Judicial Accountability through Sexual Assault Law Training Act

An Act to amend the Judges Act and the Criminal Code (sexual assault)

Sponsor

Rona Ambrose  Conservative

Introduced as a private member’s bill. (These don’t often become law.)

Status

Second reading (Senate), as of Dec. 12, 2017

Subscribe to a feed (what's a feed?) of speeches and votes in the House related to Bill C-337.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Judges Act to restrict eligibility for judicial appointment to individuals who have completed comprehensive education in respect of matters related to sexual assault law and social context. It also requires the Canadian Judicial Council to report on continuing education seminars in matters related to sexual assault law. Furthermore, it amends the Criminal Code to require that reasons provided by a judge in sexual assault decisions be entered in the record of the proceedings or be in writing.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

May 11th, 2017 / 9:05 a.m.
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NDP

Sheila Malcolmson NDP Nanaimo—Ladysmith, BC

My proposal is that Bill C-337 be amended by adding after line 18 on page 3 the following new clause:

4.1 The Act is amended by adding the following after section 74:

74.1 The Commissioner shall, within three months after the end of each fiscal year, prepare and publish on the Office of the Commissioner's website a report on the education in sexual assault law described in paragraph 3(b ), including any observations and recommendations that the Commissioner considers appropriate.

May 11th, 2017 / 9 a.m.
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Conservative

The Chair Conservative Marilyn Gladu

On NDP-3 the ruling for this one is that it's not admissible. Bill C-337 amends the Judges Act to restrict eligibility for judicial appointment to individuals who have completed comprehensive sexual assault education. The amendment seeks to establish an education program for persons who play a role in the administration of criminal justice beyond the one that the bill contemplates for judges. As House of Commons Procedure and Practice, second edition, states on page 766:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

In the opinion of the chair, this amendment introduces a new concept that is beyond the scope of the bill. Therefore, I am ruling the amendment inadmissible.

May 11th, 2017 / 8:50 a.m.
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NDP

Sheila Malcolmson NDP Nanaimo—Ladysmith, BC

I propose a subamendment to Liberal-1.

Liberal-1 says that Bill C-337, in clause 2, be amended “by replacing line 28 on page 2 with the following”. My subamendment is in proposed subparagraph 3(b)(i), after the words “education in sexual assault law that”. I would insert the following new words, and this is mostly what is written in NDP-1:

has been developed in consultation with sexual assault survivors, as well as with groups and organizations that support them, and that includes

May I speak to that?

May 11th, 2017 / 8:50 a.m.
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Conservative

The Chair Conservative Marilyn Gladu

Good morning, ladies and gentlemen. We are pleased to be here today for the clause-by-clause review of Bill C-337, an act to amend the Judges Act and the Criminal Code, regarding sexual assault.

We'll begin our clause-by-clause. Pursuant to Standing Order 75(1), the consideration of the preamble and clause 1, the short title, is postponed.

(On clause 2)

If you refer to the amendments that were sent out, you'll see that there is a Liberal-1 amendment. I want to inform the committee that if Liberal-1 is adopted, then NDP-1 cannot be moved, because there is a line conflict there. Just be aware of that.

Liberal-1 says that Bill C-337, in clause 2, be amended by replacing line 28 on page 2 with the following:

hensive

(i) education in sexual assault law that includes

Also, that clause 2 be amended by replacing line 32 on page 2 with the following:

associated with sexual assault complainants, and

(ii) social context education.

Is there discussion on the amendment?

May 2nd, 2017 / 9 a.m.
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Executive Director and Senior General Counsel, Canadian Judicial Council

Norman Sabourin

I would just say, Madam Chair, that in the CJC position paper on Bill C-337 we do map out from a quantitative perspective that the CJC intends to publish the title, description, and overview of all education seminars approved by the CJC in the preceding year. We propose to publish the dates and duration of each seminar, and we propose to publish the number of judges who attend each seminar.

On a qualitative basis, I think that to start talking about 22% of sexual assault training would be a grave error, because we are taking a very comprehensive approach to social context education. As Justice Kent has pointed out, you might have a course on evidence that has integrated into it clear objectives of social context education, such as gender-based inequality and the intersectionality of the issues that surround gender-based issues.

May 2nd, 2017 / 8:45 a.m.
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Conservative

The Chair Conservative Marilyn Gladu

Good morning, colleagues.

We return to our study of Bill C-337, an act to amend the Judges Act and the Criminal Code with respect to sexual assault.

We're happy to have with us again, from the National Judicial Institute, the Honourable Madam Justice Adèle Kent, the executive director.

We also have with us Marc Giroux, Deputy Commissioner at the Office of the Commissioner for Federal Judicial Affairs Canada, and Norman Sabourin, Executive Director and Senior General Counsel at the Canadian Judicial Council.

Welcome.

We'll begin with Ms. Kent for five minutes.

April 13th, 2017 / 10:10 a.m.
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Chad Kicknosway Senior Advisor on Justice and Human Rights, Native Women's Association of Canada

I just want to add that the current Judges Act in section 62 grants the council powers to establish ongoing seminars for existing judiciary. My concern here is that this bill only impacts newly appointed judges. I would suggest incorporating into the current Bill C-337 some sort of transitional provision or some other provision that compels the council to make it a priority that all judges, even the old ones, take the mandatory comprehensive education on sexual assault.

April 13th, 2017 / 9:55 a.m.
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Lise Martin Executive Director, Women's Shelters Canada

Thank you for the invitation and the opportunity to share our thoughts on Bill C-337. Women's Shelters Canada, formerly known as the Canadian Network of Women's Shelters and Transition Houses, brings together 14 provincial and territorial shelter organizations representing over 400 shelters across Canada.

We believe that the introduction and, more importantly, the implementation of Bill C-337 is an important step in the right direction. We congratulate all MPs who are working across party lines to make this a reality. Following the numerous testimonies that you have heard over the last 18 months as members of this committee, I do not need to convince you that the systems intended to respond to violence against women are broken.

Recent court decisions in Alberta and Nova Scotia involving sexual assault and domestic violence have spurred public outrage. Clearly, Judge Lenehan and former Justice Camp demonstrated a clear disregard for and a lack of understanding of sexual assault and definitions of consent as defined in the Criminal Code.

In November 2016, Judge Deborah Paquette of the Supreme Court of Newfoundland and Labrador downplayed the severity of strangulation in a domestic violence case, treated the perpetrator as the victim, categorized domestic violence as a private matter, and sentenced the RCMP officer to only 14 days' house arrest for assaulting his former girlfriend. This was in November 2016.

These recent examples, which are by no means exceptions, demonstrate how Canadian courts are failing to send the message that sexual assault and all forms of violence against women are unacceptable. For decades, advocates in the violence against women sector, and survivors, have fought to make domestic violence and sexual assault a visible and socially significant issue. Despite this, we continue to see our work undermined by Canadian judges, who label domestic violence as a private matter and misunderstand the basic ideas and laws about consent and sexual assault.

Enacting Bill C-337 to ensure training for judges working on cases of sexual assault is a demonstration of the Government of Canada's commitment to ensure that our legal system believes survivors. Training, however, must go beyond federal judges. Police, lawyers, crown prosectors, and judges all need training on sexual assault and domestic violence. For victims of sexual assault, police officers are their first interaction with the justice system. Since fear is the main barrier to victims' reporting sexual assault and domestic violence, we need systems that support victims and do not cause them further harm.

Our understanding of the proposed bill is that it only covers federally mandated judges. This is an example of why we need a national action plan on violence against women. A national plan could cover judges mandated by the provinces and territories and begin to ensure that women in all areas of the country have access to comparable levels of services and protection. This is not the case today. This is an area where federal leadership is called for.

In conclusion, mandatory and ongoing education that includes the neurobiological impacts of trauma, the power and control dynamics of violence against women, the role of intersectionality, and the experiences of survivors, with input and participation of women's organizations, would go a long way.

At Women's Shelters Canada, we would like to see training for judges broadened to include not only training on sexual assault but also training on domestic violence and the gendered nature of violence against women; training to better understand colonization and intergenerational trauma, with a focus on their impact upon Canada's indigenous peoples; training for the judicial committees that oversee the appointment of judges; collaboration with women's organizations in developing training, including trauma-informed approaches; and finally, training that is shaped by the perspective of survivors, as they are indeed the true experts.

That concludes my presentation.

April 13th, 2017 / 9:45 a.m.
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Francyne Joe President, Native Women's Association of Canada

Good morning Madam Chairperson, committee members, guests, and distinguished witnesses.

My name is Francyne Joe, and I am the interim president of the Native Women’s Association of Canada. I would like to first acknowledge that we are on Algonquin territory and we are meeting here on this beautiful spring day.

I am honoured to have worked alongside Ms. Martin of Women’s Shelters Canada on the 16 days of activism to end violence against women campaign. I thank all of today’s witnesses for their commitment to supporting the empowerment of women and advocating for policies that address the roots of violence against women.

I am here today with Mr. Chad Kicknosway, NWAC’s senior adviser on justice and human rights.

We thank you for the opportunity to present to you today on such an important subject. As a woman of first nations descent and a national representative of first nations and Métis women, it is my primary goal to advocate for policies that improve our well-being. This includes social, economic, cultural, and political spheres. The issue of violence against women extends into each of these areas.

I believe that the reported rate of one in three women living in Canada experiencing sexual assault in their lifetimes is a low estimate, when low reporting rates are taken into account. For indigenous women, the rate is at least three times higher. The launch of the national inquiry into missing and murdered indigenous women and girls marks the official recognition that violence against our women has reached pandemic proportions.

Indigenous women face multiple barriers to receiving justice after being assaulted. The first is the fear of coming forward. This may be a fear of retaliation, but it is commonly a fear of not being heard or believed. There is no question that the general practice of victim-blaming stops many women from coming forward. Indigenous women face not only the sexist aspects of the system but the practice of racism as well. It is well documented that indigenous women have been questioned aggressively, unfairly judged, humiliated, and even assaulted while reporting their assaults and even while in custody.

It may no longer be the practice of the media to criticize a woman for her lifestyle when reporting on cases of sexual assault. However, the decisions and comments made by judiciary officials have continued to perpetuate the racism and sexism that contribute to the propagation of violence against indigenous women. In the case of Cindy Gladue, a judge allowed graphic genital photos of the victim and a physical sample from the body to be shown in court. The fact that she was a sex worker was given undue bearing in the proceedings. The court’s prejudice had an impact on the jury’s judgments on consent and led to the ultimate acquittal of the man who killed her. Such errors in judgment, coloured by ignorance, bias, and outright racism, send indigenous women and perpetrators of violence against indigenous women a message that indigenous women’s lives are not valued.

Indigenous women need to be shown that they are loved and that they are valued.

Our justice system needs to address this by passing bills that will strongly discourage light sentencing against perpetrators of violence against indigenous women, consider being an indigenous woman as an aggravating factor when sentencing an offender, and address the systemic racism and sexism that keeps indigenous women silent, which encourages a perception that they are vulnerable.

This bill comes at a pivotal time in Canada’s history as we move toward reconciling with the first inhabitants of this country, the indigenous population. The passing of Bill C-337 would send a clear message that the justice system refuses to play a role in further violence against indigenous women and that indigenous women are respected, loved, and valued.

We thank you for this invitation to offer our input on the specifics of this bill and its implementations.

Therefore, on behalf of the Native Women's Association, I’m pleased to state our support for this bill and elaborate on our recommendations and concerns.

The proposed addition to the Judges Act to make it mandatory for newly appointed judges to complete comprehensive education in sexual assault law is a positive move forward. It must be expected that NWAC would bring forth the recommendation that this comprehensive education include a distinct section, or course, or chapter that discusses indigenous women exclusively. NWAC has done extensive work in this area already, and we are ready to offer our continued expertise on this matter. This could take the form of developing a comprehensive educational tool kit that brings awareness to the unique issues that indigenous women experience.

My first recommendation for the committee to consider is incorporating into subclause 2(2) of the bill, a reference that specifically addresses violence against indigenous women. Therefore, tail end of the proposed amendment of subsection 3(b) of the Judges Act would read, “as well as education regarding myths and stereotypes associated with sexual assault complainants, and education regarding the unique experiences of sexual violence against Indigenous women.”

I believe this inclusion will add value to the reconciliation process between Canada and the first inhabitants of this country.

A shortcoming of the bill that may have been brought to your attention appears to be that the bill's requirements of the comprehensive education in sexual assault law would only apply to newly appointed judges.

Subclause 2(2) of the bill is clear, that candidates in consideration of judicial appointment need to undertake education and “instruction in evidentiary prohibitions, principles of consent and the conduct of sexual assault proceedings, as well as education regarding myths and stereotypes associated with sexual assault complainants.”

There's nothing the bill—

April 13th, 2017 / 9 a.m.
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Jackie Stevens Executive Director, Avalon Sexual Assault Centre

Thank you. Good morning.

I am Jackie Stevens with the Avalon Sexual Assault Centre. I want to acknowledge that I am presenting to you today from unceded Mi'kmaq territory here in Halifax.

Avalon Sexual Assault Centre is a feminist, trauma-informed organization that provides services for those affected by sexualized violence. Avalon's primary emphasis is on support, education, counselling, and leadership and advocacy services for women and trans and/or non-gender-binary people.

Avalon offers trauma-specific, individual, therapeutic counselling and group program services for women and trans and/or non-gender-binary individuals, aged 16 and older, in relation to sexual assault or abuse. We provide community education, public awareness, and legal and professional training targeting the prevention of sexualized violence, intervention, and support of victims and survivors.

Avalon also operates the Avalon sexual assault nurse examiner program, which provides an immediate response to sexual assault victims of all ages and genders requiring medical care and the collection of forensic evidence.

Avalon has expertise and experience directly serving individuals who have experienced sexualized violence as well as in advocating for an equality-focused community response to sexualized violence. We've engaged in legal advocacy and education on these issues in Nova Scotia since 1983.

Avalon has expertise in substantive equality, sex-based, and gender-based discrimination and sexual assault law. The presentation is intended to provide the Standing Committee on the Status of Women with further points of analysis and consideration regarding Bill C-337.

Avalon has a substantial interest in this bill and the work of the standing committee because of its importance to the development of sexual assault jurisprudence and the impact of this jurisprudence on women's substantive equality, including the women directly served by Avalon centre.

Here are some points that I would like you to consider as you review this bill.

First, high-profile examples of systemic failure at all levels of the legal process have resulted in low rates of sexual assault reporting, and victims deciding not to participate in or to continue with the legal process after sexual assault or abuse has occurred.

Second, there is a level of distrust and lack of faith in the sexual assault criminal justice process, not only by victims but within the general public.

Third, there is a perception that the rights of the accused are more important than the rights of victims, and that justice is not possible for victims of sexualized violence under the current justice process.

Fourth, the issues brought forth to the public as a result of many high-profile cases have increased the number of individuals who are going public with their experiences before the courts and who are seeking systems and legal-based support and advocacy.

Finally, sexual assault advocates are not adequately resourced to provide ongoing court watch and court support as well as address the need for reform and change, both at an individual victim level and societally and systemically.

Criminal justice reform should continue to be based within the history of sexual assault law reform in Canada and in Parliament's intention to exclude discriminatory myths and stereotypes about women from judicial decision-making.

Past and present judicial statements, such as those of Judges McClung and Lenehan, and Justice Camp, demonstrate a disregard for women who have been targeted for sexualized violence. Their comments are rooted in misogyny, gender stereotypes, and sexual assault myths. Their decisions also demonstrate discrimination based on age, race, and the perception of what is deemed appropriate behaviour.

What is critical to note is that their decisions also demonstrate a lack of understanding of sexual assault and consent under the Criminal Code of Canada and/or blatant disregard for the laws.

Reformative processes should reflect a gendered analysis of the experiences of sexual assault victims and survivors, both when victimized and before the court. Sexual assault and abuse is committed from a position of power and control, and some victims are targeted because of gender, or racial or societal marginalization. Sexual assault laws under the Criminal Code are not gendered. However, how they are administered and interpreted is almost always based on societal perceptions of gender, race, age, disability, and so on.

Many sexual assault cases are investigated, tried, and decided on the basis of looking at the victim's pattern of behaviour and actions to determine consent or to refute that sexual assault occurred, rather than on the basis of looking at the accused's patterns of behaviour that demonstrate predatory, intentional, or criminal actions.

Reforms should apply to all levels of court, not just Canadian superior courts, and should be reflective of all forms of sexual assault or abuse under the law.

Separate from Bill C-337, I would like the committee to consider what practices are in place to ensure that existing policies, laws, and mandates pertaining to judges' training and decisions are being adhered to, and how this committee can influence or improve those current processes.

April 13th, 2017 / 8:55 a.m.
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National Executive Director, DisAbled Women's Network Canada

Bonnie Brayton

Good morning, again.

Hello, everyone.

Thank you.

I would again like to acknowledge the Algonquin people.

I was invited here to speak to the proposed Bill C-337, and I'm confident that others who will come before you will focus their remarks on the content and the substance of that bill, which as we know is about the important need to have a judiciary that is well informed in the area of sexual assault.

With limited time, we have instead chosen to focus on the Supreme Court decision that we believe makes it clear why judicial training is essential. We will also suggest that a thorough review of the content of this training is required to ensure that it has a fully developed curriculum to include the range of accommodation required to support all women.

On February 10, 2012, the Supreme Court of Canada released its judgment in the case of Regina v. D.A.I. LEAF and the DisAbled Women's Network of Canada intervened in that appeal. Through this Supreme Court of Canada decision, Chief Justice McLachlin, writing for the majority, described sexual assault as an evil and acknowledged that women with mental disabilities are targeted for this offence at alarming rates. The court confirmed the importance of hearing the voices of women with mental disabilities in the court. The court acknowledged that the testimony of women with mental disabilities is essential to stopping sexual abuse and ensuring that sexual offenders are brought to justice.

The legal question before the court was how to interpret subsection 16(3) of the Canada Evidence Act, which permits witnesses who can communicate the evidence but are unable to understand an oath or affirmation to testify unsworn on a promise to tell the truth. Lower courts have developed a practice requiring mentally disabled witnesses to explain the meaning of abstract concepts like promise, truth, and falsehood. No other category of witness—not even convicted perjurers—is subjected to such a pre-testimonial inquiry.

The Supreme Court of Canada ruling clarifies that persons with mental disabilities are not required to meet a more onerous test than any other witnesses before they are even allowed to take the stand. If a witness can communicate her experiences and if she can describe what happened to her, she can testify after saying she promises to tell the truth.

The Supreme Court judgment noted that in the past, mentally disabled victims of sexual offences had frequently been precluded from testifying, not on the ground that they could not relate what happened but on the ground that they lacked the capacity to articulate in abstract terms the difference between the truth and a lie.

Women with intellectual and cognitive disabilities, including women with brain injuries—frequently acquired as a result of violence—experience staggering rates of sexual assault and are seen as easy targets. Abusers believe that disabled women are powerless to complain or will not be believed even if they do complain. The Supreme Court, in rendering this decision, acknowledged this reality and confirmed that their testimony is essential to any realistic prospect of prosecution.

The Supreme Court majority recognized that the testimony of women with mental disabilities promotes the truth-seeking function of the criminal process, particularly given the undeniably high rates of sexual assault and the interests of society in the reporting and prosecution of abuse. As the Supreme Court itself said, excluding evidence would effectively “immunize an entire category of offenders from criminal responsibility”, with devastating harm to the abused women and to society as a whole.

The Supreme Court of Canada decision also notes that the questioning of mentally disabled adults may require accommodation of each individual's particular needs, so that their evidence is best communicated in court. This aspect of this ruling is in step with international law in other international jurisdictions. The U.K., for example, is currently far ahead of Canada in terms of providing for witness intermediaries who assist persons with communication or mental disabilities in accessing the justice system at all stages, from reporting to police to giving evidence in court. Creating and supporting a roster of witness intermediaries in Canada is a logical next step for the federal government.

The decision is also consistent with Canada's international human rights commitments. The UN Convention on the Rights of Persons with Disabilities points to the need for our country to uphold its promise under article 13, where we are to have equal access to justice, and under article 16, which commits state parties to ensure that instances of exploitation, violence, and abuse against persons with disabilities are identified, investigated, and where appropriate, prosecuted.

In Canada and around the world, this decision is regarded as a major victory for women and all people with disabilities, and provides opportunities for appeals across jurisdictions around the globe.

April 13th, 2017 / 8:50 a.m.
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Bonnie Brayton National Executive Director, DisAbled Women's Network Canada

Good morning, everyone.

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 the first peoples of Canada. I was invited to speak to the proposed Bill C-337. I'm confident that others who will come before you will focus—

April 13th, 2017 / 8:45 a.m.
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Conservative

The Chair Conservative Marilyn Gladu

Good morning, colleagues.

We are returning to our study of Bill C-337, an act to amend the Judges Act and the Criminal Code regarding sexual assault. We're very fortunate today to have a large group of witnesses. We begin with the Canadian Centre for Gender and Sexual Diversity. We have Jeremy Dias, who is the executive director, and Katerina Frost, who is the government affairs coordinator.

We also have from the DisAbled Women's Network Canada, Bonnie Brayton, who is the national executive director.

From “WomenatthecentrE”, we have Nneka MacGregor and Mandi Gray.

From the Avalon Sexual Assault Centre, by video conference from Halifax, Nova Scotia, we have Jackie Stevens, who is the executive director.

I want to welcome all of our witnesses today. Each of you will be able to begin with your five minutes of comments.

We'll begin with Katerina for five minutes.

Status of WomenCommittees of the HouseRoutine Proceedings

April 11th, 2017 / 10:20 a.m.
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NDP

Sheila Malcolmson NDP Nanaimo—Ladysmith, BC

Mr. Speaker, the question is timely because this morning at committee we are studying Bill C-337, which is to require sexual assault training and gender sensitivity training for judges, following on the just terrible headlines. The few women who report sexual assault, the few women who get police to agree that their assault was real and that there should be criminal charges, then have these terrible headlines about judges who show disrespect, who do not understand the law. We are very afraid that this is going to have an inhibiting effect on women's willingness to report. It is so important that this is an all-party commitment that we get judicial training right.

The evidence we heard at committee this morning is that the judicial training is really great right now and that it is going to be a lot better in the next few months, which is awkward, honestly, because if it were really being done well, we would not have these calamitous headlines about how some victims and survivors of sexual assault have been treated.

However, it does remind me of the testimony we heard at the same committee around gender-based analysis, which is the focus of this report, that although successive Auditor General reports had given both Liberal and Conservative governments a fail on implementing gender-based analysis, the current government now had taken internal measures and things were going a lot better inside some of the government departments.

I will say again that, until this is legislated, we will not have the transparency we need to know how the government is making its decisions in relation to its gender commitments.

April 11th, 2017 / 10:10 a.m.
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Liberal

Anita Vandenbeld Liberal Ottawa West—Nepean, ON

One of the things we heard in our violence against young women and girls study is that different groups of women experience violence differently. I noted that Ms. Hendel talked about factors of privilege. I know Professor Koshan has written on myths and stereotypes, and Dr. Craig on The Inhospitable Court. We heard this significantly as a deterrent for women in seeking justice.

One of the key issues is that there is an intersectionality with different identity groups. LGBTQ women, indigenous women, those living with disabilities, newer immigrants, and other identity groups have even more difficulty. I noted that in Bill C-337 there isn't a specific lens in terms of intersectionality.

I'll start with Ms. Hendel, and then I'll let others respond. Do you think it would be an improvement to the bill if we were to include a necessity for that? Also, are you aware whether this kind of training already exists, or is this something that's already absent?