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Submission to the House of Commons’ Standing Committee on Justice and Human Rights:
Study of Bill C-5, An Act to amend the Judges Act and the Criminal Code

March 27, 2020

 

Submitted by: Ms. Heidi Illingworth, Ombudsman

Office of the Federal Ombudsman for Victims of Crime


The Office of the Federal Ombudsman for Victims of Crime

The Office of the Federal Ombudsman for Victims of Crime (OFOVC) is an independent resource for victims of crime in Canada. It was created in 2007 to ensure the federal government meets its responsibilities to victims of crime.

Our mandate relates exclusively to matters of federal jurisdiction. It enables us to:

  • address victims’ complaints about compliance with Corrections and Conditional Release Act provisions that apply to crimes committed under federal jurisdiction,
  • promote awareness of crime victims’ needs and concerns and the applicable laws that benefit them,
  • promote the principles in the Canadian Statement of Basic Principles of Justice for Victims of Crime with respect to matters of federal jurisdiction among criminal justice personnel and policy makers,
  • identify and review emerging and systemic issues—including those related to programs and services provided or administered by the Department of Justice Canada or the Department of Public Safety and Emergency Preparedness Canada—that negatively affect victims of crime, and
  • facilitate victims’ access to federal programs and services by providing information and referrals.

CONTEXT

Sexual violence is a widespread problem in Canada. It is also one of the most under-reported crimes.

The General Social Survey (GSS) on Victimization gathers data on social trends to monitor changes in Canadians’ living conditions and well-being over time and provide information on social policy issues. It asks Canadians aged 15 and over to self-report on victimization. In 2014, sexual assault—despite being the most serious of the offences measured1—was the offence least likely to be reported to the police, with only one assault in 20 reported. The rate of sexual assault self-reported by Indigenous women (113 per 1,000) was more than triple that of non-Indigenous women (35 per 1,000).2 Research also shows that fewer than one percent of the sexual assaults that occur each year in Canada result in any form of legal sanction for perpetrators.3

There are many reasons why victims do not report sexual assault. These include shame, self-blame, feeling there would be insufficient evidence, fear that others will find out, fear of retaliation by the perpetrator, and not wanting to bring dishonour to one’s family. But lack of faith in, or fear of, the criminal justice system itself is another reason that emerges consistently.4 Victims do not feel they can trust the system to treat them with dignity, fairness and respect. Dr. Elaine Craig, a Dalhousie University law professor specializing in law and sexuality, has called this a stunning indictment of our legal response to sexual harm.

Sexual violence is a gendered crime that disproportionately affects women of colour, impoverished women, Indigenous women and girls, and disabled women in Canada. As Justice Cory stated eloquently in R v Osolin: ‘’It cannot be forgotten that a sexual assault is very different from other assaults…Sexual assault is in the vast majority of cases gender based. It is an assault upon human dignity and constitutes a denial of any concept of equality for women.”5.

As Canadians, we have seen the headlines and heard the stories: victims being interrogated about their past sexual histories, having their character and behaviour called into question, or worse: being asked why they did not do more to stop the assault. Often, victims recount feeling blamed and humiliated as well as being dismissed and “whacked”6 (having their vulnerabilities exploited by a defence lawyer to secure a favourable outcome). These issues are on survivors’ minds when they are considering whether to come forward or not.

Our office often hears from survivors of sexualized violence who tell us that going through the criminal justice system added to their distress, suffering and pain. Some even call it a second rape. Dr. Judith Lewis-Herman, an American psychiatrist and researcher who studies traumatic stress, has noted:

“The legal system is designed to protect men from the superior power of the state but not to protect women or children from the superior power of men. It therefore provides strong guarantees for the rights of the accused but essentially no guarantees for the rights of the victim. If one set out by design to devise a system for provoking intrusive post-traumatic symptoms, one could not do better than a court of law.”7.

While there have been a number of progressive law reforms aimed at improving the treatment of sexual assault complainants, these have not increased reporting or diminished survivors’ fear of the criminal justice process.8. These reforms have also failed to eradicate lawyers and judges’ reliance on discriminatory stereotypes.9. Stereotypes, myths and biases, such as “women who have previous sexual experience are more likely to have consented and are less credible,” or “women must resist and fight back” are still pervasive in Canadian society. So why would they not be among the judiciary?

It is safe to say that the criminal justice system remains intimidating and hostile to most survivors of sexual violence. Healing may never be a possible outcome for survivors in sexual assault trials; however, we can still take steps to reduce and eliminate the re-victimization that so many who come forward feel. Bill C-5 is a step in the right direction.

 

POSITION

There is a clear benefit to ensuring that judges are well informed, not only about the law as it pertains to sexual assault, but about the social context in which it occurs and the physical, psychological and emotional impacts of sexualized violence on survivors. The nature of this violence significantly affects victims’ decision-making, behaviour, ability to recall details and more. New and sitting judges will benefit from enhanced continuing education and training to help them recognize the stereotypes about sexual violence that they may hold. These biases create barriers for all survivors seeking justice through the legal system, and discourage victims from coming forward. Continuing education on sexual assault law and the social context in which sexual assault occurs will help ensure that judges understand the complex nature of sexual assault when they preside over such cases, and that victims are treated with greater fairness and dignity.

For that reason, I give Bill C-5 my full support. I am heartened to see the support for this Bill from all parties, and the growing recognition that from a victim’s perspective, the system urgently needs to be fixed.

 

RECOMMENDATIONS

While I support the Bill, I see opportunities to strengthen it to ensure it better reflects complex realities that are unique to the issue of sexual assault. Below, for the Committee’s consideration, are my recommendations for amending the Bill.

Scope

The scope of Bill C-5 is limited, and requires only newly appointed provincial and territorial superior court judges to participate in continuing education in sexual assault law and social context. Yet we understand that most sexual assault cases are heard by provincial court judges—as many as 95% of cases, according to testimony at this committee by National Judicial Institute (NJI) officials.

The Bill does not explicitly mandate continuing education for sitting judges appointed by the federal government. It instead requires the Canadian Judicial Council (CJC), the federal body that oversees judges, to report on the participation of all sitting judges in sexual assault law education.

An additional scope issue is that the language of the bill refers to “matters related to sexual assault law and social context.’’ This language could be interpreted in a quite restrictive manner, thus excluding important relevant concepts, such as the neurobiology of trauma and how it affects the whole individual.

  1. Judicial education should be a requirement for ALL judges in Canada—not only for newly appointed judges—as a matter of continuing professional development, competence and public confidence in the criminal justice system. While judicial independence is a core constitutional principle, many professionals are required to complete annual continuing education. The responsibility for further education should not rest with individual judges, especially given the fact that federally appointed judges may have no criminal law background. Recognizing Recommendation 10.1.i10 from the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, new federally appointed judges shall receive mandatory education and sitting judges shall receive continuing education on gender-based violence, sexual assault law and social context in order to maintain public confidence in the administration of justice in Canada.
  2. The CJC and NJI shall make the gender-based violence, sexual assault and social context education they develop as part of this Bill available to provincial and territorial justices. This will allow provincial and territorial judges who hear the vast majority of sexual assault cases to access more education than may currently be available due to a possible lack of resources from their governments.

Training content and development

A litigator from Toronto has been quoted as saying that judges struggle with sexual assault cases and that sexual assault training would make the court system more efficient.11. I recommend:

  1.  CJC and NJI be required to develop judicial education that recognizes and includes the following principles:
    1. The holistic nature of trauma  - The judiciary should have a clear understanding of the holistic nature of trauma and how it affects an individual’s physical, emotional, cognitive and spiritual realms.12. Trauma leads to changes in the body, mind and spirit. For example, following trauma, brain chemistry is altered and the brain begins to function differently. This is a protective mechanism inside all of us. Understanding the holistic nature of trauma, including its neurobiological implications, helps break down common misconceptions and victim-blaming about gender-based violence. A judge must understand this before reasonably considering a victim’s behaviour in the context of a case.
    2. The intersectionality of sexual assault with other issues, such as domestic violence - Many victims of sexual assault experience the assault in the context of family violence. Training the judiciary in how these issues intersect will improve their understanding of the context and impacts of the crime. It may also prevent situations where an offender is released without consideration for how it may compromise of the victim’s safety.
    3. New forms of sexual violence, like cyber violence - Cyber sexual violence is an emerging issue that needs to be considered and included in the training content.13
    4. Knowledge gleaned from specialized experts, frontline workers and survivors - Partnering with clinical psychologists and researchers who have expertise in the neurobiology of trauma to develop judicial education is necessary. Including frontline community-based anti-violence workers, rape crisis and sexual assault support staff is also necessary because they understand the victims’ perspectives and the impact of the criminal justice system on them. Survivor advocates should also be consulted when developing the training in order to incorporate lived experience.
    5. Cultural competence and relevance  - Given Recommendation 10.1.i14 of the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, to be effective, social context education should foster sensitization to the unique needs of vulnerable and marginalized populations and recognize the need to establish cultural safety, especially for Indigenous peoples. Some groups face disproportionately higher rates of sexual violence and/or specific barriers in the justice system. Examples include those from northern, rural or remote communities, trafficked women and girls, LGBTQ2+ people, Indigenous women, immigrant and refugee women, and women with disabilities.

Other issues

  1. Requirement for written reasons
  2. The Bill requires judges to provide reasons in writing or on record for decisions in sexual assault matters. Currently in Canada, not all sexual assault decisions are transcribed and reported. We do not actually know what proportion of sexual assault cases result in reported decisions. Many decisions are reported orally, and may never come to light unless a Crown appeals or the media covers them. Reasons for decisions provide us with important transparency and public accountability. It is critical that researchers, legislators, advocates and members of the public can access reasons for decisions made in sexual assault cases so they can analyze patterns, gaps or barriers in the system. It strengthens the open court principle in Canada. Given the known difficulties with the criminal justice system response to sexualized violence, we must make judicial reasoning in such cases as accessible as possible.15

    Ensuring that new legislation does not cause further delays in the criminal justice system is important. However, there are clear benefits to requiring written or reported decisions for survivors. Victims want to be aware and informed, and having a written decision pertaining to their case can support this. Even when victims are present to hear oral decisions, they may be overwhelmed or triggered by the presence of the offender and may not be able to retain information effectively. A judge’s reasons for decision shall always be provided to victims/survivors at no cost to them in plain language (as legal terminology and jargon are often incomprehensible to non-practitioners) and translated into the victim’s/survivor’s first language, if necessary, also at no cost.

  3. The need to train judges with respect to victim issues and legislation more broadly
    Sexual assault survivors have unique needs; however, our office hears from many other victims who also feel disrespected within our criminal courts. CJC and NJI develop education curricula with respect to the Canadian Victims Bill of Rights (2015), a quasi-constitutional Act of Parliament (one of several that take primacy over all other Acts, past and future) that provides victims with rights to information, protection, participation and the right to seek restitution. We must ensure that judges respect and protect all victims’ rights throughout criminal court proceedings.

There are two additional recommendations I make to the federal government given the systemic issues and barriers facing sexual assault survivors and the secondary victimization created by the criminal justice system.

  1. Sustained federal investments in community-based sexual assault and rape crisis centres to reduce the long wait times for counselling. The need for counsellors is particular dire in northern and remote communities.
  2. Implement state-funded legal representation for sexual assault complainants to prevent the harms experienced by women who participate in the criminal justice process.

CONCLUSION

Bill C-5 aims to address an important issue that affects survivors of sexualized violence by sensitizing the judiciary on the topic of sexual assault. I support this effort and the Bill broadly. It has become increasingly clear that Canadian society will no longer tolerate outdated attitudes in the criminal justice system toward sex crimes. Therefore, I would encourage the Committee to consider my recommendations to strengthen this Bill. 

It is my belief that the recommendations put forth in this submission will help us to advance and enhance victims’ rights in Canada, increase compassion for survivors of sexual assault, and better recognize victims’ needs and concerns while respecting judicial independence and the right to a fair trial by the accused.  


LIST OF RECOMMENDATIONS

Amend the scope of Bill C-5 to:

  1. Recognize the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, Recommendation 10.1.i: New federally appointed judges receive mandatory education and sitting judges receive continuing education on gender-based violence, sexual assault law and social context in order to maintain public confidence in the administration of justice in Canada.
  2. Ensure the CJC and NJI make the gender-based violence, sexual assault and social context education developed as part of this Bill available to provincial and territorial justices.
  3. Have the CJC and NJI develop judicial education that recognizes:
    1. The holistic nature of trauma,
    2. The intersectionality of sexual assault with other issues, such as domestic violence
    3. New forms of sexual violence, like cyber violence
    4. Knowledge gleaned from specialized experts, frontline workers and survivors
    5. Cultural competence and relevance
  4. Provide a judge’s reasons for decisions to victims/survivors in plain language (as legal terminology and jargon are often incomprehensible to non-practitioners) at no cost. If necessary, translate the reasons into the victim’s/survivor’s first language, also at no cost.
  5. Have CJC and NJI develop education curricula with respect to the Canadian Victims Bill of Rights (2015), a quasi-constitutional Act of Parliament (one of a few Acts that take primacy over all other Acts, past and future) that provides victims with rights to information, protection, participation and the right to seek restitution.

Other recommendations:

  1. Sustained federal investments in community-based sexual assault and rape crisis centres to reduce the long wait times for counselling. The need for counsellors is particular dire in northern and remote communities.
  2. Implement state-funded legal representation for sexual assault complainants to prevent the harms experienced by women who participate in the criminal justice process.

 

OFFICE OF THE FEDERAL OMBUDSMAN FOR VICTIMS OF CRIME

The Office of the Federal Ombudsman for Victims of Crime helps victims to address their needs, promotes their interests and makes recommendations to the federal government on issues that affect victims. For more information, visit:
www.victimsfirst.gc.ca

 

 

1 Statistics Canada: https://www150.statcan.gc.ca/n1/pub/85-002-x/2015001/article/14241-eng.htm The GSS on Victimization measures eight offence types: assault, sexual assault, robbery, theft of personal property, breaking and entering, motor vehicle theft, theft of household property and vandalism.

3 Holly Johnson, ‘’Limits of a Criminal Justice Response: Trends in Police and Court Processing of Sexual Assault,’’ in Sexual Assault in Canada: Law, Legal Practice and Women’s Activism, edited by Elizabeth Sheehy (Ottawa: University of Ottawa Press, 2012), 613, at 631.

4 See, example: Lindsay, M. 2014. A Survey of Survivors of Sexual Violence in Three Canadian Cities. Ottawa: Research and Statistics Division, Department of Justice Canada. http://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rr13_19/rr13_19.pdf. The study, which involved 114 interviews with female survivors of sexual violence in three Canadian provinces, 86 of whom who had experienced adult sexual assault, found that lack of confidence in the criminal justice system was one of the most common reasons (provided by 34 percent) for not reporting a sexual assault.

5 Craig, Elaine. (2018). Putting Trials on Trial – Sexual Assault and the Failure of the Legal Profession. Kingston, ON: McGill-Queen’s University Press.

6 Whacking refers to tactics that seek to exploit the stereotypes and vulnerabilities inherent in sexual assault cases to secure a favourable outcome. In R. v. Mills, [1999] 3 S.C.R. 668. L.C., the Supreme Court of Canada specifically held that an accused is not "permitted to 'whack the complainant' through the use of stereotypes regarding victims of sexual assault."

7 Herman, Judith Lewis (1992). Trauma and Recovery. New York: BasicBooks.

8 Ibid.

9 Ibid.

10 Final Report of the Inquiry into Missing and Murdered Indigenous Women and Girls, Recommendation 10.1.i.: All courtroom officers, staff, judiciary, and employees in the judicial system must take cultural competency training that is designed and led in partnership with local Indigenous communities.

12 Ferrara, Nadia (2018). In Pursuit of Impact: Trauma and Resilience-Informed Policy Development. Washington: Lexington Books.

13 Standing Committee on Status of Women (FEWO) study report on Violence Against Young Women and Girls: Witnesses suggested that law enforcement officers and members of the judiciary should receive digital literacy training so they are aware of the complexities of this type of crime.

14 Final Report of the Inquiry into Missing and Murdered Indigenous Women and Girls, Recommendation 10.1.i.: All courtroom officers, staff, judiciary, and employees in the judicial system must take cultural competency training that is designed and led in partnership with local Indigenous communities.

15 Craig, Elaine (2018). Putting Trials on Trial – Sexual Assault and the Failure of the Legal Profession. Kingston: McGill-Queen’s University Press.