Status of Women Committee on April 11th, 2017

[The Chair, Conservative, Marilyn Gladu]

Excellent, thank you.

We'll go to Ursula for five minutes.

[Ursula Hendel, President, Association of Justice Counsel]

Thank you very much for the invitation to appear here today. My name is Ursula Hendel, and I'm the president of the Association of Justice Counsel representing about 2,600 federal lawyers, including the prosecutors responsible for conducting sexual assault prosecutions in Canada's north.

Law school prepares us well for the rules of evidence, the burden of proof, and the ethical responsibilities of lawyers, but it does not teach us very much about human behaviour. The common law traditions under which we work presume that triers of fact like judges are supposed to draw on ordinary experience and common sense when assessing human behaviour and when determining matters like credibility and reliability.

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. I was not so lucky. As a student-at-law, I was subject to unwanted sexual advances from someone who I thought was a friend. I was a young woman full of confidence, full of privilege, and the world was my oyster. In fact, I was studying feminist legal theory. And yet, when it happened to me, I did not react in a way that I would expect. I froze, and I needed my friends to come rescue me. Fortunately, I was in a public place. I spent many years thinking about that experience, and I think it helped me as a prosecutor present the facts to a judge or a jury because I understood that, unless it happens to you, you actually have no idea how ordinary people would behave when something completely out of the ordinary happens to them. We think that we do—we all think that we do—but I don't think that we do.

I have been a prosecutor for 20 years. In the first 10 years of my career, I estimate I prosecuted over 500 cases of sexual assault. I did not receive training in relation to sexual assault at all for at least the first five years of my career. When I did, it was more about the evidentiary rules and not about the psychology of being subjected to unexpected trauma. That was some time ago. Things may have changed since the Jurassic age, but the truth of the matter is that no training of any kind is actually mandatory for federal prosecutors. While prosecutorial agencies like the one my members work for, the Public Prosecution Service of Canada, the PPSC, are very committed to the idea of training, much like the judicial institutes we heard from earlier, our reality is that the service has too little money and we prosecutors have far too little time.

The PPSC has only one formal training session called the school for prosecutors, which is offered once a year for five days. Only a fraction of our prosecutors are able to attend, so many of us struggle to meet our professional responsibilities for training that our various law societies require. It is a real challenge to get any training at all, including what is mandated by the law society. I haven’t gone back to check every year, but at least for 2016, there is no sexual assault training on the agenda at the school for prosecutors.

The regional offices make every effort to find training opportunities—they do their very best—but most prosecutorial agencies are so chronically under-resourced that they can't afford to send the prosecutors away for training, not only because they don't have the money to pay for the training, but even more importantly, because the prosecutors are required in court every day. There are no spare bodies to cover that court and run those trials.

Plus, there are so many topics to cover when it comes to training that I believe it continues to be our reality that we do not get adequate training. We particularly do not get adequate training on the trauma of sexual assault. Since it's our job as prosecutors to present the evidence to the trier of fact in the most logical, persuasive, and coherent way, we are also the link between the criminal justice system and the complainant.

We have court workers now in many cases to assist us, but we are still their voice in court. If we don't understand the experience of the victims, we are going to fall short.

If you really want to bridge the gap you're trying to bridge, we need to train prosecutors in addition to judges. I see in their report there was a recommendation to implement an educational curriculum for crown prosecutors, and I look forward to seeing the government's response to that.

Thank you very much.

[The Chair, Conservative, Marilyn Gladu]

Thank you.

We'll begin our questioning with Ms. Vandenbeld, for seven minutes.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Thank you very much to all of the witnesses, particularly Ms. Hendel for talking about your own personal experience.

Before I get to my questions, I'd like to have Mr. Serré ask a question specific to some of the testimony. Then I'll come back.

[Marc Serré, Liberal, Nickel Belt, ON]

Thank you.

My question is to Professor Craig. You indicated that your experience is in constitutional law, and you spoke about written and provincial responsibility. In your opinion, does Bill C-337 create any provincial jurisdiction issues, and also, does the bill undermine a judge's independence?

We have 30 or 60 seconds.

[Prof. Elaine Craig]

I'm not going to speak to the judicial independence point, because my analysis and research focus most recently has been on the written reasons part. There is a possibility that subparagraphs 62.1(1)(b) and (c) could have a division of powers issue in terms of a province's legislative jurisdiction over the administrative of justice.

[Marc Serré, Liberal, Nickel Belt, ON]

Thank you.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

One of the things we heard in our violence against young women and girls study is that different groups of women experience violence differently. I noted that Ms. Hendel talked about factors of privilege. I know Professor Koshan has written on myths and stereotypes, and Dr. Craig on The Inhospitable Court. We heard this significantly as a deterrent for women in seeking justice.

One of the key issues is that there is an intersectionality with different identity groups. LGBTQ women, indigenous women, those living with disabilities, newer immigrants, and other identity groups have even more difficulty. I noted that in Bill C-337 there isn't a specific lens in terms of intersectionality.

I'll start with Ms. Hendel, and then I'll let others respond. Do you think it would be an improvement to the bill if we were to include a necessity for that? Also, are you aware whether this kind of training already exists, or is this something that's already absent?

[Ursula Hendel]

I can't speak to what's available to judges. For what's available to prosecutors, it certainly improved quite a bit since I first came onto the scene in 1997, 20 years ago. We still have a lot more we could do, though. There's so little time, and so much to learn. Some of it is about prioritizing. If you mandate something, you put it to the top of the priority pile. Other things will not get trained, and that's a conscious choice this group is eminently capable of making, if it so chooses.

[Prof. Carissima Mathen]

I would agree with that. There is great complexity in how you train on these issues. They do really merge in terms of when you are actually sitting in that role, and having to decide cases involving complainants and accused persons from all different backgrounds. There is a risk of perhaps seeming to emphasize one type of training as more required than other types of expertise. That is a trade-off, and essentially a calculation you have to make.

[Prof. Jennifer Koshan]

I agree with what's been said so far. My interpretation of the bill is that the language of social context training would include training on intersectionality issues. I don't think something needs to be added to the bill to include that, as long as it's understood that social context training would include the sorts of things we're talking about.

[Prof. Elaine Craig]

I agree with Professor Koshan. I would just add that I understand that aspect of the bill to be a structure and not something substantively directing the content of the training, but presumably it would have to cover intersectionality.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Thank you. Perhaps making that more explicit might be of benefit.

Are there other aspects of the bill missing? Is there anything in the language that you think might be either too narrow, or even anything in the language that you consider too broad?

[Ursula Hendel]

I think I would leave comments about the likely constitutionality to the experts, the professors on the panel.

[Prof. Carissima Mathen]

Here are a couple of quick comments.

First, on the content of the training specified under the Judges Act that is to be completed to the satisfaction of the commissioner, I think it might be helpful to appreciate that those really relate to different kinds of knowledge deficiencies.

The myths and stereotypes training I think is something that many people do not have and that would certainly be helpful, but you want to think about whether you're unnecessarily expending resources, for people who are versed in criminal law, to require them to demonstrate recent training in sexual assault law and evidentiary prohibitions.

On the other side, if someone is deficient in something such as evidentiary prohibitions and other basic aspects of criminal law, then that's a much more foundational training that probably needs to be ensured. For example, there's no reference to burdens of proof, which actually can become quite complicated in criminal law and can trip people up.

I guess I worry that you may be trying to do too much through what may be interpreted as a one-shot, one-size-fits-all component.

That's what I would say for now.

[The Chair, Conservative, Marilyn Gladu]

That's your time. We're going now to Ms. Vecchio for seven minutes.

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

Thank you very much to all the witnesses today. You have brought forward a lot of information.

I'm going to start off with Ms. Hendel.

Once again, thank you very much for sharing your story, because I think it has a profound impact on what you do and how you do it. I really appreciate it.

We talked a lot in the last panel about the mandatory judges school for new entrant judges. I have worked with our community foundations, our community groups, that have dealt with sexual violence. From your experience, do you feel that there is enough conversation going on between such things as the mandatory judges school and training for judges and what actually happens on the ground and through these women's centres? Do you think there's enough communication happening between them right now so that at the end of the day we are serving Canadians the best way we possibly can?

[Ursula Hendel]

Those of us who work in the justice system really can improve a lot; there's a lot of work to do. I think there's a resistance among certain elements of the bench and bar to the sort of soft psychology whereby we evidence lawyers are supposed to be charter experts, are supposed to be Criminal Code experts, and are supposed to know the rules of criminal procedure and the rules of criminal.... That's a lot. It's the sort of hard stuff that we consider erudite, as opposed to what I'll call touchy-feely—

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

—soft skills?

[Ursula Hendel]

Yes. I think it's changing and that there's more of an openness, but there is also a sense of isolation. We're very guarded. We're not the victims' lawyers, and there's a tendency for complainants to see us as their lawyer. We have to guard against that, because it's problematic.

We try, then, to take a very isolationist approach, sometimes for good reason, but it gives us sometimes a sense that we're inaccessible. We're really busy and are not given enough incentives, if I can put it that way, to really learn about human behaviour in some problematic areas. Robbery perhaps is not an area in which we need to learn more about insight into victims and their experiences, but I think sexual assault definitely is.

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

Thank you very much.

Are there any comments from anyone else on the panel on this question?

Okay.

I'm just going to move forward, continuing with the judges school. I want to know whether everybody thinks this is great enough. I recognize that we're talking about education once they're on the bar, but I also believe that any time you're doing education, it helps you, whether you're a prosecutor or a defence lawyer. Anything like that would make you greater at what you do.

Some of my concern is with the mandatory training that they're putting forth; that there isn't enough time. We talked about deficiencies already. With this judges school, do you think that the mandatory training, when they go, is enough, or do you think we should do more? We have to recognize that laws change, cases come up that we should always be aware of. Do you think we should be doing more? Once judges have been sitting on the bench for five or more years, should they have mandatory training?

I'm going to ask the whole panel, if you don't mind, or whoever wishes to comment.

[Prof. Carissima Mathen]

I'm certainly a proponent of lifelong learning, no matter what the endeavour. I am a proponent of that for lawyers generally, and judges have a responsibility to ensure that they continue to be educated.

I would agree with the comments in the previous panel. I do think that is something that has to be governed by judges and I believe there is a risk zone for Parliament in mandating training for sitting judges.

[Prof. Elaine Craig]

The fact that the Canadian Judicial Council has taken the new step of actually mandating training for new judges suggests clear recognition of these deficiencies, and there's no reason to think that new judges school would be sufficient or that judges, just like the rest of us, don't need to continue to develop their substantive competence as well as their understanding of the social context that produces sexualized violence.

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

Dr. Craig, I want to continue with you regarding the written decisions.

One thing I learned from my mother is that if you don't want it to come back, don't put it in writing. I sometimes look at that as a potential thing with these court cases, because as you said, it's that second thought. When you're writing it down, you might also recognize that it's very inappropriate.

We have also heard of zombie laws occurring, so I think any time a judge is making a statement or putting something in as a decision, that is a good way of making sure the sources are correct. Can you continue a bit more about the written part?

I think some people are concerned that it's going to take up more time. However, at the same time, what's worse is having to come back and say, “This is what my decision was”, and having to do it through national media. That would waste more time, if we're looking at a wrong decision. Can you continue with that, please?

[Prof. Elaine Craig]

There's no question that it would require resources, so that's just a decision: does the government want to commit those resources to improving the experience that complainants have in the criminal trial process?

Also, it has to be just as a matter of common sense. True, oral decisions and written decisions are different. For any of us, if we're drafting something that we know is quite likely to end up on a database for the world to scrutinize, it's going to look different from something that's recorded in court but is, in many cases, likely to be heard only by the individuals who were present in court that day.

Again I'll go back to the example that the CBA used, which is the Al-Rawi case from Halifax. He issued that oral decision without making reference to a single legal precedent in a very difficult area of sexual assault law, assessing consent in the context of a very intoxicated complainant. It strongly contrasted with a similar decision out of Ontario, also involving a severely intoxicated complainant, but a written decision, where the judge surveyed the case law extensively and wrote a considered and thorough analysis.