Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 3 - Evidence for October 26, 2011
OTTAWA, Wednesday, October 26, 2011
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:17 p.m. to examine and report on the provisions and operation of the Act to amend the Criminal Code (production of records in sexual offence proceedings), S.C. 1997, c. 30.
Senator John D. Wallace (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome to Senate colleagues and invited guests, whom I will introduce to each of you in just a moment. I am John Wallace, a senator from the province of New Brunswick, and I am Chair of the Standing Senate Committee on Legal and Constitutional Affairs.
Colleagues, as you know, we are here today for our second meeting of this parliamentary session to examine and report on the provisions and operation of the Act to amend the Criminal Code in respect of the production of records in sexual offence proceedings.
In 1997, in response to the Supreme Court of Canada decision in R. v. O'Connor, Parliament enacted Bill C-46, an Act to the Criminal Code in respect of the production of records in sexual offence proceedings, and thereby created the present legislative framework that is set out in sections 278.1 to 278.91 of the Criminal Code.
Bill C-46 was intended to strengthen the protection of the privacy and equality rights of complainants in cases involving sexual offences by restricting the production of private records to the accused that are held by third parties. The bill incorporated a list into the Criminal Code of reasons deemed to be insufficient for granting access to personal or therapeutic records, along with the factors that a judge must consider in determining whether the records should be produced, including the right to privacy and equality of the complainant and the accused's right to make a full answer and defence.
The preamble to the bill stressed Parliament's concerns about sexual violence against women and children and the need to encourage victims to report sexual offences. It stated that the fear that personal information would be made public had a deterrent effect on victims who might otherwise have reported sexual assaults to the authorities and sought necessary treatment.
This committee received an order of reference from the Senate on October 4, 2011, to examine the provisions and operations of the act. In the last parliamentary session this committee held two meetings on this issue in February 2011, hearing from the Department of Justice, the Public Prosecution Service of Canada, Statistics Canada and Professor Karen Busby from the University of Manitoba Faculty of Law. Last week, this committee heard from Jennifer Stoddart, the Privacy Commissioner of Canada.
To continue our study today, colleagues, I am pleased to welcome before this committee, going from my left to right, from the Canadian Association of Sexual Assault Centres, Lee Lakeman, Regional Representative for British Columbia and Yukon; to her left, from the Ottawa Rape Crisis Centre, Ms. Sandy Onyalo, Executive Director; from the Ottawa Coalition to End Violence Against Women, Ms. Stefanie Lomatski, Executive Director; and last, but by no means least, from Ottawa Victims Services — and we are pleased to have him back with us again — Mr. Steve Sullivan, Executive Director.
I understand that each of you have an opening statement that you will present to the committee. Perhaps, Ms. Lakeman, I will start with you.
Lee Lakeman, Regional Representative, Canadian Association of Sexual Assault Centres: Thank you for the invitation to CASAC. We have little time, so I would like to make a series of 10 points as quickly as I can.
First, CASAC became involved in this issue during the Osolin case which you heard about in Karen Busby's report, but I was personally involved in the O'Connor case, as women tried to hold Bishop Hubert O'Connor responsible for sexual assaults that he committed. In B.C., it was an important issue that Bishop O'Connor used the fact that he was principal of the residential school and used the fact that he was totally in control of women's records to stall his own accountability on sexual assault charges. Eventually, those women succeeded and, through the process of going all the way to the Supreme Court of Canada and, in fact, getting a new law, they were able to hold Bishop O'Connor somewhat responsible.
I was personally involved when the rape crisis centres were threatened to such an extent that the women in the Windsor Rape Crisis Centre felt it necessary to shred their records publicly in order to refuse access to those records, in protection of personal relationship they had with the women who called on them for protection. This is a live, emotional and important issue to me personally but to rape crisis centres across the country.
Our interest is primarily in the fact that sexual assault cannot be separated from women's equality rights and that when undertaking the question of privacy, it is important to remember that it is companioned by equality as an important issue in women's security. It is not only that women were threatened with the revelation of personal records but also that they were threatened at many levels. It is not the prospect of losing a court case that was the greatest threat to women but the prospect of losing personal dignity in public as well.
It is important to remember that in the days we were talking about, and still to a great extent, there is no past that a woman can have that makes her publicly acceptable. There is no sexual past that she can have that will make her acceptable when sex enters the courtroom. We say that the bringing in of those records brings sexism into the courts and renders the court case unfair and unjust.
I want, as my second point, to ensure that we endorse the information you have received in Karen Busby's report. I believe she consulted widely and I find that report completely supportable.
When you heard from the Privacy Commissioner, you also heard a recommendation for the importance of sexual assault centres and other support centres that women have been able to create for themselves. I think that is an important question as you are considering this legislation 11 years later.
We were in the position in those days of being part of a national consultation on a regular basis with the Department of Justice. Both reports before you refer to those consultations. They no longer happen. Women are no longer in the position of gathering annually to be able to present justice matters to Parliament and to present them from the point of view of equality-seeking women. That was my third point.
Our original position, I would like to remind you, was that there was no necessity of producing women's private information at all. We were not looking for a screening process that screened out most of our records. It was our political position that there was no need for any for any record at any time, that this was simply repeatedly a way of discrediting women and of threatening women with public exposure that would back them off from court cases. I can tell you that it continues to operate that way.
If you went back over the work of the Supreme Court, you would see that sexist myths are outlined. The Supreme Court was clear that sexist myths enter the court through the process and that unless we deal with that mythology and get it out of the court case, we have unfair cases.
Our research confirms, over the years and in between, that there has been nothing to support the need to have access to these records. There is no case being brought forward in which the information that was revealed made the difference. There is no record to indicate that there is any need to have access to women's private records.
I want to say that the law has improved things. It has improved things in two or three different ways. Most visible to us in many of the rape crisis centres is that it backed off the defence bar. You need only know that there used to be an expression called "whacking the complainant," in which the defence bar taught each other how to humiliate women publicly in preliminary hearings and in court cases and to ensure that that was covered in the press. We now have a situation where that does sometimes happen; certainly we cannot tell women that they are safe. However, we have a shift in public attitude so that it is now at least considered shameful by most people. That has reduced the number of times when women are threatened. It only takes the threat to back women off.
I think you can see that women are continuing to come forward to try to report cases of sexual assault, particularly against men of power. It is noticeable that more men in positions of power are being challenged by the women they assaulted.
There are inadequacies in the law. Too much gets through. Records in the hands of the accused have already been raised as an issue. What we see is that not all records get through but not all records are prevented, either. In most of the cases where they are sought, something gets through. That is a problem for us.
Significantly, rape crisis centres are dealing with the problem of having to defend our records. Some centres have gone to the lengths of no longer keeping records, which I think is an appalling loss for Canada. We need to keep the records; we need to know what is going on; we need to expose what is going on. That is part of our job. However, it is very difficult because there is no legal aid afforded us. Most of our centres, unlike American centres, for instance, do not have a lawyer on staff. When we are challenged to produce our records, we do have the right to hire a lawyer and try to protect our records and our relationship to that woman, but we do not have the resources to do it. Neither do the women, who have a right to protect their records and fight the revelation of their records. They do not have access to a lawyer, neither the names of lawyers, nor the trained lawyers, nor the money to hire those trained lawyers.
I would point out as my ninth point that the research that is available is highly inadequate. Feminist groups, who are the ones that did the work and generated this law, are no longer in a position to get government funding to do the research that we all need. That is an appalling problem. You definitely need to address some of your attention to what is happening at the Status of Women. There are also research grants that could go from the Senate, of course. We are absolutely lacking feminist legal research; women's equality-seeking intentional research.
I would point out to you that rape crisis centres and their associations are also dealing with a lack of funding at every level in every province and their associations also are dealing with a lack of funding. We cannot collectively, either, do that research, or do the lobbying that is necessary, or in any way make the issue clear to you. I am grateful for this opportunity, but I think it is inadequate.
There is a lot to do, a lot we need to find out and a lot that we can lose if government does not start shifting its attention again to the equality rights of women.
The Chair: Ms. Onyalo, please proceed.
Sandy Onyalo, Executive Director, Ottawa Rape Crisis Centre: Thank you for the opportunity to speak to you today about Bill C-46. The Ottawa Rape Crisis Centre has been providing services to the community in Ottawa for over 37 years. We provide public education services as well as counselling through our 24-hour crisis line and our face-to-face and group counselling program.
I am here today to represent the interests of women, victims and survivors of sexual assault and the counsellors who facilitate their healing process. Any Senate review of this section of the Criminal Code should continue to ensure that the privacy and equality rights of sexual assault survivors are protected.
Each service provider, rape or sexual assault centre across the country is an independent, autonomous organization. For this reason, there is no uniformity in counsellor therapist records. Many organizations give their clients a variety of options regarding the information that is recorded in their notes. Some survivors do not use their real names throughout the process; many only want the date of the counselling session recorded. The choice to record as little information as possible many times is based precisely on the fact that disclosure of their records could be used to discredit them. The purpose of counsellor records and survivor journals and diaries is to benefit the client and/or provide guidance to the counsellor. These records reflect the client's healing journey and do not represent a factual account of the offence.
As senators, it is important that you look at the disproportional effect of the production and disclosure of records on marginalized communities: for example, a refugee woman who may be concerned about her immigrant status; an Aboriginal woman who may face racism and discrimination on a daily basis; a woman who may have been diagnosed with a mental illness. This proposed legislation disproportionately affects marginalized women in our communities.
On behalf of victims and survivors of sexual violence, it is important that the debate on the production of sex assault records be put to rest. Sexual assault and sexual violence have reached epidemic proportions in our country. Two out of every three Canadian women has experienced some form of sexual assault in her lifetime since the age of 16. Less than 10 per cent of all sexual assault victims report the crime to the police. Most of these women make a conscious decision not to interact with the criminal justice system simply because they do not want to be re-traumatized by the system.
Despite over 30 years of sexual violence reforms in this country, accessing the criminal justice system is still not a viable option for the majority of sexual violence survivors. This should be of greater concern for all of us. Thank you.
The Chair: Ms. Lomatski, please proceed.
Stefanie Lomatski, Executive Director, Ottawa Coalition to End Violence Against Women: I thank the committee for allowing us to speak today. I will present a joint statement from both the Ottawa Coalition to End Violence Against Women and the Sexual Assault Network. I will like to start my presentation by providing a brief background on both the Ottawa Coalition to End Violence Against Women and the Sexual Assault Network. I will then move on to discuss our joint opinion on Bill C-46 and then to discuss briefly our proposed recommendations to enhance women's access to justice.
The Sexual Assault Network is composed of individuals and organizations in Ottawa that are committed to ending sexual violence against women. The network coordinates and sustains a broader advocacy and political action role with local organizations and individual community members to improve the response and access to services for women who have experienced sexual violence.
The Ottawa Coalition to End Violence Against Women is an Ottawa-based initiative that has existed for over 20 years. It is comprised of organizations and individuals dedicated to ending violence against women through leadership, education, advocacy and political action to promote a coordinated response to women and children who have experienced abuse. Our membership is diverse and includes shelter workers, sexual violence advocates, counsellors, police, the Crown, the Victim Witness Assistance Program, victim services, law practitioners and researchers.
It is our understanding that Bill C-46 allows opportunity for trial judges to balance women's rights and the rights of the accused. After reviewing the transcripts of past meetings of this committee, we understand that the committee has received multiple submissions by those who are experts in statistical analysis, privacy rights and the law. It is therefore our intention to provide a gender-based, structural analysis of the peripheral mechanisms that, from our membership's experience, impact the application of the bill.
A primary concern of our membership has been trial judge training. In our opinion, comprehensive training of sexual violence and systemic inequalities are vital to informed decision-making. A consistent struggle is with transparency and the ability for coalitions, such as ours, to understand the law and be privy to the mechanisms within the court. We have experienced a lack of transparency and, at times, a refusal for training. The reason provided is that further training could bias the judge. However, we know that comprehensive understanding of the complexities and impacts of sexual violence is essential to understanding the systemic re-victimization that occurs throughout the whole reporting process and the nature of inequity that is inherent within sexual assault.
Another message we would like to bring to the committee today is that third party disclosures have come to effect note-taking practices of crisis workers and counsellors within Ottawa. There is a heightened understanding that notes potentially can be subpoenaed. Due to this, counsellors are forced to balance the privacy rights of women and the emotional security of the counselling relationship. The result has been that counsellors keep minimal notes that are sufficient for clinical care but that do not divulge excessive details due to the risk that they have the potential to be requested by the courts.
Beyond comprehensive judicial training and collaboration with professionals, we would like also to recommend to the committee further exploration to have women advocates within the courthouse. While the specifics would need to be better determined, the advocates could serve in multiple capacities, such as working in conjunction with judges to provide a feminist legal perspective on such matters as we speak to today and to be in-house options for independent legal representation for women. The reality is that women find it completely overwhelming to seek independent counsel and navigating the legal system is complex and revictimizing.
Having read past transcripts and additional concerns of the committee, we have heard that one of the goals has been to establish whether this is encouraging reporting. The reality is that reporting has not increased. In our committees, we hear that women do not report for some of the following reasons: not wanting to testify or disclose details of the assault; fear of facing the accused; cultural reasons; not being believed; being re-victimized by the criminal justice system; and retaliation. Thus, we believe that the reasons for not reporting go far beyond the scope of this bill and require larger systemic changes.
We would also like to bring to the committee the information that both of our memberships have a wealth of knowledge and expertise. However, many members felt that they were unprepared, given less than one week's notice to speak in depth with regard to this issue. Thus, it is our additional recommendation that the committee seek further submissions from violence against women legal professionals and researchers, front-line workers, advocates and survivors.
We thank you again for allowing us to speak, and our hope is that our recommendations have been heard and that perhaps they can be used to enhance the justice system and change silent victims into strong survivors.
The Chair: Finally, we will hear from the Ottawa Victims Services, Mr. Steve Sullivan.
Steve Sullivan, Executive Director, Ottawa Victims Services: Thank you, Mr. Chair, for inviting us to the committee today, and thank you, honourable senators. I thought I would give you a brief overview of Ottawa Victims Services and how we deal with sexual assault victims. My role has changed since the last time I was here, so I will tell you a bit about my new role.
Ottawa Victims Services is an Ottawa-based agency. We receive funding from the Province of Ontario to deliver three programs in the Ottawa area.
The first program, which I think is unique in Canada, is the Victim Quick Response Program. It is an emergency financial assistance program for victims of the most serious offences, including sexual assault. If we had a referral, for example, for a sexual assault victim, we could provide emergency counselling resources for up to 10 sessions, within a matter of days; if there was damage to property, if a lock was broken, for example, as part of the attack, we could repair those. These are emergency financial expenses that the victim may encounter. With respect to sexual assault, unlike some of the other categories, we do not require a police report. As you have heard from my colleagues, often few victims actually report to police.
Our other program is called VCARS, Victim Crisis and Referral Services. We have about 80 trained volunteers on call 24 hours a day, 7 days a week, who may be called to the scene of a crime or referred by one of our partner agencies. For a woman, for example, in this case, who may have to go back to the hospital for some medical care, our volunteers will accompany her. If she has to go to a police station to give a statement, our volunteers will support her in that process.
Our third program is Supportlink, and that is a safety planning program. If a victim of sexual assault, domestic violence or criminal harassment requires some safety planning, our staff will sit down and go through a personalized plan. Our clientele is mainly women who have experienced violence, and second to domestic violence are those who experience sexual violence.
I will not say too much, because I think my colleagues have summed up a lot of the issues that the committee is grappling with and you have heard from other witnesses.
I will echo what has been said about statistics. We know that most women will not report. I know one of the issues the committee is looking at is whether or not this bill has actually had an impact. I think, as Ms. Lomatski said, it is difficult to separate this issue from all the other challenges that stand in the way of women actually reporting violence. We have heard about the fear of the criminal justice system, which might include disclosure of their personal records but can go far beyond that, to disclosure for past sexual history.
In the reporting process itself, sexual assault complainants are less likely to be founded by police. Even getting through that stage of the process is much more difficult for sexual assault cases than for other violent crimes. They are less likely to be cleared by charges and there are fewer convictions. There are a number of challenges that victims of sexual assault face above and beyond their records. That is important, and it makes it difficult if you are looking at this bill in isolation from all those other challenges that women face.
As part of that, one of the things the committee may want to keep in mind as you go through this process is the need to encourage women to report. I think we all recognize the public value in that. We would like to identify offenders and hold them accountable. However, I am not sure that our system, the way it currently operates, is a system we want to encourage women to go through. We certainly do not want to discourage those who have chosen that route, but given the challenges women will face and, as we have heard, the discrimination and the threats of their personal records and past sexual history, I am not sure this is a process we really want to encourage women to expose themselves to. It is a very difficult process, as you have heard, for any victim, but in particular women from immigrant backgrounds and women who have disabilities. All these groups that are of higher risk makes it even more of a challenge.
I would like to echo some of the recommendations you have heard from other witnesses. Commissioner Stoddart talked about the need for independent counsel. Other witnesses have talked about that as well. We know from the previous evidence that in cases where there is independent counsel, often defence will actually abandon the application, or it is even less likely that they will get the records if it does proceed.
I think it should be an absolute right to have independent counsel. I believe Manitoba and British Columbia actually have reference to this in their victims' bills of rights, and I know other provinces make that available.
It can be difficult, though, if one has to go to legal aid. Often you are just finding out you need to do this, and you are trying to get a legal aid certificate. Legal aid is more and more burdened, and as we see more and more legislation coming from this place and the other place with respect to justice, we will see legal aid budgets strained even more. I do not think we can just expect for women to go to legal aid, get a certificate, and everything is taken care of. Let me be explicit about that.
I would also like to see better protections in the case of waivers. The legislation refers to the ability of a complainant to waive her rights. I know there are some good Crown counsel who operate across the country, who I am sure are good at explaining what that means. However, as we know, the Crown does not represent the victim. I would like to see more protections and waivers built into the legislation to ensure that women understand what it is they are waiving and what their rights are, before a court simply accepts that.
Ms. Lakeman mentioned the notion of records that are held by the accused. Those records are free to be used however that person sees fit, and I think those records deserve protection as well.
I would echo my colleagues about the importance of community services, since most women are not going to go to the police, to the courts or to the Crown; they will go to their local communities and hospitals, which will refer to the sexual assault centres. If those places are not properly funded, these women will be left even more isolated and marginalized. It is important that the committee recognize that if we really want to help the majority of sexual assault victims, we need to make sure that the help is where they will go, and it will not be the criminal justice system.
The Chair: Thank you to each of you. Those were excellent, thought-provoking presentations.
Senator Fraser: This is quite a precious opportunity for us, because you actually are front-line people; you know what this involves.
My first question is in relation to the statistics. This comes up again and again when we hear from Statistics Canada on these matters.
We know that a high proportion of people who do not report sexual assault say, at least to Statistics Canada, that they chose not to do so because — and now I am paraphrasing — they did not think it was serious enough. We also know that the law, by its very terms, has a broad definition of "sexual assault." It can include behaviour that in some contexts would be considered maybe offensive but not necessarily more than that, depending on the victim, among other things.
You people, who actually work with victims, what sense do you have of the proportion of women who are victims of — I hate to use the word "serious," because any assault is serious, but you understand what I am driving at here — the more serious cases? What percentage of those women do not report to the police? Of those women, how many would hold back from reporting because of fear about records being produced? It is a double-barrelled question, but I am trying to focus in here on what the actual impact of all this is.
Ms. Lakeman: You are right; I would consider all sexual assaults serious. I have dealt with women who were in the middle of the Pickton case in B.C., so it is inseparable from death for me. I have certainly dealt with women whose jaws were broken. I have dealt with women who were physically damaged for the rest of their lives.
Senator Fraser: These are definitely serious cases.
Ms. Lakeman: Yes.
Senator Fraser: When I say "less serious," I am thinking of someone stealing a kiss at a Christmas party, something like that, which still counts in law as sexual assault.
Ms. Lakeman: It certainly does. Depending on who you were pinned by, at which party, who he was and who you were, it could be serious. If it is not serious, women do not report it at all; they do not bother. I can assure you that it is a high percentage of serious cases that are reported at all.
Senator Fraser: That "are" or "are not?"
Ms. Lakeman: Most of the cases that are reported are deadly serious. Many deadly serious cases are not reported.
Senator Fraser: That is what I am trying to find.
Ms. Lakeman: It might be more helpful to look at it the other way around. This law is about making sure that the women who have dared to report are not punished for doing so. I keep O'Connor high in my mind. He was the highest- ranking Catholic ever charged with sexual assault, and there were at least four women and one child whom he was responsible for damaging. It took a whole community to try to hold that one man accountable. It took us a decade before he got off lightly. That is how it is in sexual assault.
Senator Fraser: Does anyone else want to comment on this?
Ms. Onyalo: It is problematic to make a distinction between "serious" and "less serious." With sexual assault offences, for example, we work with a number of youth in high schools. If a young woman is touched inappropriately by a teacher, the impact of that act may not be seen from some people's perspective as serious.
Senator Fraser: I would call it serious.
Ms. Onyalo: The impact of that act, as opposed to a gang rape, say, at an OC Transpo station, can be devastating for that young woman. The sexual assaults are related to increasing levels of mental health issues and also related to alcohol and substance abuse as a coping strategy that survivors engage in, coping from the assault.
Senator Fraser: Please understand me. I am not minimizing the impact of sexual assault of any kind. The case you just described is very frightening for the girl. A teacher is a person in power, and a teenager does not have much recourse of any kind. I am not minimizing; I am just trying to get a clearer, more differentiated, if you will, picture of what is happening so that we can give as clear as possible an assessment ultimately about what should be done about this law. I am not minimizing the importance of sexual assault. You do not need to take your time to try to persuade me that it is important. I know it is important.
Ms. Onyalo: I would go on to say — and I agree with Ms. Lakeman — that there is a high majority of women who have been assaulted who do not report their crimes. I would say it is probably less than 5 per cent at this point in time.
Senator Fraser: Can I sneak in one more question?
The Chair: Yes, one short one, but what I would like to see us do is restrict our questions on the first round. I want to ensure that everyone has a chance to get one of their questions in. We will then move to second round.
Senator Fraser: Following on from this — and I am taking as writ perhaps that Ms. Lomatski and Mr. Sullivan would have had comparable responses, differing maybe in degree but in quality roughly the same — have you any sense that, over time, since Bill C-46 was adopted, there has been much of an evolution in the way the courts, the judges in particular, handle requests for records?
Ms. Lakeman spoke, I think, about the need for training. No. That was Ms. Lomatski. Absent the need for training, which I would like to talk about on a second round, have you seen any evolution or is it staying about the same as it has always been? Clearly, there is a difference between when the law was adopted and before. Since then, have you seen much evolution?
Maybe one of you could answer and on my second round I can extract more opinions.
Ms. Lomatski: I can begin to answer. One of the comments that we had from our coalition, and from some particular members, is that they can comment on that. We do have researchers within the University of Ottawa who specifically address those types of issues and research is strictly based on violence against women, sexual assault, and how that works within legislation and in the courts. That would be better addressed by someone with that knowledge.
With regard to the training, that has been —
Senator Fraser: That will have to be my second round. I really did want to ask about that, but I will be cut off.
The Chair: We will come back to that.
Senator Fraser: Do you have the names of some of the people who you think will be able to talk about the evolution?
Ms. Lomatski: Yes, I can provide the names.
Senator Baker: I found the presentations to be very helpful here today and very insightful. Everyone has the message that the legislation does not go far enough. As Ms. Lakeman said, we came from the O'Connor case, after that, to have this from 278.1 to 278.9 in the Criminal Code, to protect the records and the privacy interests of not just the victim but also witnesses.
As Mr. Sullivan pointed out, and as the other witnesses pointed out, it does not do a thing as far as subjecting the victim to cross-examination in a preliminary inquiry; neither does it do a thing to protect them against questions being asked about what is in their diary, as Ms. Lakeman, who has appeared as a witness for the Superior Court in British Columbia and has been cross-examined in her position, I think, that she is presently in.
In going further, you are asking us to consider putting something in the Criminal Code to go further. Ms. Lakeman and Ms. Onyalo suggested that none of the records for which there is a privacy interest involved should be disclosed, none of them. I think that was the substance of what you were saying.
Is there anything else that you would like to see included as a prohibition to disclosure that goes beyond this section, anything in particular?
Ms. Lakeman: I do not have anything in particular, but I would say that these things are fluid and that what matters is that the court is adversarial and that women do not have an advocate in that situation. What matters to me is the existence and presence of women's advocacy organizations. I think that is our best defence, our best help. If a woman has a connection with an equality-seeking women's group, then she will have someone in her corner fighting to get her a lawyer, to get her the information, to make the points that need to be made.
On the one hand, it is law; on the other hand it is the relationship to the women's equality initiatives that we are still in the middle of. We do not have that equality established. At the moment, it is necessary that the equality interests have an advocate.
Senator Baker: You are saying that legal representation should be —
Ms. Lakeman: It could come in the form of legal representation, but it could also come in the form of community and government support for women's equality-seeking organizations, which in fact has been the most effective so far.
Senator Baker: Yes. Those are two separate issues, are they not?
Ms. Lakeman: Yes.
Senator Baker: That is, the legal representation and to have organizational representation as well. Do you have any idea how this could be done?
Ms. Lakeman: I have argued for years that the federal government has a responsibility to support women's equality organizations for exactly this reason, that equality is a fundamental obligation of the federal government. Of course, lower governments are not exempt from that responsibility, but the federal government could take the initiative, as in some years it has, by saying they have an equality interest in the development and maintenance of women's equality- seeking organizations.
Senator Baker: What about legal representation?
Ms. Lakeman: We could do it either way. We could either fund women's organization so that they had enough economic leeway to hire someone who could do that work, or we could create a provision that says women are entitled to their independent counsel, but that is a more expensive way of doing it.
Senator Baker: It is also imposing on the province the financial responsibility because it is the Attorney General who pays if it is legal aid. If it is the Superior Court that has inherent jurisdiction to get a lawyer paid by the Attorney General, then it is on the bill of the Attorney General.
Do you think there should be something in this provision that says the court shall ensure that not just the complainant, the victim, is represented but that the organization from which the records are being sought shall be provided with legal counsel?
Ms. Lakeman: I would like that a lot. If we had a way of protecting those records, we would be in a better position to protect her.
The Chair: I have a supplemental question on the point raised by Senator Baker. I certainly noted it when you made your direct presentation, Ms. Lakeman.
You said that, in your view, nothing supports the need to have access to these personal records of complainants. I understand why you say that. However, the purpose of the bill was to find a balance between the rights of complainants and the rights of those accused to a full defence. You have taken very much a blanket view of that. I understand where you are coming from, but from our point of view and in looking at the legislation that exists, there is a need to find that balance.
Do you foresee any circumstances where an accused would not have the ability to provide a full and complete defence if not able to have access to any of those records? Is that legitimate in any way?
Ms. Lakeman: Of course, I am a political person, not a legal person. I think you should note that there has not been such a case. There has not been a need. I think overwhelmingly, the term "balance" is kind of odd in this circumstance. Balance women's equality with what? Under what circumstances would it be acceptable to reduce women's equality rights?
Therefore, no, I do not support that. Our political position at the time was that there is no need for these records; it is a hypothetical that does not happen. Nothing has happened in the 11 years since to change my mind about that. It is a legal question.
We did consider from the very first meetings in lobbying for this law what the issues of fairness were. It is important to feminists to talk about fairness and to not have any law and order agenda that undermines everyone's equality rights, including the rights of the accused. I am not saying we should undermine the rights of the accused; I am simply saying that I do not see an interference with the rights of the accused.
The Chair: By not allowing any of those documents to be presented —
Ms. Lakeman: So far.
The Chair: — you do not believe that would in any way undermine the rights of the accused?
Ms. Lakeman: No. That is what I see.
The Chair: All right. That is very clear.
Ms. Onyalo: I agree with that statement. When you are talking about the rights of the accused versus the rights of the complainant, when we are looking at records, we do not interpret the production of records, the legislation as balancing the rights. From our perspective, our understanding is that the production of records will precisely be used to discredit the complainant. If that is the purpose of the production of records, how do her privacy and equality rights factor into that process?
The Chair: Thank you for that comment.
Senator Frum: This is an anecdotal question, but what types of records do you find are still getting through the process, regardless of this bill? What kinds of things do you see as still being allowable by most judges?
Ms. Lakeman: First, we do not have enough research to answer that intelligently, so I want to be clear about that.
I think you have access to all the cases by looking at the work of Jennifer Koshan, who was recommended to you in the Busby report, and Lise Gotell, both of whom are academics working in Alberta. They have done extensive work on these cases, so they are probably your best source.
There are two things that happen. First is what gets through, but the much bigger number is what never happened because of the call for records. In my experience, the biggest effect of the call for records is to discourage women from complaining, not because they lose the records fight, but because they are backed off by it. Women are afraid of having an abortion exposed; they are afraid of having a previous marriage exposed; they are afraid of having a charge in their young life exposed; or they are afraid of being exposed as mentally unbalanced somehow by having seen a counsellor, since women are much more likely to have seen a counsel than men are, regardless of their mental health. Women's history is considered to be questionable if they have had sex, too much sex, not enough sex, sex with the wrong people, sex with too many people or sex with not enough people. There is no sexual history we can have that is acceptable. The very thought of being exposed publicly for women is analogous to being shamed.
Senator Frum: I understand that, but at what point in the trial process would those requests for records happen?
Ms. Lakeman: Early on. As soon as you know who the defence lawyer is, you know how he operates.
Senator Frum: As the victim, you have already triggered the process. Are you aware of cases that have been triggered or that have been launched? Is the victim even in a position to pull the plug on a case once it is proceeding?
Ms. Lakeman: You can be up against the courts if you do so. That is what women are also afraid of, that once they have told police, the process will be out of their control. Therefore, they choose to go through a very intimidating process ahead of time instead.
All you have to do is remember the number of young hockey players or sports heroes who were in the position of having been accused of sexual assault and how quickly the media machine goes into play; that is the work of the defence bar.
Senator Frum: As frontline workers — and Mr. Sullivan was saying given the system that we have, it is so unpleasant for the victim — are you ever in a position where you say to victims, "Do not do it?" When someone is expressing to you their reluctance and their anxiety, is there ever a situation where you might encourage them not to go ahead?
Ms. Onyalo: We do not think it is ethical to discourage any woman that we work with from going through the criminal justice system. Instead, we relay the stories of the few women we have worked with that do go through the system. I cannot remember any case where that woman has not needed support before, throughout and after the process because it has been so traumatizing for her.
We give women options. We do not discourage them, but we relay stories of the women who come back and tell us what their experiences were, and then they can decide for themselves. Many women already know what to expect through the criminal justice system without us ever relaying the experiences of other women we have worked with. They already know what to expect, and they have already made the decision that they would prefer to come to us than have to go through the system.
Senator Frum: In your personal experience, of the women you have treated or seen, what percentage have gone ahead with trial?
Ms. Onyalo: I have been at the Ottawa Rape Crisis Centre for 11 years and I would say that maybe four women have gone through the system.
The Chair: Ms. Lomatski, would you care to comment?
Ms. Lomatski: I very much agree with Ms. Onyalo. It is also important to consider that we are speaking about criminal justice; and justice is not for every woman who has experienced sexual violence because it does not come always in the same form. We are talking about this bill, yes, but there are many systemic barriers to a woman finding complete justice in the criminal justice system.
The best articulation that I heard this week about the mistrust of the criminal justice system and its ability to effectively produce justice in the mind of the survivor was from a 17-year-old girl who said last Monday, "I would not report because they won't get anything." It was quite blunt. She was referring to the fact that at the young age of 17, in grade 12, she understood that the criminal justice system is quite re-victimizing. That is an important point to consider in this whole process.
The Chair: Mr. Sullivan, would you care to comment?
Mr. Sullivan: I would say as well that our staff would never encourage or discourage someone. You try to give them the facts and let them know what they can expect.
I do not know if the committee knows, and I have not seen evidence on this, but for how many nonsexual cases does the defence actually ask for these kinds of records? If it is for very few cases, then you have to ask the question: What is it about sexual assault complaints that defence asks for them? Ms. Lakeman touched on that. It is about discouraging going forward and about stereotypes of women who make claims of sexual assault. If you are able to make a comparison of record requests in nonsexual cases with those of sexual cases, you would find it pretty telling.
Ms. Lakeman: I point out that some things are moving. We now have international law that requires governments to interfere in the amount of violence against women that is happening. It makes government responsible for the protection of women from third parties. We have ways of complaining now to the United Nations that we never had before. Sometimes women complaining to police are fully aware that the likelihood of a conviction is very, very low; but they are doing it as an act of defiance and self-declaration, in some way, that is very important for us to get behind. This law and the protection of their records is key to our responsibility to get behind those women who choose to report.
Senator Angus: Am I right in understanding that the witnesses are all advocating that as a first step, these women need to have the right to a lawyer, and not from legal aid? They need specialized counsel who can take on the defence bar and make darn sure that the victim is properly able to access the criminal justice system that is not working so often. Is that right? Are you agreed?
Ms. Lomatski: Yes.
Ms. Lakeman: Yes.
Senator Angus: Good. We probably have the same questions in mind, so I will not belabour. We are having a good discussion.
Ms. Lakeman, as a supplement to having access to a specialized lawyer for these people, you mentioned a women's advocacy group to lead them to a lawyer and help them to prepare for all of the shortcomings. Is that correct? You are all advocating both.
Ms. Lakeman: Well, close, but not exactly.
It matters that we have a legal advocate. It could come through the legal aid system, a national women's legal service of some kind or lawyers being hired by women's organizations. I make the point that not only do we need a legal advocate but also a political advocate. We are still in a political process of establishing equality. To have independent women's movement groups is very important; and that is increasingly difficult to get.
For instance, the local collective of my organization actually pursues women who have taken on someone. We see their case in the press and we know they do not have anyone with them. We try to find those women and ensure that they are connected to a community group that can stick up for them. It is not only a matter of psychological support but also support in handling the media, information routes and access to legal information.
Ms. Onyalo: I would say that access to a specialized lawyer is an important resource. As we said before, the system is inherently systemic and problematic because it is an adversarial system. I would go so far as to say that maybe we need to think not only about specialized lawyers but also about specialized courts for sexual violence. The precedence has been set in other countries. I would go so far as to think about what that would mean for women and their increased numbers going forward with their cases.
Senator Angus: There are some interesting elements to this. I certainly do not want to dominate them. Mr. Sullivan, you are here in Ottawa with the Ottawa Victims Services, which is probably a good thing for female victims in this town. You mentioned that you receive some funding from the Ontario government. However, I am thinking of all those other women across Canada. Do they have equivalent facilities in their regions? I doubt it very much.
Mr. Sullivan: It varies. We are part of a network with our colleagues. Ottawa is fortunate to have the number of services it has, particularly for women.
Senator Angus: It sounds like it.
Mr. Sullivan: You are right in suggesting that other communities do not have it. Much of it depends on provincial funding and where you can find resources. Although not perfect in Ottawa, it is fairly well suited compared to other jurisdictions. There is disparity across the country, for sure.
Senator Angus: There are issues around representation, funding, which is big and thorny, and the training of judges. Ms. Lomatski, I believe you raised the last issue. You said, to my great shock, that you have great pushback from the bench on these initiatives for specialized training. Is that because of the system such that these same judges are hearing cases of hold-ups and murder and wonder why they should spend their time on training in sexual offences?
Ms. Lomatski: There are various questions that we do not have answers to. It has been a standing item on our justice committee for many years to be able to access what is being trained, the frequency and what it looks like so that we can establish whether it is suitable and comprehensive. We have not been able to obtain any of those answers. That is where we are. The response we get is that we would be increasing and/or jeopardizing objectivity. Therefore, we have not been able to go beyond that.
It is extremely complex to speak about and to understand sexual violence, as you can tell from this panel. That is where we are right now. We have more questions than we have answers at this point.
Senator Angus: If we ever got to the suggestion that has emerged, namely, specialized courts, I suggest that maybe you would not have the pushback then, that the judges would be the judges.
Ms. Onyalo: Following up on Ms. Lomatski's comment, one of the things we would be interested in, in terms of training of judges — and this parallels training of police officers — is looking at biases, assumptions, stereotyping and sexist attitudes that judges and police officers have about women and the stereotyping of the woman who decides to take her case to court. We are constantly looking at inappropriate comments from judges in terms of the labelling of women who take their cases to court.
What we want to get at in a training component, amongst many other things, is looking at the attitudes, stereotyping and inequality issues that are systemic. That also factors out into conviction rates, and convictions at all. Many offenders have had just sort of a slap on the wrist; you are a good boy who just made the wrong decision at that time. They do not take the issue seriously. When we are looking at training, we want to factor in the seriousness of all sexual assault cases and look at how we change attitudes about the complainant.
Senator Meredith: I have a quick supplementary on that in terms of advocacy for specialized courts. Dealing with youth violence and gun violence, there are specialized courts set up for gun violence, et cetera. Is it your opinion that we should be pushing for those types of specialized courts?
Sensitivity training is important. I have heard officers make comments about young ladies and the way they dress, that they called for it; and I have heard judges who have made insensitive statements. It is appalling that this happens.
In terms of sensitivity training, what have you done in your organizations to speak to these police chiefs in order to achieve the organizational change that needs to take place with these individuals who deal with victims who come forth, to give them that comfort level?
Ms. Onyalo: We have not yet had an impact on increasing the numbers of women who choose to go to the criminal justice system, but we have made great strides in building a partnership relationship locally with Ottawa Police Services.
Senator Meredith: Have they been receptive?
Ms. Onyalo: They have been receptive. We have tried to make it a comprehensive partnership so that it is not only based on a working relationship but also getting to know the officers and the work that they do, and they getting to know the work that we do. We are all there for the same purpose, although we have somewhat different mandates and agendas.
One of the things we are looking at right now is training for police officers, specifically anti-racism and violence against women training, looking at domestic and sexual violence. Because the Ottawa police have a lot of resources in that area and the chief is very much on board with that, we are making strides in that area.
Ms. Lomatski: We are also involved in that initiative, and I second everything that Ms. Onyalo said.
Ms. Lakeman: I do not have a whole lot of confidence in that kind of training. I have done millions of hours of it myself and given it up; forget it.
Senator Meredith: It is too long?
Ms. Lakeman: It is just that you are constantly dealing with the newest members, who are overruled and retrained by the senior members. What works is a system of reward and punishment. It is clear that it is already working, in the wrong direction. What we need are written judgments on the part of the judges that we can see. When we can see them, we can evaluate them; we can expose, reward and make clear what is going on. It is the same thing in police forces and in prosecutors' offices. We need to see people rewarded for taking an equality approach to pursuing the cases.
Our problem is that most cases disappear at the level of the cop to whom they are reported. They go fast. If they make it into court, they are lost at the first level of court; they disappear. There is no statistical record or written judgment. There is no way for us, other than anecdotally, to hold the system accountable.
[Translation]
Senator Boisvenu: I would also like to congratulate you. Working with victims of crime is not work, but a mission. I have been doing so myself for ten years after my daughter was murdered.
I think the work that you do is important because, in too many cases when sexual abusers reoffend, it often ends up in murder. A sexual abuser who reoffends does not leave witnesses behind. And the way to get rid of witnesses is to kill them. I applaud the work that you do.
Our mission, our objective, is to bring the reporting rate up. Reporting is not a sign of being a coward, but a sign of victims having control over their abusers. I encourage you to continue this approach.
One day, it might be interesting for the Senate to study why reporting does not increase even though we still put a lot of resources into it.
I could ask you hundreds of questions.
Choosing not to report has to do with fear of testifying, fear of retaliation and fear of being treated like a criminal in court. Victims have that fear, the fear of being responsible for their own rapes. We have seen it too many times. There is also the fear of the offenders getting minor sentences. This week, a sex offender got 45 days in prison to be served on weekends. Knowing that our prisons are full on weekends, he will check in on Friday evening and then go home. The woman, the victim, will see the gentleman come home. And that is how women lose all trust in our justice system. It is a vicious circle; they no longer report because they are afraid that the abuser will not be found guilty or will not be punished according to his crime.
My question for you has to do with the bill and with how to give better support to victims and their families.
The problem in Canada is this: assistance for victims comes from the provinces for the most part—Senator Baker said so — but assistance for criminals comes from the federal government. There are national standards in terms of assistance for criminals. A criminal who commits his crime in Ontario and is put in prison in Quebec is entitled to the same services, but the victim who is sexually assaulted in Montreal and lives in Toronto will receive no services. The crime has to be committed in the victim's province.
If Canada were to have a charter of rights for victims to provide for this type of bill and to include better legal support in court, as well as better assistance with their testimony, would that enable us to treat victims of sexual assault equally from one province to another?
It would be the same way we treat criminals; we treat them equally from one province to another. Would this not help you with the work that you do?
[English]
Ms. Lakeman: Thank you for your question. I am sorry for your loss.
I do not support a victims' rights approach to sexual assault because we are dealing with a gendered crime. We are dealing with the equality difference between men and women.
We are dealing overwhelmingly with women being assaulted and men committing the assaults. I do believe that the federal government has a rightful place in this discussion in the support of women because the support of women is an equality matter which is very much your jurisdiction. It is a matter at two levels. Women do not yet have full equality in Canada. Every statistic will tell you so. Therefore, women are entitled, I believe, to your support to help establish that equality. Also, sexual assault is a social force that absolutely represses women's equality, absolutely prevents women's equality. When sexual assault is the way it is in Canada, not winnable in court, we are in the situation of women being told by their government that they are somehow not entitled to the rule of law.
I do think, therefore, you have an obligation to women, first and foremost, and to sexually assaulted women, beyond that, to do what is necessary to establish women's equal access to the rule of law and to protection from sexual assault. Every international convention that Canada has signed about women now makes that clear. That is well understood internationally now. You do have an obligation to establish women's equality and to understand violence against women as a weapon against women's equality. Each woman who is assaulted is a warning signal to every other woman in the country not to step out of line, not to exercise her full equality rights, not to operate as a fully acceptable human being.
Therefore, you do have an obligation and an opportunity to intervene by supporting women.
The Chair: I would like to hear if the other panel members would like to respond to Senator Boisvenu's suggestion of a victim's charter of rights.
Ms. Onyalo: I would echo what Ms. Lakeman is saying. We said there does not seem to be a relationship between changes to this particular legislation and the number of women who take their cases to court and the number of successful convictions. I do not think a charter necessarily, for sexual assault cases, will change those statistics.
Ms. Lomatski: I also agree.
Mr. Sullivan: I would say that if we can set aside the provincial federal jurisdiction and actually have enforceable rights for victims, it might be helpful for some victims. I would agree that for sexual assault victims, just given the realities of what the courtroom is like for those victims and even those who choose to report, and the challenge in getting to the courtroom, I am not sure it would help. If 80 to 90 per cent of sexual assault victims are not turning to the system anyway, even if a victims' bill of rights worked, it would not benefit the majority of those women. I think it is a fair question, namely, why do not women report? I think we know the answer. The other question is: Why do those who do report, report at all, given what they will face?
I am not opposed to the notion of a charter or victims' bill of rights in general, but I do not think it would help victims' rights very much.
[Translation]
Senator Boisvenu: At the moment, there are no legal tools in Canada for victims of crime who want to assert their rights. The rights of victims are commitments made by governments, but they are not enshrined in any legal instrument.
A criminal who is in court and sees that his rights are violated — the right to a fair and equitable trial — will use the Canadian Charter of Rights and Freedoms to claim his rights. How can the victims assert their rights if they cannot rely on a legal foundation other than principles? What can they use to say, for example: "My rights have been denied, I invoke the right to protection"? It might also be a right to privacy or a right to be accompanied.
[English]
Ms. Lakeman: I am not being semantic. I think it is important that you realize that women have these rights. We have these rights enshrined in law, and they are withheld from us. We do not need a new right on paper. We need a new right in reality.
[Translation]
Senator Boisvenu: Every victim has a right to report. I understand. But if a woman does not report her abuser, where can she go to get legal support and say that her rights have been denied? We have no basis in our society recognizing those types of rights for victims. Would a charter of rights for victims, with our concerns, including this bill, not make reporting easier for victims?
[English]
The Chair: I know this is something you feel passionate about, senator. We did hear a response to that earlier.
Does anyone have anything different to add from what has been said?
Mr. Sullivan: My recollection is the legislation does allow for a complainant to access legal assistance. The question is: Who will pay for that? Whether we have a victims' bill of rights or not on this, the issue is how she will access that and who will pay for it.
Again, I do not want to say in a general sense that the charter is not a good idea to pursue, but I think for these cases it will not help much. The provisions are there for her to seek legal counsel on these particular questions; it is just who pays for her to do that?
The Chair: Colleagues, I will ask if you would restrict yourselves to one question. I am concerned with the time that is passing and we have senators who are due at other committees when we conclude here.
Senator Jaffer: When you speak about specialized courts, I am aware that in Alberta we have specialized courts for spousal violence. It has been very effective in the sense that there is one stop for the person, mainly the woman, to go to and all the services are there. Specialized courts are starting, but there is more work to be done.
As for the training, for many years I did training of judges. It has now been disbanded. The national judicial council, as you know, does not exist anymore the way it did. There has been a push-back of training of judges. Ms. Lomatski said basically there is very little training now. For many years there was training, but there has been a big push back from the judges.
When I was the chair of Violence Against Women in my province of B.C., one of the recommendations we made was to follow the U.S. model, the Minnesota model, where in the police car, the woman's advocate would arrive. Just as the accused would be taken to jail and provided with services and with a lawyer, the woman would immediately get a woman's advocate who would assist the woman throughout the process. For me, it is not so much to get the lawyer; it is someone who will walk the person through the different processes. Ms. Lakeman, whom I have known for many years and who has done tremendous work in this area — and I commend her for that — has stated that we lose the person who has been abused, the victim, because they do not go through the system.
A number of you have talked about women's advocates. I am interested in hearing from you a recommendation about a women's advocate. What kind of recommendation should our report make on a women's advocate?
Ms. Onyalo: Regarding a women's advocate, we actually provide that service now. Anyone who comes to our centre, whether it is on her own or she is referred to us by police services and other services, can receive an array of services. That does include accompanying her to the police station. We support her when she wants to report her case. We give her as much information as possible about the court system, what she can expect, and we support her prior to her court case, during her court case and after her court case. For us, the issue is not that the service does not exist. The difficulty is that there are not necessarily enough funding resources to provide to women who want to pursue their cases.
Ms. Lakeman: I think it is important to note that by "women's advocates" we mean the self-organized women's groups that have been created over the last 35 years. We do not need new courses out of universities to produce "advocates." In every city, these advocates exist. They have formed their own organizations, but the organizations are being starved, and it is important that they get resources.
The judicial council was important for more than just training; it was important as a monitoring factor and as a standard-maker that increased the accountability of judges.
In terms of specialized courts, I have enough experience now to say there is a ghettoizing function of specialized courts, which means that in the first year or two you get great results and thereafter you do not. I worry about those situations. I think it is another way of not transforming a system that needs to be transformed and trying to hive off. Sexual assault cases take up resources; they are a bulk. Even though most women do not report, it would be a lot cheaper if none of us reported, and we do not want to go there. We want to go towards transforming the system in the direction it should go.
Ms. Lomatski: I agree with Ms. Lakeman in that for specialized courts, I see some worth in them in that they do allow for research to be done because you know what courtroom it will be happening in, which is of assistance when you are trying to document what is being said within the courtroom.
I also agree with the commitment factor to specialized courts. When you create a specialized court, there is a level of accountability and responsibility wherein you have to be able to maintain the integrity of what that court is. If you are not willing or ready to make that commitment, then it does not become anything that is specialized. We can create a mandate for a specialized court, but if we are not going to follow through with specialized training in looking to women's advocates groups to be able to inform that training, then it is limiting.
Mr. Sullivan: I will echo some of the comments, basically that there are some amazing community programs across the country that do amazing work for women who have experienced sexual violence. I think the issue is funding and whether there are enough advocates and enough of those services across the country to support women who go through the system or do not go through the system.
Senator Jaffer: Ms. Onyalo, you were talking about when the women come to your centre, but it has been my experience that if women do not know the language or where to go, they will not show up at all. That is the challenge; we do not even get to those women. Can you talk about the most vulnerable women?
Ms. Onyalo: Yes. We currently have and have had in the past a number of programs that specifically reach out to women of coloured communities, immigrant communities and refugee communities. We understand that by the time the woman is ready to come to our centre, she knows the kind of service she wants. Many of those women from immigrant, refugee and coloured communities, particularly newcomer women and those coming from areas where there has been war, are dealing with an array of issues, such as employment, underemployment, getting their children familiar with the school system, obtaining housing and settling into the community in general. Their sexual violence experience is not very high on their agenda. Based on our understanding of their experiences, we have gone out to communities.
The other thing we understand is that a woman who comes to us is prepared to engage in talk therapy. When we do outreach to diverse communities, we do not talk about sexual violence at all; we talk about anything other than sexual violence. We understand that because there is an array of issues on the agendas of women and their families — and most of these women come from the collective, so the collective is still paramount — we need to discuss issues that are not related to sexual violence at all. It is based on their needs. What do they need at that moment?
As we build a relationship with the communities — sometimes that can take a couple of years — the trauma begins to resurface. We are there when the trauma begins to surface because we have built that relationship with them.
Senator Joyal: I was listening to you carefully. What I found most impressive is the fact that one of the reasons there is not much denunciation is the general trust in the criminal system, putting it into the criminal context. I was trying to understand why the criminal system has not been responsive to the fact that it is a failure to the credibility of the system.
Listening to your intervention and the various elements you have brought forward, I wonder if we are not really facing an important fact in our society in that we have always viewed women on a Judeo-Christian traditional level, which is where sins come from. When we deal with sexual issues, there is always, like it or not, a "morality" element that is attached to that. The system has not been devised in such a way as to treat women on par with other crimes because a woman who comes forward and denounces a man is less credible, per se. There is always the background thinking that in fact temptation comes from women, in that the first man had been tempted.
It seems to me that we are trying to wrestle with a fundamental change of the philosophical definition of who women are in our system. I thought at the beginning of our hearings that a campaign to convince everyone to come forward and denounce would be effective. There was a campaign by the Quebec government recently — I do not know if you have seen it — which was, in my opinion, quite effective because it was very disturbing.
In fact, if we push women into a system that they do not even trust, we are pushing them into bigger trauma and into a situation that does not have the tools to deal with them. We find ourselves in a conundrum whereby we ask ourselves what the beginning of the solution is and what the general approach to this issue should be in that we can satisfy ourselves that at some point in time it will produce a change.
I listened carefully to each of you, and each one of you touched on one aspect or the other of that situation. How could we evaluate this legislation if we try to do that exercise outside the abstract context in which women find themselves in relation to sexual offences in the Criminal Code? In fact, it is almost impossible. We will touch on an element here and there, but we will not have changed a lot of the dynamics and the mentalities because the system reflects the mentalities.
Which end of all those sticks should we begin measuring? Or which one aspect, in your opinion, is more a priority than the other?
Mr. Sullivan: I am sure my colleagues can speak more to the philosophical issues that you raise, senator.
I would say that in a practical sense, if you are a Crown attorney looking at a case where you have a victim of sexual assault who has experienced violence, she has injuries and the accused was someone she did not know, you would probably have a pretty good chance of actually getting a conviction. However, those are not the majority of cases.
That is why I think, aside from the police officers who have these biases, many of those in the system will look at their chances of getting a conviction. The reality is that the chances of getting a conviction in the most common form of sexual assault — someone you know, someone you are on a date with, those situations — is very low. You make a conscious decision to not proceed with this case because it will not get a conviction. We look at the win/loss records of what will happen.
In terms of how to fix that, I do not even begin to know how to answer that. As someone suggested, you could change this legislation and say that no records will be released. I do not think you can do that, because the courts have already said that they should be in some cases. However, if you could, I do not think the reporting rate will change at all.
You could say that we will never discuss someone's past sexual history. You can make changes to the legislation here and there. We have seen over the past couple of decades that changes to the legislation — "no" means no, the rape shield, all those things — have not had any impact on that. I think the answers are bigger than that, but I am sure my colleagues can give you more guidance on what the solutions are.
Ms. Lomatski: From our joint statement that I read at the beginning, training is imperative. You need to understand the complex nature and the philosophical nature that we just discussed about sexual violence. We have heard through all our statements that funding, action and providing women's advocates and women's groups with the ability to make change is imperative to starting change in this whole process. That is where we stand on that.
Ms. Onyalo: I agree also that training is paramount. Training needs to be done all the time, continually, as Ms. Lakeman said. For example, when we are talking with police, we are always training new recruits. That needs to be done on a continual basis. Training should never end.
I still believe that the specialized court discussion is worth looking into, looking at that framework with an evaluation component, because right now my understanding is that a number of research initiatives are evaluating the specialized domestic court system and looking at whether it is doing what it needs to do for victims of domestic violence.
I really think that we need to have more support funding for rape crisis and sexual assault centres. For years we have been flat-lined. There is no additional funding for expansion, research or meeting new community needs. That is a huge problem at the grassroots level.
Ms. Lakeman: Lucky for you, I think this is a political process. It is important that you not over-focus on reports from women or convictions as the only measure of the importance of this law.
The way to convince women to trust the system at all is how you treat women, and I think you need to focus on the implementation of this law at the moment. The suggestions have been strongly made. We need written judgments, equality advocates, legal advocates, and we need to be seen to be treating well those women who dare to report.
Senator Lang: I would like to go back to the opening statement by Ms. Lomatski. You referred to a situation where a 17-year-old young woman had been assaulted and made the statement to you that, if I understood correctly, the reason she did not report the assault was because she felt that the individual involved would not get anything at the end of the day. I took it that the sentencing would not meet the crime, so to speak.
Perhaps you could explore that a little further. I know we are going beyond the bill here, but are there a lot of, in this case, young women who are not reporting because of their distrust of the judicial system and the fact that they do not feel that the penalty meets the crime, and so subsequently it is not worthwhile.
Ms. Lomatski: To provide a little more context to my statement: This was from a young woman who was in not a focus group but a class dialogue that I assisted in facilitating with regard to sexual violence and what that meant to these students. Her comment was based on the following: "I would not come forward because I do not believe that he would get anything."
This is a woman who was silent during the whole discussion, so it is quite striking that she made this comment and articulated why she would be silent. I think that message says a lot, for her to not trust to report to the criminal justice system.
Some of my colleagues could probably articulate stronger than I can with regard to the other part of your question. That is the context of what we were discussing within that dialogue, and many of her classmates echoed her statement.
The Chair: Mr. Sullivan, would you care to comment? I know it is difficult to condense all of this down, as there is so much passion and great information, but if you could, as we are getting tight for time.
Mr. Sullivan: According to Statistics Canada, those convicted of sexual offences are more likely to go to prison than other violent offenders. That is not to say there are not cases that we all hear of. If you have been sexually assaulted and then go through this entire process and actually end up with a conviction, it may not meet your expectations.
From the research I have seen, there is nothing to suggest that women are not reporting because they do not think the sentence at the end of the day will be enough. When they ask those women who have reported, "Why did you report?" some of them do say it is to punish the offender, but it is not the majority. I do not think women, in a lot of their decision process, get to the sentence. It is everything else before that that really is more of the barrier than how tough or how lenient the sentence will be.
Ms. Onyalo: We work with a number of young women in high schools across the city, and there have been quite a few disclosures. We have been working in the schools for over seven years. That is certainly not a factor that would deter those young women from reporting their case. Many young women would not even go to the police, because they are actually scared about how they are perceived by police services.
Ms. Lakeman: I think it is very important that too often in this discussion, women are offered vengeance rather than equality, and it is not what we are seeking. Most women report because they want to protect other women and they want to protect children around them. They actually have very little interest in longer sentences, but they do wish that there were more progressive sentencing and more opportunity to actually increase the likelihood of a man changing, because to have him come out further brutalized is not in any of our interests.
[Translation]
Senator Chaput: You talked about victims going through trauma as a result of sexual assault.
You said that it is one in three women in Canada — two in three; that is even worse.
You said that a percentage of women do not report the incident and a percentage do not want or seek treatment.
That is due to fear that the complainant's personal information would not be protected when there is a request for records to be released. So it is because they are afraid and also because they do not trust our justice system.
On top of that, a percentage of women do not go to your organization, either because they do not know about the centre, because they do not speak the language or for all sorts of reasons.
My understanding is that this bill is still a small step in the right direction. You also suggested other measures to encourage victims to file a complaint. You listed a series of measures. Are there other measures that you did not mention and that could help victims not only to lodge a complaint, but also to regain their trust in our justice system? Are there other measures that could break this negative cycle, which is of no help whatsoever to women, to the complainant?
[English]
The Chair: Who would care to respond? Perhaps to be helpful you could focus on something in addition to what you have presented.
Ms. Lakeman: Two points are important that have not come up so far. First, the poorer you are, the more likely there are records about you. The more you are from an immigrant or racialized community, the more likely it is that there is a record about you. The record's impact is multiplied; and women are very aware of that.
Second, I want to make the point that prosecutorial discretion is very important and is a factor in this because Attorneys General, over whom you have some influence, direct prosecutors to proceed or not to proceed based on the likelihood of conviction. There are many factors, including the records that affect the likelihood of conviction. You have some possibility of working out some way in your work that you are educating Attorneys General and, therefore, affecting the prosecutors and the prosecutorial decisions. Most cases are lost at the level of the first police officer and then at the level of the prosecutor. The interplay between those two is most important to us. Few of them get as far as the court. That is all I have to offer.
The Chair: Would anyone else care to comment?
Ms. Onyalo: The first contact for the survivor of victimization is the police service, so that is where we should look to know what is going on within the investigation process and why so many cases, particularly in Ottawa, are classified as unfounded. Our coalition is looking at doing some research on investigating those cases. Hopefully, we can make recommendations on changing mechanisms, attitudes and behaviours currently used by the police.
Senator Meredith: Ms. Lakeman, you talked about feminist research, et cetera, and unavailable evidence. Can you elaborate quickly on that for me? Mr. Sullivan, you talked about a perfect support system that would encourage victims to come forward. You have no confidence in the current justice system. What would you recommend to this committee?
Ms. Lakeman: The most important thing I have to say is that the independence of advocates is a key part, since that is our main power with which to fight for transformation in the system.
When I say "research," I mean research by independent activists who have some display of being attached to women's equality. There is a long list of those women; and we can supply you with a list. Clearly, there is a need for research coming from that point of view. It is also tied to the on-the-ground research that we do. We keep files, and I swear I keep the name of every man who is reported to us. A kind of research can be done by collecting the stories of the women who talk to us. We do that work.
It is important to point out that if someone tells their story to an extension of the system, they may have a hard battle on their hands to try to protect those records. However, if they tell their story to an independent women's movement group, that very independence allows us to protect those records better. That is why we do not want everything to be delivered through police-based victim assistance or even through court-based victim assistance. If you tell it all at the hospital, there is a greater likelihood that those records will not be protected than if you tell an independent rape crisis centre. If you want to be able to tell someone the whole truth, tell your independent political ally.
Senator Meredith: In your opinion, do you think that defence lawyers are using this call for records as a way to win cases and then further victimize the victims?
Ms. Lakeman: I have absolutely no doubt.
Senator Meredith: Thank you.
Mr. Sullivan: It is a tough question to answer. In a perfect system, records would not be an issue. In a perfect system, sexual activity history would not be an issue. If we are to encourage women to come forward, we would like to have a place where they can do so safely. How do we do that, given the direction from the courts that records should be available in certain cases and that past sexual history might be relevant in certain cases? Making those laws as strong as possible would help.
Perhaps this Senate committee could consider recommending for this proposed legislation strengthening a presumption that those records will not be released unless you meet a certain high threshold. The same could be said for past sexual history with: We will not discuss her past sexual history. I do not know if it is training for or empowering judges but to have them say in a courtroom: This questioning will stop right now; we will not do this. Ms. Lakeman is right in saying that defence lawyers do this to intimidate. I do not think they do the same with other kinds of complainants. There is something special about sexual assault complainants that we let them do this. We do not let them do it in other cases, or they do not see value in doing it for different kinds of offences. That is a quick answer.
The Chair: Ms. Lomatski, do you want to comment?
Ms. Lomatski: No.
Senator Meredith: Thank you so much for the work that you do. I have a daughter and a wife and other women in my life. I worry for them and others around this table. We all worry about individuals who are being victimized on a daily basis and do not have the protection of the court system. I commend you for the advocacy work that you do; continue and blessings on that.
Senator Fraser: You could gather that a number of us were greatly intrigued by the suggestion of specialized courts. I take the point that they have to be properly funded and everyone has to be properly and repeatedly trained; but there are real success stories with specialized courts. However, I am trying to think in the real world. What might we recommend that might actually happen in the context of massive budget cuts all over the lot?
Let us assume for the moment that we might get specialized courts some day but not just yet. Ms. Lomatski, Senator Angus asked the question that I had initially wanted to put to you about pushback. Your answer confirmed to me prima facie the need for training for judges, but it has to be good training. Bad training is counterproductive because the people who get it just laugh. They say it is a bunch of hooey. Good training also costs money, so we have to square the circle.
I would like to ask you and also Mr. Sullivan, who has experience at various levels on these matters. Would it be useful, for example, to have the federal government establish a small but highly qualified training unit that would just spend year after year after year, going across the country training judges, training the new judges? This is really reaching, but if such a unit could be effective, could one make it known, have it as part of the guidelines for the judicial selection process that you will not get named to an appeal court unless you have gone through this? Comments?
Ms. Lomatski: I think that is a big question you asked.
Senator Fraser: I know, but I had to get it all in because the chair will cut us off.
Ms. Lomatski: From what I was able to gather from your question, I think that for the specialized traveling team of trainers, we need to ensure that it has a strong political and grassroots kind of nature, combined with a legal framework so that you can combine both of those things. There is always hesitancy, when it becomes so big, from a lot of our members that it will become detached from what the training needs to be and that it is not one step. For domestic violence court, we have legal aid lawyers who go through domestic violence training and then are cleared to be able to take cases of that nature. However, it is the consistency and the continuation of training that is important. The content needs to be there and the frequency needs to be there for it to be able to understand the complexities of sexual violence.
The Chair: Are there comments from anyone else?
Mr. Sullivan: I would echo those, especially the grassroots involvement. There must also be a mechanism to determine how effective the training has been. Perhaps it is if you are to get an appointment to the Supreme Court, there is a new process.
Senator Fraser: Actually, the Court of Appeal.
Mr. Sullivan: Or the Court of Appeal. You need to have, as Ms. Lakeman said, written decisions — not that you are an advocate in the courtroom for sexual assault victims or one side or the other — so that we can see that you not just went to the training but that you understood and you are incorporating that learning into your decisions. If we do not have the decisions, we do not know if the training is having any impact. I would agree but I think there is another step to that.
The Chair: Ms. Onyalo?
Ms. Onyalo: I do not have anything to add.
Ms. Lakeman: I think you are thinking too small. I think there should be a requirement for equality law training. Why is it possible to be a judge without knowing anything about the disenfranchisement of women?
Senator Fraser: Well, we could all write books on that one, but I will not be allowed to go on.
Ms. Lakeman: I do not think there is an ignorance of this law as the fundamental problem. The comments make it clear that there is an ignorance of sexism, of the functioning of sexism.
The Chair: Colleagues, that concludes our hearing today. On behalf of all of you, I want to thank each of you who appeared before us today. For us, we can read reports, we can read the bill, we can read the words, but this is why it is so important to have you here today telling us what it is like at ground level, what it is like in the real world. You brought your points home extremely well. I can tell you that they are etched in our minds; there is no doubt of that.
Thank you ever so much. Perhaps in the future there will be opportunities to have you back before us again. Your presentations were thorough and excellent.
Colleagues, we will meet again tomorrow morning at 10:30. To remind you, we are considering the draft report on the pardon user fees. The draft report, I understand, has been circulated this afternoon; you may not have seen it yet but it has been circulated. I would ask each of you to review it carefully and bring that draft with you tomorrow. It is confidential, of course, until we consider it tomorrow.
With that, thank you.
(The committee adjourned.)