Evidence of meeting #5 for Justice and Human Rights in the 43rd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was training.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Raphael Tachie  Vice-President, Canadian Association of Black Lawyers
Hana O'Connor  Ontario Conferences Coordinator, Canadian Centre for Gender and Sexual Diversity
Cameron Aitken  Executive Director, Canadian Centre for Gender and Sexual Diversity
Bonnie Brayton  National Executive Director, DisAbled Women's Network of Canada
Karine Myrgianie Jean-François  Director of Operations, DisAbled Women's Network of Canada
Rosel Kim  Staff Lawyer, Women's Legal Education and Action Fund
Monique St. Germain  General Counsel, Canadian Centre for Child Protection
Sarah Flemming  Executive Director, Colchester Sexual Assault Centre
Jess Grover  Board Chair, Kawartha Sexual Assault Centre
Amie Kroes  Board Secretary, Kawartha Sexual Assault Centre
Lori Anne Thomas  President, Canadian Association of Black Lawyers

Noon

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Thank you.

Noon

Liberal

The Chair Liberal Iqra Khalid

Thank you very much.

To the witnesses, if you feel that there are some additional recommendations or clarifications that you need to provide, please do submit written briefs addressing some of the questions that were raised today. In the next week or so, we'd really appreciate any additional information you can provide.

Thank you for being here today and thank you for your remarks.

I'm going to suspend the meeting for two minutes as we switch panellists.

Thank you.

12:05 p.m.

Liberal

The Chair Liberal Iqra Khalid

Welcome to our second panel on Bill C-5.

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.

12:10 p.m.

Vice-President, Canadian Association of Black Lawyers

Raphael Tachie

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.

12:10 p.m.

Liberal

The Chair Liberal Iqra Khalid

Thank you very much for your remarks.

Moving on to the Canadian Centre for Child Protection, Ms. St. Germain, you have five minutes.

12:10 p.m.

Monique St. Germain General Counsel, Canadian Centre for Child Protection

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 C-5. 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 C-5 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.

12:15 p.m.

Liberal

The Chair Liberal Iqra Khalid

Thank you very much for that.

From the Colchester Sexual Assault Centre, Ms. Sarah Flemming is next.

You have five minutes.

12:15 p.m.

Sarah Flemming Executive Director, Colchester Sexual Assault Centre

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 C-5 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.

12:20 p.m.

Liberal

The Chair Liberal Iqra Khalid

Thank you very much, Ms. Flemming.

Moving on to the Kawartha Sexual Assault Centre, you have five minutes for your remarks.

12:20 p.m.

Jess Grover Board Chair, Kawartha Sexual Assault Centre

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 C-5.

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 C-5 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.

12:25 p.m.

Amie Kroes Board Secretary, Kawartha Sexual Assault Centre

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.

Thank you.

12:25 p.m.

Liberal

The Chair Liberal Iqra Khalid

Thank you very much to all of our panellists for their testimony. We really appreciate your being here today.

Being cognizant of time, I'm going to cut down the first round of questioning from the normal six minutes to five minutes, so that we can get to our second round of questioning.

With that, Mr. McLean, I believe you're up first with five minutes.

12:25 p.m.

Conservative

Greg McLean Conservative Calgary Centre, AB

Thank you, Madam Chair.

Thank you, everybody, for the testimony you provided today. Thank you for the great work that you do in helping victims of sexual assault.

I'm hoping you can provide us with some details of the support you provide to your clients—your friends—prior to their going to trial. Maybe you can provide some indication of what happens at trial that dissuades them further, in the current regime, from presenting their case.

That's for each of you. That would give us more of a body of weight about the necessity of what we're going through here.

12:25 p.m.

Executive Director, Colchester Sexual Assault Centre

Sarah Flemming

Realistically, not many want to seek any legal counsel or go forward with any sort of criminal justice involvement whatsoever. Realistically, I think the fear most people have when they walk in is that in order to receive services, they will have to disclose to a police officer that they have been assaulted.

I can't speak directly because, unfortunately, I'm new in my role, so I don't have first-hand experience in walking a victim or survivor through that process. However, that has been my experience with anyone that I've met so far. It's the fear of disclosure because they will have to press charges.

12:30 p.m.

Board Secretary, Kawartha Sexual Assault Centre

Amie Kroes

At our centre, we also provide something called accompaniment, which offers a survivor an opportunity to have somebody with some specialized knowledge go with them whenever they're accessing any of the different types of services, whether that be the hospital, the police station or the court process. Timelines are an issue, but I know that's not being addressed specifically with this bill.

As I said in my five minutes, one of the biggest concerns that people have is wondering how they will be treated, what they can expect and whether people will believe them. They know what happened and they know they can tell their own story, but they wonder if everybody else will see it the same way they do. Will everybody else understand what transpired? That is probably one of the biggest concerns that survivors have. Do they want to put themselves in a really vulnerable position, knowing that they might not get the outcome that they want—because there's often a lack of forensic evidence—and put themselves through years of potential revictimization and re-traumatization?

12:30 p.m.

Board Chair, Kawartha Sexual Assault Centre

Jess Grover

Just to add to that, one thing we talk to folks about—both the police and our clients—is the neurobiology of trauma, which really impacts what can happen in a courtroom. When survivors are in a courtroom and are facing a barrage of questions and often questioned in ways that are similar to internal monologues that have happened many times, they feel that secondary victimization. We know that happens, and it actually impacts their ability to recall accurate information. It directly impacts their ability to do so.

We know that we need to prepare them to withstand more trauma in order to tell their story. We work with them to prepare them for that.

12:30 p.m.

General Counsel, Canadian Centre for Child Protection

Monique St. Germain

When it comes to children, the additional difficulty would be that they don't necessarily have the language or the life experience to convey what has happened to them in a way that is meaningful and understandable from the court's perspective. Having the judge who is hearing the case have a better understanding of child development, child brain development and the impact of trauma on children is very important.

12:30 p.m.

Liberal

The Chair Liberal Iqra Khalid

I think you're questioning the Canadian Association of Black Lawyers.

Mr. Tachie, do you have any comments on Mr. McLean's question?

12:30 p.m.

Vice-President, Canadian Association of Black Lawyers

Raphael Tachie

I don't have any comments on that point. We don't work directly with victims on sexual assaults and issues like that. We are usually advocating on the general issues that occur in the black community. I wouldn't have anything to add to that.

12:30 p.m.

Liberal

The Chair Liberal Iqra Khalid

Mr. McLean, you have 20 seconds left. Would you like to use it?

12:30 p.m.

Conservative

Greg McLean Conservative Calgary Centre, AB

I'll let that pass. Thank you.

12:30 p.m.

Liberal

The Chair Liberal Iqra Khalid

Mr. Zuberi, you have five minutes.

12:30 p.m.

Liberal

Sameer Zuberi Liberal Pierrefonds—Dollard, QC

I'm sharing my time with Mr. Virani.

Would you like to go first?

March 12th, 2020 / 12:30 p.m.

Liberal

Arif Virani Liberal Parkdale—High Park, ON

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?

12:30 p.m.

Lori Anne Thomas President, Canadian Association of Black Lawyers

Yes. In terms of the social context, that is precisely our concern, that the unconscious bias issues, the cultural competency issues, are not addressed in this. I know that in the last panel there was some discussion on whether you can begin the training and then return to it later on to see what needs to be improved.

In our submission, it should be something that's considered, especially when you're talking about the known phenomenon of the hypersexualization of black bodies. I believe the same would be true for indigenous bodies.

That is something we think would be necessary in almost any training, given the overrepresentation of black and indigenous accused before the criminal justice system, and also as victims in personal injury cases in sexual assaults.