Justice Committee on March 12th, 2020

[The Chair, Liberal, Iqra Khalid]

Good morning, everyone.

Today we are having our second meeting on Bill C-5.

In our first panel, we have the Canadian Association of Black Lawyers, the Canadian Centre for Gender and Sexual Diversity, the DisAbled Women's Network Canada, and the Women's Legal Education and Action Fund.

I'll ask the Canadian Association of Black Lawyers to present its opening remarks for five minutes. This will be followed by questions from members.

Without further ado, Raphael Tachie, from the Canadian Association of Black Lawyers.

[Raphael Tachie, Vice-President, Canadian Association of Black Lawyers]

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 C-5 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 Chair, Liberal, Iqra Khalid]

Sir, hold on for a second. I don't think we have translation. Perhaps you can give us a moment to see if we can fix it. As we're trying to figure out the translation for the video conference, I'll ask the next panel of witnesses to go ahead.

We'll come back to the Canadian Association of Black Lawyers.

Please pardon the interruption, as we deal with our technical challenges.

I'll turn to the Canadian Centre for Gender and Sexual Diversity, and to Cameron Aitken and Hana O'Connor.

[Hana O'Connor, Ontario Conferences Coordinator, Canadian Centre for Gender and Sexual Diversity]

Good morning.

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 C-5, 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

continuing education

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.

[The Chair, Liberal, Iqra Khalid]

Mr. Aitken, you have 30 seconds.

[Cameron Aitken, Executive Director, Canadian Centre for Gender and Sexual Diversity]

Thank you.

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.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Aitken.

We'll move to the DisAbled Women's Network of Canada.

You have five minutes.

[Bonnie Brayton, National Executive Director, DisAbled Women's Network of Canada]

Thank you.

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 C-5, an act to amend the Judges Act and the Criminal Code. 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.

[The Chair, Liberal, Iqra Khalid]

You have 30 seconds left to share them. I understand that you have presented a written brief with your recommendations to us, which will be translated for the rest of the committee.

If you'd like to make any additional remarks, you do have 30 seconds.

[Karine Myrgianie Jean-François, Director of Operations, DisAbled Women's Network of Canada]

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.

[The Chair, Liberal, Iqra Khalid]

Thank you for your condensed remarks. I appreciate that.

Moving on to LEAF, we have Rosel Kim.

[Rosel Kim, Staff Lawyer, Women's Legal Education and Action Fund]

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.

[The Chair, Liberal, Iqra Khalid]

Thank you very much to the witnesses.

Because of the technical difficulties, we will try to get the panellists by video conference to come into our second panel. For now, as we try to bring them back with proper interpretation, we'll go to our first round of questioning.

Mr. Lawrence, you're up, for six minutes.

[Philip Lawrence, Conservative, Northumberland—Peterborough South, ON]

Thank you all for being here and having such a professional discussion, and thank you for doing the work you do in the community. It's certainly very important.

I'd like to start with the folks from the DisAbled Women's Network of Canada.

[Bonnie Brayton]

Everyone calls us DAWN.

[Philip Lawrence, Conservative, Northumberland—Peterborough South, ON]

DAWN; that's much easier. Thank you.

I don't think you fully got to expand on this, so I want to use this time to flesh that out a little more.

As my research has indicated, similar to yours, women with disabilities are more likely to be sexually assaulted and then revictimized. I'm wondering if you could describe some of the unique elements when you're a woman with a disability going through a trial for sexual assault. We obviously know it's going to be horrible for any woman, but what unique elements might be there for a woman with disability?

[Bonnie Brayton]

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.

[Philip Lawrence, Conservative, Northumberland—Peterborough South, ON]

Do you have...?

Sorry, go ahead.

[Karine Myrgianie Jean-François]

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.

[Bonnie Brayton]

The D.A.I decision we referred to is one of the ones that really impacts.... Sorry.

[Philip Lawrence, Conservative, Northumberland—Peterborough South, ON]

No, no, thank you. One of the things I'm drawing from that is that, in this training, the important thing for a justice to understand when adjudicating a case of a woman with an intellectual disability and who's been a victim of sexual assault is that the conditions and consent may be different for someone with an intellectual disability. Is that correct?

[Bonnie Brayton]

It's also important to remember, around the myths and stereotypes, some of the things I mentioned before like the notion of hyper-sexualization. These things are used to try to shape that there was consent, as opposed to there not being consent. That's really important to understand also.

[Philip Lawrence, Conservative, Northumberland—Peterborough South, ON]

You believe this proposed law would generally help judges understand that. Am I correct?

[Bonnie Brayton]

Part of curriculum is intersectional and fulsome, yes, but it really needs to have that fulsome understanding of victims' needs.

[Philip Lawrence, Conservative, Northumberland—Peterborough South, ON]

I have just one other question on this.