Justice Committee on Oct. 17th, 2022

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 31 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to Standing Order 108(2) and the motion adopted on February 8, 2022, the committee is meeting on a study of the government's obligations to victims of crime.

Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room or remotely using the Zoom application.

I'd like to make a few comments for the benefit of the witnesses and members.

Please wait until I recognize you by name before speaking. For those participating by video conference, please click on the microphone icon to activate your mike. Please mute yourself when you're not speaking. For interpretation for those on Zoom, you have the choice, at the bottom of your screen, of floor, English or French. For those in the room, you can use the earpiece and select the desired channel.

This is a reminder that all comments should be addressed through the chair. For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can. We appreciate your patience and understanding on this issue.

I usually have cue cards, but I don't have them remotely here, so I will improvise. When I raise a yellow book, that means you have 30 seconds. When I raise a brown folder, that says your time has ended. If you could watch for those cues, or otherwise keep a timer yourself, that would be helpful.

Just as a health and wellness check, before I introduce the witness, I'd like to inform the committee that due to the study on the agenda, some of you may find it difficult to listen to the testimonies presented and/or experience discomfort given the nature of the topic being discussed. I'd like to remind our witnesses, who agreed so kindly to appear in front of the committee either on Zoom or in person, as well as members and staff, that, if needed, resources are available to help here at Parliament. The clerk will certainly help you. You may contact him.

I will allow, if necessary, a little pause for our witnesses in order to deliver their statement in the best environment possible. Our study could certainly be emotionally challenging for our witnesses. We admire their courage to come forward and share those very personal situations. I'm sure our members will agree to that.

I'll now ask our first-hour witnesses to make their opening remarks for five minutes. After that, we will begin our round of questions.

Our first witnesses are Tanya Sharpe and Marie-Hélène Ouellette.

The floor is yours for five minutes.

[Marie-Hélène Ouellette, Coordinator and Case Worker, L'Élan, Centre d'aide et de lutte contre les agressions à caractère sexuel]

Good morning.

My name is Marie‑Hélène Ouellette, and I am a coordinator and case worker at a help centre for victims of sexual assault, the Centre d'aide et de lutte contre les agressions à caractère sexuel, or CALACS, in the Upper Laurentians, in Quebec. I have worked there for nearly 20 years.

CALACS works with women and teenage girls who have been sexually assaulted, providing prevention, counselling and advocacy services.

I listened to what many of the witnesses who appeared before the committee had to say, and I wondered how I could bring a fresh perspective or add value to what you've already heard. I'm not an expert in law. My expertise is in survivors of sexual abuse.

The overwhelming majority of the women who reach out to us do not report the abuse, so they aren't officially recognized as victims of crime. Many of those who actually did file complaints had harrowing experiences, but a few were fortunate enough to have an easier time.

For more than 20 years, CALACS has helped an average of 60 to 80 women a year. When an attacker is convicted or found guilty, it's cause for celebration at the centre. I can count on one hand how many times our clients have been able to celebrate. It's a rare occurrence.

Those who have experienced sexual violence have limited access to justice. Our research shows that barriers to access to justice are inherent to criminal law, occurring on a human or social level.

I want to focus on some of the inherent barriers in criminal law that are significant. If the government's true intent is to support victims of crime adequately, it needs to take a hard look at how criminal law works.

The principles underpinning the presumption of innocence—the “beyond a reasonable doubt” threshold and the burden of proof on the Crown—give rise to unfairness in how the two sides are treated. The system is designed to prevent the conviction of innocent people, and that's great, but it has unintended consequences: the rights of accused lead to guilty people going free and victims getting a raw deal.

Sexual violence is a crime that's committed all the time, usually in private. From the outset, then, proving beyond a reasonable doubt that the attacker is guilty is an onerous undertaking for the Crown. Sexual violence is seldom reported, and when victims do report what happened, rarely do they come out of the experience feeling satisfied. I'm not talking about the sentences perpetrators receive. One way to really address the unfairness in the system's treatment of the two sides would be to reverse the burden of proof in cases involving sexual violence, so why not do it? I'm throwing that out there.

At the top of the list of human or social factors that impede access to justice are the sexist and racist biases of those who work in the justice system, biases that tend to be unconscious. Social biases are plentiful, significant and inextricably linked to violence. The people who experience the most sexual violence are those who suffer under the weight of those biases, which are the result of a number of systems of oppression.

There is no addressing victims' rights without addressing social and gender inequality. Victims of sexual violence are victims because they are women, because they have a disability, because they are lesbians, because they are trans, because they are Black, because they come from a first nation and the list goes on. Usually, they are assaulted by people who enjoy more advantages than they do and who benefit from power dynamics. Those people continue to be in a position of privilege thanks to the legal system and the rights they enjoy. The justice system is not immune to those power dynamics.

Add to that the fact that those who work in the justice system have no understanding of how the brain works in the face of a traumatic event—I'm referring to the neurobiology of trauma. The way victims are treated within the system can be deeply traumatizing. Take, for example, a very difficult cross-examination that goes on for hours. That can be incredibly stressful for the victim and cause them to give confusing testimony. They aren't trying to lie. Their brains are simply responding to the traumatic experience. This traumatic response can cause victims to forget things, to become unsettled or to doubt themselves. The legal principle of “beyond a reasonable doubt” can, in and of itself, prevent justice at the time of testimony.

People respond to traumatic events in a wide variety of ways. Some victims experience memory lapses or memories that are sketchy, while others have incredibly vivid, clear and detailed memories.

Victims who have trouble recalling certain things are often criticized for not having a clear enough memory of what happened, and those who recall the events vividly, even too vividly, are suspected of making things up because how could they have such a clear memory of what happened?

Canada's justice system has to look inward and examine the beliefs of those who make up the system. The idea that the legal system is cold and objective cannot prevail. Those beliefs impact the administration of justice.

The victim is considered a witness of a deeply intimate crime, the crime of sexual violence. The burden is on the Crown to prove that the accused is guilty beyond a reasonable doubt, and that accused already enjoys a lot of rights throughout the process.

I repeat, my expertise is in survivors of sexual assault, a serious crime that is committed regularly. Those victims are under-represented in the group of people formally recognized as being victims.

What is clear from survivors' stories is that criminal law and the administration of justice present numerous barriers to justice for victims.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you. I appreciate your timely conclusion.

I would like to make a note. I apologize. I said Tanya Sharpe, but she cannot be here this morning. It was on the revised schedule. I didn't note that.

I will now go to Mr. Moore for the first round of six minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thank you to our witness. Usually we have a panel of witnesses. You're our only witness today, but we appreciate your testimony. This is the last day we are studying this issue of the government's obligations to victims of crime, and we've heard much testimony about how the system as it is can be improved.

You said something early on in your remarks that I want you to expand on. You said that 60 to 80 women come through your doors annually but there's a reluctance to press charges, and those who do often regret the decision. You said it's not just at sentencing.

When there's a case that should be prosecuted and charges that should be made, these barriers to justice that people are hearing about that cause them not to pursue.... What does that look like? Where are they hearing about these barriers? What's keeping them from pressing charges? What are some examples?

[Marie-Hélène Ouellette]

First, how police treat, and deal with, victims when they first report is an issue. Over time, we've seen some improvement in the way police officers handle cases.

Where things really get difficult for victims is at the prosecution stage. Prosecutors regularly tell us that they believe the victim but don't have what they need to go forward. That's a huge barrier. That's where the process tends to hit a brick wall.

In my experience, the first point of contact is extremely difficult for victims. They have to answer the police officer's questions and what have you. The human element would make a big difference in terms of how the victim is treated initially and what happens next.

A number of barriers exist. I'm not sure whether that fully answers your question.

[Rob Moore, Conservative, Fundy Royal, NB]

Yes. That's excellent.

When we studied Bill C-5 earlier this year, we heard from witnesses who were concerned about the bill allowing perpetrators of sexual violence to serve their sentence in their communities.

On the fear of reprisal, how often do you feel that enters into the equation of whether someone would pursue criminal charges or not, or someone who, from hearing about other failures, decides not to?

[Marie-Hélène Ouellette]

Yes, that's part of it. For many of the people who come to us for help, the events happened a while ago. They aren't recent. Victims may fear reprisal, but in many cases, the events didn't happen yesterday.

It has an impact on the victim's family and the people around them. What happened to the people we see isn't fresh in their minds, so it has less to do with the fear of reprisal. That's not what we see most often at the centre.

[Rob Moore, Conservative, Fundy Royal, NB]

Okay.

There are some alarming statistics. A report published by Statistics Canada said that women were violently victimized at a rate nearly double that of men in 2019. It goes on to say that the discrepancy between male and female victims is largely due to the fact that women are five times more likely than men to be victims of sexual assault. You've acknowledged that in your remarks.

What are some steps that we should be looking at as we prepare a report for the government to respond to? What are some steps that you think we should be taking to address that glaring discrepancy?

[Marie-Hélène Ouellette]

A social problem calls for social solutions. An all-out effort is needed. Our centres do a lot of prevention and education around equality to reduce discrepancies like the one you mentioned. Those discrepancies become established quickly and exist in numerous fields. Education around sexuality certainly comes into play. I don't think there's a silver bullet. It takes time and a lot of….

I want to commend the people who provide training and education to raise public awareness around sexual assault. It works. Think of Robin Camp, the judge who made sexist and inappropriate comments in a sexual assault case a few years ago; the young man in question was acquitted. The judge later received training and was educated on the issue. I have no doubt that he thinks and acts differently today and that he realizes his comments were senseless. That gives me hope.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

Our next round of questions goes to Mr. Naqvi.

Mr. Naqvi, you have six minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you, Mr. Chair.

Thank you for your opening statement, Ms. Ouellette.

Can you tell us how we can improve the legal system so that victims of sexual violence are treated better?

[Marie-Hélène Ouellette]

I talked about the importance of better understanding the impact a traumatic event can have on how a victim behaves. That means a better understanding of what a victim is experiencing when they are testifying and can't remember certain things, for instance. That's a normal biological response to stress, and that needs to be understood. Not being able to remember something doesn't make someone a “bad victim”. There's this belief that, in order to be a “good victim”, a person has to meet certain criteria, including being fairly strong, and it's a commonly held belief by those who work in the justice system. They consider whether the victim is strong enough in deciding whether to move forward with the case.

It's important to keep improving the supports available to victims and to ensure that participants in the justice system understand how stress affects victims.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

In order to better understand victims of sexual violence so that their psychological and emotional circumstances could be better accounted for, what are your suggestions as to what we should consider? Is it around better training for those who are part of the justice system? Is it a change in the manner in which cases dealing with sexual violence are conducted in our justice system?

Can you give us a sense of your thoughts on how victims of sexual violence can be better accommodated? “Accommodation” may not be the right word, but I hope you get my meaning.

[Marie-Hélène Ouellette]

I certainly agree that training should be improved, but I think it's necessary to take a hard look at the imbalance between the rights of victims and the rights of the accused in the current system.

I don't see how the power imbalance in the system can be fixed without revisiting the burden of proof and what the rights of accused mean for victims. In contrast, victims are considered witnesses to the crime.

Opening that up to scrutiny isn't easy, but I urge you to do it.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

It is a difficult issue. When you speak of burden of proof in a criminal matter, in a system that has been around for such a long period of time and has been tested, you're posing a big question. I'm not putting you in the hot seat. I'm just acknowledging what you're saying and keeping that in mind. The reason I say this is that I think that's probably beyond the scope of this committee's work as we're looking at the bill of rights for victims.

Are there any other suggestions you may have, besides training, that we may want to consider when it comes to protecting the rights of victims in matters of sexual violence?

[Marie-Hélène Ouellette]

I've heard a lot of people say that victims should be better informed. Obviously, I think victims need to be better supported when it comes to information sharing and the impact. Information is shared with victims throughout the process, and prosecutors have a hand in that, but victims should be informed even before they go to police. Getting the right information isn't always easy.

Some prosecutors are extremely supportive, but that's not their main job. It's important to look at where in the process the system can provide more support to victims.

When a victim first gives their statement, they are in a tiny room with a police officer, but they may contradict that statement when they give their testimony.

Getting a victim ready for trial is a multistep process.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Next we'll go over to Monsieur Fortin for six minutes.

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

Thank you, Mr. Chair.

Good morning, Ms. Ouellette. I'm glad you're with us this morning.

I've been listening to everything you said, and it's very enlightening.

I agree with Mr. Naqvi. Endeavouring to reverse the burden of proof would be pretty hard to do. We live in a society where we don't want people to be convicted unless we are certain that they are guilty. Wrongly or rightly, the system we have is based on the principle that we prefer to let guilty people go free than to send innocent people to jail. That has its benefits and its drawbacks.

That said, I think you're right to say that the justice system tends to leave victims behind. It makes total sense when you say that victims of sexual violence may have some anxiety or stress, that they may have trouble recalling certain things and that their testimony may come across as less credible, as a result. That makes me wonder whether we shouldn't focus on tools to help victims to ensure they are met with more understanding when they testify.

I was going to bring up information, but you beat me to it. A lot of witnesses told us that victims knew little about what their rights were. That is a big problem, one we need to pay careful attention to in our report.

I want to discuss another topic with you, victims' participation in the legal process. Do you think it would help if victims were involved in the process every step of the way, rather than just being treated like witnesses? If they were involved in the process, they could have more influence on decisions like plea bargains. Those decisions are usually determined by defence counsel and the Crown prosecutor.

Do you think victims would benefit from being involved in those discussions, and would they agree?

[Marie-Hélène Ouellette]

Sexual violence is a situation where one person has power over someone else, meaning, the victim has lost all control in the situation. In the justice system, the victim has the role of almost a witness-observer, so they continue to be deprived of their power. If they could be more involved in the process, it would help them feel that they were taking some power back, and that could contribute to the healing process.

When the victim is excluded from the plea bargain process, the outcome can come as a nasty surprise. Figuring out ways to involve victims more is a good idea and may help them take back their power.

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

I imagine that every victim wants to see their attacker convicted.

Let's say victims played a bigger role in the process. Would we see different sentences than we do now, in your experience? Do you think that, conversely, sentences would be more or less the same?

[Marie-Hélène Ouellette]

That's a tough question to answer.

Clearly, most sentences are served in provincial institutions, so the maximum term is two years less a day. Basically, the sentences handed down tend to be fairly light. Not all victims necessarily want longer or harsher sentences. What victims want is to come out of the process really feeling like they were heard and believed, not like they were the problem. The sentence can play a role, but not always.

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

That's interesting.

I'm going to come back to victims' participation. If we want them to participate more effectively in the process, shouldn't we think about offering victims counselling services? I'm talking about psychologists, social workers or what have you who would help victims by getting them ready to testify and explaining the process to them.

I'm not a psychologist, but I'm sure there are things that can be done to put a person more at ease in the courtroom. That might help victims give more fluid testimony, and thus more useful and understandable testimony from the court's perspective. I don't mean to say that the testimony would be more sincere, because I assume that all victims are being honest and telling the truth.

Would professional services like that be of use?

[Marie-Hélène Ouellette]

Those are the types of services we provide.

In Quebec, CALACSs and CAVACs—Centres d'aide aux victimes d'actes criminels, help centres for victims of crime—provide that support. It makes a difference. We provide assistance to victims, even just helping them to rethink their goal of a conviction at all costs and encouraging them to break their silence. That's what we work on.

It's helpful to victims to have someone with them who can ask for a time out when things get too much. The victim should be allowed to have someone like that there, besides the Crown prosecutor, but that's not always the case.

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

Thank you, Ms. Ouellette.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Now we'll have Mr. Garrison for six minutes.