Thank you.
Good afternoon. My name is Rosel Kim. I'm a senior staff lawyer at the Women's Legal Education and Action Fund, or LEAF.
LEAF is a national charitable organization that uses the law to advocate for the equality of women, girls and trans and non-binary people.
Thank you for inviting me today to speak to Bill C-16. My remarks today are based on the written brief that was submitted to the committee jointly by LEAF and the Barbra Schlifer Commemorative Clinic. Of course, I'm here today to speak for LEAF.
We welcome and support the bill's proposal to increase access to testimonial supports for victims and witnesses. The rigid rules and decorum of a courtroom can lead to additional stress and trauma for survivors who are revisiting and disclosing traumatic memories. In addition, we support the bill's increased emphasis on restorative justice processes, though we make one suggestion in our brief to ensure that what a survivor discloses during the processes is not used against them in future proceedings. We also agree with expanding the non-consensual distribution of intimate images offence to include deepfakes.
We are grateful for the efforts of parliamentarians to respond to the epidemic of gender-based violence. We understand the intent behind using criminal law reform to tackle issues like femicide and coercive control as a public recognition that these acts are serious and wrong. However, well-intentioned laws can have unintended consequences.
As such, we express caution toward the amendments in the bill concerning femicide and coercive control. While we agree with the need to recognize and address these issues, creating new criminal offences without clear survivor-centred safeguards could lead to survivors being caught up in the criminal system and charged themselves, especially if they are members of marginalized communities. We believe a broader systemic approach is a better answer to preventing and addressing gender-based violence.
There are, however, ways to improve the criminal responses to gender-based violence, and I want to highlight five areas where we have suggested amendments to the bill in our brief.
First, I'll discuss mandatory minimum sentences. Mandatory minimums do not deter crime and have negative impacts that are specifically detrimental for Black and indigenous communities. In addition, imposing prison sentences on Black and indigenous women who are mothers or caregivers of children can lead to disastrous consequences for the women, the children and their communities, including family ruptures and overrepresentation of Black and indigenous children in the foster care system. For these reasons, we recommend broadening the exceptions, or safety valves, to mandatory minimums, applying a gender-based analysis and not reintroducing mandatory minimums that have already been struck down.
Second, we propose a series of amendments to the sections on sexual history evidence and third party records. While we appreciate the desire to clarify this complex area of the law and reduce delays, we have heard concerns from lawyers who work with complainants about the risks of increased complexity and constitutional vulnerability in the bill. We also point to a change needed in the process to ensure that the complainants' intimate images are not shared between lawyers. I'm happy to discuss specifics during the question and answer period.
Third, we recommend maintaining the current wording of the criminal harassment provision. The proposed changes in the bill may increase the risk of survivors being charged with criminal harassment themselves in situations where survivors have to make repeated contact with their abusers about failures to respect custody arrangements or other court orders.
Fourth, we recommend broadening the definition of deepfakes to ensure that it appropriately captures the harm caused by non-consensual deepfakes. The definition of a deepfake in the bill requires that it is “likely to be mistaken for a visual recording of that person”. However, the harm of non-consensual deepfakes goes beyond deception. It is a violation of sexual integrity, where your image is sexualized without your consent, even in a manner that may not meet the realism threshold. Requiring realism for a deepfake to be criminal defines the harm of deepfakes too narrowly. It also adds confusion about who will determine whether a deepfake is likely to be mistaken as an actual visual recording. For this reason, we recommend removing the last part of this definition.
Lastly, we recommend that the federal government work with provinces and territories to decrease delays in the criminal legal system, rather than requiring courts to rely on remedies other than stays. Meaningful reduction in delay requires adequate resources, including increased staffing, judicial appointments and stronger governmental coordination to ensure that the system is properly supported.
I'll end by reiterating the need for sustained investment in preventative measures that address gender-based violence before it occurs, including community-based supports, education and early intervention initiatives. Criminal law alone cannot end gender-based violence.
Thank you very much. I look forward to answering any questions.