Videos

Video recordings of a series of panel discussions on topics related to the criminal justice system’s response to sexual assault against adults.

Opening Remarks

Knowledge Exchange 2017 - Opening Remarks

Transcript - Knowledge Exchange 2017 - Opening Remarks

Notes for an address by

The Honourable Jody Wilson-Raybould, PC, QC, MP
Minister of Justice and Attorney General of Canada

To the Justice Canada Knowledge Exchange 2017: The criminal justice system’s responses to sexual assault against adults

Hilton Lac-Leamy, Gatineau, QC: March 8, 2017

As Delivered

Good morning, everyone. Gilakas’la, thank you for having me here this morning to speak at this incredibly important and very timely forum or knowledge exchange. I want to recognize everybody in the room and not to point out any people in particular but I’m going to just acknowledge one of my amazing Parliamentary Secretaries, Marco Mendicino, who is here today.

Thank you to Roberta [Della-Picca] for the welcome to Algonquin territory.

I am so pleased that the Department of Justice is hosting this knowledge exchange in an incredibly important time – a very timely discussion. The issue of sexual assault and how we deal with sexual assault in the criminal justice system is something that I’m deeply committed to addressing, as is our Prime Minister and our government.

I would like to thank the Policy Centre for Victims Issues for inviting me to speak and to thank Gillian [Blackell] for the kind introduction. I would also like to take some time or this opportunity to acknowledge the incredible work that so many of you, all of you in this room, are doing to address sexual assault. We have – over the course of today and yesterday, as I understand – an incredible lineup of speakers and presenters and I know we’ll all appreciate hearing the knowledge and experience that you bring to this issue – this shared issue of importance.

Our government has been clear that sexual assault is unacceptable and wrong. We are unwavering in our commitment to ensure that victims of sexual assault and gender based violence are treated with respect and dignity.

This knowledge exchange provides a timely opportunity to discuss how cases of sexual assault are reported, charged and prosecuted in Canada. It will look at issues from the perspective of victims, the judiciary and criminal justice professionals.

It will also consider best practices with a view to strengthening the criminal justice system and how the criminal justice system responds to these horrific crimes. I’m grateful for the chance, at least in part, to participate in this important forum and stress my commitment to making sure the criminal justice system is more responsive to the needs of victims of sexual assault.

I am incredibly honoured to be the Minister of Justice and understand the responsibilities that I hold in my office. I bring, as was mentioned, a background in prosecution, and certainly recognize and have been confronted with victims of sexual assault, not only in my capacity as a former prosecutor but certainly in my capacity as the former Regional Chief of the BC Assembly of First Nations.

While anyone can be a victim of sexual assault, this gathering on International Women’s Day serves as a poignant reminder that victims and survivors of these crimes are disproportionately women. This crime has a gender impact and, unfortunately, myths and stereotypes continue to surface at all stages of the criminal justice system. For Indigenous, transgendered, two-spirited, disabled and other marginalized survivors of sexual assault, gender can be compounded by additional myths and stereotypes, creating further barriers to justice.

I understand that these initial obstacles were discussed last night in an armchair discussion. Here as in other countries, the vast majority of sexual assaults against adults, as we know, are not reported to police. We also know that charging, prosecuting and conviction rates in these cases are significantly lower than other types of violent crimes.

Sexual assault is certainly not unique to Canada. What is somewhat surprising, as was mentioned, is that our country’s comparatively robust criminal legislation has not led to the rates of reporting, charging and conviction that most Canadians would hope to see.

Our Criminal Code is clear. It prohibits sexual assault in all its forms. The law provides a definition of consent and clearly sets out circumstances where no consent can be given.  In addition, important amendments were made to the Code to protect complainants of assumptions based on myths and stereotypes about how victims of sexual assault are expected to behave. The panelists today will explore some of the measures in more detail.

Despite this robust legislative framework and the Supreme Court of Canada cases that have expanded upon it, we know that victims of sexual assault still face significant barriers in reporting to police and in testifying in court. According to Statistics Canada – as we are probably all familiar with in this room – only five percent of sexual assaults in 2014 were reported to police. In 2015 only 43 percent of sexual assaults reported to police resulted in a criminal charge. Only 43 percent of those charged were actually ultimately convicted.

This means that for every 100 sexual assaults in Canada, less than one percent of those accused are convicted. That, as I am sure you know, represents the lowest conviction rate for any type of violent crime in this country and this is completely unacceptable.

This problem is not new. My recent media reports have highlighted a few significant concerns, namely the number of cases deemed by police to be unfounded remains unacceptably high and this varies across the country.

Recently, some of these stories touched on why these cases were deemed unfounded.  As articles noted, harmful myths and stereotypes remain the greatest barrier to charging and prosecuting sexual assault. Clearly, then, having strong laws on the books is not enough and we need to look at new approaches. We must look beyond changes to the letter of the law for solutions and examine why the law is not being applied and enforced as it should be.

As Minister of Justice, I am incredibly concerned about the barriers to access to justice for victims of sexual assault. If victims of sexual assault do not report because they fear they won’t be believed or they lack the confidence in the criminal justice system, then the integrity of the whole system is called into question. When victims cease to turn to our criminal justice system, perpetrators are not held to account for their actions. That is a problem and I know that is a concern for everyone in this room.

How can we ensure our laws are effectively enforced? One place to start is ensuring that we do what we can to provide every professional working in the criminal justice system with the necessary tools to understand and apply the law. This means specialized training on sexual assault law for police and Crown prosecutors. It means encouraging police colleges, law schools and the judiciary to provide training as well.

It also means making sure that our practices in dealing with victims and survivors reflect an understanding of how trauma affects the brain and the ability to recall events.  There are, of course, broader societal forces at play that also influence attitudes and the prevalence of gender-based violence. Our government is committed to tackling ongoing gender inequality and sexism in all of its forms.

What we hope to focus on here today are, as was said, some of the promising practices, approaches and mechanisms being used both at home and abroad to improve the criminal justice system’s responses to sexual assaults. We are very fortunate to have many experts in this room who are going to talk of these promising practices.

Without a doubt, the Philadelphia model is one of the most exciting policing initiatives in this area, and it has received some recent attention in the media. This model of external oversight of police practices was designed to address the high rates of sexual assault cases deemed to be unfounded in the city in the 1990s. We are very fortunate to have two presenters here with us today that will speak about this model.

We’re also going to hear from representatives from Ontario and Quebec who will describe the criminal justice elements of their sexual violence action plans. Of particular note is the project in Ontario that offers up four free hours of legal advice to victims of sexual assault.

For my part, I am currently working – as you probably know – on a wide-ranging review of the criminal justice system. Among other things, the review is looking at the changes in the system and in sentencing reforms over the past decade to ensure the current provisions align with the objectives of the system. The ultimate goal of my review is to improve public confidence in the criminal justice system.

I want to make sure that the system treats victims with compassion, that it better meets the needs of vulnerable populations, that it takes a more integrated approach to addressing and preventing crime. My vision is of an effective criminal justice system that will respect victims and hold offenders to account. It will address the needs of vulnerable populations, including Indigenous peoples. It will also address the root causes of criminality and inspire public confidence.

I’m particularly interested in exploring the use of restorative justice approaches. I know this is one of the topics that was discussed last night and will be discussed today.

I’m also working very closely with my colleague, the Honourable Maryam Monsef, Minister of the Status of Women, in support of the development of a federal strategy against gender-based violence.

This strategy will build upon the work that our government has undertaken to launch a national inquiry into murdered and missing Indigenous women and girls, which we launched last September. In addition, given the important role of the provinces and territories in the administration of criminal justice, I am working with my counterparts to explore practices, policies and legislative approaches for improving access to justice for victims of sexual assault.

More specifically, last October the federal provincial and territorial Ministers responsible for justice and public safety tasked a working group of senior officials to explore these issues and to bring recommendations to our attention. I know there are many of these representatives in the room.

We know that sexual assault takes its toll not only on victims and survivors but also on their families and loved ones. As we will be exploring today, understanding the impact of trauma is critical to properly addressing this issue.

In this respect, through the federal Victims Fund, our government is supporting community-based, culturally-grounded and trauma-informed support for families of murdered and missing Indigenous women and girls. We are also assisting families in gathering the information they seek about their loved ones through funding for Family Information Liaison Units. This is a concrete step and help for families affected by sexual violence and homicide.

Moreover, last fall my department made up to $12 million available over three years for projects designed to improve the criminal justice system’s responses to sexual assaults against adults. The funding is available to provinces and territories, municipal governments, First Nations governments, criminal justice professional organizations and non-governmental organizations.

I’m happy to say this funding is already supporting pilot projects for some very promising practices that you will hear about today. These projects include an initiative in Newfoundland and Labrador to provide free legal advice to victims of sexual assault and funding to enhance the Ontario project I spoke about earlier. These resources are also supporting a project in New Brunswick to provide specialized training for Crown prosecutors and other criminal justice system professionals in dealing with victims of sexual assault and interpersonal violence.

In addition, our government is funding more than two dozen projects run by non-governmental organizations. One of them will look at the Philadelphia model and see about adapting it to the needs of a particular community.

Sexual assault is a serious problem in Canada. It crosses social and economic barriers, affects communities right across the country, and has devastating consequences for individuals, their families and their communities. It is a significant barrier to women’s equality. Indeed, it represents a clear violation of human rights and fundamental freedoms of women, something I know we are all reflecting on this International Women’s Day.

Gatherings like this – with so many professionals committed to getting at the root causes, committed to improving our criminal justice system to properly and appropriately address the needs of victims of sexual assault – are so important.

I very much look forward to hearing of your discussion, and I very much look forward to hearing your solutions and how we can employ them together.

Gilakas’la. Thank you for listening

Opening remarks by the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada

Panel 1

Sexual Assault in Canada: Statistics and the Law

Transcript - Sexual Assault in Canada: Statistics and the Law

Kathy AuCoin: Are we up? Okay. Good morning. And I want to reiterate the Minister’s comments about how important this event is and how well organized it is, and the agenda looks brilliant. So kudos to everyone on the team. It looks wonderful.

I’m going to spend 10, 15 minutes going over and presenting the most current data we have on sexual assaults from Statistics Canada, drawing on different data sources.

I’m going to give the presentation in English. However, if you have any questions in French, no problem. I sometimes break the rules of grammar. I’m sorry, but that’s reality for me. (laughter)

So again, preamble. I try with all my heart. And I also try to make sure I do this correctly. So here’s a test. I did it right. Okay.

These are technical issues, it makes me feel calmer that I can control the clicker. (laughter)  So there’s three key messages that I think everybody needs to leave this room with. Many of these messages you will not find surprising, but let’s reiterate it so that we’re all on the same page.

Over the past several decades, the overall crime rate in Canada has gone down for both violent and non-violent crime. However, sexual assault rates, not so. In fact, in the most recent 2014 GSS for the first time in the cycle of that survey, women’s rates of violent victimization were higher than men. An important thing to consider. There are certain groups of Canadians that are more at risk: women, women between the ages of 15 and 24, aboriginal women whose rates of victimization sexual assault are three times greater than non-aboriginal women.

In addition, we also know children who had been victimized before the age of 15 are also at greater risk of being a victim of a sexual assault as an adult. Overall, we know that reporting that reporting to police for sexual assault victims has not changed over time. Very few report, and this has been consistent over many years. It’s not a new phenomena, it’s been ongoing and it hasn’t changed.

Again, see, I have trust issues. There we go. (laughter) Okay, I would like to spend just a minute talking about the different databases that we use to look at sexual assault. The first one is the General Social Survey on Victimization, which is critical when we’re looking at crimes that aren’t reported to police. This data set we call or do personal interviews with Canadians asking about their pre-, their experiences of victimization over the previous 12 months. It’s important for us to get at this information so we understand what’s reported, what’s not reported.

Further to that, we can get information about who the perpetrator was, impacts and consequences, PTSD, a wealth of information that helps get at information we can’t get at, with police data. The GSS is also critical in getting information on spousal violence, dating violence as well as child maltreatment statistics, which again are all types of crime that do not get reported to the police.

A second critical data point is police reported data. We get this information on an annual basis. The data that we collect and that we publish is founded incidents. Founded incidents are when the police establish that a law has been broken. A report is extracted and given to Stats Canada and we go through several months of cleaning, verifying, processing the data to come up with reliable statistics.

We collect data on 200 criminal offenses. So over time, we can look at changes for different crime types, violent versus non, by region, by CNA. So it is a wealth of information.

Another critical data point is criminal court survey data and here we can look at how sexual assault cases are handled through the court process. However, there is some limit in that we don’t get a lot of information about the victim from that data set. However, within Statistics Canada now, we’re doing a lot of work linking different data sets so that we can get at more information that we couldn’t do so in the past.

So next one. Great. So what does the GSS measure and, I mean, Carole went through the law, Criminal Code for sexual assault. When we talk to Canadians, we don’t use were you a victim of sexual assault level one? Canadians wouldn’t understand it. There are three very specific questions we ask Canadians. Over the past 12 months, did you experience unwanted sexual touching? That is has anyone ever touched you against your will in any sexual way? By this, I mean anything from unwanted touching or grabbing to kissing or fondling.

Has anyone forced you or attempted to force you into any unwanted sexual activity by threatening you, holding you down or hurting you in some way? And then the last category sexual activity where the person was unable to consent, which was added in 2014. Has anyone subjected you to a sexual activity which you were not able to consent? Were you drugged, intoxicated, manipulated or forced in ways other than physicality?

Now, all of these items meet the criminal threshold of a sexual assault and this is how we capture the information. Twelve months for the general population. If someone was in a spousal relationship or had contact with their ex-spouse, be it common-law or legal married, we would ask in the previous five years whether they’d ever experienced this at the hands of a spouse.

So here are some key statistics that I think are important to focus on. We know that men, well, women are more likely to be a victim of a violent, a sexual assault, and specifically 550,000 incidents in 2014, a significantly larger amount than the 80,000 reported by men. When we take that number and put it into a rate, for women, that’s 37 incidents per 1,000. So I know people are challenged mathematically, but if you think of it in, if there’s 200 women in this room, that would mean seven perhaps were a victim of a sexual assault in the previous 12 months. If there were 200 aboriginal women, that number would jump to 22.

So perhaps being a victim of one of those sexual assaults in the previous 12 months, 22 individuals of 200. It’s a large number. And when we put it in a rate, sometimes it hides it. So we need to conceptualize what the rate means in a room full of people. It gives it more of a tangible entity.

When we look at specific regions in Canada, the Territories have higher rates of sexual assault, as do the western provinces, specifically Manitoba and Saskatchewan. In 2015, the total number of all sexual assaults reported by police as founded and that were cleared by charge was just over 9,000, or about 43% of the sexual assault incidents.

Victims of violence turn to others for support, specifically 14% of violent crime victims contacted at least one source, most often a social worker or a psychologist. We know that women are more likely than males to reach out for support services. Some Justice Canada studies looked at reasons for not reporting child maltreatment and frequent response was that the individual felt that they would not be believed. They felt ashamed or embarrassed.

In the most recent GSS, we asked respondents retrospectively whether they’d been a victim or child maltreatment and whether that incident ever was reported to the authorities or the police. Ninety-three percent of adults who said they had been victimized prior to the age of 15 said it was never brought to the attention of any type of authority, be it child protective services or the police.

So a very important data element is trend. Are things getting better, staying the same, going up or down? When we look at the blue line, which is the, at the top, those are rates from the sexual assault data points from the GSS, so this is whether it’s reported or not to police. And what we can clearly see is things have not changed. Over the past decade, the rate has stayed the same. What’s not on the slide is the rates for both robbery and physical assault that are captured through the GSS. And over the past 10 years, both rates have gone down significantly.

For robbery, the decrease has been 39% over the past decade, while physical assault, it was decreased by 35%. And again, this is when sexual assault has stayed stable. This is the reason why currently women have higher rates of victimization, according to the GSS, because of the stability of the sexual assault. The orange trend line reflects data from police services but again, we know that many victims of sexual assault do not report to police, so this is an underestimation of the actual number.

Again, in 2014, as the Minister already has spoken to, the large majority of victims of sexual assault never reported to the authorities. On this slide, I want to focus your attention on reporting rates. Again, the data’s from the GSS and looking at sexual assault reporting rates to police versus robbery, as well as physical assault. So 38% of victims of physical assault reported to police whereas 54% -- I want to make sure I get this right – 34% of physical violence victims reported to police, 54% of victims of robbery and then for sexual assaults, only 5%.

Again, as I reiterated, mentioned at the beginning, these proportions of people reporting to police haven’t changed. It also hasn’t changed over time for victims of robbery or physical assault. So there’s something else going on, overall.

What are the reasons for reporting or not reporting? There’s many. For sexual assault victims, 7 in 10 felt that the crime wasn’t important enough or felt that it was a personal matter and that they would manage it informally on their own. However, it’s important to note that 4 in 10 stated that they felt the police would not have considered the incident important enough, felt that there was a lack of evidence or believed that the offender would not be convicted or adequately punished.

What’s not on this slide are some other data points that I think are important. Victims of sexual assault who choose, chose not to report were three times more likely than physical assault victims who chose not to report to state that they felt, they were concerned that others would find out about their victimization. So this was the biggest concern, that it would get out there. In addition, they were twice as likely as victims of a physical assault to say they didn’t want to bring shame to their family. So this was a critical barrier for many victims of sexual assault.

So this next slide focuses on the fact that though victims of sexual assault might not be reporting to the police, they are reaching out. They’re reaching out to victims services, seeking help. This slide shows the total number of victim seeking services from different victim services across Canada on snapshot day. And on that day, just under 11,000 people went through different victim services.

What’s important to note is a quarter of them, or more than a quarter were there because of a sexual assault. And in fact, 3 in 10 women were because of a sexual assault issue. So they are finding help through different vehicles.

Again, this slide I wanted to point out again, looking at the rates, and this is from police data, which regions in Canada have the highest rates of sexual assault. Again, the three territories as well as the western provinces of Manitoba and Saskatchewan.

Okay, this is a blank slide.  And I’m going to take a bit of time to walk you through this. This is some preliminary results for a study that’s going to come out hopefully the end of spring, early summer. As I mentioned at the very outset, it’s really difficult for us to follow an incident or an offender through police to court to the correctional system. The Canadian data systems are not integrated. They don’t flow in a nice, really easy data mining way. It’s just not like that. So in order for us to understand how sexual assault cases versus physical assault cases are being treated in police to courts, we need to merge large data sets to get at this type of information.

So this is a unique research project that we’ve been working on for about six to eight months. And it’s very timely. What we did is we took six years of police records and linked them to court data. And what we, the main research question was what was the drop-off rate, the attrition rate for both physical assaults as well as sexual assaults. We wanted to compare sexual assaults with something else. So we have information to figure through. So I’m going to walk through six numbers slowly so that I don’t freak you out with too many numbers. There’s no math test.

Okay, in the six years of data, what we found that there were approximately 94,000 sexual assaults reported by police in Canada as founded. A law had been broken. Over the same time period, there was approximately 940,000 physical assaults reported by police as founded. A law had been broken. So then the next question is how many of these resulted in a charge being laid?

Now, police will lay a charge when they’ve got an accused. They can’t lay a charge if they can’t find the accused. So often, the number’s going to get dropped down because also police have discretionary prerogative, diversionary programs, the accused could have died. There are many reasons why charges might not have been laid. So the next number will be smaller. So of the 94,000 sexual assaults, 40,000 resulted in a charge being laid. That’s about 4 in 10, 42%. When we look at physical assaults, 450,000 of those incidents resulted in a charge being laid.  That’s about 48%, a larger proportion, 6-7% difference.

So the next step is okay, how can we find these people in the court data? So they’ve been charged, where are they in the court data? So now we have five years of court data that we link to the police records. What we found in the court data was that there was 19,000 of those 40,000 in the court data. And I want to make sure I’m getting the number right, so I’m taking my time. So that’s just about 50%. So 50% of those sexual assault incidents where there was a charge laid we found in the court data.

When we compare it to the physical assault, is it up there, 75%. So there’s the biggest change. So again, amongst the sexual assault cases, when we found them in the court records, it was just around 50%. For physical assault, it was 75%. So the next number is the attrition rate. And the attrition rate means the dropout. So we take the total number that we started with and how much is left. So the drop-off rate for sexual assaults was 79%. For the physical assault, it was 64%.

So again, this is preliminary results. We’re still working on the paper and there’s still many questions we’re still going to look at. We haven’t finished crunching all the numbers. The next steps of the study are to analyse the court outcomes of these cases. That is what proportion had a guilty verdict, what were the sentencing outcomes, again between sexual assault and physical assault to give, you know, compared contrast, and to look at the final attrition rate.

This next slide are footnotes, because we haven’t published it, but you don’t have to read through those. (laughter) Due diligence. It can’t be us without footnotes.

This last slide is, I’ll spend, like, 30 seconds. The most current data from 2014-15 looking at a flow chart for court case outcomes from adult criminal court where the charge with the most serious decision was related to a sexual assault. So in the top left-hand corner, you’ll see that there was 2,500 completed cases where the most serious decision was related to sexual assault. Of these, just over 4 in 10 resulted in a guilty, guilty finding, while a similar proportion were stayed or withdrawn.

Where there was a finding of guilt for sexual assault in the case, almost 6 in 10 accused were sentenced to custody while 18% were sentenced to probation. Overall, the mean length of custody was 255 days. It’s important to note that’s probably an underestimation because we can’t control for remand. We do not know how much time the person was held in remand. So that is an underestimation.

Finally, on the, at the very bottom of the slide, I’d like to draw your attention to that long black line. Overall, from the first court appearance to the final decision, it took about 11 months or 310 days. And that’s it. Thank you for your time.

(applause)

This panel provided an overview of recent Canadian data on sexual assault against adults and how the data has evolved over time. The panel also provided an overview of the history of sexual assault law in Canada including the role of the Canadian Charter of Rights and Freedoms in sexual assault cases.

Carole Morency
Director General and Senior General Counsel, Criminal Law Policy Section, Justice Canada

Kathy AuCoin
Chief, Canadian Centre for Justice Statistics, Statistics Canada

Panel 2

Sexual Assault Reporting and Investigation

Transcript - Sexual Assault Reporting and Investigation

Moderator: Okay, I’m sorry, we don’t have a lot of time for pauses. We have so many wonderful people here, and I’m sure we’re going to want to hear as much as they have to share with us. It’s, it’s quite an exciting day to have all these people here. And both people at the front and in the room taking home ideas and working, continuing your valuable work on these issues.

Our panel today is on sexual assault reporting and investigation, which is very timely given the attention that these issues have been receiving. We will be talking about barriers to reporting, available supports for survivors and promising practices related to reporting and police investigations. And I really don’t want to take away from time from the panelists today. So I’m going to leave it to you to read all of the amazing things that they’ve done that’s described in their bios in the package you’ve received. And just really briefly introduce the members of the panel.

We have Holly Johnson, a professor from the Faculty of Criminology at the University of Ottawa and we’re going to go in order from right, my right towards me and that’s the order on your agenda as well. We have Jennifer Richard , the Director of Community Development, from the Fredericton Sexual Assault Centre. Next to her is Chief Shawn Devine, the Chief of the North Bay Police Service. And then, we have two members from the Philadelphia model that we’ve all heard so much about, and we’re very excited and grateful that they were able to come here. We have Terry Fromson, the Managing Attorney of the Women’s Law Project in Philadelphia, and Lieutenant Thomas McDevitt from, Retired Lieutenant from the Special Victims Unit at the Philadelphia Police Service.

So, we’re going to start with each panelist speaking for approximately 10 minutes and then we will have some time for questions at the end.

…

Okay, so I won’t dwell on this because the Minister has alluded to it and so did Kathy, but we know that the justice system has largely been a failure for women who are sexually assaulted, that despite decades of law reform and some very, very important changes to law and procedure, the charging rate has not improved and nor has the conviction rate for women and we know from the very timely and very comprehensive investigative reporting by the Globe and Mail that this first line, which is recorded by the police, are, omits a very large number and that varies tremendous across the country.

This is Ontario for, which is where I work. And more specifically, in Ottawa, charges were laid in 19% of cases over a five-year period and 38% were deemed to be unfounded and 32% were founded, not solved, and 10% were dismissed for other discretionary reasons or the complainant’s request. So under some encouragement, shall we say, from the local community in 2013, the Ottawa Police Service began examining unfounded cases more carefully and in that year, sexual assaults quoted as unfounded dropped by half while the unfounded, sorry, the founded not solved rate rose to 47%.

The percentage resulting in charges did not change. And The Globe and Mail story found that in 2014, that unfounded dropped to 12%, and according to the OPS, it’s now at 8%. And while accurate recording of data is critical to addressing this problem, without real change on the ground, that you know, we, it’s, statistics can be used to meet an objective and we don’t know without oversight whether there’s been any change on the ground.

The Ottawa Police, some years ago, started a very important initiative to improve their response to crimes of violence against women, and they started an advisory committee which is still continuing to this day, and I’ve been able to be a part of that committee and as part of our work, we conducted a small survey of women in Ottawa who had reported crimes of violence to the police, and 219 women came forward. And only 36% of them had reported a sexual assault, which is not surprising to me, given that it’s a very, very unreported crime, as we know.

So we collected some statistical and some qualitative data, and because the numbers are quite low for sexual, I focus more on the women’s voices and what the apprehensions and contradictions have been for them as they came forward to report sexual violence. So first of all, just an overview as a few statistics based on small numbers about how the women, about their impressions of the first officer and the investigator.

And we can see that the percentages are low who gave favourable ratings about being, feeling comfortable talking with the officer, being believed, feeling the officer was considerate of her feelings and opinions, and an overall good or satisfactory rating, and then we had a couple of extra questions about investigators, about explaining the process and answering questions. And we can see that it’s below 50%, or 50% or below for all of them, and it’s somewhat higher for investigators.

So let’s start with why do women report? We know about why they don’t report. We had some pretty good comprehensive information about that, about their fear of the justice system, about their shame and embarrassment and sometimes the fear of the offender. What happens to women when they actually do report? Well, most of them report to protect other women, or they want the guy held accountable and told that his actions are wrong. They want validation for what has happened to them.

So to illustrate mixed feelings, and mixed outcomes, this is a quotation from a university student assaulted by an acquaintance at age 18 who was, we asked him [sic] about were you, how did you feel about involving the police and this woman was, really wanted the police to be involved, and the first officer was non-judgemental and told her "it would be okay, it’s okay to feel scared and everything would be alright". He offered to call a support person, offered to get medical assistance and the woman didn’t push for charges to be laid, fearing her community would judge her, and that her attacker would "get her into, get into trouble".

However, the implication of her decision not to pursue a prosecution was that she fabricated the assault. And here is her narrative: "I was so afraid of my attacker would tell people how the entire ordeal would be painted to make me look like a liar, that I let this issue pass without pressing charges. Directly following the incident, his friends began Facebook inbox messaging me, telling me I was a liar and how could I accuse their innocent friend of such a heinous crime. I was young, frightened and felt trapped. I wish the police could have given me some tools to avoid this mental coercion."

She goes on to say "Looking back, I wish he had some consequences for what he did to me. I suffered major emotional and psychological trauma from the incident and he walked away as if it never happened. Furthermore, he turned around and tarnished my reputation among our mutual friends by telling everyone I had lied about the whole thing. He continued to frequent the residence I lived in for the next several months and continues to make me fear running into him. I wish the decision to charge him had been out of my hands so I wouldn’t have had to fear the judgement from my community, which is why I did not end up pressing charges because I do feel he deserved the charges."

And so she’s quite conflicted about do I report and do I put myself out there? And now, she’s seemed to be a liar. Now, in this report, or in this analysis, what we found is three major themes emerging. And the first one you’re not going to be surprised to learn was disbelief and skepticism. And so the initial response is really critical for establishing trust and helping the woman define assault as either a crime or something for which she’s responsible and for herself is either deserving of the protection of the law or is blameworthy.

And there are several examples where the police dismissed the women’s claim outright and judged her credibility on the basis of rape myths and a narrow definition of so-called real rape. So this woman describes her treatment by the officer who interviewed her as traumatizing. And a prior sexual assault in another city had resulted in a conviction. She was optimistic police would treat her fairly and with respect, but her faith in the police was shattered when he accused her of exaggerating, told her he used the word rape too liberally and a friend and a bystander called numerous times before police responded and they reluctantly interviewed the assailant and told her he interpreted my body language wrong and thought he was "laying the smooth moves".

And I’ve been given a two-minute warning. Uh-oh. (laughter)

Okay, so let me just, we know about disbelief and skepticism, and there are a number of examples there. The effects of trauma. We’re only just starting to understand and we’re going to hear quite a lot about the effects of trauma later on and what it does to the brain, and how cumulative traumas from, left over from childhood sexual abuse can really have an effect, and police have to respond to that and understand that a past complaint of sexual assault doesn’t then contribute to believe this woman is fabricating this time.

This is just a story about, a narrative from a woman who had flashbacks, had a very supportive police officer that was unable to actually proceed because of past trauma.

The third theme we found was procedural justice and, of course, disbelief and effects of trauma all converge on procedural justice, but there are some, some easy to fix and some not so easy to fix things that can be done to meet procedural justice, which is all feeling valued and respected and having some basic courtesies, such as demanding details of the assault at the front desk, being left alone with male officers, etc., no validation for the wrongfulness of the act.

Just to end then quickly on what’s a positive response, there, here’s an example of where procedural justice can really be important for helping women prepare for a trial. He got somebody to cover at the front desk for him, he took me and a friend I brought along to another room so there would be privacy. He got me Kleenex and water and listened and made notes, let me take the other sheet of paper home. I was referred to a detective. She continues to be absolutely amazing.

So this was a woman who was sexually assaulted by her father. There were seven charges laid. There was a conviction in five, so she had validation through the court process. When asked whether she would report similar crimes in the future, she said I don’t think. I was in court for three years, and it was traumatizing and I had to take time off work. And so the good reaction or response from the police can actually be outdone by a lengthy grueling court process.

And my time is up. Thank you.

(applause)

Moderator: Thank you very much, Holly. Next we have Jennifer Richard, talking a bit about the wonderful work that they’ve done and built up and supporting survivors.

Jennifer Richard: Hi there. So I am going to talk a little bit about our centre and our approach to sexual violence and then talk a little bit about training that we developed, trauma informed police training that we have piloted last year, and a little bit about our relationship with the police, which I suspect is probably fairly similar to a lot of sexual assault centres in our history relating to the police. So just a little snapshot of our, the Fredericton Sexual Assault Centre, which I will now only refer to as FSAC cause it’s a lot easier.

So Fredericton has the dubious distinction of being one of the top municipalities in terms of reported sexual assaults. We tend to fight for first place with St. John. And New Brunswick is also one of the – as The Globe and Mail article came out – is at the top also for unfounded cases. So New Brunswick is leading the pack once again. So Fredericton is kind of a little bit like a mini Ottawa. We have, it is a pretty diverse community. We have two universities, we have three indigenous communities that surround the municipality. We have a growing immigrant population and we also have, like most cities in New Brunswick, a Francophone and Anglophone population.

And the main employer in Fredericton is either the university or, or government. And so, again like the, like the article The Globe and Mail came out, there’s definitely some issues in New Brunswick. St. John is, is number for unfounded, unfounded cases. Fredericton was only 16%, which was great, but our charging rates in Fredericton are about 10%, which means 90% of the people who come forward to report sexual assault, nothing happens.

So that’s, there’s definitely some interesting – Holly, you should just come into New Brunswick and do a study, that would be fantastic. So the centre, we’ve been around for about 40 years, and like most sexual assault centres in the country, really was a grassroots movement as a response to violence against women. We are the only centre in New Brunswick. We do provide local services to Fredericton, but we provide a lot of other mentoring, supporting, resources to the whole province.

So things like community development, we do a lot of training throughout the province. We also work with the provincial government to, to help them develop policies and, and work with the different departments within government. We are a small centre. We have four full-time permanent staff. We have two temporary project staff, three part-time counsellors. Really important to know that probably, like some other centres, we don’t have any core funding. We are a make it work type of organization. We rely mostly on a lot of project funding. We do have an ongoing relationship with the province of New Brunswick, but it is, you know, in three-year snippets. And we also rely on United Way funding and, and of course, fundraising.

But for our direct services like individual counselling, our support line, there really isn’t any full funding for that, which is important to know because this issue is something that is coming out more and more, so the increase in our services has been massive and, and it is hard to actually meet those, meet those needs.

So in terms of our response, we are pretty well respected in the province. We have been there for 40 years. Our executive director has been in her position for about 30 years, so we’re, we have some really strong relationships. And so in, in 2012, we started to develop a sexual assault response team, which officially launched in 2015. It took a while to develop those relationships and actually get buy-in from the head people in all of the different agencies that we were working with.

So the team is made up of, obviously ourselves, the police – we have municipal and RCMP in the area – so with the Fredericton police force and the RCMP, victim services, the campuses, domestic violence outreach workers, and the sexual assault nurse examiners.

And so we meet every two months to talk about emerging issues to troubleshoot things that are happening, and talking about successes is actually really important, as well as challenges. And it’s a good way for us to bring some of the issues that we hear about through our counselling program at our support line up to the frontline workers and the agencies that are actually responding to those.

So last year, we started – or a couple of years ago actually – we received funding from Status of Women Canada to develop trauma informed police training, which was called Improving outcomes trauma informed sexual assault response training for police. So this was, this was an initiative with our Sexual Assault response team, as well as the Atlantic Network of Sexual Assault Centres who would help give us input with this as well.

So we worked with the Fredericton Police Force to develop those agenda topics, discuss best practices. And so the ultimate objective which I will read because it is lengthy, is to strengthen to capacity of law enforcement to provide trauma informed sexual violence specific, sexual violence specific is also important, and victim centred police response and investigation to adult sexual assault cases that reflect a deepened understanding of the impact of investigational practices on traumatized victims of sexual assault while maintaining balanced and objective police investigations within the context of the criminal justice system.

So just a little objective. We had one day to do it, so it was challenging. So we delivered the pilot to a group in the spring of 2016 to the Fredericton Police Force, so we had about, our initial group was small, about eight, about eight officers. So like I said, the training was delivered in one day. The agenda included things like myths and misconceptions, victims’ perspective in reporting sexual assault, understanding the neurobiology of trauma and trauma informed sexual assault police response, the initial response and victim interviewing and talking about things like rethinking resistance and what that looks like, not necessarily physical resistance, but what are the other things that indicate resistance?

And then report writing, which was actually a very interesting piece that we, we use a lot of information from the Avalon Centre in Halifax about how powerful that report writing and the words that you choose can really have consequences down the road. We did provide it again. We offered it to the province. The demand, the need, the excitement about this was, far exceeded our expectations. So that group, we had about 80 people.

It was mostly officers, but there was also people from victims services and other agencies in the province. We were really careful to take an approach that wasn’t critical but really about exchanging knowledge with the officers because as people from the Sexual Assault Centre, we weren’t going to go in and say you’re doing things wrong. This is how you should be doing it, because we knew that wasn’t going to go over very well. So we really tried to say this is what the best practices are. Maybe you could think about that.

So we did evaluate it, and of course, it was evaluated well. There were really good outcomes that we found from that . There were a couple of challenges I wanted to mention through this process. One day was nowhere near enough time to do this type of training. You need to build trust. The issue of false reports is still a very contentious issue. We, it was difficult to come to an agreement. We still have a lot of work with advocacy and with police to really have a good understanding of what the police realities are in terms of false reports, but also what are the real realities of false reports. (laughter) And actually being able to talk about this in a really safe way.

So we actually avoided, we just decided we have a day, we’re not going to talk about that cause we may get way off topic. The other thing that we met some resistance was bringing the idea of suspect focused investigations to their practice. Still a little uncomfortable with that. And it really is related to a culture of suspicion, I believe, that exists within not only policing, but within the whole criminal justice system.

So just to wrap up quickly about our relationship with the police, it hasn’t always been great, but I would say in the last 10 years, there’s been a huge shift of us working not only with the policing institution, but with even larger institutions in our province. There is a lot more visibility of sexual violence in the media, and so that really has contributed to people now coming to us and saying we want to work with you. We want to use your expertise.

We, we’re lucky right now to have a really excellent Chief in Fredericton, Leanne Fitch. She’s been really supportive of the work and of the training itself that we developed, and she has committed to furthering, obviously it was, it was a project so we don’t really have any money anymore, but she really wants to bring this training to all of her officers.

And so New Brunswick departments will be reviewing the cases through the Department of Justice and Public Safety and Chief Fitch has asked us to, to be part of that process, which is really fantastic, but that’s not the case in all other municipalities in New Brunswick. And our, our goal is really to develop a more strategic approach to improving police response. Looking at training but also looking at policies and procedures and practices. And like the Minister said, we are going to be developing a similar training for Crowns and judges that we’ll be doing over the next three years, which is really exciting.

And so we do recognize that there are many issues in the justice system, and it can sometimes be really difficult as a sexual assault centre to feel like we’re making any progress when we hear about some of the cases that we’ve heard recently in Halifax and Newfoundland, but it’s also that the increase in demand can also be daunting and overwhelming for these centres. But we have been here for 40 years, and I suspect we’ll be here for another 40.

So thank you.

(applause)

Moderator: Wonderful, thanks very much, Jen. That’s a really important perspective to bring to this conversation.

Next we have Chief Shawn Devine.

Shawn Devine: Good morning. So I’ve been asked as the, as the only Canadian police officer, I’m not sure if I’m the only Canadian peace officer in the room, but I’m the only Canadian police officer on the panel, so I’ve been asked if I would just give a brief overview of, of the circumstances if someone came forward to the police to, and how an investigation would be started.

So I do have to throw a caveat in. I’m from North Bay, not Thunder Bay. North is three hours west of Ottawa, we’re three hours north of Toronto, we’re not Thunder Bay. We’re a small community, we police about 53,000 people, plus we do a contract policing outside, so total population about 58,000 people. Urban community, people that come into our city brings our population that we deal with to about 68. We have 94 sworn members, about 25 special constables and about 25 to 30 civilian members. So we are a small organization.

So what I’m going to speak of here is how we do it. I certainly don’t speak for any other police service, but, and again, this is best case scenario and I even have to say this is best case scenario for North Bay, but I struggle with sometimes how it’s done in our organization.

So different paths towards reporting to the police. Many cases come in through 911 or victim initiated. We often attend disturbance calls where a sexual assault may have occurred, but may have been called in by a neighbour. We often are called to attend our local hospital where someone has attended and been encouraged by hospital staff to, to report to the police, and through other investigation which would include a historical investigation and which somebody has come forward and then the victim has been identified.

The first order of business should be the, the well-being of the victim, both physically and mentally. In my career, 29 years ago, oftentimes we were so busy and interested in getting disclosure that we often didn’t put into account the trauma that these victims have possibly gone through. So that is hopefully training. Changing, pardon me.

If medical treatment is required, then the, the victim should be taken to our local hospital. Following that, scene security would be the next order of business with regards to forensic examination. In our community, we are very fortunate to have a good working relationship with our local hospital and we have SAN nurses, so Sexual Assault Nurses, in which if a sexual assault kit is performed, it’s performed by a trained medical professional. Again, in 29 years, I remember going as a young officer with an ident officer and standing at an examining room as the nurse passed out pieces of evidence and we wrote on them, which again, when I look at it in retrospect, was probably a terrible experience for the victims.

So our work with the, with the SAN nurses, we also have a room at our local hospital. We call it a soft room. It really is just a room that provides a little bit of comfort for the victim so that they’re not sitting out in the, the main area of the hospital. It is equipped with a video statement, so while we are waiting for doctors or nurses that we can start to gather information at the, at the hospital.

The next step would be obtaining disclosure from the victim. And again, whether we do that at police headquarters, all of our statements are recorded with regards to sexual violence. Everything gets recorded on DVD. Once we obtain the statement or disclosure from the victim, victim safety should be the next step, ensuring that the victim leaves the police station or the hospital facility with the, with some form of, or belief that there is a safety plan.

I have to be honest, in often cases, we hand them a blue card, which offers sexual assault support through them calling a number. So I definitely think that is an area where we can, we can improve.

We would then move on to investigation of witnesses in order to gain either corroboration or other witnesses. Depending on the content of the disclosure, the case may focus first to the offender. So if the case or the disclosure that’s presented reaches a threshold that we believe that public safety is involved, that subject may be arrested before we go on with the investigation, but again, that has to be determined by the nature of the disclosure.

We move on to the investigation and looking at the suspect. The threshold for police across Canada, and again, every jurisdiction has its own versions and case law, but in Canada, or sorry, pardon me, in Ontario it is, police have to believe, have reasonable grounds that an offense has been committed. That is our threshold. The next move after it goes from the police is to the Crown’s office, where they have different benchmarks or tests that they have to perform, but for us, a police officer should simply believe that an offence has been taken.

Lots of conversations can float into that as how much discretion police officers should have. Sometimes that is extended with the experience of a police officer, but truly if there is reasonable grounds to believe that an offense has been committed, then the court, the matter can go forward to court.

Arrest, after arrest or if arrest is made in the situation, what we have to do is ensure that attendance at a court, ensure public safety and ensure that the attention is required to maintain public confidence. That’s, that’s actually now is a very high threshold that we have to, to meet. And if we do achieve that, then it goes to a bail hearing in which a bail hearing is held and a justice of the peace also has, attest that they will perform. And in often cases, all but the most serious cases, most offenders will be released on bail.

The, in our organization, we have about 60% of our 94 officers that are trained in sexual assault. All of our supervisors are trained in, on sexual assault and cases that come in after they’re investigated have to go through a, a check by supervisors. The, I will have to say that as far as, I just happened to have a look at the information with regards to the training that goes on with sexual assault, that nothing in that training identifies any investigation or any, the impact of trauma, which I think is something that we really have to look at, and I would be, I would be willing to approach the Ontario Association of Chiefs of Police in saying that the Ontario Police College, that that is a factor that should be incorporated into investigations.

I’ll just quickly go through where the North Bay Police Services in our response to what’s been going on. I’d have to say that we very much like our partners to the east of us. In June of 2016, North Bay was identified through Maclean’s magazine article as the fifth most likely place in Canada to be sexually assaulted. That was based on some figures from 2014.

At that point, I, myself and my deputy, decided that we needed to do something. We weren’t going to sit and argue figures. We decided to take action. I have had the pleasure and privilege of sitting on our local sexual assault committee, which is called the Amelia Rising Centre. And through my experience with that and the great people that work there, we started looking at the Philadelphia model probably last June. We are not actively right now doing the Philadelphia model, but we are definitely researching and are sitting at the table with Brenda Quenneville from our sexual assault centre and with our local Crown attorney to, to make changes.

I truly believe that if we intend to gain trust with the people that we serve, that we have to be transparent in our actions. I would rather be at the table and struggle over making some of these changes with our partners than, than arguing about them. So I think there’s real hope with what our friends have done in Philadelphia and I will be encouraging with my other partners at the Ontario Associations of Chiefs of Police to not focus so much on these numbers as far as wat we’re saying we’re classifying things. I think we need to do an over, a better overall job and that is also working with education, with assistance groups and with the courts to make, to make it a better system.

(applause)

Moderator: Thank you very much, and apologies for the Thunder Bay reference. (laughter) I need to get up north so that it’ll sink into my head, the names, name differences.

Next we have Terry Fromson.

Terry Fromson: Good morning. I appreciate the opportunity to be here with you today and to learn from you. I already have learned quit a bit this morning that I think will be helpful for us in Philadelphia, United States. I have been reading the press that you’ve also faced recently about the high unfounded rates and I can relate very well to the shock of the news. It’s not dissimilar to what happened in Philadelphia in 1999 when we all woke up one morning to the Philadelphia Inquirer telling us that the Philadelphia Police Department had placed one third of the rape complaints in a non-criminal code. They called it 2701 investigation of person. And these were all cases that received very little attention from the police department. They were barely investigated and there was no follow-through with the victims.

We were shocked. We thought we were doing it right in Philadelphia. The Woman’s Law project was not working directly with the police at that point, but we were aware of the reforms that had been made that we had a, one of the first rape crisis centres in the nation, that we had dedicated units in both our police department and our prosecutors office that were focused on sexual violence, that Pennsylvania had done a really good job reforming our state rape laws. The, they removed all of those burdens that are used to test women’s veracity historically in rape law.

And yet, suddenly, we’re informed that for decades, cases had either been put in this investigation a person category, essentially been most to the system because there were at times during those decades very high unfounded rates in Philadelphia. So as we delved into the situation, we of course learned that bias was clearly one of the issues. You know, this was 1999. Trauma informed investigation were not discussed. Police were trained to interrogate and there was a lot of prejudging of victims as not worthy of belief, as well as pressure as police departments have to improve their statistics and their clearance rate. Supervision could have been improved.

We also came to a realization that the FBI’s uniform crime reporting definition of rape was likely influencing and narrowing the police perspective on what real rape was. That definition dated back to 1929. It was carnal knowledge of females forcibly and against their will. So it was leaving out all of the conduct that we viewed as rape. It excluded oral, anal, object penetration, it excluded male victims, it excluded anything but forceful penetration. So as we talked to the police, we realized that we were just talking about different things that this had to be influencing what was going on there.

We also, as the longer we worked with the police, realized how difficult this job was. You know, the conditions, the lack of resources, working with women who had experienced sexual violence has to have an effect on you. And so we began to realize that likely vicarious trauma was going on and that this was a desensitizing problem for the police.

Our initial response was to meet with the Philadelphia Police Department Commissioner and make a few demands. We demanded, first of all, that he reinvestigate all of the cases that had been put into this non-crime code for the statute of limitations at that point, which was five years. We asked our city council to hold hearings, which they did, and we testified and the brought the department back repeatedly over the next maybe year, year and a half to update what was going on.

We ourselves received calls from victims and tried to intervene and the news coverage continued. And I have to give credit to reporters because we would not know about these problems if it weren’t for investigative reporters. It wasn’t just Philadelphia, it’s not just Canada. Once the Philadelphia story came out, we were getting calls from reporters all over the country and you know, really understood that for us, it was a national problem. Obviously, it’s more than a national problem.

Reforms followed. The Commissioner reorganized the Sex Crimes Unit, he brought in more detectives, he improved supervision, case determinations had to be reviewed by a supervisor and approved. He eliminated this investigation code. He did reinvestigate these cases, and to his surprise, of over 3,000 complaints that were reviewed – and this was an internal audit, I just want to distinguish as an external audit and this was internal – he had brought in 45 detectives to review these cases. Of the 3,000 or so, they determined that 681 should have been felony rapes, that over 1,000 should have been other sex crimes and another about 300 should have been other crimes. And they did what they could to reinvestigate those complaints.

And it was at that point that the Police Commissioner turned to us, the Women’s Law Project and said we want the women’s groups to come in here and look at these files. We’ve lost the public’s confidence. We need someone else to come in here. So that was the beginning of the audit, and before I get into the details or go through the nitty-gritty, I just want to make a couple of points. Leadership is really important to make this an effective process. I mean, we were fortunate that our Commissioner came up with this and extended the invitation. It doesn’t have to arise out of the leadership of the police department, but the leadership needs to be on board. It needs to really lead the department in engaging in a process like this.

In addition, the process is completely confidential. We go in there agreeing that we are not taking anything out. we take no notes out with us. We don’t talk to anyone. Nothing is divulged. This is an internal process between advocacy groups and the police department to work together to improve the system. And it has facilitated what has become a trusting relationship between us. We don’t go in saying we’re going to get you, you know. This is not a gotcha. We’re not going to find ah, you did this wrong. It’s not adversarial. It can be uncomfortable, especially in those couple of first years. We’ve been doing this since 2000 and we are going into our 17th year this spring.

And we don’t approach it as if, you know, everyone’s doing a bad job. We know there are really good investigators and police personnel who are doing a really good job. So having said that, each year, we go in, hopefully in the spring and there’s four groups. There’s the Women’s Law Project, there’s our Rape Crisis Centre and there two organizations that focus on child victims that are involved. We review about 400 cases from the previous year. We schedule about four days to come in hopefully sequentially. The police department collects the files in advance, boxes them up for us.

It includes all unfounded files, and random sampling of other files so we can see the full range of the cases. We can’t do the 6,000 cases that come into that unit every year. They give us a conference room. I bring the uniform crime reporting rules, I bring the Philadelphia classification system, I bring the sex crimes laws and we gather around the table and we start going through the files.

We mark up little post-its which have grown bigger now that they make bigger post-its these days, with any questions, comments, concerns that we have about any particular files. And then we put them aside and after we complete all of the files, we meet with the Captain of the unit and the supervisors for each shift and we just go through all of those files. And we find problems, we always find problems. We always have questions. You know, it’s gotten better, it’s not perfect and it’s important for our eyes to be on it and to have these conversations every year.

We look at a couple of major issues. Was the investigation thorough? It’s clear to us that thoroughness was not happening and so we examine the files very clearly, were all the witnesses interviewed? Was all the evidence collected? Was it processed? Did the results come back and did someone look at them before they made a decision on a file? Was there bias? Were there victim-blaming questions asked of the victim? Did the investigator’s comments reflect more of a concern for the accused than for the victim? Did they express doubt in the victim’s voracity? Was she accused of lying? Did they use open-ended questions or did they use interrogation techniques?

If there was a recantation, was it coerced by the accused? Was it due to some treatment by the officers? We still care very much about classification because classification led to non-investigation. So we look at all those decisions. Was what it called when it came in? What did it change through the investigation? Was there an arrest? If it was unfounded, were all the criteria for unfounding met? If it was exceptionally cleared, were all those criteria met?

And then, and then, we ha-, you know, we have our feedback session. We have conversations. We raise our questions. Sometimes, there are answers. Sometimes, it’s really just a question that can be answered. Sometimes, you know, we want more done. We don’t understand why it wasn’t done. We debate these things. You know, sometimes there’s agreement on the other side, sometimes there’s not. At the end of the day, you know, we don’t have any control what happens after we walk out the door and we have to assume, you know, good faith on both sides here that something will be done.

We know that they leave the room with files, with our notes on them, and you know, that there will be some further conduct, either talking to the investigator, addressing coding issues, further investigations. There have been cases that have been unfounded and reopened and reinvestigated. We do this on an annual basis and we really think that this is an important thing to do.

We get to look at a lot of files at once. We get to discern trends, maybe trends in what particular investigators are doing or trends, you know, unit-wide. We can find patterns of bias and inappropriate police behaviour and we can see improvement. So it’s, it’s been a really productive program, and we really appreciate that successive Commissioners in Philadelphia and Captains of the Special Victims Unit have welcomed our continuing to do the audit.

You know, it’s not written in stone, although we’d like it to be. And so it’s, it’s been a productive, effective tool in reducing bias. Thank you.

(applause)

Moderator: Thank you very much, Terry. And last member on the panel, certainly not least, is Lieutenant Thomas McDevitt.

Lt Thomas McDevitt: Good morning everyone. As Terry said, we were under intense scrutiny by the newspaper. Even had the reporters knocking on my door and my children asking me what the reporters wanted, wanted at the house. It all started cause of years ago, before I was there, our unfounded rate was extremely high. I think they reported at some point around 43%.

To counteract that, they started using a code which was called 2701, which was an investigation of person. And I’ll give you briefly what that was, what we were trained on that was. You know, someone would come in and they gave an account of what happened and the investigator had some additional questions, and either attempted to get a hold of the victim or they noted they attempted to get a hold of the victim, and they couldn’t.

Rather than make that an unfounded classification, they left it in investigation. Unfortunately, pretty much nothing else ever happened to it. I think I see on your thing Canada had about 2,000 sexual assaults. Well, we handle 6,000 cases a year in Philadelphia. About 3,000 are sexual assaults, the other 3,000 in our unit’s child abuse. We had a lot of reasons why we think we did what we did. None of them were acceptable.

What I can tell you was that when we were told that, you know, women’s groups are going to come in and review our files, we were come on in. We’re good. We think we’re one of the best in the country. We’re doing exactly as we’ve been taught to do. Unfortunately, when we started to go back and review things, we realized that for a lot of reasons, we became lackadaisical. We didn’t really go back and make sure that the victim was contacted again, how often did we try, did we send letters? We didn’t do everything we could have done to re-contact the victim and those cases stayed open.

There’s times that I remember me and the other Lieutenant that was in charge with going back and doing all these cases said how did we get this bad? And my name was on some of them folders. And like, how did we get this bad? How did we let these things go? I think at that point, we realized that, you know, we needed to change.

Someone said yesterday if you don’t look at yourself and see what you’re doing wrong, or what you’re doing right, you’re never going to get any better. And that’s kind of where we was, we were at that point. And then when they came in, we realized that, you know, everything that we had been taught as police officers and probably even as people, I remember my first case, I went to the hospital and the victim was outside. She had called friends to the hospital and she was outside laughing and joking with her friends. And in my experience growing up was that’s not the way someone reacts. I mean, that’s, she’s supposed to be crying and upset.

Well, it was a founded, it was a founded rape. We arrested someone. What I didn’t know was that she had previously been assaulted at college and no arrest had been made and that was her way of coping with it. So there’s different things you learn as you do these things. But the different things that we learned with the investigations were, you know, we didn’t know the name, the neurobiology of trauma, but we’ve always kind of seen there was inconsistencies with what someone said.

Unfortunately for our victims at the time is when police work, you’re taught inconsistencies means someone’s not telling the truth. And that’s how you base your investigations. Well, she was inconsistent in this statement, she was inconsistent in that statement. As time went on, and we’re learning now, as it’s coming out is you have to expect that in these types of investigations. You have to expect those inconsistencies.

And, and we learned that. We also learned the questions that we asked and the type of questions that we asked. For instance, if you said to someone did you scream? Well, she knows everyone in the world’s going to expect her to scream, so she’s going to say yeah, I screamed because she expects that’s what you’re expecting as an answer. That was almost an accusatory question. It was almost well, if you didn’t scream, this probably didn’t happen. So we learned those type of questions. We learned the why questions, you know, why did you stay in the bar? Why did you go with him?

We stopped asking those type of questions. We also stopped asking do you want to prosecute? We just thought that everybody should ask cause if you don’t want to prosecute, we’re not going to go any further. Not realizing that that question automatically puts the victim back on her heels, saying why would you ask me that? I mean, I came in here didn’t I? Why, is there something wrong? Like, you don’t believe me?

So, so we learned a lot of things on how to do a proper investigation. I know Terry just said she’s not sure if, what we did with our files, but I can tell you that over the years, I’m sure she’s seen an improvement in our investigations and what we did.

The biggest thing that we learned is that, you know, you have to really do every investigation. You have to take it from the beginning to the end, no matter what it is. If you do a complete investigation, gather all the evidence, right from the very beginning. You don’t wait later, you want to wait for evidence before you follow through. You have to do that complete investigation. If you do that, no one ever can accuse you of doing anything wrong with your investigation.

And, and you gave the victim all the dignity and investigation that they deserved, but you also make sure that you’re not really – and the other thing that’s sensitive and eases, you got to make sure you’re not accusing someone of doing something that they didn’t do, and being accused of that for the rest of life. So when they talk about sexual assault investigations, it’s very, very, the most difficult investigation you’re going to have.

You have a homicide, everybody’s going to tell you somebody got killed. They’re going to say he died. You can have all the evidence in the world in these cases, and it doesn’t really say that something happened. So you need to put your best investigators there. Unfortunately, I’ll give you a quick history of Philadelphia. We were, we did have one of the first Sexual Assault Units. They put us in an abandoned school that the school district didn’t want anymore. We didn’t have any heat for two years. We had kerosene heaters.

Then they put us in an old stable that had been abandoned by the mounted unit. We were there for several years. Then they put us into an old abandoned army arsenal. For us, it was the best place we’d ever been. We had carpet and air conditioning. (laughter) We shared the same bathroom with the defendants, the complainants and the police officers. And eventually, with the help of our advocates, we got the best facility in the police department.

The investigators were then treated like they were handling the hardest crime in the police department, which had never happened to us before. The only way for this to work, if anyone’s thinking of doing it, is, I mean, when they came in, they really told us look, we’re not here, we’re not here to say gotcha, we’re here just to work with you, become your partner and make this better for everyone. And that includes having the district attorney’s office on board.

The investigator needs to know that all the hard work they’re doing, the prosecutor’s going to follow through with it. And the victims also need to know that if they’re coming in, a prosecutor’s going to follow through with it. Luckily for us in Philadelphia, we had all that. And I heard earlier when you talked about training, I’m a big advocate on training, but you need to have Chiefs to come, as the Chief is here, cause it has to come from the to down.

And their top command also has to come to these type of trainings cause what you’ll hear sometimes is why am I going to spend this money? You know, it’s an acquaintance rape. The complainant ain’t going to follow through anyway. I can devote this money somewhere else. Well, they have to realize that this is just as important as anything else they’re doing.  

And then the other big thing is training is the first responder. As you said earlier, probably one of the most important people in the investigation is the first responder. They’re the first person that the victim’s going to come in contact with and probably more influential than anyone else whether the victim follows through with the investigation or not.

And then, the investigator has to learn to have empathy for the victim in the type of questions they answer, they’re asked. All these things combined give you, give you a better investigation and we did start doing better investigations in Philadelphia. Things do have to improve. One of the biggest things is making the public aware of what goes on on a sexual assault investigation and how the victim is traumatized, whether it’s an acquaintance rape or a stranger rape.

I think that, you know, we did a great job over the years with domestic violence, and most people understand that, you know, an offender, a victim’s going to go back to the offender for various reasons. People don’t understand that in sexual assault. People don’t understand that, you know, people are trusting and they put themselves in positions because they trust people. And then someone takes advantage of that trust and assaults them. The public don’t understand that. Until we get the public to understand that, people are not going to report and you’re going to get non-convictions in court.

To me that’s the biggest hurdle that we have to conquer cause it’s still the only crime that we blame the victim. When the victim comes in, it’s, the victim already know you’re blaming them, and it’s still the only crime we blame the victim. We have to change that around to, you know, what did the offender do, not what the victim did.

And that’ll be it for me.

This panel discussed the sexual assault reporting rates to police, barriers to reporting, available supports for survivors and promising practices related to reporting and police investigations.

Holly Johnson
Professor, Department of Criminology, University of Ottawa

Jennifer Richard
Director of Community Development, Fredericton Sexual Assault Centre

Shawn Devine
Chief, North Bay Police Service

Terry L. Fromson
Managing Attorney, Women’s Law Project, Philadelphia

Thomas McDevitt
Lieutenant, Special Victims Unit, Philadelphia Police Service (Retired)

Panel 3a

Sexual Assault Trial: Substantive Law and Procedure

Transcript - Sexual Assault Trial: Substantive Law and Procedure

Moderator: Okay. So I’ll just introduce the panels that we have for this – this panel. We have Janine Benedet, Associate Dean of Academic Affairs at the Peter A. Allard School of Law at the University of British Columbia. And this is in the order we’ll start our presentations. Maître Carmen Rioux, procureur de la Couronne du Québec. Et aussi Genevieve McInnes, Defence Counsel here in Ottawa. And, Kathleen Dufour, travailleuse sociale et directrice générale de les Centres d'aide aux victimes d'actes criminels, les CAVACs de l’Outaouais. And the Honourable Marie – Justice Marie Corbett, QC, a retired judge of the Ontario Superior Court.

I am just going to start by asking each of the panellists a question, and then we’ll have some – some dialogue. So I’ll start with you, Professor Benedet. You’ve researched, taught and written extensively on criminal law of sexual offences. Could you provide a brief overview of the salient aspects of the legal definition of consent and the available defences? And could you also please identify some of the most significant academic critiques of the current sexual assault law?

Janine Benedet: Well, thank you very much. And I’ve been told I have seven minutes to explain the law of consent to you and then critique it, so I’m going to do my very best to cover what I need to in that time.

So as you already heard earlier this morning, the Criminal Code does contain a definition of consent for the purposes of sexual assault, and it defines consent as “voluntary agreement to engage in sexual activity.” The Code does not define non-consent, which is actually what the Crown has to prove as part of the actus reus of the offence, but the case law and in particular the Supreme Court of Canada’s decision in Ewanchuk tells us that non-consent is a subjective state of mind. It’s – it’s the subjective state of mind of the complainant not wanting the sexual activity in her own mind to take place.

The Code also reminds us that no consent is obtained where the complainant is incapable of consenting to the sexual activity, and that includes incapacity on the grounds of intoxication or on the grounds of disability. And we’re told, among other factors that vitiate consent, that there is no consent where the accused induces the complainant to engage in the sexual activity by abusing a position of trust or authority.

And I mention those two latter vitiating conditions specifically because they’re ones in the Code that I think are underdeveloped and where the threshold is so high that they’re often not useful in the situations where they ought to apply, and I’ll come back to that in a moment.

Now we also know that even in circumstances where the Crown is able to prove non-consent beyond a reasonable doubt, that may be not be the end of the matter because it’s open to the accused to raise a defence of mistake of fact, of honest belief in consent, but for this to succeed, and in particular for the defence to have an air of reality, legally it’s not enough for the accused to say, “Well, I thought she wanted it.” The accused has to be able to say that he thought that the complainant had affirmatively communicated that state of mind, that she had affirmatively communicated a yes, and so that’s often when we describe our consent model in Canada as an affirmative consent standard. It’s reflected there. It’s not enough to say “I thought she wanted it, I thought she was into it,” but you have to point to something that shows that a yes was actually communicated to you.

And in addition, as we know, in order for the defence of mistake of fact to be made out, there must be evidence that the accused took reasonable steps to ascertain the presence of consent, and those steps ought to vary depending on the circumstances and may be higher in circumstances where the complainant is, for example, intoxicated or has an intellectual disability.

So that’s a very brief overview of the legal definition of consent and the defence of mistaken belief in consent.

So let me take a few minutes just to reflect a bit on those definitions and some of the challenges and criticisms of those standards.

I guess what I would say first is that any consent-based standard, no matter how progressive, places most of the attention and scrutiny on the words and actions of the complainant, the woman who is alleging she has been sexually assaulted. The Supreme Court of Canada in Ewanchuk said that the credibility of women’s claims of non-consent could be evaluated in light of their actions and their behaviour.

So yes, it’s her subjective state of mind, but of course it’s the responsibility of the court to determine whether her claims about her state of mind are valid, and we can do that by judging those claims against what she said and what she did at the time. And so if that is done in a way that is rooted in stereotypes about women, in myths about sexual assault, in mistaken assumptions about how a normal woman would behave or should behave when she has been sexually assaulted, then we have problems.

And so really, the issue is not so much the law on the books, but what the law on the books still allows judges and juries to do. And if we evaluate the credibility of women’s claims of non-consent by measuring their actions and behaviours according to standards that are sexist, that are rooted in myths and stereotypes, the practical result will be that we will revive the corroboration requirement that has been expressly abolished by statute, and it will be impossible to convict without some kind of external corroboration, and even sometimes that will not be sufficient. We will revive the resistence requirement, which has, again, been abolished through revisions to the consent standard. It is not legally required that women physically resist and it’s not even legally required that women verbally resist because passivity is not to be equated with consent. And we will create an impossible situation for women who are intoxicated, who will never be able to – to meet the standards that we place on them.

So what will it take to address this? Well, let me just end by saying that we need to take a step back and recognize that claims of consent in sexual assault cases, which are seen as just a routine part of a sexual assault trial are actually themselves really quite exceptional claims.

When an accused argues that the complainant consented, he is saying that the complainant had consensual sexual activity and then turned around and cried rape to the police and everyone else and is now lying under oath in court. That’s what it means to argue consent. And we treat this claim as routine, but in fact it called very deeply on a sexist rape myth that false complaints are commonplace and put men at risk of wrongful conviction, despite the fact that the evidence does not bear that out at all. And we created a whole system of legal rules and definitions that were based on that myth. We might have dismantled them formally, but the attitudes remain.

And so what I would like is for the claim of consent to be viewed as exceptional. Yes, it’s open to the accused to argue that in this particular case the myth is in fact reality and this woman did bring a false complaint of sexual assault and is lying under oath, but that claim needs to be viewed by the criminal justice system with scepticism, right, as something that doesn’t happen all the time and deserves to be treated as such.

Instead, what I think we see, unfortunately, is increasingly the attitude that cases that are often described as “He-said, she-said” cases, that it’s he said plus she said equals acquittal. And that’s true even in cases that are just she said where the accused doesn’t testify. I see that term used as a label that seems to be applied to almost every kind of acquaintance, sexual assault between adults, even when there is corroboration, even when there are other witnesses, even when the accused doesn’t testify. That’s a failure of belief in women and in women’s claims about their own state of mind and their own unwillingness to engage in sexual activity.

So I guess what I want to say to start this discussion is that, you know, our focus on non-consent in the sexual assault trial in and of itself is rooted in those very same myths and assumptions that we’ve tried formally to dismantle, and so we need to approach it with that in mind.

So I’ll stop there. (Applause.)

Moderator: Thank you. Thank you very much. That’s – that’s very helpful and very concise. Maître Roux – Rioux, vous avez 28 ans d’expérience comme procureur de la Couronne et selon vous, quels sont les plus grands défis pour la Couronne lors des cas d’agression sexuelle contre les adultes? Et de quelle façon ces défis sont-elles comparables ou non aux poursuites d’autres infractions contre la personne — par exemple, une querelle de barre?

Carmen Rioux: Je vais m’exprimer en français et je vais tenter de parler suffisamment lentement pour qu’on puisse traduire. Habituellement, quand la passion embarque, je parle plus vite. Je vais tenter de rester plutôt – plutôt sage.

La question qui m’est posée pourrait être répondue de façon très près des livres, très intellectuelle, dans l’approche classique d’une avocate qui va rencontrer des témoins. Mais au fil du temps, un peu comme un patient va à l’hôpital et constate que les médecins sont les personnes qui sont importantes dans l’hôpital, les spécialistes encore plus, ils ont moins de temps, et c’est toujours le patient qui essaie de rentrer dans l’horaire de ces médecins. À la longue, je me suis fait la réflexion que mais comme eux on est au service des gens qu’on rencontre, et c’est cette approche-là qui est celle qui nous éloigne le plus des difficultés qu’on peut avoir à rencontre notre fardeau de preuve comme procureur de la Couronne en matière d’agression sexuelle.

Je m’explique. La victime est le témoin principal — vous aurez compris que ça va de soi. Et cette personne-là est celle qui fera la différence dans le dossier. C’est pas un témoin professionnel. C’est pas comme un policier qui va être amené à témoigner relativement en un trafic de stupéfiant, par exemple. Alors le temps qu’on investira à la rencontrer, à la mieux connaître fera en sorte qu’on aura de meilleures chances de faire condamner l’abuseur.

Alors l’approche qu’il faut avoir, et c’est facilitant au Québec où je pratique puisque dans le cas de directives qu’on a en matière d’agression sexuelle, le procureur de la Couronne qui s’apprête à autoriser ou non la poursuite contre l’abuseur doit rencontre la victime avant de porter la plainte.

Alors dans ce contexte, il nous est permis au Québec, avant même que les procédures soient engagées, de rencontrer cette personne-là et d’apprécier qui elle est, ce qu’elle a vécu. Et après avoir évidemment pris connaissance de toute la preuve qui a été amassée par les enquêteurs, on s’est déjà fait une tête, je dirais là, sur le crime, la personne qui l’a commis, la personne qui l’a subi, le reste de la preuve. Mais je dirais que c’est le moment principal à investir pour voir qui est cette personne-là et lui témoigner qu’on la croit.

C’est pas une rencontre qui est thérapeutique, la rencontre entre le procureur de la Couronne et la victime, mais il faut l’avoir fait pour se rendre compte à quel point quand on regarde cette personne-là et qu’on lui dit qu’on croit ce qu’elle a raconté, c’est toute la différence du monde. Il y a une communication qui s’installe, une confiance qui s’installe et qui à mon avis est nécessaire pour que le système de justice soit inspirant parce qu’on est un peu la porte d’entrée de ces personnes-là. On est les premières personnes qu’elles vont rencontrer associées au système de justice et non pas au système de police qui nous a précédés. Et si par notre attitude on manque de respect, on manque d’écoute, il y a fort apparié que ce témoin-là pourra pas donner son meilleur en salle de cour.

Cette introduction-là étant faite, j’entendais celle qui m’a précédée parler des mythes et des préjugés. Alors je veux simplement rapidement lire un extrait de la décision Ewanchuk dont parlait ma collègue. Et c’est une des dernières phrases de ce jugement qui date déjà de 1999 et qui dit: “De tels stéréotypes,” dont on a parlé tout à l’heure, “sont bien enracinés dans bon nombre de cultures, y compris les nôtres. Ils n’ont cependant plus leur place en droit canadien.”

Or mauvaise nouvelle: en 2017, ça existe encore, et il est du devoir des procureurs de la Couronne, lorsqu’elles rencontrent les victimes, de les préparer quand elles vont témoigner du fait que ça existe, qu’il est possible que, pour comprendre l’histoire qu’elles aient vécue, on ait à aborder des questions qui en droit sont dépassées, comme “Qu’est-ce qui fait que t’as pas porter plainte tout de suite?” Il faut les préparer. Possiblement que cette question-là pourra être posée par l’avocat qui défend l’agresseur. Et si le témoin n’est pas préparé à y répondre, ça sera une question qui — est-ce qu’on m’entend encore? — qui surprendra, qui provoquera une malaise et qui, malheureusement, mènera le focus ailleurs que sur l’histoire qu’elle a vécue et qu’elle vient rapporter avec toutes ses – ses forces, mais bien maigres dans un système qui est adversorial.

Alors il est du devoir du procureur de la Couronne de la préparer aussi à se – non seulement à témoigner sur ce qu’elle a vécu et de lui rappeler qu’on est convaincu qu’elle l’a fait, mais il revient à nous de faire en sorte que ce témoin-là soit magnifié dans la salle de cour et tout ce qui pourrait être pour elle quelque chose de difficile à vivre, qu’elle soit, avant d’être entendue, bien avant d’être entendue, pas le jour où elle a à témoigner, mais avant, donc eu la possibilité d’être prévenue que, malheureusement, il est possible que pour comprendre ce qu’elle a vécu et ce qu’on n’a pas vécu, il est possible qu’elle ait à expliquer des choses qui, à première vue, même pour nous pouvaient être difficiles à comprendre, mais lorsqu’on démontre un peu d’ouverture d’esprit et qu’on s’informe sur comment les personnes traumatisées peuvent ultérieurement raconter ce qu’elles ont vécu, mais qu’on lui donne toutes ces chances-là et qu’elle puisse ultimement inspirer dans le décideur qui est le juge ou les jurys toute la confiance qui est nécessaire à condamner avec un fardeau très, très lourd qui est hors de tout doute raisonnable.

Modératrice: Merci beaucoup.

(Applaudissements.)

Modératrice: Je voulais juste noter qu’au Québec on a le procureur qui révise les charges.

Carmen Rioux: Oui. The pre-screening.

Moderator: So it’s the pre-charge (ph) screening in Quebec, so that’s not the same policy everywhere. So it’s an interesting perspective. Ms. McInnes, based on your over a decade’s work of representing individuals charged with sexual assault, related offences, what in your view are the greatest challenges for defence counsel in these cases? And similar to the question I posed to your colleague, how do these challenges compare to representing clients in other matters such as assault?

Genevieve McInnes:     Okay, so (inaudible, off microphone) unpopular perspective, that of the accused in sexual assault proceedings. I’d just like to start out by making a few points with respect to the role of defence counsel and particularly female defence counsel in representing individuals charged with sexual assault. I think this has come to a head, particularly following the Ghomeshi trial; there was a lot of media about that.

I’d just like to emphasize a few points about the role defence counsel plays in the justice system.

So first of all, we all know we have an adversarial system of justice, and what that means is that the truth-seeking function of our courts can’t occur unless all parties have competent representation and equal access to litigation resources. So our system assumes that the defending party will test the evidence and bring alternate facts to light, and this is what guards against the risk of wrongful conviction.

Second of all, the lawyer for the accused is constitutionally and professionally obliged, within the bounds of ethics and legality, to pursue any and all avenues of potential defence, however difficult these defences may be.

One of the most controversial aspects of sexual assault trials—and this is highlighted in the media surrounding the acquittal of Mr. Ghomeshi, of course—was the challenging of the complainant through the cross examination. It’s important to recognize that failure to submit a complainant to a thorough cross examination could easily result in a successful appeal, so our Appellate Courts, just as they enforce the statutory and common law limits placed on the cross examination of a complainant, similarly they recognize that failure to cross-examine a complainant may necessitate a new trial. So I’d just like to place that in context in light of recent media surrounding the role of defence counsel.

In terms of what I find is unique about acting for clients charged with sexual assault, what stands out for me is how difficult it is to resolve sexual assault charges, and by resolve I mean how difficult it is to have my client—I’m not suggesting I would advise of in a particular way—but guilty pleas are more rare in sexual assault cases than in other cases in my experience. And I’d be interested to hear from Madame Aucoin about whether there’s any particular statistics on this, but as I understand it, most convictions are obtained as a result of a plea of guilt. We know that the conviction rate for sexual assaults are much lower generally speaking. I’d be interested to know how much lower the rates are for a plea of guilt to a sexual assault.

Anecdotally, in terms of my experience, it’s much, much lower as opposed to other offences that my client may be facing. And this is one of the factors that I believe should be looked at from a policy perspective is why are sexual assault charges not resolving at the same rate as other offences?

And I can tell you that from the perspective of the accused person, the main reason these charges are not resolving, meaning that accused individuals who are even theoretically willing to accept their guilt and not pleading guilty is that the consequences of a plea are so staggering. The stigma of a sexual assault conviction is extremely high, both in and out of custody, and getting placed on a sex offender registry is – for either 10 years or life is an incredible deterrent.

So one of the suggestions I would make that anecdotally my clients indicate they’d be willing to seek would be a kind of diversion or willingness of the Crown to have them plead to an assault simpliciter in return for demonstrated therapy rehabilitation, and I think that could address some of the issues surrounding subjecting complainants to the trial process, having an accused potentially acquitted, whether guilty or not, and not availing himself of rehabilitative options that may have otherwise been available.

Moderator: Thank you. That was very helpful.

(Applause.)

Moderator: Mme Dufour.

Kathleen Dufour: Oui.

Modératrice: En fonction de vos 10 ans d’expérience au service auprès des victimes d’actes criminels, selon vous c’est quoi les – quels sont les plus grands obstacles pour les victimes face au procès devant les cours et de même quels sont leur plus – selon leurs histoires à vous, quels sont les plus grands défis pour elle?

Kathleen Dufour: Okay. Alors j’y vais aussi en français. Je vais tenter aussi de parler très lentement. Donc écoutez, je n’ai que cinq minutes pour tenter de vous parler de l’ensemble des grands défis donc des personnes victimes à traverser le processus devant la cour – la cour criminelle.

Évidemment, donc nous, on constate comment le procès est une étape charnière pour une personne victime. Imaginez donc on demande à une victime d’aller raconter un événement, un événement avec violence, un événement très, très intime dans un environnement qu’elle ne connaît pas, donc en présence d’acteurs aussi qui sont là pour lui poser des questions, des questions parfois très, très, très difficiles. Et donc pour elle c’est une étape qui est extrêmement importante, qui est extrêmement difficile, mais il y a tout de même des conditions qui peuvent être mis en place pour faire en sorte que son expérience soit plus facile.

Évidemment, je répète ce qu’on nomme depuis – depuis ce matin, comment la présence encore des mythes et préjugés alimente des perceptions erronées en regard des personnes victimes. Donc ces mythes et préjugés-là vont faire en sorte que nous, ce qu’on observe c’est encore en 2017 une différence de traitement, et je vais le nommer comme ça entre ce qu’on appelle des vraies victimes et des victimes qui ont peut-être une vie un petit peu plus difficile.

Quand je nomme les vraies victimes, on parle donc d’une infraction sexuelle, par exemple, commise par une personne étrangère avec violence. Donc à ce moment-là, nous, on observe encore une différence de l’attention et du soutient qui va lui être offert soit pas les policiers ou par des procureurs, que par exemple, une femme qui est prostitué depuis plusieurs années qui vit une agression sexuelle ou des agressions sexuelles très graves. Évidemment que son mode de vie à ce moment-là sera questionné. Et donc pour elle, c’est évidemment un obstacle qui s’ajoute au fait que dénoncer c’est extrêmement difficile.

Écoutez, c’est sûr que ce qu’on observe aussi pour nous, l’importance que les juristes continuent à être formés quant aux réactions psychologiques, donc qui peuvent être présentes suite au trauma, que ces réactions-la peuvent évidemment influencer la qualité du témoignage donc qui peut être fait.

Mon dieu, une minute. Évidemment, je pense que vous êtes tous au courant la Charte canadienne des droits des victimes inclut donc qu’on porte différents – différents droits que les victimes donc ont. Le droit à l’information. On a nommé et le vidéo aussi le mentionne, on a nommé l’importance pour les victimes d’être informées tout au long du processus. Une information juste et adaptée tout au long du processus va faire en sorte qu’une victime aura des attentes plus réalistes par rapport au système. C’est fort important.

Droit à la protection. Ce droit-là inclut, entre autres, on fait référence à l’usage des aides au témoignage. Comment pouvez-vous demander à une victime qui a subi une violence sexuelle de témoigner en présence de son agresseur? Donc moi, je revendique haut et fort comment on voit une énorme différence. Une victime qui est capable de témoigner, par exemple, par visio-conférence, par télé-témoignage, une victime donc qui a – dont on prend soin de lui demander à elle quel type d’aide ou témoignage peut être aidant, on voit une énorme différence dans ce qu’elle va vivre comme expérience devant la cour. Son droit à la participation, il faut entendre ce qu’elle désire, entendre ce qu’elle souhaite. C’est une façon pour elle de reprendre du pouvoir.

Écoutez, je peux parler des longs délais aussi entre le moment où on dénonce. Je sais qu’il y a eu certains chiffres qui ont comme été nommés, mais je veux malheureusement vous dire que dans la région ici jusqu’à tout récemment on parlait de délai de quatre ans entre une dénonciation au service de police et un procès. Évidemment, l’arrêt – l’arrêt Jordan là, on sent qu’il y a un changement là où on va vraiment tenter d’accélérer les choses. Il faut pas non plus des fois voir un délai un petit peu plus long comme un frein pour une personne victime. Des fois, une victime a besoin aussi d’obtenir du soutien, du soutien thérapeutique pour vraiment être capable que les réactions, les conséquences suite aux violences sexuelles soient un petit peu moins présentes puis qu’elles soient en mesure de livrer un témoignage complet de manière là, c’est ça, soutenu.

En terminant – j’ai encore plein de choses à dire, mais en terminant, ce qu’on observe, nous, comme peut-être élément qui favorise une expérience positive pour une victime devant la cour criminelle à l’étape d’un procès c’est le soutien qu’elle peut obtenir par le biais d’une équipe multidisciplinaire.

Ce que je veux dire par là, j’ai vu une – moi, ça fait 20 que je travaille auprès donc des – des victimes. J’ai vu une grande amélioration. Au Québec, on a la chance d’avoir des équipes de procureurs aux poursuites criminelles et pénales dédiées à la problématique, formés, qui sont extrêmement sensibles. On a aussi, nous, des policiers qui sont dédiés à la problématique, formés et extrêmement sensibles. Et on a aussi développé des partenariats étroits avec eux. Donc ce qu’on observe, une victime qui est accompagnée tout au long du processus par des intervenants sociaux qui connaissent bien les rouages par rapport au système, donc des policiers, des procureurs qui l’accompagnent. Pour elle, c’est comme une équipe qui l’entoure, qui va – cette équipe-là va lui donner la force de pouvoir traverser l’ensemble du processus et le pouvoir de raconter ce qui lui est arrivé.

C’est le cheminement pour elle, souvent, qui va faire une très, très grande différence dans – dans la reprise de son pouvoir puis dans le retour à son équilibre. Donc voilà. (Applaudissements.)

Modératrice: Merci beaucoup. C’est excellent. Beaucoup de – beaucoup de suggestions. I’ll turn to Judge Corbett. Based on your 14 years’ experience as a Superior Court trial judge in Toronto, what, in your view, are the greatest challenges for a judge in sexual assault cases against adult complainant – complainants and how well equipped is the criminal justice system in dealing with these cases?

Hon. Marie Corbett: I think that there is a crisis of confidence in the criminal justice system in delivering it to sexual assault victims, and I think this comes from three different things. The first is not that we have proof beyond a reasonable doubt or that that accused person is presumed innocent. It comes from the nature of the adversary system.

We have in Canada an adversarial system as opposed to what most countries in Europe have, which is an inquisitorial system. So it becomes a more two-sided storytelling contest, which narrative is going to be more convincing? A judge is an impartial referee, and indeed it’s the essential quality of being a judge is to be impartial, but the judge is inactive in a sense in the trial process. The judge normally doesn’t question witnesses or get involved in any way.

The – and I do not find the criminal justice system or a trial a search for truth. It’s really a determination of the truth of the charges that are brought, and the function of the criminal justice system is essentially to give an accused person a fair trial. A witness does not have any nearly clear legal rights at the trial. There have been a lot of changes for victims before the trial, but at the trial, it’s still extremely difficult given the nature of the adversary system.

The second thing is that – a problem is the pervasiveness of sexist attitudes in society, and judges are not immune from these attitudes. We have the case of just about a year ago where Justice Camp, famous for his statement, “Why couldn’t you just keep your knees together?” and he went on to observe that young women want to have sex, particularly if they’re drunk.

That brought me to the third issue that I see in the criminal justice system that needs to be changed, and it came about to me because I looked at the two cases that came up in the last two weeks. The first one was in Newfoundland where a woman who had been drinking got a ride home with a uniformed police officer and when into her home, and she doesn’t remember what happened because she’d been drinking, and the next thing you know when she woke up, he was on top of her. And she said that she couldn’t say whether she consented or not, but she didn’t want to.

In the case last week in Nova Scotia, it ended up being a similar kind of case where there was no evidence that the complainant did not consent. Now picture this. There’s a taxi, and there’s a person in – a woman in the taxi and the police comes over and – come over and see that this woman has a big bruise in her head, and there’s the taxi driver holding a baseball bat. Well, is there any issue of consent?

In the other case, the woman has her – is half naked, her DNA is on his mouth, and he’s zipping up his pants. Consent is an issue? The taxi driver, they’re strangers. I think the problem comes with the definition of assault in the Criminal Code. It’s not in your material, but the definition of consent is – and the definition starts off: “A person commits an assault when without the consent of another person he applies force intentionally to that person.” So the opening words of the offence are: “Without the consent of another person.”

Now at common law, there was a distinction between assault and battery, and this definition came about in Canada because we got rid of the crime of battery, so that was a significant change. At common law, an assault was “a willful attempt or threat to inflict injury on another,” and battery was “the unlawful touching of another person without justification or excuse.” No mention of consent.

So the – it’s time to have a look at the definition of assault. Why couldn’t an assault simply be defined as “the intentional application of force that results in harm to another person?” The Criminal Code could then go on to set out circumstances that will be deemed or will be sufficient to amount to harm. For example, it could incorporate the very things that are now in the Code with respect to being incapacitated or incapable of giving consent, where you’re forced to or where there’s a situation of pressure or duress.

In other words, it has to be turned around. The judges in the Nova Scotia and Newfoundland case may not necessarily have been sexist or had expressed sexist views such as Justice Camp did. They may merely be looking at I need to have proof beyond a reasonable doubt of a negative. And I think that that has to change. I think consent should be a matter of defence.

I also think that – my time is up. I also think that – and we have to distinguish between stranger sexual assault and not, so that would be one of the circumstances where consent would have to be a defence where the sexual activity was between strangers. There should be a different category of crime called perhaps domestic assault for situations where there is an ongoing sexual relationship.

And I think of Ghomeshi, for example. In that case it was unusual because all of the women who testified had consented to the sex. Why were they labouriously cross examined about their sexual relationship when he should have been charged with simple assault?

So I think we have to make those distinctions, separate the crime and make consent a defence. (Applause.)

This panel discussed the elements of sexual assault offences; the legal definition of consent; available defences; the roles of the Crown attorney, defence counsel and the bench; and trends in the law.

Janine Benedet
Associate Dean, Academic Affairs, Peter A. Allard School of Law, University of British Columbia

Carmen Rioux
Crown Attorney, Quebec

Genevieve McInnes
Defence Counsel, Edelson Clifford D’Angelo Friedman LLP, Ottawa

Kathleen Dufour
Centres d’aide aux victimes d’actes criminels (CAVAC), Gatineau

The Honourable Marie Corbett, QC
Judge of the Ontario Superior Court (retired)

Panel 3b

Sexual Assault Trial: Evidence, Testimonial Aids and Expert Witnesses

Transcript - Sexual Assault Trial: Evidence, Testimonial Aids and Expert Witnesses

Nathalie Levman: Thank you. Some technological difficulties there, sorry about that. My name is Nathalie Levman and I work with Jolyanne and Carole at the Department of Justice and I’m very very pleased to be here to introduce and moderate our next panel on the sexual assault trial, in particular evidentiary provisions, testimonial aids and expert witnesses. So just in the interest of ensuring that you’ve – most of the time is spent hearing our panellists, I’m just going to very very briefly go over who I have next to me.

First I have professor Karen Busby. She’s a professor at the faculty of law of the University of Manitoba and next to prof. Busby, I have Jill Witkin who is counsel with the Crown Law Office and she’s also chair of Ontario’s Sexual Violence Advisory Group and next to Jill, I have Michael Spratt who is defence counsel with a boutique criminal law firm, Abergel Goldstein & Partners and next to Michael, I have Mr. David Butt who you heard earlier today. He’s a barrister with Camden Lane Law Chambers and has experience representing victims in criminal law matters and of course, you’ve already been introduced to the honorable Judge Corbett at the end of the table.

And so what I propose to do is ask our panellists a few questions and then we’ll have time for questions from the audience. So to start with you, Prof. Busby, based on your work in relation to sexual assault generally in trials in particular, could you provide a brief summary of relevant evidentiary rules, in particular the rape shield provisions in the third-party records regime and the criminal code and also identify some of this more significant academic critics of these rules, in nearly seven minutes.

Karen Busby: Thank you, thank you very much. It’s a big task but I’ll figure out some ways to try to do it. I first want to start though by acknowledging that we’re on unceded Algonquin territory and I want to thank elder Roberta Della-Picca for the ceremony she performed in advance of today’s proceedings and for this ceremony, the song that she sang for us this morning to ensure that we get off in a good way. I really appreciate that and want to thank her for that.

So let me start –

(applause)

Let me start by asserting that Canada has good sexual assault laws on the books and this is the most important take-away from my presentation this afternoon. Our laws are based on the notion that a defendant’s right to full answer and defence is not absolute and it’s not unfettered. The defendant’s right to full answer and defence exists together with other valid social interests, including that wrongful behaviour should be denounced and with other constitutional rights, in particular the right to equality and the right to privacy.

So if you take away nothing else from what I have to say today, I want to take you take away. The defendant’s right to full answer and defence is not absolute and it’s not unfettered and something we heard repeatedly today is that the laws on the ground are just not working well. Feminists worked hard in the 80s and the 90s and the 200s to ensure that Canada has really strong sexual assault laws, but something is going wrong and what is it that is going wrong?

So I’m going to talk about two things in the brief time that  I have. I’m going to talk about sexual history applications and I’m going to talk about third-party records. Carole Morency reminded us this morning that the criminal code has both a categorical exclusion of any evidence of a complainant’ sexual activity when that evidence is being used for the purpose of invoking either that women who have had sex are less credible or are more likely to consent.

The criminal code also creates a presumption of inadmissibility against the use of sexual history evidence in other situations unless the evidence is specific, relevant to an issue at trial and of significant probative value that’s not substantially outweighted by prejudicial effects. So there are categorical exclusion and there is a presumption of inadmissibility. The other thing of course is that an application has to be made in court before sexual history evidence can be used in any sexual assault case.

So there are a couple of problems that I want to point out with on the ground, with how this law is applied. Research – oh, and I should mention to you, Janine Benedet and I put together a list of recent English language research on Canadian sexual assault law and it’s in your material and the references that I’m going to point to in my seven minutes are all included in this sheet. The citations are there. You can go away and you can find them.

So researchers including Ruth Lazard, Jennifer Courchesne (ph.) and me have reviewed sexual assault case law and it shows that – it demonstrates -- and these reviews consistently demonstrate that at  least some defence counsel, and it’s hard to make claims about how many because these are prevalent studies, at least some defence counsel question complainants on the stand about their sexual history without first  making a section 276 application and without any objection being raised by either the crown or by the court.

I was on  a panel last week with defence counsel and crown and I stated this, that these – or applications are not made, the evidence goes in all the time and they both shrugged their shoulders and freely acknowledged that it occurs often in Canadian courts and they weakly tried to justify it as something that was expedient, that the applications take too much time, they’re too complicated, they know the evidence is going to go in, so they just want to move ahead and – and they start questioning on sexual history evidence without an application being made, without an objection from the crown and without an objection from the judge. So that’s a serious problem.

Research also shows, and here, I’m referring to the work of Elaine Craig and Lise Gothel (ph.), that some judges still misunderstand what evidence is excluded by section 276. For example, judges merge together the categorical exclusions of evidence with the kinds of evidence that’s presumptively inadmissible and – and they do is look at the categorical exclusions. Elaine Craig talks about how judges rely on the so-called pattern of consenting in circumstances where the case law is clear that the evidence should not be admitted because it doesn’t meet the test of being so unusual or strikingly similar so that that kind of evidence can be admitted.

So as I’ve said, the use of sexual history evidence remains a serious problem in sexual assault cases and so I have four suggestions on how to remedy this problem. One is better crown training; two is to keep the pressure on judges to insist that section 276 applications are being made; three is to really remember that – that there is no right to a discriminatory defence and David Tanavish (ph.) and Elaine Craig, both convincingly argue in recent articles that it’s unethical for defence counsel to rely on discriminatory stereotypes in the defences that they present. So there was a question this morning from someone from Vancouver asking about what to do about this and I think there’s a range of strategies that we can use to pressure defence counsel not to rely on discriminatory stereotypes in the questioning that they do.

And my final point would be that if we can’t rely on the crown, if we can’t rely on the defence and if we can’t rely on the court, then maybe what we need to do is ensure that complainants are represented by counsel to ensure that sexual history evidence is not going in inappropriately without application and not being used inappropriately.

The other thing I just want to briefly discuss because I have one minute left is that – is third-party records. So everybody here knows that no record relating to a complainant or a witness shall be produced to an accused in any sexual violence proceeding unless the process used in the criminal – set out in the criminal code is used. Now the first problem with third-party records cases is that research has been done in the last decade on how these records are being used. I’m not aware of any academic studies in the last decade and this is a very significant research gap, but I informally surveyed, and I have to stress, informally surveyed, front-line service providers, crowns and complainants’ counsel and I asked the question, “Are these regimes working? And can the regimes be improved?”

And what I was told is that constant vigilance is key and that there are three things are needed. First of all, provinces that don’t have programs to provide counsel need to set up programs. Complainants are entitled to have a counsel for third-party records applications and most complainants obviously can’t afford counsel, so provinces need to put these programs in place. Secondly, reasons for a decision on records applications are almost never transcribed and released as formal reasons for a decision and that makes it very difficult to do research in this area. So we need to find a way to ensure that these cases are transcribed and published.

And finally, the final problem that was identified is if defendants do come into possession of the records, and they frequently do come into possession either because they’re child welfare records that they’re entitled to have access to as a family member or in breach of a deemed undertaking rule in cases where there are parallel civil proceedings or through inappropriate crown disclosure. There is a Supreme Court of Canada case that says they can be used if the defendant has them and this loophole in my view needs to be closed. So I’ll there. Thank you very much.

(applause)

Nathalie Levman: Thank you for that very concise and informative overview of some complex provisions in the code. Next, I would like to turn to our crown attorney on the panel, Jill Witkin and I have a question for you. As an experienced prosecutor and given your role as chair of the Sexual Violence Advisory Group, could you reflect on the – the evidentiary challenges that crown prosecutors face in sexual assault trials and after that, if you could provide us with just some brief reflections on what you feel are the key take-aways from Dr. Haskell’s excellent presentation over lunch. Thank you.

Jill Witkin: Can – everybody can hear me? Thank you. Generally, speaking in sexual assault trials, the main witness is going to be the complainant. We sometimes have corroboration but often, we don’t and in most sexual assault trials, credibility is going to be the big issue for the trier of fact to decide. So really the challenges that we face as prosecutors is how do we effectively get the evidence of the complainant before the court, how can we make sure that the complainant is comfortable as possible in giving her evidence and how can we make sure that the court really understands what her evidence means.

We have things like testimonial aids. The threshold of when you can use a testimonial aid which is either a screen, a one-way screen in the courtroom or a closed-circuit television where the complainant can testify outside of the courtroom so that he or she doesn’t have to be in the same room as the accused. The standard for using that for adults has been lowered recently as a result of the Canadian Victim Bill of Rights. I think crowns are challenged in using it, No. 1, just because there aren’t very many closed-circuit facilities for instance in each courtroom and some of them don’t work very well, but also because what we hear is that crowns feel that they will be given a hard time by the court if they ask for it, because it’s time-consuming and I think the expectation is that complainant should be able to testify in the courtroom.

So we need to do more work in that area and really push the envelope, the same way that we did with children when the application was discretionary many years ago. It was called more and more. There was a lot of social science research that showed how children could give better evidence if they were not in the same room as the accused and eventually, those laws changed and now it’s presumptively mandatory for children and adults with physical and mental disability. So that’s one area.

The preliminary hearing for a sexual assault complainant is difficult. Most, I would say almost all preliminary hearings in sexual assault cases are really for the purpose of cross-examining the complainant at length. They’re not to argue committal. There’s very very few cases where committal is actually argued in a sex assault case. There’s very few preliminary hearings where the preliminary hearing is waived and understandably defence counsel don’t want to engage in a full cross-examination try to essentially generate a second statement because there’s already a police statement of the victim.

This is the second statement upon which there can be inconsistencies found at the trial level. So now, there’s – by trial, there’s two former statements and a lot of these inconsistencies that are ultimately identified if they’re material, then of course, they’re important but if they’re on peripheral issues, sometimes it can be very difficult for the crown to get over and at the preliminary hearing, on a more social level, for complainants, there’s research that shows it’s – it’s so difficult for complainants to testify even once talking about this type of evidence, that testifying twice is really really difficult for them.

And so I think we struggle with sometimes losing – sorry, we struggle with – we struggle with complainants losing confidence in the system after being questioned in very intrusive ways. As crown attorneys, we do obviously want to object whenever we can. A perfect example, just noted by Prof. Busby is 276 applications. While they’re supposed to be brought in advance, they aren’t always brought in advance and the problem that the crown has is if they are brought during the preliminary hearing or the trial, we have a choice. Well, we want to be able to marshal our best argument to the court, to ensure that the court understands why the evidence proposed should not be admitted. However, is the answer an adjournment? Possibly not, because that’s not going to advance the case or it’s not going to help the victim to have an adjournment and not be able to testify. So sometimes the crown is going to have to make that argument on the fly without necessarily having a lot of – a lot of preparation.

I only have a minute left, but I want to talk about Prof. – or Dr. Haskell’s evidence because we talked a lot about the neurobiology of trauma and how important it is for police and prosecutors to be educated. One of the challenges we have as prosecutors, and let’s assume we’re educated because we all see the benefits of understanding how the behaviour of a complainant in a sexual assault, a victim, can be affected by the brain and also how her ability to encode memories and – and describe an assault might be affected.  We may be able to deal with that, but then when we’re calling this evidence in court, how is it that we can get that evidence before the court? We would – sometimes a victim is able to describe why she may have acted in a certain way, why she – if she was numb or if she disassociated, but often, she may not be able to and as a crown attorney, we can’t give evidence.

So really, we have to move in a direction where we can start to call this type of expert evidence in court.  It hasn’t been done a lot in Ontario. I don’t think it’s been done a lot in Canada. I would say that this is evidence of human behaviour similar to the type of evidence we – excuse me, we called in explaining detailed disclosure or a battered spouse syndrome. I would submit that – I would say that this evidence certainly should be – should be called in cases where it’s appropriate, not to prove that that particular victim was assaulted. That would be going to the ultimate issue and that’s not allowed, but simply to neutralize her credibility because the defence may be arguing or the trier of fact on their own, having certain assumptions about how life works, they may – they may view her credibility in a negative way and this type of evidence is really important because it will neutralize her credibility, not make – not show that it’s more likely or not that the offence occurred, but simply to bring her credibility from minus one to zero, so that everybody is on a playing field.

It’s really to offer an alternative explanation to what might appear to be contrary to their behaviour and I certainly think that the – the type of training that we get from the neurobiology of trauma is so important all across the spectrum from police to victim service workers to crown attorneys, but also to the triers of fact who make the decision at the end of the day, because they really are the ones that are assessing credibility and we have to have a way to be able to provide explanations as to why a victim may have acted in a certain way or why their memory may not be as you might expect from another – another victim. So that’s what my time is.

(applause)

Nathalie Levman:  Thank you, in particular for making the links between Dr. Haskell’s presentation and your role in the trial process and now I would like to turn to Mr. Spratt. Given your extensive experience as defence counsel, what are the greatest challenges for – for you, defence counsel generally, in relation to evidentiary issues in sexual assault cases and given that hopefully you’ll have time for my second question which is about the issue of ethical cross-examinations. That’s come up already today a number of times and I’m sure the audience would like to hear your views on what such an ethical cross-examination would look like. Thank you.

Michael Spratt: So I’ll first start by talking about some of the challenges that we face and the first one I’m going to talk about isn’t specific necessarily to sexual assault cases, but is something that sort permeates the criminal justice system and that is that there can often be overt or unconscious miss or stereotypes that operate against an accused person, specifically as they relate to rationalization or indigenous status of an accused individual.

And of course, those can be perceived or actual. They can be systemic or overt, but if we look at a judge alone trial and if we look in – I’ll look at the court that I practice in in Ottawa, until very recently, there was not one judge in the Ontario Court of justice who was a visible minority and that same holds true in the Superior Court of Justice and that’s reflected to one degree or another, to some extent or another, across the justice system across Canada.

And so we have a problem, especially if you’re a racialized accused person, there’s a perception that there – that there could be inequality and bias and prejudice in the very actors who are judging your guilt or innocence. The same problem is equally present in the jury system. Our juries are not reflective of the community and indigenous members of the community and racialized members of the community are not only underrepresented on our juries but systematically excluded from our juries.

In the last very serious jury trial I did, out of the whole jury pool, there were three visible minorities and each one of those visible minorities was challenges peremptorily by the crown. The crown exercised the right to excuse a juror, but they don’t have to give a reason. Each of those visible minorities was excluded and challenged by the crown and this left an all-white jury to judge my client who is African American, who had committed allegedly an offence against a white woman and so that’s not a good place to start from the perspective of an accused person, when the people judging you in the justice system isn’t reflective of you.

So that’s sort of a more general comment, but moving into sort of a specific thing that I’ve seen quite a lot and I’ve seen crowns make submissions on this point in sexual assault trials, the idea that no complainant would subject themselves to a process of launching or complaining to the police about a sexual assault, of airing personal details, of subjecting themselves to cross-examination, that no complainant would go through that process if it wasn’t true.

And I mean we’ve seen this after the Gomeshi trial with some hash tags about believing complainants and certainly out of court, that might be a very productive and pro-social view, a supportive view, but in court, it’s more difficult and we sometimes see that in submissions that crown attorneys make and comments that some judges have made on occasion about well, what is the motive here for a complainant to fabricate a story?  Because the complainant says it happened. So it either happened or it didn’t happen, so she’s either fabricating or telling the truth and what her motive be to fabricate? That – that sort of way of thinking is antithetical to our criminal justice system where the crown bears the onus and there’s no burden of proof on an accused person to show why someone would be lying or fabricating.

So it’s – that sort of idea is a subtle and somewhat insidious reversal of the burden of proof that can operate as a barrier to effective justice and I think that as we have a more nuanced discussions in larger society about beings supportive and dealing with these very serious allegations appropriately out of court, there needs to be a lot of work put into the process in court to make sure that some of the fundamental freedoms that are really there to prevent wrongful convictions don’t operate.

I think I’ll move quickly, because I don’t have a tonne of time into ethical and effective cross-examinations. I think what defence lawyers should know and certainly, any defence lawyers that I’ve dealt with, I try to make this clear and I think it is a widely spread belief amongst defence lawyers, is that there’s no benefit to a cross-examination that relies on twin myths  or that attacks the character of a complainant, not in front of a jury and I think more and more not in front of our judiciary. I don’t think that that advances the issue at all.

Having said that, there needs to be a cross-examination of the complainant. I heard someone, a panellist talking earlier today about, you know, complainants quite often go and talk to – to the accused after – after the allegation and defence counsel, you know, can bring that up to try to discredit a complainant or to undermine her story. We need to be careful in how we look at sort of the cross-examination because defence counsel don’t bring up the fact of contact. The defence counsel will bring up the fact that contact was made and maybe denied after the fact. So it’s not the fact that a complainant acted in a certain way, but that those actions maybe were presented or not presented or hidden from the trier of fact. It’s issues like that that are important.

And moving on to sort of the talk about preliminary enquiries which I think is really important and I hope you have more time to talk about it, because as we deal with court delays and – and charges being stayed for delays, the preliminary enquiry is going to be something that in the justice system we’re going to be talking about a lot more.  Preliminary enquiries, at least how I conduct them in sexual assault cases, I’ve never confronted a complainant at a preliminary enquiry with inconsistencies. I’ve never done a hard cross-examination. They’ve all been exploratory cross-examination and mostly exploratory cross-examination to see if there are any other applications that need to be brought with respect to third-party records or prior sexual contact or conduct.

If the preliminary enquiries are eliminated at – for sexual assault cases, many of those issues won’t be discovered until mid-trial and so there – there won’t be an ability to give advance notice, to make sure that the complainant does have counsel present and quite often, if those applications are brought in the middle of a trial in front of a jury, it might lead to an adjournment or mistrial that might have other unintended consequences.

So when we’re looking at broad and systemic changes to the criminal justice system, I would encourage everyone to not look at the worst case scenarios or some of the bad examples that we’ve seen and I can’t deny that there are those bad examples, but look what ethical and efficient cross-examination look like and also look at perhaps some of the unintended consequences that may arise by increasing procedural protections or by sort of diluting other procedural protections. Thank you.

(applause)

Nathalie Levman: Thank you so much for that interesting – what I know are issues everyone is interested in today. Now I would like to turn to Mr. Butt. Mr. Butt, given your experience representing victims of sexual assault in criminal trials, could you tell us how you would describe the role of counsel for the victim and also could you describe what in your view are the biggest legal challenges facing victims in sexual assault trials?

David Butt: Thanks for those questions and I do represent a large number of complainants in sexual assault cases as my broader criminal practice and it’s something that has evolved over time. Jut to give you an example, we heard earlier about how the rape shield legislation was struck down and then reintroduced in the early 1990s. So now a court application, you know, as of the early 1990s, a court application is required to – before any evidence of a complainant’s prior sexual history can be adduced in a trial. When that legislation was passed in 1992 I think it was, the only people pursuant to the legislation who can participate in whether a complainant’s sexual history is part of the trial fabric are the crown and the defence. The one person to whom it matters the most, pursuant to that legislation, has no standing to participate.

So that tells you that as recently as 1992, the notion of affording complainants a real voice in proceedings that affect them dramatically wasn’t even on the radar. Later in the 1990s, when the third-party record regime was introduced, complainants were given access to counsel. Operationally it still doesn’t happen in a lot of provinces. So we’re in very early evolutionary stages of just figuring out how to fairly give complainants a real voice in the criminal justice processes that affect them so dramatically.

So given that early evolutionary stage, I’m not going to pretend to talk comprehensively about the role that complainants’ counsel can play. Jill Litken (ph.) and Dan, Daniel Brown are defence lawyers writing a marvellous book on the prosecution and defence of sexual offences and they’ve been kind enough to ask me to write the chapter on representing complainants. So if you want to full meal deal, by Jill’s book.

I’m just going to touch on a couple of things and what I’m going to touch on, I want to acknowledge my real debt to the work that people like Lori Haskell are doing because I want you to imagine the situation with a complainant in a criminal investigative and prosecutorial process. First of all, we’ve already heard lots about how intimidating it is to just come forward in the first place and how frosty the reception can be. Once the charges are laid, there’s something called witness tainting that everybody is quite correctly very concerned about. You don’t want one witness to be tainted with information coming from another witness. So what do you do with the complainant? Quite naturally, you keep her in the dark.

So here’s somebody traumatized by an event, facing an insensitive justice process that deliberately keeps her in the dark and says, “Oh by the way, anything you say to any justice official, police officer, VWAP worker, crown attorney, if it has any bearing on the case, it’s going straight to the defence”. There’s really a good reason for that and that’s necessary. My colleagues like Michael do a great job and deserve full disclosure, but what’s the impact on the victim?  There’s no professional inside the system who says to her “I’ve got your back”. No one except her lawyer. That’s the service that I provide. I sit down with the complainant and the first thing I say is, “I’m nobody’s lawyer but yours.  Everybody else you talk to you is obliged to give what you say to the defence if it’s relevant. My obligation is 180̊ reversed.  My obligation is to keep your confidence.”

And let’s talk about somebody going through a traumatic process and what do they need? Lori’s slide was brilliant, you know, the baby reaching over to put an arm somebody. Metaphorically and professionally, that’s what I do and here’s one line of an email I got from a client I represented two days ago, “I can’t tell you how anxiety and stress-reducing it is to have a lawyer. I had no idea that would be the case.”

So the value that I provide, I mean, as lawyers, we often think clinically and dispassionately and technically about objective services delivered, motions won, advice given, let’s start thinking about the soft skills that a good lawyer can provide. I’m there for you, this system will be frustrating. You don’t control the outcome. It will be traumatic inevitably because it’s appropriate to a certain extent that the defence vigorously. You don’t have anywhere to turn to unless you have a lawyer and then you do.

So I advocate for involvement of lawyers to ease victims through a process that’s necessary but difficult and in terms of particular points of representation, before the charge, before a victim makes a decision to come forward, it’s important as we saw in the videos after a charge is laid, in anticipation of the trial process, to some extent where it’s fair to do so during the trial process itself and afterward on appeal. So I say there are really important suite of services that counsel for complainants can offer to make this process a little more humane, a little more fair and a little less traumatic.

(applause)

Nathalie Levman:  Thank you very much for helping us understand your important role. I would like to now turn to Judge Corbett. Judge Corbett, what are the main challenges and – that the current evidentiary law pose from your perspective, meaning the perspective of the bench, and do you have any recommendations to address those challenges?

Hon. Marie Corbett: Thank you. First of all, I would like to say I agree 100% with everything that my colleague here, David Butt, said.  The hardest thing being a trial judge or one of the hardest things for me was enduring the cross-examination of complainants, adult or child and you think that a judge would have every control over limiting what defence counsel can – can ask and they can be bullying and intrusive and judges are constrained by the reality that the Supreme Court of Canada has described cross-examinations as the ultimate means of demonstrating truth.

So as a trial judge, when even things are becoming too laborious or counsel is bullying or counsel is saying “Just answer the question, yes or no”, I think back now and I say to myself, “Well, why does she have to answer yes or no? Why not let the witness answer in their own way? But judges are so attuned to allowing extensive cross-examination that it can be very difficult to draw the line and so generally speaking, judges are very loath to interrupt cross-examinations. Cross-examination can be demeaning, bullying, intrusive, grotesque, brutal and that was when I was a judge and I read cases today and it’s still going on. 

There is – I was thinking of the case, of the crown vs S.B which is on appeal from the Newfoundland Court of Appeal in which the Newfoundland Court of Appeal majority described the cross-examination of the witness as gratuitous humiliation and denigration. In that case, the complainant had told the police that she hadn’t been unfaithful to her husband. In fact, she did have an affair and at the trial, it came up and the evidence was adduced, of all the text messages between her and her lover at the time. It’s excruciating to read and it should never have occurred as the judge pointed out and there are other instances in that case where the witness was subjected to horrific cross-examination and I urge you to read the decision.

One thing that can alleviate extensive cross-examination is the use of admissions and a greater use of admissions has to be made. For example, in the case of S.B., there could be an admission: “Yes, I lied to the police about having an affair. I did have an affair and I was nervous about revealing it to the police” and that could be the end of it. Oh, but that’s not good enough for some defence counsel. They want to make minced meat out of it and it can be horrible.

Another change, aside from encouraging admissions instead of prolonged cross-examination, it’s time to reconsider the rule against allowing in prior consistent statements. Prior consistent statements are considered self-serving or oath-helping. So what happens when the witness takes the stand and is cross-examined, the witness is cross-examined on every inconsistency and every statement that a complainant may have made to anybody ever, whether it’s “Well, you said you were wearing a shorty nightie today and yesterday, you said it was a teddy” or whatever. It goes on and on and on and very – the judge, yes, can say, “Isn’t that enough, so and so”. But they go on, then they go to the next minutia.

So to counterbalance that, I believe that statements that are consistent should be permitted to adduced by the crown, where the person to whom the statement was made is able to give evidence. It’s particularly critical in child cases or in cases of vulnerable complainants. A child may be giving evidence years later because the assault may have taken place earlier and yet, you can’t get in the statement that she made to her mother or her aunt or the teacher or the social worker, unless they say – the defence says that was recent made up, a recent fabrication.

I think that rule has to be re-examined and it’s not a change that can come in the courtroom by lawyers saying “I object”. They can’t object, it’s the law. It has to come from the people in this room. It has to come through changes in legislation and the rule is a very old one. It’s a – probably it came about no doubt when trials were conducted relatively quickly so that you didn’t want statements going in of what the witness – the complainant told her friends or her colleagues or her whatever, because it was self-serving and oath-helping. In other words, you’re making it more consistent.

And, but today when you can have up to 30 months to have a Superior Court trial, so these statements may be very important and it would – it is no doubt on an evidentiary basis a radical rule change, but if inconsistency is the mark of untruth, I believe consistencies should be the mark of truth.

I have one other thing I would like to say and that is that there was some reference that judges should always give written reasons in sexual assault cases. That’s an undue burden and unnecessary, but what can occur is that in any sexual assault trial, the reasons for judgement can be transcribed. They can just be put on a website. That way, there is greater access to justice. We know what it is. It isn’t what the courts are doing and it isn’t just happenstance that a reporter happens to be there and is witness to some horrific set of circumstances. And I could go on.

(applause)

Nathalie Levman: Thank you so much, Judge Corbett, for those reflections. Now I’m aware that we don’t have a lot of time and that likely, there are questions from the audience, but while people go up to the mics to ask their questions, I might just address one issue that I think is – is quite burning these days, given the prevalence of social media in our society. Could I ask panellists to comment on your views of the rule of social media in sexual assault cases, in particular in your view, does the law currently respond to the evidentiary and privacy issues posed by social media?  Is there anyone here who would like to comment on that?

David Butt: Sure, I could take a shot at that and from the perspective of somebody who represents complainants on third-party records applications, I have a particular perspective on the potential problems that we need to really think thoughtfully about. Lots of folks these days live huge chunks of their life online and so when someone has suffered trauma, you know, from – I mean I want to first draw a distinction between private social media, so where you go into private chat rooms and so on to chat with your friends versus what you post for the world on Facebook. You know, if you post for the world, frankly you live with it in a courtroom, that’s – that’s my view, but when you do make an effort to have a private chat, very often in the case of a sexual assault survivor, what’s going on there? It’s a form of healing, it’s a form of therapy, it’s a form of connection to loved ones that again we’ve heard Lori talk about, Lori Haskell talk about, that in effect a form of therapy. It’s one of the best forms of therapy if you’ve got somebody who can put that arm around you.

And so we need to ask ourselves just because the subject matter of the assault allegations, sexual assault allegation is discussed in that private chat room, does it necessarily mean that it’s relevant and should be disclosed? I think we need to ask ourselves very seriously whether that’s a form of therapy that deserves some degree of privacy protection.

(applause)

Nathalie Levman: Thank you. Jill?

Jill Witkin: Yes, and I just wanted to add to this. I certainly think that with the exception of Facebook posts, social media type of exchanges, text exchanges or other exchanges, even if it’s cell records, those do attract a reasonable expectation of privacy. They certainly do according to the Supreme Court for the accused, the  contents of the cell phone. I think the argument can be made that they also apply to complainants.

So if that’s the case, it means that they fall under 278.1, the provisions of the code which require an application to be brought by the defence in order to get those records before the court and we know that the complainant, the victim has a standing in any third-party record application under 278 and we know that they can have access to counsel for any 278 application, but really that access to counsel only kicks once there’s an application filed by the accused or by the defence and it’s only the defence that can file the application. The crown isn’t even permitted to actually ask for third-party records and where I see the law has fallen a bit short is that those records, because they have this expectation of privacy can only be produced or can only be disclosed, even if the crown has them, with a full and informed waiver by the complainant, by the victim.

That can take place once an application is filed by the defence, if they’re seeking third-party record but what if the crown knows that there’s some records out there and sometimes, there may be some very useful records that have an exchange between the victim and the accused or the victim and some of her friends on the night of the incident, perhaps those would be relevant if the crown would be willing to agree that they’re relevant, but in order to properly protect the victim’s rights, she will need some form of independent legal advice. It may not be long, it might just an hour to a lawyer who can review those records, who can talk to the victim about her rights and who can waive a privacy right and that way, those records can become part of the disclosure process early on in the prosecution. We don’t need to wait for an application to be filed and that causes delays.

Sometimes it’s resource heavy for the court, but it’s only at that point where our legislation actually says that the complainant can go to counsel and in Ontario, and I don’t know about other provinces, but it’s probably similar, we have a program where counsel will be paid for by the state, either by legal Aid or by a ministry protocol. So the victim will get counsel for those third-party record application but it will be paid for by the state, but again it’s not until that application is filed by the defence and I think there is or should be some movement for that process to take place, even earlier on so that we can deal with those types of records, some of those types of records in a more expeditious manner.

Karen Busby: I just wanted to say that social media is becoming a huge investigatory tool and we don’t have much research at all. I’m a researcher, so that’s the place that I focus on, on how social media is created, how it can be manipulated, how it’s used in sexual violence cases, is it appropriate, is it inappropriate, do judges understand the uses and limits of social media? This is a terrifically under-researched area and something that – an area where a lot needs to be done.

I just want to say too that, you know, I don’t know that much about social media. I’m not an active social media user, so I asked my 25-year-old stepson to talk me through the ways in which his friends use social media and I in particular asked him, I said, “If you went to one of your female friends and asked if you could access her group chat, would she show you” and he said, “Oh yes, absolutely she would”. So I actually don’t know how much a degree of privacy there is in these records and I think that if you’re counselling complainants in any way, you’ve got to really caution them about how they use social media, because I actually – I mean I’m nervous about saying this, but I actually think that there’s a really good possibility that what you’re going to say, there is no expectation of privacy in social media and if it’s shared in the way that – m y stepson said this weekend, he can get access to just about anything, going back four, five years just by talking to his friends. They would open Facebook accounts, they would open Twitters, they would open What’s Up, they would open group chats, they would hand the stuff over. So it’s really hard maybe to make the argument that there’s an expectation of privacy in those materials when they’re so sharable.

Michael Spratt: Maybe if I can just add a brief point, I think I agree with David. When we’re looking at social media, I don’t think we can let the novelty of the medium necessarily dictate what happens in court. Public posts on Facebook or Twitter or on other messaging systems are just a modern way of generating a statement, of saying something to a friend at a party or posting a note or writing an open letter. I think the difficulty is when we get into sort of third-party record applications for things that are private, private text messages, and other private communications, but we already have a framework for dealing with that.

That’s the same sort of thing that we look at if there’s a diary involved or if there’s therapeutic records or medical records and I think the important thing to realize and it can sometimes be discounted, is that the rules are pretty stringent for that. Like not only does the complainant have counsel and there has to be an application, but it’s not enough, it’s not grounds for the defence to be successful in that application to show that the complainant discussed the event or made comments about the incident in question. There needs to be more than that.

So when we’re dealing with these applications and looking at sort of private messages, where there’s an expectation of privacy, we also have to recognize that during these applications and the formal application process, it’s not enough to say that the complainant made a statement about the event. There needs to be more than that to demonstrate its relevance and how it can be used in court and so to some extent, there’s some protection already for that privacy interest.

Nathalie Levman: Thank you. That was very comprehensive and I’m sure the audience appreciated. I’m not seeing anyone up at the mics. Maybe I could just ask a follow-up question, whether or not you view the rape shield provisions having any role in this context? Anybody has any comments on that?

David Butt: I think they do. I mean what – what we know in court is that you can’t have – you can’t get access to the records, we talked about that, but also the questions need to conform to the appropriate question and the information needs to be used in an appropriate way and so if the worry is that, you know, defence counsel may look at a complainant’s Twitter feed and point out every time that she said or he’s said something about sexuality or partying or drinking, I mean that shouldn’t be happening in court and there should be mechanisms to control that. I think it does happen sometime, but I think that that’s something that needs to be controlled just as if, you know, those questions were asked about – asked about sort of less novel forms of communication.

The discussion of the sexual assault trial continued with a discussion of the rules of evidence; third party records regime; complainant’s sexual history; professional ethics; the use of testimonial aids and expert witnesses.

Karen Busby
Professor, Faculty of Law, University of Manitoba

Jill Witkin
Counsel, Crown Law Office – Criminal (Ontario), Chair, Sexual Violence Advisory Group

Michael Spratt
Defence Counsel, Abergel Goldstein & Partners LLP, Ottawa

David Butt
Barrister, Camden Lane Law Chambers, Toronto

The Honourable Marie Corbett, QC
Judge of the Ontario Superior Court (retired)

Panel 4

Sentencing and Corrections

Transcript - Sentencing and Corrections

Victoria Stillie:… So I will very quickly introduce our panel.  Beside me is Mr. Guy Bourgon, who is a senior research advisor at the Department of Public Safety Canada and a clinical psychologist; Ms. Sue Bogle joins us.  She's a Crown counsel with the Public Prosecution Service of Canada.  She practices in the Yukon.  Ms. Breese – and I think I've been pronouncing your last name wrong this whole time – Davis. 

Breese Davies: Davis, yeah.

Victoria Stillie: I'm sorry.  Okay, Breese Davies, defence counsel with Breese Davies Law and an adjunct professor at the University of Toronto and as Osgoode Law School.  And beside Breese is Ms. Anita Parker with the Native Services Program of the John Howard Society of London and District. 

So we're going to start with you, Guy.  You have over 25 years of clinical experience in the assessment and treatment of adults and youth involved in the criminal justice system.  I know you've also worked extensively on developing and implementing empirically validated correctional programming.  And I wonder if you could provide us with a bit of an overview on why people offend sexually.  And can you do ––

Guy Bourgon: Love that question, right?  (laughter)

Victoria Stillie: –– can you do it in 12 minutes?

Guy Bourgon: Yeah.  Before I start, I'd like to point out something that was an observation for me as I was listening to everyone this morning.  The power of understanding why people behave the way they do was permeating virtually every conversation and every panel.  It actually, whether we want to acknowledge it or not – guides the way we start interacting with people, whether we're a police officer, a Crown, a defence and how we're talking to our victims or even the offenders, this permeates everything. 

And we all have understandings.  We all try to make sense of the world.  And this question just sort of goes hey, let's get that right on the table.  And I'd start with a) sexual offending is a crime.  That's the starting point.  And like every other crime, people who commit crimes basically know they're doing wrong.  And because it's like every other crime, the causes or the factors that contribute to that is very much like every other crime. 

If you were to start looking at all those things, I'll just use the words where you have this trait propensity added to that basically breaking the laws, breaking rules, violating people's rights with their personal boundaries is okay.  And all we know about people who break the law, they have this to a large degree.  We all have it to some degree.  You know, some of us speed, some of us, you know, park in a no parking zone for a few minutes, but they have it much more. 

And that's the, a feature for all people who break the law.  For sexual offenders, there are some, not all, who have an additional factor.  Call it abnormal sexual interest or deviant sexual interest.  Many of us have sexual interest, but most of us don't act on that.  Now, you can imagine having this propensity to violate rules and having that at the same time, that makes it very likely that what you end up doing is sexually offending. 

And personally, I feel a little bit of a fish out of water cause I'm in corrections.  Most of the stuff today has been all the front end, and in corrections we essentially have two very primary focuses in terms of what we do.  We administer a sentence.  We have all that sort of administration, put them in custody, watch them over in the community and the other sort of theme about corrections is, is we try to reduce the likelihood that these people who are in our care and custody, are going to reoffend and create more victims.

And over the last three, four decades, we've learned a lot about how to make that less likely to happen.  And what we know is that treatment of a specific kind is really good to actually have that happen.  It doesn't mean it's going to go down to zero, it's realistic, but it can make it less likely.  And sort of the guiding principles to treatment is, is you put the right people in.  Try to get those who are more likely to continue doing this.  There are some who are one off on these, there's others that continue to do this. 

So with limited resources, we must go after the ones that are most likely to reoffend.  We look at what are we going to target in those services?  Clearly, all the factors that contribute to violating rules, bending rules, breaking the law, invading people's personal boundaries and space.  Those are one of the primary targets and if they have the deviant sexual interest, that would also be a target. 

The last part is, is to make sure that those treatments or those services are provided in a way that the clients, the offenders will be responsive to it.  We have a very diverse society and it doesn't mean one size fits all to everyone.  All of you have some experience in dealing with sexual assault, and you know not all the perpetrators or offenders are the same.  Not all circumstances are the same.  So we need to be able to address that and do it in a way.  

And what we know from the research is, is that it can have a substantial impact on the likelihood that these people reoffend.  There's numerous barriers to actually doing this.  When I say services that are effective, we still too often spend money on services that have not, have any kind of empirical evidence that are effective.  It's not services for services' sake.  So we need to invest in the services that are appropriate. 

There are barriers from the offender perspective.  Some deny their offense, some are not motivated.  Us in corrections are well, first in those kinds of people and we have all kinds of ways in which to encourage, coerce people into those particular treatment programs.  There are resource issues in a country as vast as ours, if you're up in the interior BC, you don't have as many resources than, say, in downtown Toronto.  And those resources that are available to us are really differential depending on where you are in these communities. 

And there are systemic sort of barriers to this.  Some of the ones that really strike me is, is that some of our efforts, contrary to popular beliefs, we try to do controlling strategies.  And when you think of, if we just make it less likely they behave wrongly by saying we're going to make sure you do X, Y and Z, I go back to remember why they do it in the first place.  They don't follow rules. 

So in spite of whatever we do to sort of circle around them so that they can't, that's what they do.  That is what their propensity is.  And by doing that, we're actually giving them, in essence, a reason why well, we didn't control them enough, that's why they broke the law.  And I go where's the accountability in there?  It is the offender who commits the crime who makes that choice.  And if we forget about providing services to change their psychological make-up, then we've actually done a disservice to our community. 

A little less than 12 minutes. 

Victoria Stillie: Wow.  Fantastic. 

(applause)

I wondered, since we do still have a little more time allotted for you, if you can speak a little bit about what treatments or what programs do have that evidential, evidentiary background that are proven to work?

Guy Bourgon: Across Canada, when I look at what's available, we have – and it depends on where you're at – there is a few.  Some correctional jurisdictions have in-house programs and that would be the larger provinces.  Federally, there's CoSA, which is Circles of Accountant and, Support and Accountability.  Our federal jurisdiction have in-custody programs.  Most of the provinces don't have in-custody programs because obviously they're provincial offenders, and when they're in custody, it's a very short amount of time. 

Most of them are outside into the community.  There's also a number of programs that are delivered by our NGOs.  But again, they're sporadic and it requires enough resources to do that.  Many of the programs here in Canada, because at least the last 10 to 15 years, were paying enough attention to go show accountability for the services that we provide.  So there's at least efforts to look at and ensure that what we're doing are a) following evidence and hopefully looking at, sort of, outcomes in terms of what happens to these offenders over the course of time.

There is still more people than the services can provide to.  The demand far exceeds the supply. 

Victoria Stillie: Thank you very much. 

Maybe we'll move on to, to you, Sue.  And I wondered, you've been a Crown prosecutor in both Ontario and in the Yukon.  Could you speak a little bit to the role of a Crown attorney in sentencing in general, and maybe go a little bit into the specifics of pertinent legislation, like the Sex Offender Information Registration Act and the DNA Identification Act.  And also, could you explain the Gladue Principle?  (laughter)

Guy Bourgon: Quick. 

Sue Bogle: Again, that's a challenging amount to speak about in a short amount of time, but I'll try, try my best to hit the highlights. 

I'd really like to thank the organizers of this event for including me as a prosecutor from the North.  Small population relatively up in the Territories, but as you saw from the, our first set of speakers this morning, we have a very high, high rate of sexual assaults in the North for a variety of reasons.  It's a huge problem for us up there.  We're acutely aware of it.  And we're working in the criminal justice system the best we can to address, to address that high rate. 

And I think there's some very positive things happening up in the North as well that I'd certainly like to share with you today as quickly as I can.  Being from a smaller jurisdiction, you can do certain things that I appreciate are more difficult in a larger centre.  One of those things, specially since I've worked in a very busy jurisdiction like Brampton, Ontario versus now in Whitehorse, it's a lot easier in a smaller jurisdiction to have that personal interaction with the victims. 

I think it's a huge thing.  We heard about it just now on the, the victims speaking about knowing what's going on ahead of time.  And it's really my practice to have that, that interaction with the victims as much as I can, because even if they don't always like what I have to say, it's tough saying certain things, they really appreciate getting the information ahead of time as much as possible.  Obviously, that's not always possible.  Things happen during the course of a, the trial, the sentencing.  But if they, if they have that knowledge – as we say, knowledge is power – and it really, I find, helps in, in them undergoing the whole process. 

So we're at the sentencing stage now, and as you've heard during the course of the day, there's a lot of hurdles before we get to this point, sentencing, and we don't get to this point as much as we'd like.  But now that we're here, what's nice for me is I don't have to say alleged victim anymore or complainant.  It's the victim.  And the accused is now the offender.  There's been a finding of guilt, either through the trial or obviously through a guilty plea. 

And I do agree with some of the, the speakers before me.  Anecdotally, I do find that there's, there's not as many guilty pleas, although we do still get quite a few.  There's not as many as there might be in other type of offenses before, before the court for the reasons that we've heard up to now. 

But what, what I do do at the point of the finding of guilt or try to do, and I find that both defence counsel and the judiciary quite responsive, is there's usually some sort of adjournment before the actual sentencing hearing takes place and that's to gather reports and, there's more for me to talk about that cause that'll bring in some of the other things that I was supposed to talk about, which is presentence reports that speak of Gladue factors, as well as potentially in the jurisdiction work in, Gladue reports that go into the background of the offender in relation to, if it's a First Nation obviously offender.

What I also think is important is to make sure, now that we're at the sentencing process, of course, the focus is on the offender and what the appropriate sentence is going to be.  But it's really important at this point if a victim wants to be part of the process, either through a victim impact statement, making a presentation to the court about how this offense has impacted them, that they, that they have the right to be there.  And if they're not there for whatever reason on the day, there's a finding of guilt, I find everyone is generally very open to having the matter adjourned till the victim can be there. 

And I've definitely see a change over the years, and the Victim Bill of Rights has really helped in relation to that.  The judiciary is acutely aware that if a victim wants to be, that they, they should be a part of that sentencing hearing.  So by the time of the sentencing, hopefully those, the Gladue report, the presentence report, if they're available, the victim impact statements are before, before the court and we go ahead with sentencing. 

Just so everyone, I'm sure everyone here knows, obviously it's not mandatory for a victim to make a victim impact statement, it's completely optional.  I still found that a lot of  victims for lots of reasons, may not want to give a, to write a victim impact statement, but often because I've had that personal interaction or victim services, we're very lucky in the Yukon too.  We have a very proactive victim services.  We have Crown witness coordinators.  They will have met with the victims and at least gotten some input from them that I can present to the court. 

So even if it's not a formal victim impact statement, if there's something that they want to say to the court about, about how the offense has impacted them, then I'll usually have that information. 

So at the time of sentencing, obviously I'm the Crown, I act in the public interest.  As we've already heard by, from other panelists, I'm not the, the victim's lawyer.  Again, that's something I explain to the victim head of time, so that she knows that there are a lot of things that I have to present to the court.  I'm acting for the public interest, which can encompass a lot of things, and it may not be exactly what the victim would want.  But if the victim knows ahead of time that that's the case, I find that that's, that's very, again, very beneficial for the victim to know this. 

And again, I, those comments by, by Mr. Butt about having, having, the victim having their own lawyer, their own representative is a great thing.  We don't see it that often either.  We have a victim advocate that's just being put into place in the Yukon, who can put forward some of those, some of those things that the victim would like presented as well.  But, but we don't see a lot of victims that have their own lawyer.  They don't have the funds.  I think that would be a great practice, or if there could be some public funds for victims to have more of that, that would definitely help in the process. 

But as I act in the public interest and I, the things that I put forward to the court in relation to a sentencing for sexual assault, two minutes, Section 718 of the Criminal Code sentencing principles in these type of offenses denunciation, deterrents, those are significant sentencing principles in most cases of sexual assault.  And obviously, that's something that I put forward. 

The other sentencing principle that obviously defence will, will put forward but I also think is very important, is rehabilitation  And again, just focusing if I have a First Nation offender and a Gladue report before me, rehabilitation's also an important sentencing principle.  And really, when you think about it, I mean, if we're looking at protection of the public, as Guy was talking about in terms of treatment and counselling, if we can ensure that a person gets the counselling treatment  and is not going to commit another offense in public is best protected that particularly victim is best protected. 

So that's an important sentence principal that I do emphasize as well.

And really, the, the Gladue, Gladue, for people that don't know, the Section 718, and I'll read it quickly just from the, the Criminal Code cause I think it's really important.  Section 718.2(e)  All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of aboriginal offenders.  That's in the statute, Criminal Code.  It's being set again, obviously in Gladue and another case. 

(inaudible) from the Supreme Court of Canada 2012.  A lot of people might not know, but when we're looking at the Yukon, approximately 23 to 25% of the population is First Nation, so maybe not as high as many people would think.  But 70% of the prison population is First Nations.  So, and that's, I think that's fairly general across, it might be a bit higher, but general across Canada and that's why those provisions were put in place. 

So it's a real balancing act when making submissions because deterrents and denunciation, protection of the public, they're so significant in these, in these type of sentencings.  There's been lots of, if we see in the victim impact statements, pain cause to the victim.  The victim's going to have to suffer that trauma usually for a long time forward, if not for the rest of their live. 

But on the flip side, we have offenders and a lot of our offenders have been, as we see from the reports, being sexually abused themselves.  They're dealing with what they've seen as they've been growing up.  And  now, they're offending as well.  And we're trying to break the cycle as best we can.  And how usually that plays out for sentences in our jurisdiction would be perhaps a combination of jail as well as a period in the community, under community supervision, longer periods of probation so that they can start with treatment while they're in jail and then continue on in the community, getting treatment.  And often that would mean even a longer period of time where they're supervised than if they just got a straight jail sentence.

So that's something important that we talked to the victim about.  They, they may see that that type of sexual assault may have got three years in another jurisdiction and in our jurisdiction, it may get two years less a day, but three years probation, so actually the offender's being supervised for a longer period of time. 

And that's, it's a challenge balancing those principles, but that's, as a Crown, that's what we try to do, try to come up with the best type of offense to, of sentence to put forward to the judge that keeps obviously the pain and the suffering of the victim first and foremost, but also what will best work for the offender, that he is not back before the courts and protect the public. 

(applause)

Victoria Stillie: Thanks for that, Sue.  So in a sort of a similar vein, I'm going to ask Ms. Davies, you have practised and taught criminal law in Toronto for a number of years, and have experience defending individuals accused of sexual assault at both the trial and the appellate level.  And I'm just wondering if you could provide us with an overview of the defence counsel's roles or what the defence council 's role is in the sentencing phase of the trial?  And in your experience, are there specific challenges for the defence in such a sentencing phase in general and regarding indigenous clients specifically. 

Breese Davies: Okay, I'm in the defence counsel seat, so I'm the third of, the unwelcome guest perhaps.  (laughter)   Anyways, from my perspective, advocacy at the sentencing stage is just as important as advocacy at any other point in the trial, but the focus has obviously significantly shifted because at the point of sentencing, there's either been an admission of guilt or a finding of guilt after a trial. 

And it's important to remember that sentencing, as the courts have told us over and over again, is an incredibly individualized process that no two cases are the same, no two accused are the same, no two victims are the same.  And so from my perspective, I think defence counsel have really two important roles at the sentencing stage, and they don't always happen after a finding of guilt or after an admission of guilt.  I think they actually start from the very beginning of my retainer. 

The first one is sort of a more investigative role to gather relevant information to put before the court so that the judge can determine what the fair and appropriate sentence would be in the case.  And that can take a very long time, depending on the client's background and building the rapport necessary to gather the relevant evidence, and I'll come back to that. 

And then the second stage is more the in court stage, where I advocate to try and convince the trial judge to craft a sentence that will be helpful to my client and people may disagree with what that means, but I think I have a common view of what is helpful to many people in this room, which is a sentence is helpful, which is one that will ensure that my client won't do something like what they have been found guilty of doing again, and that they won't victimize someone again, and that they will change their ways or that they will become more social.  So that's kind of what I see my role as. 

So the investigative phase of my work as defence counsel is really about changing the focus of the proceedings because up until the point of the finding of guilt, as a lot of people have talked about, the focus is on what happened, what happened between two people or what happened, what the events were that led to the charges.  The focus is often on events, the focus often not on the people, as we've talked about.  The focus is often on the complainant, not on the accused person. 

But at the day of the end, it is the accused person who is going to receive the sentence.  And so if there's been a trial, the trial judge may or may not know about my client.  If there's a guilty plea, the trial judge will usually know virtually nothing about my client by the time the sentencing happens.  They will know what the facts are, they will know what, what led to the offense, what the conduct was that gives rise to the finding of guilt, but they won't know about my client and what that person is.

And as we all know, there's much more to any accused person than the conduct that brought them before the court for that day on the sentencing.  Everybody has a story and my job as defence counsel is to ensure that the trial judge hears as much of that story as is relevant and appropriate in terms of sentencing.  And so my job is to know my client's story, to figure out how the circumstances of his life has brought him before the court.

My job, with the client's help, is to assess what caused him to be charged, what caused him to offend, and answering that question isn't designed to excuse the behaviour, isn't designed to minimize the impact on anything, but it is designed, from my perspective, to try and fashion a sentence that will address, if it can, the circumstances that caused him to come before the court.  Are there, is there past trauma in his life?  Is there mental health issues?  Are there addiction issues? 

And again, I don't say any of that to excuse anything that has happened or to suggest that what they've done wasn't a crime.  I don't want to be seen that way.  But sometimes, we need to look at those issues to make sure that there isn't reoffending in the end. 

So I gather information.  That can be hard.  It often involves other professionals because I am not, although I'm informed about trauma, I'm not a trauma specialist, I'm not a psychiatrist, I'm not a psychologist.  I try to educate myself about the experience of indigenous people in this country, but I'm certainly no expert in that area, so I use other experts to gather information about my clients.  And I listen to my clients as much as I can to understand their experience so that I can put a relevant story to the court. 

It's obviously also part of my job to explain to my client what the likely sentences might be, or sentence might be and what all the other orders are that they're going to be subjected to:  the sexual offender registry, DNA orders, whether there'll be a Christopher's Law in, if you're in Ontario or another provincial registration, weapons prohibitions, all that sort of thing.

And then I think my job, in terms of the investigative stage, is to research what rehabilitative options are that are out there, both in custody if I think that's where they end up or out of custody, because sometimes, there will be an opportunity for me to advocate whether they go to the federal system, if it's going to be a term of imprisonment or the provincial system.  There are very, very, very few services available to people sentenced in the provincial systems for a whole variety of reasons, but there are obviously more rehabilitative programs at the federal level, but some of those are even being cut in terms of funding. 

So we need to, we need to sort of deal with that, and so I need to look at what the programs are. 

Okay, let me turn to the advocacy role in the last two minutes.  So again, the target of the advocacy I do will depend on what, on how we're getting to the sentencing stage.  I may be advocating with the Crown to try and get a joint submission or I may be advocating to the court in terms of what I think the appropriate sentence is.  And my goal is to ensure that the sentence that is imposed is not punishment for punishment's sake because I don't think that's effective for any real reason, but should focus on the underlying issues that brought the accused to court or now the offender, and to repair the harm that's been done to the extent that we can.

And I think good defence counsel should strongly advocate both of those two things in their sentencing submissions.  So what are the challenges?  I think there are four and I'm going to, there are probably 100, but I came up with four.  One is sentencing options have been limited by past legislative change, and we heard the Minister talking about this this morning, but there's no longer any option for a conditional sentence in a sex assault case, which means that trial judges are faced with a fairly stark choice between a jail sentence or a term of probation, and assuming a discharge isn't available, and those are quite rare.

And so that limits the ability of trial judges to craft community based sentences, where most of the rehabilitative services are appropriate, and obviously that creates an even bigger problem when we're talking about trying to reduce the over representation of indigenous people.  So that's one challenge, that the legislation has limited the options. 

The second challenge, I think, is that defence counsel, although Sue talked about Crowns talking about rehabilitation, the case law is very clear that from the appellate courts across this country, that deterrents and denunciation are the most important principles of sentencing in sexual assault cases.  And interestingly, I think that's inconsistent with what professor Johnson said earlier this morning about why women actually report sexual offenses in the first place, that they don't want this to happen to anybody else, which is rehabilitation, in my view, and they want people to take responsibility, which is repairing harm.

Those are two other principles of sentencing in the Criminal Code, but the courts have repeatedly said what we should be focusing on is deterrents and denunciation  and that will always tend towards a longer custodial sentence, which again, I'm not sure will always get the rehabilitative services that we need. 

Third is the lack of resources for rehabilitative and restorative justice approaches to sentencing.  We don't have adequate mental health services, we don't have adequate and accessible addiction services.  We don't have established restorative justice programs in most places, although they're expressly provided for in Section 417 of the Criminal Code.  We don't have them available and when you don't have options available for restorative justice, you are left with and driven to concepts of deterrents and denunciation.  So I think we need to put much more focus on those sorts of sentences.

And then the final one which I'm going to try and say this in a non-controversial way cause I don't mean it the way that this might come across, so bear with me until I get to the end of this.  I think the manner in which the criminal justice system has been scrutinized over the last number of years has, does create a challenge for defence counsel.  Public discourse – let me be clear – public discourse around the criminal justice system is a very good thing.  Nothing is right, we should be analysing things, we should always be questioning, but we have had a proliferation of social media with lots of opinions about particular sentences in particular cases and particular outcomes in particular cases.  Often, they are 140 characters long or less.  Sometimes, they are well informed, sometimes they are not. 

And so with that sort of mounting public pressure on judges and decision makers in our system, it is a challenge to convince judges to create sentences that are truly responsive to the issues that arise in these cases and are not simply punitive , deterrent, denunciatory sentences that will give rise to a very positive potential 140 character tweet. 

Those are my views about sentencing.

(applause)

Victoria Stillie: Thank you so much for that.  I think maybe I'll move right on to you, Anita, if that's okay, and then we'll come back with some questions specifically for the, for the lawyers.  But Anita has a number of years of experience working with indigenous populations who have come into conflict with the law, and I wondered if you could just briefly describe your work and your experience with the John Howard Society, and also give us some insight into what some of the cultural considerations are that the Crown and defence counsel and victim services and other criminal justice professionals should take into account regarding indigenous victims in sexual assault cases.

Anita Parker: Well, thank you for having me here, first of all.  I think it's important to recognize the perspective that I'm coming from.  It's very important not to make assumptions with indigenous people.  I have never lived on a reserve.  I am a product of the Sixties Scoop.  Spent some time in some foster care, etc., etc., was adopted by a non-native family.  So I grew up not knowing who I was as an indigenous person.  And then sometime later in my life, I met my family and blah, blah, blah, and I learned who I was eventually, and then I started to meet other native people and was taken home, essentially.

So that's the perspective that I'm coming from today.  I've worked at John Howard for about 16 years now in the Native Services Program.  First and foremost, I'm a social worker, but then I graduated from the Ontario Correctional College and I'm a probation officer as well.  So I've worked in those two capacities at the John Howard Society in the Native Services Program, working with indigenous people, either as their social worker or as their PO. 

So it is important that I told you that first little bit about myself at the beginning because some of the things that I'm going to be telling you today, it's just information that I've gleaned over the years, if you might say.  People have shared these things with me because as I say, I don't know what it's like to live on a reserve.  I don't know what it's like to walk in, in other people's shoes.  Not all the time, anyway. 

And I think that's important to keep in mind for all of us.  We really don't know what it's like to walk in someone else's shoes, and it's really, really important to listen and take other people's words into our hearts. 

When we're talking about victims of sexual violence, I think it's – I did this in a 14 font.   (laughter)  I don't think I need my glasses.  It's really important to know what community the victim is from.  It's also important to know is the offender from that same community.  A lot of our communities are quite small and the relationships are quite intertwined.  In London, for example, we're deep in the heart of Indian country.  There are three reserves right outside of town.  We've got Six Nations, we all Walpole, we have Kettle Point, we have Moravian Town, we have a lot of native communities around us, and we have the urban population as well.  So the relationships are like this and it's important to keep that in mind. 

Typically, our communities are small, unless it's Six Nations, but our communities are small and tongues wag, and that can make it very difficult for victims to tell their stories, or to even come forward in the first place.  It could be, the perpetrator could be a family member, which makes things difficult.  The perpetrator could be someone who's really quite prominent in the community as well.  It could be a Chief, could be a councillor, could be a healer or an elder, someone that we hold in high esteem.  And that would make it very difficult for, for victims to come forward and talk about their story. 

The same dynamics do apply if the victim lives in town, if they live off reserve.  As I said, we are a close community and often our community members, reserve community members, will move back and forth from city, back to the res, city back to the res.  It's quite a fluid lifestyle for some of the people that I know.

And victims can face real alienation from our communities following a disclosure.  They can be shunned and family members can turn their backs on each other when a disclosure is made.  And it's very important to keep that in mind. Family is very important to us, as it is to you too, I'm sure. 

There is the true potential for lateral violence in our communities.  We know that oppressed people turn around eventually and oppress each other.  Lateral violence is a real problem in our communities, and when we throw sexual violence into the mix, it becomes an even more serious, serious problem. 

It's very important therefore to work with victims on safety planning and safety considerations, and enabling them to access appropriate supports.  As far as services and supports are concerned, we know that there is a huge lack of culturally relevant and culturally meaningful services in our communities for victims of sexual violence.  That's a reality.  Something that – I have a wish list and I'll read it to you. 

We have a real need for female first responders, particularly in domestic situations or really sensitive situations such as sexual violence.  So we need female police officers, EMS, crisis counsellors.  To me, I think that would be, that would be ideal for victims. 

We also have a lack of indigenous female workers in our social service agencies, whether it's in the city or small towns, in particular sexual assault centres.  Victim witness programs in courthouses, I know in London, we don't have an indigenous worker there.  I think it would be really, it's on my list.  It'd be awesome if we could have an indigenous worker and victim witness.

I think it's important too, we need to recognize the diversity in, in Indian country.  All across Turtle Island, there are so many different nations, so many different cultures, so many different ways of being and belief systems.  Yes, there are common threads of truth that run between many of our nations, but a lot of our nations do things differently and have different belief systems, etc.  Diversity goes as far as how assimilated we are as well.  So that's important to keep in mind. 

One thing I do know, we may not have someone who is qualified enough to – I have two minutes left – (laughter) what will she do if I go past two minutes, let's see.  (laughter) 

Unidentified Female: Nothing.  Nothing.

Anita Parker: Nothing.  (laughter)  Ah shoot, I just wasted 30 seconds laughing.  (laughter) 

It's important to have that support person for a victim and even if they're not, like, a trained social worker or psychologist or what have you, just being indigenous sometimes is enough.  I know.  When I'm walking down the street, if I see a fellow indigenous person we, it's one of those.  We don't know each other, but there's a connection there.  And I think when we're talking about victims, that connection is really, really important. 

I was going to go on and on and on, but I can't now.  Apparently. 

I did want to, someone mentioned the term bias today and how we all bring our biases to whatever situation it might be.  Something I'd like to ask of all of you is to, sort of, be like a turtle and go inside and take a really, really good look.  Who is in there?  What makes you tick?  What, what's in your heart?  And really, really absorb that.  We call that being like a turtle, going inside and looking within.  And become, become aware of what your biases are so that you know how you can interact with others in a healthy way. 

And just to sort of enhance that, I'm sure you've heard this story about the old man talking with his grandson.  Some people say it's a Cherokee story, I really don't know the roots of the story, but the, the young fellow looked at his grandfather, and he said grandfather, there seems to be so much turbulence in the world, so many bad things.  Why is that?  What's happening?  And the grandfather said to the young boy, he said you know, we have two wolves inside each of us.  One wolf is good, it's a good wolf and it's full of warmth and love, and caring and insight.  The other wolf unfortunately is full of anger and envy, bitterness, nastiness. 

And that, that feeling that you're feeling right now, son, he said, those are the two wolves fighting.  They're fighting within you.  You don't understand.  So the boy looked at his grandfather, and he said well, which wolf wins?  And the grandfather said it's the one you feed. 

So I'm just asking you to please be a turtle, go inside, and then determine which wolf it is you're going to feed to help make our communities healthier.

Miigwetch. 

(applause)

Victoria Stillie: Thank you for that.  That was a really poignant story.  And I'm going to ask the lawyers to follow up to that really, really excellent request for the audience members to look inside. 

So this question is for Sue and Breese, but if Anita or Guy, if you have any insight, feel free to jump in.  But I wanted to ask both of you how does the Sex Offender Information Registration Act impact people found guilty of sexual assault?  How does it impact the trial process from a Crown perspective?  For example, does it play into plea bargaining?  How does it impact the trial process from a defence perspective?  Does it increase the jeopardy of the, the jeopardy of the accused?

And I wondered since we only have, you know, 10 minutes left, I'll just throw another aspect into that question.  If you can speak to what kind of impacts the DNA Identification Act has on, on people found guilty?

Sue Bogle: I'll just speak to the SOIRA.  So that's the, the registry, sex offender registry.  It's mandatory once there's a conviction, no matter in terms of the sexual assault offenses.  The only thing that varies is the length.  It can be from 10 years, if the Crown proceeded summarily, 20 or for life if there's multiple sexual assaults.  It, it requires the, the offender to register certain information.  In our jurisdiction, it's with the police.  They have to register their current address, their current employment, if they're going to be out of their residence for seven days or more.  Just keeps up to date.

They register initially and then they, if there's any change, they have to go back and give that information and every year, they, they are required to go back and give that information again.  So it, it's for investigative purposes for the, for the police and also it's being recently spoken about as preventative as well.  It's not public, it's, some people feel that this information is made public.  There's that stigma.  It's not like a community notification.  It is done privately.  It's only certain people that have access to that information. 

But I do think, in my experience anecdotally, because it's mandatory, it is something that factors into plea negotiations.  We spoke again about there not being as many guilty pleas in sexual assault case.  That is one of the reasons because that's not something that we can bargain away.  A person's going to be on that registry and it could be for life.  Usually at least 20 years. 

So it does factor in, into the negotiations certainly.  It's very difficult though when you have a sexual assault charge from the Crown's point of view, to drop it down to an assault where you wouldn't be on the sex offender registry.  If there's a sexual assault, it's quite true.  It's not a easy thing to deal away as such.  And there used to be exemptions; a judge could make an exemption but that was changed with the legislation and now it's mandatory. 

Breese Davies: So, yeah, so in 2012, along with other legislation that did away with judicial discretion, the previous government took away any discretion trial judges had to exempt someone from the registration on, in SOIRA following a conviction.  And there was certainly some research done about the manner in which exemptions were being granted in, in sexual assault cases.  So I think that's an important issue to recognize and we want to make sur that the exemptions aren't class based or based on other discriminatory views about whether some sexual assaults are worse than others and some people deserve protection more than others. 

So obviously we now have it as mandatory.  The other interesting change is that it can now be used for preventive purposes.  I'm not sure any of us really know what that means, but it, what it probably does mean is that the police are going to be empowered to do a lot more random checks on people who are on the registry.  So when it was for enforcement purposes only, it could only be used for investigative pur-, sorry for investigative purposes, it was for the investigation of a criminal offense.  If it's now for preventive purposes, presumably that broadens the scope of what police can do in terms of checking on people. 

And I think any time you give the police discretion, you have to be concerned about how that is going to be used and whether or not that's being used in a discriminatory way as well, whether certain people are being targeted for those sorts of added checks versus others. 

It has been upheld as constitutional in its previous incarnation when it wasn't mandatory and it was only for investigative purposes.  There has, there has been, as far as I know, one constitutional challenge to it in its current form in Alberta.  And the decision, it's not finished yet, the case is not finished.  Back in the fall, it was found that the new provisions, mandatory and preventive, violate Section 7 of the Charter.  They have not yet had the hearing, as I could figure it out, to determine whether or not it was saved under Section 1 of the Charter.  So stay tuned on whether or not the new provisions are constitutional or not. 

But I think it, I think there is significant stigma to this, the concept that the police  can randomly show up at your, you have to give them everything, you have to give them all of your addresses, where you work, secondary residence.  You have to notify them if you're going to be away from your residence for seven days at a time, like – You have to, it's a lot of reporting to the police about your movements.

And so the concept that they can randomly show up and check, I think is a significant risk to people in terms of being identified as being on the registry.  I think lots of different police forces deal with that in a great way to avoid stigmatization, but I think that is a risk.  And so I think it's, it's something that we'll probably see more litigation around as we go forward. 

This panel discussed current issues in sentencing and corrections for offenders found guilty of sexual assault, including issues related to the Sex Offender Information Registration Act, the Gladue principles, victim impact statements and community impact statements, therapeutic models and promising practices

Guy Bourgon
Senior Research Advisor, Research Division, Public Safety Canada

Sue Bogle
Crown Counsel, Public Prosecution Service of Canada, Yukon Regional Office

Breese Davies
Defence Counsel, Breese Davies Law; Adjunct Professor, University of Toronto

Anita Parker
Native Services Program, John Howard Society of London and District

Panel 5

Promising Practices and Alternatives to Traditional Criminal Justice Trials

Transcript - Promising Practices and Alternatives to Traditional Criminal Justice Trials

Moderator: Hello. My name is Stéphanie Bouchard. I am a lawyer, and I work at the Policy Centre for Victim Issues of the Department of Justice Canada. It is a great pleasure for me to be the moderator for the last, but not least, expert panel that will discuss promising practices for preventing sexual assault against adults in Canada and other common law countries.

They will also cover discussion sessions on traditional procedures in the criminal justice system, including restorative justice. I will briefly introduce to you the panel. You’re more than aware the full bios are in the binders and because of some travel arrangements we will start the discussion with Jo-Anne Wemmers who is from the International Centre for Comparative Criminology of the University of Montreal, then Melanie Randall who is professor at the faculty of law at Western will be speaking.

Then we will have Kate McKenzie Bridle who is senior legal and policy advisor of the New Zealand Law Commission. She’s traveled far to join us today. Then we will have others you’ve seen earlier today, Jill Witkin from the Crown Law Office of Ontario and also Carmen Rioux, Crown attorney from Quebec speaking. We’ll start with the restorative justice component and then we will move into New Zealand and Ontario and Quebec action plans.

Jo-Anne Wemmers: My apologies for changing the order but I have to catch my train. I have to teach in the morning. Today I’m talking about restorative justice in cases of sexual violence. Last night I was reminded that I have less than ten minutes to do it. I started immediately with my conclusion. If all else fails at least they’ll know where I was going. Now, how did I get here? This is the question. What we’re saying here, my argument is it’s time to stop deciding, judging victims really and to start listening to them and to develop innovative responses that meet their needs, promote healing while respecting the rights of the accused.

It was interesting for me today hearing bits and pieces of this from the different speakers throughout the day. I think that’s something that brought me as a take home message that it seems to resonate with both victims and those working as defence with the accused. Unfortunately what happens is we end up judging victims far too often in the criminal justice system and outside it. How do I get here?

Justice, the attrition, we talked about that all day, the justice gap so I’m not going to talk about that. The alternative, what alternatives are there to the criminal justice? If the criminal justice system isn’t working what alternative do we have ? We saw it already, one in twenty victims of sexual assault will report to the police. Back in 1999 the general social survey included a bit on restorative justice, alternatives to justice and they asked specific questions to victims about mediation.

They explained to victims what is mediation because many wouldn’t know if it wasn’t explained to them. Even for victims of sexual assault one in four said that was interesting, would have been interesting for them in their case. That becomes really interesting when only one in twenty is reporting to the police. Before we go judging restorative justice, clearly victims are saying they’re more interested in that than in reporting to police.

That’s something to bear in mind. What else? Obviously this is just one study. It was a while ago, will it still apply? Research elsewhere, for example in the States, has come to very similar conclusions that restorative justice, the majority of victims of sexual assault in these studies is very interested in restorative justice in addition to criminal justice and some of them as an alternative to it, 30% in one study as an alternative to criminal justice.

There are different ways we can envision it, as an add-on to criminal justice or as a diversion. I think it’s important to keep an open mind. We don’t have to choose right away. What`s also interesting is that particularly when the victim knows here offender this is something victims seem to be more interested in. We know it was often the case in cases of sexual violence that victims know their offenders in the majority. I think it’s time to start listening to victims.

Unfortunately however there’s a lot of resistance to this notion of restorative justice in cases of sexual violence. We saw it here in Canada with the Dalhousie FaceBook incident. That was quite clear where there were protests on the street telling the university they were shirking their responsibility towards the victims, victims were being abandoned, etc. whereas it was a very interesting option. The university took very seriously what was going on. They were fortunate enough to have on their staff Jennifer Llewelyn who is an expert in restorative justice and a member of their law faculty.

She put together a wonderful well-coordinated response that listened to victims throughout the process. There’s a number of publications on that including testimonials by the victims included. One of the things the victims talk about is how they were shocked, hurt by the protests happening outside as though people weren’t supporting their choice which was a very well thought out choice. They didn’t want to see these classmates have their careers thrown away and expelled from the university.

More importantly and that’s something we heard this morning they were concerned about what about the future, if they take this behaviour into the workplace. These are guys who will be working in dental offices, many of the support staff, the hygienists, the administrators, the receptionists will be women and they might not feel they can stand up to what might be their superior and say that’s not acceptable behaviour. They felt it was very important they as their equals stood up and said no. What you did is wrong and this is why.

It also enabled a dialogue which unveiled a culture of misogyny, of sexism in the university which had allowed this FaceBook page group to be created in the first palce. It was able to address the bigger issues outside of the particular issue. It was very good, very healing for the victims, for the offenders, from a prevention point of view as well as from an institutional point of view for the university.

The resistance, the negative attitudes immediately by the public who were not out to hurt the victims but to protect them, that was the important thing. That’s where it becomes important to think about protection, this comes from the idea that we have to protect the victims. They’re vulnerable. We do have to. That is a real concern, protecting victims. However, how we do that is also important.

Clearly the criminal justice system has some protective measures. We’ve talked about how hard it is on the victims. We don’t want a secondary victimization in these restorative justice programs. There are ways we can organize the process and precautionary measures that can be taken to reduce the risk of secondary victimization. That’s important. Also important to point out the benefits for victims: there has been some limited research with restorative justice programs. You’ll hear more about New Zealand has been quite innovative in that sense.

It shows a reduction in post-traumatic stress symptoms of victims who participate in these programs, a feeling of empowerment, regaining a sense of control which anyone who works in clinical psychology will tell you is really important for the healing process, the ability to be able to make choices. There are some innovative programs integrating restorative justice in a therapeutic context so it becomes a step in the victim’s healing process. It’s victim oriented or victim initiated.

Information empowers choice. This is one of the things that people often say. We don’t want to talk about it because we might upset the victim. If the victim asks for it well maybe we’ll talk about restorative justice but the victim has to ask for it first. It’s important to point out the victims tell us they want to know the options. Maybe today it’s not a good idea for me but maybe I can come back to that later. Maybe later on in my healing process it will be something that will be helpful or something I want. It’s important that option is there.

Accountability, this is something interesting in the research that has been done is because restorative justice it’s a voluntary thing. The offenders going into it recognize responsibility which I thought was interesting hearing the defence lawyers today talking about how their clients would be willing to recognize responsibility but when you know you’re going on the sex offender registry the costs associated with it discourages that acknowledgment. For victims that acknowledgment is so important.

That’s a vital difference between restorative justice and criminal justice. It starts off already saying yes, I believe you. There’s this recognition of the wrongdoing. Through the dialogue the studies suggest there’s a deeper understanding of the responsibility for their behaviour so it can be helpful in that sense as well. How to organize it? We’re not going to decide that. The key word here is flexibility because cases can be so different, victims can be so different.

The important thing is we listen to victims and what they are telling us about what they want, what they need and alternatives to criminal justice may offer an alternative, a helpful positive path for victims. Don’t judge their choice. Just because a victim wants to do restorative justice doesn’t mean it didn’t happen or she’s more responsible for what happened. It’s her choice and we need to respect victims’ choices.

(Applause)

Melanie Randall: I’m also here to speak about the possibilities for a restorative process for addressing crimes of gender violence. I want to acknowledge it’s very controversial within the women’s movement. I’m scared that my pal Tracy Porteous is going to rush the mic and argue with me about this because she’s never heard me address it. It’s a controversial topic within the women’s movement. There’s a lot of interesting things we have to discuss about if it can be done and how it can be done well.

I want to begin with the observation that might seem paradoxical, that the criminal justice system sometimes works in sexual assault cases. There are sometimes successes and positive outcomes. They’re rare but they occasionally do work. We’ve also had some stellar law reform successes. They’ve been acknowledged a few times today. We’ve got some incredible law on the books. Our affirmative consent standard in the Criminal Code is a huge achievement and something to be proud of.       

The theory is fantastic. The practice is the subject of another presentation. The news is saturated with the failure to bring the affirmative consent standard to fruition in case law but if it had been we’d have a very different body of case law. Maybe it’s a coping strategy I have to want to point that out but I do think it’s important that we recognize that. I also think we have to recognize there are many people within the context of the criminal justice system doing impressive and heroic work on the frontlines.

That includes community organizations, victim services, women’s groups, police, Crowns and lawyers, judiciary, parole, government and beyond. We work in a difficult context and people are doing really difficult work. It’s important to recognize that. I would also like to give a shout out to Tracy Porteous and Eva for leading the province in doing trauma informed criminal justice system. They’re doing some incredible work there in British Columbia.

(Applause)

That’s how to set up how big we know the deficiencies are in the criminal justice system. I don’t think we should abandon the criminal justice system. We need to continue to make it a more robust system and to keep those law reform successes moving forward and try to make it as improved a system as we can.

Nevertheless, sometimes I wonder if we are tinkering at the edges. I think we need to think about more innovative and creative approaches. Restorative approaches can complement what we do in the context of the criminal justice system. They can be parallel and outside in community based or they could be situated within the criminal justice system. There’s a whole range of ways in which we could build restorative approaches into the criminal justice system or outside of it.

None of the pragmatic stuff is stuff we can talk about today. There’s no time. I can only discuss the conceptual aspects of it today. I think I was invited to discuss this because of a paper I wrote entitled “Why Feminists Should Engage with Restorative Justice Practices” and for this I blame Jennifer Llewelyn with whom I went to law school who invited Laurie and I to work on this project on restorative justice and think about its applicability for crimes of gender violence.

She invited me because I was hostile to it. I admired her for inviting me because I was pretty opposed to thinking about using restorative justice for crimes of gender violence. I eventually published from vaguely hostile critic to someone cautiously engaging now with restorative justice. I think we need a conceptual shift away from centring on the justice interest of the accused which is what the criminal justice trial is all about to the justice interest and rights of victims.

I don’t think the criminal justice system has the capacity to do that. For all of the law reforms we’ve put in place, the system just does not have the capacity in a full way to centre those concerns. It’s not designed to do that. We have to shift our thinking away from the strictures of that system and what happens in it and think outside our legal training. It’s hard for those of us who are legally trained to do it because we internalize the rules and norms of the legal system even as we’re critics of it. It’s a difficult thing to do.

I think an outright rejection of restorative approaches to crimes of gender violence and a refusal to even think what it might look like to take a restorative approach refuses to take seriously the feminist critique of the profound limits of the criminal justice system and fails to honour the feminist insights into what women need to process and resolve the harms and experiences of gender violence.

The three overarching principles I think should guide our thinking about what a restorative or innovative or creative alternative can model for processing crimes of gender violence or that it needs to be a quality focused and committed to social justice. There’s been a lot of talk about trauma informed. I believe in work being trauma informed and I do a lot of work on doing trauma informed practice but I think trauma informed alone is insufficient.

It has to be equality focused and trauma informed. Those would be the two principles. I think trauma informed practice is a form of social change. The third overarching principle is that it has to – any kind of model we’d want to think about would have to draw on the decades of expertise that has been built up in the violence against women sector. I cannot overemphasize that point enough. There’s so much skill, knowledge and expertise in that sector that that has to be the starting point for thinking about what would a model look like.

In a context of a shortage of resources and a tendency towards privatization I would be extremely concerned about any kind of political move towards looking at restorative approaches as a cost saving measure. I think they’re very resource intensive when they’re done properly. This is not a cheap and easy fix. It’s an extremely laborious, careful set of processes. It’s a much more radical social change long term and has a much more prevention focus laying the groundwork for ending gender violence in a much bigger way.

There’s a huge social benefit to doing it well. In terms of comments about the why, what I mean by restorative, the restorative process means a process by which all of the parties that have a stake in a particular form of wrongdoing or an offense come together to resolve collectively what happened and to deal with the aftermath of the offense and its implications for the future and think about what does resolution look like.

There’s an expanded conception of who the harmed parties are. They include not only the victim and the offender but also the community. That’s a significant change because the criminal justice system has no capacity to engage the community as a meaningful party. That is very consistent with the feminist analysis that crimes of gender violence should not be seen as individualized and privatized but need to be taken as social problems and public problems for which we need to take social responsibility.

There’s a huge social and political piece to thinking about restorative justice in this way. A lot of the resistance to doing restorative justice is it’s been done in traditional ways that is very offender focused and doesn’t take victim interests seriously. By restorative I don’t mean offender focused in the traditional way but a focus on offenders is still important. I mean a victim centered restorative approach.

A truly feminist led victim centered restorative approach gives us an expanded conception of what the harms are associated with sexual violence and what the remedies might look like and critically engages the community as well as a party in the process. A final point, a restorative process would create the space for undoing one of the biggest harms that happens in a criminal trial which is the distortion, demeaning, fracturing of the victim’s narrative of what happened.

It’s one of the greatest injuries of the criminal trial. It’s one of the greatest features of the hostile court, what Elaine Craig in her writing has called the inhospitable court. There’s been decades of research on this, the re-traumatization of victims in criminal trials, the violence done to women in trying to describe what happened to them in an episode of sexual violence and the construction of a meaningful narrative is essential to healing from a crime of gender violence.

That is the antithesis of what happens in a criminal trial. The criminal trial has no capacity for meaningful victim narrative. It’s not possible. The construction of a meaningful narrative is something that might be possible in a feminist led restorative process. I’ll end with a quote from one of my favourite writers, Judith Herman. She said something that has been often quoted, “if one set out to create something that induced systems of trauma, it might look like a court of law”, which is a sad statement. The quote I wanted to use ties in with this idea of the importance of narrative.

She says, “the victim demands action, engagement and remembering and telling the truth about terrible events are prerequisites both for the restoration of the social order and for the healing of individual victims.” Here she integrates both the micro individual levels and the macro social levels of what we need to take seriously the idea of both individual and social responsibility for ending gender violence. Thank you.

(Applause)

Kate McKenzie-Bridle: Hello. Hello. My name is Kate and I’m from New Zealand. My name is Kate. I’m from New Zealand. Please forgive me; I speak only a little French, but I would now like to speak (indigenous language). I wish to give you a welcome and introduction in (indigenous language) which is the language of our indigenous people of New Zealand.

(Indigenous language) I gave you my history.  My relatives are from Scotland and England. I gave you the name of my mountain and my river close to where I live and my name and I passed on greetings from the New Zealand Law Commission and the people of New Zealand. I’m going to start by giving a disclaimer. I understand Canadians are quite good at disclaimers too because I lived in Vancouver for a year about 20 years ago and was very surprised to have to keep on signing these things, giving away all my rights, these disclaimers that you couldn’t do this or that. Maybe it was just Vancouver.

My disclaimer is I’m not speaking for the New Zealand government today. I’m very honoured and privileged to have been invited here to speak on behalf of the New Zealand Law Commission. I wasn’t specifically chosen by you but I was involved in the report that you’re interested in hearing about which was the report that our Commission did on the criminal justice response to victims of sexual violence which was we published the end of 2015.

I have worked for three years at the Law Commission as a legal and policy advisor. Previously I worked in private practice for 20 years, mostly in family law. I feel I’m talking to you today on the shoulders of giants in the sense that there are many of you here, most of you are much more specialized in this area of sexual violence than I am. The many people we consulted with in the course of our research were much more experienced. We are generalists in our Law Commission and we become schooled in the area we are writing about but we don’t claim to be experts.

I feel even more privileged to be able to address you because what I’ve learned has been a journey for me at the same time. I knew a fair amount about domestic violence from my practice as a family lawyer but I hadn’t encountered sexual violence so much. It was very much the silent form of violence. It’s easier to talk about domestic violence. It’s easier to say you’ve been hit than you’ve been raped. That would factor into my discussions with clients but I didn’t understand the dynamic that I came to learn about as we went through the report.

I want to give a disclaimer about terminology. There’s been discussion about terminology, what’s the right term to use: victim, alleged victim, perpetrator and offender? We wrote a disclaimer in our report that the terminology used by the violence sector is that of victim and offender even though that’s not the preferred terminology of the legal sector.  That’s the terminology I’ll be using. It may be appropriate to use the term victim survivor or just survivor. I want to acknowledge that victims are not just victims, they are survivors.

Our story in New Zealand started – the story I’m going to tell is about an incremental change over the last – since the mid 2000’s. That’s not to say we have got everything sorted. We have taken a slightly different path and some exciting reforms are in the pipeline. Our story starts in New Zealand with a very brave woman called Louise Nicholas. Louise Nicholas was a young woman, slightly older than me. In the mid 80’s, when she was 13, she was raped by a police officer in her small town.

She tried to report it at that time but it was a friend of the police officer and he discouraged her from taking it any further. She then was targeted as someone who wouldn’t resist and this police officer would often sexually violate her. This continued through her mid-teens and more police officers in the border district found out that she was easy. She was raped on numerous occasions by police, even using a baton. This went on until she was in her late teens and she met a lovely man who she is now married to.

As we’ve heard today she did initially try and make a complaint. She was discouraged. She then – the police had failed her quite clearly but she raised the matter again about 17 years down the track in the mid 90’s. To add insult to injury the man she confided in, a police officer, seemed to take her complaint seriously and proceedings were brought against these men but he deliberately gave hearsay evidence at the trial and the trial was aborted.

There was another trial and he did the same thing. That was the mid-90’s. By the mid 2000’s a journalist heard about these police officers.  He discovered they had committed, some of them, other offenses and word was they were in jail but this had been suppressed because of Louise – maybe I’ve got the story not quite right there. Anyway, it wasn’t published abroad at that point in time.

He dug around and encouraged Louise to make a further complaint and take further advice.  There ended up being a further trial at which these police officers were acquitted. Women around the country from sexual violence groups in particular, even though there were suppression orders because two of these men were in prison for already having raped another young woman, started distributing pamphlets which breached the suppression order.

Word started to get around and at the end of the trial there was public outrage that these men already in jail for something similar the jury didn’t know about it and that would have made all the difference. That was the feeling. Louise never secured a conviction against those men. The police officer who ostensibly was helping her was eventually convicted of perverting the course of justice.

As a result of her standing up and letting her name be known a lot of other victims started to come forward and speak up. It started to change some of the culture. The Prime Minister at the time was a woman. That probably made a difference. She ordered an internal inquiry into police conduct immediately, a Royal Commission. It was internal policy inquiries into the conduct of the police. The police ended up being subject to auditor general oversight reports.

That’s not part of what we looked into but police conduct and practice has changed significantly as a result. Louise today is involved in training the police. We have only one police force in New Zealand and she is involved in the training of young recruits around sexual violence. Many things resulted from her brave action. The Law Commission became involved at that point because there was concern about the rules of evidence about the previous bad character of defendants being known.

Our conclusion when we issued our report in 2008 was the rules of evidence were okay but the way victims of sexual violence were treated and the adversarial court process was not okay. We suggested there needed to be an inquiry into that. We were subsequently given a reference from the government to look into those matters. It was a very high terms of reference. We were to look at the pre-trial and trial processes in criminal cases, whether the adversary framework should be modified in order to improve the system’s effectiveness and efficiency with particular focus on sexual offense cases.

It was to include an examination of inquisitorial models. At that point some of the team of the Law Commission went to Europe to study some of the civil systems there in Germany, Austria, Denmark, France and the Netherlands. The summaries are appendices on our website, the Law Commission of New Zealand. The first paper we did, the “Alternative Trial Process” in the appendices it sets out the summaries of those jurisdictions.

At the same time there was a companion book called “From Real Rape to Real Justice”, Elizabeth McDonald and (unintelligible). They did a huge amount of work that went alongside the Law Commission’s report. They focused on sexual violence. Our report was also considering whether there could be changes more broadly in the criminal justice system. The report looked at pre-trial processes, characteristics of trial, trial procedure, sexual violence and alternative processes.

Before you get your hopes up, these inquisitorial recommendations that came out of here were roundly rejected. The government took fright but I will come to that in a moment. There were some interesting ideas in there. In the handout it’s detailed more.  There were some interesting ideas like victims to be involved with charging decisions. They could have a right of review.

Victims to have an independent sexual violence advisor assigned to them from the time of the complaint to travel with him through the whole process to the end of the court proceedings. That person would be the support person and the information person, would know about the court processes and be able to advise them of their rights, of what to expect. There was a suggestion, at this stage it was all up for discussion, to give judges more control.

A pre-trial dossier with evidence from defence and prosecution, the judge could decide which witnesses, the order of witnesses, whether there should be expert evidence, more investigation, very much drawing from inquisitorial systems and civil systems. Perhaps there shouldn’t be a jury in some cases, especially sexual violence cases, perhaps just a judge and two assessors. If there was to be a jury then cases needed to be fast tracked. There should be pre-recording of all evidence and cross examination and the use of intermediaries to assist in questioning where there was difficulties in a victim understanding, a child or a vulnerable person.

There was a therapeutic model of a sexual violence court which would be a post-guilty court. Someone would have to plead guilty, go to a special court. I know in the States they have drug courts. I’m not sure if you utilize that model here, something similar where there would be support for someone to go through a therapeutic process and that might have an impact on their sentence. Lastly, an alternative process, a restorative justice type of process completely outside the traditional court system.

When these ideas were published there was a new Minister of Justice with different priorities. She perhaps took fright at some of the suggestions made. There were rumours that we were trying to change the onus of proof and erode the right to silence. Those weren’t our intentions but they could be read into some of the suggestions. The important thing we learned from that was you’ve got to get people on side first if you’re going to make radical changes or suggestions even.

Perhaps if we’d limited those reforms to just talking about sexual violence not the whole criminal justice system, that may have gone down better as well. Fast forward – that was early 2012. We were told to put the project on hold which is very unusual and not complete to a final report. At the end of 2014 we had another very high profile incident with some teenage boys were boasting online of their sexual exploits with young drunk 13 or 14 old girls. There was outrage that the police had said because no complaint had been made nothing could be done.

The positive from that was people were immediately outraged and were talking about it whereas at the time that Louise Nicholas first raised her complaint people were dubious, didn’t believe her. Women’s groups believed her but not necessarily other people. The climate has started to change.  The Minister of Justice directed us to continue with our report but focus on victims or complainants in just sexual offense cases and not to look at any proposal that would reverse the onus of proof.

Our final report in which I was involved was a much more conservative report especially as regards the court proposals. A major proposal – these were the four heads of proposals: the court experience of complainants, court specialization for sexual violence cases, an alternative process and the establishment of a sexual violence commission.

For the court experience we made some recommendations around reducing the time for hearing, giving information to victims, court layout. The more significant ones were recommending the individual sexual violence advisor position be established to walk alongside the victim. We recommended the pre-recording of evidence and allowed that to include cross examination with the aim this would reduce the drama in the courtroom in front of the jury, reduce delay.

At least the spectre of cross-examination is not hanging over the head of a victim or a child where a delay affects their memory. We left open the door to the use of intermediaries. The more significant was around the specialist sexual violence court. We were conservative and recommended initially this be a pilot court with trained judges, counsel administration staff and only designated judges to sit.

It’s harder to require defence counsel to be trained because people are free to choose their legal counsel. Most people defending sexual violence charges do so on legal aid so we thought you could introduce an accreditation requirement that all lawyers who did legal aid work need to be trained around sexual violence and rape culture myths. Judges already do have training around that generally, since the Louise Nicholas case.

There has been more intensive training recently. We also have – there was some reference here to we call it counter-intuitive evidence. At a sexual violence case our Supreme Court has permitted the use of expert evidence to inform the jury as to rightness and to inform so they understand why a victim may have acted as they did act which may be counterintuitive to what people might think would happen.

That happens in a variety of ways. It’s not standardized. Sometimes a judge might give a summing up. Sometimes it’s an expert. We made some recommendations around trying to standardize that. Our hope with this court is that there’s to be an evaluation after two years. In that time -- at the same time as we issued our report we were going through a modernization of our court system.

There was a reluctance to do any tinkering in the meantime which is why we didn’t specifically recommend a legislated court for sexual violence plus there’s quite a lot of cost implications and whether there’s sufficient work just for a sexual violence court or whether you take too much work away from a district court if you create a sexual violence court. The pilot hopefully gives a chance to see whether such a court is sustainable with its own legislation.

We have our own family court and a youth court which are governed by their own separate legislation with different rules of evidence for each. It also leaves open the question of who the fact finder should be. We didn’t make a recommendation around the question of the jury but we did go as far as saying that sexual violence is not well suited to fact finding by a jury comprised of 12 lay persons for the reason that each jury carries the myths of sexual violence and rape culture. They need to be educated each time which is a huge effort.

We are hoping there might be more time for an alternative with the time to consider in the next two years whether a judge (unintelligible) whether professionals or lay people might be considered, whether this is appropriate in a court dedicated to sexual violence. It would get rid of the need for new rules of evidence. It would help with reducing the trauma and potential for revictimization and hopefully administrative costs also.

In response to our report the government sees there’s a case but we need to do more, consider this further and do more work. That’s the official response. The chief district court judge has decided she’s going to start the pilot anyway. It has been started in as much as she can control administratively in two courts with a main aim of speeding things up, having a more empathetic environment, having judges who are trained, counsel who are interested and hopefully receive some training. We’ll wait to see.

They just started it very late last year. The first pre-trial conferences will be in March.

It’s good that Melanie and Jo-Anne went through restorative justice because I’ll have to speed through it. We also recommended a sexual violence commission which the government has said there needs to be coordination of services. We’re going to look at that through another means. The alternative – it was interesting to hear only in the sentencing panel, one size doesn’t fit all. We need to have different responses. That was the clear view that Elizabeth McDonald (unintelligible) formed.

They weren’t expected to write about an alternative process to court. That was not their focus but they found amongst victim support groups there was a call for something else, not just the criminal justice system that treats this poorly. So many people don’t want to go through the system because of how it re-traumatizes and there’s no incentive for offenders to plead guilty like we heard today. There are so many cases don’t resolve because of the high stakes. In New Zealand they’ll inevitably get a custodial sentence. We’ve heard about in the adversarial process the state takes the victim’s place. It’s just not a process that is well suited to meet victims’ needs.

One of our earlier presenters referred to these matters. Victims’ needs, Judith Herman and Mary Koss and Kathleen Daly who’s an Australian criminologist and has written extensively in this area have together identified what victims need. They need to participate in the system. They want to tell their story, to have a voice. They need to be validated. They need vindication and they want the perpetrator to be held to account. As Melanie said, Judith Herman said if you want to design a system that’s going to do the most harm to victims, the adversarial system comes pretty close to that.

In New Zealand we do have the ability for post-sentence restorative justice processes for sexual violence. That occurs on a regular basis as of about a year ago it was extended to sexual violence and there are good practice guidelines for that. Only accredited people can run that. What we outlined in our report was the possibility of having a process completely outside of the court system. It’s controversial for sure but there’s a lot of questions raised about how would that work. How would it work for this kind of offender? How would you protect people?

For you you’ve only got 6% of people reporting. We’ve only got 10%. What about all the rest of them? Surely we can design a system that at least counts some others of those who aren’t opting to go through the criminal justice system at the moment. We proposed an alternative. We have a system which is called project restore. They work extensively with preparing victims, preparing offenders who acknowledge responsibility.

They may not end up meeting. There may be a proxy in place of the victim but the aim is to bring healing and restoration, to answer the questions, to have accountability. We have a model there. How it’s designed, we put a lot of thought and effort into what it could look like so the Minister had a bit of an idea. It’s very hard to design a completely foolproof model. Maybe in preparation for coming here I talked to a commissioner at the Royal Commission at the time that the first report was written and the alternative process was proposed at that time.

We had 500 people submit on all of our proposals. We’re a country of 4 million so it’s not too bad. Everybody was in favour. People want something. As Jo-Anne mentioned before, if that’s what the victim wants then we should be listening to that. There’s all sorts of questions about how you protect people and ensure that society is not at risk but at the end of the day maybe society’s need for denunciation and retribution should come second to what the victim in the case wants.

I wanted to talk about your high aboriginal rate of women that have been offended against because we have a similar statistic in New Zealand with Maori women, probably not quite as bad.  I haven’t heard today about the use of aboriginal restorative justice. There was a mention last night. I understand it does happen. There may be room there for something that will make some changes.

I want to finish reading – I saw today for International Women’s Day Louise Nicholas was asked who her favourite heroine was. She said my favourite heroine is Louise Crawford, the little 13 year old who thought that taking her own life would take away the shame she carried when she allowed bad things to happen to her. (Unintelligible) it was worthwhile living as her experiences have helped other survivors of sexual violence know they’re not to blame nor need to carry that shame. Thank you.

(Applause)

Jill Witkin: I think I need to go to New Zealand to see all the interesting work they’ve done. I’m going to talk about the Ontario strategy. I thank the organizers for giving me the opportunity to do that. Those of us who were involved in it are very proud of the strategy and quite thankful that our government has allocated resources towards this.

If you recall there was a lot of press in 2013/2014, a lot of sexual assaults taking place in the military, in the workplace and universities. There was the Jian Gomeshi allegations at the end of 2014. It was fortuitous that the strategy by our Premier Kathleen Wynne came out in March 2015. It was building on a strategy from 2011 to combat sexual violence. This was quite a broad strategy. It crosses a number of ministries. It has a number of initiatives including raising awareness and training, safer campuses and workplaces, better supports in communities and better outcomes in the justice sector.

Specifically to the justice sector there is something, the main plank of the action plan for justice called the enhanced prosecution model. What that is, is a way to try to improve all sexual assault prosecutions across the province and provide the best resources for all of our Crowns across the province. There is a group of us. I sit as the chair of the sexual violence action group. I have a regional sexual violence Crown in each of our six regions across the province.

We do this work fulltime which is rare for Crowns because sometimes in our system we might have experts or teams of prosecutors that work only on domestic violence or fraud or child abuse. Those are people who are in court all the time because they’re prosecuting the cases. We are able to do this work. We do go to court but we’re not in court every day. We have the time to be able to do the work.

Some of the work we’re doing on a policy level, we’re engaging in a lot of interdisciplinary consultations with other groups, nurse examiners, victim witness, sexual assault centres. The reason for that is you don’t do this work unless you’re passionate about this work but often in the criminal justice system we don’t know what the others are doing. Sometimes that can create skepticism. It can maybe not lead to the best understanding of where everybody fits on the spectrum.

We found that meeting with the different groups, if I do a presentation for the sexual assault nurse examiners as to what happens in the courtroom and vice versa, they do a presentation to us about what is involved in their job, it helps inform all of our work. That’s been helpful. We’re working in conjunction with the victim and vulnerable persons division to create a public resource for survivors so there’s a public document that will explain the function of the criminal trial and how a victim can approach it so they have an understanding of how a sexual trial works.

Our group also considered legislative changes that would be helpful for sexual assault prosecutions for victims and we did a lot of work on that and put those forward. Another initiative is our independent legal advice pilot project. It’s administered by the victims and vulnerable persons unit. This is a pilot project taking place over two years. There are three pilot sites – Toronto, Ottawa and Thunder Bay. This involved four hours of free legal advice to any sexual assault survivor in any of those sites.

It doesn’t matter if they have engaged the police, if they’re in the criminal justice system, if the offence took place 20 years ago or 1 year ago or yesterday. They are entitled to four hours of legal advice. We have a roster of lawyers providing this advice. They were selected and trained. The idea is not that all of them are providing advice about what happens in the criminal justice system. The idea for survivors is to give them choices so they can understand what is involved but also what would be involved if they engaged a human rights tribunal or if they wanted criminal injuries compensation or to go the civil route.

The lawyers on this roster are a cross section of lawyers with different experience and backgrounds. There is a bio for each lawyer. If a victim engages this program they can look at which lawyer would be appropriate for them. I mentioned earlier the issue of third party records, sometimes victims not having independent legal advice at that early stage before an application has been brought. That would be something this legal advice program could fulfill. It’s a really good program in that regard.

More specific to prosecutions, what our group is doing is we’re trying to assist prosecutors when they are conducting these trials. We’ve rolled out a mentorship program so that no young Crown who has come into the system should be doing a sexual assault case without a mentor. We act as mentors but we’ve also identified about 100 mentors across the province and the same number of mentees. A prosecution would be done by both, usually the mentor taking the lead and the mentee watching and learning.

Mentors are trained on making sure the mentee understands how to do a 276 application even if it’s not happening in their case. The other thing is we’ve prepared a lot of resources for easy access to a trial Crown. We have a data base with draft facta, draft submissions, application records, sentencing charts, things easily accessible to a Crown in the middle of a trial and something comes up like a last minute 276 application where the 7 days’ notice wasn’t given.

It’s not in the Crown’s interest all the time to have an adjournment so we can prepare. That’s not necessarily going to be best for the victim. This allows the Crown to go to our data base to grab a fact. This is what the arguments are. We have all different scenarios. All they have to do is plug in their facts. We’ve also prepared a best practices manual. It’s over 200 pages single spaced. This is available to all the Crowns in our province but it was designed for the mentees, someone who has never done one of these prosecutions.

It’s like an A to Z of sexual assault prosecutions. It would cover what to do in the initial interview with the victim, what to do in the conversation after the preliminary hearing, what do to in a resolution discussion with the victim, all sorts of evidentiary issues, hearsay, similar facta, 276 etc. We also have chapters on cultural barriers, vicarious trauma, how to properly object in a sexual assault trial for inappropriate cross examination, myths and stereotypes, the use of language and sensitivity and responsiveness to indigenous victims.

I wrote that part and I admit when I first wrote it as a Crown I didn’t get much help from any indigenous people I knew. When I had to present it to the aboriginal caucus it was not well received at all. It was a very humbling experience for me but I was told it read like a checklist. I really didn’t understand the issues then. I took it back and I took a course on aboriginal justice and talked to many people in the aboriginal community. They taught me a lot of what needed to be contained in this particular section. That’s an example of us really talking to each other and making sure we’re learning from each other.

It’s more helpful now. That section is called wise practices, not best practices, something I learned from a very wise indigenous woman. The last thing in terms of what we’re doing, we want to make sure – I should say our group is providing education for Crowns, police, victims, witness representatives, everybody in the industry. We did six regional conferences last year. Dr. Haskell was our keynote speaker at every one, that trauma informed approach and education on the neurobiology of trauma we’re trying to spread across the province.

We are training police on a regular basis and we’re trying to standardize that training so we all know what we’re teaching in different areas of the province and it’s the same thing. To the extent we can include the neurobiology of trauma piece if Dr. Haskell hasn’t made it to that police force we are doing that. We’re trying our best to make that work. What we are doing is collecting data. We started July 1st with a program where every sexual assault case with an adult victim disposed of as of July 1, 2016 there’s a data collection form that every Crown must fill out.

It’s got a drop down menu and covers everything from whether the appropriate charge was laid by the police, the election, the case outcome, whether expert evidence was called, whether there was a preliminary hearing. If so, how long did the victim testify? Was there a guilty plea after the preliminary hearing? The victim experience, what’s the victim’s relationship to the accused? Was there a victim interview, how many? What was the timing of that? Does the victim have a lawyer? Do they have a lawyer through the ILA program? Was there a 276 application or a 278 application? What was the outcome?

Were they brought within the notice period or outside of the notice period? Was there an adjournment, why? What was the sentence? There’s a lot of information we’re collecting and now it’s being accumulated. Essentially it gives you a snapshot of all the cases we’ve collected, 359 in total from July 1 until recently. Those have been translated into this colour coded chart where we can look at the results and say if we want to take all those cases that are known offenders, and those would be the majority, we can drill down and get all that same information but only for the cases for known offenders.

If we want to look at all the cases where the charge was withdrawn, we can just take those cases and drill down and get all the information but only for the cases that were withdrawn. This is very new and it’s a work in progress. The grey is unknown which means the Crowns aren’t filling out these forms as efficiently as they should be. We have to work on that. It is a work in progress. We’re hoping we can try to figure out patterns. What is the problem with 276 applications?

Are there lots of adjournments being asked for and if so why? How many cases are being prosecuted in the Ontario court of justice even if we go by indictment? We’re trying to find patterns. We’re hoping we can inform our work over time with this type of data collection. I think my time is up.

(Applause)

Carmen Rioux: Back to French for a bit. In the package that you were issued this morning, you will find a document that summarizes the government strategy adopted by Quebec where I work. It has a name that I’m not going to use every time I mention it. I’m going to use the full name only once. It’s the government strategy for preventing and deterring sexual assault. It was adopted last October. It has a duration of five years.

It’s not the first government strategy to be adopted by Quebec. There have been a number of them since 2001. The last one will be in effect, I say the last one, into the future. I imagine that there will be others, but this one contains commitments that will have to be acted upon within five years as well as annually. Each ministry or agency involved with this strategy must be accountable.

So, this means that it’s a serious commitment. I’m not here to speak on behalf of Quebec. That’s not my mandate at all. Instead, I have come to speak to you about something that involves me professionally: the commitments made by the Director of Criminal and Penal Prosecutions. Recall that, in Quebec, we have a prosecution system that is independent of the government.

I’m going to mention to you all the ministries involved, and you will be able to see that the Department of Justice has commitments specific to it, and the Director of Criminal and Penal Prosecutions has some as well. Why a government strategy? Well, I think we can all get behind one idea. The idea being that sexual assault is a matter involving all of society.

It is in this spirit of joint action and cooperation that it was adopted last fall and, as I said, a number of ministries are involved. I’ll list them for you quickly so that you can see the extent of the work. I told you about the Director of Criminal and Penal Prosecutions.

There is the Ministère de la Famille, which includes the Secrétariat aux ainés, the Ministère de la Justice, which includes the Bureau de lutte contre l’homophobie, the Ministère de la Santé et des Services sociaux, the Ministère de la Sécurité publique, the Ministère de l’Éducation et de l’Enseignement supérieur, the Ministère de l’Immigration, de la Diversité et de l’Inclusion, the Ministère des Affaires municipales et de l’Occupation du territoire, the Ministère du Travail, de l’Emploi et de la Solidarité sociale, the Office des personnes handicapées du Québec, the Secrétariat de la condition féminine, and lastly the Secrétariat aux affaires autochtones.

All that information-gathering work was done over the years, when the previous commitments were ending and that were called the government policy directions on sexual assault. It is the outcome of that consulting done all across the province and is produced as part of this strategy. Obviously, my mandate here is instead to represent the Director of Criminal and Penal Prosecutions. So, I’ll just speak to you with the few minutes allotted to us. I’m not going to dive into the 55 actions that the various ministries have committed to doing, but just the five that the Director of Criminal and Penal Prosecutions has committed to carrying out within that time frame.

Two things need to be said first. Sexual exploitation is something new in the strategy in the sense that, in the past, the government policy directions essentially talked about problems pertaining to what was called sexual assault.   The decision was made to differentiate sexual assault from other crimes referred to as sexual exploitation, which is instead a type of Internet luring involving children, prostitution, enslavement in connection with human trafficking.

Those crimes are categorized under the term sexual exploitation. This is new in the strategy, and it’s going to involve specific commitments. The other thing to bear in mind when talking about the strategy is that there are three components under which we want to take action:   a prevention component, an intervention component (which is where our agency has put its actions) and, lastly, a training component.

The Director of Criminal and Penal Prosecutions is responsible for five of these actions. To facilitate victims’ movement through the legal system, one of the actions that is central to our organization is adopting a program of meetings between the crown attorney who will conduct the trial and the victim. I told you that, in Quebec, crown attorneys have the obligation to meet with the victims before authorizing a sex-related complaint.

The purpose of that meeting is to confirm certain facts that are not the same as those covered by the program. The initial meeting and the authorization of the complaint are intended to confirm that the witness, the victim is able to go through the legal process without being further victimized than the crime itself has done. It’s also to provide him/her with services.

The program that I, myself, work in is ensuring that the victim is able to identify a lawyer who will handle his/her case, to whom he/she is going to entrust a very intimate part of his/her life and who forges a connection, and not the morning of the trial, but long before he/she has to deliver his/her testimony.

This is one of the five actions that we have taken. To better inform victims and their family members, even before they decide to report the crime that they were subject to, the idea of informing them even if they aren’t yet working with us, and we have already started that work, and have committed to continuing it as part of the strategy. It involves producing what are called information bulletins available on the Internet and that provide these people with information about the legal system in connection with the prosecution of sex-related crimes.

There are info bulletins on a lot of topics, but in particular, I feel it’s important to speak to you about this one. So, to be produced over the next few years are bulletins of this type. The next ones are those explaining the legal process for sexual assault and the one explaining the crown attorney’s role. What can a person expect when they’re a victim of sexual assault or sexual exploitation? What can a person expect from a crown attorney?

I’m going to tell you about a third action, and its purpose is to strengthen the actions for combating the crime of sexual exploitation, and I must tell you that I, personally, am thrilled that it is done annually. There is training given annually to crown attorneys, and in the training to be given next summer, next summer until 2021, the focus will be on ensuring that all crown attorneys are well informed in connection with these proceedings involving sexual assault, as well as sexual exploitation.

As you know, if you have to meet professionally with people who have suffered sexual exploitation crimes, you don’t deal with them the same way, since it is a very different crime. I think it’s necessary to exhibit a great deal of openness. This is the hope: that through training, all crown attorneys’ knowledge will be complete. It is assurance that we want to give victims who are considering going through the legal process.

In connection with, more specifically, sexual exploitation of youth and children, one action is also for coordinating the prosecutions that are done across Quebec for combating sexual exploitation of children on the Internet and ensuring systematic sharing of that information and expertise by forming a cooperation committee against sexual exploitation of children on the Internet.

That committee is already established. In every Quebec region, there are crown attorneys who are members of it. This way, we hope to standardize how these cases are handled, but also share expertise and ensure that, even though computers are part of our lives, that we’re not overcome by the speed at which this technology is advancing and that this type of crime can be prosecuted.

The final action that we already have Quebec is a best practices guide for prosecuting sexual assault crimes. However, keeping this guide up to date is not well done since the commitment has not yet been made to tackle that task and produce a guide intended for crown attorneys in the province to ensure that best practices are shared and ensure that the youngest people who may start getting into this type of crime have all the information that is available. This is a mammoth task. Ontario has done an extraordinary job. I have seen their work and Alberta’s too. And that’s it.

(Applause)

Moderator: Thank you very much. I want to thank every one of the panelists who shared different promising practices from your different jurisdictions and also for giving us things to think about, about alternative processes and different ideas. Thank you very much. I’m not sure if we have time for questions and answers. We’re running towards the end of the day.

This panel discussed promising practices to address sexual assault against adults from Canada and other common-law jurisdictions. The panelists will also examine alternative approaches to the traditional criminal justice process, including restorative justice.

Carmen Rioux
Crown Attorney, Quebec

Jill Witkin
Counsel, Crown Law Office – Criminal (Ontario), Chair, Sexual Violence Advisory Group

Kate McKenzie-Bridle
Senior Legal and Policy Advisor, New Zealand Law Commission

Jo-Anne Wemmers
International Centre for Comparative Criminology, University of Montreal

Melanie Randall
Professor, Faculty of Law, University of Western Ontario

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