Justice Committee on March 12th, 2020

[The Chair, Liberal, Iqra Khalid]

Sorry, Mr. Lawrence, you have 10 seconds left.

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

Really quickly, in terms of the victims of this, do you think the sentencing is appropriate or should be additional sentencing for folks who victimize women with intellectual disabilities?

[Karine Myrgianie Jean-François]

Currently, as far as I understand, there's.... Sorry, I'm going to have to answer in French.

When a case involves a vulnerable person, this aggravating factor is taken into account in sentencing. Something is already in place for that, but we are not here to say that we necessarily need harsher sentences for sexual assault of women with disabilities.

[The Chair, Liberal, Iqra Khalid]

Thank you.

Ms. Damoff, you have six minutes.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Chair.

Thank you to all the witnesses for being here and for the good work you all do. I think all of you testified when we were looking at the bill in the past. I'm not sure if LEAF did. No, okay, but I know DAWN and you folks did.

When we looked at the bill last time, we had a Crown prosecutor testify. She was one of the most powerful witnesses I've ever heard. One of the things she said was:

I have heard the statistic that one in four women will experience some form of sexual assault in her lifetime but, in my experience, factors of privilege, whether you're white, whether you're educated, whether you're financially independent, and whether you're male make us less likely to experience sexual assault. Ironically or not, those are all the same factors that tend to make it less likely that you'll be a judge. So, while we're expected to rely on common sense and ordinary experience, when it comes to sexual assault, most of us who work in the courtroom have no ordinary experience.

That's a direct quote. I wonder if you could speak a bit about the importance of ensuring that the training is intersectional. We had quite a robust discussion in the last iteration of the bill about the exact wording we could use that would be supported in the courts. We ended up coming up with social context. The intent of that was to ensure that the training included sexual diversity, disabled women, women of colour and women of various backgrounds. How important is that training to ensure that it also includes that social context?

I'll turn it to all of you.

[Cameron Aitken]

Part of what we were trying to convey earlier is that we work with service providers teaching about consent and intersectionality, and it can be a very challenging thing, so it's absolutely important that the training take into consideration things like power dynamics, all of these different identities and the notion that they can make someone more vulnerable. It's definitely a difficult thing to teach because there's no individualized curriculum. That is one thing that could be accepted, and there could still be meaningful seminars around social context, but it would need to be done in a very holistic and meaningful way. It's not something that you can have one cookie-cutter approach or workshop for that will reach or resonate with everyone. That's what we're trying to convey in the work we do as educators.

Do you have anything, Hana?

[Hana O'Connor]

I don't have much to add to that. I'd just reiterate our sense that we really feel that this training should be ongoing. As Cameron said, this one-prong or cookie-cutter approach, when you have so many subsets of what it means to be marginalized and what it means to be victimized or racialized, is an ongoing thing. It's not going to be a half-day or one-day seminar where you're going to hit every single approach. That's the point we really want to drive home, that this is ongoing. Society is evolving, we're evolving, and this needs to be taken into consideration.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you.

Please be brief, so we get to everybody.

[Rosel Kim]

On whether social context is important in this training, we would say yes. Depending on the other factors of identity that you inhabit, as a complainant there are layers of stereotypes based on that. It's a question of how you experience sexual violence, if you are taken seriously or not seriously by members of the justice system, and whether you're believed. These all depend on where you come from. It's important to unpack that. There are myths and stereotypes that exist about sexual violence in general, but also the fact that your experience of violence may be exacerbated because of other factors of marginalization.

[Bonnie Brayton]

I'm going to say something, and I'll turn it over to Karine.

The point I was making before was that when we look at the missing and murdered women inquiry, again, the disability lens was not added. The consequence of that was that one of the root causes was missed in something that we invested a huge amount of money in. This idea that we cannot use an intersectional lens on any social, economic, or societal issue is to be simply living in the past. It's quite clear that we're beginning to move that way in all types of legislation. The reason that's beginning to be the case is that it works better.

[Karine Myrgianie Jean-François]

For me, this is really important. We often talk about intersectionality these days. We think about black women, indigenous women, women with disabilities and trans women, but some of us are not just one. Some of us live those different things. It's important to go back to what Rosel said earlier about the experience of marginalization. Some of us are marginalized in different ways. For me, that's how training that addresses those stereotypes and systemic discrimination could be useful.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

To all of you, if you were asked to participate in training videos that they're working on, would you be happy to do that? Am I seeing a unanimous yes? Okay.

Thank you, Chair.

[The Chair, Liberal, Iqra Khalid]

Thank you, Ms. Damoff, for being very judicious with your time. I really appreciate that.

Mr. Fortin, for six minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you.

First, thank you all for being here this morning. It is very kind of you to contribute to the study of this bill, which is important to us.

I would like to address your testimony, Ms. Kim. You talked about the transcript of the reasons for decisions. I understood that you were talking about a partial, not a full, transcript. Could you tell me more about that? Among other things, would that apply to all cases, whether it's an acquittal, a conviction or a dismissal?

[Rosel Kim]

I wanted the partial transcripts of the decision itself in sexual assault cases. The reason for limiting the transcripts is that we understand that providing transcripts of the entire trial can be very costly and time-consuming. However, given that there has been so much discussion about how sexual assault trials are run, and what goes on at a sexual assault trial, having the decision put on the record and made publicly available can at least provide the public with some kind of accountability, as well as accessibility to what the judge decided.

Of course, there are instances, such as Justice Camp, where some things that are said in the courtroom don't make it to the decision, and may not be available. Having the decision on the record made available allows us to know what kind of decisions are out there, and that could really help with the research on the trends in sexual assault cases.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

This part of your testimony interests me. Clause 4 of Bill C-5 would add section 278.98 to the Criminal Code, which would require judges to provide full reasons for their decisions, either orally and then recorded in the minutes, or in writing.

Am I to understand that you wish to limit the explanation of reasons? I assume that was not the purpose of your comments, or did I misunderstand?

[Rosel Kim]

We don't wish to limit the grounds. That was not what I meant by my testimony. The reasons, even when they're given on the record, might not be publicly available for people to access. If they're not written and if they're not published on CanLII, they will not be accessible to the public unless someone takes the extra step of ordering them for themselves. My point simply was that if the reasons are on the record but they're not written, then the decision itself that's on the record, the transcript, should be made available.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

So you want the judge's full reasons.

[Rosel Kim]

That doesn't mean the transcript of the whole trial itself. It's just of the day the judge renders a decision.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Fortin.

Now we go to Mr. MacGregor.

You have six minutes should you choose to use them all.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Chair.

Thank you to all the witnesses for coming today and for your opening statements.

One thing I've noticed in the discussion around this piece of legislation is that there have been concerns expressed over what role Parliament plays in judicial education. We heard from the Canadian Judicial Council and the institute, who have stressed very much that this kind of training already happens. There have been concerns expressed by some in the legal profession that if Parliament intrudes too far with this bill, we are interfering with judicial independence.

We've heard from some of you say with regard to possible amendments to this bill that maybe you'd like to see a bit more specificity. I'm curious about that. As the bill is currently written, it closely reflects the amendments that were made to the previous version by the Senate's legal and constitutional affairs committee. They were feeling that this made it more in line with the constitutional requirement of judicial independence.

If we already have a mandate that judges have to undertake to participate in continuing education and the fact that we have a reporting requirement that has to include the information about the seminars, Ms. Kim, how do you see Parliament's role in this? Can you elaborate more on the specificity you'd like to see in this bill with respect to how the training should include the diversity that is in Canadian society?

[Rosel Kim]

I'll speak on the independence point.

My understanding is that it's the judges themselves who have recognized the existence of myths and stereotypes in sexual assault trials, beginning almost 30 years ago in decision like Seaboyer and as recently as Barton, and that there are significant issues in how trial judges continue to engage in myths and stereotypes about victims.

In a way, this need for judicial education was actually for a signal by the judiciary, and this could be seen as a Parliament responding to what the Supreme Court of Canada has pointed out over the last few years. If we see this kind of training as strengthening judicial competence to prevent errors in law, then this purpose of the training is to ensure that judges are well versed in the very complicated area of the law. We believe this is well within the boundaries of judicial independence.

As relates to social context, I think that it would be helpful to have a definition of what social context means. I know that the mandate letter has signalled certain things like impact of trauma and unconscious bias. We would like to see the fact that social context is linked to factors that have led to systemic inequality that have exacerbated these harmful myths and stereotypes in Canadian society.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Do we serve the public well by putting the specificity in the bill, or do we serve the public better by analyzing the reports that are going to be tabled in Parliament and then having a chance to review the education? I guess that's what I'm trying to get at. If anyone else has a comment on that question, go ahead.

[Bonnie Brayton]

I'll just go back to what I said in my opening remarks regarding the ethical principles for judges and the idea—going back to McLachlin in 2004 citing Eldridge—that if Eldridge is there to remind judges, then I think it's really clear.

I would really agree with what she has already said and just say that it's really important to understand that judges themselves, including McLachlin and others, have often said that this is something we need to address. I think their specificity in choosing Eldridge in that particular chapter speaks to the idea that you do have to be very clear and, as I said, it should be embedded in judges' training.