Justice Committee on Nov. 24th, 2022

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Do you think your proposal for mandatory training on systemic racism and gender-based bias would actually help in terms of this problem with screening officers perhaps not understanding and therefore dismissing cases?

[Nneka MacGregor]

I think that's a really foundational part of the work.

The challenge is to have the types of training that are actually going to result in attitudinal shifts, as opposed to training that is delivered to check a box. The challenge for us is really how to ensure that everybody who is part of this process has abandoned their biases, has abandoned their prejudices and is looking at every complainant and every judge from the perspective of “We're here to protect individuals' rights. We're here to support access to justice, and we're doing it from a place of nuance and understanding.”

You cannot do that unless you have grounding in human rights and you have an understanding of anti-Black racism, anti-indigenous racism and gender-based violence.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

We have certainly seen a reluctance by sitting members of the judiciary to accept the idea of mandatory training. For instance, the bill that we did pass, which requires training, does so only for new appointees to the bench.

What's your reaction to that objection to mandatory training on the grounds that it is interfering with the independence of judges?

[Nneka MacGregor]

If I'm to be very honest, I think it's ridiculous.

We actually did a lot of work with the National Judicial Institute to develop training for candidate judges around this issue of gender-based violence and racism. There were a lot of negotiations back and forth between us and Justice Adèle Kent, who is a former executive director there, before we finally managed to land on, I think it was, a two-hour training that was recorded. That same complaint around interference was raised numerous times.

There is a difference between interference and getting yourself educated about the reality of the society in which you live. There is a difference between interference and having you understand that people have biases and blinkers that are influencing the way they are meting out justice in the courtroom. Trying to get people to that level of understanding is not about interference. It's about uplifting and educating.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. MacGregor.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much for that response.

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

We'll now go to Mr. Caputo for five minutes.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Mr. Chair.

I'm going to pick up where Mr. Garrison left off, on mandatory training. I think it's interesting.

One thing I'm quite passionate about is the issue of secondary victimization. I believe you outlined that in your opening statement. I can't tell you how many victims I have seen who have described the court process itself as worse than the initial offence. It's not always the case, but it's never easy and it's often unduly burdensome. Often, that comes down to things like adjournments, applications under section 276 of the Criminal Code maybe being brought late and things like that.

I find it very interesting. I think this really applies more to federal appointments than to provincial appointments. Provincial court judges typically deal with small claims, family court and criminal court. They are typically going to come from criminal law or family law. For a federal appointment, someone could be a construction litigator, for instance. That could be where they made their mark in their legal career. Then, two months later, they're doing a jury trial for a complicated sexual assault.

I'm very interested in the issue of secondary victimization and I want to pick up on the issue of education and ongoing education.

Would you agree that we are just now starting to really understand how victims react and that this is a fluid research area that we are making strides in as we speak?

[Nneka MacGregor]

I completely agree.

We are doing work on the impact of traumatic brain injuries sustained as a result of intimate partner violence and how those brain injuries impact and impede the witnesses' ability to testify. When they are testifying, because of their brain injury, their attitudes and their demeanour are misunderstood as being belligerent, whereas in fact it is the result of the brain injury that they sustained.

We're also doing work around the neurobiology of trauma, which is explaining how trauma also impacts the witness of the crime.

The idea of developing a very robust, comprehensive analysis that helps everybody in the process better understand the experiences of the victims of violence in order to better provide services and better provide justice for them is essential.

The biggest challenge is having those types of training as check boxes and having one hour to undo a lifetime of discrimination that has been ingrained in you. It's not going to work.

For us, it's about how we instill a culture shift by providing comprehensive, ongoing training around these issues.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

I certainly understand that, especially when the literature is changing and developing.

It seems to me that it would be incumbent not only on the public to want it, but on the judges themselves. I don't know any judges who say they're going to set out to not make the best decision they can. Part of the best decision you can make, in any context, is understanding the witness who is before you. Understanding the witnesses before you, as you have mentioned, is that trauma-informed practice.

I thank you for that contribution.

You didn't get to finish your comment on anonymous complaints. I was going to ask a question about it. I find this interesting because I believe that two members of the reviewing panel would have to approve anonymous complaints.

You didn't get to answer the question about that. The floor is yours for whatever time I have left if you'd like to answer that question.

[Nneka MacGregor]

Absolutely. Thank you so much for the opportunity.

The issue goes back to my point around Black women, indigenous women and trans women who have traditionally been silenced and have traditionally not been believed by the judiciary or the criminal legal system.

With the fear that is ingrained in us, to then actually step up and file a complaint against a judge who has tremendous power, whether anybody believes it or.... The judge has tremendous power in relation to a complainant, who, when you look at the intersection of the race and the gender....

Having an opportunity for this anonymous complaint to be filed is, I think, a really compassionate and progressive way to engage individuals who are traditionally marginalized. These are people whom my colleague, Dr. Tope Adefarakan, calls people on the margins of the margins. They are people who don't have opportunities, access, money or resources. This is an opportunity for them to come forward.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. MacGregor.

Thank you, Mr. Caputo.

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

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you, Mr. Chair.

Thanks to our witnesses for being here today.

I'm going to start with Ms. MacGregor.

You spoke about a 2019 study in your opening statement. Could you please tell us a bit more about the kinds of discrimination seen? Can you give us some examples, please?

Thank you.

[Nneka MacGregor]

Thank you very much for the question.

What we did was actually.... There were two parts of ethics approved. One was a series of interviews with women in rural and urban communities who had been raped and who reported, and therefore went through the system. The other was a series of focus groups with women who had been raped and didn't report. We tried to understand why. What barriers were women facing?

One thing that became quickly evident in the focus group with women who were raped and didn't report was this: It was the only site where we found Black women in the community, because Black women who were raped were reluctant and feared reporting to the police, because they see police as an unsafe place. Women who were raped and reported, whether in rural or urban communities, were generally white women.

The point I was making about Dr. Crenshaw's intersectionality framework is that it will help people better understand what systemic racism is doing and how it ensures that Black women, as an example, or indigenous or trans women, are not getting access to justice, which then makes a mockery of the whole system. If not everybody has access to justice, then nobody has access to justice.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you for that.

You also spoke about the overincarceration of indigenous and Black people. Do you believe this is because of the racial biases you spoke of in your opening statement and just mentioned, from the starting process until the very end—from when a complaint is first filed until it is judged? Could you please tell us whether this is another reason you believe there's overincarceration of Black and indigenous people? Is it because of these biases—the decision rendered by the judge in their case, or on their file, when they are in front of a judge?

[Nneka MacGregor]

I believe it unequivocally.

In my opening statement, I talked about the fact that it isn't because Black and indigenous women and girls, or 2-spirit people, have more propensity for criminality or criminal behaviour. It is because of racism.

I had a conversation, recently, with the CEO of the National Association of Friendship Centres, who said that, in federal prisons, anything as high as ninetysomething per cent of federally incarcerated women are indigenous. That is a ludicrous figure when you consider the percentage of the population indigenous women have in Canada—about 2.3% to 2.5%. Nobody can tell me that is anything other than systemic racism, which has resulted in such a small population being so grossly overrepresented. The same goes for Black and trans women. For me, it is a clear indication that the system is set up to disadvantage and discriminate against certain populations and do it with such impunity.

We're hoping that, with this bill and our proposal, more attention will be paid to the process of hiring and to ensuring that the individuals administering the process are individuals who are educated, understanding, empathetic and really grounded in intersectional understanding of race and gender.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you for that.

I guess it would be on the other end, as well, where victims come forward and, as you said, don't feel as if they're being listened to. Again, this comes down to those biases.

You also spoke about not being able to understand the different cultural or racial nuances. Can you speak to us a bit about that, please? As well, because I'm running out of time, what about tacit discrimination? How do we address tacit discrimination? Sometimes there's eye-rolling or words like “you people”.

Thank you.

[Nneka MacGregor]

Thank you so much.

That's not tacit. That's explicit, in my opinion. The issue of implicit and explicit biases that.... Everybody has them, but when you're in a position of power and using that as the basis on which to judge and discriminate against certain members of the population, that is something we're trying to uproot.

There are many people doing this work. I want to spend a few minutes talking about my brilliant colleague, Dr. Rachel Zellars, who has done a lot of training around that—

[The Chair, Liberal, Randeep Sarai]

Unfortunately, Ms. MacGregor, you don't have a few minutes. You're over time.

[Nneka MacGregor]

Thank you.

[The Chair, Liberal, Randeep Sarai]

I want to thank all the witnesses in this study for the time they've given us. It's very valuable testimony.

That concludes the testimony part of this meeting.

I have a few matters that I want to mention. Witnesses are free to leave if they want to, or they can sit around with us if they would like to see this.

Members, we will be proceeding to the study of the draft report on the government's obligation to the victims of crime. You should receive a confidential first draft tomorrow in order to prepare for Monday's meeting. Hopefully, that will give us enough time. That's what the analysts have told me.

We'll have to adopt a budget to reimburse our witnesses who appeared on Bill C-9 and adopt the revised budget for the trip in March 2023.

I also want to remind you that you have a deadline to submit amendments to Bill C-9: Monday, November 28 at 6 p.m.

Finally, yesterday we received Bill C-291, an act to amend the Criminal Code and to make consequential amendments to other acts regarding child sexual abuse material. We will have to find time to proceed to this study. It is Mr. Mel Arnold of North Okanagan—Shuswap who has presented this bill in the past. At the latest, we have to report the bill 60 sitting days after the date of the order of reference. That is April 26, 2023, so we have some time for that.

Go ahead, Mr. Garrison.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Mr. Chair, can I ask that for the committee business section we have a proposed revised schedule to accommodate the various things that have been dropped on us and also to confirm if we're having the minister for estimates and when?

I'm not asking for it today, but if we can have the revised schedule to look at on Monday, that would be helpful.

[The Chair, Liberal, Randeep Sarai]

The clerk can probably answer that right now.

Go ahead.

[The Clerk of the Committee, Mr. Jean-François Lafleur]

Mr. Garrison, as the meeting was going on, I updated the calendar, so I can circulate it pretty soon, maybe even after the meeting.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you.