Thank you for inviting CABL to speak on this matter. We appreciate the opportunity to do so.
From CABL’s perspective and the communities we represent, the intention behind Bill is laudable. We think the idea of educating the judiciary on taking the social context into account in sexual assault cases is a positive step and should be recognized and lauded.
We have a couple of concerns that we wish the committee to consider and take into account. The first concern revolves around the idea regarding interference with judicial independence. We question whether an undertaking to complete certain training or courses will be seen as interference with judicial independence by the executive and legislative branches.
The proposed amendments, furthermore, do not contain any enforcement mechanisms, whereby an individual provides such an undertaking, and then later on does not fulfill the requirements. Without an enforcement mechanism, we question whether the perception of interference with judicial independence is really worth it at the end of the day. That's our first concern.
The second concern we have revolves around the lack of definition of social context. If the amendments are to proceed as drafted, we urge the committee to think about the differential impacts of the law on the bodies of indigenous and black people. More specifically, when it comes to sexual assaults, whether in regard to victims or as accused, stereotypes about black and indigenous people lead to differential treatment under the law. These have different impacts on our bodies and communities.
CABL, therefore, urges the committee to include express language relating to the experiences of black—
The Canadian Centre for Gender and Sexual Diversity advocates for a world free from discrimination. To that end, we work through the fields of advocacy, education, research and resource creation to support 2SLGBTQ+ communities across Canada. To support this mandate, we support teachers and service providers as they work toward bridging knowledge gaps around gender and sexual diversity.
The intimate partner violence prevention program at the Canadian Centre for Gender and Sexual Diversity aims to increase capacity of LGBTQ2S+ agencies by providing them with the tools, information on resources and services and training to support LGBTQ2S+ survivors of domestic physical assault, sexual assault and emotional abuse, and to increase and equalize their access to the criminal justice system.
We work with LGBTQ2S+ agencies, law enforcement and non-LGBTQ2S+ organizations to create best practices to address the gaps in victim services and increase access to justice for LGBTQ2S+ people. These organizations include: sexual assault centres, community resource/health centres, legal services, victims services, police units, sexual health centres, pride centres, university and college programs, and many others. We will work with any and all service providers across Canada who may come into contact with LGBTQ2S+ survivors of intimate partner violence to increase the positive quality of these interactions.
In looking at the proposed legislation, Bill , we support the rationale. In particular, the following points resonate with our program:
And whereas reasons for decisions in sexual assault proceedings enhance the transparency and accountability of the judiciary;
Whereas survivors of sexual assault in Canada must have faith in the criminal justice system;
Whereas sexual assault proceedings have a profound effect on the reputations and lives of the persons affected and present a high possibility of revictimizing survivors of sexual assault;
and in particular, the importance of
Working with service providers across Canada, we are aware that ongoing education is a successful method of intervention in confronting bias for service providers. The formal process for survivors of sexual assault to receive necessary advocacy, health and legal supports is multi-faceted and involves a multitude of service providers. At every stage, there are barriers, which can relate to the intersectional identities of survivors. Ongoing discrimination based on a multitude of factors and lived experiences can further compound and weaken the relationship between survivors, service providers and the state.
Much of the same can be said for folks whose experience of sexual assault and violence also includes intimate partner violence. Members of the 2SLGBTQ+ community are, broadly speaking, more impacted by sexual assault and violence, and thus their lived realities need to be understood for competent services to be delivered.
Working with social workers, HR professionals, medical professionals and others in service provision, our aim in the IPV prevention workshops is to dispel harmful stereotypes and misconceptions that influence notions supporting survivors of sexual violence. Two crucial assessments include decoding which partner is the victim or abuser and providing services to transgender and gender non-conforming clients.
Notions of masculinity and femininity, age and appearance can often impact how service providers respond to situations of abuse as they first assess and react to the situation. Through the four years this project has been funded, we have delivered roughly 300 workshops to service providers across Canada. Starting with a greater understanding of gender and sexual diversity, we transition into situations and problem-solving, which challenge existing bias.
We have found that such training needs to be ongoing and of varied lengths depending on the particular organization, and we would encourage that the proposed seminars be lengthy. There are also provincial and regional disparities, which require training sessions to always take into account local needs, as they vary significantly.
Finally, the organizations that participate are engaged in an ongoing process of ongoing education to continue to address personal, organizational and policy-based barriers. Our training and workshops succeed because the goal is to promote a mentality focused on social justice and trauma-informed care, instead of a set curriculum.
I will now introduce our executive director, Cameron Aitken.
It is on that basis that we want to say we support the final section of the amendment surrounding the Criminal Code and further information regarding decisions in cases related to sexual assault.
Finally, in regard to gaps, we recommend that in addition to reporting on what seminars were offered, the number of judges who attended said seminars and the names of those judges are disclosed in reporting, similar to a mechanism of enforcement.
Finally, we recommend the implementation of reporting that asks judges to reflect and provide responses on how these seminars contribute to the incorporation of trauma and violence-informed approaches.
We are concerned that the existing phrasing around the proposed seminars does not represent the diversity of survivors of sexual violence in Canada. In particular, considering the organizations present today, we feel that a further enshrining of “Diverse voices who represent persons, groups or organizations the council considers appropriate, to support sexual assault survivors and organizations that support them...”.
Thank you very much for your time.
I'd like to begin by acknowledging that we're gathered on the territory of the Algonquin people and that we are in a time of truth and reconciliation with all the indigenous communities from coast to coast to coast. We want to thank the Attorney General and the committee for inviting us today to speak. We also want to acknowledge the important work of the other panellists who are speaking today.
In fact, LEAF, who are also joining us today, have been and continue to be important allies for us. They have supported DAWN Canada in several Supreme Court decisions that provide us with concrete, measurable evidence that the issue of myths and stereotypes related to victims of sexual assault have a particularly egregious impact on deaf women and women with disabilities, particularly women with mental disabilities, including learning and intellectual disabilities, psychosocial disabilities and brain injuries. Let's be clear: It's when communication and interaction with the victim may be different.
We are here to discuss Bill . We hope this legislation is enacted quickly. We expect and anticipate strong, non-partisan support from this committee. In preparing for today, I found something very interesting in the 2004 publication of Ethical Principles for Judges . It's not in the 2020 draft, by the way. In the chapter that focuses on equality, Chief Justice McLachlin and the committee chose to cite Eldridge specifically in the context of the risk of stereotyping.
DAWN Canada were intervenors in the Eldridge decision and in D.A.I. 2012. That was another very important decision that speaks to the myths and stereotypes that have been perpetuated in the courts and in society. In D.A.I., the issues of myths related to sexual assault are central and make clear that judges are themselves subject to biases, including deep-rooted biases that are linked to systemic sexism, racism and ableism. A review of CanLII reveals 723 instances of Eldridge being cited, and 152 for D.A.I.
I'd like to draw from the McGill Law Journal, in which Isabel Grant and Janine Benedet, in “Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Evidentiary and Procedural Issues”, wrote as follows:
The tendency to infantilize women with mental disabilities contributes to sex discrimination against them by perpetuating stereotypes of asexuality and hypersexuality. When these women are analogized to children, sexual relationships are no longer seen as necessary or important for them and they are depicted as asexual. Since no sexual activity is considered appropriate for children, the sexual activity that these women do have is then labelled as inappropriate, and they are also tainted, paradoxically, with a label of hypersexuality.
The criminal trial process was not designed to facilitate the testimony of persons with disabilities. Oral testimony under oath, cross-examination, and the requirement to repeat one's story over and over again to persons in authority with consistency over a long period of time can present serious challenges to women with mental disabilities, yet these requirements are accepted without question as integral to the criminal trial process. An inability to operate within the confines of the traditional trial process may result in the diminished credibility of a woman's testimony or even in the granting of a stay of proceeding.
The nature of the evidence received by courts in sexual assault cases presents other concerns. The routine use of sexual history evidence, cross-examination on therapeutic and other third-party records to undermine credibility, and the requirement of recent complaint raise unique concerns for women with mental disabilities. We suggest that the myths and stereotypes on which these devices rest remain....
My final comment and reminder to this committee is that 24% of women in Canada live with a disability. That's the statistic. Women with disabilities have the highest—the highest—rates of sexual assault of any women and girls in this country.
Madam Chair, if we are permitted to share our recommendations, Karine-Myrgianie will share them.
Thank you for these extra few seconds. We will circulate the other information later.
We recommend that the training start from an intersectional analysis to deconstruct the myths and stereotypes about women with disabilities and deaf women victims of sexual assault.
For clause 2, we recommend that the training and seminars be developed by women's groups with expertise on marginalized women, such as DAWN Canada.
With respect to clause 3, we understand that there is a concern about judicial independence. However, we think it is important that all judges attend these seminars, that the seminars be evaluated, and that the evaluations be shared with the designers and the groups that developed the seminars in order to improve them.
This will also ensure that the systemic discrimination experienced by the most marginalized women remains at the heart of the discussions. Deaf women and women with disabilities, including those who live at the intersection of different forms of oppression, should participate in the seminars and training.
Good morning. My name is Rosel Kim. I'm a staff lawyer at LEAF, the Women's Legal Education and Action Fund.
Thank you very much for inviting LEAF to speak on this issue.
Over the past 35 years, LEAF has played a key role in advancing women's and girls' substantive equality rights in law through litigation, law reform and legal education. The advancement of sexual assault law through a feminist and equality lens is a fundamental element of LEAF's work, because freedom from violence is a necessary condition for women's equality rights.
LEAF recognizes the symbolic importance of this bill and supports judges receiving training on sexual assault. However, we also believe that the bill requires certain specifications about how this training should be implemented, details of which I'll discuss later on.
I'll begin by discussing why LEAF supports specialized judicial training on sexual assault.
Despite a cultural shift in how we talk about sexual assault, we continue to witness profound misconceptions about sexual assault complainants in the courts.
For close to 30 years, Canadian law has said that a complainant's previous sexual history should not play a role in determining whether the complainant is believable, or whether the complainant consented to the sexual act in question, yet trial judges continue to get it wrong. Their errors are frequently rooted in harmful myths and stereotypes and, probably not coincidentally, a lack of understanding about the legal definition of consent—like the belief that if you weren't actively fighting back or yelling out, you weren't really saying no.
Recent cases have seen trial judges acquitting the accused or questioning the credibility of the complainant because a complainant didn't close her knees; because she was wearing loose-fitting pyjamas with no underwear; because she didn't immediately leave; because she had consented before.
Training is also necessary, because in order to combat such myths and stereotypes about complainants while still respecting the rights of the accused, sexual assault law has become very complex.
Many judges have had little to no experience in criminal law before being appointed to the bench. It's difficult to imagine that they'll be able to preside over a sexual assault hearing without training. It's left to the appellate courts then to correct the errors in law that are made in the lower courts. But not every case in which trial judges make these mistakes is or can be appealed. Even where an appeal is allowed, this may not feel like a victory to the complainant who will once again need to tell her story in a new trial.
Judicial training on sexual assault is needed to stop these errors before they happen in order to ensure trial fairness, minimize re-traumatizing of complainants, and save judicial resources.
For these reasons among others, LEAF supports judges receiving training on sexual assault. In order for the training to be effective, we believe the bill requires certain specifications.
First is the term “social context”, as the other witnesses have mentioned. The term should be defined explicitly as factors contributing to systemic inequality in Canadian society, to include colonialism, systemic racism, ableism, homophobia and transphobia. Education about sexual assault cannot be conducted in a historical vacuum.
It's necessary to understand how our history and current social conditions, such as ongoing impacts of colonialism, have led to and can exacerbate the proliferation of sexual violence and the myths and stereotypes about complainants. Judges need to understand that indigenous women in Canada are three times more likely than non-indigenous women to experience sexual violence in their lifetime. Judges also need to understand that women with disabilities are more likely to experience sexual violence than are women without disabilities, as DAWN has mentioned.
Similarly, my second point relates to subclause 2(3) of the bill, which provides that materials will be developed in consultation with sexual assault survivors and organizations that support them.
It's important that sexual assault survivors who are consulted also reflect the diversity of people in Canadian society, especially those who have lived through the conditions of marginalization, such as systemic racism, and who directly understand how marginalization impacts their experience of sexual assault.
We would ask that this section also include meaningful consultation and input from individuals with lived experiences of oppression, particularly individuals or organizations that serve populations that are indigenous, black, or racialized, or those who live with disabilities or in poverty, among others.
Seminars on sexual assault should also include the impact of trauma on the complainant's memory, demeanour and well-being, considerations currently absent from this bill. Trauma can also have a profound impact on how a complainant remembers the assault, as well as on how a complainant reacts to it at the time of the assault and in the courtroom.
Finally, I would like to discuss clause 4 of the bill as it relates to reasons. In its current version, the bill only requires written reasons to be provided if trial proceedings are not recorded. Having publicly available written reasons would ensure greater accountability for the justice system by allowing legislators, researchers and the public to access and review them. As the bill currently stands, any oral judgment entered into the record will still require someone to pay for and order the trial transcript, which is costly and can be time-consuming.
As an alternative, we suggest amending clause 4 of the bill, so that where written reasons are not available in a sexual assault trial, the transcripts of the trial decision only, and not a transcript of the entire trial, should be made available on publicly accessible domains. This can be made possible by government providing dedicated funding for the transcript of the trial decisions.
Thank you very much for your time.
I'd have to say, based on an intersectional understanding of people, especially in the context of this discussion, that would depend on what her disability is. What we need to think about, of course, is accommodation and understanding what issue is important for somebody. There could be a number of factors, including her disability, or accommodations for a disability. There could be the issue, which I raised really clearly here, of communication for some women and making sure they're supported in that regard. It's also understanding that presenting in plain language for a woman, depending on her disability, would be very important, and that's not always accommodated.
Of course, I cite Eldridge, not in the context of sexual assault, but in the context of a deaf woman's right to be fully supported through a process. That means that from when she reports the sexual assault, through the entire process, she's entitled to interpretation, sign language or captioning, whatever she needs. Again, that individual should be able to identify what her disability support or accommodation is.
In terms of the issues that women with disabilities face that are important to talk about, a good example, I think.... When we talk about indigenous women, for example, in the context of the missing and murdered women's inquiry, a lot of people may not understand that a large number of women in that context would have had brain injuries. Brain injury is a hidden disability, and consequently many people who have brain injuries, including women who experience gender-based violence and sexual assault, are not aware of it and have not had a diagnosis. The consequence is that she's undermined by something that neither she nor others understand.
There are a lot of different things we need to think about, but I think the most important thing we need to understand is that when we develop the training for judges, the full breadth of that understanding needs to be there. It's not a simple issue and you can't put everybody in one box. When you're looking at sexual assault and the victim, you need to look at her from all of those intersections: race, indigeneity, sexual orientation and disability.
I'm going to add something, and I think Rosel could add to it as well. Something that's very important to understand is with regard to part of the criteria that judges use to understand who can give consent and who can tell the truth.
Also, how do we talk about consent? When we talk about telling the truth, we understand that some women aren't able to, and then judges, the law and past jurisprudence have told some women that they may be suggestible or may not be credible witnesses. If you can't make sense of the time.... We think about women with brain injuries, for example—who are women with disabilities—and time can sometimes get muddled. The experience is still there; however, currently, the way our criminal courts understand what's happening, makes them not to be seen as credible. They're seen as maybe being suggestible, especially for women with intellectual disabilities, or if they have mental health issues, schizophrenia or other disabilities.
I think it's important to go back to what Bonnie said. The reality of the needs of women with disabilities is that they are numerous, and not every single woman will need the same thing.
When we think about the highest number of sexual assaults, and violence in general, it is towards women with intellectual disabilities. However, they are now believed, which is the case for all women, but especially for them, and there are legal ways that criminal courts have made that happen.
Thank you to all the witnesses for being here and for the good work you all do. I think all of you testified when we were looking at the bill in the past. I'm not sure if LEAF did. No, okay, but I know DAWN and you folks did.
When we looked at the bill last time, we had a Crown prosecutor testify. She was one of the most powerful witnesses I've ever heard. One of the things she said was:
I have heard the statistic that one in four women will experience some form of sexual assault in her lifetime but, in my experience, factors of privilege, whether you're white, whether you're educated, whether you're financially independent, and whether you're male make us less likely to experience sexual assault. Ironically or not, those are all the same factors that tend to make it less likely that you'll be a judge. So, while we're expected to rely on common sense and ordinary experience, when it comes to sexual assault, most of us who work in the courtroom have no ordinary experience.
That's a direct quote. I wonder if you could speak a bit about the importance of ensuring that the training is intersectional. We had quite a robust discussion in the last iteration of the bill about the exact wording we could use that would be supported in the courts. We ended up coming up with social context. The intent of that was to ensure that the training included sexual diversity, disabled women, women of colour and women of various backgrounds. How important is that training to ensure that it also includes that social context?
I'll turn it to all of you.
Thank you to all the witnesses for coming today and for your opening statements.
One thing I've noticed in the discussion around this piece of legislation is that there have been concerns expressed over what role Parliament plays in judicial education. We heard from the Canadian Judicial Council and the institute, who have stressed very much that this kind of training already happens. There have been concerns expressed by some in the legal profession that if Parliament intrudes too far with this bill, we are interfering with judicial independence.
We've heard from some of you say with regard to possible amendments to this bill that maybe you'd like to see a bit more specificity. I'm curious about that. As the bill is currently written, it closely reflects the amendments that were made to the previous version by the Senate's legal and constitutional affairs committee. They were feeling that this made it more in line with the constitutional requirement of judicial independence.
If we already have a mandate that judges have to undertake to participate in continuing education and the fact that we have a reporting requirement that has to include the information about the seminars, Ms. Kim, how do you see Parliament's role in this? Can you elaborate more on the specificity you'd like to see in this bill with respect to how the training should include the diversity that is in Canadian society?
I'll speak on the independence point.
My understanding is that it's the judges themselves who have recognized the existence of myths and stereotypes in sexual assault trials, beginning almost 30 years ago in decision like Seaboyer and as recently as Barton, and that there are significant issues in how trial judges continue to engage in myths and stereotypes about victims.
In a way, this need for judicial education was actually for a signal by the judiciary, and this could be seen as a Parliament responding to what the Supreme Court of Canada has pointed out over the last few years. If we see this kind of training as strengthening judicial competence to prevent errors in law, then this purpose of the training is to ensure that judges are well versed in the very complicated area of the law. We believe this is well within the boundaries of judicial independence.
As relates to social context, I think that it would be helpful to have a definition of what social context means. I know that the mandate letter has signalled certain things like impact of trauma and unconscious bias. We would like to see the fact that social context is linked to factors that have led to systemic inequality that have exacerbated these harmful myths and stereotypes in Canadian society.
I just want to say thank you very much to each of you for being here. I feel that this issue is extremely important and I'm very excited to see this legislation going forward.
I do want to discuss a couple of the things that were mentioned. We know that the purpose of this bill is to ensure that victims of sexual assault and violence are treated with the dignity, compassion and respect they deserve from judges, but beyond that, I believe that this legislation is aiming to create an environment where victims feel comfortable—or at least a bit more comfortable—in sharing their very traumatizing story in an otherwise very intimidating environment.
A few of you have alluded to this. I believe, Ms. Kim, you mentioned this, and, Ms. Brayton, I know you mentioned this as well. In retelling this trauma over and over again to several different authority figures in intimidating environments, those details can sometimes be different in the retelling, because they are so traumatic and so difficult to remember.
In the education and seminars for judges that will be be created, what can we do to ensure that those seminars and that education focuses on that, to ensure that there is compassion and that judges understand there needs to be work done to understand that this shouldn't be used against victims? I think that's what you mentioned, Ms. Kim. Sometimes those details, those differences, can be used against the victim. I believe that's what you said.
What can we do about that? How can we build a seminar that educates judges to understand that this is traumatizing and they need to adjust for this?
Thank you again, to all of the witnesses.
In these three minutes, I'm going to ask you a question and I'm going to ask all of you to respond to it in about 45 seconds. Sorry for the brevity.
Picking up where Ms. Damoff and Mr. MacGregor were, we are struggling with unpacking the term “social context”, which I agree with you needs to be unpacked, but not being overly prescriptive in a way that potentially misses some groups.
There is language that is known to the judges and is also known to the mandate letter that Ms. Kim referred to, which is “unconscious bias” and “cultural competency” training. What I would ask each of the groups to do is respond to whether unpacking social context to include unconscious bias and cultural competency training would be an improvement to this legislation.
Could we start with DAWN, please?
Welcome to our second panel on Bill .
Thank you to the witnesses for being here today.
Thank you to Raphael Tachie, for your patience. I see you are joined by Lori Anne Thomas from the Canadian Association of Black Lawyers.
By video conference, from the Canadian Centre for Child Protection, we have Monique St. Germain; from the Colchester Sexual Assault Centre, Sarah Flemming; and from the Kawartha Sexual Assault Centre, Jess Grover and Amie Kroes. Thank you for being here today.
We're going to go to our video conference first, and we'll start with the Canadian Association of Black Lawyers, for five minutes.
Thank you so much, and thank you to the committee for inviting us.
The intent behind the bill is laudable, and we support the general approach considering the social context surrounding sexual assault in judicial training and education.
We have a couple of concerns that we would like the committee to take into consideration. Our first concern relates to the idea of, or the appearance of, judicial interference that is created by the legislation. We query whether undertaking to complete certain seminar training will be seen as interference with judicial independence by the legislative and executive branches of government.
Secondly, the amendments do not contain any enforcement mechanism. If an individual undertakes to go to the seminar, and then fails to actually go through once appointed, there doesn't appear to be a mechanism to enforce that piece.
In that context, we query whether the appearance of judicial interference is worth it, especially when you consider that the Canadian Judicial Council currently provides training to judges on these types of issues. Perhaps the concern is the coordination with that entity to educate judges on these issues.
That is the first point I would like to make. The second point relates to the notion of social context. The proposed amendments do not define social context. Traditionally, the law has had differential impacts on the bodies of black and indigenous people in Canada. We would like to see a more specific definition of social context that takes into account stereotypes about black people and black bodies that lead to the differential impact of the law on them, whether as victims or as accused in sexual assault cases.
CABL urges the committee to include such express language in the preamble, as well as in the body of the text that takes into account the lived experiences of black and indigenous people, both as accused and as victims of sexual assault.
Thank you very much.
Thank you and good morning.
Ms. Chairperson and distinguished members of the committee, thank you for giving us the opportunity to provide a presentation on Bill . My name is Monique St. Germain. I am the general counsel of the Canadian Centre for Child Protection, which is a registered charity dedicated to the personal safety of all children that has been operating for over 30 years.
For the past 17 years, we have been operating Cybertip.ca, which is Canada’s tip line to report the online sexual exploitation of children. Cybertip is a central part of the Government of Canada’s national strategy for the protection of children from sexual exploitation on the Internet. We also created and operate Project Arachnid, a global platform to reduce online child sexual exploitation.
Every day our agency bears witness to the brutal ways in which children are victimized online. The vast majority of the reports we receive through Cybertip relate to images and videos, material that depicts very young, prepubescent children, many of whom are pre-verbal and cannot tell anyone about the abuse they are enduring. Most of these children have never been identified by law enforcement.
We also work directly with survivors of childhood sexual violence, including those whose childhood sexual abuse was recorded. We know all too well the devastating and long-lasting impact that these crimes have on victims and their families. I am here this morning to express our agency’s strong support for Bill and to put forward our recommendations to specifically account for children in this bill.
First, the term “sexual assault law” is not defined in the bill. It should be crystal clear within the Judges Act that the term is meant to include all offences listed in clause 4 of the bill.
Second, the Criminal Code offences for which a record must be created does not include the offences related to commercial sexual exploitation of children or sex trafficking. This oversight must be rectified. Consideration should also be given to including offences that involve the use of technology such as the offence of making child pornography.
Third, the mandated inclusion in training that is set out in proposed paragraph 60(3)(b) of the Judges Act is incomplete when it comes to children. Topics that need to be included in training to be responsive to the needs of children include grooming, which is a process by which an offender lowers inhibitions and gains access and time alone with children. We actively monitor reported case law related to sexual offences against children, and it is clear that the Canadian courts need to deepen their understanding of this very common offender tactic.
Another topic is the age of protection or the age of consent. These Criminal Code provisions are complicated. They are specific to minors, and they reference concepts such as trust, authority, dependency and exploitation, all of which are critical legal concepts when it comes to a child’s capacity to consent.
A third topic is the dynamics of child sexual abuse. There are significant differences to consider between adult and child sexual assaults. The perpetrators are different. The extent of vulnerability is different. The tactics used are different. The rates of disclosure are different. Even the ability of the victim to recognize if something was or wasn't a sexual violation is different. All of these issues must be accounted for in any training if that training is to be responsive to children.
The online terrorization and manipulation of children that occurs via technology is unprecedented in today’s society. There are multiple complex Criminal Code [Technical difficulty--Editor]. We live in a world where children can be virtually assaulted and where live-streamed child sexual abuse is ever increasing. The impact on children of technology-related offences can be as serious as offences involving physical contact. It's essential that technology-facilitated offending be included in this training.
Finally, the history and purpose of various Criminal Code provisions that are meant to address the needs of children in the court process, such as testimonial aids, publication bans and section 161 of the Criminal Code, must be covered. These are incredibly important for children.
In closing, we see the concrete evidence of sexual assaults against children every single day. Children are far too often the victims of sexual assault. It is imperative that judicial education account for their unique vulnerabilities, their status as independent rights holders, and all of the Criminal Code provisions that exist to protect their interests. Children deserve to be understood by our courts, and to be fully accommodated throughout all court processes. Thank you.
Good afternoon. Thank you, Madam Chair, honourable committee members, and all others present today. I am Sarah Flemming. My role is executive director of the Colchester Sexual Assault Centre in Truro, Nova Scotia.
I would like to thank you for the honour of speaking on behalf of Bill this afternoon. In our small town located an hour north of Halifax, we support Colchester County as well as two neighbouring counties, with free trauma counselling, outreach support at schools and in other organizations, and workshops and presentations all year round.
We have two part-time counsellors who have, on average, 450 individual counselling sessions and an unlimited number of drop-ins per fiscal year.
We are in what is known as a current hot spot for sexual exploitation and trafficking. Court support is also something we offer to clients. We have had two clients in the last year who have utilized that service.
I am here today to offer my insight on an area that I feel will create ripples across the judicial process. It will see more victims and survivors come forward to have their assailants charged. It will create a higher level of trust between police, lawyers, judges and the greater community.
This bill is not asking judges to become partial to the plight of victims, but rather, it will allow them to perform their job through an anti-oppressive practice.
Marginalized women are at a much higher risk of sexual violence and have a much lower rate of reporting. I don’t think we need to ask ourselves why. I believe we are well-informed of the risk factors of sexual and domestic violence. However, as a country, I think we do a poor job of implementing these practices and ultimately keeping women safe.
Nonetheless, we are making progress where it counts. In my small town alone, our court system has developed a mental health and domestic violence court. In working with community partners, both victims and offenders are able to get the support that is needed to reduce recidivism, while holding offenders accountable for their actions.
I was once told not to come with a problem but rather with a solution. My solution to supporting victims/survivors is to have judges trained in best practices while facilitating a more restorative approach when appropriate, and to have sexual assault and sexual violence cases presided over under the mental health or domestic violence courts where appropriate. This is not necessarily always the best practice for everyone, but it may be a way to support victims when needed by allowing them access to the services that can keep them safe and prevent further harm from happening.
I feel that we need to broaden the collective lens on sexual violence, and passing this bill is a step in the right direction. What would it mean for victims to feel that when they walk into a courtroom, they do not have to fear the repercussions of their trauma following them throughout their lives? We have an opportunity to hold offenders responsible and potentially to provide them with what behaviour is expected of them in a cab, at a bar, or in a 20-year marriage.
The outrage of revictimized survivors needs to leave only sexual assault and women’s centres and enter into the realm of everyday conversation. I want to hear the retired men at my local Tim Hortons discuss how no person deserves to be assaulted, without mentioning how much they drank, what they wore, or questioning their motives in terms of money or fame.
When I tell victims that it is not their fault, I want them to believe me and to know that the justice system is in place to support them and to follow up. In the event that there is a “not guilty” verdict, I want them to have the chance to know why, to understand the due process and legal jargon, all while feeling in control and supported.
Thank you again for having me speak on behalf of the Colchester Sexual Assault Centre, as well as Colchester, Cumberland and Hants counties in Nova Scotia. I look forward to hearing further updates, and hopefully the passing of this so important and timely bill.
Madam Chair and hon. committee members, good afternoon. I'm Jess Grover, the chair of the board at the Kawartha Sexual Assault Centre, KSAC; and I am joined today by Amie Kroes, the board secretary. We're here to speak in favour of Bill .
Each year, KSAC, located in Peterborough, Ontario, works with nearly 750 clients and receives nearly 1,000 crisis calls, and nearly 15,000 people take part in our prevention education program. I've been a volunteer with KSAC for almost a decade, and I joined the board in 2016. I am a survivor of child rape.
The passage of Bill would be a crucial beginning step in addressing rape culture in Canada. Rape culture is an environment that normalizes and trivializes sexual assault through pervasive rape myths. These false ideas about survivor/victims and the nature and frequency of sexual assaults are all disproved by the support work and research that sexual assault centres across Canada do.
Rape culture is like dust. It floats around us, often imperceptible, especially if you aren't looking for it. It is tossed into our environment through the stories we consume and the biases we pass from generation to generation. As we interact with others in our society, it settles onto all of us. Every single person in this room is carrying a bit of this with us, and it weighs down our decisions and our actions. Unless we actively recognize and work to dismantle rape culture, it will continue to build up and weigh down our society. Make no mistake about it. The dust of rape culture floats through the justice system, and it will continue to collect on its inner workings until the system breaks under the strain of it.
All of us in this room can name very public instances that have caused Canadians' faith in the judicial system to be eroded with regard to sexual assault, which have directly impacted our work of sexual assault support and prevention education. This harmful environment in some courtrooms dissuades our clients and other survivor/victims from pursuing criminal avenues, and it directly contributes to sexual assault case attrition. These instances are directly cited by our clients accessing support.
We do not want to bias the judiciary. We do not want to tell judges how to do their job. We do not want to compromise the independence of Canada's judicial system.
We support this bill because it would help address the biases that we know currently exist.
We support this bill because we believe that education on sexual assault will directly impact our work. We want to stop feeling trepidation when we present the option of pursuing legal avenues to victims and survivors.
We support this bill because we expect our government to listen to Canadians and ensure the fairness of our justice system.
We support this bill because we understand that judges want to come to sound decisions, and this bill would help empower them to do so.
We support this bill because we expect courtrooms to stop contributing to the perpetuation of rape culture in Canada.
Hello. My name is Amie Kroes, and I am a social worker serving on the board of the Kawartha Sexual Assault Centre. In addition to that, I have had the opportunity to work with survivors in multiple different contexts and in multiple different roles.
According to an April 2019 Department of Justice report, while sexual assault rates have remained stable over the last 15 years, over 80% of these incidences were not reported to the police. According to a collection of Justice Canada studies, the most frequently cited reason for not reporting was that people did not think they would be believed. These studies also found that two-thirds of the participants were not confident in the police, the court process or the justice system.
Sexual assault cases are one of the only types of crimes where a survivor's character is put on trial. Survivors who agree to a court process will be asked to retell their story, recognizing that a lawyer is to dismantle it, call them a liar and systematically pick apart their credibility. This process is being overseen and regulated by a person who may likely not have any specialized training on how to understand trauma, the impacts of it or the societal influences governing their own bias. We do not feel this is a socially just or ethical practice.
We all know the comments that have caused survivor/victims and the general public to lose faith in the justice system, comments such as in a 2014 case when a judge said, “Why couldn't you just keep your knees together?”, the same judge who on more than one occasion mistakenly called the complainant “the accused”. There have been other cases, such a judge saying that clearly a drunk can consent, or a lawyer asking whether the larger-than-average penis size of the assailant was attractive to the survivor. This was permitted, in a court of law. This is how some survivors are treated by our justice system.
Tell me, would you ask a loved one to report if you knew that this is what was waiting for them in the courtroom? This must change.
Recognizing that rape myths impact every aspect of the justice system, the Kawartha Sexual Assault Centre has a working partnership to provide education to the police services in our jurisdiction. This training empowers officers to do their job in the best way possible by providing training on the neurobiology of trauma and evidence-based facts to counter rape culture. This training has received a positive response, not only from the officers working with victim-witnesses, but also from the victim-witnesses who are working with the officers. Through this bill, we may begin to change the relationship between survivors and the justice system, and while it's only a small step in the right direction, it is valuable movement toward building trust.
Sure. I had a question.
First of all, thank you to all of the witnesses for their testimony, particularly Ms. Grover. Thank you for your candour and your very erudite presentation, and your honesty.
I want to ask a question of CABL. You were meant to be in the last panel, and I want to ask you a question that came up then. We are struggling with the term “social context”, and you highlighted this in your presentation. It was a useful amendment in the last Parliament, but many, including me, feel that it needs to be unpacked a bit. The struggle we are having is trying to not be too prescriptive, where we might leave out certain key components, but also trying not to be too general, where we miss important concepts.
There is a concept of unconscious bias that is known to the judges, and we understand they are already receiving training on unconscious bias. There is also a term that is probably familiar to you, “cultural competency”.
I am wondering if you could provide us with your view, and the view of CABL, on improving the section that deals with the training, to state something along the lines of “training on sexual assault law and social context, including cultural competence and unconscious bias”. Would that be an improvement that is more directive in the type of training we want to see occurring?
Thank you, Madam Chair.
My thanks to all our witnesses for their significant contribution.
We all agree, of course, that victims must be better protected and that the judicial system must be adapted so that it supports and understands them better.
However, I must admit that I am troubled by what we are told about children who are victims of violence and sexual assault. We are hearing a lot about them these days. I somewhat agree with the witnesses on this, particularly with Ms. St. Germain and Ms. Grover.
Ms. St. Germain spoke briefly about the sort of unique environment for the Youth Division. The judges in that court work with young people on a daily basis and have a somewhat different approach. In many circumstances, for example, it is possible to hear the testimony of young children in a place other than the courtroom so that those children feel more comfortable.
First, do you believe that the training proposed for judges under Bill should be based on what is done in the Youth Division, or even be largely, but not identically, modelled on the division's approach?
Second, in what specific ways could we reduce the impact of sexual assault on young people and make it easier for them to testify?
My first question will be for the Canadian Association of Black Lawyers. You did state that you had some concerns. You said that the goals of the bill are laudable but you had some concerns over judicial independence because, through this bill, applicants are required to undertake to participate in education on sexual assault law.
Could you not argue, though, that we are still respecting judicial independence because we are going to have no role whatsoever in how a judge uses that education? They are still going to be completely free and impartial when they present their decision in a particular case.
If not through this bill, what role should Parliament play in making sure our judges are accountable? We have seen recent examples where judges are using outdated myths and stereotypes.
I would like to hear your thoughts on those two questions, please.
With respect to the act, I think the reporting certainly addresses some of that concern. This would really only affect new judges, those who haven't been appointed as yet. All judges are subject to new judges' training, so we do think this should be the area where it's specifically addressed with this type of training and its mandate.
The concern we have is not so much with respect to this specific area. The concern is that once you open the door to mandating that those who are applying to be judges have certain types of training, essentially the slippery-slope argument can be used, not by your government but by other governments, for other training that may not have, again, a laudable reason to be in place.
We think all of this training, especially with respect to what the presenters at this time and the previous panel...should be taken into consideration and be taught on an ongoing basis. We think the training is absolutely necessary. We just have concerns about mandating it or the undertaking for those who are applying, because, again, it opens the door to other requirements for those applying to be judges in the future. That's where we have some concerns with regard to judicial independence.
With regard to the training, we think it is important. We do think that reporting is important as well.
I feel relatively comfortable with it. I would state in particular that the term “social context” can be challenging. I recognize that there can also be trouble when you start listing out identities or areas that need to be focused upon, but I want to ensure that....
I think the spirit of the bill is quite good. In particular, I believe having judges disclose the reasoning for their decisions is really important for checking why decisions were made.
In my analogy of rape culture being like dust, you have to pick up and look behind everything to see where it is; otherwise, you're not going to find it. I feel it's important for accountability and for transparency to ensure that it is there.
Obviously, I would love to see more done to ensure that the whole judicial process is safer and that there's less secondary victimization of survivors, but I recognize that scope is very large, and we're discussing this today. I think the changes were good, though, between the two.
Thank you, everyone, for coming today and giving your valuable input.
In Bill , the major part that we are studying is how the Canadian Judicial Council will establish standards on how to give training to new judges. In that, they will have suggestions from you and different groups to build the standards. Those seminars will be imparted to the judges who are coming for the training.
From yesterday onward, we have heard from many sectors. People have come here to give their organization's and association's input. It's regarding seniors, children, women and different types of other communities. You people are doing a great job of representing separate sectors of the community.
We have to keep the independence of the judiciary on one side here. This question is the same and one that is asked many times. Please give your points on what you want to be included in the seminar for training the judges, so that we can ensure that the best judicial training is being given and is comprehensive and inclusive. Keep in mind that those judges already have the best experience. They have 10 years experience as lawyers. They were in the communities. They know many things and still we want to give them training regarding the sexual assault cases.