B.C. rape crisis centres paying thousands to protect victims' confidential files in sexual assault trials
Defence lawyers often request private records to help mount a defence of their clients
Rape crisis centres in B.C. say they are paying tens of thousands in legal fees to protect the confidential counselling files of victims requested by defence lawyers during sexual assault trials.
Last week, Battered Women's Support Services received a $20,000 invoice for legal fees incurred when it went to court last year to fight a request for their records made during a preliminary hearing for a sexual assault trial.
It's not the first time the Vancouver-based crisis centre has felt an obligation to protect its records.
"We do not want survivors' counselling files in the hands of their alleged perpetrator," said executive director Angela Marie MacDougall. "We use every mechanism that we can to prevent that."
In addition to hiring a lawyer, MacDougall had to submit a sworn affidavit stating the importance of keeping the files confidential and spent the day in court being cross-examined by the defence lawyer who had requested them.
"He worked very hard to discredit me and to discredit the work of the organization that I work for."
Vancouver Rape Relief and Women's Shelter has fought these requests — about once a year for the last decade — each one costing thousands of dollars in legal fees.
Spokesperson Hilla Kerner says the requests for records are an effort to discredit victims of sexual assault by relying on rape myths that a woman is lying or mentally unstable.
"They want to show that the woman told the rape crisis centre one thing and [told] the police another thing," Kerner explained. "If a woman says she wore a black shirt, and then later on she said 'I think I was wearing a black shirt,' they will claim that this is inconsistency."
Just last month, Kerner travelled to Kelowna to defend Rape Relief's records in a sexual assault trial.
Right to a full legal defence
Applications to subpoena records are submitted in court by defence counsel who can request files from the Crown, the complainant and third-party records holders.
The third parties, which can include rape crisis centres, private counsellors, health authorities and government ministries, then have the right to tell the court why the records should not be released.
A judge then weighs several factors when considering the request, including whether the records are necessary to mount a full legal defence, the expectation of privacy with respect to the records and whether disclosing the records would discourage future complainants from coming forward and seeking treatment.
Criminal defence lawyer Nicholas Preovolos says these records are important tools for a fair trial.
"I think there's a stereotype out there of the unscrupulous defence lawyer who's bringing these applications to harass complainants and it's very unfair," he said. "The reason we bring these applications, frankly, is to test the story or version of events of the complainant in these cases."
Preovolos says that while rape crisis centres operate under the assumption that sexual assault complainants are telling the truth, defendants are entitled to the presumption of innocence.
"If my client says this incident didn't occur as alleged or it didn't occur at all, then I have to test the evidence that is put before me and, ultimately the court, to determine whether the Crown's case can be made out beyond a reasonable doubt."
Legal fees taking away from support services
But rape crisis workers say disclosing records of confidential meetings between counsellors and victims will deter women from coming forward with sexual assault allegations.
"A lot of [the] time, we are the first one to have the woman telling her story," Kerner explained. "If women will not trust that confidentiality, they're not going to call us, which means they will not get support,"
The Surrey Women's Centre says two recent subpoenas cost them $10,000 to fight in court, as well as using staff resources that would otherwise be providing support services.
"I don't know how many other women we could have served with that amount of money, that often remain on our wait-list to be served," said executive director Shahnaz Rahman.
None of the three crisis centres CBC News spoke to have lost a fight in court to protect their files. In spite of the costs, they say giving up a woman's records is a non-starter.
"Our own existence is based on protecting her privacy and her information," said Rahman.
All three crisis centres believe the province should set aside dedicated funding for their legal representation during these records requests.
In a statement, the Ministry of Public Safety said that while third-party organizations like crisis centres are not funded, the province has funded legal representation for sexual assault victims to fight applications to disclose their personal records since the mid-1990s.
However, lawyer Gwendoline Allison says individual complainants aren't in a position to protect all the files in the hands of third parties that might disclose personal information.
"Rape crisis centres have information that, really, complainants don't have access to," explained Allison who has represented BWSS and Rape Relief when they've gone to court to protect their files from third-party records applications.