Status of Women Committee on April 13th, 2017

[The Chair, Conservative, Marilyn Gladu]

Good morning, colleagues.

We are returning to our study of Bill C-337, an act to amend the Judges Act and the Criminal Code regarding sexual assault. We're very fortunate today to have a large group of witnesses. We begin with the Canadian Centre for Gender and Sexual Diversity. We have Jeremy Dias, who is the executive director, and Katerina Frost, who is the government affairs coordinator.

We also have from the DisAbled Women's Network Canada, Bonnie Brayton, who is the national executive director.

From “WomenatthecentrE”, we have Nneka MacGregor and Mandi Gray.

From the Avalon Sexual Assault Centre, by video conference from Halifax, Nova Scotia, we have Jackie Stevens, who is the executive director.

I want to welcome all of our witnesses today. Each of you will be able to begin with your five minutes of comments.

We'll begin with Katerina for five minutes.

[Katerina Frost, Government Affairs Coordinator, Canadian Centre for Gender and Sexual Diversity]

Good morning. Thank you, Madam Chair.

Thank you, members of the committee, for inviting us to appear today. My name is Katerina. I'm here with Jeremy Dias representing the Canadian Centre for Gender and Sexual Diversity.

As we reviewed this bill, we noted the following points, which we respectfully request the committee to consider. First, we hope that in your deliberations as members of the committee you will consider the status not only of cisgender women and men but also transgender, intersex, genderqueer, gender-fluid, and gender non-conforming individuals. For example, a sobering statistic is that of transgender individuals surveyed for the 2014 Trans PULSE survey; 20% have been assaulted physically or sexually for being trans.

The committee's discussion of this bill has already included the issue of intersectionality in gender-based violence and social context in judicial training. We agree that this is an important factor. Similarly, we hope that the committee will consider the status of those with diverse sexual orientations. Gay, lesbian, and bisexual individuals report experiencing higher rates of sexual violence than heterosexual individuals.

Furthermore, we request the committee consider the impact that sexual assault proceedings may have on individuals of diverse gender identity and expression or sexual orientation. If members of the judiciary do not receive training covering that information, we feel that unintentional heteronormative, homophobic, or transphobic statements or actions toward the victim will mean that further stigma or indignity is attached to them unnecessarily. We also hope that you'll consider the ways in which training education could be sensitive to these issues in what is already obviously a traumatic experience for the victim.

We further hope that the committee will consider the changes proposed by Bill C-16, an act to amend the Canadian Human Rights Act and the Criminal Code. When this legislation passes, as we firmly hope and believe that it will, we feel that problematic interpretations of the law may still occur in sexual assault cases where gender identity or gender expression is a factor. We hope that with regard to judicial education and sexual assault law training, the committee will consider that changes be reflected on an ongoing basis. In the event that it does not become law, we hope that this content would still be included regardless, just because the people who are the reason for C-16 are not going anywhere, and if anything, they'll be fighting harder for equality in all ways and at all levels.

We hope that, with regard to the design and content of the training that judges will receive, the committee will consider the positive impacts of guidance from leading members of the LGBTQ+ community who have experience in supporting victims of sexual assault, as well as those experienced in supporting individuals with intersectional identities, and those from marginalized groups as well.

We feel that this bill is really a human rights issue and that all individuals, no matter their gender or sexual orientation, need to be able to have faith that the judiciary is in tune, up to date, and sensitive to them and their needs. This is about making sure that judges have better training. We hope that comprehensive education will mean exactly that, and will fully encompass the issues and challenges faced by the LGBTQ+ community.

Thank you.

[The Chair, Conservative, Marilyn Gladu]

That's excellent.

Now we'll go to Bonnie Brayton for five minutes.

Welcome, Bonnie.

[Bonnie Brayton, National Executive Director, DisAbled Women's Network Canada]

Good morning, everyone.

I'd like to begin by acknowledging that we're gathered on the territory of the Algonquin people and that we are in a time of truth and reconciliation with the first peoples of Canada. I was invited to speak to the proposed Bill C-337. I'm confident that others who will come before you will focus—

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Madam Chair, can I make a suggestion?

Because of inaccessibility problems and the witness only just walking into the room, if the witness wants, can I suggest we skip to another witness? It's only a five-minute difference.

[Bonnie Brayton]

It would give me a few minutes to collect myself, if you don't mind.

[The Chair, Conservative, Marilyn Gladu]

No problem.

We'll go then to Nneka MacGregor and Mandi Gray. You have five minutes.

[Nneka MacGregor, Executive Director, Women's Centre for Social Justice]

Thank you very much, Madam Chair.

Good morning, committee members. That was very, very considerate—thank you—for my colleague Bonnie.

On behalf of the Women's Centre for Social Justice, better known as “WomenatthecentrE”, we thank you for the opportunity to make this submission on this very important bill.

Our sexual violence response coordinator, Mandi Gray, and I are here today as women survivors of gendered violence to speak to the need for an informed judiciary who receive continuous comprehensive and effective training on all aspects of violence against women, including sexual assault.

I'll begin by saying that I'm basing most of my comments on a finding from a pilot initiative that we facilitated in 2014-15. We conducted a snapshot review of cases proceeded in several specialized domestic violence courts in Toronto, Ontario. Observations from the court watchers speak directly to the issues being put forth in this bill.

What the public knows are only those high-profile cases that make the press, such as with the retrial presided over by Justice Robin Camp. His egregious and ill-informed comments appear anomalous and occasional, but what we as women survivors know, as well as what we found from our court watch monitoring, is that those types of comments and attitudes are far more pervasive and form part of the everyday misogyny in the courtrooms across the country. The only difference is that, while other judges make similar comments and hold similar victim-blaming views, they are not being observed and oftentimes give no reasons for their decisions. No one is shining a spotlight on them, thus enabling them to continue treating victims in ways that skew the outcomes in favour of the offender with no regard for the victim.

Too many members of the bench have attacked and viewed complainants in far too many sexual assault cases as though they are the wrongdoers. She is held accountable for her attacker's violence. It is like blaming a homeowner for a home invasion. Society simply doesn't do that, so why, therefore, are survivors being held to a different standard? The answer to this question is largely due to the fact that individuals who preside over these kinds of cases lack the education and training needed to understand the fundamental differentiators in sexual assault cases and how these cases need to be handled differently.

Our court watch reports documented many instances where judges failed to hold perpetrators accountable even after they had pleaded guilty. Comments our court watchers documented are as egregious as those of Robin Camp's, the only difference being that we didn't name them, and that's something that we plan on doing in future court watch initiatives.

I'm now going to hand it over to my colleague, Mandi Gray.

Thank you very much.

[Mandi Gray, Sexual Violence Coordinator, WomenatthecentrE]

Hi, my name is Mandi Gray. I work for “WomenatthecentrE”. I'm a Ph.D. student, and I have also barely survived a rape trial.

It's important to note that Canada has among the most progressive affirmative consent laws and privacy protection for complainants in the world. The problem is that judges are struggling to apply the law. This is especially true when the sexual assault does not fit into the idealized archetype—the young, white, sober, female victim violently attacked by a racialized male stranger in a public place.

I'm going to focus on two major concerns that I've identified in Canadian courtrooms that may assist in correcting some of the discriminatory attitudes. The first is the need for education on provisions in the Criminal Code that already exist, and the second is education on cases involving alcohol.

There is a need for judicial education of section 276, which refers to sexual history, and section 278, the third party records, of the Criminal Code. These sections are colloquially referred to as rape shield laws.

In theory, an application must be made to cross-examine a complainant about his or her previous sexual activity or access their third party records, most often, therapy records or other medical records. The judge's decision to enter either of these into evidence may have serious implications for the complainant, and it's imperative that the judge makes an educated decision.

At the third party records application hearing, the complainant is actually entitled to legal representation paid for by legal aid. In contrast, the complainant is not entitled to representation at a sexual history application, and even if the complainant is willing to pay for representation, they are barred from attending.

Since the courts have the power to enter the most private details into public record, it is of utmost importance that the judge be aware of the very narrow grounds in which sexual history is even relevant to a sexual assault trial. Of course, the judge must ensure that the accused has the right to a fair trial, but similarly cannot allow for a discriminatory defence. In theory this seems like a simple task, but in practice has proven to be difficult. Even when both applications are not made by counsel or are denied by a trial judge, defence counsel pursue prohibitive lines of questioning, anticipating that neither the crown nor the judge will ever interfere, even if they are in violation. With proper education, judges can feel confident in their ruling and feel more confident in their decision-making.

It's also important to note that any education must include the role of alcohol. This risk is especially increased if she's attending post-secondary education. Many of these cases involve alcohol. There is no clearly defined threshold for intoxication for a sexual assault case, which may be difficult for a judge with little expertise in the area, and may partially explain why cases involving alcohol almost never result in conviction.

There are significant resources being allocated to social campaigns about consent and alcohol, but these attitudes are not reflected in Canadian courtrooms. As it stands, alcohol is the perfect alibi in a sexual assault case. There are two ways to change this, either by providing complainants with legal representation or by educating the courtroom actors to act in compliance with Canada's laws.

[The Chair, Conservative, Marilyn Gladu]

Very good. Now we'll go to Bonnie Brayton for five minutes.

[Bonnie Brayton]

Good morning, again.

Hello, everyone.

Thank you.

I would again like to acknowledge the Algonquin people.

I was invited here to speak to the proposed Bill C-337, and I'm confident that others who will come before you will focus their remarks on the content and the substance of that bill, which as we know is about the important need to have a judiciary that is well informed in the area of sexual assault.

With limited time, we have instead chosen to focus on the Supreme Court decision that we believe makes it clear why judicial training is essential. We will also suggest that a thorough review of the content of this training is required to ensure that it has a fully developed curriculum to include the range of accommodation required to support all women.

On February 10, 2012, the Supreme Court of Canada released its judgment in the case of Regina v. D.A.I. LEAF and the DisAbled Women's Network of Canada intervened in that appeal. Through this Supreme Court of Canada decision, Chief Justice McLachlin, writing for the majority, described sexual assault as an evil and acknowledged that women with mental disabilities are targeted for this offence at alarming rates. The court confirmed the importance of hearing the voices of women with mental disabilities in the court. The court acknowledged that the testimony of women with mental disabilities is essential to stopping sexual abuse and ensuring that sexual offenders are brought to justice.

The legal question before the court was how to interpret subsection 16(3) of the Canada Evidence Act, which permits witnesses who can communicate the evidence but are unable to understand an oath or affirmation to testify unsworn on a promise to tell the truth. Lower courts have developed a practice requiring mentally disabled witnesses to explain the meaning of abstract concepts like promise, truth, and falsehood. No other category of witness—not even convicted perjurers—is subjected to such a pre-testimonial inquiry.

The Supreme Court of Canada ruling clarifies that persons with mental disabilities are not required to meet a more onerous test than any other witnesses before they are even allowed to take the stand. If a witness can communicate her experiences and if she can describe what happened to her, she can testify after saying she promises to tell the truth.

The Supreme Court judgment noted that in the past, mentally disabled victims of sexual offences had frequently been precluded from testifying, not on the ground that they could not relate what happened but on the ground that they lacked the capacity to articulate in abstract terms the difference between the truth and a lie.

Women with intellectual and cognitive disabilities, including women with brain injuries—frequently acquired as a result of violence—experience staggering rates of sexual assault and are seen as easy targets. Abusers believe that disabled women are powerless to complain or will not be believed even if they do complain. The Supreme Court, in rendering this decision, acknowledged this reality and confirmed that their testimony is essential to any realistic prospect of prosecution.

The Supreme Court majority recognized that the testimony of women with mental disabilities promotes the truth-seeking function of the criminal process, particularly given the undeniably high rates of sexual assault and the interests of society in the reporting and prosecution of abuse. As the Supreme Court itself said, excluding evidence would effectively “immunize an entire category of offenders from criminal responsibility”, with devastating harm to the abused women and to society as a whole.

The Supreme Court of Canada decision also notes that the questioning of mentally disabled adults may require accommodation of each individual's particular needs, so that their evidence is best communicated in court. This aspect of this ruling is in step with international law in other international jurisdictions. The U.K., for example, is currently far ahead of Canada in terms of providing for witness intermediaries who assist persons with communication or mental disabilities in accessing the justice system at all stages, from reporting to police to giving evidence in court. Creating and supporting a roster of witness intermediaries in Canada is a logical next step for the federal government.

The decision is also consistent with Canada's international human rights commitments. The UN Convention on the Rights of Persons with Disabilities points to the need for our country to uphold its promise under article 13, where we are to have equal access to justice, and under article 16, which commits state parties to ensure that instances of exploitation, violence, and abuse against persons with disabilities are identified, investigated, and where appropriate, prosecuted.

In Canada and around the world, this decision is regarded as a major victory for women and all people with disabilities, and provides opportunities for appeals across jurisdictions around the globe.

[The Chair, Conservative, Marilyn Gladu]

Very good. Now we will hear from Jackie Stevens, who is the executive director at the Avalon Sexual Assault Centre.

[Jackie Stevens, Executive Director, Avalon Sexual Assault Centre]

Thank you. Good morning.

I am Jackie Stevens with the Avalon Sexual Assault Centre. I want to acknowledge that I am presenting to you today from unceded Mi'kmaq territory here in Halifax.

Avalon Sexual Assault Centre is a feminist, trauma-informed organization that provides services for those affected by sexualized violence. Avalon's primary emphasis is on support, education, counselling, and leadership and advocacy services for women and trans and/or non-gender-binary people.

Avalon offers trauma-specific, individual, therapeutic counselling and group program services for women and trans and/or non-gender-binary individuals, aged 16 and older, in relation to sexual assault or abuse. We provide community education, public awareness, and legal and professional training targeting the prevention of sexualized violence, intervention, and support of victims and survivors.

Avalon also operates the Avalon sexual assault nurse examiner program, which provides an immediate response to sexual assault victims of all ages and genders requiring medical care and the collection of forensic evidence.

Avalon has expertise and experience directly serving individuals who have experienced sexualized violence as well as in advocating for an equality-focused community response to sexualized violence. We've engaged in legal advocacy and education on these issues in Nova Scotia since 1983.

Avalon has expertise in substantive equality, sex-based, and gender-based discrimination and sexual assault law. The presentation is intended to provide the Standing Committee on the Status of Women with further points of analysis and consideration regarding Bill C-337.

Avalon has a substantial interest in this bill and the work of the standing committee because of its importance to the development of sexual assault jurisprudence and the impact of this jurisprudence on women's substantive equality, including the women directly served by Avalon centre.

Here are some points that I would like you to consider as you review this bill.

First, high-profile examples of systemic failure at all levels of the legal process have resulted in low rates of sexual assault reporting, and victims deciding not to participate in or to continue with the legal process after sexual assault or abuse has occurred.

Second, there is a level of distrust and lack of faith in the sexual assault criminal justice process, not only by victims but within the general public.

Third, there is a perception that the rights of the accused are more important than the rights of victims, and that justice is not possible for victims of sexualized violence under the current justice process.

Fourth, the issues brought forth to the public as a result of many high-profile cases have increased the number of individuals who are going public with their experiences before the courts and who are seeking systems and legal-based support and advocacy.

Finally, sexual assault advocates are not adequately resourced to provide ongoing court watch and court support as well as address the need for reform and change, both at an individual victim level and societally and systemically.

Criminal justice reform should continue to be based within the history of sexual assault law reform in Canada and in Parliament's intention to exclude discriminatory myths and stereotypes about women from judicial decision-making.

Past and present judicial statements, such as those of Judges McClung and Lenehan, and Justice Camp, demonstrate a disregard for women who have been targeted for sexualized violence. Their comments are rooted in misogyny, gender stereotypes, and sexual assault myths. Their decisions also demonstrate discrimination based on age, race, and the perception of what is deemed appropriate behaviour.

What is critical to note is that their decisions also demonstrate a lack of understanding of sexual assault and consent under the Criminal Code of Canada and/or blatant disregard for the laws.

Reformative processes should reflect a gendered analysis of the experiences of sexual assault victims and survivors, both when victimized and before the court. Sexual assault and abuse is committed from a position of power and control, and some victims are targeted because of gender, or racial or societal marginalization. Sexual assault laws under the Criminal Code are not gendered. However, how they are administered and interpreted is almost always based on societal perceptions of gender, race, age, disability, and so on.

Many sexual assault cases are investigated, tried, and decided on the basis of looking at the victim's pattern of behaviour and actions to determine consent or to refute that sexual assault occurred, rather than on the basis of looking at the accused's patterns of behaviour that demonstrate predatory, intentional, or criminal actions.

Reforms should apply to all levels of court, not just Canadian superior courts, and should be reflective of all forms of sexual assault or abuse under the law.

Separate from Bill C-337, I would like the committee to consider what practices are in place to ensure that existing policies, laws, and mandates pertaining to judges' training and decisions are being adhered to, and how this committee can influence or improve those current processes.

[The Chair, Conservative, Marilyn Gladu]

That's your time. Thank you so much.

We're now going to go to Ms. Damoff for seven minutes of questions.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

I want to first thank all of you for being here, and I also want to apologize to you, Bonnie, for the issues you had getting into the building. That's unacceptable, and I give you my word that we'll follow up with the building to ensure it doesn't happen to someone else who might be coming to committee.

[Bonnie Brayton]

Thank you.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

This is our second day of testimony on this bill. When we hear about decisions as in a case where it was said that a drunk is able to consent, or comments that former Justice Camp made prior to the previous government actually appointing him to the Federal Court, everyone here agrees that those kinds of comments are simply unacceptable and we need to do something to deal with it.

The question becomes, how do we deal with that? Because both of those are currently sitting judges, and we as legislators don't have the ability to require education for them. What ability we do have is to provide resources for education, so we did provide $2.7 million. Also, we had Justice Kent here at our last meeting who talked about how they will be having mandatory training for judges going forward. That's a really good first step.

We also had Ursula Hendel here, who was talking about crown prosecutors and the fact that there is absolutely no education for them. She's been a crown prosecutor for 20 years, and it was five years in before she got her first training.

I'm wondering if you could talk about the need for training for crown prosecutors, especially with some of the groups you're representing who are some of the more marginalized in our communities. Could you just talk about the need for that, and if there's any role the federal government could play in training for crown prosecutors? You can all comment on that if you wish.

[Jeremy Dias, Executive Director, Canadian Centre for Gender and Sexual Diversity]

First and foremost, I do want to thank the committee again for having us. We really appreciate being here.

In terms of crown prosecutors, I'll just speak from my own personal experience when I went to trial with my case. The crown prosecutor indicated that they didn't have enough time to even talk to me. For me that was the most heartbreaking part of the experience. I had to deal with the Ottawa Police and detectives. They collected my testimony, and then even before it went to trial it was pleaded out of court. I begged the crown prosecutor to take five minutes and meet with me, but they indicated that they were just too busy.

Then after doing some research into it, I found out that a lot of crown prosecutors are overworked and there are just not enough resources for them to do their jobs. Even before we talk about training for crown prosecutors, I think it's really important that we recognize that the system is rather burdened. They have high caseloads and high turnover, and the development of expertise is tough.

I think, as we move forward, that the federal government needs to reach out to provincial governments, and as lawyers are trained provincially in the schools of education, they definitely look at this being a mandatory part of training. A number of our staff and volunteers, who have just finished their law degrees or are lawyers with our team, have never even talked about LGBTQ issues, let alone disability, race, or intersectionality.

The notion that you can go from kindergarten to the end of a law degree without talking about these really critical issues is shocking. Also, while I understand that this now becomes a provincial and territorial issue, I do think that leadership from folks at your table has the power to reach out to ministers of education about this problem you are seeing at the federal level and...how they might address it even before it becomes a problem moving forward. There's a long-term thing to address there, but also a short-term thing.

I also do recognize that the training—and I'll be very brief, because I know those folks want to speak—

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

I don't have much time. Can you wrap up so other people can comment?

[Jeremy Dias]

Really quickly, the last thing I want to mention is that while we appreciate that there is some new funding going out to folks to provide training for judges, I do think some of that money should be going to community organizations, so that they are providing the training and the training is done in collaboration, as opposed to—

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Sorry. Do you mean that you should be training the judges?

[Jeremy Dias]

Yes, rather than the funding going to judges to train themselves and figure out whom they need to train, I think the funding should go to community organizations so that we are the ones leading the training and I think the training needs to be mandatory through community organizations. If you want training on LGBTQ issues, you come to the Canadian centre—you know what I mean—a designated....

What the government does this with Xerox, right? If you guys want to pay for a photocopy that is done with—

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

I'm going to have to cut you off, because I only have a couple of minutes left.

[Jeremy Dias]

I'm done.

[Mandi Gray]

I just want to say quickly that my experience was a complete anomaly. The crown had an excellent analysis of sex assault law, the judge was an expert in sexual assault, yet I was absolutely brutalized through cross-examination. The crown is terrified of objecting to problematic lines of questioning, because it's so normalized in the courtroom.

The case has now gone to appeal because the judge was too educated on sexual assault, and it looks as though the conviction will be overturned. I think it's largely about changing the norms of what is acceptable in the courtroom, because it has become so normalized that even those actors who have this expertise and education are viewed as biased or are afraid of objecting to particular lines of questioning because they're worried about its being appealed to a higher court.

Even with the education, I think it's more a question of changing the landscape of a sex assault trial as it currently stands.