Evidence of meeting #35 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was survivors.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Michele Jules  Executive Director, Manitoba Prosecution Service
Holly Foxall  Program Director, Action Now Atlantic
Hugues Parent  Full Professor, Université de Montréal, As an Individual
Ami Kotler  General Counsel, Manitoba Prosecution Service
Farrah Khan  Executive Director, Possibility Seeds
Pam Hrick  Executive Director and General Counsel, Women's Legal Education and Action Fund

12:40 p.m.

NDP

Randall Garrison NDP Esquimalt—Saanich—Sooke, BC

Thank you very much to both witnesses.

12:40 p.m.

Liberal

The Chair Liberal Randeep Sarai

Thank you, Mr. Garrison.

Next, we'll go to Mr. Van Popta for five minutes.

October 31st, 2022 / 12:40 p.m.

Conservative

Tako Van Popta Conservative Langley—Aldergrove, BC

Thank you, Chair.

Thank you, witnesses, for being with us and for doing the important work you do.

Earlier in this study we had witnesses before us at this committee who talked about the trauma that women face in sexual assault trials in a criminal court setting. We heard, and I think you reiterated, that only a very small percentage, like 6%, of sexual assault cases actually get reported. Even fewer get prosecuted and, of course, even fewer end in convictions. Now we have a defence of self-induced extreme intoxication available once again. We heard from witnesses earlier today, Crown prosecutors working in this field, who said they expect there will be more accused people who will raise this as a defence.

This is just a wide-open question: Could you comment on that? What does this do? That's for either one of you. Maybe Ms. Khan could answer, because my follow-up question will be for Ms. Hrick. Just generally speaking, what does the availability of this defence do to the trauma of victims in a criminal court setting?

12:40 p.m.

Executive Director, Possibility Seeds

Farrah Khan

It will only do what we put into it. What I mean by that is that if we don't have clear communication, if we're not educating survivors, if we're not providing them access to justice that's outside of the Crown so they can talk to a lawyer independently to understand, then they're going to be less likely to report, because we're allowing influencers, people who are not experts on this, to start speaking about it and taking up the loudest space. We have to do campaigns on misinformation. Right now, disinformation is one of the biggest problems.

In terms of survivors going through a court case, someone said before that there's an erosion of trust in the court system by survivors. It's not eroded. It's always been there. Survivors don't trust a system that is not made for them. Survivors don't trust the system that is set up to put them on trial and not the person who has harmed them.

We need to do better, but we also need to have more access to justice processes for them and more information for the general public.

12:45 p.m.

Conservative

Tako Van Popta Conservative Langley—Aldergrove, BC

Thank you.

Ms. Hrick, earlier in this study—I think it was last week—we had some law professors here giving evidence, including Dr. Kerri Froc of the University of New Brunswick, who is the chair of the National Association of Women and the Law. That organization is critical of Bill C-28 and the revised section 33.1. In discussing Bill C-28, she talked about the “problematic aspects of the bill, which we fear will pose nearly impossible hurdles for prosecution of intoxicated perpetrators of violence against women.”

She then went on to say that there are other alternatives available that Parliament could have followed, rather than just necessarily one or the other of the two options that the Supreme Court of Canada gave us, including reversing the onus on the negligence aspect of the bill.

What do you say to that?

12:45 p.m.

Executive Director and General Counsel, Women's Legal Education and Action Fund

Pam Hrick

I appreciate the opportunity to be able to speak to this.

My concern with any sort of reverse onus at this point is the large risk that the Supreme Court would find that to be unconstitutional. What I do appreciate about how this particular bill was tailored and implemented is the nuance that it allows to be brought to consideration of the defence. All the relevant factors that are able to be properly taken into account I think ensure the constitutionality of the legislation.

As to whether this sets too high a bar, or a nearly impossible bar.... I only caught part of the last panel, but I believe you had representatives from the Manitoba Prosecution Service, who were speaking to the extent to which they thought it would be possible to prosecute under these new provisions that have been implemented by Bill C-28. I'd defer to their prosecutorial expertise on that particular issue.

12:45 p.m.

Conservative

Tako Van Popta Conservative Langley—Aldergrove, BC

Yes, that's a fair comment. Thank you for that.

12:45 p.m.

Liberal

The Chair Liberal Randeep Sarai

You have 30 seconds.

12:45 p.m.

Conservative

Tako Van Popta Conservative Langley—Aldergrove, BC

I'm reading on the LEAF website about the criminal law disproportionately discriminating against marginalized people. In the few seconds remaining, could you comment on that? I'm assuming you're not expecting a different balance of proof depending on race, for example.

12:45 p.m.

Executive Director and General Counsel, Women's Legal Education and Action Fund

Pam Hrick

No, of course not. What I do think is that people, particularly at this committee, and all parliamentarians, need to understand the ways in which racialized people—Black, indigenous—are disproportionately criminalized. You need look no further than the statistic that 50% of federally incarcerated women in this country right now are indigenous, notwithstanding that they represent under 5% of the Canadian population.

12:45 p.m.

Conservative

Tako Van Popta Conservative Langley—Aldergrove, BC

Thank you.

12:45 p.m.

Liberal

The Chair Liberal Randeep Sarai

Thank you, Mr. Van Popta.

We'll go to Ms. Dhillon for five minutes.

12:45 p.m.

Liberal

Anju Dhillon Liberal Dorval—Lachine—LaSalle, QC

Thank you, Mr. Chair.

Thank you to our witnesses for being here.

I will start with you, Ms. Hrick. I was going to ask you this question, but Mr. Van Popta has already started it. You spoke about the importance of constitutional rights and how they are being protected with this legislation, and said that this important balance is being looked at. You also spoke during your opening statement about marginalized people, people of colour, Black and indigenous people, being adversely affected, both on the victim side and on the accused side.

Can you please tell us how this legislation and this approach will help in these kinds of situations? As you stated, it's important to look at both sides to see that there's a balance, where rights are protected both for the victim and for the constitutional rights of the accused.

Thank you.

12:45 p.m.

Executive Director and General Counsel, Women's Legal Education and Action Fund

Pam Hrick

Right, and that's exactly what our charter requires. It requires the protection of rights of accused persons and also provides for the protection of rights of equality-deserving groups, including women and girls. The particular provision in subsection 33.1(2) that is, I think, important to this legislation is, again, looking at all of the relevant circumstances of a particular case and those being brought to bear on determining whether or not the prosecution is successfully meeting that threshold of proof beyond a reasonable doubt in light of all relevant circumstances. That will allow things like addiction issues and mental health issues to be taken into account.

I also think that it acknowledges exactly what I was talking about, which is the ways in which the criminal justice system disproportionately comes to bear on Black, indigenous and racialized people. It's not privileged white women who are being stopped in the street and who are being carded. We are not disproportionately being charged and being brought into contact with the criminal justice system. It is members of those marginalized communities, and I think that's something that always needs to be front of mind when we're talking about criminal law.

12:50 p.m.

Liberal

Anju Dhillon Liberal Dorval—Lachine—LaSalle, QC

Thank you for that.

What would you see as alternatives? You spoke a little bit about getting people out of the criminal justice system and having more healthy.... We've heard throughout testimony in this committee that holistic approaches need to be looked at. Do you have any suggestions? What do you envision those as being?

12:50 p.m.

Executive Director and General Counsel, Women's Legal Education and Action Fund

Pam Hrick

I envision fully funding, as Ms. Khan already said, restorative justice, transformative justice processes and community-based accountability mechanisms. As somebody who has been on the front lines of some of that, Ms. Khan may be well placed to actually share some of those experiences and expertise on that specific question.

12:50 p.m.

Liberal

Anju Dhillon Liberal Dorval—Lachine—LaSalle, QC

I was actually going to ask Ms. Khan if she could follow up and give us her opinion on the questions I asked you previously, and carry on with what you said.

Thank you, Ms. Khan.

12:50 p.m.

Executive Director, Possibility Seeds

Farrah Khan

Thank you both. Everything Pam said, I agree with, so I would just co-sign on everything there.

I would say, around transformative and restorative justice, that Courage to Act released two guides on working with people who have caused harm and working from a non-punitive approach around accountability. I would say those two things really need to be looked at.

Too often, we create processes that actually don't heal communities. We can't create an island where all the people who commit sexual violence go; they are amongst us. We have to build resources, opportunities and training so people can do the work. I've been witness to accountability counselling in which a young man was found to have sexually assaulted someone, and instead of going through an investigative process was asked if he would go through accountability counselling. He agreed and he went through it and at the end he was able to say, yes, I did that and this is why and this is what needs to change within me. Six years later we spoke to him. He was a part of a podcast we just put out in which he and the survivor talked together about what it meant to go through that process.

We need more opportunities like that, because the thing is, there was actual change there. There was a change of mindset to “I won't do this again.” This takes more resourcing and a whole system change, but it's where we need to go, because the current criminal legal system—I'm not going to call it justice—isn't working for survivors and respondents. We need to do better and invest in that transformative, restorative justice, but that's going to take funding, resourcing and being creative, which I hope we can be.

12:50 p.m.

Liberal

The Chair Liberal Randeep Sarai

Thank you, Ms. Dhillon.

Next we'll go to Mr. Fortin, for two and a half minutes.

12:50 p.m.

Bloc

Rhéal Fortin Bloc Rivière-du-Nord, QC

Thank you, Mr. Chair.

Ms. Khan, I think you are very optimistic that it can be done. All the better if that is the case.

I'd like to take you a step further. Shouldn't victims be more involved in criminal trials? Obviously, when it's a civil trial, the victims are involved, since they are the plaintiffs. However, in a criminal trial, which is normally between the Crown and the accused, isn't the space for victims a little too small? Shouldn't victims be allowed to participate in all stages of the trial? I am not talking about forcing them to do so, since some of them would not want to, and that is understandable. For example, they could be allowed to put questions to the accused and be represented by a lawyer, of course. They could also participate in the famous plea bargaining.

In your opinion, is it not possible to improve the way victims are heard in a criminal trial?

12:55 p.m.

Executive Director, Possibility Seeds

Farrah Khan

Our Canadian laws are quite good around sexual violence and consent. I think the challenge is how they play out in court, so I think we need to look at that. That includes better training for lawyers and strongly encouraging that lawyers, judges and everyone who is part of the criminal legal system be trained about sexual violence, including on this provision.

I think one of the other things that we really need to see is that the independent legal advice, although I think we can change it.... I think survivors really need to talk to someone they have as an independent person, who is just for them during that process. The respondent gets that and the defence gets that, but the survivor doesn't through that process. That's why the independent legal advice pilot projects are so important. They shouldn't be pilots; they should be permanent.

Pam, I think you're better to speak to this than I am, because I am not a lawyer.

12:55 p.m.

Bloc

Rhéal Fortin Bloc Rivière-du-Nord, QC

What is your opinion on this issue, Ms. Hrick?

12:55 p.m.

Executive Director and General Counsel, Women's Legal Education and Action Fund

Pam Hrick

I do think that we need to ensure that survivors—and in the context of the criminal system, they're legally called “complainants”—do have access to that independent legal advice and are given proper information throughout from the Crown prosecution service, and from the victim/witness assistance program and equivalents outside the province of Ontario as well, to ensure they have a working knowledge of exactly what they're going into and exactly what this process is going to look like so that they can make informed decisions and informed preparations along the way.

12:55 p.m.

Liberal

The Chair Liberal Randeep Sarai

Thank you.

12:55 p.m.

Bloc

Rhéal Fortin Bloc Rivière-du-Nord, QC

Thank you.