. He is a criminal lawyer who often represents complainants in sexual assault cases. He's with me in Toronto. Breese Davies is a criminal lawyer and Vice President of the Criminal Lawyers Association. She's in Bracebridge, Ontario. Good morning to you both.

BOTH: Good morning.

AMT: David Butt, let's begin with you. How well equipped is the justice system in dealing with sexual assaults such as the ones listed in the charges Mr. Ghomeshi was just acquitted of?

DAVID BUTT: It’s certainly my contention, Anna Maria, that the justice system is structurally incapable of responding to the deep degree of nuance that arises in sexual violence that incurs in the context of a preexisting relationship; whether it be work colleagues, or relationships, and so on. And that my feeling is that there should be a range of options available for the survivors of that kind of violence. One option which would include the criminal justice system, but would it include other options like civil options or some kind of specialized tribunal.

AMT: Okay, Breese Davies, we heard Marie Henein say the justice system constantly gets recalibrated, as it should. To what extent does the Ghomeshi trial illustrate a need for recalibration, in your view?

BREESE DAVIES: In my view, it doesn't raise issues of any need for a systemic recalibration. Look, we should always be reflecting on the justice system and making adjustments and doing better and responding as we learn more and understand more about how the system works and how it doesn't work. So that’s not to say we shouldn't take this opportunity to reflect on the system and to ask these questions. But fundamentally, I don't think it's a broken system; in fact, I think it's a system that works incredibly well. The numbers, the statistics that are out there, is that the conviction rates and acquittal rates for sexual assault cases are comparable to other types of violent offenses in Canada. And while I agree with what David said, that there should be different options, those options largely are available right now. So I don't think we need a fundamental overhaul of the system.

AMT: Can I just clarify, you say the conviction and acquittal rates are about equal to other violent cases that go to trial?

BREESE DAVIES: Indeed. Stats Canada released statistics; they do this on a regular basis. And the 2013-2014 statistics are that the conviction or guilty rates for violent offenses is in the range of 50 per cent, the acquittal rate for violent offenses generally is eight per cent; and for sexual assaults, the conviction rate or guilty rate is 45 per cent, and the acquittal rate is nine percent. So it's certainly in the in the range of other violent offenses, it's not sort of wildly off. And then there are a number of withdrawn charges in that category, that are withdrawn or stayed, which would capture the sorts of alternate dispute resolutions that David's talking about: peace bonds, which are agreements that people won't have contact with each other, or diversion, where there is some other form of dispute resolution would be captured in the other 45 per cent.

AMT: David, you don't see these statistics in the same way.

DAVID BUTT: No, I don't, and I think perhaps the most compelling statistic is against Statistics Canada data, where out of a thousand reports of sexual assault, 967 of them are not reported. That's indicative, from my perspective, of a very widespread disillusionment, or a failure to even access the justice system. And we can talk all we want about the tiny percentage who do get there, but when we're missing that large a percentage of the constituency, I say we have to fundamentally re-examine how we're serving the survivor community.

AMT: David, you say that the justice system fails people who report they've been sexually assaulted. How?

DAVID BUTT: I say that the justice system is structurally incapable, because proof beyond a reasonable doubt is an extremely high standard. And let me be very clear, I'm not in favor of abandoning proof beyond a reasonable doubt in the criminal context. I simply make the point that it's incapable of responding to the nuanced reality of relationship violence, and that we need to have realistic, publicly funded options, so that those survivors can get the validation treatment that they need. And we can have a broader conversation about the extent of this, because right now, proof beyond a reasonable doubt doesn't mean the person didn't do it. In fact, juries are told if the person probably did it, they have to acquit. That's a level of commitment to certainty that I say invites us to abandon the better view of the truth in favor of a very high criminal standard. And it's great to do that if what we're doing is putting somebody in jail and stigmatizing them with a criminal conviction, but in every other realm of human activity that comes before the court apart from the criminal law, we're satisfied with probably did it. So we need to give sexual assault survivors access to that same level of justice on a lower standard with fewer consequences for the person found to have committed wrongdoing so that we can begin to address, broadly speaking, the extent of sexual violence.

AMT: Okay, you're losing me because you're qualifying here. What are you actually proposing?

DAVID BUTT: I'm proposing that there be realistic options, so that police investigate a case, crown attorney takes carriage of the case, has a deep conversation with the complainant and says, are we better off going criminally here or going by some alternative route? And if you want to go an alternative route, we'll take it that direction for you.

AMT: What is the alternative route?

DAVID BUTT: You could have a choice: you could have civil proceedings, in which the crown attorney is actually carrying forward the civil proceedings on a lower standard of proof, balance of probabilities; or you could have mechanisms that are more akin to restorative justice, depending on what meets the needs of the complainants and other people involved in the case.

AMT: And civil proceedings, meaning what?

DAVID BUTT: A civil lawsuit.

AMT: So like, you’ll sue the person.

DAVID BUTT: Exactly, right. So a civil lawsuit carried forward by the crown prosecutor, and that would go before courts on a civil standard of proof, which is balance of probabilities, it's lower. In addition, the other person involved has an obligation to come forward, provide evidence. They cannot invoke the right to remain silent in civil proceedings. So you get a more balanced assessment of what truly went on.

AMT: What if the other person says nothing happened, why do I have to go in front of your complainant?

DAVID BUTT: We have an allegation. We certainly do that in criminal cases all the time.

AMT: Well yeah, but you're just saying criminal cases, that isn't good enough, though.

DAVID BUTT: That's right, and so what I'm saying is if someone alleges they were a victim of sexual violence, it's sufficiently important if that allegation is credible, it's sufficiently important that it come before the courts and be explored fully. And my contention is that in a civil proceeding, you have that opportunity to explore it much more fully because you have the obligation that the other party actually respond.

AMT: Breese Davies, what do you think?

BREESE DAVIES: Well, I think that there are a number of problems with that recommendation. Look, complainants in sexual assault cases now have the option, if they want to, to sue civilly regardless of the outcome of a criminal prosecution. The three complainants against Mr. Ghomeshi could avail themselves of a civil lawsuit should they choose to do so. And the fact that he was acquitted does not mean that they would not be granted a remedy in a civil lawsuit. So that's an option that's already available. The suggestion though, that this should somehow be led by the police and led by crown attorneys is very problematic, because as David said, there are a certain number of these cases that go unreported. And we have to ask ourselves, why are they going unreported? And I represent complainants as well, this is, you know, lots of defense lawyers have these experiences as well, and sometimes it is the act of having to complain to the police that people are resistant to, or the idea of having to go to a crown attorney, who is not a lawyer of their choice, and explain their story to them. So if the problem of underreporting is at the intake process, that the mechanism by which they have to tell their story to strangers about intimate issues in their lives, if that’s what is preventing some people from reporting, this new structure of well, the police will just investigate it the same way and the crown will take carriage the same way but you'll go through a different court process at the end of the day, doesn't solve that problem. And the other problem is if someone says it just didn't happen, I didn't sexually assault this person or it was consensual, which are sometimes the issues in sex assault cases, even if it goes to a civil court, complainants will be subject to cross-examination and testing of their evidence. Which, again, is another one of the factors that some people point to as one of the things that prevents women from coming forward. So this idea that we're just going to get everybody into the same system we have now, and then there will be a fork in the road at some later point in time where people can choose whether they proceed with a criminal conviction or civil prosecution, really doesn't address what I understood some of the concerns were around why people aren't coming into the justice system. And it doesn't prevent, at the end of the day, the need to test various versions of events if there's a dispute about what happened.

AMT: Well, David Butt and Breese Davies, stay with me, we have another person waiting to join us in this conversation. Peter Sankoff is a Professor at the University of Alberta's Faculty of Law. He's joining us from Edmonton, hello.

PETER SANKOFF: Good morning.

AMT: So what do you make of a discussion, that in the aftermath of the Jian Ghomeshi trial and acquittal, our laws need to change or we need to have more options on the issue of sexual assault prosecution?

PETER SANKOFF: Well, it's interesting. I mean, it's hard to disagree with Marie Henein after the week that she had, or after the weeks that she had. But when she talks about our laws being constantly recalibrated, I couldn't disagree more. I don't think our laws are recalibrated often enough, and I think that's one of the fundamental problems at the core of the system. And not to poke at this particular trial, but the problem is we don't do enough systemic-wide study of what's going on. So what we do is we end up talking about these matters within the context of individual trials, or results that we might not agree with, but we have just abdicated the role of actually looking at the system as a whole and actually trying to reform it, and really that starts with the federal government's approach to criminal justice over the last 30 years or so. There just hasn't been enough wide-scale systemic reform. So it's not necessarily whether any particular choice is a good one or a bad one, the problem, I think, stems from the idea that we're not really looking at these choices at all.

AMT: Okay, and before we go further on that, let's just hear a few more of David Butt’s ideas, because you've also written, David Butt, that in your proposed alternate forum for sexual assault, and I'm quoting here, “the alleged perpetrator could not invoke the right to silence, could not decline to answer allegations.” What effect would that have?

DAVID BUTT: I think it would lead to much more responsible fact-finding in a context of a lower standard of proof. We routinely do it in civil cases. Breese is right, that a civil option exists right now. The problem is it's economically unavailable. The damages, the monetary compensation that you get if you successfully sue civilly, are in most cases well below the legal costs of actually carrying it forward. So there's a huge percentage of incidents of sexual violence that are simply not viable under our current system of privately funded lawsuits. We need to look at providing that kind of healing and reparation for complainants, publicly funded.

AMT: Breese Davies?

BREESE DAVIES: Well, I mean, there's certainly room to think about access to justice issues all the time. That is certainly something we need to think about, both in the criminal justice system and the civil law process. And there are, in fact, options available to people in terms of clinics that represent complainants, and there are other models that we can think of. But to suggest that it will be the crown attorneys, who are already in my view subject to significant funding constraints, I think that's problematic. We do need a system, there are mechanisms in place in the civil law to avoid false complaints. We also need mechanisms, as we do in the criminal justice system, with the high burden of proof, which prevents wrongful convictions. We also need a mechanism on the civil law side that prevents false complaints or allows for the detection of false complaints or discourages people from falsely complaining in order to get some monetary advantage. And one of those things is the cost of the litigation and also what we call cost consequences. So if you aren't successful, you could be ordered to pay someone else's costs. So I'm not saying we've got it right, I'm not saying we've got the right calibration on those issues, but we do need a system where it's not, you can't just walk into a police station, have someone pay for your litigation, and you can make any complaint you want. We do need a system that recognizes the reality and the risks of false allegations, and the stigma that comes with it, whether it's in the civil context or the criminal context.

AMT: David Butt?

DAVID BUTT: Yes, I think that that's exactly why I say we need to retain the professional objectivity of trained investigators, the police, and trained litigators, crown attorneys, who are able to do that kind of screening to weed out. And incidentally, let's not be driven by the bugbear of false allegations: they do exist, but they're a tiny percentage. So we do need to have professionally investigated and professionally carried forward prosecutions to ensure that, precisely what Breese says, we maintain the factual integrity. But I also think we need to go back to, Peter makes an excellent point about the need to engage in thorough research and thorough systemic review, because if we have a 967 out of 1000 non report rate, we're failing to reach a major audience, and we need to do some extensive research to really understand why and how we can fix it.

AMT: Well, are you then, you're not failing to reach them when you get to court, you failing to reach them ahead of time. And is there a question here on how the investigations are done? Can you, Peter, even by looking at it now, the investigations of sexual assault, how do they rate next to other violent crime investigations in terms of how police go after more details before it ever gets to the court?

PETER SANKOFF: Yeah, it's hard for me to speak about actual cases, or the way in which the police are doing things, I haven't done that sort of research. But there's no question that I think David's point is a good one, that we need to be looking in that direction. If the numbers are as high as they are, and we're not sure how many cases are coming forward, or they're not a reasonable percentage of those cases, it's certainly worthwhile to look at the intake procedure. In the U.S., for example, that sort of study has been brought to light recently, this problem of the way in which the police handle the cases at the get-go. And again, I don't want to criticize individual police stations, I don't know if that's happening here, but it's certainly worthy to look at in more detail: what are we doing at the intake stage to make these cases more practice ready and able to go forward more effectively.

AMT: And you talk about a lower standard of proof, David Butt. Peter Sankoff, can you have a lower standard of proof in the administration of justice, when it comes to criminal law?

PETER SANKOFF: It's really tricky. I mean, certainly, I think, in the in the criminal system it would be close to impossible to suddenly impose a different standard of proof. The question is whether I think David’s proposing taking it out of the criminal justice system, and that raises a lot of questions. I share some of Breese’s reservations about the nature of the system in that way, there would be questions about legal aid, the ability of defendants to actually get legal aid under some sort of quasi-civil system. And that's, I don't want to say it's unworkable or impossible, I think anything could be looked at as a viable option to change the way in which we do things, but I certainly, it wouldn't be my first step, let's put it that way.

AMT: Peter Sankoff, Canada has reformed law around rape law, and it's reformed it to sexual assault law, does it need more reforming?

PETER SANKOFF: Yeah, that's the interesting question. I mean, if you look at Canada's reforms, you ask everybody about this and the first thing out of their mouth is, well, our substantive law is pretty good. And the reason for that is because we had a healthy discussion about the way in which we deal with substantive law back in the 1980s, it's been that long since we've reformed the actual way in which we prosecute these cases. And I think the next study needs to be looked at, the way in which these take place in the system. And the place that we haven't done enough, in my opinion, is the law of evidence. The law of evidence has been developed by judges, and what we've seen is it's given a lot of free rein to the way in which the system undergoes the questions of cross-examining witnesses, and etcetera. And I think it's a real ripe place for some analysis, to go back and say, well, are we treating these cases in the right way? And without that sort of systemic review, it's really hard to make those sort of calculations.

AMT: David Butt?

DAVID BUTT: Yes, I agree that there should be no area of our law or procedure that is off limits in terms of a deep rethink when again, we're failing to reach that significant segment of the survivor population. So I certainly agree with Peter. I tend to be somewhat more skeptical about the likelihood of piecemeal internal reform, simply because we've tried a number of different reform agendas addressed at complainants specifically over the past 30 years, starting, as Peter mentions, with the reform of the rape laws themselves to sexual assault. We've introduced privacy provisions for complainants’ records, we've abolished the doctrine of recent complaint that assumes somebody has to report right away, we've put the rape shield law in place. We've taken a number of these kinds of steps, and we still are failing to reach that community broadly. So I think the time has come after decades of tinkering, to consider more wholesale reform.

AMT: Breese Davies, where do you think the system is falling down, then?

BREESE DAVIES: Well I think it's interesting that we keep going back to the, we're not reaching the population despite the reforms in the trial process. And I think that raises real questions about whether or not it's the trial process that’s the problem, or the intake mechanism that's the problem. And in my submission, while I agree that we should constantly be looking at issues from a systemic level to see whether we're doing it right, and we're getting it right, and can do it better, in my view there are a few things that are off limits in terms of analysis. One is ensuring a fair trial to the accused. No matter what tinkering happens, whatever systemic reform happens, the trial must, at the end of the day, be fair, because it is going to result in someone's liberty being taken away from them, someone going to jail. And we also have to ensure that the presumption of innocence remains intact, and the burden of proof remains intact. So it may be that we need to rethink how these cases are getting into the system; who's doing the investigation, how they're done; what people know about the system, because I think there's also a large issue about the fear of the unknown preventing people from reporting. So the idea now that in Ontario, complainants can get access to lawyers for a number of hours of legal advice, I think it will be interesting to see the effect that that has on the reporting. And we've heard that since the Ghomeshi case has received so much public attention, there has, according to the Barbra Schlifer Clinic, been a large increase in the number of complaints. So it may be simply a matter of, you know, people not understanding the system, not knowing what their rights are, not knowing what to expect, is what's preventing people from reporting, if that’s what they want to do; or it may be something different. So I think we do need to look at it, but I think we need to be careful that whatever we do does not compromise the foundations of the system, which are the presumption of innocence and ensuring a fair trial.

AMT: David Butt?

DAVID BUTT: Yes, one thing very clear, I totally agree with Breese. We cannot lower the burden of proof in criminal cases, we cannot do away with the presumption of innocence in criminal cases, and we have to have a fair trial. I don't see those as the answers. We need to look beyond the criminal justice system. We have frequently in our history moved matters that involve significant complexity out of the courts and into specialized tribunals with different standards of proof, different ways of proceeding, and done that fairly to everyone involved. I think we need to look at that option in the context of sexual violence.

AMT: Peter Sankoff, where do you want the legal community to turn its attention on this, then?

PETER SANKOFF: Well, I think that good points are being raised by everybody here. I think, personally, I would like to see the legal community looking at a more permanent system of reform of criminal justice, because I think the issues go beyond just the sexual assault context. But, I mean, I do think a detailed look at both issues, the way in which cases are brought into the system and perhaps looking at some of the alternatives David raises, but also, I don't think the trial system is immune. I agree that we need to retain the right to a fair trial and the presumption of innocence, those are core things. But there's no question that the way in which we conduct business in the courts has a real impact on the individual lives of people who are in there. And there are real questions about what constitutes a fair trial in this context? Does it allow you to cross-examine on any single thing that you wish to do so? We can impose limits, if we ultimately decide that we can do so, in accordance with the fair trial principle. We've done it before and I think we could do it again.

AMT: We have to leave it there, thank you, all of you, for being part of this discussion.

ALL: Thank you.

AMT: I've been speaking with David Butt, criminal lawyer who often represents complainants in sexual assault cases. He’s in Toronto. Breese Davies is a criminal lawyer and Vice President of the Criminal Lawyers Association. She’s in Bracebridge, Ontario. Peter Sankoff is a Professor at the University of Alberta's Faculty of Law. He joined us from Edmonton. If you want to add to this conversation, you can tweet us @thecurrentcbc, find us on Facebook, send us an email from the site, cbc.ca/thecurrent. That is our program for today. Now finally, we began today's show with a conversation about the pharmaceutical industry, and its payments to doctors, and some of the concerns raised by the relationship. Comedian John Oliver has tapped into that same issue for his program, Last Week Tonight on HBO. As part of that segment, he produced this satirical spoof of a TV drug commercial, we'll leave you with that. I'm Anna Maria Tremonti, thank you for listening to The Current.

SOUNDCLIP

[Music: Light-hearted]

VOICE 1: Have you noticed anything strange about your doctor? Does he seem happier than usual these days?

[Crowd laughter]

Is he quick to prescribe drugs you think you might not need?

VOICE 2: You know what? One more, actually.

VOICE 1: Well, that may be because your doctor's been taking pharmaceutical money. Pharmaceutical money takes many forms, from free lunches to speaking fees. Here's how it works. Money combines with the cash receptors in your doctor's wallet to create a fast acting financial relief.

[Crowd laughter]

VOICE 1: So your doctor can rest easy and enjoy life.

VOICE 2: [laughs jovially]

VOICE 1: Common side effects of doctors taking money may include: chronic over-prescription, unusually heavy cash flow, dependency on free samples, inflammation of confidence, affluenza, and an increased tendency to suggest off-label prescriptions; which in turn can cause heart attack, stroke, loss of feeling in arms and legs, seizures, blurred vision, grinding of the teeth, temporary deafness, total blindness, numbness, sudden bursts of rage…

[Crowd laughter]

VOICE 1: ..reduction of trust. Ask your doctor today if he's taking pharmaceutical company money. Then ask your doctor what the money is for. Ask your doctor if he's taking any money from the companies who made the drugs he just prescribed for you. Then ask yourself if you're satisfied with that answer. Pharmaceutical money; ask your doctor if his taking it is right for you.

[Music: Sting]

Back To Top »

Provide Transcript Feedback

CBC would like to acknowledge the support of the Broadcasting Accessibility Fund.

Apr. 4, 2016 Episode Transcript

More Stories Like This