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.