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.